Jacaranda Glade [2002] QBCCMCmr 641 (22 October 2002)

C G YOUNGREFERENCE: 0459-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	29029
Name of Scheme:	Jacaranda Glade
Address of Scheme:	1023 Brunswick Street NEW FARM QLD 4006

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

Alison Jane BIGGINS, as the occupier of Lot 5,



C G YOUNGI hereby order that the application for orders that the body corporate –

• meet the cost of a replacement remote control device to operate the carpark door, for the use of Alison Biggins the occupier of Lot 5; and

• reimburse the fee for making this application,

is dismissed. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0459-2002

“Jacaranda Glade” CTS 29029

The applicant, Alison Biggins of Lot 5, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) -

I am requesting the cost of purchasing a new remote be met by body corporate due to maintenance being neglected.

I also believe that if I am successful with my request to resolve this dispute, that the cost of lodging this application is reimbursed to myself from body corporate.

JURISDICTION:
This is a dispute between an occupier, the applicant tenant of Lot 5, and the body corporate, the respondent, and therefore is one of the combination of parties having standing to be parties to a dispute under the legislation (see section 182(b) of the Act).

Section 223(1) of the Act then 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 this 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 of, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of—

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

The applicant is seeking compensation for the loss of the remote control device (“the remote”) for opening the scheme’s carpark entry door (“the door”) issued to her by the owner/landlord of Lot 5. She makes the claim on two grounds –

• Firstly, that the body corporate failed in its duty to properly maintain the common property, namely a door by the elevator on the carpark level, by not having it repaired so that it closed properly, a fault she claims was known to the chairperson, Noel Playford. She contends that this fault allowed a thief to enter the carpark and steal the remote from her parked vehicle.

• Secondly, she states that the remote is an associated fitting within the scope of section 109(2)(a)(ii) of the Body Corporate and Community Management (Standard Module) Regu;ation 1997 (“the Standard Module”) which imposes a duty on the body corporate to maintain in good condition certain doors and their associated fittings.

I consider the first ground seeks compensation on the ground that the body corporate was negligent in failing to repair the door, and the theft was a result of that negligence. This contrasts with a claim under section 227 of the Act which empowers an adjudicator to order limited compensation where an occupier has suffered damage to property because of a contravention of the Act or the community management statement. That would encompass, for example, water damage to an owner’s lot ceiling caused by the body corporate having failed to repair or replace the roof waterproofing membrane. The nexus between the failure of the body corporate and the damage is a direct one. The compensation claim by the applicant is not one for direct damage to property, but is one that, in my view, would be based on the tort of negligence to be actioned in the courts and not in this jurisdiction. The court may then consider such issues as the reasonable foreseeability of the theft, the remoteness of the theft from the alleged negligent act, or whatever tests it considered appropriate to the circumstances.

Accordingly, I dismiss this ground as being beyond the jurisdiction of an adjudicator under the Act to consider.

In regard to the second ground, this falls within jurisdiction as it rests on the interpretation and application of a statutory duty of the body corporate. I will therefore proceed to determine the application based on this ground.

General powers of an adjudicator in making an order:
An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).


APPLICATION AND SUBMISSIONS:
The broad facts of the matter have already been outlined under “Jurisdiction”, and further elaboration is unnecessary as the determination of the second ground is a matter of interpretation in respect of uncontested facts, namely the theft of the remote.


DETERMINATION:
As her second ground, the applicant relies on the remote coming within the class of associated fittings under section 109(2)(a)(ii) of the Standard Module which imposes on the body corporate the duty to maintain in good condition certain doors and their associated fittings. This provision states –

Duties of body corporate about common property –Act,s114

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 –

(ii) doors, windows and associated fittings situated in a boundary wall separating a lot from common property.

While “Jacaranda Glade” was developed under a building format plan of subdivision, the relevant door, the carpark entry door, is not situated in a boundary wall separating a lot from common property. The door is wholly situated on common property and therefore the provision does not apply.

However, the door is part of the common property (all of the level is common property) which the body corporate has a duty to maintain in accordance with its general duty under section 109(1) of the Standard Module which states, The body corporate must maintain common property in good condition...”.

In regard to what would otherwise qualify as associated fittings under subsection (2)(a)(ii), these items would also be maintained by the body corporate but only if they formed part of common property by their physical location. This would include such things as jambs, hinges, lintels, doorknobs etc. It does not include a remote which is in the possession of an occupier or other user.

Alternatively, an item can also be the responsibility of the body corporate if it is a body corporate asset; a remote is capable of being a body corporate asset. Section 115 of the Standard Module imposes the same duty and standard of maintenance for assets as for common property. However, on the information of the committee and the owner/landlord, each owner was provided with one remote on the understanding that loss and replacement was the responsibility of the recipient owner. Some owners have obtained an additional remote but have had to purchase them, as they would for a replacement upon loss. Accordingly, whether in this case the body corporate meant for ownership of the remote to pass to the owner (perhaps with conditions, eg not to give to anyone but an occupier) or it retained ownership, the important factor is that responsibility for maintenance, including replacement, passed to the recipient owner. The replacement is therefore a matter for the owner or the applicant tenant, depending on the terms of the tenancy.

The body corporate, however, is not liable for the cost of the replacement and I have therefore dismissed the application on this ground also. The further order sought for a refund of the application fee therefore lapses – in any case, even were the applicant successful, adjudicators do not have a general power to award costs against parties other than in circumstances arising under section 227 of the Act (see earlier).

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