Ephraim Island - Subsidiary 105 [2025] QBCCMCmr 405 | Case summary

Nathalie Fabre, former occupier of Lot 28102 (respondent)

Ephraim Island - Subsidiary 105 [2025] QBCCMCmr 405 | Case summary | Zoe

[14]

[13] SBC105 comprises 3 buildings. Survey plan 161701 includes Buildings H and I and was recorded in March 2006 and survey plan 170435 with Building J was recorded in November 2006. The applicant's Lot 28202 is on level C of Building J. Lot 28102 is directly below that lot on level B, being a ground floor lot above the basement.
[14] As this scheme is registered as a building format plan of subdivision, the boundary between Lots 28102 and 28202 will be the centre of the concrete slab which is the structural element that forms the floor of the lot above and the ceiling of the lot below.[12] Unless there is any utility infrastructure that is common property in the slab, there is no common property between the lots. In general terms, the owners of each lot are responsible for maintaining their lot,[13] but the body corporate is responsible for maintaining the slab in a structurally sound condition.[14]
[15] The applicants say the Lot 28102 air conditioner is located under the Lot 28202 main bedroom ensuite, with ducting running under the bedroom wardrobe and kitchen and family room tiles.
[16] The respondent says they became a tenant of Lot 28102 in about October 2014, and (due to medical circumstances) began using the air conditioner at around 19 degrees from mid-2018.
[17] The applicants became owners of Lot 28202 in June 2020 and say they moved into the lot in December 2020. They say they did not experience any condensation, moisture, or mould for the first 18 months.
[18] In around January 2022 the applicants installed new hard flooring in part of their lot.
[19] The applicants say that during 2022 and through to December 2024 they experienced some condensation on floors and wardrobe aluminium tracks. They say mould started appearing on clothes, shoes, and other items, and on the timber and tile floors. They say they asked other residents, who did not experience the same issue, but in December 2024 were alerted to the possibility that consistent cold from an air conditioner below could be causing condensation.
[20] In December 2024[15] a new air conditioner was installed in the respondent's Lot 28102 by Specialised HVAC Services Pty Ltd (Specialised HVAC), who is apparently the scheme's air conditioning contractor. This work apparently occurred at the direction of the property manager, with new air conditioning installed in several lots at the same time.
[21] The applicants say the next day the respondent told them she ran her air conditioner constantly at 19 degrees. The applicants say they told the respondent her air conditioner use was likely causing condensation and mould in their lot.
[22] In late December 2024 the applicants say they started to experience 'extreme condensation/ moisture' including the first significant condensation on their ensuite floor. They say they measured temperatures of 19 and 20 degrees in the floor with an infrared thermometer.
[23] In early January 2025 the applicants contacted the body corporate's onsite manager and the property manager for Lot 28102. The property manager contacted the respondent who said she tried using the air conditioner at a higher temperature at night but could not sleep. However, she said she would continue to trial higher temperatures during the day. The applicants say the floor temperatures they measured did not change.
[24] The applicants also contacted Specialised HVAC who said there was no fault in the Lot 28102 air conditioner. On 15 January Specialised HVAC provided a report to the onsite manager.
[25] On 16 January the applicants wrote to the respondent, via the property manager. They described the situation they had experienced particularly since the new air conditioner was installed. They referred to photographs and an owners' manual. They asked that the respondent comply with the guidelines in the owner's manual, being an average of 24 degrees, to ensure the system ran the way the building was designed and in keeping with the manufacturers recommendations. The applicants say the Specialised HVAC report was included, although it is not referred to in the letter.
[26] The respondent advised the property manager on 17 January that she had unsuccessfully tried for a couple of weeks using her air conditioner at 21 degrees at night but was still 'mostly' using it at 21 degrees during the day. On 8 February she wrote again. She expressed distress at that she was being made a scapegoat while acting within the scope of her tenancy agreement. She provided a medical certificate explaining her need for cooler temperatures. She noted news reports about Queenslanders experiencing an increase in mould due to unprecedented humidity. She referred to defects in the building. She said she operated her air conditioning in the range of 19 to 21 degrees, in accordance with its operating parameters.
[27] On 12 February the body corporate manager told the applicants the respondent had a medical condition that required her to run her air conditioner at lower temperature and questioning that her air conditioner was causing their mould. They also noted the applicants had provided no evidence to confirm the condensation or mould was caused by the air conditioner.
[28] It does not appear that the respondent's correspondence was provided to the applicants.
[29] Apparently on 23 February Coastal Climate Group provided a report to the applicants.
[30] BML Remediation (BML) attended the applicants' lot on 25 February. The applicants say they received the report and a remediation quote from BML on 24 March.
[31] The applicants continued to monitor the floor temperatures through to April. They say that during a 4-day power outage in March 2025, there was no condensation after about 1.5 days because the slab was able to warm up.
[32] On 1 April the applicants wrote again to the respondent via the property manager. The letter included the Coastal Climate Group and BML reports and the remediation quote. They said they were holding the respondent liable for the damages and losses arising from the extreme level of operation of her air conditioner, saying the damages could have been mitigated if she had adjusted the use of the air conditioner when requested. They asked the respondent to have her air conditioner set to a minimum of 24 degrees and pay them $37,521.38. They said if that was not actioned by 15 April, they would engage a solicitor. They said her immediate action would ensure further damage would be limited.
[33] The applicants say no action was taken or response received and there was no change in the floor temperature readings.
[34] On 4 June (before conciliation) the respondent moved out.

