Camden [2025] QBCCMCmr 134 (29 April 2025)

BY-LAWS -Where a by-law requires body corporate approval for structural alterations, and the body corporate approval not obtained

RES JUDICATA- whether same matter has been finally decided

Act, s 163, s 276 Standard Module, s 180(2)(b)

1. I declare that the four internal walls modified by the respondents were loadbearing, and therefore structural walls, due to their method of construction as masonry infill walls, built with no gap between the top of the wall and the concrete ceiling slab.
2. I declare that by removing or modifying these four walls, the respondents made internal structural changes and contravened Camden By-law 14 by not obtaining Body Corporate permission before undertaking these works.

1. I order that unless otherwise permitted by the body corporate, the respondents shall, within 6 months of the date of this order, rebuild the four walls as follows:

(i) The unit entry wall which has been totally removed must be rebuilt in its original location, length and state as a full-length masonry infill wall with no gap between the top course of bricks and the ceiling.

(ii) The bathroom wall, which has been totally removed and replaced with a partial nib stud and plasterboard wall, must be rebuilt in its original location, length and state as a full-length masonry infill wall with no gap between the top course of bricks and the ceiling.

(iii) The eastern kitchen wall, which has been shortened by approximately 60cm and had large sections replaced with stud plasterboard walls, must be rebuilt in its original location, length and state as a full-length masonry infill wall with no gap between the top course of bricks and the ceiling.

(iv) The northern kitchen wall, which has been totally removed must be rebuilt in its original location, length and state as a full-length masonry infill wall with no gap between the top course of bricks and the ceiling.

I HEREBY CERTIFY this is a true copy of the order and reasons for decision.

1. I further order that until the respondents have completed the work ordered to the satisfaction of the Body Corporate, they must allow any persons authorised by the Body Corporate access to lot 2 upon receiving 7 days notice pursuant to Section 163 of the Act.

1. I declare that the Body Corporate may recover from the respondents as a debt, all reasonable costs incurred by it in this matter, including, but is not limited to, the costs of engineering advice and the cost of any work the Body Corporate may have to carry out to meet its obligation with respect to the walls under Section 180(2)(b)(iii) of the Standard Module.

1. I declare that pursuant to Section 281 of the Act, the respondents are responsible for reimbursing the owners of lots 5 and 11 for all reasonable expenses they incur in rectifying cracks in their internal walls caused by the unapproved changes the respondents have made to the four walls, and that such reimbursement must be made within 30 days of receiving a request for reimbursement from the owners of lots 11 and 5.

I HEREBY CERTIFY this is a true copy of the order and reasons for decision.

• [1] The respondents are the owners of Lot 2 in Camden, a 5 storey apartment block containing 15 units, located at Macquarie Street, St. Lucia. Lot 2 is a three-bedroom unit on the first floor of the north-west side.
• [2] This application relates to renovations inside the respondents' lot which included removal of brick walls which previously divided the kitchen from the dining area. Contrary to the respondents' claim that these brick walls were "non-structural", the applicant believes the walls were in fact structural and that removal of the walls has adversely impacted upon the structural integrity of the building.
• [3] The applicant body corporate is concerned that the respondents have removed internal walls from their lot without obtaining body corporate approval. The body corporate believes these walls are loadbearing and were removed in contravention of by-law 14 which provides that before undertaking structural alterations, a lot owner must firstly obtain body corporate approval. The body corporate has not approved the alterations.
• [4] The applicant body corporate seeks the following final outcomes:

A declaratory order that the four walls modified by the respondents were loadbearing because of their method of construction as masonry infill walls built with no gap between the top of the wall and the ceiling slab.

A declaratory order that the respondents have breached Camden By-law 14 and the BCCM Act by not obtaining Body Corporate permission before making the changes to the four walls in question.

The applicant says the four walls form part of the 'essential supporting framework, including load-bearing walls' referred to in Section 180(2)(b)(iii) of the Body Corporate and Community Management (Standard) Regulations 2020. Consequently, the Body Corporate has an obligation under Section 180(2)(b)(iii) to ensure the structural integrity of these walls is restored.

An order that, within three months of the issuing of this order, the respondents must return all four walls to their original location, length and condition by rebuilding them, as brick infill walls with no gap between the top of the wall and the ceiling slab. More specifically, the remedial works are to be completed as follows:

(i) The unit entry wall which has been totally removed must be rebuilt in its original location, length and state as a full-length masonry infill wall with no gap between the top course of bricks and the ceiling.

(ii) The bathroom wall, which has been totally removed and replaced with a partial nib stud and plasterboard wall that does not extend to the ceiling slab, must be rebuilt in its original location, length and state as a full-length masonry infill wall with no gap between the top course of bricks and the ceiling.

(iii) The eastern kitchen wall, which has been shortened by approximately 60cm and had large sections replaced with stud plasterboard walls, must be rebuilt in its original location, length and state as a full-length masonry infill wall with no gap between the top course of bricks and the ceiling. The doorway must be rebuilt in its original location.

(iv) The northern kitchen wall, which has been totally removed must be rebuilt in its original location, length and state as a full-length masonry infill wall with no gap between the top course of bricks and the ceiling. The servery window must be rebuilt in its original location.

A declaratory order that the respondents must maintain in place all temporary ceiling slab supports ordered to be installed in interim orders until the work ordered to return the walls to their original state has been completed to the Body Corporate's satisfaction.

That until the respondents have completed the work ordered to the satisfaction of the Body Corporate, they must allow any persons authorised by the Body Corporate access to lot 2 upon receiving 7 days notice under Section 163.

This access is to allow the Body Corporate to verify that the remedial work is being carried out as ordered.

A declaratory order that the Body Corporate may recover from the respondents, as a debt, all reasonable costs incurred by it in this matter. This includes, but is not limited to, the costs of engineering advice that the Body Corporate has already had to procure or may have to procure. It also includes the cost of any work the Body Corporate may have to carry out to meet its obligation with respect to the walls under Section 180(2)(b)(iii) of the Body Corporate and Community Management (Standard) Regulations 2020.

A declaratory order that the respondents are responsible for reimbursing the owners of lots 5 and 11 for all reasonable expenses they incur in rectifying cracks in their internal walls caused by the unapproved changes the respondents have made to the four walls.

Furthermore, the respondents must reimburse the owners of lots 11 and 5 within 7 days of receiving a reimbursement request, otherwise they will be in breach of this order.

• [5] Previously, on 21 October 2024, I made the following interim orders:
  1. Within 14 days of the date of this order, the respondents are to install temporary ceiling slab supports such as Acrow Props along the length of the two walls modified, namely the eastern kitchen wall and the bathroom wall.
  2. Within 14 days of the date of this order, the respondents are to install temporary ceiling slab supports such as Acrow Props along the line of the two walls removed, namely the unit entry wall and the northern kitchen wall.
  3. The temporary ceiling slab supports referred to in orders 1 & 2 are to remain in place until final orders are made or the dispute between the parties is otherwise resolved.
  4. After receiving at least 7 days notice as required by subsection 163(4), the respondents are to give a person authorised by the body corporate access to their lot so that the authorised person is able to determine whether work is required to ensure that lot 2 is in a structurally sound condition.

