Camden [2025] QBCCMCmr 116 (3 April 2025)

PROPERTY DAMAGE - where water leaked into the applicant's lot - whether caused by the respondents' failure to maintain - whether respondents are responsible for repairing the leak and reimbursing the applicant for damaged property.

Act, ss 20, 281; Standard Module, ss 180(3)

1. Within 14 days of this Order, the respondents Sonja Varglien and Jean Haddad must pay to the applicant the sum of $1,519.28, as their share of reimbursement for property damaged by the water leak to the applicant's lot.
2. The application is otherwise dismissed.

• [1] This application concerns a water leak.
• [2] The applicant is the co-owner of Lot 11. The respondents own Lot 2. The applicant's garage is located directly below the respondent's ensuite.
• [3] On 7 January 2024, the applicant discovered water through his garage floor.
• [4] On 12 January 2024, the body corporate's plumber, Mr Parker inspected the property. He identified 2 leaks in the pipework located within the concrete slab that separates the ensuite and the applicant's garage. He also found a blockage in the drainpipe. The blockage was cleared but to date, the leaks remain unrepaired. The occupant of Lot 2 has not used the ensuite shower since being notified of the leak.
• [5] The applicant seeks orders for the respondents to repair the leaks and to reimburse him for personal items in his garage that were damaged as a result of the water ingress.
• [6] The applicant alleges that the leaks were caused by the respondents' ensuite renovations. Specifically, the applicants say the respondents failed to comply with their statutory maintenance obligations during their renovations by:
  1. Installing a puddle flange to their shower floor that was not adequately sealed, resulting in water escaping the pipework and causing a major leak to his garage below.
  2. Installing a pipe reducer that was also not watertight which allowed a second but much smaller drip into his garage.
  3. Causing a blockage in the drainpipe. This blockage resulted in the backflow of water which then leaked out the non-watertight joints described above.
  4. Failing to appropriately test the puddle flange at the time of installation to ensure it was watertight.
• [7] The respondents deny responsibility for the leaks. They say:
  1. The puddle flange was correctly installed and watertight at the time of installation.
  2. The pipe reducer was not installed by them; it pre-existed the renovations.
  3. It was the blocked pipe that caused the leak, but they are not responsible for the blockage. The pipe is common property utility infrastructure that the body corporate is responsible for maintaining and so the body corporate is liable for the leak and any resulting damage.
• [8] The primary issue to be determined is whether the respondents have breached their statutory obligations resulting in damage to the applicant's lot. If so, I will then consider whether there is any basis to order the respondents to repair the leaks, and to reimburse the applicant for the damaged property.

• [9] Camden is a multi-storey apartment community titles scheme comprising 15 lots and common property, registered under Building Units Plan 4149. The scheme is regulated by the Standard Module.
• [10] I am satisfied that this matter falls within the dispute resolution provisions.[1] An adjudicator may make an order to resolve a dispute in the context of a community titles scheme between lot owners regarding a claimed contravention of the Act.[2]
• [11] The parties initially attempted department conciliation but failed to reach an agreement.
• [12] The application seeks orders to the following effect:
  1. That the respondents fix the leaks in the puddle flange and pipe reducer connections that they installed as part of their shower renovations.
  2. Within a week of fixing the connections, the respondents to provide the results of a 48hour flood test of the puddle flange and reducer. The test is to be carried out by an appropriately qualified and independent tradesperson and the applicant is to be notified of the testing so they can monitor their garage for any leaking.
  3. Within 7 days of the order, the respondents to pay the applicant an amount of $3,038.56 as reimbursement for property damaged by the water leakage.
  4. A declaration that the respondents are responsible for implementing any new regulatory requirements that may arise from the work carried out to the ensuite shower utility drain penetration, including the installation of a fire collar.
• [13] The commissioner invited submissions on the application. Submissions were received from the respondent, the committee and 5 individual lot owners. The applicant inspected the submissions and made a reply. The application was then referred to departmental adjudication.

