Cirrus [2025] QBCCMCmr 249 (16 July 2025)

MAINTENANCE; PROPERTY DAMAGE - whether the body corporate must replace the applicants' leaking windows and repair consequential water damage to an internal wall.

Act, ss 238(1)(b), 241(1)(c), 276(1), 281(1)(a); Standard Module, ss 162(2), 180; Land Title Act 1994, ss 48C, 49C(4).

1. Within three months the body corporate for Cirrus must replace the defective balcony windows and replaster the internal hub wall within lot 16.
2. The application is otherwise dismissed.

• [1] This is a continuation of a dispute considered in November last year in Cirrus [2024] QBCCMCmr 414. In that matter, Ms Clarke and Mr Aitchison had put a motion to a general meeting proposing the body corporate replace the balcony windows of lot 16. The motion failed and they asked that it be deemed to have passed. I dismissed the application because the motion proposed expenditure above the major spending limit but did not offer owners a choice between at least two quotations as required. However, I also noted the evidence that the windows required replacement and urged the body corporate to act.
• [2] The body corporate had some work done to the balcony windows in December, but Ms Clarke and Mr Aitchison say they have continued to leak, damaging the hub wall beneath them. A report of 31 March 2025 by Jim's Building Inspections found the kitchen and balcony windows to be in poor condition, admitting water despite evidence of repairs, causing water damage to surrounding plasterboard wall linings.
• [3] Ms Clarke and Mr Aitchison now seek orders in the following terms:

• Acknowledge that the windows and frames are part of the common property;
• Take immediate action to replace the defective kitchen and balcony windows in Lot 16;
• Re-plaster the water damaged internal hub wall;
• Develop and implement an effective and preventative maintenance plan to ensure ongoing compliance with its obligations.

• [4] The body corporate committee does not dispute its responsibility for the windows. The body corporate must maintain in good condition "windows and associated fittings situated in a boundary wall separating a lot from common property", which describes the balcony and kitchen windows.[1]
• [5] The committee says it repaired the balcony windows in December 2024, and it has a maintenance plan in place for the windows and should be left to carry it out.
• [6] But that is not sufficient. As I said in the previous order:

[12] ... As pointed out by Newton DCJ in MAGOG (NO. 15) Pty Ltd v The Body Corporate for the Moroccan, the legal duty to maintain something in good condition:

...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.

...there has been a breach of the...duty as soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair.[2]

[13] If the windows around the balcony of lot 16 are leaking and in need of replacement, then the body corporate is presently in breach of its obligation to maintain them in good condition. It must address the breach promptly. It must do likewise for any other similar windows in other lots that are not in good condition. If there is inadequate provision in the sinking fund, it must "fix a special contribution to be levied on the owner of each lot towards the liability".[3]

• [7] CHGA Windows and Doors reported last year that the balcony windows "are leaking and in need of complete replacement, there is no quick fix solution to resolve the leak issue." Similarly, Nyblad Construction found the balcony windows to be in poor condition and unable to be altered or repaired to comply with current Australian Standards.
• [8] Contrary to this advice, the body corporate attempted further repairs, only for Jim's Building Inspections to find that the work was ineffective and the water ingress continues.
• [9] I do not accept that the body corporate should be left to attempt further half measures while the balcony windows continue to leak. It must promptly restore them to good condition. There is ample evidence that entails replacing them.
• [10] However, I accept the committee's argument that it has not yet been afforded an adequate opportunity to address the kitchen windows. They were not mentioned by CHGA or Nyblad Construction last year, and no repairs were proposed to them in the motion submitted to last year's AGM.
• [11] The first time they appear to have been mentioned to the body corporate was in an email of 29 March 2025. Ms Clarke said water was entering through the deteriorating kitchen window frames and asked the committee to "prioritize and address these concerns as soon as possible." The committee says two members visited lot 16 three days later and arranged for another committee member to return to assess the kitchen windows on 17 April. But Ms Clarke and Mr Aitchison then lodged the present application on 7 April, seeking the replacement of the windows.
• [12] An adjudicator's jurisdiction relates to disputes.[4] As Member Rogers of the Queensland Civil and Administrative Tribunal observed:

There is no definition of the word 'dispute' so it must be given its normal meaning. A dispute does not arise until an issue has been raised by an initiating party with another party and they have failed to reach a common agreement.[5]

• [13] That is why the Act requires an applicant to make reasonable attempts to resolve a dispute themselves before lodging an application.[6]
• [14] Ms Clarke and Mr Aitchison raised their concern with the body corporate, but there had not yet been any failure to reach common agreement when they lodged their adjudication application. The committee took the concern seriously, promptly visited the lot, and was intending to investigate further shortly afterward. It was apparently prioritising and addressing the concern as soon as possible as requested. I am not satisfied that a dispute has arisen warranting the intervention of an adjudicator.
• [15] The committee says there is no dispute about the hub wall either and it will repair it once it is sure the water ingress has stopped.
• [16] However, the hub wall was damaged, and remains damaged, because the body corporate has refused to replace the balcony windows. There is clearly a dispute about that, and the damage to the wall is a consequence.
• [17] Where an applicant suffers property damage due to a contravention of the Act, an adjudicator can order the responsible party to repair the damage.[7] In this case, the wall was damaged because the body corporate failed to meet its legal obligation to keep the balcony windows in good condition. I will order the body corporate to repair the wall as part of the remedy to the dispute about the balcony windows.
• [18] I will not order the body corporate to "develop and implement an effective and preventative maintenance plan". That would not add anything useful to the body corporate's existing legal obligations. It must keep the common property and certain other elements of scheme land in good or structurally sound condition.[8] Brereton J of the Supreme Court of New South Wales said the obligation to maintain something in good condition:

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

• required the body corporate not only to attend to cases where there is a malfunction, but also to take preventative measures to ensure that there not be a malfunction...[9]

• [19] The body corporate must already carry out whatever preventative maintenance is necessary to ensure that those things it must maintain in good condition, remain in good condition. The Act does not prescribe how that is to be achieved. Nor would an order requiring the body corporate to develop "an effective and preventative maintenance plan". The body corporate must only ensure that it delivers the required result.

• [20] For these reasons, the body corporate must replace the balcony windows and repair the water-damaged hub wall beneath them. The application is otherwise dismissed.
• [21] There is no need for a declaration that the windows and frames are part of the common property, and that statement may not be accurate anyway. It depends whether the windows are inside or outside the centreline of the structural features that form the boundaries between lot 16 and the common property.[10] I assume Ms Clarke and Mr Aitchison only sought to clarify that the body corporate is responsible for the maintenance of the windows. It is, irrespective of whether they are common property, and it does not deny it.
• [22] I will not make any orders in relation to the kitchen windows as I am not satisfied there is a dispute to enliven my jurisdiction.
• [23] Nor will I embellish the body corporate's maintenance obligations by directing it to adopt an "effective and preventative maintenance plan". It must simply ensure that it meets its existing obligations to keep certain elements of scheme land in good or structurally sound condition, however that is achieved.

[2] [2010] QDC 70 at [83]- [84].

[5] Walden v Broadwater Tower Body Corporate [2015] QCATA 28 at [23].

[10] Land Title Act 1994, ss 48C & 49C(4).