Dockside Hotel [2006] QBCCMCmr 291 (6 June 2006)

Last Updated: 19 December 2006

REFERENCE: 0905-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2888
Name of Scheme:	Dockside Hotel
Address of Scheme:	44 Ferry Street KANGAROO POINT QLD 4001

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

Philip Pearce, the Owner(s) of lot 58 (the applicant)

I hereby order that the application for an order that Philip Pearce, the owner of Lot 58 is not liable to pay for the Queensland Fire and Rescue Service callout fees that the Body Corporate is seeking to impose upon him, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0905-2005

"Dockside Hotel" CTS 2888

Application

The owner of Lot 58 in Dockside Hotel, Philip Pearce (the applicant) seeks an order that he is not liable to pay for the Queensland Fire and Rescue Service callout fees that the Body Corporate (the respondent) is seeking to impose upon him.

Jurisdiction

Dockside Hotel CTS 2888 is a 146 lot scheme registered building units plan registered under the Body Corporate and Community Management Act 1997 and is operating under the Body Corporate and Community Management (Accommodation Module) Regulation 1997. Typically, this module is intended for residential arrangements.

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)).

Grounds

The applicant’s grounds are:

1. In the 10 years that he has owned the unit, there has never been a problem with the fire alarm;
2. In their communication letter to owners, the committee reported that had been ongoing teething problems with the new fire alarm system;
3. At the same time as they had announced these problems were being brought under control, his unit for the first time ever, had two false alarms on the same day for two different reasons (according to fire brigade):

a. Caused by operation of clothes drier
b. No apparent cause.

4. He argues that the above cannot be a coincidence and suggests that the fire alarm system was still faulty
5. Beyond that, if the operation of the clothes drier was the issue, the tenant at the time should be billed if he/she misused the clothes drier.

Submissions

Only one submission was received. The Body Corporate Manager responded at the request of the Body Corporate committee. They note that in a committee report to the AGM in May 2003, the new system had successfully been installed and was undergoing commissioning procedures at that time. They state that once commissioning was complete, any false alarms were to be billed to the lot owner.

The minutes of that meeting also note that the new system is expected to reduce the number of call outs.

The respondent’s submission also refers to the minutes of a committee meeting held on 8 December 2005. Here it was resolved that the callout charge to Lot 58 which had an identified cause, would be charged to the lot. However for the matter where no cause was determined, the cost of the callout would be met by the Body Corporate.

In their submission they note that the new system allows for a delay before the callout commences and this has improved matters substantially. However, they note that even the chairman has had to meet the cost of callouts on two occasions.

They observe that they are being fair in relation to accepting the charge when no cause is determined.

Response to Submission

The applicant responds that it is well documented that there were many false alarms when the system was first installed. He states that the fire officers made a supposition in relation to the drier, in the absence of any other potential factors. He states there has never been a problem with the drier, other than this.

He advises that staff at the hotel have never before seen a problem with the drier activating the alarm system either before or after this incident. Apparently one staff member suggested the tenant possibly had the drier on too long.

He also attaches a copy pf the Dockside Committee Report for the annual general meeting held in June 2004. They note that the system is now operating satisfactorily after many teething problems. He observes that these notes say that any false alarm call out fees will now be charged to "the occupier/Owner/Tenant" and not the Body Corporate.

He says that since he has barely set foot on premises in 10 years, he cannot see how he can be billed for the call out. He says the charge should be borne by:

• The responsible tenant; or
• The Property Manager if they were remiss in their property management; or
• The manufacturer/installer if the system is faulty; or
• Otherwise the Body Corporate.