• [14] Section 281(1) of the Act provides that if an adjudicator is satisfied that the applicant has suffered damage to property because of a contravention of the Act, the adjudicator may order the person believed, on reasonable grounds, to be responsible for the contravention:
  1. to carry out stated repairs to the damaged property; or
  2. to reimburse the applicant for repairs carried out to the property.
• [15] In order for the applicant to make a successful claim under section 281, he must satisfy me on the balance of probabilities that he suffered damage to property as a result of the respondents' failure to comply with their legislative obligations. The onus is on the applicant to prove his case.

• [16] For a scheme created under a building units plan of subdivision[3], the boundaries are defined by the structural elements of the building, including the floors, walls and ceilings. 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.[4]
• [17] The body corporate is responsible for maintaining common property in a good and structurally sound condition.[5] Common property includes all utility infrastructure (such as pipes and cables) other than utility infrastructure that is:
  1. solely related to supplying utility services to a lot; and
  2. within the boundaries of the lot; and
  3. located other than within a boundary structure for the lot.[6]
• [18] However, the body corporate is not responsible for maintaining fixtures or fittings installed by the occupier of a lot if they were installed for the occupier's own benefit.[7]
• [19] A lot owner must maintain their lot in good condition.[8] A lot owner must also maintain in good condition the utility infrastructure within the boundaries of the lot, and not part of common property and, if the utility infrastructure is in need of replacement, must replace it.[9]
• [20] The body corporate may authorise an owner to make an improvement to the common property for the benefit of the owner's lot.[10] The owner must maintain the improvement in good condition unless excused by the body corporate.[11]
• [21] Regarding the statutory duty to maintain, the District Court of Queensland has said:[12]

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.

• [22] In another case, the District Court applied a Supreme Court of New South Wales case which said the duty to maintain:[13]
  1. 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 serve the purpose for which it exists;
  2. 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. extended to require remediation of defects in the original construction of the common property; and
  4. extended 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.
• [23] In the context of an owner's statutory obligation to maintain their lot in 'good condition', there would similarly be a duty to: take preventative measures to prevent malfunction; to ensure that all elements of the lot are kept in a condition that enables them to operate properly and serve their intended purpose; and to rectify defects as soon as they occur.

• [24] The parties do not agree on the cause of the leak. I will attempt to outline their respective positions below.
• [25] The applicant submits:
  1. The puddle flange installed by the respondents was not connected with a watertight seal to the pipe reducer that was installed onto the utility drainpipe. The body corporate's plumber who identified the sources of the leak found that the connection between the puddle flange and the new reducer, and the connection between the new reducer and the common property drainpipe, both leaked. These 2 connections were installed by the respondents' plumber. The leaks allowed water to escape down the outside of the drainpipe and into the applicant's garage.
  2. The respondents are responsible for maintaining the puddle flange installed in Lot 2's shower. As such, the leak from its connection to the reducer is also their responsibility. They have installed both fittings for their own use. Section 180(3) provides that the body corporate is not responsible for maintaining fixtures or fittings installed by the occupier of a lot if they were installed for the occupier's own benefit.
  3. The volume of water that resulted from the leaks was due to a blockage found further down the utility drainpipe. That blockage forced the backflow of water until it reached the level of the faulty puddle flange connection. At this point, the water leaked out through the unsealed puddle flange connection, down the outside of the drainpipe into the garage. Had the puddle flange been connected properly, the backed-up water would have filled the drainpipe to the shower floor level and would have flooded the respondents' shower instead and there would have been no flooding in the applicant's garage. There would have still been a small drip from the second leak, but the damage would have been minimal.
  4. The blockage was caused by the respondents' builder and tradesmen and not by any failure of the body corporate to maintain the drainpipe, such that even if one takes the position that the blockage was the cause of the leak, the responsibility for the damage still lies with the respondents. The drainpipe only services the ensuite of Lot 2. There is no other way for any blockage material to get into the utility pipe other than down the drainpipes inside the respondents' ensuite. There is no evidence of the blockage existing prior to renovations starting; the only plausible hypothesis is that it was caused by the builders during renovations.
  5. The respondents' builder and plumber did not conduct any proper testing of the puddle flange's installation prior to the respondents using the shower. Had they done so, they would have found the faulty puddle flange connection, and it should have been fixed before the shower was used. The failure to properly test the new puddle flange before use of the shower contributed to the respondents' breach of their obligation under s211(3) of the Standard Module to maintain their property in good condition.
• [26] The application includes a report from the body corporate's plumber, Mr Parker, dated 15 January 2024. In it, he states:

