John Forrest [2002] QBCCMCmr 66 (8 February 2002)

RA MeekREFERENCE: 0548-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23748
Name of Scheme:	John Forrest
Address of Scheme:	8 Musical Court OXENFORD QLD 4210

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

Allan Maurice Cook, the owner of lot 1


RA MeekI hereby order that the owner of lot 2, Dunkan Arnold Eidem shall, within two weeks of the date of this order, pay to the owner of lot 1, Allan Maurice Cook, one (1) half of the cost of effecting the necessary insurance on behalf of the body corporate, being $120, and in addition a further amount of $15 (total $135) being amount remaining outstanding for insurance for the previous year. n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0548-2001

“John Forrest” CTS 23748

The applicant, Allan Maurice Cook, the owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

I am seeking an order requiring Mr Eidem pay his half of the premium plus his fifteen dollar shortfall for last years premium.

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 –

As owner of lot 2, Mr Eidem is responsible for payment of half the strata insurance premium. Despite numerous phone calls he has not met this responsibility. I have paid the total premium ...

The applicant has attached a copy of the insurance certificate for the property at “8 Musical Court, Oxenford” for “building and common contents” comprising “2 residential units” plus “public liability cover”. The party insured is stated to be “John Forrest Body Corporate”. The amount of the premium is $240.15. The period of insurance is from 17 August 2001 to 17 August 2002 and the insurer is CGU Insurance.

The scheme is a duplex registered under a standard format plan. The plan shows that the two lots share a common dividing wall. The owner of lot 2, Dunkan Arnold Eidem has not responded to the notice inviting submissions sent to him.
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The relevant section of the standard module dealing with insurance in the case of a standard format plan, where the buildings have common walls is section 129, quote

Insurance for buildings with common walls
129.(1) This section applies if—
(a) 1 or more of the lots included in the scheme are created under a standard format plan of subdivision; and
(b) in 1 or more cases, a building on 1 lot has a common wall with a building on an adjoining lot.
(2) The body corporate must insure each building mentioned in subsection (1)(b) to its full replacement value.
(3) A policy of insurance taken out under this section—
(a) must cover—
(i) damage; and
(ii) costs incidental to the reinstatement or replacement of the buildings, including the cost of taking away debris and the fees of architects and other professional advisers; and
(b) must provide for the reinstatement of the buildings to their condition when new; and
(c) may give effect, in whole or part, to a voluntary insurance scheme.
(4) The body corporate is liable to pay any contribution that has to be made to the cost of reinstatement or repair because the reinstatement insurance is not for the full replacement value of the insured property.
(5) The body corporate need not insure a building or a part of a building under subsection (2) if—
(a) the scheme is a subsidiary scheme for another community titles scheme (the “other scheme”); and
(b) under subsection (2), the body corporate for the other scheme is required to insure the building or the part of the building.

I consider this section is applicable to the circumstances of this body corporate; namely a standard format plan, with a common dividing wall. Given this, it is the responsibility of the body corporate (ie. both owners) to effect the necessary insurance as described in the section. It is evident that one of the owners has effected the necessary insurance, but there is no evidence from the owner of lot 2, Eidem, that he has contributed to this cost.

In the circumstances, I intend to order that Mr Eidem shall, within two weeks of the date of this order, pay to the applicant one half of the cost of effecting the necessary insurance on behalf of the body corporate. This amount is $120. In addition, I intend to order that Mr Eidem pay the further amount of $15 which has been claimed by the applicant. Mr Eidem has not replied stating any contrary position in respect of this aspect, and I therefore conclude that Mr Eidem does not dispute that the amount was not paid, as is alleged.
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