Genoa Place [2004] QBCCMCmr 301 (10 June 2004)

Last Updated: 30 September 2005

REFERENCE: 0199-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	27756
Name of Scheme:	Genoa Place
Address of Scheme:	26 - 30 Genoa Street SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Adrian Heiford & Amanda Selfridge, the occupiers of a lot

I hereby order that the application by Adrian Heiford & Amanda Selfridge, the occupiers of a lot, for an order that they be reimbursed costs of $368.90 incurred due to the inadequate maintenance of the parking garage door, which resulted in compromised security of the car park, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0199-2004

"Genoa Place" CTS 27756

The applicants, Adrian Heiford & Amanda Selfridge, the occupiers of a lot, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

The applicants request reimbrusement of costs incurred due to the inadequate maintenance of the parking garage door, which resulted in compromised security of the car park due to non-closure of the garage door. The total of these costs is $368.90. ...

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-

(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)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The scheme

The scheme is a subdivision of 12 lots registered under a building format plan of subdivision. The regulation module applying to the scheme is the accommodation module.

The application and submissions

This office sought submissions in respect of the application from the body corporate committee and all owners. I do not intend to set out in any detail the applicant’s grounds, nor the contents of submissions in response. I intend only to refer to those materials necessary for a determination of the issues raised. I will add however that the position of the body corporate is not assisted by the brief and non specific nature of its submission. For example, it should have elaborated on what repairs had been undertaken and when.

The applicants claim that the body corporate has failed in its duty to maintain common property, and consequently should now reimburse the applicants certain costs. The applicants have not referred to section 281 of the Act in their grounds, however the provisions of that section are relevant to this application. Section 281 provides –

1)	281 Order to repair damage or reimburse amount paid for carrying out repairs

(1) If the adjudicator is satisfied that the applicant has suffered damage to property because of a contravention of this Act or the community management statement, the adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for the contravention--

(a)	to carry out stated repairs, or have stated repairs carried out, to the damaged property; or
(b)	to pay the applicant an amount fixed by the adjudicator as reimbursement for repairs carried out to the property by the applicant.

Example--

A waterproofing membrane in the roof of a building in the scheme leaks and there is damage to wallpaper and carpets in a lot included in the scheme. The membrane is part of the common property and the leak results from a failure on the part of the body corporate to maintain it in good order and condition, the adjudicator could, on application of the lot’s owner, order the body corporate to have the damage repaired or to pay an appropriate amount as reimbursement for amounts incurred by the owner in repairing the property.

(2) The order can not be made if--

(c)	for an order under subsection (1)(a)--the cost of carrying out the repairs is more than $75 000; or
(d)	for an order made under subsection (1)(b)--the amount fixed by the adjudicator would be more than $10 000.

It is reasonable to conclude that the applicants have suffered damage to property. The question is whether this is because of a contravention of this Act or the community management statement by the body corporate. The applicants allege that the body corporate has failed in its duty to maintain the common property. In particular, they allege that the garage door is "substandard" and "On numerous occasions, we have reported faults with the garage door ...". The alleged malfunctioning of the door means that the garage is open from time to time. The applicants state there have been two incidents of vandalism to their vehicle. They state that the owner instructed that "the body corporate was aware of the recurrent garage door problem and that it was an ongoing issue". The applicants conclude –

The body corporate has a duty to maintain the common property. During the past two years of our residency, the garage door has been repeatedly jammed open, often for days on end. The body corporate has failed in its duty to ensure common area security by not replacing the garage door after continual malfunctions throughout the past 2 years.

The body corporate submission states that –

... even though the garage door was staying up on occasion the body corporate was doing all that it could to get this repaired. In doing so it had fulfilled its duty to the tenants. ... by already taking steps to get the door repaired, we had done all that was required of us.

In my view, it is clear that the maintenance of the garage door was an on-going issue for this body corporate. It is clear that the garage door has been repaired by the body corporate on occasions. Maintenance does not require replacement automatically. I am not prepared to make the order as sought as I am not satisfied, on reasonable grounds, that the body corporate has contravened the legislation requiring it to maintain the common property. The body corporate has from time to time taken steps to repair the garage door as it is required to do. Whilst these repairs have to date not be successful, this does not mean that the body corporate has contravened the legislation in my view. Rather it means that the method of repair has not been successful. Perhaps the body corporate will need to consider more significant repairs of the garage door, including its possible replacement. However, I do not conclude that the body corporate has contravened the legislation by failing to maintain the common property as alleged. This application is dismissed.