The outcome is there are two leaks between the existing 40mm pipe work and the puddle flange fitted by the water proofer. One leak is the join between the puddle flange and pipe work and the other, just slightly lower on the glued reducer between the 40 and 50mm pipe work. I believe that the pipe work going up into the floor penetration should be removed and a new section fitted with water tight joints and then tested.

• [27] Mr Parker also reported that there was a blockage in the floor drain that he cleared but that "[b]ecause of the depth of the drain, I could not retrieve the cause of the blockage but instead it was broken up and continued down the main sewer line."
• [28] Following the receipt of this report, the co-owner of Lot 11, wrote to Mr Parker on 15 February 2024 and posited to him the following:

(1) You located two leaks between the existing 40mm utility shower drain pipe work and the new puddle flange fitted by the builder's water proofer and/or plumber as part of the shower renovations.

(2) The first leak was a major leak from around the connection of the new puddle flange into the 50mm drain pipe. This was the cause of the large volume of water that escaped during your test. This was only able to occur because there was no waterproof seal or connection between the puddle flange outlet and the utility 50mm drain pipe. This is because of faulty workmanship by the builder's subcontractors.

(3) This leak was only apparent because there was a blockage or partial blockage in the drain pipe and the U-bend it connected to. When water backed up to the point that it was above the top of the 50mm drain pipe it then overflowed through the unsealed connection with the puddle flange and spilled down the outside of the pipework into the garage where some of it was caught in a number of buckets.

(4) If the puddle flange had been connected properly water would have pooled in the ensuite shower and it would not have flooded into the garage below. In that respect it was the faulty puddle flange connection that caused the major leak and damaged the items in the garage below. This makes it the responsibility of the owner, the builder and his subcontractors to fix.

(5) When you cleared the blockage, you were not able to retrieve any of the material that caused it. This indicates that it was not the normal mixture of hair, grease, fat, oils etc. that one normally expects.

(6) You were unwilling to say with 100% certainty in your report exactly what the blockage material was. However would you agree that, given your many years of experience, the fact that the blockage material was not able to be retrieved by your tool but could be broken up, the fact that the shower had just been renovated with new waterproofing and tiling, and the appearance of the collected material when the leak test was done, that by far the most likely cause of the blockage would be either concrete rubble from the demolition of the original tiling and / or tiler's screed which had fallen into the pipework during tiling?

(7) The PVC drainage pipework in the garage of unit 11 only services the ensuite of Unit 2. There is no way the blockage material could have got into the system except via one of the waste pipes in the ensuite. That is from the floor waste, shower waste or wash basin waste pipes.

(8) Given that there were no leaks from the shower prior to the renovations commencing it seems to be the case that both the faulty flange installation and the blockage were both caused by the renovation.

(9) After the blockage was cleared a small leak of about one drop every seven seconds was noticed from the step-down join from the 50mm pipe connecting to the puddle flange and the 40mm pipe which runs to the U-bend. Considering there was no leak in this location before the renovation work commenced, I believe it must have occurred during the renovations.

