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

MAINTENANCE - where the scheme's building requires maintenance - whether orders to carry out specific maintenance works are warranted in the circumstances.

Act, ss 94, 100, 101B, 152, 287, 288, 331; Commercial Module, ss 16, 17, 127

1. Within 30 days of the date of this order, the body corporate must obtain a report on the scheme's roof from a suitably qualified contractor to recommend what action should be taken to ensure the roof is structurally sound and how it should be put back into good condition. And, within 60 days of obtaining the report, the body corporate must have the works recommended by the report carried out by a suitably qualified contractor, whether that be further repairs or a full replacement of the roof.
2. Within 30 days of the date of this order, the body corporate must have a slip-test carried out on the newly repaired flooring by a suitably qualified contractor to determine whether it now meets the relevant slip-resistance standard. In the event the floors fail the slip-test, the body corporate must within 60 days of receiving the result, have works carried out by a suitably qualified contractor to ensure the flooring is brought up to the required slip-resistance standard and have the floors re-tested to confirm compliance.
3. Within 60 days of the date of this order, the body corporate must have the works to repair the scheme's CCTV system carried out by a suitably qualified contractor.
4. As soon as practicable, but within no more than 45 days of the date of this order, the body corporate must have the necessary works to the scheme's electrical switchbox carried out by a suitably qualified contractor.
5. Within 30 days of the date of this order, the body corporate must obtain a report in relation to all common property bathrooms at the scheme from a suitably qualified contractor to recommend what action should be taken to put the bathrooms back in good condition. And, within 60 days of obtaining the report, the body corporate must have the works recommended by the report carried out by a suitably qualified contractor.
6. The application is otherwise dismissed.

• [1] Ashmore Shopping Plaza CTS 12065 is a 28-lot scheme situated in Ashmore, Queensland. It is governed by the Commercial Module.
• [2] The applicant, 45 Tina Pty Ltd, owns Lots 19 and 20 in the scheme. Mr Lloyd, one of the applicant's directors, has submitted this application on its behalf.
• [3] The applicant sought an interim order to appoint an administrator to act on behalf of the committee and requested that the administrator be empowered to carry out a number of tasks at the scheme. On 29 October 2024, I dismissed the applicant's request for interim orders.[1]
• [4] The applicant seeks the following final orders:
  1. That the respondent and subsequently its committee, immediately cease all efforts to devalue the centre in any nature, including terminating all contracts with third parties acting on the respondent's behalf, until the respective motion(s) can be decided on by the lot owners at a general meeting.
  2. That the respondent accept quote QU-0004 dated 1 July 2024 put forward from Marsh Building Pty Ltd to repair the bathrooms of the Ashmore Shopping Plaza building and make them safe and compliant.
  3. That the respondent be ordered to properly maintain the common property of the Ashmore Shopping Plaza building and make permanent repairs to address issues to the roof, flooring, potholes in the car park, lighting, CCTV system and the electrical switchboard.
• [5] This is my consideration of the applicant's request for final orders. The applicant bears the onus to establish that the orders it has sought are warranted in the circumstances.

• [6] The applicant submitted this application for adjudication on 16 September 2024. The commissioner sought clarification on some aspects of the application, and the application was amended.
• [7] The commissioner invited submissions from the body corporate committee, affected persons named in the application and, all other owners in the scheme. The committee, three affected persons and one owner in the scheme made submissions in response.
• [8] The applicant inspected the submissions made in response and submitted a reply.
• [9] A dispute resolution recommendation was made referring the file to department adjudication.[2] I was then tasked with deciding the matter.

• [10] An adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, about (relevant to this dispute): a claimed or anticipated contravention of the Act or the CMS, or about the exercise of rights or powers or performance of duties under the Act or the CMS.[3]
• [11] I am satisfied I have jurisdiction to determine this matter under the legislative dispute resolution provisions.

• [12] The applicant has set out separate grounds for each of the orders it has sought. I have summarised these in turn below.

• [13] The applicant says it is concerned the committee's chairperson has compelled the committee to approve a committee motion to devalue the scheme's land value and has used money from the scheme's sinking fund to engage a consultant to submit an application to devalue the land.
• [14] The applicant says that any decision to devalue the land should be presented to all lot owners at a general meeting. It says despite raising this issue with the committee prior to them casting their votes, the committee proceeded to make the decision to devalue the land at committee level without consulting the body corporate.
• [15] The applicant says the committee is in contravention of the Act. It refers to the code of conduct for committee voting members set out at section 101B and Schedule 1A of the Act.
• [16] In addition, the applicant raises concerns that the body corporate manager has conducted votes without informing the committee secretary or all committee members. It says this has led to committee motions being passed without proper oversight.

