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

APPLICATION FOR INTERIM ORDER - whether the interim order sought by the applicant is warranted in the circumstances.

Act, ss 152, 252E, 331; Accommodation Module, s 170

1. The application for an interim order is dismissed.

• [1] Pacific Paradise Apartments is a 26-lot scheme situated in Yorkeys Knob, Queensland. It is governed by the Accommodation Module. The applicant, Race Redomra, is the owner and occupier of Lot 1 in the scheme.
• [2] The applicant says the drain outside Lot 1 floods during rain which leads to water ingress, damp and mould in her lot. She says she has exhausted all avenues to resolve the issue through self-resolution and conciliation. She is now seeking a remedy through the adjudication process.
• [3] The applicant seeks the following final orders:
  1. Fix leak in waterproofing by engaging a waterproofing contractor to add packing to the waterproofing substance injected into the hole in the wall from outside the unit [Lot 1] as well as from inside the unit.
  2. Fix the drainage issue that has caused damage to the common area wall, rear of building and unit interior by carrying out the works that were recommended by the most recent and previous building reports which include:
     1. Excavating the north wall of building 1 to bring the concrete slab above ground level and smooth over with concrete;
     2. Have a builder install a spoon drain against the corner of the exterior wall outside the kitchen and bedroom of Lot 1 where the water pools and ingresses into the unit;
     3. The spoon drain will need to meet the large council drain.
  3. Appropriate and timely communication providing updates on tradespersons attending the property [Lot 1].
• [4] The applicant says there is still water ingressing into Lot 1 despite previous repairs. She seeks the following interim order:
  1. Fix leak in waterproofing by engaging a waterproofing contractor to add packing to the waterproofing substance injected into the hole in the wall from outside of the unit [Lot 1] as well as from inside the unit. To be completed within 21 days.
• [5] This is my consideration of the applicant's request for an interim order. The applicant bears the onus to establish that the interim order she seeks is warranted in the circumstances.

• [6] The applicant lodged an application for conciliation on 28 February 2025.[1] A conciliation session was held however, following the session the parties were unable to reach an agreement and the application was referred back to the commissioner.[2]
• [7] The applicant lodged this application for adjudication on 23 May 2025. The commissioner sought clarification on some aspects of the application and the application was amended.
• [8] The commissioner referred the interim order request to department adjudication under section 247(2)(b) of the Act.
• [9] There is no statutory requirement to obtain comment from a respondent or affected party before an interim order is decided. However, in the circumstances, I gave the body corporate committee an opportunity to make an interim submission on the dispute and it made a brief submission.

• [10] An adjudicatormay make an interim order if satisfied, on reasonable grounds, that one is necessary because of the nature or urgency of the circumstances to which the application relates.[3]
• [11] In deciding whether an interim order is warranted in the circumstances, adjudicators often adopt the approach taken by courts to considering interim injunction applications.[4] Accordingly, to determine if it is just and equitable to make the interim order sought by the applicant, I must consider the substantive issues in dispute, the nature and urgency of the matter, as well as the balance of convenience between the parties. I will explain each consideration in more detail below.
• [12] Firstly, I must consider the substantive issues in dispute and be satisfied there is a serious legal question to be answered. At this stage, the applicant does not need to satisfy me that, on the balance of probabilities, their legal position is the correct one to take in the case. However, I must be satisfied the applicant's case has a sufficient likelihood of success to justify the making of an interim order prior to a full investigation into the matter being concluded.
• [13] Secondly, an adjudicator may make an interim order only if satisfied, on reasonable grounds, that it is necessary because of the nature or urgency of the circumstances.[5] An applicant must therefore establish that the circumstances warrant an interim order. This may be where, for example, the order is necessary to prevent serious or irreparable harm from taking place or to stop something that cannot be undone. I must also balance the inconvenience of granting relief now if final orders are ultimately refused, against the inconvenience of refusing relief now if final orders are ultimately granted.

• [14] As a preliminary point, I note the applicant has referred to things which happened in relation to the conciliation session. Section 252E(5) of the Act provides that evidence of anything said or done about the dispute in a department conciliation session is inadmissible in a proceeding. Accordingly, I have not had regard to any submissions or evidence the applicant has provided in respect of the conciliation session.

