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

INSURANCE - where there was water ingress to a lot from the roof - whether the body corporate is responsible for the damage to the lot - whether the body corporate is liable for the insurance excess and a lodgement charge - whether the body corporate is liable for other expenses - whether the body corporate is responsible for pursuing the insurance claim and repair works - whether an apology should be made.

Act, ss 94, 100, 281; Accommodation Module, ss 170, 188, 193

1. The Body Corporate for Baden East is liable for the property damage to Lot 27 caused by water ingress from the scheme's roof.
2. The Body Corporate for Baden East is liable for the excess and any lodgement charge associated with the insurance claim made under the body corporate's building insurance for the water ingress damage to Lot 27.
3. The Body Corporate for Baden East must reimburse the applicant for $559 for mould-related expenses within 30 days of the date of this order, unless the body corporate's insurer has reimbursed the applicant for those expenses or confirmed in writing that it will reimburse the applicant for those expenses.
4. The application is otherwise dismissed.

• [1] This application is about damage to the applicant's Lot 27 and a resulting insurance claim. The applicant says the kitchen of Lot 27 was damaged in November 2024 when water entered through the roof during a storm. They say kitchen cabinetry was ruined and mould grew.
• [2] The applicant describes the difficulties in pursuing an insurance claim for the damage and says the body corporate was unresponsive. They say this left their lot unliveable for their tenant and increased the time and financial impacts for them. They seek various orders relating to costs incurred in the matter and carrying out required repairs.

• [3] Baden East community titles scheme 28854 (Baden East) is a 24-lot scheme at Rainbow Beach. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as survey plan 137396. It is part of a layered arrangement.
• [4] The application seeks the following:

In terms of the orders sought, and acknowledging rent losses are out of scope, in summary we are seeking to have the Body Corporate accept their clear responsibility - damage to the roof caused damage to our unit and the totality of the damage is theirs to make good. This includes:

1. the Body Corporate cover the insurance claim application charge
2. the Body Corporate cover the insurance excess
3. the Body Corporate reimburse work to date including a building inspection and a mould clean paid for by us, and any other work we consider it appropriate to authorise within our unit while this matter is being resolved and also cover costs of mediation and adjudication application
4. the Body Corporate move with speed to deal with and "take ownership" of the insurance claim which is now in progress
5. depending on the outcome of the insurance claim, either:

a) if the insurance claim is approved, carry out (including overseeing as appropriate) required and agreed repairs in a timely manner > > b) if the insurance claim is not approved, carry out and pay for required and agreed repairs to our unit in a timely manner, as well as any on costs

6. And finally a written apology, both to our tenant and to ourselves.

• [5] 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 the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[2]

• [6] The applicant initially applied for conciliation in March 2025.[3] However, while a conciliation session was scheduled, the conciliator determined in July that it was unable to proceed because there was no functioning committee at the time.
• [7] This application was lodged on 4 August 2025. The Commissioner's delegate sought clarification from the applicant on some aspects of the application,[4] which was amended.[5]
• [8] The Commissioner invited submissions from the committee and all owners.[6] A submission was made on behalf of the committee. The applicant did not obtain or respond to the submission.[7]
• [9] The application was referred to department adjudication.[8]
• [10] I have now investigated the dispute, including reviewing the application and submission and seeking further information from the applicant.[9]

• [11] The submission made on behalf of the committee includes:
  1. The body corporate manager (BCM) informed them the insurance claim application charge was the responsibility of the lot owner lodging the claim. It says the applicant was informed of that by the insurance claims consultant in November 2024.
  2. It agreed to cover the insurance excess although not legally obliged to. The lot owner was informed of this in May 2025.
  3. In regard to the claim for reimbursement of work to date, including a building inspection and mould clean, it is of the opinion that would be covered by the insurer.
  4. It did everything possible to facilitate the claim, including contacting the insurer on behalf of the claimant. It does not believe the body corporate should cover the cost of the mediation and adjudication application.
  5. Although it takes out insurance on behalf of owners, it is the owner's responsibility to organise and facilitate the claim and the claim cannot be made on an owner's behalf.
  6. Comments regarding overseeing repairs whether the claim is approved or not is not the responsibility of the body corporate. The issue is between the insurer and the client.

