Ming Court [2003] QBCCMCmr 549 (2 June 2003)

Last Updated: 12 September 2007

C G YOUNGREFERENCE: 0737-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20272
Name of Scheme:	Ming Court
Address of Scheme:	51 Nelson Parade INDOOROOPILLY QLD 4068

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Colin Richard POWER and Margaret Lynne POWER, as the co-owners of Lot 2,

C G YOUNGI hereby order that the application for the following order –

The order I am seeking is that Mr Jason Riley of Unit 3 be responsible for paying in full the outstanding debt to Queensland Wiring Company. Please find attached a copy of this account,

is dismissed. 2y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0737-2002

"Ming Court" CTS 20272

The applicants, Colin and Margaret Power of Lot 2, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") -

"The order I am seeking is that Mr Jason Riley of Unit 3 be responsible for paying in full the outstanding debt to Queensland Wiring Company. Please find attached a copy of this account."

JURISDICTION:
This is a dispute between an owner (the applicants Colin and Margaret Powers) and another owner (the respondent Jason Lee Riley of Lot 3), concerning the responsibility of the body corporate, or alternatively the personal liability of the applicant, for the payment of an electrician’s bill for repairing common property lighting. This is a matter which falls within the disputes resolution provisions of the legislation (see sections 227, 228 and 276 of the Act).

General powers of an Adjudicator in making an order:

Section 276(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 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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 284(1) of the Act).

APPLICATION AND SUBMISSIONS:

Under section 243 of the Act, a copy of the application was provided to the respondent Riley and the other owner (Colpeper of Lot 1), with an invitation to respond to the matter of dispute raised in the application. Riley made a submission.

This is an appropriate stage to state that this is one of two applications which concern the same matter, the other being Application No. 723-2003 lodged by Jason Riley (the respondent here). The order sought in that application is for the body corporate to be responsible for payment of the electrician’s account of $219.28. The two applications are therefore virtually mirror images of each other and the arguments put by the two parties are common to each application. Accordingly, I intend to deal with both applications together and to issue concurrent orders. As Application 737-2002 was the first application lodged, I have dealt fully with the arguments and the applicable law in the reasons to Order 723-2002, and I intend to adopt those reasons here in support of the same order made for both applications.

The brief facts of the matter, as put in my Reasons to Application 723-2002, are as follows.

"Late last year, the applicant (Riley) noticed that two light bulbs for common property security lights had blown and another light was beyond repair. Without reference to the body corporate committee or committee member, he engaged an electrician, Queensland Wiring Company, to replace the bulbs and repair the light. The applicant directed that the bill for $219.28 be sent to Colin Power who was acting as chairperson secretary and treasurer at the time. Power refused to pay the account out of body corporate funds on the basis that it was not authorised by the body corporate.

The arguments put by both parties are reversed in the present application, however the balance of the facts from my Reasons to Order 723-2002 are still relevant –

"The electrician has complained to the applicant that he has not been paid though it is now over 6 months since the work was done (4 November 2002). The applicant now makes this application for the body corporate to pay the account.

In their submission, Colin and Margaret Power reiterate their earlier advice to Riley that as body corporate permission had not been first obtained, he is liable to pay the amount even though the items repaired are part of common property. They state that the body corporate cannot "operate successfully if individual owners take body corporate matters into their own hands."

Sean Colepeper of Lot 1, submits that there should be a separation between the procedural and substantive issues relating to the repairs. That is, though he disagrees with Riley’s action in having had the lights repaired without reference to the body corporate, the repairs were "legitimate and should be covered by the B.C."

DETERMINATION:

As the grounds to both applications, and the submissions to both applications, were addressed and taken into account in my Order 723-2002 and the reasons thereto, it is sufficient that I merely repeat here those reasons and adopt them as the reasons for my order to this application.

"The community titles scheme "Ming Court" was registered as a group titles plan (now termed a standard format plan) on 4 October 1991, and comprises three residential lots.

This is one of two applications which concern the same matter, the other being Application No. 737-2003 lodged by Colin and Margaret Power. The order sought in that application is for Riley to be responsible for payment of the electrician’s account of $219.28. The two applications are therefore mirror images of each other and the arguments put by the two parties are common to each application. Accordingly, I intend to deal with both applications together and to issue concurrent orders. As this is the first application lodged, I intend to deal fully with the arguments and the applicable law in these reasons, and merely adopt them by reference in my reasons to Order 737-2002.

There is no argument between the parties that the light bulbs and the light are all part of the common property, and therefore part of the responsibility of the body corporate to repair.

That responsibility is clear from the legislation which provides in section 109(1) of the Body Corporate and Community Management (Standard Module) Regulation 1997 that, "the body corporate must maintain common property in good condition."

Also, section 35 of the Act provides that owners own the common property as tenants in common. Sections 94 and 152 of the Act then provide that the body corporate administers, manages and controls the common property and body corporate assets, reasonably and for the benefit of owners.

Accordingly, when he first saw the lighting problems, Riley should have referred the matter to the committee secretary or other committee executive member, so that the body corporate committee could best determine the means of repair. There is no doubt that the body corporate was liable to have the repairs carried out in order to properly discharge its duty under section 109 to keep the common property in good condition, but the point is that its duty was usurped by Riley in arranging repairs. Fairness, economy and transparency of such decisions, requires that no owner, or even committee member, can act alone in arranging repair work.

The reality is that the work has been done, and the work was the responsibility of the body corporate. In the grounds to their Application No. 737-2202, the Powers state that they did not believe the work was necessary as the lighting had been checked in May 2002 and necessary bulbs replaced and spares left with a tenant. They believe the work done was unnecessary. Riley contests that the light outside Lot 3 was repaired in May 2002, but has been inoperable since their arrival in March 2002. There has been no argument raised by the Powers that Riley obtained any benefit from the transaction or there was any association between him and the electrical firm. Queensland Wiring Company is a licensed electrical company, and in the absence of any expert opinion or evidence to the contrary, I am bound to accept its decision as to the work necessary to rectify the security lighting. Additionally, the amount is little more than $200 and the third owner, has not raised any objections to the work done or its cost.

In the circumstances, I am satisfied that the body corporate should pay the amount. As the electrician has waited many months for his fee, the body corporate should pay the amount promptly. Mr Riley, and all owners, should understand that none may take unilateral action in committing the body corporate to some action or expense.

I understand that both Colin and Margaret Powell have recently resigned from all committee executive positions. However, by Order 173-2003 another adjudicator has appointed AD Body Corporate Managers & Consultants as Administrator to the body corporate as a result of that action. The Administrator therefore has the authority to pay the amount from body corporate funds."

For the above reasons, I have dismissed this application for Riley to pay the account.