• [17] The applicant says the bathrooms at the scheme have been in a state of disrepair for over two years. It says currently, Ashmore Shopping Plaza only has one useable male toilet in the entire centre and says the disabled toilet is non-compliant.
• [18] The applicant says there have been numerous quotes for bathroom renovations over the years but none of these have been acted upon. It has provided a copy of the quote from Marsh Building Pty Limited dated 1 July 2024 to renovate the bathrooms in the centre. It wants the body corporate to proceed with the quote.

• [19] The applicant says the body corporate is required to maintain the common property in good condition, including, to the extent that common property is structural in nature, in structurally sound condition.
• [20] The applicant says there are numerous maintenance issues affecting common property at the scheme. It says this includes issues with the flooring, roof, electrical switchboard, potholes in the carpark, bathroom amenities, internal and external lighting and trees that require trimming.
• [21] The applicant says there have been multiple declinations of insurance claims as a direct result of the inadequate maintenance of the Ashmore Shopping Plaza. It says the body corporate has now been compelled to seek insurance coverage from offshore providers leading to a significant rise in the insurance premiums for the scheme. It explains that premiums have surged from approximately $120,000 in previous years to over $650,000 for this year.
• [22] The applicant says that if the body corporate fails to take the necessary steps to maintain common property or adhere to the maintenance regimes recommended by the current insurer, there is a genuine risk Ashmore Shopping Plaza will become uninsurable. It says at the very least, it will jeopardise the financial stability of the body corporate.
• [23] The applicant says the body corporate committee has a history of dysfunction and has refused to maintain the common property. It says this has led to money being wasting on temporary repairs. For example, it says the committee has spent approximately $250,000 on temporary roof repairs despite quotes obtained in 2020 indicating that a full roof replacement would have cost around $390,000. It says the replacement cost for the roof now stands at approximately $1,100,000. The applicant says that had the committee acted in the best interest of all lot owners in 2020, the financial burden to fully repair the roof would have been significantly lower.
• [24] The applicant also points out that common area flooring at the scheme has failed its slip testing two years in a row. And, despite professional recommendations that the flooring be replaced, the committee has voted against taking any action.
• [25] The applicant has provided quotes and reports for maintenance it says should be carried out at the scheme. It has also provided statements from several other tenants at the scheme outlining the issues they are experiencing with maintenance at Ashmore Shopping Plaza.

• [26] The body corporate addressed the applicant's concerns about maintenance at the scheme.
• [27] In relation to the roof, the body corporate says a quote for repairs has been obtained from the contractor 'Roofit'. It says Roofit attended the scheme to address all the live leaks in the scheme's roof. It says the committee has approved $51,000 for Roofit to repair all of these live leaks. However, the facilities manager has been instructed to first obtain a comparative quote to ensure the quote from Roofit is competitive before Roofit will be approved to carry out the repairs.
• [28] In relation to replacing the roof, the committee says it intends to submit a proposal for upgrading the roof at the scheme's next general meeting.
• [29] In relation to the flooring, the committee says a quote had been approved and work was scheduled to commence on the floors however, the initial contractor was unable to complete the required work. It says a second contractor has now done a site inspection and the committee is awaiting the quote.
• [30] In relation to the potholes in the scheme's carpark, the body corporate says a quote has been approved and work was scheduled to commence on fixing the potholes however, the initial contractor was unable to complete the required work. It says a second contractor has provided a quote which the committee has approved. The committee says it has approved the required repairs to be completed in two stages and the works are scheduled to commence imminently.
• [31] In relation to the lighting, the body corporate says a quote was approved for the lighting works and repairs have been carried out. However, it says the light in the alleyway referred to by the applicant is part of Lot 31 and is not on common property. Accordingly, it is not responsible for this light.
• [32] In relation to the CCTV system, the body corporate says a quote has now been obtained to relocate the current services and the committee will discuss how this should be moved forward. It says this is a non-urgent issue.
• [33] In relation to the scheme's electrical switchboard, the body corporate says a quote was approved and the works were scheduled to commence in October 2024. However, it says the applicant lodged a complaint with Work Safe Queensland (WSQ) and WSQ requested an engineer's report before any further work was caried out on the switchboard. The body corporate says this report has now been received and the facilities manager will action the recommended repairs.