• [6] Camden is a community titles scheme consisting of 15 lots and common property, registered on Building Units Plan 4149.
• [7] The dispute is between the body corporate and the owners of lot 2, regarding an alleged contravention of the Act and community management statement (CMS). I am satisfied I have jurisdiction to determine the matter.
• [8] The applicant says the owners of lot 2, Sonja Varglien and Jean Haddad, have undertaken major renovations without seeking or gaining Body Corporate approval.
• [9] In August 2022, following requests for information regarding the extent of the proposed renovations, the respondents provided the body corporate with a copy of a letter from CMG Consulting Engineers (CMG) to their Architect, TPG Architects, declaring it would be safe to remove the subject internal masonry walls because in their opinion, the walls were not loadbearing.[1]
• [10] However the body corporate is of the view that those walls are "loadbearing" or "structural", and therefore say that these renovations were undertaken in contravention of By-law 14 which provides as follows:

No internal Structural Changes to Units Without Committee Approval

An owner or occupier of a lot shall not make any internal structural changes to his or her lot without the consent in writing, of the body corporate. Such consent shall only be granted upon the receipt of a properly documented engineer's report attesting that the structural integrity of the building is maintained.

• [11] On 4 November 2022, the applicant wrote to the respondents advising them that they could proceed with cosmetic renovations but could not remove any internal walls without approval. [2]
• [12] On 12 January 2023, the respondents provided the applicant with a second letter from CMG advising that in their opinion, the subject internal masonry walls were not loadbearing. [3] However the applicant believed that a more detailed report was required to enable them to be satisfied that renovations did not involve structural changes.
• [13] On 17 February 2023, Ms Sonja Varglien (co-owner of lot 2) informed the Body Corporate by email that her builder would be commencing 'demolition work' on Wednesday 22 February[4].
• [14] On 19 February 2023, the Chairperson replied to that email, querying the scope of the 'demolition work' pointing out that approval had not been sought or given for changes to be made to walls.[5] In this email the Chairperson asked the respondents to provide an undertaking in the following terms:

We undertake not to carry out any demolition works in Unit 2 that involve removal or modification of any walls or any of the five body corporate common property windows along the western wall. We shall be relieved of this undertaking only once we have received authorisation from the Body Corporate of Camden to perform these works.

• [15] However the respondents failed to provide the requested undertaking, and on 24 May 2023, the Body Corporate resolved to obtain the advice of an independent structural engineer, MPN Consulting Pty Ltd (MPN) regarding the structural status of the internal walls in question.
• [16] On 7 June 2023, after an onsite inspection, a letter was received from MPN which stated:

The walls were 'observed to be clay masonry construction and MPN observed no gap between the walls and at the ceiling slab'. Our observation onsite indicates there may be a redistribution of load after demolition and therefore the walls can be considered to support building load. Therefore, MPN cannot state that there will be no movement after wall removal. Any structural movement after demolition of the walls could reflect as cracking to walls or finishes in units above unless structural remediation is provided.'

• [17] The applicant says that the subject wall can therefore be characterised as "loadbearing". They note the report states that "MPN has discussed this assessment with CMG Consultants Engineers, who did not disagree with our opinion". [6]
• [18] Notwithstanding the concerns raised by the body corporate, the respondents proceeded with their renovations which included removal of two internal masonry walls and modification of two other masonry wall, all of which the applicant believes can be characterised as "structural". The applicant says the masonry northern kitchen wall was removed and replaced with a lightweight wooden stud & plasterboard wall, without installation of any structural supporting beams as recommended by the Body Corporate's structural engineer.
• [19] The body corporate says the respondents never formally submitted any plans to a committee or general meeting, despite being advised this was required by the then Body Corporate Manager, Ms Melinda Ewin of Ernst Body Corporate Management. One of the respondents, Ms Varglien was a committee member when the committee received this advice on 21 December 2022.[7]
• [20] In response to the committee's request for more detailed information, a second letter from CMG was provided by the respondents stating:[8]

As per our initial letter, we confirm the original structural drawings, combined with our site inspection, were the key components on which we based our structural assessment of the proposed works. We also confirm that page 48 of the PDF copy of the original structural drawings outlines the type and location of the loadbearing walls and the proposed works does not include or require the removal of any loadbearing walls.

• [21] However members of the body corporate noted that in a number of instances, there was a divergence between the original plans, and the actual construction of the building. These differences were later noted by Mr Simon Pikusa a structural engineer with MPN Consulting, who was appointed by the Body Corporate to provide an independent assessment of the walls that the respondents planned to remove or modify.[9]
• [22] The applicant has provided a copy of the wall layout that appears on page 48 of the original plans, as well as a side-by-side comparison of the proposed layout with the actual build. They are notated with the findings of Mr Pikusa concerning the way they were built.
• [23] They note that the actual build differed from the original plans relied on by CMG Engineers. In particular, the northern kitchen wall did not appear at all on the original plans. Also, both kitchen walls, the unit entry wall, and the bathroom wall on the original plan, are not shown to be loadbearing as a support on the slab framing plans and reinforcement appears to have been detailed to clear span from the external wall to the central party wall.
• [24] During his inspection, Mr Pikusa noted that the two kitchen walls were 110mm thick, of clay masonry construction, without any gap between the top of the walls and the concrete ceiling slab. Although the original structural drawings did not indicate the walls to be load bearing, he was of the view that their demolition may lead to a redistribution of load. Therefore the walls could be considered to support building load and there was a possibility of structural movement after removal of the walls. He was of the view that any such structural movement could reflect as cracking to walls or finishes in units above, unless structural remediation was provided.
• [25] He also noted that the respondents proposed to remove the dividing wall between the toilet & bathroom and the entry nib wall in lot 2. He stated that these walls are constructed in the same manner as the two kitchen walls and that the above comments also applied to these walls.
• [26] On 22 August 2023, it was noted that the builders working in lot 2 had removed the northern kitchen infill brick wall declared by MPN to be loadbearing. On the same date, the Chairperson wrote to the respondent's lawyers[10] but was advised that "they stand by the advice of their engineer, and that their clients won't provide the confirmation requested, as there is no requirement for them to do so".
• [27] After the respondents had removed the northern kitchen wall, the unit entry wall and sections of the bathroom and eastern kitchen wall, Mr Pikusa carried out a second inspection and prepared a Report which confirmed his original opinion.[11]
• [28] On 5 September 2023, the owners of lot 5, which is directly above lot 2, noticed horizontal cracking measuring 3 metres in the wall between their dining room and the bathroom. It extended through the wall and cracked the wall tiles in the bathroom. Another vertical crack had appeared in the wall between the dining room and kitchen. None of these were observed prior to 22 August 2023.
• [29] On 26 September 2023, the Body Corporate issued the owners of lot 2 with a Notice of continuing contravention of a body corporate by-law (Form 10), as they were of the view that the respondents had removed structural walls[12] without approval under By-law 14.
• [30] On 6 October 2023, Mr Simon Pikusa from MPN inspected both lots 2 and 5. In his report dated 12 October 2023[13] he stated:
  • we recommend CMG Engineers confirm the structural adequacy of the Unit 2 ceiling/ Unit 5 floor and specify measures to ensure no further movement occurs. This may comprise a lintel beam or other remedial structural element.
  • Any repair of cracks to Unit 5 should only be started after the structural adequacy and

ongoing stability of the Unit 2 ceiling/ Unit 5 floor has been certified by CMG Engineers.

