Eleonora Court [2008] QBCCMCmr 132 (18 April 2008)

Last Updated: 30 April 2008

REFERENCE: 0216-2008

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10589
Name of Scheme:	Eleonora Court
Address of Scheme:	53 Annie Street NEW FARM QLD 4005

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

Sean Ryan, the Owner(s) of lot 2

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0216-2008

“Eleonora Court” CTS 10589

Application

Eleonora Court Community Titles Scheme (Eleonora Court) is an 8 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module).

This is an application by Sean Ryan, owner of lot 2 (applicant) against the body corporate for Eleonora Court (respondent).

The applicant says that he removed a lock and striker plate from one of the two entrance doors after it had failed, jamming the door and locking his tenants both inside and out. He says that the body corporate is unfairly claiming from him an amount for the replacement of locks on both entrance doors, that he is refusing to pay this trumped up claim, and that the body corporate intended to use this claim as a basis for denying his right to vote at the annual general meeting. The applicant obtained the benefit of an interim order that acknowledged the body corporate’s claim was unsubstantiated and allowed him to vote. The applicant now seeks a final order to have the claim against him for money owning dismissed.

Decision

Investigation and Submissions

Submissions

The main grounds in support of the application, provided on behalf of the applicant, were to the effect that he acted for safety concerns in removing one of the old locks, that the new locks were replaced by the body corporate without authorisation, and that he removed one lock but is being asked to pay for two locks.

Other owners have made submissions to the effect that the lock had failed but arrangements had been made to leave the back door open in accordance with fire safety over the Easter weekend pending a tradesperson coming, and that the removal of the lock and intercom striker resulted in a minor repair job turning into a massive refitting. It is submitted that only one intercom specialist had the expertise to repair the system and the work was properly approved pursuant to motions four and five of a meeting of 31 July 2007.

Determination

Applicable law

The legislation includes a provisions to the effect that the body corporate may sue for rights and liabilities related to the common property as if the body corporate were the owner of the common property, for example to recover the loss arising from damage (Act, 36).

The by-laws for Eleonora Court also specifically provide that an owner or occupier of a lot must not damage any structure that forms part of the common property.[1]

No grounds for stopping the body corporate seeking recovery for removal of the locks

In a separate application,[2] the applicant has challenged a resolution that the body corporate take legal action to seek the reimbursement for $2,446 from the applicant. However, the present application does not disclose any grounds satisfying me that the applicant is being victimised by the body corporate or that the body corporate should be stopped from pursuing its claim against the applicant.

This is not to say that the body corporate is necessarily entitled to the entire amount claimed. For example, it would be interesting to consider evidence from the person who replaced the locks and intercom regarding whether the replacement was comparable in functionality to the original installation and regarding the comparative cost of repairing the original installation if the lock and intercom striker had not been removed.

However, the applicant has failed to establish any basis upon which it would be just and equitable to prevent the body corporate making the proposed claim against him for money owing and the present application is therefore dismissed.

Order

For these reasons, the application is dismissed.

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[1] By-law 5 of the body corporate for Eleonora Court, Community Management Statement Dealing No 705001870 recorded on 29 August 2001.
[2] Eleonora Court, Application 135-2008.