[15]

[35] The respondent says she has not breached section 167 of the Act or By-law 4.1 or is not the person responsible for any contravention. She provides copies of her correspondence. Her submissions include:
1. In April 2018 she was diagnosed with a medical condition. As a result of the treatment for that condition, since June 2018 her body does not naturally regulate her body temperature adequately which leads to overheating. She provides a medical certificate.
2. Before December 2024, there was no complaint from persons in Lot 28202 about issues with condensation or mould.
3. She moved out due to the stress caused by harassment from the applicants.
4. For nuisance or unreasonable interference to have occurred, any act must result in a substantial degree of interference with the reasonable standards of enjoyment of premises, but the ordinary and accustomed use of premises is not a nuisance. To make an order under section 281 of the Act, the adjudicator must find, on reasonable grounds, that she was the person responsible for a contravention.
5. The evidence is not sufficient to conclude that any mould or condensation in the applicants' apartment was caused by her use of her air conditioner.
6. The applicants say condensation and mould began in 2022. By that time, she had used her air conditioner at lower temperatures for extended periods.
7. The applicants were living in their lot for 2 years before they reported issues. There is no explanation as to why mould and condensation would not have been occurring during this period if her use of the air conditioning was the issue.
8. The cause of the issue is a defect in the building design or alternatively a defect in the applicants' flooring. It is the choice of design of the air-conditioning system in the scheme and the insulation of the ceiling void and the flooring in the applicants' lot.
9. The applicants altered their flooring in the same year they say condensation and mould issues began. Specialised HVAC queried if the flooring had been altered from the original design. That indicates the issues suffered by the applicants may have been caused by the works in their apartment.
10. She disputes breaching the owner's manual. It simply provides tips and does not state any issues with operating the system at a different temperature for extended periods.
11. She disputes breaching the manufacturer's instructions for the air conditioner. It recommends the air conditioner be operated between 18 and 30 degrees.
12. Specialised HVAC said this had been an issue throughout the last couple of summers, meaning it is a building wide issue and not restricted to her use of the air conditioning.
13. Specialised HVAC recommended four solutions for the issue of floors sweating from a ceiling void below. The option to reduce the run times of the system was not possible because of her medical condition. Her use was a necessity. To implement any term or restriction requiring her not to use the air conditioning in a way that suits her medical condition would breach the Anti-Discrimination Act 1991. The other options were available to the applicants and the body corporate to prevent the issue.
14. While there has been a nuisance or interference, she was not the cause of it. Her use of the air conditioning was reasonable in the circumstances. She is not the person responsible for any defects with the air conditioning system within the lot.
15. She questions the costs claimed.
[36] The applicants' reply to the submission includes:
1. They believe the respondent is solely responsible for the property damage as she ignored their requests to modify the use of her air conditioner or discuss possible solutions for many months.
2. They comment on the respondent's medical condition and symptoms.
3. The statement that the respondent has operated her air conditioner lower since 2018 cannot be substantiated. Regardless, they are only claiming damages from when the new air conditioner was installed in December 2024 when the issues were exacerbated.
4. They question that the respondent trialled the air conditioner at a higher temperature. They say their temperature log did not show any increase in temperature.
5. Their floors being covered in a substantial amount of condensation almost every day, all day, is unreasonable interference or nuisance. The inability to walk on the floor without the possibility of slipping is a hazard. It is not just inconvenience.
6. All expert reports confirm the respondent's actions caused the condensation, mould, and ultimately damage to their lot.
7. Specialised HVACC told them the old air conditioner was only working at 50% capacity.
8. The building was designed and built in accordance with relevant building codes at the time. The respondent has not provided any evidence of a design fault. If it was a design fault, other residents would have the same issue. The body corporate has confirmed the issue has not been raised by other residents.
9. The flooring in the bedroom/ensuite has not changed. The flooring in the lounge/dining room changed from carpet with underlay to a 5mm thick rubber underlay and 14mm hardwood timber. This would provide more insulation than carpet and underlay.
10. Their apartment already has underlay or insulation, insulating the ceiling void is not an option, and it is unreasonable to require them to run their air conditioner 24/7.
11. The issue was the respondent running her air conditioner contrary to the way the system was designed.
12. The air conditioner operation manual states a temperature setting range and permissible ranges of temperature. It does not recommend the system be run at those temperatures. They refer to an article from the manufacturer that air conditioning be set to "around 22-24 degrees (cooling) in summer". It says extremely low temperatures in summer can put unnecessary load on the air conditioner and consume more energy.
13. The respondent's health issues do not give her the right to affect another resident's enjoyment of their lot. She could have considered other options.
14. The lot owner is not responsible for the tenant's actions. The owner tried to set a minimum of 22 degrees to assist the situation but was told that was not possible.
15. They are not claiming for damage to personal effects, obtaining reports, accommodation during repairs, or other out of pocket expenses. They are only claiming for remediation and repairs to property. The valuation is to ensure the property is free from mycotoxins, which is an essential part of the remediation.
[37] The respondent subsequently submitted a further medical certificate.
[38] A late submission from the body corporate includes:
1. It acknowledges the applicants have suffered mould that they attribute to the respondent's use of her air conditioner.
2. On the facts presented, the situation represents a breach of the respondent's obligations under the Act rather than any failing of the body corporate.
3. No other resident has reported such issues, so the respondent's use of the lot was not an ordinary incident of living in the scheme but an outlier that caused substantial harm. The respondent's conduct was incompatible with the quiet enjoyment of others.
4. It supports an outcome that is deemed fair to remedy the situation for the applicants and deters similar nuisances, without unjustly burdening owners who were not at fault.
5. It would assist in monitoring compliance with any order as required, or facilitating any practical aspects and cooperating to ensure the applicants' lot is restored.
6. It requests that any monetary order be made directly between the parties. It does not seek to be a collection agent or intermediary for payment.
7. No order for payment should be made against the body corporate as there is no legal or factual basis for such an order.
8. While everyone has the right to use their lot, including for air conditioning, that right stops where it infringes on a neighbour's property and health.

