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

COMMON PROPERTY - whether the body corporate is liable for a burglary at the applicant's lot - whether the body corporate breached its obligations in regard to the common property - COSTS - whether costs should be awarded.

Act, ss 94, 270, 281

• [1] This application is about the liability for property losses incurred by the applicant.
• [2] The applicant says that on 15 September 2024, when he was away from home, his Lot 8 was forcibly broken into. He says personal items were stolen, including the keys to a vehicle which was also stolen. The applicant indicates that access to the building is controlled but there was no forced entry to the common property foyer. He says the body corporate had a key lockbox in a visible and accessible location at the entry to the building with a key for contractors. He claims the offender pried open the lockbox and used the key in it to gain access to the building.
• [3] The applicant asserts that the body corporate has a duty of care to ensure the safety and security of those who use common areas. He says the body corporate was negligent in safeguarding the foyer, and created the opportunity for criminal activity. He says its failure to maintain security measures breached its responsibilities regarding common property.
• [4] The applicant seeks reimbursement from the body corporate for his losses. It appears the burglary was not covered by the body corporate's building insurance. The applicant does not indicate whether had had contents insurance, but he claims nearly $15,000 for handbags, jewellery, a laptop and other items stolen. The applicant evidently had car insurance, but claims $2,000 as the excess for the claim for the theft of the vehicle.
• [5] I will consider whether the body corporate has any liability for the applicant's losses.

• [6] Moran Residences community titles scheme 54348 (Moran Residences) is an 8-lot scheme in Alderley. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as survey plan 323768.
• [7] The application seeks the following orders:

I am requesting that the body corporate reimburse us as the unit owners of Unit 8 for the value of $16,944.00 as noted in the schedule, refer the attachment.

• [8] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1] To the extent that the dispute relates to obligations under the Act, I am satisfied I have jurisdiction to determine it.[2]

• [9] The applicant initially applied for conciliation of their dispute in March 2025.[3] However, ultimately the conciliator ended the conciliation without a session being held.
• [10] This application was lodged on 25 May 2025. The Commissioner invited submissions from the committee and all owners.[4] A submission was made on behalf of the body corporate. The applicant obtained and responded to the submission.[5]
• [11] The application was referred to department adjudication.[6] I have now investigated the dispute, including reviewing the submitted material.[7]

• [12] The body corporate opposes the application. It seeks dismissal of the application and for the applicant to be ordered to pay its costs, which it says have exceeded $2,000.
• [13] The body corporate says there has been no breach of the Act. It says it has always taken steps to manage the common property and its assets reasonably and for the benefit of owners, and to comply with its obligations. It says the burglary occurred on the applicant's lot, not on common property, and the applicant was responsible for his lot. It says that, in its responsibility for the common property, it did not owe a duty to ensure the security of the applicant's lot or the safety of the property in the applicant's lot. It further says it does not owe a duty to prevent the criminal conduct of third parties. It says it had no control over the conduct of a third party.
• [14] The body corporate says the lock box had a pin, was not visible from the street, and there were no other complaints about it or burglaries in connection with it. It says the applicant has not substantiated that the lockbox was used to access a key. It says there is no evidence the lockbox was stolen on the date Lot 8 was broken into, or of how the offender entered the lot.
• [15] It further argues an adjudicator does not have jurisdiction to deal with a complaint under the law of negligence, which is a matter for a court under the Civil Liability Act 2003.
• [16] The applicant's response to the submission includes:
  1. It is highly likely the incident occurred due to the ease of access to the common foyer.
  2. There were no prior complaints about the lock box. The lock box has since been removed. It became clear it was negligent to leave the lock box in a visible location.
  3. It is unjust for one resident to shoulder the full repercussions of the body corporate's negligence. The body corporate must take responsibility and compensate the member who suffered losses as a result of its collective decision.
  4. The lockbox was discovered on the day of the incident. It was forcibly opened. The foyer door showed no signs of forced entry, indicating the key was used for access.
  5. The foyer is accessible only to residents and visitors permitted entry via an intercom.
  6. The Lot 8 door was securely locked and there was no accessible spare key. Entry to the lot was forced, with the door handle broken and damage to the door.
  7. If the third party had not had straightforward access to the common property, access to the unit could have been avoided. The forced access to the lot was in stark contrast to the access to the foyer.
  8. While third party actions cannot be controlled, preventative measures can be taken.
  9. The body corporate failed to make a genuine attempt to resolve the dispute.
  10. The application would not have proceeded if there was no jurisdiction for the complaint. Section 281 of the Act is clearly appropriate.

• [17] In determining whether the body corporate has any liability for the losses suffered by the applicant arising from the burglary of Lot 8, I will consider the body corporate's general responsibilities and the circumstances of the incident. I note generally that the applicant bears the onus of proof in this application.

