Heritage Gardens Cairns II [2004] QBCCMCmr 12 (8 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0801-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16572
Name of Scheme:	Heritage Gardens Cairns II
Address of Scheme:	11 – 21 Barr Street EARLVILLE QLD 4870

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Ivy Mary MORETTO, as the owner of Lot 1,

I hereby order that the application for an order that the body corporate is responsible for restoring electrical power to the garage for Lot 1, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0801-2003

"Heritage Gardens Cairns II" CTS 16572

The applicant, Ivy Moretto of Lot 1, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") for the body corporate and/or the Manager, Trimglint Pty Ltd and Goldenend Pty Ltd, to restore electrical power to her garage.


JURISDICTION:
This is a dispute between an owner (the applicant Moretto) and the body corporate (the respondent) concerning responsibility for the restoration of power to the applicant’s garage. The applicant Moretto also brought the dispute against the scheme-operator under the Retirement Villages Act 1988, however an adjudicator under the Body Corporate and Community Management Act 1997 has no jurisdiction under that legislation or against such a party. Any rights the applicant may have against the retirement village scheme operator would be under the residence contract or service agreement and that would have to be pursued other than under this jurisdiction. However, I have jurisdiction to deal with the dispute as against the body corporate as the matter falls within the disputes resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 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 Loretta Bout as the representative for the body corporate. In consideration that the matter involved an expense of $200 or less; the issue was a relatively simple one; and it was in the interests of all parties to resolve the matter promptly (current response time is over 5 months), I determined to resolve the matter by teleconference.

On 7 January 2004 I conducted a teleconference with the applicant’s son, Dennis Moretto, and Loretta Bout.

The brief facts of the matter are as follows.

Although it is not conclusively established, it appears that power was never connected to the garage for Lot 1. The previous owner never used the garage and consequently nobody was aware that power was not connected until the applicant purchased the lot. Either the body corporate or the scheme operator paid for an electrician to investigate and connect up a live wire (though taped for safety) found in the garage wall.

The applicant subsequently had a powered Control-a-Door installed but after some months of operation the power failed. She complained to Ms Bout and upon investigation it was found that the failure coincided with the disconnection of power to Unit 34 upon the death of its owner. The wire connected by the electrician previously was actually part of the power circuit for that other lot.

Ms Bout stated that the body corporate (the other owners) rejected any responsibility for restoring the applicant’s power; however Ms Bout has found another owner in the scheme who is willing to allow the applicant to connect to their power source. The estimated cost for an electrician to carry out the connection has been given as $200 maximum. The annual power usage for the door and lighting would be around $20 though the consenting owner does not expect any payment.


DETERMINATION:
"Heritage Gardens Cairns 11" was registered as a building unit plan (now termed a building format plan) on 9 November 1995, and comprises 30 residential lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module"). It is registered under the Retirement Villages Act 1988.

Generally, the law regarding maintenance of utility services is as follows. Section 109 of the Standard Module imposes on the body corporate the duty of maintaining common property. Under section 20(1) of the Act, the term "common property" includes utility infrastructure (eg electrical wiring) supplying utility services (eg electricity) to a lot, where the fault is sited either on common property or within the lot’s boundary structures (walls, ceiling, floor) but not within the lot building.

In this instance, there is no existing power infrastructure servicing Lot 1 that the body corporate might be responsible for maintaining. The lack of a power cable for the garage is puzzling, especially considering that all other garages have power, though I notice from the scheme plan that the three garages closest to the block containing the applicant’s lot (Lots 1, 2 and 3) are for Lots 2, 3 and 4 and the garage for Lot 1 is quite remote and attached to another block. However, for whatever reason, that is the situation and it existed at the time the applicant purchased the lot.

Though the body corporate has certain responsibility respect of existing infrastructure under section 20, it does not have a responsibility to connect infrastructure to supply a utility service. That is, the body corporate is under no duty to install and connect electricity to the applicant’s lot. Accordingly, my order is to dismiss the application.

During the teleconference it was revealed that there is a purchaser for Unit 34 and the applicant may care to approach the new owner to reach some agreement with them to continue to use their power circuit for her garage. However that is matter to be decided between the parties involved. Regardless of whether the power source of Unit 34 or the consenting owner is accessed, it is in the interests of the applicant to make further enquiries regarding her power situation.