Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and 229(3)(a)

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

MAINTENANCE - where the applicant says she is experiencing moisture and water ingress into her lot from failed waterproofing and inadequate drainage - whether the orders sought by the applicant are warranted in the circumstances.

Act, ss 20, 152, 163, 331; Accommodation Module, s 170

1. I declare that the Body Corporate for Pacific Paradise Apartments is in breach of its statutory maintenance obligations by failing to rectify the water proofing and drainage issues affecting scheme building A and allowing moisture and water to ingress into Lot 1.
2. Within 3 months of the date of this order, the body corporate must carry out the following works to address the issues:
   1. Engage a waterproofing contractor to add packing to the waterproofing substance injected into the hole in the exterior wall of Lot 1 (packing to be carried out both from inside and outside the lot).
   2. Excavate the external area around the rear north wall of scheme building A to bring the external ground level below the internal concrete slab to prevent moisture penetration into the walls of the building.
   3. Install a spoon drain against the corner of the exterior wall outside the kitchen and bedroom of Lot 1 to divert water away from the external wall and to stop water pooling in this area. Connect the spoon drain to an appropriate storm water drain to ensure the water is drained away.
3. The application is otherwise 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 has been experiencing issues with rising damp and water pooling against the exterior rear wall of Lot 1. There have also been instances where water has flooded into the lot during heavy rains. I understand these issues have been ongoing for several years and the applicant says the issues are persisting despite previous repairs having been carried out. She says this has now led to black mould growing in the lot.
• [3] The applicant is seeking final orders that the body corporate:
  1. Fix the waterproofing by engaging a waterproofing contractor to add packing to the waterproofing substance injected into the hole in the wall from outside 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 A 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. The body corporate must provide appropriate and timely communication with updates on any contractors who will be attending Lot 1.
• [4] The applicant also sought an interim order that the body corporate engage a waterproofing contractor to fix the waterproofing in the wall of Lot 1. She requested that the contractor 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. She wanted this to be completed within 21 days.
• [5] On 16 June 2025 I dismissed the applicant's request for an interim order.[1] While I was satisfied the applicant had raised a serious legal question to answered which had a sufficient likelihood of success, I noted that making the interim order sought would essentially be making a final determination on the matter at an interim stage. Ultimately, I was not satisfied the balance of convenience weighed in favour of granting the interim order sought.
• [6] This is my consideration of the applicant's request for final orders. The applicant bears the onus to establish that the final orders she seeks are warranted in the circumstances.

• [7] The applicant lodged an application for conciliation on 28 February 2025.[2] The parties attended a conciliation session but were unable to reach an agreement.[3]
• [8] 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.
• [9] The applicant's request for an interim order was referred to departmental adjudication. The applicant's request for an interim order was dismissed and the application was referred back to the commissioner to progress under the Act.
• [10] The commissioner invited submissions from the body corporate committee and all other owners in the scheme. Only one other owner in the scheme made a submission in response to the final application.
• [11] The applicant inspected the submission made in response and submitted a reply.
• [12] A dispute resolution recommendation was made referring the file to department adjudication.[4]

• [13] An adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, about (relevant to this dispute): a claimed or anticipated contravention of the Act or the CMS, or about the exercise of rights or powers or performance of duties under the Act or the CMS.[5]
• [14] I am satisfied I have jurisdiction to determine this matter under the legislative dispute resolution provisions.

• [15] The applicant explains there is a drainage problem affecting the common area at the rear of her building. She says in heavy rains, water gathers at the rear of her lot and saturates the building slab and walls of the structure. She says the inadequate drainage in this area has caused water to ingress into her lot on several occasions.
• [16] The applicant says the contractor engaged by the scheme's body corporate manager has attended the scheme on multiple occasions to deal with the drainage issue. However, no permanent solution has been provided. She says the body corporate has obtained multiple reports from contractors about the issue but has failed to resolve it.
• [17] The applicant explains that in or around 2024, waterproofing was applied to white ant holes in the building's exterior wall outside of Lot 1. However, this failed to resolve the drainage issue and in the first heavy rains after the water proofing was applied, Lot 1 was once again flooded.
• [18] The applicant says she wants the issues to be fixed permanently, as soon as possible. She says the continued saturation of the building slab is worsening black mould in Lot 1 and increasing the risks to her health and safety. She says carrying out the work recommended by experts, (which she has requested the body corporate be ordered to undertake), will cost a fraction of the quote to build a whole new drainage system.

