Madison Peaks [2004] QBCCMCmr 593 (25 November 2004)

Last Updated: 30 September 2005

REFERENCE: 0417-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2586
Name of Scheme:	Madison Peaks
Address of Scheme:	53 Warry Street FORTITUDE VALLEY QLD 4006

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Lee Richards, the Occupier of Lot 27

I hereby order that the application for an order for payment in the amount of $1,030.42, being for quoted repairs for damage sustained to a Ford Festiva (registration number 617 HCJ) while parked in the under cover car park of the "Madison Peaks" complex during a period when the security gates were inoperable, Is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0417-2004

"Madison Peaks" CTS 2586

The Scheme

The "Madison Peaks" community titles scheme was registered as a building units plan (now known as a building format plan) on 7 September 1993 under the Building Units and Group Titles Act 1980. The scheme comprises 40 residential lots and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

The Application

This application is brought by the occupier of Lot 27, Lee Richards (the Applicant), against the body corporate, seeking payment in the amount of $1,030.42 for damages to her car as a result of a break in which she claims is the result of the body corporate’s failure to repair the security gate on the undercover car park to the complex.

The Applicant states that the security gate on the exit of the underground car park for the complex had been broken and off its hinges for a couple of weeks, during which time her car was broken into and damaged. The Applicant reported the incident to the Police and obtained two quotes to have the damage repaired. She states that she has been a tenant of the complex for over two years and only rented in the area (Fortitude Valley) because the unit was advertised as having secure, underground car parking, amongst other security features. She believes that it is the responsibility of the body corporate to keep the car park secure and she believes that it has not done this. She seeks payment from the body corporate for the lesser of the two quotes she obtained to have the damage to the car repaired.

Submissions

Submissions in response to the application were sought from all owners and the body corporate committee. A submission was received from the body corporate manager, for and on behalf of, the body corporate, stating that the body corporate does not accept responsibility for the damage to the Applicant’s car.

The submission states that the exit gates were damaged by an occupant of Lot 14 on 8 June 2004. The gates were stated to be damaged so severely that they were in danger of falling over and had to be removed so as not to injure any persons. The same day, gates specialists were notified of the need for repairs and advised that the body corporate that hinges and bearings were beyond repair and required a refit of the components. These parts had to be made at the company’s workshop off site, hence the delay in the repair. The body corporate issued a notice to all owners and placed it on the community notice board on 8 June 2004 advising owners of the damage to the gates and stating that the repairs would be delayed for at least a week because of the need to specifically manufacture certain parts. Residents were also advised in the notice to lock their vehicles and not to leave any valuables inside them. Security patrols of the car park were increased to four visits per night at an additional cost to the body corporate during the period the gate was out of order. The body corporate further states that it has never advertised or adhered to the fact that the units be sold with secure parking. It states that the gates were only installed in 2001, some seven years after the complex was built.

A submission was also received from the Owners of Lot 40, raising matters beyond the scope of this application. I have regarded it as irrelevant for the purposes of determining this dispute.

Determination

Section 35 of the Act provides that owners in a community titles scheme own the common property as tenants in common. Sections94 and 152 of the Act then provide that the body corporate must administer, manage and control the common property reasonably and for the benefit of owners. Section 109 of the Standard Module states that the body corporate must maintain common property in good condition.

I understand that the security gates in question were installed as an improvement to the common property for the benefit of owners generally (there are nine car parks on an upper level car park for which no security gates have been installed) at the expense of the body corporate some time in 2001. They are therefore common property for which the body corporate is responsible to maintain in good condition under section 109 of the Standard Module.

I believe the outcome of this dispute hinges on the interpretation of the body corporate’s duty to "maintain" the common property in good condition. The meaning of the word "maintain" was considered in the Supreme Court of Queensland – Court of Appeal decision of Julian-Armitage v. The Proprietors Astor Centre^[1]. This case involved the interpretation of the word "maintain" in a registered by-law for a building units plan under the Building Units and Group Titles Act 1980. In that case, it was held that the word "maintain" should be given its natural or ordinary meaning of ensuring something is in a state of working efficiency, rather than keeping it operating.

While I accept that the maintenance obligation of the body corporate could extend to the body corporate having to take such action as it considers necessary to prevent further nuisance or damage being caused or created in the event of an item of common property requiring maintenance, I don’t accept that the duty of the body corporate to maintain is unlimited.

I believe that in this instance, the body corporate has fulfilled its obligation to maintain the common property in good condition. My reasons for this are as follows. Firstly, on 8 June 2004, the day the damage to the security gates occurred, the body corporate approached a gate specialist in order to have them repaired. Secondly, upon being notified that special parts which required manufacture off site and would take at least a week to make were required to repair the gates, the body corporate posted a notice to all owners and on the community notice board advising of the problem and suggesting that owners lock their vehicles and not leave valuables inside of them. The notice was distributed on 8 June 2004. Thirdly, in addition to this, the body corporate increased, at its expense, security patrols of the premises to four visits per night during the period the gates were out of order. I don’t accept the Applicant’s assertion that it was the responsibility of the body corporate to keep the car park secure and that it has not done so. I don’t see how the body corporate could have done any more than it did in the circumstances to further minimise any risk to resident’s cars or belongings. I concur with the comments of the body corporate’s insurer, CHU Underwriting Agencies, in relation to a claim by the Occupier of Lot 1 to be compensated for items stolen from a vehicle’s boot while the security gates were inoperable that "From the information supplied it is difficult to see how the Body Corporate is negligent in this instance having provided increased patrols to the premises once the gate was inoperable. It is advised that the complainant contact either their motor vehicle or contents insurer for coverage."

The Applicant places much emphasis on the fact, she states, that her unit was advertised for rent as having secure, undercover car parking. This fact is irrelevant to her claim against the body corporate. The body corporate does not let units; individual owners do.

The Applicant has failed to establish that the body corporate failed in its duty to maintain the common property in good condition. I have dismissed the application.

^[1] [1998] QCA 111