• [34] The owner of Lot 4 says the roof at Ashmore Shopping Plaza should have been replaced years ago. He says instead it has been temporarily repaired at a cost of $350,000. He says the roof is now unrepairable and ongoing repairs are not permissible under the building codes.
• [35] The owner of Lot 4 also raises concerns about the bathrooms at the scheme. He says the staff bathrooms have been closed for over three years and the public bathrooms are a disgrace. He says the applicant has provided a reasonable quote to renovate the bathrooms.
• [36] The owner of Lot 4 says the applicant obtained a quote to fix the potholes in the southern carpark of Ashmore Shopping Plaza which was between $4,000 and $6,000. However, he says the body corporate took no action and the cost to repair the potholes is now around $60,000. In addition, he says the applicant obtained a quote to remove all the trees in the centre for $11,000 but no action was taken. He says the committee recently engaged a tree lopper to remove a dead tree and some branches for $7,000.
• [37] The owner of Lot 4 says there are ongoing issues with the CCTV cameras and outside lighting. He says there are serious safety and compliance issues with the main electrical switchboard and the public floor has failed the slip test and is a safety hazard. He also says the ceiling panels are dirty and some joints are rusted.
• [38] The owner of Lot 4 says there are squatters in the abandoned shops at the centre. He says there are delays in recovering outstanding body corporate levies. He says recovery of outstanding levies will be in the tens of thousands which would go a long way in meeting repair and maintenance costs for the centre.
• [39] The owner of Lot 4 also says the insurance for the building has increased 600% from $115,000 to $700,000. He says this is because of the lack of maintenance at the scheme and the arson attack on the tobacco shop. He says the general appearance of the shopping centre is substandard and this is leading to reduced customer intertest and patronage.
• [40] The occupier of Lot 6 says the maintenance at Ashmore Shopping Plaza is unsatisfactory. He says the male staff toilet is not working and the centre is in an unsanitary condition. He says they do not get any walk-in customers anymore as nobody wants to come to the centre.
• [41] The occupier of Lot 7 says the lack of maintenance at the scheme has hurt her business. She says the centre is currently unappealing and discourages customers from visiting. She says the bathrooms are outdated and require renovation. She says the roof continues to leak despite the insurance claim. The occupier of Lot 7 says patient walk-ins are hindered by an obstructive wall which has been erected due to construction at the centre which has stalled. She says this means many potential customers are avoiding the area altogether. The occupier of Lot 7 says there are also large potholes in the road which are disruptive and unappealing. She says the centre's reputation has also impacted staff morale.
• [42] The occupier of Lot 9 says QML pathology opens at 7:00am but the lights in the centre do not come on until 7:30am. She says this is the same for the air conditioning. She also raises the issue that the hallway gets very hot in summer and says the roof insulation needs replacing. In addition, she says there are a lot of potholes around the centre and this could cause an injury.

• [43] The applicant submitted a reply and addressed the submissions made by the body corporate.
• [44] In relation to the flooring, it says the initial contractor engaged by the body corporate was unable to perform the work on the flooring as it turned out the contractor was unlicenced. The applicant says that to date, it has not been provided with any details of a site inspection undertaken by a second contractor or copies of any further quotes supplied by an alternative contractor.
• [45] In response to the body corporate's comments about the lighting, the applicant says the alleyway in question was assigned to either Lot 30 or Lot 31 in the scheme. However, an easement in favour of the body corporate allows it to utilise the alleyway as the alleyway provides access to the scheme's electrical switchboard room.
• [46] In response to the body corporate's comments about the CCTV, the applicant says that to date, the body corporate has refused, failed or neglected to install a new CCTV system. It says the absence of a functioning CCTV system negatively impacts the scheme as evidenced by the body corporate's diminished capacity to adequately defend a personal injury claim filed against it.

