Ilya Lodge [2002] QBCCMCmr 76 (13 February 2002)

DP GardinerREFERENCE: 0577-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14160
Name of Scheme:	Ilya Lodge
Address of Scheme:	5/1 Rossiter HAMILTON QLD 4007

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

the Body Corporate


DP GardinerI hereby order that the application for an order

seeking a declaration in respect of liability to indemnify the body corporate for the excess payable under an insurance claim is granted and declare that the owner of unit 5 is the person liable to indemnify the body corporate.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0577-2001

“Ilya Lodge” CTS 14160

The applicant Body Corporate for Ilva Lodge, the Body Corporate of lot all, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

“ We wish to have a ruling on who is liable to pay insurance excess of $500.”

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 entitlement of a body corporate to recover an excess payable in respect of a claim is contained in section 133(3) of the Body Corporate and CommunityManagement (Standard Module ) Regulation 1997 which provides:

“For an event affecting only one lot affecting only 1 lot, the lot owner is liable to pay the excess unless the body corporate decides it is unreasonable in all the circumstances for the owner to bear the liability.”

The event in question concerns water damage to parts of the ceiling of unit 5 and therefore unit 5 is the only unit affected. Applying the provisions of. section 133(3) to these circumstances, I consider that unit 5 is the only unit attracting liability to pay the excess. However, the Body Corporate may well consider it would be unreasonable to make such a claim when the damage occurred without any apparent fault on the part of the owner of unit 5.

Given the conclusion which I have reached in respect of the application of section 133(3)to the facts as presently explained, it is not necessary to determine the source of the water penetration of the ceiling area of Unit 5.

In the result, I declare that the owner of Unit 5 is the person liable to pay the insurance excess.
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