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

FAILURE TO MAINTAIN - LIABILITY FOR CONSEQUENTIAL DAMAGE TO LOTS

Sections 152, 159, 281 Body Corporate and Community Management Act

Section 170 Body Corporate and Community Management (Accommodation Module) Regulation 2020

• [1] Parkview Gardens Carina consists of 19 lots and common property. The Community Management Statement shows the Accommodation Module applies to the scheme.
• [2] The applicant is the owner of lot 16 and states that there has been water ingress into her lot as a result of a failed waterproofing on the balcony of unit 19, which she believes to be common property, or at least the responsibility of the body corporate.

• [3] The final outcomes sought by the applicant are as follows:
  1. That the body corporate undertakes maintenance of the common property failed waterproofing to the balcony of unit 19 before further damage is caused to my unit as per the leak detection report from MDR Plumbing.[1]
  2. That the body corporate make the necessary repairs to my master bedroom and indoor balcony caused by the failed waterproofing as per the report form Advanced Building and Restoration attachment.[2]
  3. That the body corporate reimburse me for the cost of conciliation and adjudication.

• [4] The applicant is the owner of lot 16 and states that there has been water ingress into her lot as a result of a failed waterproofing on the balcony of unit 19, which is above her lot. The applicant says the waterproofing to the balcony of unit 19 needs to be fixed to stop the water ingress.
• [5] The applicant has made an insurance claim in respect of the damage and has been advised that if the body corporate repairs her lot, and there is further water ingress, it will not be covered by insurance.
• [6] The applicant believes the body corporate has decided not to wait until receipt of insurance reports, and intends to go ahead and engage a builder to undertake repairs to her unit.[3] However the failed waterproofing to the balcony of unit 19 above has not been rectified.
• [7] One of the final outcomes sought by the applicant is that the body corporate undertake maintenance of the failed waterproofing to the balcony of unit 19 before further damage is caused to her unit as per the leak detection report from MDR Plumbing.[4]
• [8] Section 170 of the Accommodation Module provides as follows:

Duties of body corporate about common property - Act, s 152

(1) The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.

(2) To the extent that lots included in the community titles scheme are created under a building format plan of subdivision, the body corporate must-

(iii) roofing membranes that are not common property but that provide protection for lots or common property; and

(b) maintain in a structurally sound condition the following elements of scheme land that are not common property -

• [9] The applicant says there has been a history of water ingress into lot 16 from unit 19 above, over several years as per the Report which she obtained prior to purchase of her unit.[5] The applicant has owned her unit since August 2021 and the first incident of water ingress that she experienced was in February 2022. She says on that occasion there was extensive damage to her ceiling, bed and carpet. The applicant made a claim on her contents insurance for her bed, linen and carpet, and her ceiling was fixed in July 2022 by the body corporate.
• [10] However no repairs were undertaken to unit 19 at that time, and the applicant says that water is continuing to leak into her unit. The applicant states that she has experienced water ingress into her indoor balcony and her window sills have been repaired by the body corporate because they were rotted from water ingress[6]. A leak detection test was done at that time,[7] but Leaktech only did a visual test as they could only report on portions of the property that could be accessed safely at that time and no spray test was done.
• [11] The second incident occurred on the 24th December 2023. Multiple leak tests were performed and new leaks were identified. The issue was discussed at an AGM on 18th July 2024,[8] and at an EGM, on the 11th October 2024, where it was resolved that Diverse Building and Roofing be engaged to make repairs to lot 19 and lot 16.[9]
• [12] The applicant says that when Diverse started repairing the lot 16 ceiling it was discovered that moisture was still present in the plasterboard and mould was present on the concrete underneath.[10] Repairs were put on hold until the source of the newly discovered leak was found. Following a conciliation, it was agreed that an insurance assessor would attend to assess the mould and that another leak test would be done. The applicant says she was advised that Diverse had only made "make safe repairs" and more repairs were needed to lot 19.
• [13] A loss adjustor was appointed by the insurance company and when the leak test was performed it was confirmed that the water ingress to the lot 16 master bedroom and indoor balcony was from the failed waterproofing to the balcony of unit 19. On the advice from the loss adjustor, the applicant made a new insurance claim for extensive repairs to her unit.