• [47] The first order sought by the applicant is for the body corporate, specifically its committee, to immediately cease all efforts to devalue Ashmore Shopping Plaza in any manner.
• [48] It appears the committee decided to lodge an objection to the centre's recent land valuation notice and this is what the applicant means by its allegation that the committee is attempting to 'devalue the centre'.
• [49] I understand the Queensland Government review land value every 2 to 3 years for the purposes of calculating the amount of land tax payable on a property. A lower land value means a lower tax liability. General rate charges payable to the council are also based on a property's land value. I understand a valuation notice is issued when a land value has been reassessed. If a person does not agree with the new land valuation, they may lodge an objection within 60 days of receiving the valuation notice.[4]
• [50] The applicant submits that in attempting to devalue the centre, the committee is contravening the Act. It refers to the code of conduct for committee voting members, pointing to section 101B and Schedule 1A of the Act.
• [51] Section 101B of the Act provides:

(1) The code of conduct in schedule 1A applies to each person (a committee voting member) who is -

(a) a committee member for a community titles scheme; and

(b) a voting member of the committee under the regulation module applying to the scheme.

(2) On becoming a committee voting member, the person is taken to have agreed to comply with the code of conduct.

(3) If a committee voting member breaches the code of conduct, the member may be removed from office in the way prescribed under a regulation.

• [52] It is clear the code of conduct for committee voting members applies to each person who is a committee voting member. This means each individual committee member must comply with the code of conduct and may be removed from office in the way prescribed under the applicable regulation module if they fail to do so.[5] However, the code of conduct is not enlivened in terms of decisions made by the committee as a whole. The applicant has not alleged that any individual committee member has breached the code of conduct.
• [53] In addition, I note the applicant has referred to the obligation for a committee voting member to act honestly and fairly in performing their duties,[6] and the obligation for a committee voting member to act in the best interests of the body corporate in performing their duties unless it is unlawful for them to do so.[7] However, it has not explained how by voting in favour of lodging an objection to the land valuation, committee voting members are not acting, honestly, and fairly or are acting contrary to the best interests of the body corporate.
• [54] It is not apparent that there has been any breach of the code of conduct as alleged. In any event, if the applicant considered that an individual committee voting member had breached the code of conduct, the prescribed steps under the Commercial Module would need to be followed in order to have that person removed from office.
• [55] I note the applicant argues that any action which significantly devalues the scheme should be presented to all owners for consideration at a general meeting. However, it has not explained why it considers that the committee is unable to make the decision to lodge an objection to the land valuation. The process of lodging an objection does not appear to be a legal proceeding or otherwise be a restricted issue for the committee.[8]
• [56] Furthermore, the applicant has not explained how lodging an objection to the land valuation would devalue Ashmore Shopping Plaza itself. It is not clear to me how any reduction in the land value, and thereby a reduction in the land tax and council rates owners would have to pay, would lead to a devaluation of the centre.
• [57] For completeness, I note the applicant also alleges that the scheme's body corporate manager has breached the code of conduct for body corporate managers and caretaking service contractors as set out at Schedule 2 of the Act. However, this application has been brought against the body corporate and, the actions of the scheme's body corporate manager are beyond the scope of this application.

• [58] The second and third orders sought by the applicant have to do with maintenance at the scheme. Accordingly, I will consider the body corporate's maintenance responsibilities and whether orders requiring repairs to be carried out are warranted in the circumstances.
• [59] Ashmore Shopping Plaza was created as a building unit plan of subdivision (now known as a building format plan of subdivision).[9] Where a scheme is created as a building format plan of subdivision, boundaries are defined on the survey plan by the structural elements of a building, including, for example, the floors, walls and ceilings.[10] And, where a lot is separated from another lot or common property by a floor, wall or ceiling, the boundary is the centre of the floor, wall or ceiling.[11]
• [60] Section 152 of the Act sets out a body corporate's duties about common property. It provides that the body corporate must administer, manage and control the common property reasonably and for the benefit of lot owners; and comply with the obligations with regard to common property imposed under the regulation module applying to the scheme.
• [61] Ashmore Shopping Plaza is governed by the Commercial Module. Section 127 of the Commercial Module provides that the body corporate must maintain common property in good and structurally sound condition. And, where a scheme is created under a building format plan of subdivision, the body corporate must also maintain: (1) railings, parapets and balustrades on the boundary of a lot and common property; (2) doors, windows and associated fittings situated in a boundary wall; (3) roofing membranes that provide protection for lots or common property;[12] and (4) the foundation structures, roofing structures and supporting framework in structurally sound condition.[13]
• [62] The statutory duty to maintain common property has been considered extensively by the courts. In Klinger & Anor v Body Corporate for Costa D'Ora Apartments[14] Searles DCJ stated:

The statutory duty imposed ... is one which obliges it to remedy any defect as soon as any of the building parts covered by the duty fall into disrepair or were not operating properly. Failure to do so, once aware, gave rise to a breach of its duty.[15]

• [63] And, in Magog (No.15) Pty Ltd v The Body Corporate for The Moroccan[16] Newton DCJ stated:

In my view it is clear from the words of section 152 of the Act and section 109 of the Standard Module that there is an intention disclosed by the legislation for a duty of care to arise. A duty of care is owed by the Body Corporate for the benefit of lot owners and other users of the common property. The defendant had a duty to maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.[17]

• [64] The latter decision applied Seiwa Pty Ltd v The Owner's Strata Plan 35042,[18] a Supreme Court of New South Wales Equity Division case, where Brereton J stated:

The duty to maintain: involves an obligation to keep a thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists; requires the body corporate not only to attend to cases where there is a malfunction, but also to take preventative measures to ensure that there not be a malfunction; extends to require remediation of defects in the original construction of the common property; and extends to oblige the body corporate to do things which could not be for the benefit of the proprietors as a whole or even a majority of them. There is a breach of the duty as soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair.[19]

• [65] It is clear from the case law that a body corporate has a duty to maintain common property in good condition and that it must do so as soon as any of the building parts covered by the duty fall into disrepair.[20] Failure to do so once aware of an issue would give rise to a breach of the body corporate's maintenance obligations.
• [66] From the materials before me, I am satisfied that Ashmore Shopping Plaza has fallen into disrepair. The body corporate does not appear to dispute that the centre requires maintenance. In its response to the applicant's application, it explains how the majority of repairs highlighted by the applicant are being addressed referring to repairs being scheduled for the roof, flooring, potholes, carpark lighting, CCTV system and switchboard. However, I note these are all long-standing issues which ought to have been addressed promptly.
• [67] Given that necessary repairs have not been addressed promptly, I find the body corporate to be in breach of its maintenance obligations under the Commercial Module. I note the body corporate has a duty to act reasonably when carrying out its general functions, including making, or not making, a decision.[21] A decision of the committee is a decision of the body corporate,[22] and a committee acting on behalf of a body corporate must act reasonably in making a decision.[23] It would be unreasonable for a body corporate or committee not to carry out necessary repairs the body corporate is responsible for.

• [68] I will deal with each of the maintenance issues raised by the applicant in turn and consider whether orders are warranted in the circumstances.

• [69] The body corporate has not disputed that it is responsible for the roof or that the roof of Ashmore Shopping Plaza is currently leaking. I understand it has engaged a roofing contractor to address all the live leaks. However, notwithstanding that the body corporate is taking some action about the leaks in the roof, it seems the heart of this issue is that the parties disagree on whether the roof can be repaired or whether it needs to be completely replaced.
• [70] I have carefully considered all the materials before me however, given the disagreement between the parties and the passage of time since previous inspections of the roof were carried out, I consider it appropriate to make an order that the roof be inspected by a suitably qualified contractor to determine what action needs to be taken to ensure the roof is structurally sound and put back into good condition and provide a report with their findings.
• [71] Once the report has been obtained from the contractor, I will make an order that the body corporate must carry out the works recommended by the report, whether that be further repairs or a full replacement of the roof.

• [72] The body corporate has not disputed that it is responsible for the flooring in the common property areas of the centre. I note that slip testing undertaken at the scheme shows the floors have low slip-resistance and I understand they do not meet the relevant standards.
• [73] In its response to this application, the body corporate submitted that as the first contractor it had engaged could not carry out the repairs to the flooring, a second contractor had been engaged and had conducted a site visit. It said a quote from this contractor to rectify the issues with the flooring was pending.
• [74] Given the passage of time, I wrote to the body corporate requesting an update on whether the quote to repair the flooring in the common property areas of the scheme had now been received from the second contractor, and if it had been received, whether the quote had been accepted or the works carried out.
• [75] The body corporate replied to my request for further information and advised that the quote to repair the common property flooring had been received, approved, and the works carried out.
• [76] In the circumstances, I consider it appropriate to make an order that the body corporate engage a suitably qualified contractor to carry out a slip-test on the newly repaired flooring to confirm that it now meets the relevant slip-resistance standards. In the event the floors fail the slip-test, I will order that the body corporate carry out further repairs to the flooring and then have it re-tested to ensure it passes the applicable slip-test.

