Nautilus On The Esplanade [2001] QBCCMCmr 277 (22 May 2001)

RA MeekREFERENCE: 0040-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	683
Name of Scheme:	Nautilus On The Esplanade
Address of Scheme:	279 The Esplanade CAIRNS QLD 4870

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

Cinzia Burnes, the co-owner of lot 4



RA MeekI hereby order that the application by Cinzia Burnes, the co-owner of lot 4, for an order that the body corporate insurance pay the invoice for repair of the condenser unit, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0040-2001

“Nautilus On The Esplanade” CTS 683

The applicant Cinzia Burnes, the co-owner of lot 4, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I wish for the body corporate insurance to pay the attached invoice.

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 applicant states that she had to install a new air conditioning motor in her unit “as it had fused due to lack of ventilation”. The applicant contends that –

... the room where the ACS are hosed has been poorly designed to hold 3 ACS, and should have better ventilation. The motor has been replaced by the owner. I feel it should be the cost of the BC Ins. As of the design of the room. The chairman say no.

The applicant attaches a copy of a report by her tradesman which states that –

The reason for the condenser fan motor burning out is the lack of fresh air and ventilation around the outside unit of the air conditioner. The garden bed wall was preventing the flow of discharge air from the unit. Since the repair of the system, we have cut down the garden bed wall, which was authorised by the Nautilus Body Corporate.

The chairperson of the body corporate has responded, stating that “I believe that owners are responsible for the maintenance and repair of their air conditioner units ...”. The chairperson submits –

The units are individually air conditioned ... The motors are located on common property simply because they are out door units and to locate them on the owners balcony would effect the owners enjoyment of such. The motors are located in various discreet places around the building. The owners have exclusive use of their air conditioners and therefore are responsible for their own units.

The chairperson states that “... granting permission to lower the wall was not an admission of error but a gesture of goodwill, as the owner believed the wall was a problem”. The chairperson has also attached a diagram of the “room” where the three condenser units are located.

I intend to dismiss this application. The body corporate is not responsible for the maintenance of owner’s fixtures. Section 109(3), after referring (in subsections (1) and (2)) to the body corporate’s duties regarding common property, states –
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Duties of body corporate about common property—Act, s 114
109.(1) The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition. ...
(3) Despite anything in subsections (1) and (2)—
(a) the body corporate is not responsible for maintaining fixtures or fittings installed by the occupier of a lot if they were installed for the occupier’s own benefit; and ...

The fact that the air-conditioning condenser unit is located on common property does not render the body corporate responsible for its maintenance (see (3) above). Further, I do not consider that the body corporate becomes liable on the basis of the applicant’s allegation that the “room” in which the condenser units were located did not allow sufficient ventilation. It is not the responsibility of the body corporate to ensure that the common property where an owner’s fixture is located is a suitable environment for the proper functioning or operation of that fixture. It was the responsibility of the owner, when installing the fixture, that the location was suitable for its operation. This is so notwithstanding that the current owner is not the owner who installed the fixture. It is for an owner to ensure that the location of any fixture installed on common property is appropriate to its operation. If it is not, then it is for the owner to take steps to approach the body corporate and seek necessary changes, which the body corporate is not obligated to consent to. It will be a question of reasonableness in each case.

The body corporate owes no duty to the applicant in regard to the location of the fixture, excepting not to take any positive action to interfere with the operation of the fixture. I intend to dismiss the application.




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