• [15] The applicant says there have been long standing issues with drainage at the rear of the scheme building and the water pooling in an area near Lot 1 during rain causes the slab to become saturated. She says this has led to damp and mould in Lot 1. The applicant says the lot has also flooded in heavy rain. I understand the drain near Lot 1 is inadequate and floods during rain.
• [16] The applicant says despite sending multiple reports and photographs to the body corporate and meeting with advisors and tradespersons, the body corporate has failed to action a solution for the drainage issues.
• [17] The applicant is seeking an interim order for the body corporate to engage a waterproofing contractor to fix the waterproofing in the wall of Lot 1. The first thing I need to determine is whether the water ingress issues the applicant is complaining about are being caused by something the body corporate is responsible to maintain.
• [18] Pacific Paradise Apartments was created as a building format plan of subdivision.[6] Where a scheme is created as a building format plan of subdivision, boundaries are defined on the survey plan by the structural elements of a building, including, for example, the floors, walls and ceilings.[7] And, where a lot is separated from another lot or common property by a floor, wall or ceiling, the boundary is the centre of the floor, wall or ceiling.[8]
• [19] Section 152 of the Act sets out a body corporate's duties about common property. It provides that the body corporate must administer, manage and control the common property reasonably and for the benefit of lot owners; and comply with the obligations with regard to common property imposed under the regulation module applying to the scheme.
• [20] As set out above, Pacific Paradise Apartments is governed by the Accommodation Module. Section 170(1) of the Accommodation Module provides that the body corporate must maintain common property in good and structurally sound condition. And, where a scheme is created under a building format plan of subdivision, the body corporate must also maintain in structurally sound condition (as relevant to this dispute): (1) foundation structures and (2) essential supporting framework, including load-bearing walls.[9]
• [21] The statutory duty to maintain common property has been considered extensively by the courts.[10] It is clear from the case law that a body corporate has a duty to maintain common property in good condition and that it must do so as soon as any of the building parts covered by the duty fall into disrepair.[11] Failure to do so once aware of an issue would give rise to a breach of the body corporate's maintenance obligations.
• [22] The applicant provided a building inspection report prepared by 'Cairns Pre-Purchase Building Reports' who inspected Lot 1 on 17 March 2025. The report notes 'damp related defects' on the north side wall of Lot 1. It notes excess moisture was detected in the walls demonstrating moisture penetration (readings taken both inside and outside the lot). The report also notes mould on the walls and ceilings of bedroom 1 of Lot 1.
• [23] In addition, the material submitted by the applicant shows the committee has previously considered the waterproofing of Lot 1 and the applicant says repairs were carried out but this did not rectify the water ingress issue. My preliminary view is that the body corporate, in failing to rectify this issue in a timely manner, may be in breach of its maintenance obligations.
• [24] I am satisfied the applicant has raised a serious legal question to be answered which has a sufficient likelihood of success.

Nature or urgency of the circumstances and balancing the inconvenience

• [25] I now turn to the nature and urgency of the circumstances and the inconvenience to each of the parties if the interim order sought by the applicant is made or not made. I reiterate that interim orders are intended to prevent serious or irreparable harm from taking place or to stop something that cannot be undone.
• [26] I have carefully considered the submissions and evidence the applicant has provided in relation to the issues she is having with water ingress into her unit. While I can understand the applicant's frustration and concern with what I understand to be a long-standing issue, I am not satisfied there is a particular event about to take place imminently which could not be undone if the interim order sought was not granted.
• [27] I further note that the order sought by the applicant is not to prevent something from happening until a final order is made on the issue. Making the interim order sought by the applicant would essentially be making a final determination on the matter at an interim stage.
• [28] In light of the above, I am not satisfied the balance of convenience weighs in favour of the applicant. And, in the circumstances, I am not prepared to grant the interim order sought.

• [29] The applicant has not persuaded me that the interim order sought is warranted in the circumstances. However, I am cognisant that there are urgent maintenance issues affecting the applicant's lot which need to be dealt with in a timely matter.
• [30] The dispute will now be referred back to the commissioner to progress under the Act.[12] Once the relevant parties have been provided with an opportunity to make submissions on the application, I will proceed to a final determination of the matter as soon as practicable.

[2] Conciliation certificate issued 13 May 2025.

[4] For general principles see: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 and SDW2 Pty Ltd v JLF Corporation Pty Ltd & Ors [2017] QSC 1

[7] Section 48C of the Land Title Act 1994 (Qld)

[8] Section 49C of the Land Title Act 1994 (Qld)

[9] Section 170(2)(b) of the Act

[10] See Klinger & Anor v Body Corporate for Costa D'Ora Apartments [2007] QDC 300, Magog (No.15) Pty Ltd v The Body Corporate for The Moroccan [2010] QDC 70, Seiwa Pty Ltd v The Owner's Strata Plan 35042 [2006] NSWSC 1157.

[11] In fact, the body corporate ought to proactively carry out maintenance to prevent defects from arising where possible.