Albert Lodge [2025] QBCCMCmr 186 (2 June 2025)

Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module)

MAINTENANCE - whether the body corporate is responsible for repairs of termite damage.

Act, s 152; Standard Module, s 180

1. I hereby order that, within 3 months of the date of this order, the body corporate must engage an appropriately licenced contractor to repair the termite damage located in the wall of Lot 4 shared with the rear courtyard.
2. I also order that, within 6 months of the date of this order, the repairs of the termite damage located in the wall of Lot 4 shared with the rear courtyard must be completed.

• [1] This application is about whether the body corporate is responsible for repairing termite damage to the external walls of Lot 4.
• [2] The applicant seeks the following final order:

That the body corporate in accordance with the Conciliation Agreement and at the expense of the body corporate repairs the external walls of Lot 4 that have been damaged by termites within 28 days of the date of this order.

• [3] Conciliation agreements are not legally binding and adjudicators cannot make orders on the basis that the outcomes were agreed to at conciliation. Also, the evidence of anything said or done about a dispute in conciliation is inadmissible in a proceeding.[1] My reasons for deciding the orders in this matter are, as discussed below, based on the applicable law and by-laws and not anything said or done by either party at conciliation.

• [4] Albert Lodge community title scheme 9640 (Albert Lodge) is a 9-lot scheme and common property in Corinda. The community management statement (CMS) shows the Standard Module applies. The scheme is registered under building unit plan 5561.
• [5] The applicant is the owner of Lot 4. The respondent is the body corporate for Albert Lodge.

• [6] On 8 November 2022, a termite inspection was conducted of Lot 4. The inspection report recorded termite workings and/or damage was located in the following areas:

Recent termite activity and damage was sighted to living room wall bottom plate, bottom plate and studs near glass door, wall studs in laundry and toilet. Damage was also sighted to rear yard stump and fencing.

• [7] On 4 March 2024, the parties attempted conciliation and reached an agreement, but the dispute remained unresolved.
• [8] On 10 December 2024, the applicant lodged the current adjudication application.

• [9] The Commissioner invited the body corporate and all owners to make a submission on the application.[2] The body corporate did not make submissions. The Commissioner then referred the application to departmental adjudication.[3]
• [10] I have investigated the application, including reviewing the application, the current CMS and building unit plan 5561.[4]
• [11] On 25 March 2025, I sent the applicant a request that they provide further information, requiring them to provide a floor plan indicating the locations where the termite activity and damage was located.
• [12] On 31 March 2025, the applicant provided the further information to myself and the body corporate manager as requested on 25 March 2025.
• [13] On 10 April 2025, I sent a further request to the applicant that they provide photos demonstrating the location of the termite damage, any additional reports detailing the termite damage, cause and work required to repair the damage, and any quotes in relation to repairing the termite damage.
• [14] On 16 April 2025, the applicant provided further additional information to myself and the body corporate manager as requested on 10 April 2025, namely the attached photos demonstrating the location of the termite damage. However, the applicant was unable to provide any quotes, reports or advice regarding the termite damage or required repairs.
• [15] On 6 May 2025, I provided the body corporate manager with a further opportunity for the body corporate to make submissions until 13 May 2025. The body corporate manager subsequently advised there was no body corporate committee, and the body corporate had not engaged their office under a Part 5 engagement.
• [16] On 19 May 2025, I provided a requirement to the body corporate manager to distribute the additional information provided by the applicant to the other owners of Albert Lodge and provide them with a further opportunity to make submissions until 26 May 2025.
• [17] On 21 May 2025, one lot owner provided submissions by email.