Determination

The Queensland Fire and Rescue Service is empowered to invoke charges in relation to attendance at incidents by Section 144 of the Fire and Rescue Service Act 1990. Documentation available from the internet states that chargeable alarms include alarms activated due to:

1. Cooking fumes such as burnt toast;
2. Activities of workmen / tradesperson ;
3. Steam from showers etc;
4. Alarm system malfunction such as a fault in the wiring, alarm panel or inadequate maintenance;
5. Sprinkler system malfunction such as corrosion, defective equipment or leaking system;
6. Detector malfunction such as defective equipment;
7. The fire alarm panel in normal condition on arrival;
8. Attending QFRS officer unable to locate the detector indicated on the fire alarm panel;
9. Building management resetting the fire alarm panel prior to QFRS arrival and the cause is unknown;
10. Normal weather conditions such as leaving the doors/windows open;
11. Failure to notify of a test;
12. Incorrect test by service company personnel;
13. Poor building maintenance such as dust, cobwebs and insects;
14. Simulated fire conditions such as candles, incense, sparklers, cigarettes or smoke machine;
15. Aerosols such as hair or insect spray;
16. Accidental operation of alarm;
17. Any reason that could have been avoided or foreseen;
18. Malicious activation of Manual Call Points.

It is worth noting how many of these chargeable circumstancses do not necessarily meet civil law standards of forseablity or fault. The entity who is contracted with the QFRS, be they private owner or body corporate, is billed regardless of the establishment of fault. Any dispute regarding the imposition of the charge is between the QFRS and the contracting entity.

Passing on the Cost

These are difficult applications to determine for several reasons. Firstly, there are no specific provisions within the Act or relevant regulation module dealing with the issue. Secondly, there is no analogy which can be drawn, or provision applied. For example, Section 118 of the accommodation module under which the body corporate may agree to supply services to an owner or occupier is prima facie not applicable. Thirdly, the application concerns the application and/or interpretation of other legislation. However, the dispute is within jurisdiction in that it involves a dispute about the legality for a charge relating to services supplied by the body corporate to an owner.

As part of previous investigations on the issue of alarm call out fees^[1], this office has had discussions with Queensland Fire and Rescue Service. It is clear that bodies corporate adopt different approaches in respect of this issue. The approach adopted by some was to pay the charges out of body corporate funds while others pass it on to owners deemed or considered responsible for the incurring of the charge.

Of relevance is the fact that there is nothing voluntary in the agreement which the body corporate has entered with QFRS (the monitoring agreement). Buildings of the nature of the scheme must install a compliant monitoring system as part of the development, and thereafter must under the legislation, enter into a monitoring agreement with QFRS or another entity for monitoring of the building. The compulsory nature of these matters is outlined in Building Code of Australia and the Queensland Fire and Rescue Service Act 1990 and Building Fire Safety Regulation 1991. While described as a monitoring "agreement", the agreement is not a matter in respect of which the body corporate may negotiate terms. The terms of the agreement are fixed, and each body corporate is required to sign the agreement in those terms. Further QFRS will only enter into a monitoring agreement with –

• The building owner (in the case where a single entity is the owner);
• The body corporate or building management company, in the case of a building with multiple owners.

Previous adjudications have therefore concluded –

• The installation of, and monitoring of, fire safety/detection equipment is not voluntary. If all relevant requirements were not complied with, then occupation of the relevant building would not be allowed;
• The body corporate is the contracting entity, however this is in circumstances where it has no ability to refuse to enter the agreement or to negotiate the terms of the agreement. Its involvement or participation in the agreement is obviously required by owners, and is undertaken for the benefit of owners, in order to allow occupation of the building. The possibility of the QFRS entering monitoring agreements with each individual owner or occupier of a lot is so impracticable as to be simply impossible. Therefore in practical terms, a lot owner’s agreement to the provision of the services is implicit and attracts the operation of Section 118 of the accommodation module;
• Further, a body corporate has no ability to control or intervene in QFRS callouts once the delay period is over. Once QFRS is alerted it will attend at the scheme.

Given all this, the applicant is not entitled to succeed in the argument that the cost cannot be passed on. While the invoice is technically sent to the body corporate, this is for practical reasons only. The service provided by QFRS is for the benefit of individual owners and generally for all owners of the building. Given this, a body corporate is able to determine how to deal with charges invoiced to it by the QFRS. To pass on such charges to the relevant owner where the cause of the call out is determined to have been activity or other circumstances within their lot is a lawful determination by the Body Corporate under Section 118(3) of the accommodation module.