• [12] I wrote to the applicant seeking further information on several matters. At length, the applicant responded. I provided a copy to the body corporate, but it did not comment on the response. The applicant's response included:
  1. They lodged the claim with the insurance broker on 25 June following advice that the required repairs to the roof had been completed.
  2. The insurer has now approved the claim for mould remediation and kitchen repairs, and a contract has been signed with the insurer's builder. Initial mould remediation work has occurred, with the remaining work including demolition of the kitchen, further mould treatment and remediation, and the installation of the new kitchen.
  3. The insurer has accepted the loss of rent claim, with an initial payment made and a commitment to continuing payments until the lot is deemed habitable.
  4. To date they have not been asked to pay the insurance claim application charge, although they were told they would. It appeared to be a charge on behalf of the broker.
  5. They confirm the body corporate paid the insurance excess.
  6. They provide evidence as to the source and cause of the water ingress.
  7. They provide evidence of expenses incurred.
  8. While there has been recent progress and improved responsiveness from relevant parties, that was not the case for an extended period.
  9. The body corporate has a general duty to maintain the building. In this instance, corrosion to the roof was the source of the leak, establishing a direct connection to the body corporate's maintenance responsibilities.
  10. The actions or inaction of the BCM and insurance broker influenced the handling of this matter. It may have contributed to delays and misunderstandings.

• [13] The applicant says they want the body corporate to accept responsibility for the damage to their lot, resulting from the damage to the roof, and to make good all the damage. They then seek 6 specific orders. In deciding this application, I will consider note the legislation regarding insurance. I will then address the particular issues raised by the orders sought.

• [14] The Accommodation Module sets out detailed provisions regarding the insurance arrangements for a community titles scheme.[10] This includes a requirement, in a scheme created under a building format plan of subdivision (which Baden East is), to insure each building containing a lot for full replacement value.[11]
• [15] The legislation requires the body corporate to hold building insurance to protect the property interests of owners and occupiers as well as the body corporate. Accordingly, owners and occupiers have a right, whether directly or via the body corporate, to make claims on that insurance for any property damage that is covered by the insurance policy.
• [16] It is for the insurer (rather than the committee or its BCM) to determine whether any damage or related costs are covered by the insurance policy and the claims process.
• [17] But it is important to understand that insurance coverage and responsibility for damage can be very different. Whether or not damage claimed is covered under the body corporate's insurance policy is not determinative of who is liable for the damage. For example, if damage to a lot occurred because of a failure of the body corporate to maintain common property in good condition, the body corporate may be liable for repairing the damage or reimbursing the owner or occupier for repairs within the lot regardless of whether the damage is covered by the insurance policy. And while owners and occupiers are normally responsible for having their own contents insurance, if contents are damaged as a result of a body corporate breach the body corporate may be liable for that damage. Conversely, claims may be covered under the body corporate's insurance policy regardless of who is liable for the damage.
• [18] That means that regardless of who lodges and pursues an insurance claim, and whether damage is covered under the body corporate's building insurance, there is a reasonable expectation on the body corporate to be notified of and involved in the process if it relates to damage that it was or may have been liable for.

• [19] The applicant wants the body corporate to accept its responsibility for the damage.
• [20] It appears the water damage to Lot 27 occurred on 20 November 2024. The applicant says it is uncontested that rain came in through the roof and then into the kitchen ceiling.
• [21] The applicant says they were advised on 26 November 2024 that a plumber had repaired the flashing on the roof. But the applicant says a building inspection in March 2025 raised further concerns about the roof. In May the BCM apparently said the damage was believed to be caused by rusting roof screws that would be repaired when other work occurred. The applicant says the BCM advised in June the roof had been repaired. An invoice dated in June refers to work in May to remove old Foxtel conduit and boxes from the roof 'that had been causing the roof to leak' because saddles were incorrectly installed with no washers, causing corrosion.
• [22] After the insurance claim was then lodged in June, the insurer's assessor inspected the lot in July. Their report says the damage to the lot was the result of rainwater ingress through the roof. It said water ran through the overhead cabinetry, down the wall, and over and under the kitchen cabinetry. Given that mould kept appearing, it suggested mould spores were present under the cabinets. It recommended a full replacement of the kitchen cupboards and benchtops and matching items, with flooring to be checked for mould.
• [23] It is evident, and not disputed, that the roof of the Baden East building is common property. The body corporate has a statutory responsibility to maintain the common property, including the roof, in good and structurally sound condition.[12]
• [24] The uncontested existence of water ingress from the roof evidences the roof was not in good condition in November 2024. Accordingly, I am satisfied the damage to Lot 27 arose from the body corporate's failure to maintain the common property roof in good condition. It follows that the body corporate is liable for the resulting damage to the lot. To avoid any further dispute on the point, I consider it appropriate to make a declaration to that effect.
• [25] The body corporate appears to take the view that this dispute is simply a matter between the applicant and the insurer. That is not correct. Where the damage to Lot 27 arose from a defect or maintenance failure on common property, the body corporate is responsible. That liability exists regardless of whether the body corporate's insurance policy covers the damage. The body corporate will be liable for any repairs that are not covered by the insurer.

