Livingstonia [2025] QBCCMCmr 160 (16 May 2025)

PROPERTY DAMAGE - Where the body corporate incurred expenses in rectifying property damage - whether the respondent can be held liable for causing the damage.

• [1] By way of this application, the Livingstonia Body Corporate is seeking to have the respondent, Mr Lester, held responsible for causing a blockage in the sewer pipe between his unit, unit 5135,[1] and unit 5129.

• [2] Livingstonia Group Titles Plan 1712 is a residential body corporate in the Sancuturay Cove Resort development, which is a layered arrangement established under the Sanctuary Cove Resort Act 1985 (Qld) (SCR Act).
• [3] The SCR Act is one of several 'specified Acts' under section 326 of the Body Corporate and Community Management Act 1997 (BCCM Act). Section 325(2)(a) of the BCCM Act and section 5A of the BUGT Act provide that the BUGT Act continues to apply to plans registered for a specified Act.
• [4] Part 5 of the BUGT Act concerns disputes. Sections 75 to 94C provide for orders by a referee, with section 77(1) providing a general power to make orders as follows:

A referee may, on the application of a body corporate, a body corporate manager, a lessee, a person having an estate or interest in a lot or an occupier of a lot in respect of a parcel, make an order on any person entitled to make an application under this subsection or on the chairperson, secretary or treasurer of the body corporate for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power or function conferred or imposed by this Act in connection with that parcel.

• [5] While the body corporate does not refer to the duty, I note that proprietors and other occupiers of lots must not, (amongst other things), do anything or permit anything to be done on or in relation to the lot that interferes with the passage of water or sewerage through pipes.[2]
• [6] I am satisfied the application falls within the scope of the dispute resolution provisions in Part 5 of the BUGT Act.

Summary of application made by Livingstonia Body Corporate

• [7] The body corporate says that in or around April 2023, unit 5135 was having problems with a blocked sewer. On 19 April 2023, the body corporate engaged a plumber from Ashworth Plumbing to investigate. On inspection, the plumber found a blockage in the sewer pipe caused by building materials including grout and concrete.
• [8] The plumber attempted to clear the blockage with high-pressure water jetting. This was unsuccessful and a specialist contractor was engaged to apply a chemical solvent to dissolve the materials in the pipe and allow the blockage to be cleared. The plumber then returned several times, (on 20 April, 10 May, 12 May, 16 May and 17 May), before the issue was finally resolved.
• [9] I understand that the body corporate, having been the one to engage the plumber (and the specialist contractor who applied the chemical solvent), paid the invoices for the works which were carried out. It was not an inexpensive exercise with the total cost for the works being $10,788.25. The body corporate asserted that Mr Lester was responsible for the blockage and forwarded him the work orders and invoices requesting that he reimburse it for the works.
• [10] Mr Lester did not agree to reimburse the body corporate. The committee subsequently proposed that Mr Lester pay $10,000 and the body corporate would cover the remaining $788.25.[3] Instead, Mr Lester offered to pay $3,500 in full and final settlement of the matter. The committee rejected this offer and resolved to make an application for an order of a referee.[4]
• [11] The body corporate says that in light of the evidence from the plumber, Mr Lester was responsible for the blockage. It says Mr Lester has been provided with sufficient opportunities to reimburse the body corporate for the expenses it incurred to remedy the issue however, he has refused to do so.
• [12] The body corporate now seeks the following order:

That Damian Lester, the owner of 5135, is liable for causing a blockage in a sewer pipe situated between his unit 5135 (1st floor) and unit 5129 (ground floor).

• [13] I note the onus is on the body corporate to establish, on balance, that the final order it seeks is warranted in the circumstances.

• [14] Mr Lester was invited to reply to the body corporate's application for an order. However, he did not avail himself of the opportunity to do so.

• [15] Proprietors in Livingstonia were also provided with an opportunity to comment on the body corporate's application for an order.
• [16] Only the owners of Lot 87 made a submission. They said Mr Lester should reimburse the body corporate for the expenses it incurred in clearing the blockage from the common property pipes. They indicate the blockage was caused by renovations undertaken on Mr Lester's unit.