• [31] On 15 November 2023 the Committee lodged a conciliation application and on 20 February 2024, took part in a conciliation, but no agreement was reached on the main points of contention, including the requirement for the respondents to comply with By-law 14.[14]
• [32] It is believed that the respondents have already carried out most of the structural changes for which the Body Corporate requested they obtain permission. At the time of the application no Certificate of Occupancy had been granted by the Brisbane City Council, although the lot is being occupied.
• [33] Of most concern to the body corporate is that the removal of the walls in lot 2, which is located on level C, has impacted on the loading upon the slab ceiling which is also the floor for level D. They say that since removal of the lot 2 northern kitchen wall, cracking has become evident in the internal walls of lot 5 located on level D, directly above lot 2. Cracking has also been observed in lot 11 on level F. Further, the cracking in lots 5 & 11 corresponds with the area where the northern kitchen wall was removed in lot 2.
• [34] Since that time, the applicant says there have been indications of ongoing movement as cracking is continuing in lot 11 and lot 2 itself. Recently, the owners of lot 11, on the fourth floor above lot 2, have advised the Body Corporate that they have new cracking in their northern kitchen wall since the walls in lot 2 have been modified and removed.
• [35] Lot 11 was renovated in 2018, and the northern kitchen wall has been free of cracks until one was noticed in early September 2023. It starts at the bottom right-hand side of the northern kitchen wall servery window and extends down towards the floor. The applicant body corporate says the crack has been monitored by the owners who say the cracking has since turned 90 degrees, now runs about another 1.3 metres horizontally and has almost reached the western lot wall. The cracking is not wide, but it is new and has continued to increase in length since first noted.[15]
• [36] It is understood that cracking has also been observed in lot 2 new plasterboard that was only installed since they removed and modified the loadbearing walls. This heightens the Body Corporate's fears that ongoing movement is occurring because of the respondents' renovations.[16]
• [37] In summary the Applicant believes the requested orders should be made on the following grounds:

(a) the walls, due to their method of construction, are loadbearing/structural;

(b) the changes to the walls required the Applicant's approval under by-law 14;

(c) the changes to the walls have adversely impacted upon the structural integrity of the building and caused damage to other lots;

(d) that continued propping, until rectification, is required;

(e) that access to Lot 2 was improperly refused; and

(f) that remedial works to the walls is required.

• [38] The body corporate says it has been very patient with the respondents but has little option but to pursue adjudication to obtain orders to protect the interests of all owners and maintain the integrity and safety of the building.

• [39] Previously at the interim stage, pursuant to my investigative powers under section 271 of the Act, I invited the respondents to make submissions regarding the interim outcomes sought by the applicant body corporate.
• [40] The respondents note that the applicant is aggrieved because they undertook interior renovations without obtaining their approval. However they say that body corporate approval is not required under the legislation or by-laws. Further, they say they have assisted the body corporate by obtaining multiple expert reports.
• [41] The respondents say the applicant bears the legal and evidential onus of proof3 and submits that the Applicant has not met the legal or evidential burden in respect of its allegations.
• [42] The respondents then refer to section 180 (1) of the Standard Module which provides:

180 Duties of body corporate about common property - Act, s 152

(1) The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.

(2) To the extent that lots included in the community titles scheme are created under a building format plan of subdivision, the body corporate must -

(i) railings, parapets and balustrades on, whether precisely, or for all practical purposes, the boundary of a lot and common property; and

(ii) doors, windows and associated fittings situated in a boundary wall separating a lot from common property; and

(iii) roofing membranes that are not common property but that provide protection for lots or common property; and

(b) maintain in a structurally sound condition the following elements of scheme land that are not common property -

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

(3) Despite anything in subsections (1) and (2) , 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.

(5) To avoid any doubt, it is declared that, despite an obligation the body corporate may have under subsection (2) , the body corporate may recover the prescribed costs, as a debt, from a person, whether or not the owner of the lot, whose actions cause or contribute to the damage or deterioration of the part of the lot.

"prescribed costs" , recoverable from a person, means the proportion of the reasonable cost to the body corporate of carrying out the maintenance that the body corporate reasonably considers can be fairly attributed to the person's actions.

• [43] The respondents note that section 180 obliges the Body Corporate to maintain "various items" within lots in a structurally sound condition, even though they do not form part of the common property. However those items remain part of the lots at the Scheme and accordingly, unless the by-laws require approval, the Respondents say they do not require the Applicant's approval to change an Item. In any event, the respondents say the walls are not such an "item".
• [44] Next, the respondents acknowledge that they are making improvements to their lot. Schedule 6 of the Act, defines an "improvement" to include the erection of a building; a structural change; and a non-structural change, including, for example, the installation of air conditioning. Accordingly, a change to the walls is an improvement but they say that because the improvement is within their lot, body corporate permission was not required.
• [45] They note that where a lot owner wishes to make an improvement to common property, they must comply with the by-laws and section 187 of the Standard Module.
• [46] They also note that where a lot owner wishes to make an improvement to their lot, they must comply with the by-laws.
• [47] The respondents say the Body Corporate has adopted an expansive construction of by-law 14 and believe it applies to all internal structural changes that are not simply decorative. Where renovations are proposed to internal structural elements such as walls, doors, floor and ceiling slabs, the body corporate requires them to submit a detailed plan of changes as part of the formal approval process.[17]
• [48] However the respondents argue that the expansive construction of by-law 14, now advanced by the Body Corporate is untenable, because the by-law is plain on its terms. As such, the only remaining issue is whether the walls are structural, such that approval under by-law 14 is required.
• [49] The respondents again refer to the two reports from CMG Engineers which argue that the subject walls were not structural. They say that this application should also be rejected having regard to the two CMG Reports referred to below.
• [50] CMG's report of 23 August 2022, relevantly states:[18]

(a) We have inspected both the building and Unit 2 at 108 Macquarie Street to determine if the proposed renovation works will impact the structural integrity of the building.

