Pinecrest Lodge [2002] QBCCMCmr 73 (12 February 2002)

D P GardinerREFERENCE: 0583-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13627
Name of Scheme:	Pinecrest Lodge
Address of Scheme:	40 Pine Street BULIMBA QLD 4171

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

Mr Michael Michell and Mrs Jeanette Doreen, the Owner of lot 4

D P Gardiner
I hereby order that the application for an order declaring the external sliding glass door to be part of the external wall of the building is dismissed. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0583-2001

“Pinecrest Lodge” CTS 13627

The applicant Mr Michael Michell and Mrs Jeanette Doreen, the Owner of lot 4, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -
“The sliding glass doors forming part of the external wall of the building were in a bad state of disrepair. We as owners arranged to have the doors repaired quickly to provide adequate security for our tenants. We then approached Body Corporate Manager who called an EGM – Owners subsequently voting “ no ” to reimbursement. Details of EGM agenda / minutes are attached.”

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)).

I have been provided with a copy of Building Unit Plan 1480 Level A which describes the patio area as forming part of unit 4. I have also seen coloured photographs which portray the sliding glass door, a security screen door which give access to the patio from the main area of the unit. From the patio, access is gained by a short flight of stairs to common property. The images in the photographs confirm the detail shown on the Building Unit Plan in respect of the sliding glass door forming part of the lot /building unit.

S 109 (1)and (2) of the Body Corporate and Community Management ( Standard Module )Regulation 1997 relevantly provide:

ÿ
Duties of body corporate about common property—Act, s 114
109.(1) The body corporate must maintain common property in good
condition, including, to the extent that common property is structural in
nature, in a structurally sound condition.
(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
(iii) roofing membranes that are not common property but that
provide protection for lots or common property.

As lot 4 is a lot to which S. 109 applies, the sliding glass door does not separate the lot from common property and therefore the repair cost is to be borne by the applicant. Consequently, I consider that the decision to refuse reimbursement was correct and I declare that the sliding glass door does not form part of the external wall of the building.

I dismiss the application.



2n