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

MAINTENANCE - where vermiculite containing asbestos was removed from the ceiling of the respondents' lot to enable investigations into the cause of damage - where the respodnents agreed to pay for the work if the investigations did not reveal a leak that the body corporate was responsible for - where no leak was detected - whether the respondents are liable for the cost of the work.

Act, ss 229A, 280, 281; Accommodation Module, ss 170, 180, 200, 201

1. In the absence of sufficient evidence that damage to the ceilings in Lot 64 was caused by something the Body Corporate for Elouera Tower was responsible for, the owners of Lot 64 are responsible for the total cost of the removal of the asbestos from Lot 64 that occurred in January 2023.
2. The application is otherwise dismissed.

• [1] This application is about the responsibility for work within a lot.
• [2] The respondent's Lot 64 is located on part of Level Q of the building. It is below Level R, which is a common property rooftop area. An area of the rooftop approximately above Lot 64, which includes a pool and a balcony, has been allocated for the exclusive use of Lot 64.
• [3] As part of the original 1980s construction, Lot 64 comprised vermiculite on the ceilings (sometimes known as 'popcorn ceilings) that contained asbestos. In 2022 the respondents reported that vermiculite was falling from the ceiling, which they believed to be the result of water leaking from the common property roof. To facilitate leak testing, the vermiculite was removed. The body corporate says it removed the vermiculate and undertook testing on the basis that the respondents agreed to pay the cost if the testing did not reveal a leak. It says the testing showed there was no failure to maintain the common property, but the respondents then refused to pay the $14,135 cost of the asbestos removal work.
• [4] The body corporate wants a determination on who is responsible for the vermiculite removal, and, if it is an owner responsibility, that the owners pay the cost and the application fees.

• [5] Elouera Tower community titles scheme 10614 (Elouera Tower) is a 66-lot scheme in Maroochydore. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as building units plan 4574.
• [6] This application was lodged on 11 July 2024 pursuant to a committee resolution passed on 4 June. The application seeks the following:

The Body Corporate requests a determination of maintenance responsibilities to the removal of the vermiculite in Lot 64 based on the information and evidence provided with this application and further that if determined in the Body Corporates favour that the Owner of Lot 64 ordered to reimburse the Body Corporate for the cost of removal of the asbestos at a total cost of $14,135.00 including GST plus the conciliation fee and adjudication fees.

• [7] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1] Prima facie, I have jurisdiction to determine this matter under the dispute resolution provisions.[2]

• [8] The body corporate initially applied for conciliation of the dispute in February 2024.[3] However, a conciliation session did not proceed, and the conciliation was ended in April.
• [9] This application was subsequently lodged. The Commissioner's delegate sought clarification from the applicant on some aspects of the application,[4] which was amended.[5]
• [10] The Commissioner invited submissions from all owners.[6] The respondents and another owner made submissions. The body corporate did not obtain or respond to the submissions.[7]
• [11] The application was referred to department adjudication.[8] I have now investigated the dispute, including reviewing the submitted material and seeking further information from the parties.[9]

• [12] The respondents' submission refers to a letter to the body corporate on 4 July 2023 giving their rationale for not paying the asbestos bill. They indicate concerns with the leak testing and the body corporate's dismissal of ongoing leaking issues. They question process of obtaining and providing them with quotes for the vermiculite removal. They say the body corporate has been unwilling to reach a mutual agreement and they are not willing to pay for the asbestos removal or the application costs. They say further leaking has not been addressed.
• [13] Another owner supports the committee's handling of the matter and does not think the body corporate should pay the cost of the investigations.