• [18] The order sought relates to a dispute between the applicant and the body corporate regarding responsibility for repairing damage caused by termites. As such, I am satisfied the dispute falls within the dispute resolution provisions of the legislation.[5]
• [19] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or CMS, or about the exercise of rights, powers or performance of duties under the Act or CMS.[6] An order may require a person to act, or prohibit a person from acting, in a way stated.[7] An order may contain ancillary and consequential provisions the adjudicator considers appropriate.[8]

• [20] I have summarised the grounds provided by the applicant in support of this application as follows:
  1. The body corporate had a duty to maintain common property in good condition. This included the external walls of Lot 4.
  2. The body corporate had acknowledged their duty but had failed to facilitate repairs for the termite damage to Lot 4 which was worsening.
  3. Termite damage could weaken the structural integrity of the wall and posed a safety risk.
• [21] As stated above, on 31 March 2025 and 16 April 2025, the applicant provided additional information, including photographs, which depicted termite damage in the walls of Lot 4's downstairs toilet, laundry, kitchen, dining room and upstairs bathroom. The photographs also indicated the wall where the termite damage was located was shared with the lot's rear courtyard.

• [22] To date, no submissions have been received from, or on behalf of, the body corporate.
• [23] On 21 May 2025, a submission was received by email from one of the owners of Albert Lodge. The submission broadly expressed concerns about the actions of the body corporate manager, that there was no committee and requested any orders be made contingent on the appointment of an administrator.
• [24] I am unable to go beyond the scope of the orders sought in this application. However, the appointment of an administrator to enforce the orders made in this application can be sought by members of the body corporate, including the applicant.

• [25] The applicant seeks an order that the body corporate undertake repairs for termite damage to the exterior walls of Lot 4. In making my decision, I will consider the body corporate's maintenance obligations, whether termite damage has been sustained, and the location of the reported termite damage.

• [26] Albert Lodge is registered as a building unit plan of subdivision, also known as a building format plan. The Land Title Act 1994 (the LTA) states the boundary of a lot is defined using structural elements of a building such as floors, walls and ceilings.[9]
• [27] The boundary between a lot and a neighbouring lot or common property is the centre of the floor, wall or ceiling that separates the two.[10]
• [28] The Act states that a body corporate must comply with the obligations under the relevant regulation module in relation to common property.[11]
• [29] The Standard Module requires a body corporate to maintain common property in good condition, and, if any of the common property is structural in nature, it must be maintained in a structurally sound condition.[12]
• [30] The Standard Module also requires a body corporate to maintain doors, windows and associated fittings situated in a boundary wall between a lot and common property.[13] Further, the body corporate also must maintain foundational structures and essential supporting framework in a structurally sound condition.[14]
• [31] This means that, under a building format plan, the body corporate is responsible for maintaining:
  1. common property,
  2. the doors, windows and fittings in the boundary wall between a lot and common property, and
  3. foundational structures and essential supporting framework that is part of the lot.

• [32] The applicant provided the termite inspection report dated 8 November 2022 alongside the application. The report stated that there were no active termites or a termite nest, however extensive and severe termite damage had been observed in Lot 4. The report also stated the risk of subterranean infestation was moderate to high.
• [33] The presence or extent of the termite damage has not been disputed by the body corporate. In the absence of contrary evidence, and on the basis of the evidence before me, I am satisfied Lot 4 sustained termite damage.

• [34] The termite inspection report recorded termite damage was observed in the following areas:
  1. the living room wall bottom plate,
  2. the bottom plate and studs near the glass door, and
  3. the wall studs in the laundry and toilet.
• [35] On 31 March 2025 and 16 April 2025, the applicant provided a copy of Lot 4's floor plan and photographs to indicate where the locations and damage referred to in the termite report is situated.
• [36] The floor plan and photographs identified the termite damage is located along the length of the walls on both the ground and upper floors at the rear of Lot 4 that is shared with the courtyard. The floor plan also indicated the glass door is located within the same wall on the ground floor shared with the courtyard.

• [37] On 31 March 2025, the applicant provided an arial photo of Lot 4 which indicates that the relevant wall at the rear of the lot on the ground floor extends directly upwards to the upper floor. I also note the survey plan similarly indicates this.
• [38] Overall, the evidence before me indicates the ground floor wall is directly beneath and supporting the upper floor wall which, in turn, supports the relevant section of Lot 4's roof.
• [39] It has not been argued that the relevant sections of wall were not loadbearing walls or were not otherwise essential supporting framework. On the basis of the evidence before me, I am satisfied the termite damage located in the rear wall of Lot 4 was located within essential supporting framework.

