Janelle [2025] QBCCMCmr 336 (1 October 2025)

MAINTENANCE; BY-LAWS; REASONABLENESS - where a bathroom renovation in the lot above the applicant's damaged the slab between them; whether the body corporate must investigate the slab to ensure it remains structurally sound.

Where the body corporate committee resolved to retrospectively approve the bathroom renovation; whether the committee acted unreasonably and the resolution should be declared void.

Act, s 20(1)&(1)(b)(iii); Standard Module, ss 180, 187; Land Title Act 1994, ss 48C & 49C(4).

• [1] In July 2024, a renovation in lot 10's bathroom created or expanded an opening through the slab separating lot 10 from Mr Jayaram's lot 6 below. Mr Jayaram contacted the body corporate committee and asked it to have the slab restored to its original condition, or have an engineer certify it as structurally sound. He claimed lot 10 had breached by-law 5.1:

An occupier of a lot must not, without the body corporate's written approval, mark, paint, drive nails, screws or other objects into, or otherwise damage or deface a structure that forms part of the common property.

• [2] The committee advised that it issued a by-law contravention notice to lot 10, but subsequently concluded there was no continuing contravention because:

The owner has submitted evidence demonstrating that the issue has been adequately rectified, as verified by professional plumbers and the Brisbane City Council Plumbing Department.

• [3] On 23 January 2025, the committee resolved to give lot 10 retrospective approval for the bathroom renovation.
• [4] Mr Jayaram argues the body corporate acted unreasonably and in dereliction of its statutory maintenance obligations as:

...there are no engineering or expert reports or certificates confirming whether the concrete slab is still in a structurally sound condition despite lot 10's renovation works.

(a) pursuant to its statutory maintenance duties under section 180 of the Standard Module, the Body Corporate must ensure that the concrete slab between lots 6 and 10 is in a structurally sound condition, including by:

(i) investigating whether the concrete slab has suffered from damage as a result of the renovation works carried out to lot 10's bathroom;

(ii) rectifying any damage to the concrete slab to reinstate the concrete slab to a structurally sound condition; and

(iii) engaging an appropriately-qualified engineer to certify that the concrete slab is in a structurally sound condition;

(b) that the Committee acted unreasonably in passing the resolution by the vote outside committee meeting on 23 January 2025, such that the resolution is at all times void and unenforceable.

(c) any other orders that the adjudicator considers just and equitable in the circumstances.

• [6] Janelle was created under a building unit, now building format, plan of subdivision.[1] The boundaries of the lots are structural features of the building, with the boundary line lying at the centre of those features.[2] The structural feature separating lots 6 and 10 is the concrete slab that forms the roof of the former and the floor of the latter. Lot 6 encompasses the lower half of the slab, and lot 10 the upper half. No part of the slab is common property, notwithstanding that the body corporate must maintain it in structurally sound condition.[3]
• [7] Mr Jayaram claims the body corporate is not meeting that obligation, but he provides no evidence to substantiate the claim. He also has no "engineering or expert reports or certificates" to indicate the slab may no longer be structurally sound. As the applicant, Mr Jayaram bears the burden of proof.
• [8] He refers to my comment in Lorella Court that:

... the duty to maintain something in a structurally sound condition...must encompass an obligation to undertake preventative measures necessary to ensure there not be a malfunction.[4]

• [9] But that depends upon the circumstances. The body corporate is obviously not required to continually check every element of the building to ensure it remains structurally sound. It must have some reasonable basis for questioning the element's condition before it will be obliged to investigate.
• [10] Lot 10 and the committee point out there was always a plumbing penetration through the slab. Lot 10 only widened the opening to adjust the position of the sewer pipe. That seems to be supported by Mr Jayaram's own photographs, which show a pipe penetrating the slab but (post-renovation) with some additional open space around it. That additional space has since been filled with builder's foam.
• [11] Mr Jayaram claims some of the steel reinforcement in the slab was severed when the hole was widened, but there is no evidence of that.
• [12] It is not obvious that the committee should have questioned the structural soundness of the slab simply because an existing opening was made a little larger before being filled with foam. I am not satisfied of the claimed breach of the body corporate's maintenance obligation and consequently will not make the orders described above at paragraph 5(a).
• [13] Mr Jayaram argues the committee acted unreasonably when granting retrospective approval for the bathroom renovation on 23 January 2025 as it had no evidence that the slab remained structurally sound. That argument is misconceived. It is based on the misunderstanding that lot 10 required body corporate approval to alter the slab between lots 6 and 10. As discussed above, the slab is not common property. None of Janelle's by-laws require body corporate approval to alter a slab or otherwise renovate a lot.
• [14] That does not mean the body corporate would have had no recourse if lot 10 had damaged the slab. While the body corporate must keep the slab structurally sound, it can recover the cost of doing so from a person whose actions damage it.[5]
• [15] The plumbing infrastructure within the slab is common property.[6] The owner of lot 10 required body corporate approval to make any improvements to that.[7] But Mr Jayaram does not argue that the committee should not have approved the bathroom renovation because the plumbing work was not satisfactory. His claim of unreasonableness is solely concerned with the body corporate's alleged failure to take due care of the slab, yet that aspect of the renovation did not require body corporate approval.
• [16] The application is dismissed.

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

[3] Standard Module, s 180(2)(b)(ii)-(iii).

[4] [2023] QBCCMCmr 477 at [8].

[5] Standard Module, s 180(5).

[6] Act, s 20(1) & (1)(b)(iii).

[7] Standard Module, s 187.