Riverview Gardens [2003] QBCCMCmr 29 (21 July 2003)

Last Updated: 17 May 2005

REFERENCE: 0032-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8511
Name of Scheme:	Riverview Gardens
Address of Scheme:	26 Lower River Terrace, SOUTH BRISBANE Q 4101

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Dawn Florence Courtney, the owner of lot 67

I hereby order that the application by Dawn Florence Courtney, the owner of lot 67 for orders - • that two accounts totalling the sum of $371.70 be declared null and void; and • that certain resolutions passed in the minutes of formal committee meeting dated March 26 2002 be rescinded, is dismissed. I further order that Dawn Florence Courtney, the owner of lot 67, is liable for payment of this amount, together with interest charges which might have accrued on the unpaid or outstanding balance.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0032-2003

"Riverview Gardens" CTS 8511

The applicant, Dawn Florence Courtney, the owner of lot 67 has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

That, with regard to the time and cost involved by the applicant in seeking a resolution, two accounts totalling the sum of $371.70 be declared null and void; or
That the body corporate manager, Stewart Silver King & Burns and the committee be restrained from applying interest charges in respect of a matter which is yet to be resolved.
That the job sheets tabled at the committee meeting of May 1 2002 be made available to the applicant or her representative.
That certain resolutions passed in the minutes of formal committee meeting dated March 26 2002 ... be rescinded.
That the letter of April 3 2002 to the applicant from Stewart Silver King and Burns be withdrawn and that such withdrawal be confirmed in writing to the applicant.

Section 276(1) of the Act 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 the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(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.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

This is a dispute regarding liability for a debt totalling $371.70 which the body corporate alleges is owning by the applicant, and the applicant is disputing responsibility for. The amount includes two separate charges, namely –

• $191.30 being half the call out charge of the QFRA; and
• $180.40 for replacement of a "damaged thermal detector" in the applicant’s lot.

The applicant denies liability for these two amounts, and believes that they should be met by the body corporate. The body corporate has apparently included the total amount on the applicant’s contributions account, which the applicant has refused to pay, and consequently the amount has been accruing interest.

I don’t intend to restate the applicant’s grounds in any detail. These are known in consequence of the processes undertaken to date in the investigation of this matter. The applicant bases her defence to payment of the first charge (the call out charge) on the equipment in question being "faulty", a word used in a previous notice by the secretary to owners concerning the imposition of the relevant charge. The claim that the equipment was faulty appears to be based on an alleged lack of maintenance of the equipment in question. Whilst the applicant has provided voluminous material, I can find nothing to specifically substantiate her allegation that the equipment was faulty.

The committee submission submits that the equipment could not have been faulty due to the fact that if it had been, it would have shown up "as an illumination on the fire panel, which is checked regularly on a daily basis". The committee submission then refers to additional weekly, monthly and yearly checks / servicing of equipment to ensure operation of the relevant equipment or system.

The submission of David and Margaret Walsh, the building managers, who are responsible for ensuring the maintenance and operation of various systems in the building on behalf of the body corporate states that –

On 26 October 2001, fire alarms were activated at Riverview Gardens. Upon inspection the first panel indicated level 9 East Tower. Once arriving it was found to be unit 56 and upon entry Mrs Courtney escorted me to Laundry indicating "I think it’s that one". The laundry was very hot from clothes dryer. I also state that laundry was extremely congested with laundry and other household goods.

Mrs Courtney then indicated with broom and actions that she had been hitting detector trying to stop the alarms.

Fire brigade arrived and proceeded to Mrs Co0urtney’s apartment with me. They checked apartment to see there was no indication of first and attempted to re-set fire panel. This indicator would not re-set due to obvious damage of detector. The firemen isolated level 9 east from fire panel. Billdon Fire services Pty Ltd service technician was called and isolated laundry detector of unit 56. The panel was then re-set and level 9 was back on line.

Billdon Fire Services Pty Ltd replaced damaged thermal detector in laundry.

The QFRA Incident Report printout provided by the applicant states –

12:26:15 WB z12 lvl 9 east act by dryer isol mment on site K4

The next page states in part –

Type of incident – heat detector operated – no fire.
Action taken – Restore alarm system.

