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

MAINTENANCE - whether the body corporate can repair or replace balcony doors and windows that must be removed to address concrete spalling to balcony slabs and cannot be reinstated due to current regulatory standards.

Standard Module, ss 180(2), 211(3).

• [1] The body corporate intends to replace balcony doors and windows in lots 6 and 7. Ms Horrocks and Mr Rutter object that the doors and windows are within lot boundaries and should be maintained in good condition by the lot owners.[1] They seek orders in the following terms:

That the Adjudicator declare that the Body Corporate is not responsible for the repair and/or replacement of door/windows onto balconies within lot 6 and 7 lot entitlements.

That if such payments are made, they be refunded to the Body Corporate Manager by owners of lots 6 and 7, as calculated by the BC Manager in consultation with engineer and contractor after such work is completed.

• [2] The body corporate committee says the doors and windows must be removed to repair concrete cancer in the balcony slabs pursuant to the body corporate's obligation to maintain in structurally sound condition:

(iii) essential supporting framework, including load-bearing walls.[2]

• [3] The suspended slabs at Aztac Apartments could be described as any of these three things. They support the building above, while the balconies also form roofs over balconies and common property below.
• [4] It is not disputed that the slabs have concrete cancer. It was first detected by First Response Maintenance Solutions in mid-2023 and further diagnosed by JTC Consulting Engineers in a report of 11 March 2024.
• [5] It also does not appear to be disputed that it is necessary to remove the balcony doors and windows to repair the concrete cancer. Mr Rutter acknowledged in an explanatory note prepared for an extraordinary general meeting held on 6 December 2023 that "it is agreed that doors/windows need to be removed for concrete to be repaired".
• [6] The dispute arises because Ms Horrocks and Mr Rutter say the slab is not presently structurally unsound. They refer to the following comments by Mr Titmus of JTC Consulting Engineers in an email of 3 November 2023:

The concrete slab is in no danger of collapse due to the level & extent of reinforcement corrosion uncovered. The corroded reinforcement and surrounding concrete should be treated as we have specified. At the moment the corrosion damage to the exposed reinforcement is greater than what would be expected if the reinforcement had been placed with sufficient concrete cover in the first place (during construction).

Any corrosion of steel reinforcement within a suspended concrete slab will reduce its ultimate strength in that immediate location. The percentage of strength reduction at this point of time in this case is minor. The structural integrity of the building as a whole has not been compromised.

• [7] Ms Horrocks and Mr Rutter appear to believe that the body corporate will only be compelled to act when the slab becomes structurally unsound. That is not correct. The body corporate must maintain (as in "keep") the slab in structurally sound condition. That requires it to carry out any work necessary to prevent the slab from becoming structurally unsound. Once it is structurally unsound, the body corporate will have breached its statutory obligation.
• [8] Newton DCJ accepted that the obligation to maintain something in good condition:

• involved an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to service the purpose for which it exists;

• required 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...[3]

• [9] The same must be true of the obligation to maintain the elements listed above in structurally sound condition.
• [10] The fact that the slab is presently in no danger of collapse does not mean the body corporate's maintenance obligations have not been engaged. The body corporate must prevent the concrete spalling from progressing to the point where the slab becomes structurally unsound. As Mr Titmus said, the spalling should be treated in the manner JTC Consulting Engineers has specified.
• [11] That work involves the removal of the balcony doors and windows. Ms Horrocks and Mr Rutter ask that the body corporate is prevented from repairing or replacing them.
• [12] The body corporate would not normally be required to repair or replace balcony doors and windows that are not situated in a wall separating a lot from common property.[4] If it removes them as part of work it is obliged to carry out it must reinstate them afterwards though, just as bodies corporate typically reinstate tiles they remove from lot balconies as part of work to maintain the underlying waterproof membrane in good condition.[5]
• [13] The committee says it is unable to reinstate the same balcony doors and windows as they do not meet current regulatory standards. The site manager of Boss Building Maintenance advised in an email of 28 November 2024 that even though the "current sliders/windows appear to be in good condition...Due to new code compliance the original sliders can not be removed and re-installed". Ms Horrocks and Mr Rutter have not challenged that claim. Their argument rests solely on the claim that the slab is not presently structurally unsound.
• [14] In these circumstances, where the doors and windows are only being removed and replaced so the body corporate can meet its obligation to keep the slab structurally sound, and not because the lot owners have failed to keep the doors and windows in good condition, responsibility lies with the body corporate.
• [15] The application is dismissed.

[1] Standard Module, s 211(3).

[2] Standard Module, s 180(2)(b).

[3] MAGOG (NO. 15) Pty Ltd v The Body Corporate for the Moroccan [2010] QDC 70 at [83], referring to Seiwa Pty Ltd v The Owner's Strata Plan 35042 [2006] NSWSC 1157.

[4] Standard Module, s 180(2)(a)(ii).

[5] Klinger & Anor v Body Corporate for Costa D'Ora Apartments [2007] QDC 300 at [65]- [70].