• [14] After reviewing the submitted material, I wrote to the respondents. I outlined my preliminary view that the body corporate would only be responsible for the cost of removing the vermiculite if it was damaged by something the body corporate was responsible for, or because it was necessary to remove the vermiculite to investigate or repair damage or a defect that the body corporate was responsible for. I noted there did not appear to be any evidence that any damage in Lot 64 originated from any cause that was a body corporate responsibility.
• [15] As the respondents indicated a view that the body corporate's leak testing was flawed and the report inconclusive, I invited them to provide an alternative expert report evidencing the existence of water ingress into Lot 64 and that it was caused by a defect or damage that the body corporate is responsible for. Alternatively, I asked the respondents why the body corporate should bear all or part of the costs of work within Lot 64.
• [16] The respondents' provided a moisture survey inspection report. They said:
  1. The report shows water damage is evident without the requirement for extensive testing. The moisture readings of over 25% above baseline are consistent with previous recordings they gave the body corporate. The recordings indicate the waterproofing integrity of the rooftop has been compromised.
  2. In late 2024 and into January 2025 there were additional leaking events. They refer to leaking of the metal roof and leaking in the hallway outside their front door. They say it is clear the sources of water ingress into Level 15 from the rooftop is not resolved.
  3. The body corporate's remedial works to the rooftop before the flood test invalidate any report it obtained. Before the flood test, the body corporate conducted remedial sealant works and water reactive expandable grout. The test results could not provide any substantive evidence of water ingress prior to the work.
  4. Rooftop maintenance has been substantially neglected for 20 years because the general ledger shows the rooftop waterproofing was last maintained was in 2005.
  5. There were likely several sources of water ingress into Lot 64. These are the anchor points and the lack of maintenance to grouting and floor/water junctions, which were addressed before the flood test, and the metal roof which still appears to be an issue.
  6. The body corporate should be responsible for the cost of removing the vermiculite and repairing the ceilings back to the standard conditions. It should identify the source of the leaking on the rooftop and undertake necessary repairs to the building and their lot.
• [17] I also sought confirmation from the respondents that vermiculite had to be removed from at least 2 rooms in Lot 64 regardless of any investigations or the responsibility for those investigations, because it was damaged and contained asbestos. They said water ingress was noted in 2 of the 4 rooms. They said they would honour their original agreement to split the cost of the vermiculite removal with the body corporate and split via square foot areas or pay for the non-water damaged rooms, but the body corporate did not accept that.
• [18] The body corporate responded that when the respondents undertook their moisture readings, it was a period when there was very high humidity. It claimed that raw concrete will absorb moisture from humidity in the air and give a higher than normal moisture reading. I also asked the body corporate for details of other or ongoing water leak issues. It described some issues, with supporting documentation, but says none have any bearing on Lot 64.
• [19] The respondents made unsolicited comments on the material provided by the body corporate.

• [20] The body corporate says the respondents are responsible for maintaining the internal ceiling of their lot. It says there has been no failure to maintain common property, and the damage to the respondents' ceiling was not caused by the substrate, waterproofing, or a body corporate contractor. Accordingly, the body corporate says the respondents are responsible for the cost of the investigation to determine the cause of the damage to the ceiling of Lot 64, including the cost of asbestos removal. The body corporate seeks a ruling that the respondents are responsible for the cost of the asbestos removal.