• [29] Mr Parker replied to the above email with the statement that "[t]he nine points that you have raised are correct." No further comments were provided. The applicant relies on this email exchange as confirmation of the causes for the leaks to their garage.
• [30] The respondents submit that the applicant has not met the burden of proof in respect of his allegations. They say:
  1. Mr Parker simply agreed with the 9 propositions put to him by the co-owner of Lot 11 that were consistent with the applicant's case of what had transpired. Mr Parker provides no reason for that stated agreement. On 24 October 2024, the respondents emailed Mr Parker seeking clarification of his report, but Mr Parker did not respond.
  2. The conclusions reached by Mr Parker in his report are in error. The puddle flange was correctly installed and tested to confirm correct installation. The respondents' builder confirmed that the join where the puddle flange inserted into the existing pipework was watertight at the time of installation. Accordingly, there was no defective connection between the reducer and the puddle flange.
  3. The respondents did not install the reducer and believes it was part of the original construction of the scheme or installed by a previous owner. The reducer is utility infrastructure that the body corporate is responsible for maintaining. The respondents are not responsible for any defective connection between the reducer and the drainpipe.
  4. Even if water leaked at both the first joint and the second joint, the proportions to which they are responsible for the water ingress are not able to be established.
  5. It was the blocked pipe that caused water to leak from the first joint and not any part of the renovation. The blockage was in the drainpipe which is utility infrastructure that the body corporate is responsible for. The body corporate has failed to carry out maintenance, including preventative, of the aging infrastructure, resulting in the blockage and consequent leak. The respondents did not cause the blockage. As such, there is no shared responsibility. Rather, the leak is wholly the body corporate's responsibility.
  6. Even if the respondents have some responsibility (which is denied for the above reasons), it is not possible to apportion that responsibility between the body corporate and the respondents in the circumstances, such that the body corporate should bear the cost of the repairs and damage.
  7. Responsibility for the fire collar depends on whether it is required due to, or independently of, the renovation. As no changes were made to the drainpipes under the ensuite, the fire collar was not required as a result of the renovation and so is the body corporate's responsibility.

1. No-one saw the actual leak; any description of the leak including the flow and volume of the water is theoretical.
2. There have been previous leaks in the garage.

• [31] The committee also made a submission in support of the application, stating:
  1. The sole responsibility for repairing the leaks lies with the owners of Lot 2.
  2. Drainpipes are generally considered to be common property, unless they service only one lot, in which case they are the responsibility of the lot owner to maintain. In this case, the drainpipe only services the ensuite shower of Lot 2. The new fittings and the leaks are within the boundary of Lot 2, in the upper half of the slab. Therefore, Lot 2 is responsible for fixing the leaks.
  3. If it is deemed that the drainpipe is common property, then Lot 2 must seek body corporate permission to modify it. This did not occur. Hence without permission, Lot 2 is solely responsible for repairing the faulty work which took place without permission.
  4. The owners of Lot 2 claim that they "inherited" a blocked drain. This was not the case, as the previous tenants used that shower without any problems. Given that the blockage was due to material entering the drain during renovation work, the committee passed the plumber's invoice to the owners of Lot 2; they voluntarily paid that debt.
  5. The claim that the fire collar is missing is a non-issue, as it was never there, and did not need to be there.
• [32] Four lot owners made submissions in support of the application, claiming that the leaks resulted from the respondents' renovations and that the respondents should therefore be liable for the repairs and damage.
• [33] One lot owner made a submission opposing the application. He says:
  1. It is not possible to say conclusively what caused the blockage in the pipe as no material was retrieved.
  2. It is also not possible to say conclusively whether the blockage caused the leaks by adding pressure to the joints through the build-up of water in the pipe, or that the blockage highlighted that the pipes could be in poor condition, or that the leak where the puddle flange meets the existing pipework was a result of poor workmanship.
  3. The plumber's report states, "that the pipe work going up into the floor penetration should be removed and a new section fitted with water tight joints". This suggests that there are problems with the existing pipework and as it forms part of the body corporate infrastructure, the replacement of the pipework (and possible compensation to the applicant) is a body corporate responsibility.

