Janne Place [2005] QBCCMCmr 229 (28 April 2005)

Last Updated: 5 July 2005

REFERENCE: 0069-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8887
Name of Scheme:	Janne Place
Address of Scheme:	70 Kirkland Avenue Coorparoo Qld 4151

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

Keith and Therese Killin, the owners of lot 1

I hereby order that the application by Keith and Therese Killin, the owners of lot 1, for an order that the timber holding lattice work on patio / verandah of unit one be the responsibility of the body corporate to repair, is dismissed. I further order that the timber holding lattice work on patio / verandah of unit one is the responsibility of the owner of that lot to repair and thereafter maintain.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0069-2005

"Janne Place" CTS 8887

The applicants, Keith and Therese Killin, the owners of lot 1, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote:

Timber holding lattice work on patio / verandah of unit one needs repair. This has previously been repaired by body corporate.

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 is a subdivision of 9 lots recorded under a building unit plan of registration (now a building format plan). The regulation module applying to the scheme is the standard module. The scheme is over 20 years old.

The dispute concerns the requested repair of certain "timber work holding lattice work around unit 1" – the applicant’s lot. The body corporate have apparently denied responsibility for this work on the basis that it is an owners responsibility and not part of the original building. The applicants allege that the lattice work was an original fixture of the building, and consequently is a body corporate responsibility to repair / maintain. The applicants attach certain evidence of this. The applicants also allege that the lattice was previously repaired by the body corporate, suggesting acceptance of body corporate responsibility in the past. Certain owners dispute that the lattice was previously repaired by the body corporate. What is certain is that almost nothing is certain regarding the facts of this dispute.

I have the benefit of submissions from other owners in relation to the dispute. There are various arguments advanced for and against the application. For example, some allege that the lattice is security installed by an original owner, and not an original fixture. The applicants, and at least one other dispute this. What is reasonably clear is that only unit 1 has lattice panels installed. All other units have steel balcony railings. Council plans show that all units were at least intended to have steel balcony railings. At the very least, these plans do not show the variation of lattice to unit 1.

I refuse to descent into the myriad of detail and allegations regarding the circumstances of installation of the lattice. I consider it reasonably certain to conclude that the developer originally intended to install steel railings in lot 1, but that a potential sale was made conditional on lattice being installed rather than steel. I accept that the lattice was in place, if not from the start of the development, then very shortly thereafter. However, this in my view does not warrant a conclusion that the lattice is or ever was a body corporate responsibility to repair and maintain.

The question remains: who should be responsible for maintenance and repair of the lattice. Section 109 of the standard module provides:

109 Duties of body corporate about common property--Act, s 152
(1) The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.
(2) To the extent that lots included in the scheme are created under a building format plan of subdivision, the body corporate must--
(a) maintain in good condition--
(i) railings, parapets and balustrades on (whether precisely, or for all practical purposes) the boundary of a lot and common property; and
(ii) doors, windows and associated fittings situated in a boundary wall separating a lot from common property; and
(iii) roofing membranes that are not common property but that provide protection for lots or common property; and
(b) maintain the following elements of scheme land that are not common property in a structurally sound condition--
(i) foundation structures;
(ii) roofing structures providing protection;
(iii) essential supporting framework, including load-bearing walls.
(3) Despite anything in subsections (1) and (2)--
(a) the body corporate is not responsible for maintaining fixtures or fittings installed by the occupier of a lot if they were installed for the occupier’s own benefit; and
(b) the owner of the lot is responsible for maintaining utility infrastructure, including utility infrastructure situated on common property, in good order and condition, to the extent that
the utility infrastructure--
(i) relates only to supplying utility services to a particular lot; and
(ii) is 1 of the following types--
• hot-water systems
• washing machines
• clothes dryers
• another device providing a utility service of to a lot; and
Examples for subsection (3)(b)--
1. An airconditioning plant is installed on the common property, but relates only to supplying utility services to a particular lot. The owner of the lot would be responsible for maintaining the airconditioning equipment.
2. A hot-water system is installed on the common property, but supplies water only to a particular lot. The owner of the lot would be responsible for maintaining the hot-water system and the associated pipes and wiring.
(c) the owner of the lot is responsible for maintaining the tray of a shower that services the lot, whether or not the tray forms part of the lot.
(4) To avoid doubt, it is declared that, despite an obligation the body corporate may have under subsection (2) to maintain a part of a lot in good condition or in a structurally sound condition, the body corporate may recover the prescribed costs, as a debt, from a person (whether or not the
owner of the lot) whose actions cause or contribute to damage or deterioration of the part of the lot.
(5) In this section--
"prescribed costs" means the proportion of the reasonable cost to the body corporate of carrying out the maintenance that can, in the body corporate’s reasonable opinion, be fairly attributed to the person’s actions.

I conclude that it is not reasonable that the body corporate should have a continuing obligation to repair and maintain the lattice when it was not originally intended as part of the building but was included, albeit very early in the building’s life, so as to satisfy the requirements of an intending purchaser. I conclude that the lattice was a variation to the original design or intention based on the requirements of a previous owner, or at least intending purchaser.

I consider the lattice is best viewed or considered as an owner’s fixture, installed for the benefit of the owner or occupier of the lot in question. It is not reasonable that the body corporate have a continuing obligation to repair the lattice, particularly in view of the fact that the repair requirements will differently significantly from the standard balustrading installed in the rest of the building (that is, the steel railings). These railings require little maintenance, whereas the lattice, being a less durable product appears to require significant on going maintenance. In particular, this appears to be at least the second time when significant repairs or maintenance has been required. I conclude that the cost of such ongoing maintenance and repair should be that of the owner of the lot and not the body corporate. I have ordered accordingly. Whilst this order is not a favourable one for at least the applicants, I conclude that it is a just and equitable outcome to a dispute where the facts of the matter are not particularly clear, and to some extent have become lost in time. Further, I consider that it is a just and equitable outcome for a majority of owners in the scheme.