Edgecliffe Apartments [2004] QBCCMCmr 167 (26 March 2004)

Last Updated: 30 September 2005

REFERENCE: 0531-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10509
Name of Scheme:	Edgecliffe Apartments
Address of Scheme:	The Esplanade, Caloundra, QLD 4551

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Justin Glen, the Owner of Lot 1

I hereby order that the body corporate give effect to Motion 6 submitted to the Annual General Meeting of 19 July 2003, as proposed, save for any adjustment to the amount of the special levy that may now be necessary to enable the proposal to be effected.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0531-2003

"Edgecliffe Apartments" CTS 10509

APPLICATION AND SUBMISSIONS

1. The owner of Lot 2 of the Edgecliffe Apartments community titles scheme seeks against the body corporate:

a. a declaration that the awnings above units 1 and 2 belong to the body corporate and that the body corporate is responsible for on-going repairs and maintenance, and
b. to overturn the resolution of the body corporate at the AGM on 19 July 2003 not to impose a special once-off awning levy.

2. In accordance with section 243 of the Body Corporate and Community Management Act 1997 (the Act), a copy of the application was provided to the body corporate and all other owners of lots. Each was invited to make a written submission to the matters raised in the application. Submissions were received from Barbara Bleakly, Cynthia Humphries, Ros Janes, Brett Schimming and Kim Mothershaw.

JURISDICTION

3. 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-
d. the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
e. the authorisation of a person as a letting agent for a community titles scheme.

4. 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)).

FACTS

5. It appears from the application and the various submissions that the following facts are not in dispute:

a.	The community titles scheme for Edgecliffe Apartments comprises 10 lots and is governed by the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

b.	The BUP No 4680 level B shows the floor plan, and boundaries of the lots. On that plan is a notation as follows:

"It is stipulated that the height of the uncovered parts of the balconies to extend to 2.4m only."

c.	The awnings are attached to the wall on the outer face of the building.

d.	The original awnings were installed 2.6m above the balconies of Lots 1 and 2. The existing awnings are installed 2.76 m above the balconies (refer letter from Henzell’s Agency).

e.	The awnings are attached to common property, and are not within the boundary of any lot.

f.	The awnings originally fitted to the building were replaced in 1998. The body corporate covered the cost of replacement, for which a special levy was raised.

g.	In 1998 an adjudicator made a ruling that the awnings installation was a repair, rather than an improvement, and that the body corporate was accordingly responsible for the costs of repair.

h.	The awnings have again deteriorated to the extent that replacement is necessary.

6. The applicant contends that the awnings over the ground floor units were supplied with the building in 1982, and were not subsequent additions by the original or any subsequent owner of the lots. He submits that one of the original owners can confirm this. There is no submission or statement from that owner.

7. He submits that where the balconies of the upper units have permanent cover provided by the floor or roof above, the ground floor units are not protected in this way and the awnings were fitted to provide equivalent cover.

8. The owners of Lots 1 and 2 contributed an additional amount in 1998, over and above the levy, to have the awnings fitted with electric motors.

9. Ros Janes submits that the adjudicator’s order 392-97 was made on the mistaken belief that original awnings were part of the original building approval and not erected subsequent to the registration of the plan. She states that at the time the order was made the issue of when and by whom the original awnings were constructed was not considered. She argues that despite the findings in that order:

a.	the awnings are an "improvement to common property" as defined by s 37 A of BUGTA which applied at the time of installation) and s114 of the Standard Module;
b.	the awnings are erected for the sole benefit of the owners of Lots 1 and 2;
c.	the body corporate has not excused the owners from repairing and maintaining the awnings; and accordingly,
d.	the owners of Lots 1 and 2 are solely responsible for the cost of repairing or maintaining the awnings.

DETERMINATION

10. There is no evidence which allows a conclusive determination of when exactly and by whom the awnings were originally erected.

11. However, the weight of evidence suggests that the original awnings were erected either during or shortly after the construction of the building, prior to the time that units were sold to any owner apart from the original developer.

12. Much has been made of the argument that the awnings are for the sole benefit of the owners of Lots 1 and 2. I need not determine whether this is accurate or not. The fact that the awnings may or may not be for the sole benefit of one or more owners does not determine the threshold question of whether or not the awnings are the responsibility of the body corporate, nor therefore bear upon the responsibility for replacement or repair.

13. I will observe that it appears all owners expect that there will be replacement awnings, rather than, for example, that the existing awnings be removed and not replaced with anything.

14. It is unclear what information was available to or considered by the adjudicator in 392-97. However, having considered the matters presented in the current application and submissions, I see no reason to vary the earlier determination that the body corporate is responsible for the awnings, and the replacement of the awnings constitutes a repair, rather than an improvement.

15. On the best available evidence, I find that the awnings are the responsibility of the body corporate.

16. Advances in technology and design over time commonly bring about improvement in product quality, durability function, and aesthetic. This does not mean that an improved version of a product already in use is an "improvement" to the common property. If it were otherwise, the simple maintenance or repair of many items of common property would require a special resolution.

17. I find, further, that replacement of awnings with the same or similar awnings which provide the same function, allowing for reasonable variations in style, materials, and operation, is a repair, rather than an improvement.

18. I note the decision of the adjudicator that, in relation to the issue of electrically powered awnings replacing the manual version:

‘If both options are available, then my view is that the electrically powered retraction is an improvement for which individual owners should bear the cost of (sic)(this separate component of the awning); but if no option is available, then this is a technological improvement which must be deemed to be within the scope of repair."

19. The applicant asserts that the variance in the levy raised for the previous replacement awnings was a reflection of the owners of Lots 1 and 2 undertaking responsibility for the cost of the electrical motors for powered retraction of the awnings. Considering the relative extent to which all owners contributed to the awnings, I accept this assertion so far as it indicates responsibility for the cost of maintenance, repair or replacement of the motors, if that is necessary.

20. I find that:

a. the body corporate is responsible for repair by replacement of the damaged awnings with awnings of a similar type, standard and functionality as the existing awnings, and

b. individual owners of Lots 1 and 2 are responsible for the repair or replacement of optional improvements to the awnings that provide a significant departure from the original awnings – for example, optional electric motors or wind sensors.

21. I order that the body corporate give effect to Motion 6 submitted to the Annual General Meeting of 19 July 2003, as proposed, save for any adjustment to the amount of the special levy that may now be necessary to enable the proposal to be effected.