• [26] The applicant wants the body corporate to cover the 'insurance claim application charge'.
• [27] On 26 November the applicant contacted the BCM about the insurance claim process. On 29 November an 'insurance claims consultant' from a company associated with the BCM contacted the applicant. They advised there were fees associated with the claim, including an 'insurance lodgement charge' of $126 applicable at the time of lodgement of the claim with the insurer. They said the amount was calculated based on the anticipated time to process the claim. They said they 'assumed' the applicant accepted those charges when lodging the claim with the insurer on the owner's behalf. Some time later, the applicant queried the fee.
• [28] Although the submitted material is not entirely clear, it appears the 'lodgement charge' or 'application fee' is imposed by the BCM or an associated company for its time in lodging the insurance claim with the insurer. It is not evident the charge is imposed by the insurer.
• [29] Regardless of what it considers fair or justifiable, a body corporate can only pass on costs to owners or occupiers or impose fees if there is a specific legislative power to do so.[13] A body corporate's administrative costs are met by contributions levied on all owners. I do not consider there is any legal basis for the body corporate (either directly or through an agent) to require an owner or occupier to pay an administrative charge to enable a claim to be lodged on the body corporate's insurance policy. It may be the BCM's contract of engagement allows it (or an associated company) to charge a fee for additional administrative tasks such as actioning insurance claims. But that engagement is between the body corporate and the BCM. Owners and occupiers are not party to that engagement. The fees for services delivered under the BCM's engagement, or any other agent the body corporate chooses to engage, are the responsibility of the body corporate. The body corporate and its agents have no authority to pass such administrative charges onto individual owners and occupiers.
• [30] The situation may be different if owners or occupiers had the option lodge a claim directly with the insurer in a manner that did not incur an administrative fee. In that case, it may be that a provider could explicitly offer a separate service in which owners or occupiers could choose to engage the provider privately to assist them in pursuing an insurance claim. But a compulsory charge for all claims made under the body corporate's insurance would need to be part of the agreement between the body corporate and its agent and paid by the body corporate.
• [31] Here it does not appear the applicant was informed of any option to lodge a claim directly and without incurring the charge. The charge was presented as a necessary component of lodging a claim against the body corporate's insurance policy. On the submitted evidence, I do not consider that charge could lawfully be imposed on the applicant.
• [32] The applicant now says they have not been required to pay the disputed charge. But I am unclear whether it could still be passed onto the applicant, given the original correspondence.
• [33] In the circumstances, I will make a declaration that the owner is not liable for a fee to lodge a claim under the insurance policy. If any entity purports to charge an insurance claim lodgement fee, that would be a matter for the body corporate under the terms of the relevant engagement. If the charge is not provided for under the engagement, the body corporate could dispute the charge with entity purporting to impose it.

• [34] It appears that a $2,000 excess applied under the insurance policy for the claim in question. The applicant wants the body corporate to cover that excess.
• [35] Initially the applicant was told the lot owners were responsible for the excess. However, the body corporate subsequently indicated it would pay the excess and the applicant has confirmed that it did. Notwithstanding that, where the committee submits that it is not legally liable for the excess, it remains appropriate to consider the excess.
• [36] The legislation sets out the following about insurance excesses:
  1. Excess [SM, s 203]

(1) Despite a requirement under this part to insure for full replacement value, the body corporate is not prevented from insuring on the basis that an excess is payable on the happening of an event for which the insurance gives cover.

(2) However, in putting the insurance in place, the body corporate must ensure the arrangements for the liability for an excess under the insurance would not impose an unreasonable burden on the owners of individual lots, having regard to subsections (3) and (4).

(3) For an event affecting only 1 lot, the owner of the lot is liable to pay the excess unless the body corporate decides it is unreasonable in all the circumstances for the owner to bear the liability.

If a shower screen is damaged in a lot and an insurance claim is made under the body corporate's reinstatement insurance, the owner of the lot would be liable under subsection (3) to pay the excess unless the body corporate decides it is unreasonable for the owner to be required to pay it. However, if there is a fire within a lot caused by a short circuit in electrical wiring located in an internal partition, the body corporate might decide it would be unreasonable for the owner to be required to pay the excess.

