Kingsford Place [2011] QBCCMCmr 56 (16 February 2011)

Last Updated: 18 March 2011

REFERENCE: 0137-2011

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15094
Name of Scheme:	Kingsford Place
Address of Scheme:	22 Kingsford Street Auchenflower QLD 4066

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

The Body Corporate for Kingsford Place

I hereby order that the Body Corporate for Kingsford Place is authorised under section 151(1)(c) of the Body Corporate and Community Management (Standard Module) Regulation 2008 to spend the sum of $6,200.00 (plus GST) to engage Inglis Fire & Safety Pty Ltd per the quotation dated 4 February 2011 to replace six fire doors and four solid core doors which were damaged during recent flooding.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0137-2011

“Kingsford Place” CTS 15094

The Kingsford Place community titles scheme 15094 (Kingsford Place) consists of 10 lots and common property. The community management statement (CMS) for Kingsford Place indicates that the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module) applies to the scheme. The Department of Environment and Resource Management records show the scheme is registered as Building Units Plan 105880.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by The Body Corporate for Kingsford Place (the applicant) on 11 February 2011, pursuant to a resolution passed outside a committee meeting on 11 February 2011. The applicant has sought a declaratory order in the following terms:

The Body Corporate seeks permission for emergency spending above the Relevant Limit for Committee Spending to replace the doors which were damaged during the flooding of the Brisbane River, on 12, 13 and 14 January 2011.

PROCEDURAL MATTERS

Section 243A of the Act provides that the Commissioner may refer an application immediately to a dispute resolution officer, notwithstanding that affected persons have not been given notice of the application and invited to make submissions as would normally be required under section 243(1). This referral can occur when the Commissioner reasonably considers that the application relates to emergency circumstances and it is not appropriate to deal with the application as an interim order under section 247. The example of emergency circumstances provided in section 243A(1)(a) is whether the repair or replacement of a burst water pipe exceeds the Committee’s spending limit.

MATTERS IN DISPUTE

The application seeks authorisation for emergency expenditure to replace six fire doors (pertaining to lots 5, 6, 7, 8, 9 and 10) and four solid core doors (pertaining to lots 1, 2, 3 and 4) which were damaged during recent flooding. It appears from the application that the damaged doors have been removed from the property and the voids temporarily boarded up.

The application says that the works are urgent to ensure the security of the building and to comply with the relevant fire regulations. Included in the application is a quotation from Inglis Fire and Safety Pty Ltd for $6,200.00 (plus GST) to replace the abovementioned doors.

INVESTIGATION

Pursuant to the investigation powers of an Adjudicator in section 271 of the Act, I conducted the following investigations into this matter:

• On 14 February 2011, I requested that a member of our Office call the Body Corporate Management Company, Barard Management Pty Ltd, and confirm that all of the doors mentioned in the application were in fact damaged as a result of the recent flooding and that the desired works are urgent.
  

A file note of the conversation indicates that Michael Allan of Barard Management had spoken with Inglis Fire and Safety Pty Ltd regarding this issue who advised that, “while the water did not reach doors 9 and 10, the moisture from the water which did enter the building caused the doors to warp and swell and therefore require replacing”.

Moreover, later that day our Office received an email from Michael Allan stating, “all doors at Kingsford Place as listed in quotation #IFS3260A from Inglis Fire and Safety Pty Ltd have been [sic] affected either directly or indirectly by the flood waters and required replacement urgently”.

• Further, on 15 February 2011, I requested that a member of our Office call the Body Corporate Management Company and confirm that the ten doors in question are the ‘front doors’ of each of the lots and thus situated on the boundary of the lot and common property. A file note of the conversation confirms that this is the case.
  

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[1] 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 CMS; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or

(c) a claimed or anticipated contractual matter about -

(i) the engagement of a person as a body corporate manager or service contractor; or

(ii) the authorisation of a person as a letting agent.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[2] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[3]

DETERMINATION

The main issue for consideration in this matter is whether the body corporate should be granted authorisation for emergency expenditure to replace six fire doors and four solid core doors which were damaged during recent flooding.

The body corporate has a duty to administer, manage and control common property and body corporate assets reasonably and for the benefit of lot owners. (Section 152(1) Act). It must maintain common property in good condition, including to the extent that common property is structural in nature, in a structurally sound condition. (Section 159(1) Standard Module). Further, to the extent that lots are created under a building format plan of subdivision, the body corporate must maintain in good condition all doors, windows and associated fittings situated in a boundary wall separating a lot from common property. (Section 159(2) Standard Module). In this instance, I am satisfied that each of the ten doors in question are situated in a boundary wall separating a lot from common property and thus the responsibility of the body corporate to maintain.

Sections 151-153 of the Standard Module provide for the control of spending by a body corporate. A committee is prohibited from authorising spending above the committee spending limit except in certain circumstances. Section 151(1)(c) of the Standard Module states that a committee may give effect to spending above the relevant spending limit if an adjudicator is satisfied that the spending is required to meet an emergency.

The body corporate has sought authorisation for emergency expenditure under section 151(1)(c) of the Standard Module because, the proposed cost of $6,200.00 (plus GST) to engage Inglis Fire and Safety Pty Ltd to replace six fire doors and four solid core doors, exceeds the relevant limit for committee spending. The body corporate argues that the work is urgent to ensure the security of the building and to comply with the relevant fire regulations.

In the circumstances, I am satisfied that it is appropriate to authorise emergency spending for the works in question rather than requiring the committee to call a general meeting for owners to vote on the matter.

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[1] See sections 227, 228, 276 and Schedule 5 of the Act.
[2] Section 276(2) of the Act.
[3] Section 284(1) of the Act.