Jubilee Court [2001] QBCCMCmr 131 (5 March 2001)

P G DanielsREFERENCE: 0704-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13881
Name of Scheme:	Jubilee Court
Address of Scheme:	23 Jubilee Avenue BROADBEACH QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Claude Gorring-Wagner the owner of lot 4



P G DanielsI hereby order that as between the owner of lot 4 Claude Gorring-Wagner and the Body Corporate for Jubilee Court community titles scheme 13881 (the Body Corporate), it is the Body Corporate who is liable to pay the two invoices detailed below:

An invoice from Locktight Security Master Locksmiths Safe Engineers Pty Ltd dated 24 August 2000 in the sum of $129.50

An invoice from Peter Alessi of P.M. & J.R. Maintenance dated 24 & 25 August 2000 in the sum of $46.00.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0704-2000

“Jubilee Court” CTS 13881

The applicant, Claude Gorring-Wagner, the owner of lot 4, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that determines whether he or the Body Corporate is liable to pay invoices from Locktight Security in the sum of $129.50 and P.M. & J.R. Maintenance in the sum of $46.00.

Section 223(1) provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

This applicant originally sought orders to invalidate the Body Corporate’s annual general meeting (AGM) on 14 December 2000 and to determine who should pay the costs incurred to access his lot. Subsequently, the applicant has informed me that he no longer seeks an order to invalidate the AGM. The only issue remaining is liability to pay the invoices detailed above. A number of submissions have been received. I have read those submissions and taken them into account in assessing this application. The background to the matter is as follows.

On 17 July 2000, the owners of lot 1, Leo and Narelle Eichorn, noticed that water was dripping from the ceiling of their bathroom. It was thought that the leak was coming from lot 4. Consequently, it was decided to access lot 4 to assess the situation. At that time, the applicant was not living in lot 4. Mr and Mrs Eichorn experienced some difficulty in contacting the applicant.

Eventually, access to lot 4 was gained by a locksmith. He had to drill through a deadlock. The locksmith replaced the deadlock. A number of persons were present to witness the entry, including Mr and Mrs Eichorn. The applicant was not one of those persons. A handyman engaged by the Body Corporate, determined that the water problem could be addressed by installing a new inlet valve for the toilet cistern. That work was undertaken. The applicant paid the handyman $50.75 and the locksmith $95.00.

Subsequently, the applicant discovered that the new keys for the deadlock would not open the deadlock. The locksmith returned and replaced the deadlock. The locksmith forwarded an invoice for $129.50 and the handyman a further invoice for $46.00. It is these invoices which the applicant does not want to pay. I will give my assessment of the matter.

Section 125 of the Act provides a power to enter a lot as follows:

Power to enter lot

125.(1) A person (an “authorised person”) authorised by the body

corporate for a community titles scheme may enter a lot included in the

scheme, or common property the subject of an exclusive use by-law, and

remain on the lot or common property while it is reasonably necessary—

(a) to inspect the lot or common property and find out whether work

the body corporate is authorised or required to carry out is

necessary; or

(b) to carry out work the body corporate is authorised or required to

carry out.

It will be observed that whilst there is a power to enter a lot there is no power to “break” into a lot. In the circumstances of this case I think the Body Corporate should pay for any damage done as a result of breaking into the lot. I have decided to impose liability on the Body Corporate as I accept the inspection was purportedly undertaken by the Body Corporate. I do not accept that it was the applicant who damaged the deadlock by slamming the door shut with the lock in deadlock mode.

I therefore propose to make an order that as between the Body Corporate and the applicant, it is the Body Corporate who is liable to pay the two outstanding invoices.

I do want to make some concluding comments about this matter. In the course of my investigation I spoke to the applicant and Mr Eichorn. It is obvious to me that this matter has been a cause of frustration to those two persons and perhaps other owners. However, it has equally been obvious to me that the applicant and Mr Eichorn want to develop a better relationship. I can only encourage them to move in that direction. It seems to me that the applicant and Mr Eichorn will need to consult with each other in the future should the water problem occur again. Undoubtedly, there will be other matters requiring communication.

I can state in my reasons that the applicant keeps a key to his lot with his solicitor. It will therefore be possible to access the applicant’s lot should it be necessary in the future. That may reduce the potential for conflict.

In respect of the water problem, there is insufficient information before me to make any order. I suggest that the matter be closely monitored. If the problem arises again, I suggest that advice from a plumber be immediately sought. If there is any uncertainty about who is liable to pay the plumber I suggest the parties raise the matter with the Commissioner’s office. The Commissioner operates a free call information line on 1800 060 119. Any owner can seek information about body corporate related matters though the information line.

I have ordered as indicated above.