• [21] Given the disorganised information and disparate contentions about the events that have been submitted by the parties, I have summarised what it appears has occurred.
• [22] In October 2021 the company Australian Leak Detection said an inspection of the unit ceiling under suspect drilled holes showed no signs of moisture or damage and moisture readings showed no excessive moisture. It further said the concrete slab floor around the swimming pool showed no excessive moisture and there were no pipes in the vicinity of the drilled holes.
• [23] The respondents alleged that shortly after anchor points were installed above their lot in February 2022, they noticed the plaster on their ceiling begin to crack and fall away. They said this was an obvious sign of water damage. In a text message in May 2022 the respondents told the building manager they were having 'water issues' via the ceiling in their entrance way.
• [24] The body corporate indicates it received notification of water entering Lot 64 in July 2022. It said at this time a section of vermiculate on the ceiling in bedroom 2 had fallen away but there were no other visible signs of any water damage and the ceilings in all other areas were intact.
• [25] In August 2022 SWConsult Remedial Consultants and Engineers (SWConsult) apparently inspected and made recommendations.[10] The respondents said the engineer said anchor points on the roof were the likely source of leaking. The body corporate conceded it was first thought the anchor points may have penetrated the roof membrane. It said the company who installed the anchors removed them to determine if they penetrated the membrane. It said one was removed but there was no indication the membrane was compromised.
• [26] In around October 2022 the body corporate apparently organised for asbestos testing on the ceiling of Lot 64, which came back positive. Quotes for asbestos removal were obtained. At least one quote was provided to the respondents on 9 October 2022.
• [27] On 23 October 2022 the respondents wrote to the committee saying ongoing issues were causing leaking and ceiling damage in numerous locations in their lot. They said an urgent solution was needed. They noted the body corporate was awaiting further scans of the roof to identify the source of the leaks but that regardless of the cause it was the body corporate's responsibility to prevent further leaks and fix the damage. They said they were happy to cooperate and contribute to the costs for the rooms which did not have leaks.
• [28] In November 2022 BOSS Building Maintenance Pty Ltd provided a report on the suspected water ingress to Lot 64. It noted no water was visible at the time of the inspection and areas of the ceiling appeared to have been patched previously. A visual inspection of the rooftop noted areas of concern, including tile junctions unsealed, missing grout, penetrations that needed resealing, and possible membrane breaches. It recommended core sampling to determine the toppings and membrane systems in place, 24-hour flood testing, and moisture testing.
• [29] An undated text message (apparently dated 23 November 2022) from the respondents said, "We will go ahead with having the ceiling scraped (with us paying for this) and then having the water flood tests conducted." They asked it to occur in January at the lowest quote. The body corporate's representative acknowledged that and said they would contact the asbestos company to obtain a date in January and then book in the water blasting and a date to have the roof flooded. He said they would then have the engineer inspect the ceilings when flooded.
• [30] On 28 November 2022 the body corporate confirmed in writing to the respondents b that testing showed the vermiculite contained asbestos. It said it had contacted 3 companies and received 2 quotes to remove the vermiculite. It also said a waterproofing engineer had recommended further investigations. It said that to date there was no evidence that water was penetrating the roof slab, but the engineers' report should be conclusive.
• [31] The asbestos removal occurred on 24 January 2023. At the time the respondents were asked to complete a renovation application form outlining the removal of the vermiculite ceiling and other works they were undertaking in their lot. They were given a quote from Adios Asbestos dated 15 November 2022 for $14,135 to include with the form. An invoice for the asbestos removal, dated 13 February 2023 and addressed to the respondents, was forwarded to the respondents on 23 February 2023 for payment.
• [32] Thermal imaging apparently was undertaken before and after the flood test. The body corporate says it showed no abnormal moisture variation in the slab.[11]
• [33] Flood testing was undertaken by Top Dog Plumbing on 9 to 10 February 2023.
• [34] A SWConsult report dated 25 February 2023 refers to the flood test conducted by Top Dog Plumbing under its instruction and includes:
  1. Its preliminary inspection on 15 August 2022 reported on leaks in Lot 64 that 'supposedly started' after the installation of rooftop anchor points. It said at that time it observed drummy render and watermarks on the ceiling of the walkway inside and render peeling at various spots of the ceiling of bedroom 2, reportedly due to the leaks.
  2. It reinspected the building on 19 January 2023 and then attended the flood test.
  3. It referred to an August 2022 recommendation about the anchor points. It observed that the recommended work had not been carried out and that instead the suspect anchors had been removed and sealed over.
  4. At the time of the flood test all vermiculite had been removed.
  5. It was given thermal imaging reports from SEALCON Engineering Solutions from 31 January, 3 February and 13 February but due to the time gaps from the flood test, they were not included in the report.
  6. Moisture readings were taken at 4 times over 29 hours, first at 1 hour after the start of the flood test and lastly and about 4 hours after the flood test ended. Readings were taken in 4 locations (the 3 bedrooms and the front entry to the lot).
  7. There was an average increase of 3% in the moisture readings across the test, with the most significant increases of 19% and 20% in bedroom 2 and the front entrance.
  8. Despite increases in the moisture content of the concrete slab, the increase was not significant enough to confirm leaks. It said the increase could be the result of overnight condensation or air conditioner usage. It noted the moisture in bedroom 3 increased by an average of 1.5% without the flood test overlapping the reading location.
  9. It recommended monitoring the Lot 64 ceiling over 12 months.
• [35] Stephen Waite, the author of the SWConsult report, provided a statutory declaration on 20 February 2024 confirming that the 24-hour flood test conducted by Top Dog Plumbing on 9 February 2023 did not confirm any leaks into Lot 64.
• [36] The respondents asked to meet the committee before settling the asbestos removal invoice. They were given the SWConsult report on 2 March. The parties apparently met on 3 March.
• [37] The respondents then wrote to the committee on 6 March 2023 asserting that the body corporate should pay for the asbestos removal on the basis that it obtained the quote and agreed to the contract. They said they would then reimburse the body corporate for half the cost, minus an allowance for accommodation. The respondents then discussed the history of the matter. They said they did not dispute the SWConsult report. They agreed it was unlikely the roof was still leaking and were 'delighted' the problem seemed to have been rectified. However, they claimed this was because of the removal of the anchor points. They asserted it was not fair for the cost to fall entirely on them. They proposed an equal split of the costs.