• [19] Only the owners of Lot 26 made a submission in response to the final application. The owners of Lot 26 say the applicant has been uncooperative in allowing independent experts to access Lot 1 to assess the reported issues. They say despite repeated efforts by the committee, professional contractors have been unable to carry out an internal inspection of Lot 1 to assess the required remedial works.
• [20] In their submission, the owners of Lot 26 have copied the wording of a purported email from a contractor which they submit is supporting evidence. In this purported email the contractor states they have been out twice to inspect Lot 1 and no one was home. The purported email further states that both times the contractor had attended during rain and there was no evidence of water penetrating.
• [21] The owners of Lot 26 say the committee has acted in good faith and taken all reasonable steps within its authority to address the concerns raised by the applicant. It says unfortunately, the lack of cooperation from the applicant has prevented any progress. They ask for the applicant's application to be dismissed.

• [22] As a preliminary point, I note the applicant has formulated some of her submissions as if the dispute is with the scheme's body corporate manager and it failing to rectify the water ingress issues the applicant is complaining about. However, it is the body corporate and not the body corporate manager who is responsible for maintaining common property in good and structurally sound condition (see below). Accordingly, the key question in this dispute is whether the body corporate has met its statutory maintenance obligations.

The body corporate's duty to maintain common property

• [23] The applicant says there have been long standing issues with drainage at the rear of the building in which Lot 1 is situated. She says water pools in this area outside Lot 1 during rain causing the building slab to become saturated. She says this has led to rising damp and mould growth in Lot 1. Furthermore, the applicant says that during heavy rains, the inadequate drainage of this area allows water to flood into Lot 1. She says this has happened on several occasions.
• [24] The first thing I need to determine is whether the moisture and water ingress issues the applicant is complaining about are being caused by something the body corporate is responsible for. I understand a drain on the northside of the building Lot 1 is situated in is inadequate and, this prevents excess water from being drained away from the area. This leads to water pooling against an exterior wall of Lot 1.
• [25] I have reviewed the survey plan for Pacific Paradise Apartments and it is made up of four buildings, namely buildings A, B, C and D. Lot 1 is situated on the ground floor of building A.[6] I note the rear of building A is the northside of the building.
• [26] Pacific Paradise Apartments was created as a building format plan of subdivision.[7] 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.[8] 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.[9]
• [27] 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.
• [28] Pacific Paradise Apartments is governed by the Accommodation Module. Section 170 of the Accommodation Module sets out that the body corporate is generally responsible for maintaining common property in good and structurally sound condition.[10] 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.[11]
• [29] From the materials before me, I am satisfied the body corporate is responsible for maintaining the exterior walls and foundation structures of all its scheme buildings. This includes ensuring these structures remain watertight and do not allow water to ingress into the interior of the buildings.
• [30] In addition, section 170(1) of the Accommodation Module contains a note which provides: "for utility infrastructure included in the common property, see section 20 of the Act". Section 20 of the Act provides that utility infrastructure is part of the common property unless it is solely related to supplying utility services to one lot; is within the boundary of the lot; and is located other than within a boundary structure for the lot. All three limbs of the test must be met for infrastructure to fall under the exception.
• [31] The Act sets out a definition for 'utility infrastructure' at Schedule 6. This provides that utility infrastructure means, (as relevant to this dispute), pipes, sewers, drains and equipment by which lots or common property are supplied with utility services. Schedule 6 further provides that utility service means, (as relevant to this dispute), drainage.
• [32] Firstly, I need to determine whether the infrastructure in question, that is the drain and drainage system, is part of the common property and therefore the body corporate's responsibility to maintain. I have reviewed the survey plan and the images provided by the applicant. On balance, it appears that the drain in question is situated on common property. Accordingly, I am satisfied it does not fall within the exception set out at section 20(1)(b) of the Act and that the drain is therefore the body corporate's responsibility to maintain.
• [33] In addition, I am satisfied, on balance, that the body corporate is responsible for ensuring the drains and drainage are functioning correctly and are not allowing water to pool against scheme buildings.
• [34] I note the statutory duty to maintain common property has been considered extensively by the courts.[12] 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.[13] Failure to do so once aware of an issue would give rise to a breach of the body corporate's maintenance obligations.