• [34] Based on the report of the body corporate's plumber, Mr Parker, I accept that there were 2 leaks, being:
  1. At the connection between the puddle flange and the reducer (first joint); and
  2. At the connection between the reducer and the drainpipe (second joint).
• [35] I note the respondents allege that there have been previous leaks in the applicant's garage, but they have not substantiated how any former leaks are relevant to the present dispute.
• [36] It is common ground that the 2 joints where the current leaks were identified are in a section of pipework located within the slab separating the 2 lots. It appears there is some misunderstanding as to who is responsible for maintaining this pipe.
• [37] As outlined earlier, common property includes all utility infrastructure forming part of scheme land, other than utility infrastructure that is:

1. solely related to supplying utility services to a lot; and
2. within the boundaries of the lot; and
3. located other than within a boundary structure for the lot. (My underlining)

• [38] Section 20(3) of the Act defines "boundary structure" as a floor, wall or ceiling, other than a false ceiling, in which is located the boundary of the lot with another lot or common property.
• [39] The concrete slab below Lot 2's ensuite and that forms the ceiling of Lot 11's garage contains the boundary of the 2 lots. It is therefore a boundary structure. I understand the drainpipe only services Lot 2, and that the section where the leaks were identified are within the boundary of Lot 2. However, as the pipe penetrates the slab, it is located within a boundary structure and therefore common property under the Act. Prima facie, the pipe is utility infrastructure that the body corporate is responsible for maintaining.

• [40] While generally speaking, the body corporate is responsible for maintaining common property, it is not responsible for maintaining those parts installed by an occupier of a lot for the occupier's own benefit. As the respondents installed the puddle flange, the respondents are responsible for maintaining that fitting. It is also arguable that the puddle flange was an unauthorised improvement to common property, which becomes the owner's obligation to maintain unless excused by the body corporate. The question is whether the respondents failed to maintain the fitting resulting in the leak at that connection.
• [41] I note the respondents' waterproofer provided the following statement accompanied by a Form 43 Aspect certificate certifying work has been completed to all required building codes and standards:

I completed the internal waterproofing to the wet area in unit 2's ensuite, the work included removal of the old shower waste and insertion of a new compliant puddle flange into existing pipework (Plastec brand). The puddle flange installed was a push-fit installation that is inserted directly into the PVC pipework, it doesn't require to be glued into pipework to create a watertight join, the rubber grommet creates the watertight seal.

• [42] The applicant argues that regardless of whether it is a glued join or a rubber seal, the connection of the puddle flange to the pipe was not watertight as evidenced by the leak. On this point, I agree with the applicant. Regardless of the type of product or how it was installed, or whether it was watertight at the time of installation, the fact of the matter is that the puddle flange did not operate as it should to provide a functional seal when the shower was used following the renovations. As mentioned earlier, a lot owner's duty to maintain their lot includes ensuring that all elements of the lot are kept in a condition that enables them to operate properly and to serve their intended purpose. In this case, the duty to maintain requires the respondents to ensure that the puddle flange, a fitting installed by them for their own benefit, serves its intended purpose. Given the leak identified by Mr Parker at the first joint, I am satisfied the puddle flange failed in this instance, constituting a maintenance breach by the respondents.
• [43] The respondents deny that the leak was caused by a defective puddle flange connection but provide no alternative reason for the leak identified at that joint. I note one owner argues the leak could be a result of aging pipes and the added pressure on the joints from the build-up of water. In my view, while those factors could have contributed to the force of the leak, it still remains that the puddle flange did not provide a watertight connection. As the applicant argues, if the puddle flange connection had been watertight, water would have backed up into the respondents' shower floor rather than flooding their garage.
• [44] On balance, and in the absence of contrary evidence, I am satisfied that the failure of the puddle flange to provide a watertight connection is one cause of the water ingress to the applicant's lot.