(4) For an event affecting 2 or more lots, or 1 or more lots and common property, the body corporate is liable to pay the excess unless the body corporate decides it is reasonable in all the circumstances for the excess to be paid for by the owner of a particular lot, or to be shared between owners of particular lots, or between the owner of a lot and the body corporate, or between owners of particular lots and the body corporate.

• [37] To determine the basis for liability for an insurance excess, it is immaterial how many parts of the scheme were damaged or were the subject of an insurance claim, or who was involved in the claims process. The only relevant question is how many lots or common property were involved in the insured event (as distinct from the claim).
• [38] On the submitted material, it is apparent the event giving rise to the claim in this case affected more than just the applicant's lot. As the water ingress came from the common property roof, the event affected the common property as well as the lot. Accordingly, I consider it is section 193(4) of the Accommodation Module, rather than subsection (3), that applies to this claim.
• [39] Under that section the default position is that the body corporate is liable for the excess. The body corporate could decide to require one or more owners to pay or share the cost of the excess, if appropriate in the circumstances, but it could not automatically pass on the excess. And the body corporate had to act reasonably in making that decision, pursuant to section 193(4), as well as under its general statutory responsibility to act reasonably.[14]
• [40] I have been given no evidence that any owner or occupier of Lot 27 was responsible for or contributed to the event that resulted in damage to Lot 27 or caused or contributed to the damage itself. Rather, the evidence is that the water ingress arose from a defect on the common property roof which the body corporate has a statutory obligation to maintain.[15] Accordingly, I am satisfied the body corporate was always liable for the excess. For completeness, I will make a declaration to that effect.

• [41] The applicant claims reimbursement from the body corporate of work undertaken to date, and for any further work they consider appropriate until the matter is resolved.
• [42] At this time the applicant claims $350 for a building inspection obtained in March 2025 and $209 for a mould clean undertaken in June. They provide evidence of these expenses. The applicant says the expenses would not have been necessary if the body corporate had moved more quickly. They also say they had conflicting advice from the body corporate about the roof repairs, first being told that it had been repaired and later that it had not. They say the items were not included in the initial insurance claim as they were not aware they could be.
• [43] The body corporate did not dispute the amounts claimed but said they believed they would be covered by the insurance.
• [44] I am satisfied the costs claimed relate to ascertaining and remedying mould damage to Lot 27 caused by the body corporate's failure to maintain the roof in good condition.[16] I consider it is appropriate that the body corporate reimburse the applicant for those amounts.
• [45] It may be the costs could be claimed under the building insurance even though they were not included in the original claim. But given the protracted history of this matter, I consider the body corporate should now take responsibility for ascertaining if those expenses can be added to the claim and whether they will be covered by the insurer. If not, I consider the body corporate should reimburse those amounts. I will make an order to that effect.
• [46] However, I cannot make orders about future unspecified works. If the applicant incurs other expenditure related to the water ingress damage to Lot 27, they could contact the insurer about whether that expenditure is claimable. If it is not, the applicant could submit a motion to the body corporate seeking reimbursement. The body corporate would need to act reasonably in considering any request for reimbursement noting its liability for the damage to Lot 27.

• [47] The applicant wants the body corporate to cover the cost of mediation and adjudication.
• [48] The applicant paid an application fee for both the conciliation and the adjudication applications. However, the Act provides a low-cost dispute resolution process in which parties are normally responsible for their own costs. There is no inherent authority of an adjudicator to award costs to any party,[17] and no such general authority is provided for in the legislation.
• [49] The only capacity to award reimbursement of application fees to an applicant arises if a respondent fails without reasonable excuse to participate in conciliation.[18] Although a conciliation session did not proceed in this case, the conciliator did not end the conciliation for that reason. Accordingly, there is no basis for me to make the order sought.

