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

MAINTENANCE - whether the body corporate must repair or replace a common property lift that has not been functioning for several months.

Act, s 20(1)(b); Commercial Module, s 127(1).

1. Within two weeks, the body corporate must return the lift servicing lot 18 to operation and ensure it remains operational thereafter, aside from any periods it may need to be temporarily offline while being upgraded, replaced, or repaired.
2. The application is otherwise dismissed.

• [1] The applicant owns lot 18 at Le Boulevard Surfers Paradise and lets it to the Department of Housing and Public Works. Lot 18 is the only lot on the second floor of the building and is accessible via a lift that runs from the basement carpark to the main entrance of lot 18, also stopping at the ground floor, or via fire stairs that connect to lot 18's fire door.
• [2] The lift has not been working since February 2025, and was also out of service from February to September last year. The applicant says the body corporate is failing to meet its statutory obligation to maintain the common property in good condition,[1] and is breaching the Disability Discrimination Act 1992 as mobility-impaired staff and clients of its tenant are unable to access the lot. It seeks orders in the following terms:

a) That the Body Corporate be directed to engage a suitably qualified contractor to replace the lift and carry out any necessary ancillary works to the lift to full working order as a matter of urgency; > > b) That the Body Corporate be directed to provide regular updates (every 7 days) to the Applicant and all lot owners regarding the status of the replacement works until the lift is fully operational; and > > c) That the Body Corporate be directed to engage a suitably qualified lift technician company to conduct regular ongoing maintenance of the lift and to implement appropriate monitoring for emergency call-outs and timely repairs.

If the Applicant is unsuccessful in obtaining order a) sought above, in the alternative the Applicant seeks an order from the Adjudicator that:

a) That the Body Corporate be directed to engage a suitably qualified contractor to repair the lift and carry out any necessary ancillary works to restore the lift to full working order as a matter of urgency.

• [3] The body corporate committee disputes that the body corporate is in breach of its obligation to maintain the common property in good condition, pointing out:
  1. a representative of the applicant was on the committee during some of the time the lift was out of service last year
  2. the body corporate engaged a contractor to service and maintain the lift for nearly ten years, and
  3. a recent audit identified numerous defects due to the age of the lift, not a lack of maintenance.
• [4] But it is not a question of whether the body corporate carried out acts of maintenance. It is a question of whether it successfully maintained (as in "kept") the common property in good condition. As Newton DCJ put it (referring to a decision by Brereton J of the New South Wales Supreme Court):

That duty is not one to use reasonable care to maintain and keep in good repair the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do so, but a strict duty to maintain and keep in repair. His Honour further held that the duty to maintain:

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

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

• extended to require remediation of defects in the original construction of the common property; and

• extended to oblige the body corporate to do things which could not be for the benefit of the proprietors as a whole or even a majority of them.

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

• [5] There is no apparent dispute that the lift has not been working since February. Therefore, the body corporate is in breach of its statutory duty.
• [6] The committee alternatively suggests that the lift may not be common property, noting:

... while the Respondent has a statutory duty to maintain common property in good condition, this duty does not extend to utility infrastructure that is solely related to supplying utility services to a lot, within the boundaries of the lot and located other than within the boundary structure for the lot, because that utility infrastructure is not common property.

• [7] That is an accurate description of the law,[3] but not of the lift. Registered plans SP313024 and SP229211 show that the lift is outside the boundaries of lot 18. It is clearly marked as common property. It also does not solely provide a utility service to lot 18, as it stops on the ground floor between lots 1 and 2. The committee says:

The only people that use the Lot 18 Lift to travel from the private basement to the second floor are the tenants of Lot 18 that have access to the basement parking and the key required to access the locked area in the basement and to enable the lift to operate. The only people who use the Lot 18 Lift to travel from the ground floor to the second floor are the tenants and visitors to Lot 18.

• [8] The committee did not claim that the lift is not used by other lots to travel between the basement and the ground floor though. The applicant says other lots do use the lift, and I am unaware of any reason they would not.
• [9] Finally, the committee points out that the applicant has submitted a motion to be considered at an annual general meeting on 30 July 2025 that might resolve the dispute. The motion gives owners the option of two quotations for "lift modernisation". The committee asks that the application is stayed while a decision is made.
• [10] But the body corporate has been in breach of its legal obligations since February. As an adjudicator tasked with resolving disputes in accordance with the Act, I could not reasonably allow that to continue for another month. Particularly while some staff and clients of the applicant's tenant are unable to reach the lot.
• [11] The body corporate must at least bring the lift back into operation in the short-term. I will give it two weeks. It need not (and likely could not) carry out the full lift modernisation or replacement in that time. But the applicant has submitted two quotations indicating the lift could be brought back online for $3,800 or $4,675 while the body corporate settles on a more enduring solution.
• [12] I will not order the body corporate to replace the lift, as it is not clear that is required. Repairs or "modernisation" may be sufficient. I have little information on what currently ails the lift. An audit conducted by Advance Lifts described many elements of the lift as "obsolete" and recommended their replacement with modern components. But the applicant says that audit was done in August 2024, and the lift subsequently resumed service. I do not know what caused it to fail again in February.
• [13] I will not order the body corporate to provide owners with updates every seven days. That is not a statutory requirement.
• [14] The body corporate is not required to engage a contractor to provide ongoing maintenance either. It is simply required to ensure the lift remains in good condition. The means are left to the discretion of the body corporate, acting reasonably.[4]
• [15] The body corporate must return the lift to working condition within two weeks and ensure it remains operational thereafter, aside from any periods it may need to be temporarily offline while being upgraded, replaced, or repaired.
• [16] It may ultimately be more cost effective and less stressful to modernise or replace the lift rather than continually carry out minor temporary repairs to keep it operational in its present aged condition. I leave that to the judgement of the body corporate.
• [17] The important point is that the lift is kept working. If it continues to fail, and the evidence indicates the only durable solution is the replacement or substantial refurbishment of the lift, an adjudicator is likely to order that outcome if a further application is made.

[1] Commercial Module, s 127(1).

[2] Newton DCJ, MAGOG (NO. 15) Pty Ltd v The Body Corporate for the Moroccan [2010] QDC 70 at [83]- [84].

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