Ten Sixty [2007] QBCCMCmr 491 (17 August 2007)

Last Updated: 3 September 2007

REFERENCE: 0335-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11768
Name of Scheme:	Ten Sixty
Address of Scheme:	1060 Gold Coast Highway PALM BEACH QLD 4221

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Petria and Joshua Flint, the owner of Lot 2

I hereby order that the body corporate for Ten Sixty community titles scheme 11768 was responsible under section 109(2)(a)(ii) of the Body Corporate and Community Management (Standard Module) Regulation 1997 to replace the entry fire door to Lot 2. I further order that as Petria and Joshua Flint, the owner of Lot 2 only did what was necessary to maintain the entry door in good condition by replacing it at a cost of $1,203.40, the body corporate must, within two months of the date of this order, reimburse the owner of Lot 2 the amount of $1,203.40.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0335-2007

"Ten Sixty" CTS 11768

Application
This application is by Petria and Joshua Flint, the owner of Lot 2 (applicants) against the body corporate seeking a new front door.

Jurisdiction
"Ten Sixty" is a community titles scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act (s276(1), Act). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s276(2), Act).

Procedural matters
On 11 May 2007, a copy of the application was provided to Strata Title Management (the body corporate manager) for distribution to the owner of each lot (excluding the applicants) and the committee, with an invitation to respond to the matters raised in the application. The time for making submissions was subsequently extended after the applicants distributed further material about the application to all owners. Submissions were made by two lot owners and a former lot owner.

A dispute resolution recommendation has been made under section 248 of the Act referring the dispute to departmental adjudication.

Submissions
The applicants state that the door has been repaired numerous times over the last four years and that it can no longer be repaired. They submit that the door is over 25 years old and needs replacing. The applicants say that the body corporate will not replace the door as it is considered that the occupier of Lot 2 slams the door. The applicants state that force needs to be applied to close the door as the top hinge has fallen off. The applicants also provided a letter dated 11 May 2007 from Jenny Ripley of Gold Coast Fire Door Services Pty Ltd after an inspection of the unit entry door to Lot 2 on 7 March 2007 stating (in part) "The door was found to be a Cemac brand fire door installed in 1975 with an asbestos core. The door was delaminating and split and was dragging on the floor. The age of the door far exceeds the life expectancy of a fire door and the damage found is what would be expected in a door of that age due to daily wear and tear. The damage found is not the result of wilful damage or poor treatment: the door had a self closing device which limits and controls the closing action of the door, so slamming of the door does not occur. While on site, it was noted that other doors in the building require servicing". The applicants provided two photographs of the door.

Lynette Arthur of Lot 4 and the chairperson objects to the body corporate incurring expenditure on the door as she considers the damage was maliciously done over a period of over three years by the occupier deliberately banging on the door and the occupier trying to force entry through the door. Ms Arthur states that she has no knowledge of anyone servicing the door and no doors (other than that to Lot 3 after it was wilfully damaged) have any problems. Shaun Bourke of Lot 5 believes that the door was damaged due to excessive force used by the occupier of Lot 2 when opening and shutting the door. He states that on numerous occasions the occupier slammed the door, and did so three times in a row on the day it broke off its hinges. An uninvited submission from an occupier of Lot 5 from April 2004 to May 2005 outlined their concerns about the behaviour of the occupier of Lot 2.

Further information
On 24 July 2007, I requested information from the applicants in accordance with the investigative powers of an adjudicator stated in section 271 of the Act.

Mr Flint informed a member of the Commissioner’s office that the door was replaced on or about April 2007 at the applicants cost, and that the body corporate has refused to pay this cost. The applicants also provided a copy of an invoice from Gold Coast Fire Door Services Pty Ltd dated 28 April 2007 totalling $1,203.40 to remove the entry asbestos door to Lot 2 by a licensed asbestos removal contractor; to supply and install: 1 fire door, exterior ply 1 hour rated; 1 fire rated door closer; 1 lockset; 1 eye viewer and 1 door stop.

On 9 August 2007 I contacted the Queensland Fire and Rescue Service and requested information about the necessity to install a fire rated door at the entry to a lot in a community titles scheme. I was referred to section 104D of the Fire and Rescue Service Act 1990.

