Jamies Lodge [2001] QBCCMCmr 370 (9 July 2001)

R A MeekREFERENCE: 0224-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13021
Name of Scheme:	Jamies Lodge
Address of Scheme:	33 Margaret Street TOOWOOMBA QLD 4350

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

Matthew Allan Jones, the occupier of lot 1



R A MeekI hereby order that the application by Matthew Allan Jones, the occupier of lot 1, for an order requesting that the body corporate pay to the applicant the sum of $5,027.50 by way of compensation for damage to personal property sustained during a power surge caused by faulty common property wiring, is dismissed.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0224-2001

“Jamies Lodge” CTS 13021

The applicant Matthew Allan Jones, the occupier of lot 1, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that the body corporate be ordered to pay him $5,027.50, being the cost of replacing the following items as a result of their being damaged by a power surge:

Sony 6 Head Hifi VCR, Model SLVEZ77 $ 535.00
Apple G4 Computer 3,695.00
External Firewire Yamaha Burner 797.50

Section 223(1) of the Act 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 he arrived home from work on 30 January 2001 to a blackout. Shortly thereafter, the power supply to his unit came back on automatically, initially as a power surge. During the power surge, the applicant and his flat mate heard two loud “pop” noises and witnessed smoke coming from his VCR and computer. He states that his real estate agent sent an electrician out to investigate the matter and was told by this electrician to call Ergon Energy and not to use the power. Dissatisfied with this advice, the applicant then called his own electrician who has advised in writing that the cause of the power surge was an active neutral and a loose neutral at the main switchboard for the complex. The body corporate engaged a third electrician to replace two neutral links at the main switchboard, repair damaged cables and restore power after the incident.

The applicant further states that his VCR, computer and CD writer are currently inoperable. He has supplied written notification from repairers as to the extent of the damage sustained to these appliances, the cost of their repair and the cost of their replacement.

Submissions in response to the application were invited from all owners and the committee. One submission from the body corporate manager was received. The body corporate appears to have denied Mr Jones’ request for reimbursement on the basis that their insurers have refused to pay the claim lodged on Mr Jones’ behalf due to their belief that the body corporate does not appear to have been negligent and therefore cannot be held responsible for the misfortune suffered by Mr Jones.

From the material available to me, it appears that the power surge was caused by faulty wiring in the main switchboard to the complex. The preliminary report by Kennedy’s Loss Adjusters and Technical and Risk Consultants (who were engaged by the body corporate’s insurance company) dated 9 March 2001, the report of the applicant’s electrician after their inspection on 30 January 2001 and the invoice from the body corporate’s electrician dated 21 February 2001 all attest to this. The faulty wiring was common property utility infrastructure for which the body corporate was responsible to maintain in good condition (section 21 of the Act and section 109 of the Body Corporate and Community Management (Standard Module) Regulation 1997).

The issue to be decided in this application is whether the body corporate has failed in its legislative responsibility to maintain the wiring in good condition. If the body corporate has failed in this responsibility, then the applicant has a right to claim compensation under section 227 of the Act. If the body corporate has fulfilled its legislative responsibility, the applicant has no right to such compensation.

In my deliberation of this issue, I have been aided by the preliminary report by Kennedy’s Loss Adjusters and Technical and Risk Consultants dated 9 March 2001. This report relevantly provides as follows:

Liability Considerations:

The power connections at the switch board of any building are usually fixed at the time of installation or when some substantial work is undertaken.

There is no movement or vibration once installed to cause any variation to the original connection, and therefore there is no reason to inspect the connection with any frequency.

Work as is performed on a switchboard by an electrician must be certified by that electrician as being in accordance with the Electricity Act. However it would seem that there has been no interference at the subject board for many years at least, and the building is now some 37 years old. It is possible the majority of components within the switchboard are also of that vintage.

There is no ordinance that we are aware of to require a building owner to inspect this type of electrical installation on a regular basis.

The event as has occurred appears as an electrical breakdown that can occur from time to time, and usually results from a resistive connection. A range of factors may directly or indirectly contribute to a resistive connection and can include poor connection properties, fatigue, corrosion, and excessive current loadings.

From the above, we are unable to nominate any act or omission for which the insured party could be deemed negligent, to be considered liable for the third party’s misfortune. (bolding my emphasis)

For the following reasons, I have determined that the body corporate has not failed in its legislative responsibility to maintain common property in good condition.

Firstly, the report suggests that regular inspections of the wiring in the switchboard would not necessarily have prevented the fault that caused the power surge occurring. Such events are stated to occur from time to time and usually result from a resistive connection that can be caused by various factors over which the body corporate has no control. Further, there is no evidence before me to suggest that the body corporate should have undertaken routine inspections. Nor is there anything in the material before me to indicate that the body corporate had previously been made aware of any problems with the power supply to any of the units, such that they should have had the switchboard investigated. The applicant stated that he called his real estate agent a week or so before the power surge to advise him of problems with the erratic power supply to lot 1. The real estate agent appears to have contacted the owner of lot 1 regarding the matter but no contact was made with the body corporate until 31 January 2001, the day after the power surge. Once the body corporate was made aware of the problem, it promptly sent out an electrical contractor to undertake repairs.

Having concluded that the body corporate has not failed to maintain common property in good condition, no entitlement to compensation under section 227 of the Act exists.

I therefore propose to dismiss the application.






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