[16]

[39] I wrote to the applicants seeking further information. I invited evidence of condensation and mould experienced before December 2024, evidence of the performance of the old and new air conditioners in Lot 28102, information about the owner's manual, whether mould remediation work had been undertaken in their lot, and clarification of the BML report. I also invited them to comment on the further medical certificate and the committee submission.
[40] The applicants provided further information in response, which I will note in my analysis below.
[41] I provided the further information to the respondent for comment. She says she has been unfairly targeted by the failure of the applicants and the body corporate to address the design and installation of the air conditioning system. She says she is being held responsible, despite being a compliant tenant with specific medical needs and limited financial means. She notes:
1. BML acknowledges condensation between apartments is common.
2. The issue was exacerbated by record-high humidity and extreme weather. Cyclone Alfred in March 2025 substantially increased humidity and the 5-day power outage forced residents to open windows and doors, exacerbating condensation in apartments.
3. It is unreasonable to attribute the problem solely to her using her air conditioner.
4. The onsite manager says this is a known and common issue and advised the applicants in January to operate their own air conditioner, but they refused. Had they done so, dew point may not have been reached and issues may have been prevented.
5. The applicants sought to impose their personal preferences on her rather than taking reasonable remedial action within their control.
6. There is no evidence that replacement of the applicants' flooring in March 2022 included the installation of a compliant vapour barrier.
7. Between the BML inspections in February and September, the applicants appear not to have modified their behaviour, allowing mould propagation to worsen. Despite claiming severe health impacts and uninhabitable conditions, they did not undertake the remedial works identified as necessary in February. This inaction has likely increased the extent and cost of the work.
8. Her settings were typically between 19 and 21 degrees, within the manufacturer's specifications and reasonable in the extreme summer conditions.
[42] The applicants' response to the respondent's comments included:
1. The building was designed and constructed in accordance with relevant codes and standards and Specialised HVAC does not indicate a design or installation flaw.
2. No evidence is provided of the claims that the building manager or other residents have reported similar occurrences.
3. The remedial measures the respondent suggests are not feasible or warranted.
4. The onside manager's suggestion of running their air conditioner the way the respondent did was an offhand comment. It is not reasonable for them to do that. On days of high humidity or elevated dew point, it is likely it was operating.
5. Condensation can occur between lots and high humidity and extreme weather can exacerbate condensation. But this would not have been a problem if the respondent had operated her air conditioner for shorter periods or at a higher temperature.
6. A vapour barrier was not required or recommended when they installed their flooring.
7. The respondent did not look at alternatives within her control, such as the installation of ceiling fans or the use of a personal air conditioner.
8. Remedial action had to wait until the respondent vacated the lot. If they undertook remediation exceeding $10,000 themselves, they would not be able to recover the cost.