With the benefit of the above precedent then, I am satisfied the Body Corporate is generally authorised to pass the cost on. However in this matter there are complicating factors:

1. There is a history of false alarms, associated with the installation of a new fire alarm system which, among other things, could be due to faulty equipment or poor maintenance; and

2. The owner was not in residence and the QFRS has determined that at least one of the call outs was triggered by the operation of a clothes drier by the occupants.

Cause

The applicant asserts that the Property Manager should bear the cost of the call out if they were remiss in their property management or the manufacturer/installer if the system should bear the cost of the call out if the system is faulty.

In support of the assertion that the system is in some way not operating as it should, the applicant offers the opinions of staff working at Dockside. I am less compelled by the untrained opinions of staff from Dockside, than the trained opinion of fire fighting personnel, and therefore feel I must prefer fire personnel opinions in my deliberations.

However, observations that there have not been problems with the drier before or after the alarm deserve some greater consideration along with the evidence that there were teething problems with the new "sniffer" system.

The Committee report to the annual general meeting held 29 May 2003 notes the new system was undergoing commissioning procedures at the time. The committee report for the next annual general meeting held on 10 June 2004 notes that there were many teething problems with the new system, but that it is now operating satisfactorily. I note that the call outs to the applicant’s lot both occurred on 26 December 2004.

In my mind, this date is important in two aspects. Firstly, it is more than 6 months after the system is documented as having been satisfactorily commissioned. The applicant has not provided any evidence to support the suggestion that the system was still unstable after that time or that maintenance of the system had been inadequate.

Secondly, I note the alarms triggered at historically one of the most hot and humid periods of the year. Referring back to the chargeable situations, I note that activation by steam or weather conditions can attract a charge. I therefore consider it remains possible that the alarm was triggered by steam around the drier (or even combined with steam from the shower as the "Ozhorizons" website^[2] advises that the laundry is contained within the bathroom) and not necessarily any by-product of misusing the drier or a continuation of commissioning problems. The fact that there was a second incident within the day may simply indicate that the same general conditions prevailed and that no-one pieced them together (or wanted to admit to them).

In summary then, I do not find I have been given sufficient evidence to discount the findings of the QFRS. However, I make it clear that I am making no finding of fact in relation to the cause of the alarm. I simply acknowledge the existence of the debt and the ability of the Body Corporate to pass that cost onto the applicant.

In the end, the issue of precisely who was at fault (if anyone), is not the concern of the QFRS in charging for the call out. Therefore:

Liability of Tenant

When a residence outside a community titles scheme is occupied by a tenant, the call out charge is rendered to the owner of the premises and is enforceable against the owner of the premises by the QFRS. In these circumstances it would be up to the owner to pursue the tenant. Consequently, it would be inappropriate for an adjudicator to make a ruling on this landlord/tenant issue, simply because the property in question happens to be part of a community titles scheme. If the applicant wishes to pursue the tenant, they could attempt to do so within the ambit of the Residential Tenancies Act 1994;

Liability of Manufacturer or Property Manager

If the owner can persuade the Body Corporate that it is appropriate to take action against either the manufacturer or the property manager, then it is for the Body Corporate to pursue these entities.

Liability of Owner

As discussed earlier, I am satisfied that the Body Corporate may require reimbursement of the cost of the call out where the QFRS has identified the cause of the alarm.

In all, I believe the Body Corporate is demonstrating good faith in accepting call out charges where the cause is not identified by the QFRS. In my view, acceptance of these charges demonstrates their commitment to both the maintenance of the system and their faith in the soundness of the equipment. To deny the Body Corporate the ability to pass on charges where the cause is known, also denies them the ability to require the commitment of others in minimising unnecessary call outs. The sharing of these charges motivates the Body Corporate to meet its obligations and also motivates owners and occupiers to meet their responsibilities in relation to unnecessary call outs.

Accordingly, I will dismiss the application and find that the applicant remains responsible to the Body Corporate for the cost of one of the call outs.

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^[1] Admiralty Towers, 0116-2004, R Meek, 7 June 2004
^[2] http://www.ozhorizons.com.au/qld/bris/dock/side.htm