• [77] The body corporate has not disputed that it is responsible for maintaining the common property carpark or that there are currently potholes in the carpark which need to be repaired.
• [78] In its response to this application, the body corporate submitted that as the first contractor it had engaged could not carry out the repairs to the potholes, a second contractor had been asked to provide a quote to rectify the issues. It said the committee had approved the repairs to be carried out in two stages and, the works were scheduled to commence imminently.
• [79] Given the passage of time, I wrote to the body corporate requesting an update on whether the works to repair the potholes had started or had been completed. The body corporate replied that the potholes in the carpark had now been repaired.
• [80] After receiving the body corporate's response, this office telephoned the applicant to confirm that the potholes had been repaired. The applicant said some of the worst areas had been fixed and there was some improvement to the potholes. However, he said the repairs had not been carried out to a completely acceptable standard.
• [81] While the applicant may not consider that the repairs to the potholes have been done to a completely acceptable standard, I am not persuaded that an order is warranted in circumstances where repairs have been carried out. However, I remind the body corporate of its obligation to maintain the common property in good condition and encourage it to take any further steps which are necessary to ensure the common property carpark is maintained to the required standard.

• [82] The body corporate has not disputed that it is responsible for maintaining the scheme's CCTV. In its response to this application, I note the body corporate suggests that repairing the CCTV system is not an urgent issue. In light of this submission, I want to remind the body corporate of its obligation to maintain the common property in good condition and to ensure that any issues are attended to promptly.
• [83] The body corporate indicated that a quote to repair the CCTV system has now been received and the committee is intending to discuss the issue at a committee meeting.
• [84] Given the passage of time, I wrote to the body corporate requesting an update on whether the quote to repair the CCTV had been accepted or whether the work had been carried out. The body corporate replied that the committee is waiting on a second quote for the repairs required to the CCTV and this is expected within the next 7 to 14 days.
• [85] In the circumstances, I consider it appropriate to make an order for the repairs to the scheme's CCTV system to be carried out promptly.

• [86] The body corporate has not disputed that it is responsible for maintaining the scheme's electrical switchboard. From the material before me, it is clear the switchboard requires critical repairs which need to be done as a matter of urgency.
• [87] The body corporate submits the applicant lodged a complaint with WSQ and WSQ required an engineer's report to be obtained before any further works were carried out on the switchboard. The body corporate says the engineer's report has now been obtained and the required repairs will be actioned.
• [88] Given the passage of time, I wrote to the body corporate requesting an update on whether following receipt of the engineer's report, the body corporate had obtained quotes to carry out the necessary works to the scheme's electrical switchboard.
• [89] The body corporate replied that the engineer has been instructed to prepare the design/schematics for the new switchbox and following that, quotes will be obtained for the works.
• [90] It appears the body corporate is now taking steps to make the necessary repairs/upgrade the scheme's electrical switchboard. However, in the circumstances where Energex has issued an electricity defect report many months ago and the works appear to be urgent, I consider it appropriate to make an order that the body corporate carry out the necessary works as promptly as possible.