[26]

[48] The concepts of nuisance and unreasonable interference in section 167 of the Act have been considered in several decisions.[16] Having regard to the case law, the relevant principles can be summarised as:[17]
1. The term 'nuisance' in section 167(1)(a) of the Act carries the common law meaning of private nuisance.
2. The test for 'nuisance' is the same as at common law and requires a substantial degree of interference according to what are considered reasonable standards for the enjoyment of those premises.[18]
3. The phrase 'interferes unreasonably' in section 167(1)(b) of the Act is to be construed according to the normal meaning of the words.
4. The test for 'unreasonable interference' does not involve any notion of substantiality.
5. The test for 'nuisance' and 'unreasonable interference' is objective.
[49] Unreasonableness in this regard relates to the interference and not the person's conduct. If there is substantive physical damage that is not trivial, that would ordinarily be sufficient to establish that the interference with another lot or common property was unreasonable.[19]
[50] But Wilson J, then President of the Queensland Civil and Administrative Tribunal, noted that the 'ordinary and accustomed use' of premises is not considered a nuisance, even if inconvenience to a neighbour is caused.[20] Arguably, if there was no more than the ordinary, normal use of a lot, there will be no nuisance or unreasonable interference.[21]
[51] The case law about common law nuisance also indicates a person may only be liable for nuisance that they knew or ought to have known of.[22] But liability can arise from the continuation of a nuisance where a person fails to remedy it without delay after becoming aware of it.[23] However, as I understand it, a person will not be liable in a claim of private nuisance for harm or damage that was not reasonably foreseeable.[24]
[52] There is limited consideration of the term 'hazard' for the purposes of section 167 of the Act, but in one decision it was noted as a non-technical term that relates to situations with a potential for harm that has not yet occurred.[25]
[53] I will say at the outset that the applicants provide insufficient argument or evidence of their bare claim that the condensation in their lot was a hazard for the purposes of section 167(1)(a) of the Act. However, I will consider whether the respondent used Lot 28102 in a way that caused a nuisance or unreasonably interfered with the use of applicants' lot.

[29]

[57] The respondent submitted that she used her air conditioner at lower temperatures - usually around 19 degrees - since 2018. In her response to the further information from the applicants, she said the air conditioner settings were typically between 19 and 21 degrees. The respondent also provided medical certificates evidencing her need to operate air conditioning at lower temperatures to manage her medical circumstances.
[58] The applicants question the respondent's circumstances and air conditioning use, noting she did not only use the air conditioner at low temperatures in summer. But the applicants do not provide any clear evidence to dispute the duration that the respondent operated the air conditioner at lower temperatures, the reason for that usage, or the temperature range used.
[59] If the respondent's use of the air conditioner was largely unchanged from 2018, the applicants provide no evidence to explain why condensation was apparently not evident in their lot at all until 2022. The applicants dispute the respondent's suggestion that the change of flooring in Lot 28202 in 2022 could have been a factor. The applicants also largely dismiss the relevance of events prior to December 2024 because they are only claiming damage from December 2024. But given the circumstances, it seems that what previously occurred is relevant to questions of the respondent's conduct and the cause of the condensation in the applicants' lot.
[60] In regard to the circumstances from December 2024, the applicants have provided no evidence of any change in the respondent's conduct in around December 2024 that correlates with the alleged existence or escalation of condensation in Lot 28202 from December 2024. To the contrary, the respondent claims (and the applicants provide no clear evidence to dispute) that she increased the temperature of the air conditioner during the day and trialled doing so at night (albeit apparently only temporarily) after the issue was raised.
[61] The applicants attribute the issue to the new air conditioner in Lot 28102. They say the respondent told them the old air conditioner in Lot 28102 was not functioning at full capacity, and that Specialised HVAC said it was only running at 50%. They claim the new air conditioner was more efficient. Despite my queries, the applicants have provided no evidence to substantiate those claims.
[62] But if any greater efficiency of the new air conditioner corresponded with the situation arising or escalating in late 2024, the applicants have provided no evidence the respondent was on notice of that or of the consequences. Moreover, there is no suggestion that the respondent installed or sought the installation of the new air conditioner. The respondent says the property manager directed its installation (presumably on behalf of the lot owner) along with other lots.
[63] As such, the applicants provide no evidence of any change in the respondent's conduct from the preceding 6 and a half years (except possibly to increase the temperature in response to the applicants' concerns).

[30]