• [17] The body corporate has requested a referee make an order that Mr Lester is liable for causing the blockage in the sewer pipe between his unit and unit 5129. It has included in its application, amongst other documentation, the invoices from Ashworth Plumbing which contain the plumber's notes about the issue.
• [18] I carefully reviewed the invoices. On the first invoice dated 29 April 2023, the plumber noted the following from his visit to unit 5135 on 20 April 2023:

Returned to site to continue work and attempt to remove the concrete from the drain. Removed the toilet in unit 5135 for further access into the stack. Using the electric eel I attempted multiple times to break up the concrete but was unnsuccesful [sic]. While using the eel I would also high pressure water jet downstream attempting to wash away any bits of concrete I may have broken away. Was met by the body corporate president who informed me the unit above was not on the effected stack. The concrete was located upstream of any junctions for unit 5129, indicating the concrete/grout came from unit 5135. I was also informed unit 5135 had conducted bathroom renovations previously. Continued with the electric eel and the high pressure water jet until it became apparent it would not remove the concrete. [My emphasis added]

• [19] It appeared to me that the plumber did not independently investigate whether the concrete and other building materials blocking the sewer pipe came from Mr Lester's unit. Instead, it seemed he had been informed the concrete was located upstream of any junctions for unit 5129, indicating it came from unit 5135. He was further informed that unit 5135 had previously carried out bathroom renovations. I note the plumber goes on to state in his subsequent notes that the issue was caused by the renovation of unit 5135. It seemed to me that the information he was told on this visit was repeated in later invoices as a statement of fact.
• [20] On 1 May 2025 I wrote to the body corporate outlining my concerns with the plumber's notes as set out above and invited it to provide further evidence that the concrete and other building materials blocking the sewer pipe came from Mr Lester's unit.
• [21] I received the body corporate's response on 12 May 2025. It provided a letter explaining that the unit directly above Mr Lester's unit is unit 5139. It asserts that unit 5139 is connected to an entirely separate and independent sewer stack which runs through units 5137 and 5131. It reiterates that this stack is not shared with Mr Lester's unit or unit 5129. The body corporate says this was confirmed with the plumber and is consistent with the plumbing schematics for the building.
• [22] The body corporate asserts that, given the plumbing arrangement, any material found in the affected pipe could not have originated from any unit above Mr Lester's unit. It says no such connection exists. It says this supports the plumber's initial assessment as recorded in the invoice dated 29 April 2023 (referring to the statement I have quoted at paragraph [17] above).
• [23] The body corporate acknowledges that while the plumber's notes reference information provided by the body corporate president, it says the direction of the pipework and the absence of upstream units on the same stack provide a strong factual basis for the conclusion that the presence of concrete and other building materials in a section of pipe accessible only via Mr Lester's unit strongly indicates it is the source of the blockage.
• [24] On receiving the body corporate's response, I once again reviewed the notes provided by the plumber. It appears the body corporate takes the plumber's note dated 29 April 2023 to mean that he concluded "the concrete was located upstream of any junctions for unit 5129, indicating the concrete/grout came from unit 5135". However, it seems to me the sentence could equally be interpreted as being connected to the statements made before and after it. That is, the plumber was stating what he had been told rather than carrying out an independent investigation into the matter. At best, the note is ambiguous and this alone does not persuade me that the building material came from Mr Lester's unit.
• [25] So, the question then is has the body corporate provided any other evidence to substantiate its claim that Mr Lester is responsible for the blockage? I note it has asserted that the unit above Mr Lester's is on an entirely different stack which is not connected with either units 5135 or 5129 making it impossible for the materials to have come from there. It says this is confirmed by the plumbing schematics for the building. However, it did not provide the schematics it had referred to.
• [26] I have reviewed the survey plan which contains unit 5135.[5] The plan is a resubdivision of Lot 1 on GTP 1712 and now comprises 7 lots: lots 3, 4, and 5 on the ground floor, lots 6, 7 and 8 on the first floor and, lot 9 on the second floor.[6] Given the layout of the various lots, it seems possible that the concrete or other materials could have come from either the unit above or either of the units on the same floor as Mr Lester's unit. In the absence of any evidence of the plumbing connections, I am not satisfied that the concrete and other building materials could only have come from Mr Lester's unit.
• [27] The body corporate also asserts Mr Lester had carried out bathroom renovations within the last 12 months potentially explaining the presence of building materials causing the blockage. However, did not provide any evidence in its application to substantiate that renovations were untaken on unit 5135. While Mr Lester did not provide a submission on the dispute, the body corporate submitted some correspondence it had with Mr Lester about the issue. I note that nowhere in this correspondence did Mr Lester acknowledge that renovations had recently been carried out on his unit.
• [28] As I set out at paragraph [12] above, the onus is on the body corporate to establish that the order it seeks is warranted in the circumstances. While it is clear there was concrete and other building materials in the sewer pipe between units 5135 and 5129, the body corporate has not provided sufficient evidence to persuade me with the necessary degree of certainty that the building materials found in the pipe came from unit 5135. It follows that I cannot find Mr Lester responsible for the blockage.

• [29] For the reasons provided above, I have dismissed the body corporate's application.

[2] See section 51(1)(a)(ii) of the BUGT Act

[3] Motion 6.2 of committee meeting on 28 June 2023

[4] Motion 2.7 of the committee meeting on 26 July 2023