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

MAINTENANCE; UTILITY INFRASTRUCTURE - whether components of an integrated air conditioning system within the applicant's lot "solely relate to supplying utility services to a lot"; whether the body corporate must repair those components, or allow the applicant's contractor access to common property air conditioning infrastructure to facilitate repairs to the components.

Act, ss 20(1)(b)(i), 94, 100(5), 281; Accommodation Module, s 170(1).

• [1] The eighth floor of Gasworks Residences suffered protracted problems with its integrated air conditioning system in 2023 and 2024. When air conditioning was finally restored to the floor on 12 November 2024, it was left off in Ms Elliott's lot 811. The body corporate manager had emailed her on 8 November advising that the body corporate's air conditioning contractor, Glenn Air, had located a fault in her lot that was affecting the air conditioning of all other lots on the floor. When she had not engaged Glenn Air to carry out repairs a few days later, her lot was mechanically isolated from the air conditioning system so that service could be restored to the other lots.
• [2] Ms Elliott argues that the fault within her lot is part of an integrated system servicing the whole floor and therefore is common property that the body corporate must repair. Alternatively, she says the part within her lot was likely damaged due to the problems with the rest of the system, making it the body corporate's responsibility to rectify.
• [3] But if she must have repairs carried out, she says she is entitled to use a contractor of her choice, and the body corporate must allow them access to the entire physical and diagnostic system for that purpose. The body corporate committee counters that Ms Elliott can use her own contractor to repair the components within her lot, but she must use the body corporate's chosen contractor to undertake or supervise any work on common property.
• [4] Ms Elliott seeks orders in the following terms:

1. The Body Corporate for Gasworks Residences meets the financial cost of all necessary repairs for Lot 811 to have functioning air conditioning within a reasonable timeframe.

2. If it is found in the adjudication process that The Body Corporate for Gasworks Residences is not responsible for meeting the financial cost of all necessary repairs for Lot 811 to have functioning air conditioning, that The Body Corporate for Gasworks Residences meet the financial cost that The Body Corporate for Gasworks Residences is found to be responsible for.

3. If it is found in the adjudication process that The Body Corporate for Gasworks Residences is not responsible for meeting the financial cost of all necessary repairs for lot 811 to have functioning air conditioning, then the following outcomes are sought so that Lot 811 has functioning air conditioning:

a. The Body Corporate for Gasworks Residences provides access to the common property (physical locations and diagnostics system) to the contractor engaged by the 811 Lot owner to enable the contractor to undertake diagnosis and repair works; and

b. The Body Corporate for Gasworks Residences provides approval for the contractor engaged by 811 Lot owner to conduct all necessary works on the common ducted air conditioning system required to repair the air conditioning so that Lot 811 has functioning air conditioning; and

c. Such access and approvals are provided in a reasonable timeframe and without financial cost to 811 Lot owner.

• [5] The body corporate must maintain the common property in good condition,[1] which includes "all utility infrastructure forming part of scheme land", except where it is:

(i) solely related to supplying utility services to a lot; and

(ii) within the boundaries of the lot (according to the way the boundaries of the lot are defined in the plan of subdivision under which the lot is created); and

(iii) located other than within a boundary structure for the lot.[2]