Whilst I acknowledge that the applicant in her application is challenging aspects of the integrity of the building managers at least in relation to this matter, I consider the contents of their submission to be a credible explanation of events, particularly in light of the information provided in the QFRA incident report, and committee submission.

The applicant has failed to substantiate her allegation that the equipment was faulty, and I do not accept the applicant’s allegations to this effect. They are against the weight of evidence.

On the question of liability for the cost of replacement of the fire detector unit, it is difficult to discern the applicant’s basis for believing that she should not be liable. In part it appears to be a continuation of her allegation that the equipment was faulty, rather than damaged by her. More generally, the applicant alleges that she was not assisted by the managers and committee in her investigation of the matter.

The building managers, with their submission, provided a copy of the reports etc prepared by Billdon Fire Services Pty Ltd. On document dated 4 February 2003 states –

We forward copies of logbook entries pertaining to the aforementioned incident.

Comments.
The detector concerned appeared to have suffered physical damage, the occupant stated to our technician (Shayne Thornton) that she did on activation of the alarm attempt to stop the noise using a broom (with the possible thought that this would defuse the situation), physical damage caused by this action dented the detector chamber and induced a permanent alarm which resulted with the replacement of the unit.

A second document headed "Inspection, testing & maintenance and service report" dated 9 November 2001 states –

Call out. Zone12 in alarm. Level 9 detector damaged. Isolated – reset and ???. Replace detector 12-11-03.

A third document headed in the same form as the second document and dated 12 November 2001 states –

Replaced faulty detector and base on level 9 east room 56.

In her reply the applicant states –

These reports are contradictory both in their numerical and date sequence. If Billdon is to be believed it would appear that 19516 was completed on November 12 and the following number 19517 was prepared some three days earlier on the 9^th. These are of course inconsistent and furthermore, the two signatures and handwriting bear no resemblance.

Mr Griffiths continues to offer a description of what occurred subsequently. I find it highly improbable that the technician’s recollection as reported to the writer on March 1 2002 by a lady named Jenny and noted in my diary would experience so great an improvement almost a year later.

It is my contention that the Billdon report should be disregarded and the service report 19516 of November 12, 2001 be accepted as genuine and I quote: "Replaced faulty detector and base on level 9 room 56".

I acknowledge that the Billdon Report was prepared some 15 months after the incident in question occurred. Whilst it make it less reliable, it is not a reason to dismiss its contents completely. I further acknowledge the date v. numerical sequence point regarding the other two reports. However, I consider that the applicant’s submission that only the report of 12 November 2001 be accepted, and the other two disregarded, simply to be too conveniently supportive of the applicant’s position. This report mentions the word "faulty" and to this extent supports the applicant’s position. The other two reports are adverse to the applicant’s position.

My view is that on the totality of the evidence, I conclude that the applicant’s position is not to be preferred. I conclude that the allegation of damage to the equipment probably occasioned by the applicant to be more probable. In respect of the dates versus numerical sequence point, I consider it probable that the report numbered 19517 was completed immediately after that numbered 19516, but dated to the earlier date being the date of the actual event or "call out".

The report dated 9 November 2001 mentions "detector damaged". This report relates to the finding of the first inspection, whereas the second report relates only to the action of replacement of the unit three days later. I conclude that the weight of evidence supports the conclusion of damage occasioned by the applicant, rather than faulty equipment.

In the circumstances, I intend to dismiss the applicant’s claim that her liability for payment of two accounts totalling the sum of $371.70 be declared null and void. I consider the applicant liable for payment of this amount, together with interest charges which might have accrued on the unpaid or outstanding amount. I intend to make an order to this effect.

The second item sought by the application was that certain resolutions contained in minutes be rescinded, and that a letter from the body corporate manager be withdrawn. The applicant alleges that the minutes contain "totally untrue and spiteful allegations". The applicant then alleges intent in the distribution of the relevant minutes and the timing of the date for close of submissions regarding this application.

I find nothing objectionable whatsoever in the committee minutes in question. The minutes are simply a record of the relevant decisions taken by the committee in relation to the correspondence addressed to the committee by the applicant. As for withdrawal of the body corporate manager’s letter, it appears that I have not been provided with a copy of this correspondence.