• [50] Next the applicant wants the body corporate to 'move with speed' to deal with and 'take ownership of' the insurance claim.
• [51] The arrangements for making and pursuing insurance claims differ across bodies corporate. In some, there is a preference for the body corporate to lodge and manage insurance claims, or for a BCM to lodge on behalf of the owner or occupier. In others, there is a preference for owners and occupiers to lodge directly. Different insurers and brokers may have different preferences. As I understand it, insurers must allow an owner or occupier to make a claim directly, without going through the body corporate or its BCM, because they have an insurable interest in the insurance policy. This is referred to as being a 'third party beneficiary'.[19]
• [52] However, the question here is not whether the applicant or the body corporate could lodge and pursue the insurance claim. Rather the question is whether the body corporate had to.
• [53] There is no express provision of the legislation that requires a body corporate to lodge or pursue an insurance claim. Rather, any obligation would simply be governed by the general statutory obligation on the body corporate and its committee to act reasonably. For example, it may be unreasonable for a body corporate to refuse to allow a claim to be lodged for damage to a lot because it does not think it is responsible or covered for the damage, or it does not want to pay the excess, or it does not want risk its premiums increasing due to claims being made. But particularly where a claim only relates to damage one lot, it is not necessarily unreasonable for a body corporate to prefer the owner or occupier to take on the administrative responsibility of lodging and following up the claim. Furthermore, a body corporate will usually have no control over the process the insurer follows in a claim, how long it takes the insurer to process and decide the claim, and the insurer's decision on the claim.
• [54] Notwithstanding that this insurance claim only related to damage to Lot 27, it arose from a defect on common property that the body corporate was responsible for. In that circumstance, a reasonable body corporate may have taken a more active role in lodging and/or following up the claim. But as the claim has been lodged and is well advanced, I do not consider there is any utility in an order requiring the body corporate to take over the claims process.

• [55] The next issue is the responsibility for the repair works. The fifth order was dependent on the outcome of the claim. If the claim was approved, the applicant wanted the body corporate to carry out and oversee the works in a timely manner. If the claim was not approved, they wanted the body corporate to carry out and pay for repairs in a timely manner.
• [56] If the claim had not been approved, the body corporate would have been liable for the repairs and orders that it facilitate repair works might have been warranted. However, the applicant has confirmed the insurer has now accepted the claim, that a contractor has been engaged, and that rectification works are proceeding. It appears the timing and oversight of the work is now a matter for the insurer and its contractor, in conjunction with the applicant. It is not evident that the body corporate is involved in that process, or why it should be. Accordingly, the applicant has not established that orders on this point are currently required.

• [57] Finally, the applicant seeks a written apology to themselves and their tenant.
• [58] This matter has undoubtedly been very frustrating for both the lot owners and their tenants. Unfortunately, it is not uncommon for insurance claims relating to damage in a body corporate to be time-consuming and confusing. However, in this case, it appears that may have been exacerbated by unclear processes, poor communication, and a misapprehension of the law, as well as the apparent absence of a functioning committee at times.
• [59] The applicant particularly says they had difficulty pursing the insurance claim because they did not have evidence (as required on the claim form) that the cause of the damage had been repaired. It is not clear to me why the claim form used by the body corporate or its agent required that evidence before the claim could be submitted. It is not necessarily a requirement of insurers in my experience. And it is unclear why the body corporate took so long to undertake the repairs it was responsible for, particularly where that was delaying the claim.
• [60] I have some concern that the body corporate and its committee have failed to meet their statutory responsibility to act reasonably in regard to this matter. The submitted material does not evidence that the body corporate did 'everything possible' to facilitate the claim, as the committee claims. I encourage the body corporate and its agents to better inform themselves as to the legal responsibilities relating to insurance claims and to provide clearer communication in future about insurance claims.
• [61] However, the question for me now is whether the particular order sought is warranted.
• [62] The issuing of apologies is not contemplated as a remedy in the Act, although the range of orders available to an adjudicator is not limited by the express terms of the legislation.[20] But an adjudicator can only make orders to resolve a dispute. I am not convinced that requiring an apology would be of any real assistance in remedying any continuing matters in dispute. A mandatory apology may be insincere and tokenistic. In the circumstances, while I acknowledge the applicant's concerns, I decline to order an apology.

• [63] I am satisfied it is appropriate to make a declaration that the body corporate is liable for the water ingress damage to Lot 27 that occurred in November 2024. I will also make declarations that the body corporate is liable for the excess and any lodgement charge applying to the insurance claim and (unless covered by the insurer) for the mould-related expenses incurred by the applicant. However, for the reasons outlined, I will dismiss the other orders sought.

[2] Sections 227, 228, 276 and schedule 5 of the Act

[10] Chapter 8, Part 6 of the Accommodation Module

[11] Section 188 of the Accommodation Module

[12] Section 170 of the Accommodation Module

[13] See for example Chevron Renaissance [2020] QBCCMCmr 358

[14] Noting sections 94(2) and 100(5) of the Act

[15] Section 170 of the Accommodation Module

[17] See for example: Spicer v Carmody; Robinson v Carmody [1948] NSWStRp 25, Queensland Fish Board v Bunney, Ex parte Queensland Fish Board [1979] QSCFC 11

[19] See section 48 of the Insurance Contracts Act 1984 (Cwth)

[20] Noting section 276(3) and schedule 5 of the Act