[64] The applicants claim the respondent used her air conditioner in a manner that the system or building was not designed for.
[65] On the submitted evidence, I am satisfied the respondent was operating her air conditioner within the scope of the manufacturer's instructions. The respondent provides an extract from the air conditioner operation manual confirming a temperature setting range for cooling of 18 to 30 degrees. That range was confirmed by a property manager. It appears the manufacturer may generally recommend air conditioner usage at 22-24 degrees, for energy efficiency and to avoid unnecessary load on the equipment. But there is no indication that the manufacturer has suggested the air conditioner cannot or should not be used at lower temperatures. More significantly, there was no suggestion that operating the equipment at lower temperatures would have any impact other than on the equipment and the cost to run it.
[66] The applicants particularly rely on an 'Ephraim Island Owner's Manual'. One page in it refers to air conditioning. It indicates lots are supplied with a ducted, air-cooled, reverse cycle, split air conditioning system for heating and cooling. It says the system can be operated in a variety of ways to suit preferences. It refers to resident's instructions provided by the installer and instructions for the control panel, included in an owner's pack. It says the control panel allows control of the temperature and operation of the system.
[67] The manual then lists 'tips' for optimising the performance of the air conditioning. These include that the system had been designed to maintain an average internal temperature of 24 degrees, and that extreme settings such as 15 degrees or 28 degrees to do not improve performance of the air conditioning. It says extremes in temperature variation may not be achievable and may lead to much higher running costs. It also said 'Do not leave your dwelling closed up for more than four hours with a minimum temperature selected on the thermostat. This may cause freezing of condensate drains and cause water damage.'
[68] The applicants appear to interpret the manual to mean the system was not designed to operate lower than 24 degrees. I do not agree. It does not say the system can only be set at 24 degrees or even that 24 degrees is preferred. It refers to individual preferences. It warns against 'extreme settings', but 19 to 21 degrees is well above the cited extreme of 15 degrees. And the issues with extremes are directed at the performance and operating cost of the equipment and freezing condensate drains, not any impact on any adjacent properties.
[69] In an email on 5 January 2025, one of the applicants said Specialised HVAC was aware the respondent operated her air conditioner at 19 degrees because that was what he set it at. Presumably if Specialised HVAC considered an air conditioner could not be safely or appropriately operated at 19 degrees, they would not have set it at that temperature or would have warned the respondent against that temperature. No evidence has been provided the Specialist HVAC advised the respondent of any recommended operating range, or against 19 degrees, or of any adverse impacts of operating the air conditioner at low temperatures.
[70] The 5 January email also said Specialised HVAC was not aware of the reference to 24 degrees in the owner's manual. It seems then that the body corporate's own air conditioner contractor was not aware of any requirement or expectation to operate air conditioners at 24 degrees. Specialised HVAC referred to 24 degrees in an 'optimal' scenario in its report, but I have been given no evidence it advised the respondent or anyone else that 24 degrees or any other temperature was a required minimum to avoid condensation in other lots.
[71] The applicants say the previous owners of their lot gave them the owner's manual. In response to my query, they confirm this manual is not currently produced or disseminated by the body corporate. They say the body corporate manager advised the manual was given to original purchasers by the developer, along with appliance manuals. I have no evidence that it was given to the respondent or that it should have been.
[72] In the circumstances, I do not consider the contents of a document that is no longer produced or disseminated can be relied on to create expectations about how occupiers should properly use air conditioners in this scheme. And in any event, I am not satisfied the respondent's use of the air conditioner was inconsistent with the information in the manual.
[73] There is also no evidence of any by-law or other directions or advice from the body corporate to occupiers (or to the respondent specifically) about the appropriate or preferred operating temperature for air conditioners or the potential impact of air conditioner usage on other lots.
[74] The applicants also say the respondent failed to act despite being given three expert reports. I will detail those reports further below. But none of the reports specify that an air conditioner at the scheme cannot be run continuously or at 19 to 21 degrees.
[75] The applicants asked the respondent to operate the air conditioner at 24 degrees. But they did not provide any evidence to the respondent at the time, or indeed any evidence in this application, that operating the Lot 28102 air conditioner at 24 degrees (or any other specific temperature) was required, or that running it at a lower temperature was the sole or primary cause of condensation in Lot 28202. They particularly have not established that setting it at that temperature from late December, or from mid-January, or from 1 April, would have materially altered the level of mould damage in Lot 28202.
[76] On the submitted evidence, I do not consider the respondent was on notice that regularly operating the air conditioner at a lower temperature could potentially affect condensation levels in the applicants' lot before it was raised by the applicants. I have no evidence the respondent knew or ought to have known of a potential impact on another lot before then. And it was not until 1 April that the respondent was given reports that attributed mould in the applicants' lot to the respondent's air conditioning use. Any information before that appeared speculative or (in the case of the Specialised HVAC report) referred to multiple factors and solutions.

[31]

