Jalinnu [2001] QBCCMCmr 450 (14 August 2001)

RA MeekREFERENCE: 0322-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13756
Name of Scheme:	Jalinnu
Address of Scheme:	14 White Street SOUTHPORT QLD 4215

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

Cyril Henry Tucker, the owner of lot 2



RA MeekI hereby order that the owners of lot 5, Douglas Alfred Hacon and Gwendoline Marjorie Hacon shall, within twenty-one (21) days of the date of this order, reimburse the –

1. Body corporate the amount of the locksmith’s account ($50-00);

2. The owner of lot 2, Cyril Henry Tucker and Aileen Merle Tucker, the amount of the electrician’s account ($38-50).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0322-2001

“Jalinnu” CTS 13756

The applicant, Cyril Henry Tucker, the owner of lot 2, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

Two (2) accounts are in dispute –

1.	The locksmith account paid by body corporate;
2.	The electrician’s account paid by owner of no. 2 unit;

Is the owner of unit No. 5 liable for the payment of these two (2) accounts? Is so should the body corporate and the owner of unit No. 2 be reimbursed?

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)).

The applicant’s grounds are not disputed by the respondent, the owners of lot 5, Douglas Alfred Hacon and Gwendoline Marjorie Hacon. Essentially, a hand basis plug was left in a drain hole and a tap not completely turned off. The basin overflowed and the water, when discovered, was seeping through the floor boards, and into a light fitting of unit 2 below. Endeavours to contact the respondents were to no avail, and ultimately the body corporate had to engage a locksmith to gain entry to the respondent’s lot. The respondents have refused payment of both accounts.

In their submission, the respondents state that only one account (the locksmith) has been presented to them. Further that –

I feel that had the body corporate turned the water off at the Mains (which is very simple) and then contacted me, all would have been well. This has occurred before with No. 3’s water leaking into No. 1 and it was handled very badly. Again had the water been turned off at the Mains a lot less damage would have occurred. The big problem is that no owner resides in this block of flats.

I assume that the reference to damage by the respondent is to damage to their own lot from the water, since this application involves no claim for damage to lot 2, only payment of two invoices.

The applicant states that the Electrician’s account arose in consequence of –

As a safety measure an electrician was employed to test the lighting circuit had not been affected by the ingress of water.

What I am satisfied of is that neither account would have arisen had the respondent’s hand basin not overflowed. Section 129 of the Act provides that -

129 Nuisances
The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—
(a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

I consider that the actions of the respondents, whilst not intentional, have caused both a nuisance and hazard in the use of another lot in the scheme. I do not accept as reasonable the respondent’s opinion of what should have occurred. Firstly, the body corporate did not know the nature of the problem before entry to the respondent’s unit, and therefore was not in a position to consider turning off the water the most appropriate solution. Secondly, the water had already overflowed the basin and was seeping through the floor of the lot. This would not have stopped immediately even if the water had been turned off, so further investigation would have been necessary in any event. Thirdly, the applicant / body corporate did seek to contract the respondent regarding access to the lot. I consider that problem lies not in the fact that “no owner resides in this block of flats”. Rather the problem is that the respondents created a nuisance and hazard for others in the use of their lot.

In the circumstances, I intend to order that the respondents shall reimburse the body corporate and the applicant the locksmith’s account and the electrician’s account respectively. I conclude that such order is just and equitable in the circumstances. n