• [45] Mr Parker's report also identified a second, and seemingly smaller leak between the reducer and the drainage pipe. The applicant originally asserted that the reducer was installed by the respondents during their renovations and as such, they are also liable for this secondary leak.
• [46] The respondents deny installing the reducer. Their builder states that no pipework was altered below the puddle flange, and that the puddle flange was inserted into existing pipework as this was a cosmetic shower renovation.
• [47] In his reply, the applicant concedes that the respondents may not have installed the reducer but says it must have then been installed by a previous owner of Lot 2. The applicant argues that a reducer is a plumbing fitting, the purpose of which is to facilitate access to the common property drainage infrastructure. Accordingly, the applicant says the reducer would not have been installed by the body corporate nor would it have been part of the original construction of the building. The applicant points to the Australian Standard markings on the reducer which he says suggests the fitting was manufactured or installed sometime after 1984 when the relevant standard came into effect. As such, the applicant argues that the reducer fitting could not have been part of the original construction of the building in 1981.
• [48] Even if I were to accept the applicant's research that the reducer was installed post construction of the building, this does not persuade me that maintenance of the reducer must be the respondents' responsibility. Apart from the applicant's own speculations, there is nothing to suggest when the reducer was installed, by whom and upon what conditions. That being the case, in my view, the default position is that the reducer forms part of the drainage pipe that is the body corporate's duty to maintain.
• [49] The applicant argues that even if the reducer was installed as part of the original common property drainage infrastructure, this does not alter the respondents' liability as he says the leak was caused by the respondents' builder during the renovations. The applicant has provided no evidence to support this claim. Simply because the leak did not exist before the renovations does not necessarily mean it was caused by the renovations thereby transferring the maintenance obligation from the body corporate to the respondents. The body corporate remains responsible for maintaining the common property drainpipe, including the reducer. If there is proof that the respondents damaged the pipe, the body corporate may have separate recourse against the respondents for any costs incurred.
• [50] Having considered the limited evidence, I am not satisfied that the leak at the second joint is attributable to the respondents. In any event, I note the applicant says this secondary leak is not responsible for the flooding of his garage as it is only a small drip, of about one drop every 7 seconds. He says this leak's contribution to the damage that occurred can be regarded as negligible. In the circumstances, on the overall evidence submitted, I accept that the leak from the second joint was minimal. As such, I have not included it as a primary cause of the water ingress to the applicant's lot.

• [51] The respondents deny that a faulty puddle flange connection caused the leak. Rather, they contend that the leak resulted from a blockage in the drainpipe that forced the water to flow back up the pipe. It is undisputed that once the blockage was cleared, there was no further leak from the first joint. In referring to the testing conducted by Mr Parker, the applicant stated that once the pipe was unblocked, "gravity ensured almost all the water flow from the shower went past the leaky puddle flange connection down the inside of the drainpipe." I accept that had the blockage not occurred, the pipe, at least at the first joint would not have leaked. I am satisfied then that the blocked pipe was also a cause of the water ingress to the applicant's garage. I now turn to the question of responsibility for the blocked pipe.
• [52] The applicant alleges that the respondents caused the blockage during their renovations when either, or both, of the following occurred:

a) Concrete dust and rubble were allowed to fall into the ensuite waste utility drainpipe during the removal of the original shower drain, the demolition of the old ensuite's tiling floor and the shower's tile base.

b) Tiler's screed of a concrete and sand mix was allowed to fall into the ensuite waste utility drainpipe during the tiling of the ensuite's new shower bed.

• [53] The applicant says this is supported by the fact that a cementitious mixture was found on his personal items that were directly under the leaks and the same material was collected when they caught water from the leaks during the investigations carried out by Mr Parker on 12 January 2024. The applicant contends that in the absence of any other plausible alternative hypothesis, it is "beyond reasonable doubt" that the respondents' builders caused the blockage during the renovation work and that the blockage consisted of concrete dust and rubble that fell into the utility drainpipe.
• [54] The respondents provided a statement from their tiler who stated that he ensured all wastes, including in the shower floor were covered with the supplied cap that comes with the puddle flange so that no tile pieces, adhesive, silicon, grout or anything else could enter and block the drainpipe underneath. He further stated that no tiler's screed, mortar or any other material used during the renovation entered the drainpipe through the shower waste to cause the blockage.
• [55] While the applicant advances various arguments to suggest that the blockage was caused by the respondents during their renovations, there is no concrete evidence to support his claims. The applicant relies on the email of 15 February 2024 in which a series of propositions was put to Mr Parker including the following:

(5) When you cleared the blockage, you were not able to retrieve any of the material that caused it. This indicates that it was not the normal mixture of hair, grease, fat, oils etc. that one normally expects.