• [6] There is no dispute that the EEV and associated parts within Ms Elliott's ceiling void are within the boundaries of her lot, and not within a boundary structure. The focus of dispute is whether they solely relate to supplying utility services to her lot.
• [7] Ms Elliott says the air conditioning system on the eighth floor consists of compressors and condensers on common property that circulate liquid refrigerant to splitter boxes, also on common property, each of which serve several lots. From there, the refrigerant is piped into the ceiling cavity of each individual lot, where an electronic expansion valve (EEV) controls how much refrigerant enters an evaporator, also located within the ceiling void, for the purpose of cooling that lot. The refrigerant leaves the evaporator as gas and is piped back out of the lot to the splitter box, which returns it to the compressor and condenser to be returned to liquid and recirculated through the system.
• [8] Glenn Air reported that the EEV within lot 811 was getting stuck in the open position when the air conditioning for that lot was turned off, flooding the evaporator and sending liquid refrigerant back to the components on common property, triggering an error code. It recommended replacing the EEV, fan coil, and control board in lot 811, which would involve temporarily shutting down air conditioning on the entire floor and removing all refrigerant. Ms Elliott says this highlights that the entire system, including the defective parts within her lot, is "a common utility".
• [9] I accept that the EEV is part of an integrated system, its failure affects the rest of that system, and repairs involve work to the rest of the system. But none of that persuades me that it is not solely related to supplying a utility service to lot 811. As I understand it, the EEV within lot 811 only exists to regulate the flow of refrigerant to the evaporator within lot 811, which in turn only exists to cool the air within lot 811. It provides no utility service to any other lot or the common property. If lot 811 did not exist, nor would that EEV, but the remainder of the system would carry on operating for the benefit of the other lots. As matters stand, the EEV within lot 811 is not operating and has been isolated from the remainder of the system on the eighth floor, yet the system continues to function and provide a utility service for the benefit of the remaining lots.
• [10] None of the orders cited by Ms Elliott persuade me otherwise. In brief, Ocean Plaza Apartments concerned maintenance of sewer pipes, but they were on common property and provided a service to several lots.[3] Esplanade concerned maintenance of waterproof membranes in an exclusive use area and on lot balconies.[4] I do not find either to be useful authority for the argument that an EEV installed within a lot to provide cooling to that lot is common property.
• [11] The body corporate committee, on the other hand, refers to several orders concerning integrated air conditioning systems with water cooling towers on common property that circulate chilled water to infrastructure within each lot.[5] In each case, the adjudicator considered the elements within each lot, installed there for the sole purpose of cooling that lot, to be the lot owner's responsibility to maintain.
• [12] Ms Elliott argues that the chilled water systems described in those orders were not integrated to the same extent as the system at Gasworks Residences, as the failure of components within the lots would not have affected the whole systems. But the fact that the failure of the EEV affects the whole system is not sufficient to persuade me that the EEV does not solely relate to supplying a utility service to lot 811. The EEV was not installed within lot 811 to provide a utility service to any other lot or common property. It is solely there to provide a service to lot 811 by controlling the amount of refrigerant entering the evaporator. Its failure may affect the remainder of the system, just as an electrical fault in an appliance might black out several lots, but it does not exist to prevent that from occurring.
• [13] Ms Elliott also refers to River Park View to establish that a party that fails to meet a statutory maintenance obligation and thereby damages an applicant's property can be held liable for the damage. That is correct and is set out in section 281 of the Act.[6]
• [14] Ms Elliott suggests that her EEV may have been damaged due to the broader faults affecting the entire system on the eighth floor. She says impurities in the refrigerant can cause an EEV to become stuck. That sounds plausible, but there is no evidence that establishes it as a likelihood. Ms Elliott says several other lots have had EEV problems and she submitted an email sent by the body corporate committee that speculated they may all have been part of the same faulty batch. That sounds equally plausible.
• [15] In the absence of a clear link between the body corporate's failure to keep the common property components of the air conditioning system in good condition and the failure of Ms Elliott's EEV, I cannot order the body corporate to repair the EEV under section 281.
• [16] If she is to repair the EEV herself, Ms Elliott requests orders to compel the body corporate to allow her contractor to access the common property infrastructure to facilitate the repairs. She wrote to the committee in late December 2024 and asked that Sun City Air Conditioning be permitted access to the system. I note that by-law 32(a)(iii) prohibits an owner from interfering with utility infrastructure or utility services without the body corporate's written approval. The committee refused and referred Ms Elliott to its preferred contractor, Team Air.
• [17] Ms Elliott does not clearly say why the committee could not specify the contractor it would permit to access the common infrastructure as a condition of its approval under by-law 32(a)(iii). The body corporate must administer the common property and enforce the by-laws.[7] At face value, that entitles it to make decisions of this nature. It must act reasonably though.[8]
• [18] The committee says it insisted upon Team Air because "after several months of inoperable air conditioning on Level 8, the Respondent is highly focused on ensuring that only technicians with specific expertise in LG systems are permitted to access the common property air conditioning components." Ms Elliott describes how the first contractors engaged to resolve the eighth floor's air conditioning problems:

...were unable to fix the air conditioning system over many months and then their actions caused extensive damage to many Lots, including 811, when Air Supplies on 9th May 2024 damaged a sprinkler head and caused flooding to the common and Lot owned property.

The Body Corporate's insurer accepted liability for this and paid for the complete restoration works to Lot 811 and others. Air Supplies then ceased trading...

• [19] In that context, it is not difficult to understand why the committee might prefer to only allow a contractor it knows and trusts to work on the common property elements of the air conditioning system. The committee says Team Air is recommended by the manufacturer of the system (LG) and is the body corporate's current contractor for air conditioning maintenance and servicing pursuant to motion 11 of a 13 November 2024 AGM. Ms Elliott points out that Team Air is one of five contractors authorised by LG for work under warranty, but the warranty has expired in any event. Also, she says the resolution on motion 11 was to engage Team Air for the body corporate's own air conditioning maintenance, and "this simply cannot be read as Team Air being approved as the mandated contractor who must be engaged by all owners for all air conditioning repairs".
• [20] But I do not understand the committee to be arguing that it was required by LG or motion 11 to insist Ms Elliott involve Team Air in any work on the common property, only that it was reasonable to do so given its recent difficulties with the system. The fact that the manufacturer of the system has confidence in Team Air for warranty work was a relevant consideration for the committee, notwithstanding that the proposed work would not be done under warranty. The body corporate's recent vote in support of Team Air for the body corporate's own air conditioning maintenance was also relevant. I am not persuaded that the committee's restrictive, cautious approach was unreasonable in the prevailing circumstances.

[1] Accommodation Module, s 170(1).

[2] Act, s 20(1)(b).

[3] [2023] QBCCMCmr 9.

[4] [2014] QBCCMCmr 449.

[5] Markeri Court [2000] QBCCMCmr 173; La Porte D'Or [2001] QBCCMCmr 232; Centrepoint Surfers Paradise [2015] QBCCMCmr 10; Rothbury on Ann [2017] QBCCMCmr 30.

[6] [2006] QBCCMCmr 2.

[7] Act, s 94(1)(a)&(b).

[8] Act, ss 94(2) & 100(5).