Underwood Centrepoint [2003] QBCCMCmr 495 (2 May 2003)

Last Updated: 10 September 2007

RA MeekREFERENCE: 0658-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11029
Name of Scheme:	Underwood Centrepoint
Address of Scheme:	Cnr Welch Street & Logan Road UNDERWOOD QLD 4119

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Spiro Raissis, for Raissis Enterprises Pty Ltd, the owner of lot 3

RA MeekI hereby order that the body corporate shall, within six (6) weeks of the date of this order, pay to the owner of lot 3, Raissis Enterprises Pty Ltd the amount of $1980 in reimbursement of the costs of the owner re-installing the air-conditioning system which the body corporate caused to be disconnected and removed.

n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0658-2002

"Underwood Centrepoint" CTS 11029

The applicant Spiro Raissis, for Raissis Enterprises Pty Ltd, the owner of lot 3, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

... body corporate to pay cost of re-installation. Reimbursement of $1980 to Raissis Enterprises.

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 refers to the earlier dispute regarding responsibility for re-installation of the air-conditioning unit previously servicing two lots. The applicant states that the body corporate is now refusing to pay the cost of the re-installation of the unit, quote –

... The second letter dated 10^th May 2002 telling us that our air conditioner will be disconnected. Discussions with body corporate and managers clearly informed us that they will have no part re-connecting the air condition (sic). They also provided us with two quotes which they obtained. As we continued to advise them not to disconnect the air condition until we seek advice from authorities. They disconnected our air condition on 16^th May. We proceeded with Cool Tron Air Conditioning Services which was the cheapest of the two quotes, to avoid loosing our tenant. We sent a copy of the quote with receipt to the body coprorate for the reimbursement of $1980. We have received no money only a response to our Solicitor 23 October 2002 which we have enclosed.

The response from the chairperson to the solicitor for the applicant relevantly states –

The works which have been ordered to be undertaken by the body corporate were in fact undertaken earlier than the date of the order which we note is the 29^th August 2002. If the order is to be strictly interpreted then there is no more that the body corporate need to do.

At the time when the shared a/c unit was disconnected it would have been much less expensive for that unit to be immediately re-configured to services Lot 3 solely by probably simply blocking and terminating the flow of cooled air to lot 4 from the unit which was located on common property. Since your client had the opportunity to make the arrangements with the owner of lot 4 to do this at the time, then the cost would have been much less than the cost of subsequently completely relocating and reinstalling the unit, as has occurred.

Notwithstanding this, the body corporate is prepared to offer your client ... the sum of $1000 which it considers significantly exceeds the actual cost that would have been incurred had there been some co-operation at the time with the owner of the adjoining lot.

Submissions regarding the application were sought from all owners and the body corporate. Despite endeavours by this office to obtain submissions, none have been received. In the circumstances, I intend to rely on the terms of the above correspondence from the chairperson as indicating the body corporate position.

The original order required that –

RA MeekI hereby order that the body corporate of Underwood Centrepoint shall within one (1) month of the date of this order and at its expense, attend to the re-connection of the air conditioning system to lot 3 such that the air conditioning service to that lot is resumed.

I further order that thereafter the on-going responsibility for maintenance of that air-conditioning system, shall be as determined by the body corporate in general meeting, and shall be the same as applies to all other lots which are supplied individually with air conditioning from "original" air conditioning systems.

n

The body corporate seeks to avoid responsibility on the basis that the work ordered to be undertaken, had already been undertaken by the owner. Moreover, that the body corporate could have undertaken the work at a cheaper rate.

What the body corporate view fails to acknowledge however is that it was the body corporate and not the owner who chose to disconnect the air-conditioning unit, thereby forcing the owner to a scenario where it was without air conditioning for its tenant. Moreover, the body corporate denied responsibility to re-connect the air conditioning to lot 3. Therefore to now suggest that it might have done it more cheaply is unreasonable and unfair. The fact is that the body corporate refused to accept responsibility until an order to this effect was made, and then further sought to avoid the consequences of that order by alleging that the work had already been undertaken. Finally, the body corporate alleges that the work might have been done more cheaply, but in fact it was the body corporate who obtained the quotes on which the applicant subsequently relied, which it provided to the applicant.

In the circumstances, I intend to order that the body corporate shall, within six (6) weeks of the date of this order, pay to the applicant the amount of $1980 in reimbursement of the costs of the applicant re-installing the air-conditioning system which the body corporate caused to be disconnected and removed.

n