[77] The applicants repeatedly claim the respondent ignored them and did not respond or discuss the issue with them. They say the respondent is liable for the damage because she ignored them and failed to act. I do not accept this on the submitted evidence.
[78] The applicants did not directly contact the respondent about the matter other than during a car park conversation on 22 December 2024. Their two letters to the respondent were sent via the property manager. The letters did not invite discussion or solutions, but only stated the applicants' requirements. It is evident the respondent did respond, and in the same way as the applicants (that is, via the property manager). The respondent was not responsible for what information the property manager passed on. The applicants do not explain why the respondent had any greater obligation to communicate or identify a solution than they.
[79] I accept that a person can be liable if they fail to take reasonable steps to remedy a nuisance after becoming aware of it. But, as outlined, I have been given no evidence that the respondent was alerted to any potential impact from her air conditioner until the car park comment in late December 2024. And it does not appear that the respondent was given reports purporting to attribute damage to the air conditioner use until April 2025. But by that time the mould damage the applicants claimed for had already occurred.
[80] Much is made in the applicants' material that the respondent failed to change her air conditioning usage. The respondent did not set her air conditioner to 24 degrees when requested. But the applicants do not provide cogent evidence that she did not try at least for a short time to set it higher at night or use it at a higher temperature for a longer period, after the car park conversation. As such, it is not clear on the evidence that the respondent did nothing to abate any impact. And beyond increasing the temperature further, which presented difficulties for the respondent given her medical circumstances, the applicants do not evidence there was much more that a tenant (with limited capacity to install different infrastructure in the lot) in the respondent's circumstances could do.[27]
[81] The applicants say they claim the cost of rectifying the damage because the extent of the damage and the cost of remediation would have been reduced or avoided if the respondent had addressed the issue when they first raised it. However, this is not substantiated. I have been given no evidence of when the mould in the lot began or whether any greater change in the air conditioning use from December 2024 or January 2025 would have altered the existence or the extent of mould growth in the applicants' lot.

[34]

[86] The applicants say the liveability of their lot was affected. They say daily condensation on their floors caused a slip hazard, and linen, clothing, furniture, and carpets were constantly damp. They refer to excessive mould on timber and carpeted floors, walls, furniture, and personal items, and that some items had to be disposed of. They further say when the dew point was high, they had to run their own air conditioner, keep their doors closed, and purchase moisture absorbers, incurring additional costs. They say they had to move into their spare bedroom because of concerns about mould spores, with consequential impacts including that they found it difficult to sleep with the air conditioner on. They suggest health issues they have suffered since January 2025 could be caused by mould spores in their lot.
[87] The application includes a log of temperatures recorded by the applicants in their lot. The log commences on 30 December 2024 and continues to 17 April 2025, with recordings taken on most days (and sometimes multiple times a day) in various locations in the apartment. The log highlights days when they say the floor temperature in some part of the apartment was below dew point and condensation appeared.
[88] The application includes numerous photographs said to have been taken between 13 January and 1 February. Many of the photographs include a thermometer directed at the flooring and showing readings ranging from 16.9 to 21.4 degrees. Some photographs are stated to show condensation on kitchen and ensuite floor tiles, timber flooring, and the wardrobe door track, and some moisture is discernible in these photographs. Other photographs are stated to show mould on a dog bowl stand, a stool, an iPad case, an ensuite wall, in a linen press, and on a timber floor. Mould is not necessarily clear in these photographs.
[89] Although the applicants say they experienced mould and condensation (by way of sticky floors) from 2022, they do not have evidence prior to December 2024.
[90] It is not clear when mould was first evident in Lot 28202 or what steps were taken by the applicants, from the inception of evident mould, to treat and remove the mould.

[35]