(b) The original structural drawings were made available and were a key component in our investigation.

(c) We can confirm that the proposed renovation works, which include the non-load bearing walls to be removed, as well as the balcony works, will not impact the structural integrity of the unit or the building.

• [51] CMG's report of 12 January 2023, relevantly states:[19]

(a) Further to our letter (Our Ref: 45317L1) dated 23 August 2022, we have reviewed and certified the construction drawings provided by TPG Architects and reassessed the structural considerations of the proposed works.

(b) As per our initial letter, we confirm the original structural drawings, combined with our site inspection, were the key components on which we based our structural assessment of the proposed works.

(c) We also confirm that page 48 of the PDF copy of the original structural drawings outlines the type and location of the loadbearing walls and the proposed works does not include or require the removal of any loadbearing walls.

(d) The slab thickness and reinforcement are provided on page 49 of the PDF copy of the original structural drawings and these correspond structurally with the location of the loadbearing walls. The proposed balcony works involves lightweight construction and will not compromise the structural adequacy of the balcony slab.

(e) We certify the proposed renovation works will not affect the structural integrity/adequacy of the existing building.

• [52] The respondents' architect, TPG, also provided a Report which relevantly states:

(a) I've attached copies of those two drawings that CMG references, ie Pages 48 and 49 .

(b) I've also attached pg 17 of the same set of PDFs that indicate the original architectural setout of the First floor units. The non loadbearing walls nominated as typically 110mmm and the loadbearing as nominally 150mm. It is clear that what we measured on site last year and documented in our plan drawing (attached) is consistent to what is shown in the original architectural layout. The Structural drawings pages 48 and 49 do not (as is industry practice typically would not) indicate dimensioned locations of walls, these are always indicated on Architectural floor plans as is the case here. The fact that the non loadbearing wall do not necessarily align with that drawn on the architectural plans is not relevant as both the loadbearing and nonloadbearing walls are dimensioned on the architectural plans.

• [53] The respondents note that the applicant body corporate sought further expert advice from MPN Consulting Pty Ltd (MPN) regarding the removal of the walls in lot 2. On 12 October 2023, MPN provided a further letter to the Applicant recommending that CMG consider the cracking and any necessary remedial measures stating:[20]

The extent of cracking does not appear to be increasing in width or extent. However, it is recommended this is monitored (e.g. glass tile over crack and marking of extent)

It is recommended the engineer for Unit 2 works (CMG Engineers) inspect and comment on the reported distress in Unit 5

Furthermore, we recommend CMG Engineers confirm the structural adequacy of the Unit ceiling/ Unit 5 floor, and specify measures to ensure no further movement occurs. This may comprise a lintel beam or other remedial structural element.

• [54] As a result, the respondents obtained a Supplementary Engineering Report from CMG in January 2024,[21] which included the following findings:

The cracks are old, pre-existing cracks. New cracks appear fresh and sharp. These cracks are weathered and rounded with evidence of existing cracks under the paintwork.

The shape and location of the cracks in the filled in arched doorway of the eastern kitchen wall are due to the two different material types used and are also pre-existing. The wall immediately under this wall, in Unit 2, remains. The opening in the wall in Unit 2 was increased by 40mm. This is a very small increase and will not and did not affect the wall over in Unit 5.

The wall immediately under the living room/bathroom wall in Unit 2 remains and did not affect the wall over in Unit 5.

The cracks in Unit 8 establish a history of cracking in the rendered clay masonry walls of this building. The construction procedure and notes provided by the building contractor confirms that the works undertaken in Unit 2 had no impact on the existing structure.

The works undertaken in Unit 2 did not cause any cracking in the walls of Unit 5. The location, geometry and visual appearance of the cracks in Unit 5 indicates they pre-existed any works completed in Unit 2.

• [55] On 20 September 2024, after the respondents received a copy of the application, they sought a further report from CMG which states that: [22]

(a) Notwithstanding there was no gap between the walls and the ceiling slab, those walls remained non-structural and redundant with respect to the structural integrity of the slab above;

(b) Redistribution of load following removal of the subject walls had been considered in their assessment of how the load would be accommodated by the slab spans between the remaining walls;

(c) They did not believe that removal of those walls resulted in deflection of the slab and therefore did not believe it was necessary to install an underpinning beam where the northern kitchen wall had been removed;

(d) the contractor followed the engineer's procedure, including monitoring and measurement and at no time was there any visible or measured defection of the slab over;

(e) the cracking in lots 2, 5, 8 and 11 is not due to the wall works; and

(f) without further information, comment cannot be made about the underpinning beam in Lot 5 other than it appears it may be undersized or ineffective.

• [56] The respondents also note that following a complaint to the QBCC, a QBCC investigator conducted an investigation of the work undertaken by their builder and found no evidence of defective construction practices by that builder. That Report relevantly states:

Engineering advice was received from both parties from independent engineers throughout the approval and building process. Both engineers accept the original walls appear as non-load bearing on the original plans, disputing only redistribution of load

the cracking identified approx. 0.25mm to 0.50mm wide in the living room and bathroom walls of unit 5 are within the acceptable limits detailed in AS3700-2018 (current standard applicable to masonry structures.

After reviewing the information available, the QBCC are unable to apportion liability for the cracking observed in unit 5 without unfair prejudice given it is not conclusive that the cracking is a result of defective construction practices by the respondent, pre-existing damage or settlement associated with the age of the property, or settlement of building elements associated with resting the unit 5 suspended slab on the non-load bearing masonry wall below.

Your complaint has been investigated and there was insufficient evidence to reveal any obvious defective construction practices by Simon Prosser at the time of the inspection. Therefore the QBCC is unable to provide you with any further assistance with the resolution of the item.

• [57] The Respondents submit that the applicant has failed to meet the legal or evidential burden of proof in respect of its allegations. They believe the applicant has adopted an expansive construction of by-law 14 when the by-law is plain on its terms, and the evidence does not support the applicant's allegations that:

(a) the walls are structural;

(b) the removal and modification works on the walls have caused damage to other lots;

(c) there is risk of further damage;

(d) that propping is required;

(e) that access to lot 2 was improperly refused.