• [38] On 9 March 2023 the body corporate said the engineer's report did not suggest the anchor points were the cause of any water leak and there was no independent or subject matter expert evidence to support the assertion as to the cause of any water leak. It said the core drilled into the roof to determine if the roof membrane had been pierced by the installation of the anchor points proved that no such breach occurred. It further noted the affected ceiling was below the owners' pool, and commented on fake grass near the pool that could become saturated and items stored near the pool that could dam water. The body corporate said it proceeded in good faith and on the understanding that the respondents would pay for the asbestos removal unless independent evidence indicated that cost sharing was appropriate. It further said the owners agreed again on 2 March to pay for the asbestos removal.
• [39] The body corporate wrote to the respondents on 6 April 2023 regarding their continued failure to pay the asbestos invoice as agreed. It said the body corporate had paid the invoice because the contractor undertook the work in good faith. It provided a further invoice.
• [40] The body corporate wrote again on 28 April 2023 seeking a response. The respondents replied on 5 May that their position was as per the email of 6 March.
• [41] Further communications ensured, and another meeting apparently occurred on 19 June 2023. On 20 June the body corporate said it had incurred $18,519, with $3,245 for the flood test, $156 for the plumber, $485 for carpentry work, and $498 for thermal imaging, in addition to the asbestos removal. It noted the respondents spent $690 for accommodation. It said:
  1. The respondents agreed by text to proceed with the vermiculite removal and that they would cover the costs.
  2. The engineer report said there were no water leaks through the roof.
  3. The anchor point in question was 4.3 metres away from the ceiling that delaminated.
  4. The ceilings of the other bedrooms, hallway and entry had no delamination.
  5. The total area of vermiculate removed was 49.11 sqm. Based on a calculation of the total costs, the total area, and the size of bedroom 2 where the vermiculate was delaminated, it would offer compensation of $3,988.20 with the respondents liable for the remaining $15,220.80 of the total costs.
• [42] On 4 July 2023 the respondents wrote to the body corporate. They noted events and said:
  1. SWConsult noted drummy render and watermarks on the ceiling in July 2022, which were still visible and are a clear indication of water ingress.
  2. From August 2022 to January 2023 numerous anchor points were removed and sealed.
  3. The flood test suggests differences in the moisture readings.
  4. The thermal imaging was not done at the correct time, relative to the flood testing.
  5. The flood test suggests the source of the leak has been greatly reduced, but the report suffers from several flaws which limit its ability to identify the initial cause of the leak.
  6. The incorrect order of operations and failed agreement on the efficacy, quote and results mean the report is inconclusive.
  7. It was made clear there would be some distribution of costs. They agreed to pay for the asbestos removal, on the understanding the body corporate would refund half. They refused to pay the invoice until an agreement could be met.
  8. While they welcomed a subsequent body corporate offer to split the costs, they disagreed with the inclusion of water test costs and the total area affected. They discussed the areas affected and other costs. They proposed a breakdown of costs.
• [43] On 8 September 2023 the body corporate refuted that it acted in bad faith. It said:
  1. The respondents on 2 occasions agreed to pay for the asbestos removal costs in full and did not honour that agreement.
  2. It followed the engineer's advice that the anchor points did not contribute to water entering Lot 64 and that there are no leaks identified to date.
  3. It did not agree with the respondents' interpretation of events and noted that owners are responsible for maintenance and repairs within their lot.
  4. It expedited the works in good faith and with the respondent's agreement to ensure the area could be seen during the flood testing and engineers' inspection.
  5. The photographs only identified two sections damaged and not the entire ceiling. It was no fault of the body corporate that the ceilings had vermiculite requiring removal.
  6. It acted in good faith by their agreement to pay the invoice and charge the cost. The lack of repayment has seen owner funds used to an internal improvement.
  7. It did not consider the respondents' offer would adequately refund the body corporate based on the damage sustained and the evidence of responsibility, but it was willing to settle for a payment of $10,000 to the body corporate.
• [44] On 29 October 2023 the respondents said they maintained their 4 July position.
• [45] A 'qualitive inspection report' from Thermal Scanners dated 14 November 2023 was included in the application. It appears to have inspected electrical infrastructure and found no 'thermal exceptions' where tests were completed and no hazards.
• [46] The respondents provided a moisture survey inspection report by a thermographer from HighPoint Solutions dated 24 January 2025.[12] The report said it conducted a qualitative thermographic survey, concrete moisture testing and leak detection activities to investigate the cause of water ingress through the concrete ceiling in Lot 64. It said:
  1. A visual inspection of the bedroom exposed concrete ceiling observed discolouration due to moisture.
  2. Elevated moisture readings of up to 25% above the baseline recording were recorded.[13]
  3. The area had not achieved extensive and prolonged rain events for some time, so moisture readings were expected to be slightly lower.
  4. It was clear that the waterproofing/weatherproofing integrity of the rooftop had been compromised. Further leak testing would be required to identify the ingress location. A visual inspection of the rooftop identified many likely water ingress locations.[14]
  5. There was no possible way that astroturf on existing tiles on the rooftop could be affecting the rooftop membrane beneath the tiles.
• [47] The respondents say this report highlights why the sensor used by the body corporate's engineer would not pick up the water ingress. This claim is not explained and is not evident at all to me from reading the reports.
• [48] The body corporate provides evidence indicating there was high humidity in the area on the date of the respondents' moisture survey.
• [49] The respondents have claimed there are further water leakage issues.
• [50] On 6 February 2025 Top Dog Plumbing provided a statement indicating that leaks in the metal roof over the lift room motors outside Lot 64 had arisen from silicone patches on holes breaking down over time and requiring resealing. It said that had no bearing on water entering Lot 64. It further noted that water was entering a cupboard in the corridor outside Lot 64. It said the leak was still under investigation, but it did not impact Lot 64.
• [51] The body corporate says that in late January 2025 the main water holding tank adjacent to the lift motor room developed a leak in the liner and leaked into the communications room some 3.3m from Lot 64. A statement from Top Dog Plumbing on 2 April 2025 confirmed the leak in the communications room was a result of a compromised lining in the existing water tank in the plant room and that a new lining had been installed.
• [52] The respondents claim the body corporate provided incorrect information about the metal roof (which they say is above the footprint of their unit) and the water tank (which they say is above their spare room with leaking pipes adjacent to their spare bedroom).