[91] The report from the director of air conditioning contractor Specialised HVAC on 15 January comprises a 2.5-page email to the onsite manager explaining how air conditioning works at the scheme. It says they are a 'common ceiling return system' in which the ceiling void contains the return air from grilles in the lot. This air runs into the air conditioning unit and is expelled via ductwork. It says the concrete slab above the ceiling void is generally not insulated on the underside which can cause a transfer of cold or heat as the temperature in the void lowers.
[92] Specialised HVAC discussed the scenarios if an air conditioner is operated at 24 degrees and 19 degrees. It said the former was a long-term optimal scenario and would not cause or only seldom cause issues, but if the system was operated for a long period at 19 degrees it would be possible for the slab to become 19 degrees. Then, if the floor of the apartment above was not insulated, it could become 19 degrees. Then, if the apartment was hot and the dew point was higher than the floor temperature, floor condensation could form. Dewpoint is discussed. The email then said that if windows and doors are shut, the humidity will decrease as will the dew point, meaning the temperature can be reduced more without condensation forming.
[93] The email said this had become a more noticeable issue over the last few summers and that very humid summers had increased the occurrence of the issue generally. It said the air conditioning was working but the issue was occurring because of dew point or doors and windows being open while the air conditioning is operating.
[94] It said the solutions included education of users, operating air conditioning at dew point or higher with windows and doors closed until the humidity in the apartment lowers, and insulating the flooring or ceiling void. It queried if the flooring had been altered. In the case of floors sweating from a ceiling void below, it suggested discussing with the neighbour to reduce the run times of the system so that the slab does not achieve 'full through temperatures'.
[95] There is no indication that Specialised HVAC inspected either Lot 28102 or Lot 28202 or had specific information about air conditioning usage in either lot or the impacts in Lot 28202. The email does not refer to the issue involving those lots.
[96] Another report was from the director of Coastal Climate Group. Although no information about this entity or the director is provided in this report, it appears to be an air conditioning provider. The report comprises an undated one-and-a-half-page letter.
[97] This report says they attended Lot 28202 on 18 February to investigate the condensation and mould issues that had presented over the previous couple of months. It says they carried out a 'thorough walk through and investigation' and found severe condensation and mould areas coming up from Lot 28102. It said it appeared the issues arose when the new air conditioning system for Lot 28102 was run for a long time at low temperatures.
[98] The report describes the air conditioning system in similar terms to the Specialised HVAC report. It said if an apartment below had their system running at 18-19 degrees the ceiling void would become the same temperature and after time the slab would also become that temperature. Then, if the apartment above has warm air throughout and the dew point is higher than the floor temperature, condensation will form. It said that had occurred in this case. It said temperature checks confirmed the flooring was reading temperatures between 18 and 20 degrees. It said the condensation issues from Lot 28102 could be prevented if the air conditioning system was set to maintain an average internal temperature of 24 degrees as intended and documented in the owner's manual.
[99] The report does not explain if Coastal Climate Group undertook temperature readings or relied on information provided by the applicants. It does not indicate that it inspected Lot 28102.
[100] BML then provided a 'Mould and Moisture Report' on 24 March following an inspection on 25 February 2025. The company's website says it provides (amongst other things) a mould inspection and testing service and mould removal services. The report states the assessment was 'undertaken and performed to ASTM D733 where possible' which appears to be a standard guide for assessment of fungal growth in buildings. The report also lists other codes, standards and guides for mould remediation and inspection.
[101] BML's 'executive summary' said the property had visible, settled spores. The report provides photographs, temperature readings, and observations of each room, including:
1. The condition of the office, bathroom, and living room were 'unremarkable'.
2. The applicants had issues with condensation on the tiled flooring of the living room and kitchen but that was not evident at the time of inspection. Mould was visible on the underside of a hallway table.
3. In the dining room, moisture was detected in the timber flooring in multiple areas and there was visible mould under the dining table.
4. In the master bedroom, robe, and ensuite elevated moisture was detected in the carpet, underlay and concrete slab of the wardrobe, moisture was detected in the ensuite floor, and visible mould was found on the ensuite wall.
5. Each of these rooms were described as being 'condition 2', an indoor environment which is primarily contaminated with settled spores or fungal fragments dispersed directly or indirectly from a condition 3 area and may have traces of actual growth.
[102] In the 'general notes' section of the report, under the heading 'causation' the report says 'The apartment below is running their air-conditioning on 19 degrees which is below dew point causing air to condense on the floor wetting all built materials at ground level'. This statement is repeated under the heading of causation in respect of each room, along with a statement that due to the presence of actual mould growth, there was a risk that microscopic mould had migrated and settled on surfaces.
[103] The report includes a mould analytical report from a mycologist at Indoor Environmental Consulting & Labs dated 26 February. It reported elevated levels of Aspergillus/Penicillium spores in the living room and high levels in the bedroom.
[104] The BML report describes the work required as a 'condition 2' clean of the office, bathroom, living room, and kitchen and, in the dining room and master bedroom, installing air filtration, disposing of the timber or carpet flooring, cleaning mould from the exposed concrete, and vacuum and wipe surfaces. BML's estimated the cost for mould remediation at $17,660.50. Also, a Total Flooring quote dated 23 April was for $19,200 to install timber flooring and carpet.
[105] In response to my queries, BML provided further information. This included:
1. It did not inspect Lot 28102 or seek information from the occupier of Lot 28102 about the use of air conditioning in that lot.
2. It cannot accurately determine the duration of mould growth in the affected areas.
3. In regard to the basis for its conclusion on 'causation' its original report, psychrometric readings throughout Lot 28202 indicated material temperatures were below dew point, confirming an active condensation risk. It said "This finding supports the professional opinion that conditioned air from the apartment below was cooling the floor slab to below dew point temperature, resulting in surface condensation." It said comparative measurements on wall areas showed no such risk. It said the dew point measurements of the flooring were consistent with cooler surface conditions and well below the expected range based on ambient psychrometric data. It said, in its opinion, the floor was being mechanically cooled from below as the internal conditions in the lot alone could not account for the temperature of the flooring.
4. It conducted a comprehensive assessment to determine the primary causation of mould growth and 'through a systematic evaluation and elimination' of alternative sources, confirmed condensation as the definitive causative factor. The cause was condensation on the concrete floor due to the floor reaching dew point temperatures, and no other causes were identified.
5. In regard to the prevalence of condensation related to air conditioning from premises below, it confirmed it was a common occurrence that air conditioning in one apartment can unintentionally cause thermal bridging that cools shared concrete structure.
6. The extent of mould contamination in the lot was greater in October than in February. Because remediation has not yet occurred, the contamination had worsened and the scope of works has changed. It said the delay increased the extent of contamination and scope of works, reinforcing the urgency of completing works without delay.
7. It said if the air conditioner below was run at a higher temperature, the slab would not have cooled as much, keeping the adjoining surfaces above dew point and preventing condensation, but did not provide any further detail.
[106] BML provided a second mould and moisture assessment report following an inspection on 24 September, including a further mould analytical report from a mycologist at Indoor Environmental Consulting & Labs dated 1 October.
[107] The new report said the primary issue stemmed from a neighbour's air conditioning unit being run constantly at around 18 to 19 degrees until the occupant vacated in June. It said that caused significant condensation on and within the shared concrete slab. It said the applicants had been performing regular cleaning and running an air purifier since June/July.
[108] It included occupier comments: with persistent respiratory issues and general malaise reporting since the original event, a musty odour, a daily temperature log showing correlation between dew point drops and mould growth; and green mould previously observed under furniture. The general observations included that a musty odour indicated microbial volatile organic compounds, and the property was clean and well maintained, but the odour and lab data confirm contamination. It described the findings in the rooms and the laboratory results.
[109] BML's discussion and conclusions were that the lot remained significantly contaminated with higher spore counts and a wider range of mould genera. It said despite the removal of the primary moisture source, the microbial ecology had not resolved. It said condition 3 active growth is established, it will not resolve naturally and persists unless materials were physically removed and surfaces subjected to microparticle cleaning.
[110] BML provided an updated estimate for mould remediation for $24,748.90. An updated Total Flooring quote dated 9 October is for $18,550.