• [58] It is further argued that the Act prescribes the circumstances for which entry to a lot can be authorized and those circumstances do not include entry to take an account of the internal walls.
  • [59] The Respondents maintain that they have not contravened by-law 14 or interfered with the easement for support. They say their position is supported by an expert report obtained from Mr Timothy Peters, a registered professional structural engineer of 40 years' experience, including both design and forensic assessment of building structures.[23]
• [60] The respondent says that having been briefed with the relevant material[24] and carrying out a site inspection, including lots 2, 8 and 11, Mr Peters is of the opinion that the internal walls are non-load bearing in relation to the structure. He is also of the view that as the slabs have been cast on top of these walls at the time of construction, their removal (and subsequent redistribution of load) has resulted in deflections less then Australian standard recommendations. In his opinion, supplementing any strengthening of the walls at this level is unnecessary, including the recommendation to add a steel stiffing beam at this location.
• [61] In his report dated 29th November 2024, Mr Peters advised that as part of his review he prepared a Finite Element Analysis of the slab utilizing RAM Concept design software and checked it in accordance with Australian Standards and loading requirements. He also modelled the structure as documented on the original engineering plans, with no internal load bearing walls. He states that the modelling also accounts for the age of the concrete which allows for "creep shrinkage" that may have occurred where internal walls have temporarily provided some resistance to slab deflections.
• [62] He says that the RAM Concept model was created based on the original design drawings and validates that the slab design is compliant with AS3600 for strength and serviceability (slab deflections) with no internal walls (other than allowing for their own self weight on the slab) providing any form of support. He says that this confirms that there is no concern with the capacity or integrity of the structure.
  • [63] He notes that in this dispute, the focus has been around 'redistribution of load' within the structure. However, he says the real focus should be around the deflection of the slabs that is created by the removal of the walls and whether this deflection remains within code limits. He says that while there is some shift of load balance between the internal walls, the main element to review is the magnitude of change in slab deflections based on the load redistribution.
• [64] He says that once they had established the integrity of the structure, they studied the conditions where the internal walls provide some temporary support (but in the context of the structure are not load bearing). This required studying the creep effects of the concrete over the 40 years life and the performance of the slab with walls in, verses walls removed. This study showed that the removal of the kitchen wall in unit 2 would have had a 0.24mm additional deflection in the exact area beneath the wall and up to 2mm midspan. He is also of the view that removal of the walls in the bathroom and hallway have even less impact on deflection, with figures of less than 0.1mm movement.
• [65] It is submitted that the above deflection magnitudes in the RAM Concept model, can be considered negligible in forms of the impact to other elements in the structure, and therefore it is considered highly unlikely that removal of the internal walls has resulted in cracking in other floors of the unit development. In addition, he says that the internal masonry walls are non-load bearing walls.
• [66] Mr Peters says the structural modelling and analysis carried out by him showed that a localized deflection in the level 2 slab of less than 0.5mm in the exact location of the wall that was removed in the kitchen. He says this is within acceptable movements and tolerances described within Australian Design Codes and suggests it would be unlikely that the minor cracking in the brittle plaster finish in units 11 and 5 are a direct result of removal of this wall.

• [67] In his opinion, the renovation works carried out in Unit 2 including the removal and/or modification of internal walls, has not compromised the structural integrity of the building and any movement or deflection associated with this work is within the tolerances recommended by Australian Standards. He expressed the view that the minor level of cracking observed in brittle plaster finishes could be attributed to minor building movements associated with the normal lifecycle of the structure and are unlikely to have directly occurred to the partial wall removal in unit 2.

• [68] The respondent submits that having regard to the Peters Engineering Report:

(a) The internal walls: > > > (i) do not form part of the fabric or framework of the building; and > > > > (ii) whilst they may have been attached to the building, are not integral to the building itself; and > > (b) The changes to the internal walls; > > > (i) are not a structural change, such that it is not a breach of by-law 14; > > > > (ii) did not withdraw support, such that it did not interfere with the easement for support; and > > > > (iii) did not cause any damage to the building and no remedial action is required; and

• [69] Finally, the respondents note that previously the owner of lot 11 lodged an adjudication application with this office, seeking similar orders to those sought in this application.[25] The applicant in that case alleged that the walls were structural, on the following bases:

(a) the CMG engineering reports are based on original plans that do not reflect the Lot 2 "as built"; > > (b) the second kitchen wall is an extension, and the same width, of a load bearing wall labelled W40; and > > (c) the Wall labelled W35 runs the full length of the hallway, demonstrating the differences between the original plans and Lot 2 as built.

• [70] In that case the Adjudicator declined to make the requested interim order because the applicant (owner of lot 11) failed to produce any real evidence to support his opinion that the subject walls were loadbearing. The respondents note that although the Applicant in this Application and the Prior Application are different, the relief sought overlaps to the extent it seeks that the renovation does not continue. They argue that the substantive issues for determination are the same; and the Applicant has used the Application to submit further material which was not submitted in the Prior Application. The Respondents therefore submit that the interim order Application should be dismissed based on issue estoppel or res judicata.

• [71] On 16 January 2025, MPN Consulting Engineers prepared another report for the body corporate in response to the engineering report prepared by Edge Consulting Engineers, dated 29 November 2024. The purpose of this MPN Report was to Review and comment on the modelling, statements and conclusions of the Edge Consulting Engineers report.
• [72] MPM Consulting Engineers understand that the Edge Consulting models have been based on existing structural drawings and that site investigation to verify actual slab thicknesses, reinforcement arrangement and concrete properties have not been undertaken.
• [73] MPN agrees with Edge Consulting that the internal kitchen walls have been designed as 'non loadbearing'. However as a result of their site investigations, MPN if of the view that the walls have been constructed as loadbearing.
  • [74] It was noted that Edge Consulting have created a model which shows kitchen walls removed in Unit 2 to determine theoretical deflection of the slab as originally designed. They have also prepared a model indicating kitchen walls as loadbearing. After comparing the models, Edge Consulting concluded that the localised deflection in the level 2 slab would be less than 0.5mm after removal of the walls. Edge Consulting also expressed the view that "it would be unlikely that the minor cracking in the brittle plaster finish in Units 11 and 5 are a direct result of the removal of this wall".
• [75] In response, MPM Consulting Engineers say:

(a) The model with kitchen walls removed does not accurately account for the cumulative effect for load of the walls and floor slabs above Level 2.

(b) Given building movement has occurred and to whatever extent, it is more likely that cracking observed and reported has occurred as a result of this movement.

• [76] As mentioned above, in August 2022 the respondents advised the body corporate of their intention to carry out major renovations in accordance with plans prepared by their architects. The renovations included reconfiguration of the kitchen and dining areas, involving removal of the northern kitchen wall and enlargement of the opening in the eastern kitchen wall. Both of these walls were constructed from brick masonry. In addition, a small brick wall at the entry to the unit would be removed and a bathroom wall was to be partially removed so that the bathroom and toilet area areas were combined.
• [77] The body corporate is concerned that those walls were loadbearing / structural, and that body corporate approval was required for the removal of those walls in accordance with by-law 14 which provides as follows:

No internal Structural Changes to Units Without Committee Approval

An owner or occupier of a lot shall not make any internal structural changes to his or her lot without the consent in writing, of the body corporate. Such consent shall only be granted upon the receipt of a properly documented engineer's report attesting that the structural integrity of the building is maintained.

