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

• the body corporate investigated water ingress to a lot below the applicant's lot
• the ingress was ultimately found to be caused by failed waterproofing in a shower in the applicant's lot
• the applicant repaired the shower.

• must reimburse the applicant's expenditure on the shower
• may recover the cost of its investigations from the applicant.

Act, s 20; Accommodation Module, ss 150(2)(a)(i), 152(1)&(5), 170(1)&(2)(a)(iii), 200(1)(a)&(2), 201(3), 202.

1. The body corporate may not recover from the applicant the $8,189.45 it spent investigating the cause of the water leak into lot 304.
2. The application is otherwise dismissed.

• [1] In 2022 water was found to be leaking into lot 304, below Ms Trench's lot 404. The body corporate investigated for 14 months at a cost of $8,189.45. The water was ultimately found to be coming from a shower with failed waterproofing in Ms Trench's lot, which the body corporate decided was Ms Trench's responsibility to repair. She did so at a cost of $12,158.72, though she maintains it was the body corporate's responsibility. The body corporate then sought to recover the cost of its investigations from Ms Trench.
• [2] Ms Trench seeks orders in the following terms:

1. fully reimburse us for the costs associated with repairing our shower. These costs amount to $12,158.72

2. Relieve us of the costs incurred by the Body Corporate to investigate the source of the leak. These costs total $8,189.45 and are currently shown as outstanding on our levy notice

Alternative Relief (if full relief is not granted):

That the Body Corporate be ordered to at minimum retract all inspection and investigation costs amounting to $8,189.45, which were undertaken at their discretion and consistently treated as a Body Corporate responsibility, including written confirmed statements to that effect.

• [3] As the owner of the lot, Ms Trench must maintain it in good condition.[1] That includes the shower and its waterproofing.
• [4] Ms Trench claims the body corporate has taken responsibility for similar repairs in other lots in the past. If so, it should not have. I cannot facilitate a similar breach of the legislation in this case by ordering the body corporate to bear the cost of repairs that the Accommodation Module says should be borne by Ms Trench.
• [5] Ms Trench says her situation is like that considered in Mon Komo Residences Subsidiary [2020] QBCCMCmr 339. In that matter Adjudicator Sutherland dismissed the body corporate's attempt to have a lot owner repair their lot and the lot below after a leak from the former damaged the latter. He was not satisfied that the repairs sought by the body corporate would resolve the leak, which he found was caused by the body corporate's failure to maintain the balcony waterproof membrane in good condition, and he also did not accept that he had the power to order repairs to the property of another owner who was not a party to the application.
• [6] Those are not the present circumstances. While the body corporate must maintain in good condition "roofing membranes that are not common property but that provide protection for lots or common property",[2] which includes a waterproof membrane upon a balcony that forms a roof over a lot or common property, that does not extend to the waterproofing within a shower cubicle. Shower waterproofing is applied to the walls and base of the shower cubicle. It is not a roofing membrane.
• [7] With respect to the second issue, I do not see the body corporate's legal entitlement to recover from Ms Trench the money it paid various contractors to investigate the cause of the leak. The committee submitted a statement from a former committee member with knowledge of the issue who said:

... the body corporate has investigated these issues to determine if the leak has come from common property, for which the body corporate is responsible, or from a unit for which the owners of that unit are responsible...

• [8] That is understandable. Given the body corporate's responsibility for roofing membranes and utility infrastructure,[3] it was possible that it was responsible for rectifying the leak. That could only be determined by investigating. The body corporate appears to have acted reasonably in pursuit of its statutory functions.
• [9] But there is nothing in the Act or Accommodation Module to indicate that the body corporate may recover those costs from Ms Trench simply because the fault that caused the leak turned out to be her responsibility. On the contrary, the body corporate raises the funds for meeting its maintenance obligations (which will sometimes involve investigations that ultimately prove unnecessary or fruitless) by levying all owners according to their contribution schedule lot entitlements.[4]
• [10] The body corporate can charge an owner for maintenance services by agreement with that owner, but no such agreement is in evidence here.[5]
• [11] The body corporate may also carry out work an owner is obliged, but fails, to carry out and recover the reasonable cost of the work from the owner.[6] But there is no suggestion that Ms Trench was reluctant to act. Rather, the body corporate took charge of investigating the issue from the time the problem became apparent.
• [12] Some current or former committee members suggest that the body corporate's investigations were confounded by Ms Trench's claim that the shower that was ultimately found to be defective was not in use, leading the body corporate to ignore it and explore other possible sources of the water. Ms Trench denies the claim, saying she only advised that the air conditioner in the ceiling cavity above that bathroom was not used and therefore was unlikely to be the source. There is no direct evidence to substantiate either version of events, so I attach little weight to these claims.

[1] Accommodation Module, s 201(3).

[2] Accommodation Module, s 170(2)(a)(iii).

[3] Act, s 20; Accommodation Module, s 170(1).

[4] Accommodation Module, ss 150(2)(a)(i), 152(1) & (5).

[5] Accommodation Module, s 200(1)(a) & (2).

[6] Accommodation Module, s 202.