[36]

[111] I am satisfied on the evidence that it is probable that operating the air conditioning in Lot 28102 for long periods at low temperatures contributed to the situation where condensation occurred in Lot 28202. However, I am not satisfied I have sufficient evidence to conclude it was the sole or primary factor.
[112] The BML and Coastal Climate Group reports attribute the condensation and moult to the Lot 28102 air conditioning. But for the purposes of the questions to decide in this application, I found those reports unsatisfactory. The authors of those reports did not inspect Lot 28102 or speak to the respondent about the air conditioning use in Lot 28102. They appeared to rely only on the applicants' advice as to the temperature at which air conditioning was operated, and that information may have been inaccurate. It is not clear that the report authors enquired as to the history of condensation in Lot 28202 or the history of air conditioning use in the lots.
[113] BML's initial report presented 'causation' as a statement of fact without any explanation as to the basis for it. Its further discussion does not go much further. I accept BML's conclusion that condensation was the cause of the mould growth in Lot 28202. But, despite my specific queries, BML did not provide detail its consideration of any factors contributing to the existence of condensation on the floor the lot beyond the use of the air conditioner in Lot 28102 (as distinct from the condensation being the cause of the mould in the lot).
[114] From the submitted evidence, it seems feasible that a combination of factors contributed to the existence and extent of condensation experienced in Lot 28202. Those factors may include the design of the building and the air conditioning system, the lack of insulation of the ceiling void of Lot 28101 and the flooring in Lot 28202, the change of air conditioning equipment in Lot 28102, the use of the air conditioning in Lot 28102, the differing use of air conditioning and opening of windows and doors in 28202, and external humidity.
[115] I note that if the building was designed, approved, and constructed in compliance with building requirements at the time, that would not necessarily mean the nature of the building design and air conditioning system could not contribute to the situation experienced by the applicants. In some schemes, for example, the ordinary use of a lot can cause significant noise transmission that impacts on adjacent lots as a result of the inherent building design and construction, even when that complied with relevant building standards. In such circumstances, an occupier's ordinary use of a lot would arguably not amount to a nuisance even if there was interference with the use of other lots. That can simply be the unfortunate reality of community living.
[116] On balance, I do not consider I have sufficient evidence to determine the extent to which any factors contributed to the situation. Some possible contributing factors are within the control of the parties, and some are not. But I do not accept the air conditioning usage in Lot 28102 can be determined to be the sole or primary cause of the condensation simply because that was within the control of the respondent, and she did not significantly change her usage.
[117] And even if the respondent's air conditioning usage was the primary cause of the condensation in Lot 28202 (and I am not satisfied of that), the applicants have not clearly established that the respondent is then responsible for rectifying the mould in the lot. It is the mould rather than the condensation that is the damage that the applicants are claiming for. It is certain there is mould in the Lot 28202, but it is not clear when that originated.
[118] BML is not able to determine how long the mould had been growing when it inspected in February and did not provide any specific response to my query about the likely extent of mould if the air conditioner had been used at 22 or 24 degrees from January or from April beyond a general indication that there may have been less condensation. The applicants have not evidenced that the nature and extent of condensation meant it was inevitable mould would grow. They have not established that the condensation, which they were clearly aware of, could not have been managed earlier or more effectively to prevent mould growing.[28]

Ephraim Island - Subsidiary 105 [2025] QBCCMCmr 405 (12 November 2025)

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Ephraim Island - Subsidiary 105 [2025] QBCCMCmr 405 (12 November 2025)

Legislation Cited (3)

Cases Cited (2)