• [78] A by-law such as this is particularly important in a multi-level building where renovations involve removal of internal walls that may be load bearing. A load-bearing wall is a structural wall that partially supports the weight of the building, including upper floors, and transfers this weight down to the foundations.
• [79] Where a load bearing wall is removed, it is often necessary to install an alternative structural support system using beams and/or columns to maintain support while creating open spaces. For example, when lot 5 was renovated several years ago, a 150mm Parallel Flange Channel (150PFC) support beam was installed in lot 5 to provide structural remediation when a central section of their northern kitchen wall was removed.[26] The applicant submits that the internal walls in lot 2 should not have been removed without having a similar alternative structural support system.
• [80] Following requests for information regarding the extent of the proposed renovations, the respondents provided the body corporate with a copy of a letter from CMG Consulting Engineers (CMG) to their Architect, TPG Architects, declaring it would be safe to remove the subject internal masonry walls as, in their opinion, the walls were not loadbearing[27].
• [81] On 4 November 2022, the applicant wrote to the respondents advising that they could proceed with "cosmetic renovations" but no internal walls could be removed without proof from an engineer that removal of the walls would not affect the structure of the building. [28] They also advised the respondents that any change to the appearance of the building, such as installation of new balcony doors, must be approved by the Body Corporate at a general meeting.
• [82] In response, the respondents provided the applicant with correspondence between their architect[29] and CMG Engineers, in which CMG Engineers advised that it was safe to remove the subject walls as they were not loadbearing. The respondents noted that the original plans did not include those walls and further, claimed that the original structural drawings did not indicate that the subject walls were designed to be loadbearing as they did not appear as a support on the slab plans.
• [83] On 24 May 2023, the Body Corporate resolved to obtain the advice of an independent structural engineer, MPN Consulting Pty Ltd (MPN) regarding the structural status of the internal walls in question.
• [84] Mr Pikusa, a consulting engineer from MPN inspected lot 2 and on 7 June 2023 produced a Report in which they advised the applicant body corporate that :

The walls were 'observed to be clay masonry construction and MPN observed no gap between the walls and at the ceiling slab'. Our observation onsite indicates there may be a redistribution of load after demolition and therefore the walls can be considered to support building load. Therefore, MPN cannot state that there will be no movement after wall removal. Any structural movement after demolition of the walls could reflect as cracking to walls or finishes in units above unless structural remediation is provided.

• [85] That Report also states that, "MPN has discussed this assessment with CMG Consultants Engineers, who did not disagree with our opinion". [30] In their Report dated 7 June 2023, MPN observed that the northern kitchen walls were of clay masonry construction and there was no gap between the walls and at the ceiling slab. Therefore the walls could be considered to support building load and demolition of the walls may cause a redistribution of load.[31]
• [86] I am of the view that there is substance to the applicant's argument that construction of the internal brick walls in such a way that there was no gap between the internal brick walls and concrete slab ceiling above, and therefore supported the building load, resulted in the walls being loadbearing irrespective of whether or not they were originally designed as such.
• [87] The respondent argues that the subject walls were not structural and refers to the recent adjudicator's decision in Harbour Side Marina Apartments [2024] QBCCMCmr 418 which considered a by-law that required body corporate approval for any structural alteration to a lot.
• [88] In that case the adjudicator helpfully considered numerous authorities regarding the word 'structural' in the following terms:

[59] The term 'structural' is not defined in the by-laws or the legislation. The Cambridge Dictionary defines it as 'relating to the structure of a building or similar object'. The Oxford Dictionary defines it as 'forming a necessary part of the structure of a building or other construction, as distinct from its decoration or fittings'.

[60] In Granada Theatres Limited v Freehold Investments (Leytonstone) Ltd [9], the English Court of Appeal considered the meaning of the term 'structural' and upheld the interpretation adopted by the trial judge who stated as follows:

It appears, rather surprisingly that the expression 'structural repairs' has never been judicially defined, a fact to which attention is drawn in the 21st edition of Woodfall's Law of Landlord and Tenant at page 770, and Counsel in the present case have accepted that statement as correct. The writer of the textbook submits on the same page that 'structural repairs' are those which involve interference with, or alteration to, the framework of a building, and I would myself say that 'structural repairs' means repairs of, or to, a structure. It is sometimes said that repairs must be either structural or decorative, and if that is the simple criterion we are in this case certainly not dealing with decorative repairs.

[63] In Owners SP10701 v Segelov [13], the Strata Schemes Board of New South Wales considered the meaning of 'structural alterations' in the context of a by-law, as follows:

If the ordinary usage of the term "structural" is to be applied, the relevant definition in the Shorter Oxford Dictionary is "of or pertaining to the structure of a building as distinct from decoration or fittings".

In my view the word "structural" does not limit the kind of alterations to alterations of load-bearing walls for example. Structural alterations would certainly include alterations which involve the penetration of a common property floor slab.

[64] The New South Wales Supreme Court in Alamdo Holdings Pty Ltd v Australian Window

Furnishings (NSW) Pty Ltd[ 14] considered the meaning of the term 'structural' as follows:

The first thing to be said is that, as I view matters, maintenance, replacement or repair that is

"structural" can be undertaken only in relation to something that is a "structure" although, of course, not everything done by way of maintenance, replacement or repair in relation to a "structure" is properly classified as "structural". I regard as apposite, in this connection, a passage in the judgment of Brereton J in Hampson v Clyne (1967) 89 WN (NSW) 321:

'Structure' of course is a word of which the meaning varies considerably according to the context, and the phrase 'structural character' or 'defect of a structural character' varies correspondingly. Literally 'structure' means something which has been constructed and 'defect of a structural character' means either a fault in putting the structure together or some subsequent failure on the part of the structure to remain satisfactorily put together. With particular reference to buildings in common parlance we refer to the bare building as the structure. We refer to fixtures and fittings attached to the structure although these may themselves as individual units be technically 'structures'. We refer also to installations, such

as gas and water piping and electrical circuits. Each of these may, however, independently be in certain contexts regarded as a 'structure' in that it is something which has been constructed within another structure.