Is the body corporate meeting its maintenance obligations?

• [35] The applicant has provided a building inspection report she obtained dated 17 March 2025. The report noted the following about the exterior of Lot 1:

Blocks/Bricks: North side. Damp Related Defect. External walls below ground level show signs of moisture penetration. Contact a water proofing expert prior to provide advice on ways to seal walls from moisture penetration. Advise the body corporate manager.

Paint: North side. Moisture Penetration Defect: Part/s of the paint finish show signs of moisture penetration. Contact a licensed painter to inspect defects and repair/replace as required. Advise the body corporate manager.

Paint: Moisture Penetration Defect: Excess moisture detected by using an electronic moisture metering device to the walls at the inspection.

• [36] The findings about the interior of Lot 1 noted damp related defects including, (amongst other things), excess moisture in the walls below ground level, moisture damage to parts of the wall surface, mould on the ceiling, wall linings and flooring. It also noted an installation defect where the internal floor level is not higher than the external ground level which can be a moisture entry point.
• [37] The findings for the site noted the following:

Surface Water: North side. Water Penetration Defect: The ground slopes towards the building foundations. Additional drainage will be required to divert stormwater/surface water away from the building structure walls and foundations. Recommend to contact a licensed plumber and drainer to inspect the site and provide ways to remove the surface water away from the external walls and foundations of the building. Advise the body corporate manager.

• [38] The report concludes there are major defect items including: internal walls below ground level, drainage items and excess moisture noted in the walls and mould noted.
• [39] The applicant has also provided copies of various committee meeting minutes:
  • The minutes dated 4 April 2023 note the applicant experienced water ingress into Lot 1 due to drainage issues. A motion to engage a contractor to replace drainage sections was passed.
  • The minutes dated 19 June 2023 note that a secondary issue has been identified with water entering through the wall of Lot 1 and a waterproofing contractor has been contacted to address the issues.
  • The minutes dated 1 November 2023 note the drain covers around Lot 1 on building A have been screwed down to prevent tampering and clogging. The minutes note this is expected to alleviate the drainage issues around Lot 1 however there are still other areas that require drainage works to alleviate water build up. They also note that a leak detection contractor has confirmed high moisture reading in the walls of building A and this will be monitored.
  • The minutes dated 26 February 2024 note that a quote had been obtained from a contractor for additional drainage to alleviate water pooling around Lot 1. They further note that another contractor is scheduled to provide a second opinion and quote to address the drainage issues.
  • The minutes dated 23 April 2024 note a resolution to carry out waterproofing to Lot 1 engaging a contractor to use a polyurethane injection to alleviate the water ingress issues Lot 1 experiences in heavy rains. The minutes also included a resolution to follow up remediation of the drainage issues.
• [40] From the materials before me, I am satisfied there are defects with the waterproofing of the external walls of building A which is allowing water penetration into the internal areas of Lot 1. In addition, I am satisfied that drainage issues are exuberating the problem by allowing water to pool against the external rear wall of Lot 1. I am further satisfied the body corporate is aware of these issues and has been taking steps to address them. However, it appears that any remedial efforts to date have been unsuccessful.
• [41] I note that in response to the interim order application, the body corporate committee provided a submission stating it had decided to install an underground drain to alleviate the flooding at the rear of Lot 1. It says this is a better solution than the open concrete drain (spoon drain) due to the already overloaded original underground drainage system. The committee said several plumbers gave advice to install an underground drain and none suggested the open drain which has been requested by the applicant. However, it provided no evidence to this effect.

