Condor [2001] QBCCMCmr 509 (20 September 2001)

CG YoungREFERENCE: 0351-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13200
Name of Scheme:	Condor
Address of Scheme:	2 Riverview Parade SURFERS PARADISE QLD 4217

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

Mrs Eva KALMAN, the owner of Lot 117,



CG YoungI hereby order that the application for an order that the body corporate is responsible for the replacement of windows, is dismissed.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0351-2001

“Condor” CTS 13200

The applicant, Eva Kalman, of lot 117, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) that-

“The body corporate is responsible for the replacement of her windows.”

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 ma contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicant, Kalman states that the windows are located in the external wall of her unit. She has also indicated that the windows are set back 20 cm from a security rail. She has included an inspection report and quote from G James Glass and Aluminium (Qld) Pty Ltd for installation of replacements. The report indicates that the “sliding doors” cannot be repaired and must be replaced.

An inspection of the scheme was held on Tuesday 11 September 2001 in the presence of Kalman and the body corporate representative, Sharon Robb. Kalman is the owner of Lot 117 in “Condor” BUP 1922, located on the 27^th floor, level CC. The subject windows are located in the main bedroom and lounge of her unit. In each case the windows comprise two sliding glass doors with a fixed glass panel on either side. The sliding doors open onto two narrow balconies each measuring approximately 3600 mm x 350 mm. The doors/windows are set back approximately 350 mm from the edge of the balconies. A balustrade (“security rail”) is in place on each balcony and is aligned with the face of the building.

I will now turn to the question of responsibility for the replacement of the windows.

Section 109(2) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module) defines the responsibilities of the body corporate regarding the maintenance of common property and in particular doors and windows:-

Duties of body corporate about common property—Act, s 114

109(2) To the extent that lots included in the scheme are created under a

building format plan of subdivision, the body corporate must—

(a) maintain in good condition—

(i) railings, parapets and balustrades on (whether precisely, or

for all practical purposes) the boundary of a lot and common

property; and

(ii) doors, windows and associated fittings situated in a

boundary wall separating a lot from common property; and

My underlining.

“Condor” was registered as a building units plan which under the provisions of Section 277(2) of the Act is now termed a building format plan.

The boundaries of lots, and lots and common property are described in the “Registrar of Titles Directions for the Preparation of Plans”, as the centre of walls, floors and ceilings. For a balustrade or railing the boundary is the outer face of the balustrade or railing.

The registered building units plan, BUP 1922, defines the lots in the scheme. The boundary between Lot 117 and the common property on the eastern side of the building is the centre of the eastern external wall, and the outside face of the balustrade/railing on the two balconies is the boundary between lot 117 and the common property.

The doors/windows, the subject of this application, are located some 350 mm inside of the balustrade (the boundary) and therefore within the lot and not in a “boundary” wall separating the lot from common property, as set out in section 109(2) above. Accordingly, the body corporate is not responsible for the replacement of the doors/windows.

Section 120(2) of the Standard Module provides that the owner of a lot must maintain the lot in good condition. Mrs Kalman is responsible for the cost of replacing the doors/window.

For the above reasons I have dismissed the application.