• [89] I am unable to agree with the respondents' argument that the cases cited above support their contention that the walls were not structural. These cases make a distinction between 'structural' and 'decorative' elements of a building. 'Structural' elements are generally defined as being a permanent fixed element of the framework of the building . Structural elements share the load of other elements above. 'Decorative' elements are those items such as light fittings, floor coverings and window fittings.
• [90] The Body Corporate engineer has always been of the view that the walls were loadbearing due to the manner of their construction. However the respondents ignored the advice of the Body Corporate engineer that the removal of the walls may result in cracking in the lots above. Almost immediately after the walls were removed cracking was observed in the internal walls of both lots 5 and 11 which are directly above lot 2.
• [91] The Body Corporate has a responsibility to ensure that owners do not make internal changes that result in damage to other lots or common property due to redistribution of load, or deflection in the slab. This is the primary purpose of By-law 14. Internal changes that result in any deflection of the slab or load transference, can result in damage to other lots.
• [92] I note that between 22 August 2023 and 22 August 2023, the kitchen walls were removed in lot 2. Subsequently, on or about 5 September 2023, the owners of lot 5, directly above lot 2, noticed horizontal cracking measuring 3 metres in the wall between their dining room and the bathroom. It extended through the wall and cracked the tiles in the bathroom. Another vertical crack had appeared in the wall between the dining room and kitchen. None of these were observed prior to 22 August.
• [93] In my view these events strongly suggest that the internal walls that were removed from lot 2 partially supported the building load, and their removal resulted in cracking to walls and finishes in unit 5 which is directly above lot 2.
• [94] The owners of lot 5 have furnished a statutory declaration stating that prior to the commencement of Unit 2 wall removal, there was no obvious cracking in the unit 5 walls. However after the work began in lot 2, three very obvious cracks appeared in the internal walls of lot 5. They say their lot has been occupied by their daughter and son in law, Mr & Mrs Janssen, since 2014. They are intending to undertake renovations to lot 5 and on 10 July 2023, Folar Studio Architects (Folar) inspected the unit to commence their design work. A number of photographs were taken by Folar and these were attached to the application. None of these photographs show evidence of cracking in the walls.
• [95] On 22 August they visited their lot in the company of the Body Corporate Chairperson, to discuss their own renovation plans. They visited every room and did not observe any evidence of cracking. On the same day, 22 August 2023, builders began to remove internal walls in lot 2 and this work continued until 28 August 2023.
• [96] On 5 September 2023 Mr & Mrs Janssen returned to their lot after being away for some time and noticed that long cracks had appeared in the walls of the unit in 3 different places. They advised the body corporate of the cracking and on 5 September 2023 emailed the body corporate with photographs of the following:
  • Crack 1 in Bathroom/Living Room dividing wall- bathroom side- a photograph of cracked bathroom wall tiles (Photo 3)
  • Crack 2 - Bathroom/Living Room - Living room side 3 metre long crack in the wall (Photo 4).
  • Crack 3 - Living room/Kitchen diving wall, a long arch shaped crack (Photo 5).
• [97] It is relevant to note that the Janssens have lived in Unit 5 since 2014 as renters/ owners, and say that over a period of almost 10 years, neither they, nor the owners, have noticed any obvious cracks in the walls. In that time they have not repaired any surface cracking in the walls and have not painted any of the living room or kitchen walls.
• [98] I note that a complaint was made to the QBCC and on 30 April 2024 and the QBCC conducted a site inspection. It was noted that Crack 3 in the Living room/Kitchen diving wall was now approximately 60cm longer than when the original crack was noticed. Photograph 6 attached to the statutory declaration shows the cracking now extends beyond the pencil marks that had been put in place to mark the cracking when first noticed.
• [99] While the QBCC inspector found "there was insufficient evidence to reveal any obvious defective construction practices by Simon Prosser at the time of the inspection" I do not believe this absolves the respondents from responsibility for structural damage to the building. The question remains as to whether there was a structural design failure because load bearing masonry walls had been removed from lot 2 and no structural remediation[32] was recommended by the respondents' engineer.
• [100] In addition to ensuring that they comply with by-law 14, the respondents have an obligation to ensure that any renovations which they undertake do not interfere with statutory easements for support. I believe the applicant has established that removal and modification of various internal masonry walls in lot 2 has impacted upon the structural integrity of the building as evidenced by cracking observed in three different locations within lot 5.
• [101] As mentioned above, Mr Pikusa from MPN Consulting initially carried out an inspection of the walls and in his initial report, stated that the northern kitchen wall and all others inspected, were built as clay masonry walls with no gap between the top of the wall and the ceiling slab. His professional opinion was that their manner of construction means they were loadbearing irrespective of whether they were planned as such or not.[33] He is of the view that removal of those walls has resulted in some redistribution of load to the remaining walls and there is evidence of cracking in lot 5 which is located directly above lot 2.
• [102] The body corporate maintains the view that those walls are "loadbearing" or "structural", and therefore say that these renovations were undertaken in contravention of By-law 14. The brick walls were constructed up to the height of the concrete ceiling slab[34] and it is probable that these walls were loadbearing irrespective of whether they were planned as such and CMG actually note that there may be some redistribution to loadbearing walls after their removal i.e. building load may be redistributed by removal of the walls in whole or part.
• [103] At annexure 27 to the Application, the applicant has provided a photograph showing the galvanised 150mm Parallel Flange Channel (150PFC) support beam, that was installed in lot 5 to provide structural remediation when a central section of their northern kitchen wall was removed during renovations several years ago. They submit that a similar remedial beam should be installed in lot 2 where their northern kitchen wall has been removed and structural remediation such as this would have prevented the cracking that has now been experienced in lot 5 on level D.
• [104] The respondent subsequently engaged Mr Peters of Edge Consulting Engineers, who produced a report dated 29 November 2024 ("the Peters Report"). An important part of the Peters' Report is a software model of lot 2 created using software called RAM Concept. I note that this software uses Finite Element Analysis ("FEA") to approximate the loads on specific identified elements in a design structure. Using this software, Mr Peters created a model of the lot to determine the deflection in the ceiling slab when the walls are removed.
• [105] According to his modelling, there would have been a very slight deflection of the ceiling slab when the subject walls were removed. However he was of the view that these theoretical deflection magnitudes could be considered negligible in forms of the impact to other elements in the structure, and therefore, he considered it highly unlikely that removal of the internal walls has resulted in cracking in other floors of the unit development.
• [106] The modelling carried out by Mr Peters indicated a very slight deflection of the concrete slab that he considered to be insignificant. However, I believe it does indicate that nevertheless, the walls were loadbearing. In this regard, I note that at clause 3.2.2 of his report, he stated that 'Whilst there is some shift of load balance between the internal walls....
• [107] One must also keep in mind that the output of any modelling is a theoretical approximation of a situation involving numerous assumptions, and may not be accompanied by empirical testing. In this case, RAM Concept software was used to calculate the effect of removing the walls on the deflection of the concrete ceiling slab. MPM Consulting Engineers understand that the Edge Consulting models have been based on existing structural drawings, and that site investigation to verify actual slab thicknesses, reinforcement arrangement and concrete properties have not been undertaken.
• [108] In any event Mr Peters' modelling still showed there was load on the walls as there was a slight slab deflection when the walls were removed from the model. If there is no deflection an assumption can be made that the walls carried no load, any deflection indicates they were carrying load.
• [109] I also note the applicant's argument that the Peters Report appears to concentrate on the impact of lot 2 in isolation. MPM Consulting Engineers say the model with kitchen walls removed does not accurately account for the cumulative effect for load of the walls and floor slabs above Level 2. Camden has seven levels including carparks. Lot 2 has four more levels above it.
• [110] I am therefore of the view that the subject walls were loadbearing and therefore structural, making By-law 14 and Section 180 relevant, thus requiring Body Corporate approval. The applicant is concerned that if it were otherwise, other owners could also undertake renovations involving removal of walls without consulting the Body Corporate for approval. The body corporate argues that this would render by-law 14 useless as it could not perform the function for which it is designed. That could prove catastrophic for the building if similar wall removals occurred on some, or all of the other levels of the building.
• [111] On balance I believe the Body Corporate was entitled to rely on Mr Pikusa's advice when insisting that the respondents comply with By-law 14, and seek permission before demolishing the walls. It also follows that I am of the view that the changes should not have been made without Body Corporate approval as they are covered by Section 180(2)(b)(iii) of the Standard Module. The respondents denied all members their right under By-law 14 and Section 180(2)(b)(iii) to have a say about whether they wished to allow these changes.
• [112] I also note that under subsection 180(5) of the regulations, the Body Corporate has the authority to recover the prescribed costs of restoring the lot 2 kitchen walls to their original location and condition, as a debt from the respondent.
• [113] However the applicant says that given the adversarial attitude adopted by the respondents to the Body Corporate throughout this episode, it does not wish to carry out the work of restoring the walls to their original location and condition. Instead, it asks for an order that the respondents carry out that work. The Body Corporate believes this is the only solution that will provide members with the confidence that the structural strength of the lot and the building has not been negatively impacted.
• [114] In addition, by making the unapproved changes to the walls, they caused cracking in at least lots 5 and 11, and therefore the respondents are liable to refund the costs of repairing any non-structural cracking to the owners of those lots.

