L'Colonial Court [2007] QBCCMCmr 165 (20 March 2007)

Last Updated: 2 April 2007

REFERENCE: 1069-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9169
Name of Scheme:	L’Colonial Court
Address of Scheme:	4 Murlong Crescent PALM BEACH QLD 4221

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

Cindy Barker, the Owner of lot 2

I hereby order that the application for an order that the Body Corporate for L’Colonial Court must reimburse Ms.Cindy Barker, the Owner of lot 2, the amount of $99.20 being the cost of purchasing various items for the common property including hose fittings ($6.85), a plant ($14.98), light globes ($1.99), light covers ($55.50) and 2 packs of screw type globes ($19.96). I further order that reimbursement is to be made within 1 month of the date of this order.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1069-2006

"L’Colonial Court" CTS 9169

Application

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that the Body Corporate account to her for purchases made on behalf of the body corporate.

More specifically, the applicant is seeking reimbursement for the cost of purchasing various items for the common property including hose fittings ($6.76), a plant ($14.98), light globes ($1.99), light covers ($55.50) and 2 packs of screw type globes ($19.96).

The applicant states that she is seeking reimbursement for monies personally paid by her for small items purchased for the general upkeep of the property and although she has made several requests, has not received any payment to date.

She states that she has regularly made such purchases over the last 17 years and has, until recently, received prompt payment.

At a meeting of the committee held on 22 February 2006, it was resolved as follows:

Garden Lights. There are currently 2 lights with broken shades. Mrs. Barker advised she had raised the issue with the Secretary and was told to report the breakage to police.

Given that the cause of damage is unknown and therefore not reportable, together with the nominal cost of replacement certainly being below the insurance excess, these actions are not considered appropriate.

Approval given for Mr. Graham to purchase 2 replacement covers at a cost of no more than $80.


Submissions

Pursuant to section 243 of the Act submissions were sought from all lot owners and submissisons were received from two lot owners and the body corporate.

The first individual submission contained the following statements:

• the amount claimed is for reimbursement of actual expenditure i.e. replacement purchases similar to many other purchase made and reimbursed in the past, or authorised by the committee;
• it appears that the secretary will not authorise payment for exterior light covers because she believes these should have been claimed under insurance;
• the cause of the breakage was unknown and therefore it would have been difficult to claim under the insurance policy;
• payment was authorised by the committee on the basis that it was believed the cost of replacement was less than the excess although it was subsequently discovered that this may not be the case;

The body corporate secretary made the following submissions:

• the applicant may have sought payment from the Treasurer rather than Secretary as it was resolved at a previous committee meeting that "arrangements for approved payments of accounts and petty cash expenditures should be by the Treasurer and not the Secretary";
• It has always been the practice of the Treasurer to authorise reimbursements on presentation of receipts and as Treasurer Ms L Phelps had authorised payment to the applicant of $37.76 for light bulbs on 19/6/2005 and $22.95 for palms 19 September 2005;
• It is believed that the two light covers in question were deliberately damaged;
• Inquiries were made with the insurance company indicating that the cost of repairing the damage may be recoverable under the insurance policy and to do so quotations should be obtained, a report should be prepared detailing the damage observed, a complaint should be made to the police and details of the complaint to the police should be forwarded to the insurance company.

Jurisdiction

L’ Colonial Court CTS 9169 is a 9 lot scheme registered under the Body Corporate and Community Management Act 1997 and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997.

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)).

Determination

The applicant is seeking reimbursement for the cost of purchasing various items for the common property including hose fittings ($6.76), a plant ($14.98), light globes ($1.99), light covers ($55.50) and 2 packs of screw type globes ($19.96).

On the balance of probabilities I believe that the applicant has incurred this expenditure and I also believe that this expenditure is properly one for the body corporate, as the various items are for the common property areas. Not only was the expenditure authorised by a meeting of the committee but it is also obvious that any lighting in common areas should be repaired/ replaced as soon as possible to minimise the risk of injury or lack of security for residents and others visiting the premises.

While I note that there was a possibility that the light covers were deliberately damaged and therefore covered by the insurance policy for the scheme, this was only a possibility, and consequently, I do not believe it was at all certain that going to the trouble of preparing a report, making a complaint to the police and then submitting an insurance claim would result in the reimbursement of the amount of $55.50 from the insurer.

I therefore propose to order that the applicant be reimbursed the amount of $99.20 being the cost of purchasing various items for the common property including hose fittings ($6.76), a plant ($14.98), light globes ($1.99), light covers ($55.50) and 2 packs of screw type globes ($19.96).