Miskin Mews [2001] QBCCMCmr 14 (11 January 2001)

RA MeekREFERENCE: 0569-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12057
Name of Scheme:	Miskin Mews
Address of Scheme:	136 Miskin Street TOOWONG QLD 4066

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

Maureen Elizabeth Beitz, the owner of lot 13


RA MeekI hereby order that the application by Maureen Elizabeth Beitz, the owner of lot 13, for an order seeking reimbursement for the cost of repairs to the balcony of her unit 13, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0569-2000

“Miskin Mews” CTS 12057

The applicant Maureen Elizabeth Beitz, the owner of lot 13, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I am seeking reimbursement for cost of repairs to balcony of unit 13.

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)).

I do not intend to restate the applicant’s grounds in any detail. The applicant is seeking reimbursement of $826.10 for the cost of repairs effected to the balcony of her lot. The applicant states in correspondence to the body corporate that repairs to the “outer edges of the balconies is definitely a body corporate responsibility”. This might be so as a general rule, however the manner in which the applicant has approached this matter leads me to the conclusion that I must dismiss this application.

There is evidence before me that the body corporate had recently caused to be effected, and paid for, repairs to the applicant’s balcony. In the context of a building inspection report regarding the applicant’s lot, comment was made on the state of certain aspects of the balcony. In consequence of this, the applicant claims to have lost a prospective sale of her lot. The applicant then obtained further quotes for the further repair of the balcony, and before the body corporate were able to arrange inspection of the alleged further damage or required repair, the applicant proceeded to instruct a contractor to effect further repairs, and then sought reimbursement from the body corporate. The committee of the body corporate had reached a preliminary conclusion that the further repairs sought by the applicant were in fact aesthetic and not in any way structural. Nevertheless it was in the process of organising an expert inspection to consider this aspect when the applicant went ahead with the repairs.

There are several aspects of uncertainty resulting from the applicant’s premature action. In particular –

1. Whether the repairs allegedly required were aesthetic only or structural;

2. Whether there had been a failure by the contractor to properly effect repairs in the first place;

3. Whether the repairs involved more than common property for which the body corporate was responsible.

The fact of the applicant wishing to sell her property is not a sufficient reason in my view to circumvent the inspection of the balcony by the committee, or its representative.

I intend to dismiss the applicant’s claim for reimbursement because of the failure of the applicant to allow the committee, or its representative, to properly assess its responsibility for the repairs allegedly required. The body corporate, and its committee, does have a responsibility to all owners to ensure that body corporate funds are not improperly expended.


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