Cairns Aquarius [2003] QBCCMCmr 320 (9 January 2003)

Last Updated: 7 September 2007

DJ ReardonREFERENCE: 0569-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	1439
Name of Scheme:	Cairns Aquarius
Address of Scheme:	107 The Esplanade CAIRNS QLD 4870

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Cairns Aquarius community titles scheme 1439

DJ ReardonI hereby order that the application for an order that the Owners of Lots 18, 19, 20, 21, 36, 37, 38, 40, and 41 reimburse the Body Corporate the costs of installing smoke detectors, is dismissed.2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0569-2002

"Cairns Aquarius" CTS 1439

1.	Order sought

The Applicant, the Body Corporate for Cairns Aquarius community titles scheme 1439, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act"), quote-

"That the owners of Lots be requested to reimburse the body corporate for costs incurred with the installation of smoke detectors as follows:

Lot 18 $495.00

Lot 19 $550.00

Lot 20 $550.00

Lot 21 $440.00

Lot 36 $495.00

Lot 37 $550.00

Lot 38 $550.00

Lot 40 $550.00

Lot 41 $495.00"

Section 223(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 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, 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 community management statement for "Cairns Aquarius" indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") applies to the scheme.

2.	Application and submissions

This dispute resolution application was made on 13 September 2002. On 23 September 2002, the Commissioner for Body Corporate and Community Management ("the Commissioner") invited the Owners of Lots 18, 19, 20, 21, 36, 37, 38, 40, and 41 to make a written submission about the application. The Owners of Lots 18 and 36 have made written submissions about the application.

On 22 October 2002, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication.

3.	Matters in dispute

This application seeks a determination of responsibility for the costs associated with installing smoke detectors within a number of lots included in the scheme. From the material before me, I understand that a fault in the fire detection and alarm system servicing the common property and lots on levels 3 and 6 was causing a number of false alarms. It also appears that the fire services contractors engaged by the Body Corporate to investigate the problem were unable to determine the precise nature of the fault. In this regard, I refer to the supporting grounds to the application, in which the Body Corporate makes the following statements:

"The fire alarm system to levels 3 & 6 was defective and contractors, FFE Building Service Ltd, were unable to locate the fault. Smoke detectors on common property and in each lot on both levels were replaced in order to return the fire detection system to normal operations."

Through this application, the Body Corporate is seeking an order that the owners of lots located on levels 3 and 6 reimburse the Body Corporate the cost of installing fire detectors within the boundaries of their respective lots. The grounds for the Body Corporate’s application appears to be that as the detectors in question are located within the boundaries of individual lots, it is the responsibility of the relevant owners, and not the Body Corporate, to meet the cost of installing these detectors.

Each of the submissions made about the application oppose the orders sought. In summary, the owners who have made submissions express a view that it would be unfair in the circumstances for the affected owners to meet the cost of replacing the smoke detectors.

4.	Determination

The Standard Module makes a number of provisions regarding repair and maintenance responsibilities in the context of community titles schemes. In general terms, owners of lots included in a community titles scheme have a responsibility to maintain their lots in a good condition (section 120(2) of the Standard Module), and the Body Corporate has a general duty to maintain the common property for the scheme in a good condition (section 109(1) of the Standard Module).

In this instance, it appears that the smoke detectors in question are located within the boundaries of individual lots. In general terms, the obligation to maintain these detectors in a good working order would fall on the individual owners of the relevant lots. However, as I understand the situation, while there was a defect in the fire detection system servicing floors 3 and 6 (which would include some aspects of common property), the actual defect has not been identified, and therefore it is unconfirmed that there was a defect or fault in any of the smoke detectors located within the boundaries of lots located on levels 3 or 6.


To require the Owners of lots named in this application to reimburse the Body Corporate for the cost of replacing the smoke detectors located within the Owner’s lot, would likely be requiring the relevant Owners to pay for the replacement of a smoke detector which was not faulty or defective. In my view, such a requirement goes beyond an owner’s maintenance obligation as set out in the Standard Module. Of course, it is also arguable that the Body Corporate should not incur the costs, given that it is possible that the faults did lie with smoke detectors located within individual lots.

Determining a just and equitable outcome for this application is difficult given that it has not been possible to precisely determine the cause of the fault in the fire detection and alarm system. However, it is clear that the fault affected a number of lots and common property, and further, it was considered prudent to replace detectors both in individual lots, and on common property. This seems to imply that the fault related to the broader system of fire detection and alarm.

In these circumstances, and in the absence of evidence illustrating a fault in the detectors located in individual lots, I consider that it is preferable that the Body Corporate bears the cost of replacing the detectors both on common property, and within the boundaries of the individual lots. For the above reasons, I intend to dismiss the application.