• [18] The body corporate legislation does not expressly impose a duty of care on a body corporate to ensure the safety and security of individuals and property at a community titles scheme. However, a body corporate has a general statutory obligation to administer the common property and body corporate assets for the benefit of the owners of lots in the scheme.[8]
• [19] The body corporate also has an obligation to act reasonably in anything it does in regard to its general functions, including in making or not making a decision.[9] Similarly, a committee has an obligation to act reasonably in making decisions.[10]
• [20] The legislation imposes obligations on a body corporate to insure the common property and body corporate assets for their full replacement value and hold public risk insurance for the common property and its assets.[11] Where lots are created under a building format plan of subdivision (which is the case here) the body corporate must insure the building for its full replacement value.[12] But there is no other requirement for the body corporate to hold insurance in regard to the contents of lots or any personal property at the scheme.
• [21] The applicant refers to section 281 of the Act. That section provides that an adjudicator may order a person to repair damaged property or reimburse an applicant for repairs they have carried out. The adjudicator can make that order against a person the adjudicator believes on reasonable grounds was responsible for a contravention of the Act or CMS if the applicant suffered property damage because of the contravention. This section does not provide a general power to award compensation for losses, but rather is limited to repairs to property damage arising from specific contraventions.

• [22] The applicant provides little detail of the incident on 15 September 2024. For example, he does not provide a police incident report. He does not provide evidence that the lockbox was forced open, or otherwise any evidence of how entry was gained to the building or to Lot 8.
• [23] From the limited information provided, the applicant has not substantiated that access to the building was or likely was gained through the key in the lockbox or that the entry to Lot 8 was caused by or a direct result of a key being kept in a lockbox on common property. But if the offender did break into the lockbox to access a key and use it to enter the building, the applicant has not substantiated that the body corporate is liable for the conduct of the offender.
• [24] There is a general principle in law that a person does not have a duty to control another person to prevent that other person doing damage, unless there is some special relationship imposing a duty of control.[13] The High Court has said:[14]

The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.

• [25] However, as I understand it, a person may be responsible for harm done by another if the act of the other person could not have occurred but for the person's own fault or breach of duty.[15]
• [26] There is no suggestion here that the body corporate had any duty to control the conduct of the offender who broke into Lot 8. But more substantively, the applicant has not established that the body corporate's statutory obligations extended to a duty to protect owners, occupiers or their invitees from the criminal behaviour of a third party.
• [27] While the body corporate has a responsibility for the common property, the applicant has not established that the body corporate is inherently or solely responsible for the security of personal property at the scheme, including property within a lot. The security arrangements community titles schemes vary significantly. But even in schemes with a high level of security features, in my view, the statutory obligation to administer the common property and act reasonably does not impose an expectation of comprehensive security.
• [28] The applicant also has not established that it was unreasonable for the body corporate to have a lockbox on common property at all, or this particular lockbox. No detail is provided as to who decided to install the lockbox or when, but the applicant appears to acknowledge there was no previous issue or complaint about it.
• [29] The applicant has not established that the lockbox was readily visible to passersby or was otherwise inherently insecure. The alleged visibility of the lockbox is not clear from the photographs provided in the application and is denied by the body corporate. But if the lockbox was visible from outside the scheme, the applicant has not substantiated that having a visible lockbox in some way instigated or encouraged criminal activity or otherwise presented a foreseeable risk.
• [30] I also note that the applicant does not suggest the body corporate did not hold the required insurances or that his losses were claimable under the body corporate's insurance policies.
• [31] Based on the submitted material, the applicant has not satisfied me that the body corporate has breached a duty arising from its statutory obligations. If the applicant wishes to pursue a claim for common law negligence, that is beyond the jurisdiction of an adjudicator under the BCCM Act and would need to be pursued in the courts.
• [32] Where the applicant has not substantiated a body corporate liability for the purposes of the BCCM Act, it is not necessary to consider the specifics of the amount the applicant claims. But I would comment that if the body corporate had some liability arising from access being gained to the building, the applicant has not substantiated why the body corporate should be liable for the entirety of the loss arising from an offence that occurred within the applicant's secured lot.

• [33] The body corporate says it has incurred significant costs in responding to this application. It seeks an order that the applicant pay its costs.
• [34] There is no inherent authority to award costs to any party,[16] and no such authority is provided for in the legislation. However, the Act provides that an adjudicator may dismiss an application if satisfied the application is frivolous, vexatious, misconceived or without substance.[17] If an application is dismissed on that basis, the adjudicator can award costs (up to a maximum of $2,000) incurred by a party for loss arising from the application.[18]
• [35] I do not consider the order sought by this application is warranted. But the body corporate has not argued or established that the application was frivolous, vexatious, misconceived or without substance such that it should be dismissed on that basis. I am not satisfied there is any basis for me to award costs in regard to this application.

• [36] It was obviously unfortunate that the applicant suffered property loss from an unauthorised entry to Lot 8. But the applicant has not satisfied me that the body corporate breached its statutory obligations in regard to the incident or that it is legally liable for his loss. It follows that I have dismissed the application.

[2] Sections 227, 228, 276 and schedule 5 of the Act

[3] Conciliation application reference 0220-2025

[11] Sections 197 and 206 of the Standard Module

[12] Section 198 of the Standard Module

[13] Smith v Leurs [1945] HCA 27; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61

[14] Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 at 29

[15] Dixon J in Smith v Leurs [1945] HCA 27, cited in Ryan & Anor v Dearden & Anor [2023] QCA 20 at 22

[16] See for example Queensland Fish Board v Bunney, Ex parte Queensland Fish Board [1979] QSCFC 11

[18] Sections 270(3) and (4) of the Act