• [115] Finally, the respondents note that previously the owner of lot 11 lodged an adjudication application with this office, seeking similar orders to those sought in this application.[35] The applicant in that case alleged that the walls were structural, on the following bases:

(a) the CMG engineering reports are based on original plans that do not reflect the Lot 2 "as built";

(b) the second kitchen wall is an extension, and the same width, of a load bearing wall labelled W40; and

(c) the Wall labelled W35 runs the full length of the hallway, demonstrating the differences between the original plans and Lot 2 as built.

• [116] In that case the Adjudicator declined to make the requested interim order because the applicant (owner of lot 11) failed to produce sufficient evidence to support his opinion that the subject walls were loadbearing. The respondents note that although the Applicant in this application and the prior application are different, the relief sought overlaps to the extent it seeks that the renovation does not continue. They argue that the substantive issues for determination are the same; and the Applicant has used this application to submit further material which was not submitted in the prior application. The Respondents therefore submit that this interim order application should be dismissed based on issue estoppel or res judicata.
• [117] I am unable to agree with this argument. The legal doctrine of res judicata is applicable where a matter has been finally decided on its merits and prevents the matter being relitigated again between the same parties. Issue estoppel arises where a final determination directly involving an issue of fact or law disposes of the issue once and for all, so that it cannot afterwards be raised again.
• [118] In Camden [2023] QBCCMCmr 168 the applicant was the owner of lot 11 located on level E, and sought an interim order that the respondents take no action to remove or otherwise modify any internal walls until the issue of whether they are structural or essential supporting framework. Adjudicator Stone declined to make the requested interim order because the applicant had only raised concerns regarding inconsistencies between the original plans, engineering reports and the walls as built whereas the respondents submitted evidence from CMG Engineers who had inspected lot 2 and concluded that the kitchen walls are not loadbearing. However it is clear that the relevant issue was not finally determined, with the Adjudicator pointing out that the applicant had not presented expert engineering evidence to support his case, stating that "if evidence remains in its present form, I foresee little chance that I will accept the claim that the kitchen walls are loadbearing". The Body Corporate has since engaged MPN Consulting Engineers to provide an independent assessment of how removal or modification of the subject walls would impact on the structural integrity of the building. They are of the view that removal of those walls has resulted in some redistribution of load to the remaining walls and there is evidence of cracking in lot 5 which is located directly above lot 2.
• [119] For the above reasons I have made the following orders:

1. I declare that the four internal walls modified by the respondents were loadbearing due to their method of construction as masonry infill walls, built with no gap between the top of the wall and the concrete ceiling slab.
2. I declare that by removing or modifying these four walls, the respondents made internal structural changes and contravened Camden By-law 14 by not obtaining Body Corporate permission before undertaking these works.

1. I order that unless otherwise permitted by the body corporate, the respondents shall, within 6 months of the date of this order, rebuild the four walls as follows:

(i) The unit entry wall which has been totally removed must be rebuilt in its original location, length and state as a full-length masonry infill wall with no gap between the top course of bricks and the ceiling.

(ii) The bathroom wall, which has been totally removed and replaced with a partial nib stud and plasterboard wall, must be rebuilt in its original location, length and state as a full-length masonry infill wall with no gap between the top course of bricks and the ceiling.

(iii) The eastern kitchen wall, which has been shortened by approximately 60cm and had large sections replaced with stud plasterboard walls, must be rebuilt in its original location, length and state as a full-length masonry infill wall with no gap between the top course of bricks and the ceiling.

(iv) The northern kitchen wall, which has been totally removed must be rebuilt in its original location, length and state as a full-length masonry infill wall with no gap between the top course of bricks and the ceiling.

1. I further order that until the respondents have completed the work ordered to the satisfaction of the Body Corporate, they must allow any persons authorised by the Body Corporate access to lot 2 upon receiving 7 days notice pursuant to Section 163 of the Act.
2. I declare that the Body Corporate may recover from the respondents, as a debt, all reasonable costs incurred by it in this matter, including, but is not limited to, the costs of engineering advice and the cost of any work the Body Corporate may have to carry out to meet its obligation with respect to the walls under Section 180(2)(b)(iii) of the Standard Module.
3. I declare that pursuant to Section 281 of the Act, the respondents are responsible for reimbursing the owners of lots 5 and 11 for all reasonable expenses they incur in rectifying cracks in their internal walls caused by the unapproved changes the respondents have made to the four walls, and that such reimbursement must be made within 30 days of receiving a request for reimbursement from the owners of lots 11 and 5.

[9] Annexure 2 to Application - Report dated 7 June 2023

[18] See Page 28 of attachments to Respondent's submissions

[19] See page 59 of attachments to Respondent's submissions

[22] Annexure 15 to Respondents' submission

[23] Exhibit 1 "Peters Report" dated 29 November 2024

[25] Camden [2023] QBCCMCmr 168

[26] See Annexure 27 to the Application

[31]Mr Pikusa confirmed this opinion in his report following a second inspection on 6 October 2023, after the respondents had removed the Northern kitchen wall, the Unit entry wall and sections of the Bathroom and Eastern kitchen wall - see Annexure 20.

[34] This is evident from photographs accompanying the application.

[35] Camden [2023] QBCCMCmr 168