• [53] Maintenance responsibilities in a body corporate are affected by the boundaries of lots and common property. Elouera Tower is registered as a building format plan of subdivision (BUP). In this type of survey plan, boundaries are defined by the structural elements of a 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.[15]
• [54] A lot owner must maintain their lot in good condition, except where it is the body corporate's responsibility to maintain.[16]
• [55] A body corporate must maintain common property in good and structurally sound condition.[17] In a BFP, a body corporate must also maintain the following things that are not on common property in good condition:[18]
  1. railings, parapets and balustrades on the boundary of a lot and common property
  2. doors, windows and fittings in the boundary of a lot and common property, and
  3. roofing membranes that provide protection for lots or common property.
• [56] In a BFP, it is also responsible for maintaining, in structurally sound condition, foundation structures, roofing structures providing protection, and essential supporting framework.[19]
• [57] The legislation includes some exceptions. For example, a body corporate is not responsible for fixtures and fittings installed by an occupier for their benefit.[20] Maintenance responsibilities can shift where lots have been allocated rights over common property pursuant to an exclusive use by-law.[21] In this case, By-law 37(1) provides that the Lot 64 owners and occupiers are given exclusive use of the rooftop garden and must maintain and keep it in good repair.[22]
• [58] Section 281 of the Act provides for orders to repair damage or reimburse the costs of damage. If an applicant suffers property damage because of a contravention of the Act or CMS, an adjudicator can order the person they believe to be responsible for the contravention to repair the damage or reimburse the applicant for the cost of the repair.
• [59] The legislation also says a body corporate may supply, or engage another person to supply, certain services for the benefit of owners and occupiers.[23] The types of services include maintenance services. The body corporate may, by agreement with the person from whom services are supplied, charge for the services to the extent necessary for reimbursing the body corporate for supplying the services.
• [60] Charges for the supply of services to a lot arranged by a body corporate for an owner would fall within the scope of a 'specially contracted service enjoyed by a lot' that may be included on the notice of a contribution payable by the owner of a lot,[24] and will be 'another amount associated with the ownership of a lot' that will be recoverable as a body corporate debt if it is not paid.[25]