• [91] The body corporate has not disputed that it is responsible for maintaining the lighting in the scheme's common property carpark. It says the quote for repairing this lighting was received and the works have been carried out. However, the body corporate says the lighting in the alleyway referred to by the applicant forms part of Lot 31 and is not on common property.
• [92] In its reply to the body corporate's submissions, the applicant did not refute that the body corporate had repaired the lighting in the scheme's carpark. However, in relation to the lighting in the alleyway, it asserted that an easement in favour of the body corporate allows it to utilise the alleyway as the alleyway provides access to the electrical switchboard room. It implied this means the body corporate is responsible for maintaining the lighting in the alleyway.
• [93] Having reviewed the relevant survey plans, I was satisfied the applicant was referring to an easement on Lot 30.[24] However, it had provided no evidence that the easement requires the body corporate to maintain the parts of Lot 30 that are encumbered by the easement.
• [94] In the circumstances, I wrote to the applicant about this issue and invited it to provide evidence that the easement in question requires the body corporate to maintain the parts of Lot 30 that are encumbered by the easement.[25]
• [95] The applicant provided a copy of the easements burdening Lot 30 and replied that on an initial review, it appears the owner of Lot 30 is obligated to maintain the parts of Lot 30 that are encumbered by the easements. However, it says the owner of Lot 30, who is a company,[26] is in liquidation and was deregistered in August 2019. It says the body corporate has previously indicated that it intends to acquire Lot 30 for use as common property. However, it says it is unaware of the status of any such acquisition or whether an alternative arrangement has been made between the appointed receiver for the liquidated company and the body corporate committee.
• [96] The applicant says that from in or about July 2017, the body corporate has maintained the parts of Lot 30 that are encumbered by the easements and, to date, continues to do so. Accordingly, it asserts that the body corporate is liable to continue to maintain the parts of Lot 30 that are encumbered by the easements.
• [97] I have carefully reviewed the easements supplied by the applicant. The easements provide that both Lot 31 and Lot 32 have a right of way over Lot 30.[27] Under the provisions of the easements, the owner of Lot 30 remains responsible for keeping Lot 30 in clean and good order. Neither of these easements grant the body corporate a right of way over Lot 30 as asserted by the applicant.
• [98] I note the other arguments the applicant has put forward that the body corporate is responsible for the maintenance of the lights on Lot 30. As of today's date, the ownership of Lot 30 has not changed. In addition, even if it is correct that the body corporate has been undertaking maintenance on the parts of Lot 30 that are encumbered by the easements, this does not, in the absence of any legal obligation, make it responsible for future maintenance.
• [99] The applicant has failed to persuade me that the body corporate is responsible for carrying out maintenance to the lighting in the alleyway on Lot 30 and I will dismiss its request for an order in relation to this issue.

• [100] The applicant says the bathrooms at the scheme have been in a state of disrepair for over two years. It says there is only one male toilet available in the entire shopping centre and a non-compliant disabled toilet. I understand the applicant obtained a quote to have the bathrooms renovated and he wants an order that the body corporate proceed with the quote.
• [101] The body corporate has not commented on this aspect of the dispute. However, issues with the toilets at the scheme are a sentiment echoed by the owner and other affected persons who made submissions on this dispute. Based on the material before me, I am satisfied the bathrooms at the scheme are not in good condition.
• [102] The body corporate is required to maintain the common property in good condition. Accordingly, it must ensure any common property bathrooms at the scheme are in good condition. However, I note that carrying out the necessary repairs to the bathrooms at the scheme may not require a wholesale renovation. A renovation might amount to an improvement and not maintenance. In any event, the quote dated 1 July 2024 the applicant has provided for the renovation of the bathrooms expired on 31 July 2024.
• [103] In the circumstances, I consider it appropriate to make an order that all the common property bathrooms at the scheme be inspected by a suitably qualified contractor to determine what action needs to be taken to put them back into good condition and provide a report with their findings.
• [104] Once the report has been obtained from the contractor, I will make an order that the body corporate carry out the works to the bathrooms recommended by the report.

• [105] The applicant has persuaded me that orders are warranted in this case. Accordingly, I have made appropriate orders as discussed above. It is an offence not to comply with an adjudicator's order and a penalty may be sought.[28] In addition, the orders I have made can be enforced thought the Magistrate's Court if they are not complied with.[29]

[1] Ashmore Shopping Plaza [2024] QBCCMCmr 393

[3] Section 276(1)(a) and (b) of the Act

[4] https://www.qld.gov.au/environment/land/title/valuation/objections/lodge-objections/process

[5] For this scheme, section 16 of the Commercial Module prescribes the way a voting member may be removed from office for breaching the code of conduct.

[6] Schedule 1A of the Act, paragraph 2(1)

[8] See section 17 of the Commercial Module

[10] Section 48C of the Land Title Act 1994 (Qld)

[11] Section 49C of the Land Title Act 1994 (Qld)

[12] Section 127(2)(a) of the Commercial Module

[13] Section 127(2)(b) of the Commercial Module

[14] [2007] QDC 300

[16] [2010] QDC 70

[18] [2006] NSWSC 1157

[20] In fact, the body corporate ought to proactively carry out maintenance to prevent defects from arising where possible.

[21] Section 94(1) of the Act

[22] Section 100(1) of the Act

[23] Section 100(5) of the Act

[27] See dealing number 718567108 and 718567109 respectively.