Villa Vittoria [2001] QBCCMCmr 19 (15 January 2001)

RA MeekREFERENCE: 0580-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12430
Name of Scheme:	Villa Vittoria
Address of Scheme:	6 Margaret Street KINGS BEACH QLD 4551

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

Michael William Steadman and Rhonda Steadman, the owners of lot 4



RA MeekI hereby order that within one (1) month of the date of this order, the body corporate shall pay to Michael William Steadman and Rhonda Steadman, the owners of lot 4, the amount of $715, being reimbursement for replacement of three (3) windows, which formed part of the common property.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0580-2000

“Villa Vittoria” CTS 12430

The applicants Michael William Steadman and Rhonda Steadman, the owners of lot 4, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Would like to be reimbursed for replacement of 3 Windows ($715).

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)).

In the supporting grounds, the applicants state that the windows are on the boundary wall and are common property. The applicants state that they notified the managing agent that they needed replacing and that he apparently told the applicant to arrange this, pay for the work and send in the invoices.

A claim for reimbursement has been rejected by the body corporate in general meeting. Moreover, there are submissions from three other owners who oppose the application. One of the submissions states –

We find it a little disconcerting that a body corporate can be held responsible for alleged damage or deterioration that has not been sighted by anyone else apart from the owner and under circumstances where evidence is contradictory. We also find it rather unusual that no approval was sought from the other owners prior to the commencement of work. Surely this procedure is not in line with standard body corporate procedures for works which exceed the expenditure limit of a committee. After all, what is preventing an owner from completely replacing all windows under the pretence of “corrosion” and claiming compensation from the body corporate, when in fact the true reason may be something as simple as mismatched décor?

In principle, I agree with the sentiments expressed in the above submission, as quoted. If the item in question requiring repair is part of the common property for which the body corporate is responsible, then the body corporate should be afforded the opportunity to inspect the alleged damage or state of repair, to ensure that the responsibility is in fact that of the body corporate, and further, that there is not some reason why the owner of the lot might in fact be responsible. Had the applicants acted unilaterally in this matter, I would have dismissed this application.

However, I am satisfied that the applicants have not acted unilaterally. It is clear from the correspondence that the applicants contacted the body corporate manager regarding the matter of repair of the windows, and were advised by the manager as to how to proceed. I refer to the facsimile of 16 May 2000 by the manager to the applicant stating as follows –

Thank you for your fax. According to my records I spoke to you and your agent about this matter some time ago, and told you to proceed. ... Your agent advised of water penetration in my last phone conversation, and your agent should be instructed by you to replace the windows accordingly. ... As previously advised the account should be paid by you, and then the original receipts, confirming payment by you, on forwarded to our office to attempt an insurance claim. ...

It seems to me that the applicants simply acted in accordance with the advice provided by the body corporate manager. In these circumstances, I am satisfied that the applicants are entitled to reimbursement for the cost they have incurred in replacing the windows, notwithstanding that proper procedure has not been followed. I suggest that it was for the manager to inform the applicants that the matter of repairs would need to be investigated by the body corporate, and a motion to approve the expenditure placed on the agenda of the general meeting. The manager however did not adopt this course of action.

I suggest that is for the body corporate to instruct the manager how in future it should handle such matters. The fault here lies not with the actions of the applicants but with those of the manager.



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