Determination
The door which is the subject of the dispute is the entry door to Lot 2. The boundaries of the lots included in the scheme are determined by reference to the relevant survey plan (BUP 3393) and the Land Title Act 1994. This Act states that the plan defines land using the structural elements of a building, including, for example, floors, walls and ceilings (s48C(1), Land Title Act 1994) and the boundary of a lot is the centre of a floor, wall or ceiling of the lot (s49C, Land Title Act 1994). The door is in the boundary wall between Lot 2 and common property.

The body corporate must maintain common property in good condition (s109(1), Standard Module). The body corporate must also maintain in good condition, doors and associated fittings in a boundary wall separating a lot from common property (s109(2)(a)(ii), Standard Module). It is clear therefore that the body corporate is responsible for the maintenance of the entry door to Lot 2. However, it is apparent from submissions that some owners consider that the door was damaged by the actions of the occupier of Lot 2. If a person’s actions cause or contribute to damage or deterioration that the body corporate is required to maintain, the body corporate can recover the maintenance costs from the person who caused the damage (s109(4) and (5), Standard Module).

It is submitted that owners have complained about the actions of the occupier over a long period of time. Despite these concerns, these owners have not demonstrated that actions were taken by them or the body corporate against the occupier. For instance, section 167 of the Act contains nuisance provisions and the body corporate has a noise by-law. The basis of both provisions is that an occupier cannot do things on a lot which are likely to cause a nuisance or interfere unreasonably with another person’s use or enjoyment of their lot. A breach of section 167 could be dealt with under the dispute resolution provisions of the Act. Sections 182 to 188 of the Act contain detailed provisions about by-law contraventions and these provisions could be applied by the body corporate if it reasonably believes that an occupier has contravened a by-law and it is likely that the contravention will continue or be repeated. If the contravention is not resolved internally, the matter can be referred under the dispute resolution provisions of the Act or to the Magistrates Court.

Contrary to the submissions about the actions of the occupier of Lot 2 are the views expressed by Gold Coast Fire Door Services Pty Ltd. In the circumstances, I find these views to be persuasive. Given the statements made by Gold Coast Fire Door Services Pty Ltd, I do not consider it has been clearly demonstrated that the occupier of Lot 2 has damaged the door to an extent that diminishes the responsibility of the body corporate. I therefore conclude that it is the responsibility of the body corporate to maintain the door pursuant to section 109(2)(a)(ii) of the Standard Module.

The applicants originally lodged the application seeking to require the body corporate to replace the entry door. However, it is now evident that the applicants have replaced this door at a cost of $1,203.40. The magnitude of the cost seems to be due to factors such as the existence of asbestos and the replacement of the fire rated door. Importantly, the letter from Jenny Ripley of Gold Coast Fire Door Services Pty Ltd dated 11 May 2007 stated The door was found to be a Cemac brand fire door installed in 1975 with an asbestos core. It would be reasonable to expect that a cost would be incurred to remove material containing asbestos. Section 104D of the Fire and Rescue Service Act 1990 deals with the maintenance of prescribed fire safety installations requiring the occupier of the building to maintain at all times every prescribed fire safety installation to a standard of safety and reliability in the event of fire (subsection (1)). A prescribed fire safety installation is defined in subsection 3 (in part) to mean a fire safety installation that was at any time required to be maintained in the building in question by or under any Act, including as a prerequisite to the granting of any approval or the issue of any notice, certificate or instrument. Section 104D contains quite severe penalties if contravention of subsection (1) causes death, bodily harm or substantial property loss. The Building Act 1975 defines a fire safety installation to include occupant safety features such as fire doors and the body corporate as the owner of a building where there are 2 or more lots. Provisions of this nature indicate an obligation to maintain a fire safety installation such as an existing fire door. Consequently, the original entry fire door to Lot 2 could only be replaced with a fire door.

In the circumstances, the body corporate was responsible to maintain (including replace) the damaged entry door. In not doing so, the body corporate failed to comply with its obligations under section 109 of the Standard Module. There is satisfactory evidence that the applicants only did what was necessary to maintain the door by having it replaced by Gold Coast Fire Door Services Pty Ltd.

For these reasons, I have ordered that the body corporate reimburse the applicants for the total cost of replacing the door to Lot 2. Given the cost and the possible need for the body corporate to hold a general meeting to fix a special contribution from all owners, I have allowed a period of 2 months for the reimbursement to be made.