• [61] Vermiculite was removed from the ceilings in 4 areas of Lot 64 (being the front entrance and 3 bedrooms). It does not appear that the vermiculite was damaged in all of those areas. It appears that approximately 50% of the ceiling area removed was water affected.
• [62] It is evident the vermiculite was wholly within the boundaries of Lot 64. Prima facie, the vermiculite was the responsibility of the respondents to maintain in good condition. Where the vermiculite required repair or removal, prima facie, that was the respondents' responsibility.
• [63] I consider the body corporate would only be legally liable for the cost of removing or rectifying any or all of the vermiculite in 2 circumstances:
  1. If the vermiculite in the lot was damaged by a maintenance failure or other cause that the body corporate was responsible for.
  2. If it was necessary to remove the vermiculite to investigate or repair damage or a defect that the body corporate was responsible for.

• [64] It is evident and not disputed that there was damage to some of the vermiculite in Lot 64.
• [65] It is also evident there have been elevated moisture levels in Lot 64.
• [66] The respondents conclude, from the condition of their ceilings and the moisture recorded in Lot 64, that there is or has been water ingress into their lot. They appear to believe the existence of moisture and water damage within their lot must evidence a leak from the common property above. That may be an understandable assumption. But it appears to reply on speculation or supposition as to the source of the moisture in Lot 64 rather than actual evidence.
• [67] Engineers in 2022 indicated potential sources of leaks but recommended further testing. SWConsult could not identify a water leak from the rooftop following flood testing. The thermographer who undertook moisture readings in January 2025 said there were numerous potential sources of leaks on the roof top. But the report does not say what those sources were or provide testing or evidence as to actual leaks.
• [68] There also seem to be inconsistencies in the respondents' arguments. They suggest the flood testing and resulting report is not reliable because the body corporate had conducted remedial works to the rooftop before the flood test. However, they evidence ongoing moisture within their lot. But if the flood testing did not reveal a leak because that leak had repaired, why is moisture still evident in the lot? That situation could indicate that moisture did not arise from the flood tested areas or that the remedial works did not affect the flood testing.
• [69] The respondents have not provided evidence from an appropriately qualified person that the SWConsult report is not reliable. They have not provided evidence from an appropriately qualified person to confirm the existence of a past or current leak into Lot 64 or otherwise that any elevated moisture levels in Lot 64 arose from a maintenance failure of the body corporate.
• [70] The respondents do not appear to acknowledge the potential for elevated moisture levels within their lot to be caused by something other than an external leak, such as high humidity and sources internal to the lot. Condensation from cooking, laundering and showering, poor ventilation or air circulation, inappropriate or inadequately maintained air conditioning equipment and vents, or leaks in internal pipes are just some of the potential causes of high moisture levels within a residence.
• [71] Also, if there is or was a leak from the rooftop (which is not substantiated), in the absence of evidence as to the source or cause of that leak, there is no evidence that it arises from an element of the rooftop that the body corporate is responsible for, rather than (for example) a failure of the respondents to maintain their exclusive use rooftop garden.
• [72] I have been given limited evidence of a leak into Lot 64. While a leak from the rooftop or other location outside Lot 64 could be a cause of the moisture and water damage within the lot, I have insufficient evidence to determine that is the only or most likely cause or that there are no other plausible causes. While the body corporate bears the onus of proof in this application, it is entitled to rely on the default legislative obligations unless there is evidence to the contrary. Fundamentally, I consider there is insufficient evidence to displace the respondents' prima facie responsibility for the vermiculite in Lot 64.

• [73] The body corporate says it only proceeded with the vermiculite removal on the basis that the respondents agreed to pay if there was not a body corporate responsibility. It provides evidence of the respondents appearing to agree (by text) to pay for all of the asbestos removal.
• [74] The respondents assert the body corporate agreed to split the cost, but they provide no evidence of that. The suggestion of a discussion on splitting costs is not an agreement to split costs. Moreover, where the body corporate paid for the leak testing and some associated costs, it is evident the body corporate met some of the costs of the leak investigations. Furthermore, it is questionable whether it would be within the power of a body corporate to accept liability for the cost of work in Lot 64 which it was not legally responsible for.
• [75] On its face, the body corporate engaged Adios Asbestos on behalf of the respondents after receiving the owners' agreement to proceed. The applicants do not dispute agreeing to the work proceeding and pay for the work, although they claim they thought they would be reimbursed half. The respondents apparently requested body corporate approval for the work, referencing the quote. The Adios Asbestos invoice named the respondents. It seems the body corporate only paid the contractor because the respondents failed to do so.
• [76] Given the submitted evidence, I am satisfied that it is probable the body corporate organised the work on behalf of the respondents, with their agreement, and on the expectation that it would contribute only if it was responsible for any of the damage. In the absence of evidence that the body corporate was responsible for any of the damage to Lot 64, I satisfied that the respondents are liable for the whole of the asbestos removal work in Lot 64.