• [42] The first and second orders sought by the applicant are a request for very specific repairs the applicant says will address the water proofing and drainage issues. However, having carefully reviewed the submitted materials, the applicant had not provided any evidence which confirmed that the specific repairs she had requested would remedy the issues.
• [43] On 21 October 2025, I wrote to the applicant noting she had not provided any evidence in her application where a contractor had specifically recommended the steps she was seeking in her orders. I requested that the applicant provide a full copy of any report or reports she had which recommend the specific works she is seeking that the body corporate be ordered to carry out.
• [44] On 27 October 2025 the applicant spoke to a dispute resolution officer in this office. She explained there were reports from contractors with recommendations but these had been sent directly to the body corporate and she does not have copies. The applicant highlighted the report she obtained from the building inspector and said she felt this addressed the recommended works. The applicant further explained that some waterproofing had been carried out on the external wall of Lot 1 but this had not resolved the water ingress issues. The applicant said she would send in some further information.
• [45] On the same day, the applicant sent an email to this office with some further information. She explained she had many on site meetings with contractors who gave her recommendations in person. She says these contractors then reported back to the body corporate and did not provide her with any documentation.
• [46] The applicant attached to her email, amongst other things, a further letter from the building inspector she had engaged. The letter is dated 27 October 2025. In the letter, the inspector states he spoke with the applicant about how the north side (rear) of Lot 1 needs to be excavated to bring the external ground level below the internal slab/floor to prevent moisture from penetrating into the internal walls. In addition, he says water should be diverted away from the external wall in this area to stop water pooling and sitting against the wall in wet weather events. He says the specific works the applicant is seeking align with his report and are an acceptable way to rectify the defects.
• [47] I have given consideration to the interim submission made by the committee that it has decided to install an underground drain as the best way to address the flooding and pooling of water at the rear of Lot 1. However, it provided no evidence of contractors recommending the underground drain to alleviate the moisture or water drainage issues the applicant is wanting addressed. It did not make a further submission on the final application when invited to do so.
• [48] The applicant has provided evidence from a qualified building inspector that the specific repairs she is seeking for the body corporate to carry out are an acceptable way to rectify the water proofing and drainage issues. On balance, I am satisfied that in the circumstances it is appropriate to make orders for the body corporate to carry out the repairs as sought by the applicant.

• [49] The third and final order sought by the applicant is that the body corporate provide appropriate and timely communication with updates on any contractors who will be attending Lot 1. I note she had detailed very specific requirements in her application.
• [50] In the applicant's most recent email to this office, she explains that this order is an important part of her application as she is being 'bullied' into providing access to her lot while she is either alone or not expecting contractors. She says all she wants is for an agreed time to be set for when contractors will attend and to be given notice of the same so she can arrange her work schedule.
• [51] I have carefully reviewed the correspondence the applicant has provided between herself and the body corporate manager about contractors attending Lot 1. From the materials provided, it appears certain contractors have not shown up when they have said they will or have been unable to attend at times the applicant is available. While I can understand the applicant's frustration in this regard, there is no evidence in the materials that the body corporate itself has not been communicating appropriately with her. It seems the breakdown in communication has been between the applicant and the attending contractor, or the attending contractor and the body corporate manager.
• [52] In the circumstances, I am not persuaded it is appropriate to make the third order sought by the applicant.

• [53] In light of the above, I have made orders that the body corporate carry out works to waterproof the exterior wall outside of Lot 1, that the external area around the north wall of building A be excavated to make it lower than the building slab, and that a spoon drain be installed against the exterior wall outside the kitchen and bedroom of Lot 1. I have otherwise dismissed the application.
• [54] For completeness, I note a body corporate must comply with its statutory maintenance obligations. If a body corporate requires access to a lot in order to do so the Act provides a mechanism under which the body corporate may enter a lot while it is reasonably necessary to (a) inspect the lot and find out whether work the body corporate is authorised or required to carry out is necessary; or (b) to carry out work the body corporate is authorised or required to carry out.[14]

[1] Pacific Paradise Apartments [2025] QBCCMCmr 208

[2] Application reference number: 0191-2025

[3] Conciliation certificate issued 13 May 2025

[5] Section 276(1)(a) and (b) of the Act

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

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

[10] Section 170(1) of the Accommodation Module

[11] Section 170(2)(b) of the Accommodation Module

[12] 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

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