(6) You were unwilling to say with 100% certainty in your report exactly what the blockage material was. However would you agree that, given your many years of experience, the fact that the blockage material was not able to be retrieved by your tool but could be broken up, the fact that the shower had just been renovated with new waterproofing and tiling, and the appearance of the collected material when the leak test was done, that by far the most likely cause of the blockage would be either concrete rubble from the demolition of the original tiling and / or tiler's screed which had fallen into the pipework during tiling?

• [56] The applicant says this was a "confirmation email" to allow Mr Parker to confirm points they had previously discussed which were not covered in depth in his report. However, I find the propositions put to Mr Parker to be unhelpful in that they lead to the applicant's own conclusions rather than allowing Mr Parker to provide his own objective observations and findings on the matter. It seems to me that Mr Parker was unwilling or unable to say with certainty what the blockage material was. That is understandable given he could not see nor retrieve the material. At best, Mr Parker could provide an opinion based on his experience as to what the material might have been. The evidence is not sufficient to persuade me that the respondents caused the blocked pipe.
• [57] As established earlier, the drainpipe is utility infrastructure that is the body corporate's obligation to maintain. The courts have said that the duty to maintain "is not one to use reasonable care to maintain and keep in good repair the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do so, but a strict duty to maintain and keep in repair."[14] The result is that as soon as an aspect of common property is no longer operating effectively or at all, it is regarded as a breach of the duty. This 'strict' duty to maintain has been subsequently applied in numerous adjudicators' decisions.
• [58] Applied to the present case, I find that the body corporate was in breach of its legislative obligation to maintain the utility pipe in good condition when a blockage resulted in water backing up the pipe. The fact that the body corporate could not anticipate this occurring or did not know the cause until Mr Parker identified the blockage on 12 January 2024 after the applicant's garage had flooded, is immaterial. Ultimately, the pipe is common property utility infrastructure that the body corporate is responsible for.

• [59] In summary, I am satisfied that there were 2 primary causes of the water ingress to the applicant's lot. The first is the failed connection at the puddle flange joint that the respondents are liable for. The other is the blocked pipe resulting in the backflow of water that the body corporate retains responsibility for.
• [60] While there was also a smaller drip at the second joint, given I have accepted that its impact was negligible, I have not taken it into further consideration.
• [61] I will now consider the damage caused.

• [62] The applicant seeks reimbursement of $3,038.56 for personal items in their garage that were damaged by the water leakage. The respondents say that few, if any, of the items are able to be "submerged" in 1cm of water as the applicant claims, but they do not specifically challenge the items or amounts claimed.
• [63] The claimed amount of $3,038.56 is made up as follows:
  • Three seater Boston leather couch - $2,199.00
  • Bandit dart board - $144.95
  • Dart Board Cabinet - $159.95
  • Electric corded RYOBI 1600w Circular Saw - $150.31
  • Electric corded Wagner - P 140 Spray Gun - $110.00
  • Four point Power Board - $35.00
  • Electric corded B&D hedge trimmer - $139.99
  • Shelving unit - $54.36
  • Replacement cardboard boxes - $45.00
• [64] The applicant has provided photographs of his garage following the leak event. The photographs show the floor covered with water and the applicant's attempts to dry out the affected items. The applicant says the water leaked from the ceiling onto the lounge and drained through it onto the floor. Photographs are included for each of the damaged items along with its advertised retail cost. I am satisfied from the submitted evidence that the applicant has suffered damage to his personal items and that the claimed amount of $3,038.56 fairly reflects the replacement cost of these goods.
• [65] Section 276 of the Act provides that adjudicators 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. Section 281 empowers me to order the person who I believe, on reasonable grounds, to be responsible for a contravention of the Act resulting in damage to the applicant's property, to reimburse the applicant for repairs to the property. Adjudicators have previously interpreted this to include, where appropriate, reimbursement for unsalvageable personal items that were damaged due to a breach of the Act.[15]
• [66] As stated, I am satisfied that there were 2 causes for the leak that resulted in damage to the applicant's lot. The body corporate is responsible for the blockage that forced the water to back up through the pipe. The respondents are responsible for the faulty flange connection that allowed the water to escape into the applicant's garage below. I do not agree with the respondents that where it is not possible to apportion responsibility, the body corporate should be made wholly liable for the repairs and property damage. It is not the case here that one cause resulted in more or less water damage than the other, such that I have to artificially assess each party's proportion of liability. Rather, I am reasonably satisfied that the leak and resulting damage would not have occurred if either cause was not present. If the pipe was not blocked, water would not have backed up and caused an overflow. Conversely, if the puddle flange connection was watertight, water would not have escaped at that joint but would have likely travelled back up to the respondents' shower. In my view, the 2 causes have equally contributed to the damage suffered, and so, I consider it just and equitable in the circumstances that the cost of the applicant's repairs be shared.
• [67] Accordingly, I have ordered the respondents to pay half the cost of the applicant's damages, in the sum of $1,519.28. As the body corporate is not a party to the application, I have not made any orders against it. It is open to the applicant to separately recover the other half of the claimed amount from the body corporate if required.