• [40] Regarding the termite damage located in the bottom plate and studs near the glass door between Lot 4 and the courtyard, I have considered whether the courtyard forms part of the lot or is common property.
• [41] If the courtyard is part of Lot 4, then the applicant is responsible for maintaining the parts of the wall that are not foundational structures or essential supporting framework. If the courtyard is common property, then the wall is a boundary wall between the lot and common property and the body corporate is responsible for maintaining the damage to the bottom plate and studs near the glass door.
• [42] An examination of the survey plan identifies the courtyard is common property. As such, I will consider whether the courtyard is exclusive use common property and who the by-laws identify as being responsible for its maintenance.
• [43] On 12 August 1991, the body corporate registered a notification of change of by-laws to include the following (By-law 13):

That the Body Corporate resolve pursuant to Section 30(7) of the Building Units and Group Titles Act to grant exclusive use to the proprietor of each lot and their respective licensees, those grassed portions of the common property more particularly identified on the plan attached hereto marked "A" and as follows:[15]

AND FURTHER that the body corporate pursuant to Section 30(7A)(a) continue to be responsible to carry out its duties pursuant to Section 37(1)(b) and (c) at its own expense for the maintenance of such areas.

• [44] Albert Lodge was registered on 8 December 1989 under the Building Units and Group Titles Act 1980 (BUGT Act), which applied to schemes prior to the commencement of the current Act. A common misconception is that when the Act came into effect, the default by-laws in the Act applied to schemes that transitioned to the new legislation.[16]
• [45] I have considered that Albert Lodge's current CMS was registered on 15 July 2000 under the transitional provisions of the Act and states the by-laws for the scheme are taken to be those in effect as at 13 July 2000.[17]
• [46] This means that when the Act came into effect, the by-laws that were in effect carried over, including by-law 13 which identifies the courtyard at the rear of Lot 4 is exclusive use common property and the body corporate is responsible for the maintenance of this area.
• [47] There is no evidence before me indicating responsibility for the maintenance of the exclusive use courtyard was transferred to the applicant.
• [48] In the absence of contrary evidence before me, I am satisfied that the termite damage located near the glass door fell within a boundary wall between Lot 4 and common property and is the body corporate's responsibility to maintain.

• [49] I am satisfied on the evidence before me that the wall at the rear Lot 4 shared with the common property courtyard has sustained termite damage in locations that is the responsibility of the body corporate to maintain. The body corporate was offered the opportunity to provide submissions in relation to this application and nothing has been received to date. On the basis of the evidence before me, and in the absence of any contrary evidence or submissions, I am satisfied the body corporate is responsible for repairing the termite damage to the relevant locations at the rear of Lot 4.
• [50] I note the applicant's final order sought the termite damage to be repaired in 28 days and I acknowledge the matter has been ongoing for some time. I also acknowledge the matter has been complicated by the absence of a committee and the termination of the contract with the current Strata Manager. However, I consider engaging an appropriate contractor and arranging for repairs to commence would take longer than the 28 days sought by the applicant. To this end, I have provided the body corporate with 3 months to engage a contractor and 6 months to complete the termite damage repairs. If these steps have not been completed within the ordered timeframes, enforcement of this order can be sought by the applicant.
• [51] I appreciate the unique difficulties experienced in these circumstances and the challenges that will be faced if enforcement of this order is required. To that end, it would be of benefit for all parties to be aware that, should all owners agree in writing, the expenditure of body corporate funds can be used to undertake the steps involved in carrying out the order. Otherwise, the applicant is able to make an application to appoint an administrator who will be responsible for the enforcement of this order.

[5] Sections 227, 228, 276 and Schedule 5 of the Act.

[12] Section 180(1) of the Standard Module.

[13] Section 180(2)(a)(ii) of the Standard Module.

[14] Section 180(2)(b) of the Standard Module.

[15] The courtyard of Lot 4 was recorded as 'Area 4'.