• [77] The body corporate seeks reimbursement of the conciliation and adjudication application fees.
• [78] The Act provides that, if asked, an adjudicator may order a respondent to pay the application fees for a conciliation application and adjudication application.[26] That order can only be made if the adjudication application was for the same dispute as a conciliation application which ended because the respondent failed, without reasonable excuse, to participate.
• [79] In the conciliation certificate issued on 9 April 2024, the conciliator determined the respondents did not make a reasonable attempt to participate in conciliation because the parties could not agree on a reasonable date for the conciliation. It appears the respondents were overseas at the time of the scheduled date, could not practically participate while they were overseas, and did not have a representative aware of the circumstances who could attend in their place. Despite that, the committee did not agree to proposed dates after the respondents' return. .
• [80] Parties are generally required to attempt to resolve a dispute internally and then by conciliation before a matter proceeds to adjudication. Participation in conciliation can assist disputes to be resolved more quickly and cheaply, as well as collaboratively. It is unfortunate the parties could not identify a suitable date for conciliation on this occasion. But given the circumstances, I decline to exercise my discretion to require the respondents pay the application fees.

• [81] The liability for maintenance within a body corporate is determined by application of the legislation and not by notions of what is considered to be fair. In some cases, it can be difficult to determine the cause of damage. It is possible there was water ingress into Lot 64 from some other source that the body corporate is responsible for. However, I am not satisfied that clear evidence of water ingress has been provided. There appear to be other plausible causes of the moisture in Lot 64. If there was water ingress (which is not established), I have no clear evidence that it arose from a failure of the body corporate to maintain those parts of the rooftop or other common property that it was responsible for rather than, for example, some cause related to the exclusive use area that the respondents have some maintenance responsibilities for. Liability cannot be determined based on speculation or supposition.
• [82] In the absence of cogent evidence that the damage to the ceiling in Lot 64 arose from a cause that the body corporate was responsible for, the respondents (in line with their default statutory responsibilities) are solely responsible for the vermiculite. I am satisfied the respondents were solely responsible removing the vermiculite from the ceilings of Lot 64 whether that occurred to enable leak testing, or to enable repair of the damaged ceilings, or to remove asbestos from the lot. Moreover, I am satisfied on the submitted evidence that the body corporate arranged the asbestos removal as a maintenance service on behalf of the respondents, with their agreement, and on the understanding that the respondents would meet the cost.
• [83] While I will make a declaration as to the respondents' responsibility for the vermiculite removal works, I do not consider I can make an order about the body corporate's recovery of the amount owed. A 'debt dispute' for the purposes of the Act is a dispute between a body corporate and an owner about the recovery, by the body corporate from the owner, of a debt under the Act. An adjudicator does not have jurisdiction in a debt dispute.[27] The body corporate can take proceedings in a court or tribunal of competent jurisdiction to recover the claimed debt from the respondents.
• [84] For the reasons outlined, I will not order costs.

[2] See sections 227, 228, 276 and Schedule 5 of the Act

[10] I have not been provided with a copy of this report.

[11] I have not been provided with these reports.

[12] The respondents refer to this as a professional engineering report. However, there is nothing in the report or the website for the company to show that the author of the report (who is identified in the report as a thermographer and not an engineer) or the company are qualified engineers.

[13] The report indicated testing occurred in the front entrance to Lot 64 and in bedrooms 1 and 2 only.

[14] The report provides no further detail or discussion of this inspection or potential water ingress sources. The report only describes inspecting an astro-turfed area of the rooftop.

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

[16] Section 201 of the Accommodation Module

[17] Section 170 of the Accommodation Module

[18] Section 170(2)(a) of the Accommodation Module

[19] Section 170(2)(b) of the Accommodation Module

[20] Section 170(3) of the Accommodation Module; There are other legislative exceptions that are not necessary to detail here.

[21] Section 182 of the Accommodation Module

[22] CMS recorded 15 March 2005, Titles dealing number 70850981.

[23] Section 200 of the Accommodation Module

[24] Section 153(2)(a) of the Accommodation Module

[25] Section 156 and the definition of 'body corporate debt' in the schedule 1 of the Accommodation Module