• [68] There is a final question as to who is responsible for repairing the leaks. Mr Parker recommended in his report that the "pipe work going up into the floor penetration should be removed and a new section fitted with water tight joints and then tested".
• [69] The applicant says that the pipework that needs to be replaced was installed by the respondents' builder to connect the puddle flange to the existing drainpipe. Apart from the puddle flange, there is no evidence that the respondents installed any other fitting to the pipework. The default legislative position is that the body corporate is responsible for maintaining utility infrastructure which includes any pipes that are found within a boundary structure as in this case. The replacement of the pipework, including any flood testing required is therefore the body corporate's responsibility.
• [70] Mr Parker also notes that the fire collar is missing from the pipework. The applicant wants me to make a declaration that the respondents are responsible for installing a fire collar as part of the renovations they carried out. The respondents say they did not make any changes to the drainpipe, so a fire collar was not required to be installed as part of their renovations. They say it is the body corporate's responsibility to install the fire collar.
• [71] I accept that the respondents did not alter the pipework and therefore see no basis to require that they install the missing fire collar.

• [72] The submitted material satisfies me, on balance, that the respondents breached their statutory obligation to maintain a fitting that was installed by them for the benefit of their lot. The failure of the puddle flange connection resulted in a leak to the applicant's garage, causing damage to the applicant's property. Thus, the applicant is entitled to relief under section 281 of the Act.
• [73] However, as there was a second and equal cause for the water leak, being the blockage found in the body corporate's utility pipe, I have decided that reimbursement for the applicant's costs should be borne equally between the respondents and the body corporate. I have made an order against the respondents for its share of the claimed amount.
• [74] The works identified to repair the leaks involve the replacement of pipework that is not the respondents' responsibility. Accordingly, I have declined to make the remaining orders sought.

[1] Section 227 and 228 of the Act

[3] Also now known as a building format plan of subdivision

[4] Sections 48C and 49C(4) of the Land Title Act 1994

[5] Section 180(1) of the Standard Module

[6] Section 20 of the Act

[7] Section 180(3) of the Standard Module

[8] Section 211(3) of the Standard Module

[9] Section 211(5) of the Standard Module

[10] Section 187(1) of the Standard Module

[11] Section 187(4) of the Standard Module

[12] Searles DCJ in Klinger & Anor v. Body Corporate for Costa D'Ora Apartments [2007] QDC 300 at 67

[13] Brereton J in Seiwa Pty Ltd v The Owner's Strata Plan 35042 [2006] NSWSC 1157, at para 4 and 5, cited in Magog (No.15) Pty Ltd v The Body Corporate for The Moroccan [2010] QDC 70 at 83 and 84

[14] Brereton J in Seiwa Pty Ltd v The Owner's Strata Plan 35042 [2006] NSWSC 1157, as cited in Magog (No.15) Pty Ltd v The Body Corporate for The Moroccan [2010] QDC 70

[15] See for example, Paperbark Buderim [2023] QBCCMCmr 106 at 81-88