• [14] I am satisfied that this matter falls within the legislative dispute resolution provisions.[11] An adjudicator may make an order to resolve a dispute in the context of a community title scheme between a lot owner and the body corporate about a claimed or anticipated contravention of the Act or the community management statement (CMS); or the exercise of rights or powers, or the performance of duties, under the Act or CMS.

• [15] Pursuant to section 243 of the Act, I gave the body corporate an opportunity to respond to the application and a submission was received from the body corporate committee on 2 May 2025.
• [16] The body corporate says that it is continuing to address the rectification of lot 19 and restoration of lot 16 following detection of the new leak detected on 29 November 2024, and is committed to carrying out the necessary repairs as soon as possible.
• [17] However their repair timeline was delayed since November 2024 due to the Christmas break and lot 16 owner requests for VOC's, BCCM Conciliation and Dispute Resolution Interim Application process. With the latter requesting the committee to cease all investigative/quoting activities on lot 16 until lot 19's repairs are completed.
• [18] Over the last 10 years there have been 4 occasions where water has ingressed from the lot 19 balcony into lot 16's bedroom ceiling. The 2 storm events on February 2022 & Christmas Eve 2023 caused the worst damage for both lots.
• [19] On 4 occasions the water damage to lot 16's bedroom ceiling had been in the same area (ie right- hand corner of ceiling on western wall). On each occasion the committee has sought advice from builders, plumbers and more recently in 2024, a leak detection specialist.
• [20] It says the storm damage experienced on Christmas Eve 2023 was remedied in November 2024 by:
  1. Replacing the entire back wall (re-cladding & resealing all fixtures) for lot 19; and
  2. Repairing the damaged bedroom ceiling for lot 16
• [21] On 29 November 2024 a new leak was detected by LeakTech, confirming that water was now ingressing from the join between the tiles and bottom of sliding doors on lot 19's balcony into lot 16's bedroom ceiling. LeakTech requested further testing in the new year when a builder could open up the ceiling.
• [22] On 21 December 2024, the applicant notified the committee that there was visible water damage showing on the bedroom ceiling and the Committee confirmed to the lot 16 owner that they would be contacting the builder on 6 January 2025 to investigate and quote on repairs required.
• [23] The body corporate says that since early this year, it has been focused on sourcing quotes from water proofing specialists and providing source reports from LeakTech, MDR Plumbing and Restoration Reports to assist them in understanding the problem.
• [24] On 6 February 2025, the builder engaged by the insurer (Advanced Buildings) & plumber (MDR Plumbing) attended the site to inspect the damage and undertake a leak detection test.
• [25] The Insurer advised that the following 3 reports would be submitted post investigations:

• [26] On 28 February the applicant re-contacted the 2 builders to seek inspection dates as the insurance team had finished their inspections and the committee had received reports. On 3 March the Builder and LeakTech confirmed their availability to carry out inspections, quote on repairs and perform leak detection tests on Lot 16. On 4 March, 2 balcony waterproofing specialists were sourced to conduct inspections on Lot 19.
• [27] On 10 March the Committee wrote to the applicant inquiring how the unit had fared post the cyclone wind/rain. They also confirmed they had a builder and LeakTech available and were aiming to lock in dates later that day. However on the same date, the Committee received a Dispute Resolution Application from the applicant and the applicant requested the committee to take no action in regards to inspections/quotes for lot 16 until lot 19's balcony was repaired. On 11 March the Committee cancelled builder and LeakTech inspection dates for lot 16 until further notice.
• [28] On 14 March the Committee wrote to the applicant confirming that:
  1. No further action will be taken in regards to inspection/quotes for lot 16 effective immediately; and
     1. They would contact the applicant next when they had a commencement date and estimated time for lot 19's balcony repairs
• [29] On 30th March the owner of lot 6 notified the committee that following heavy rain over the previous 48 hours there was new water damage in kitchen ceiling. Committee confirmed in writing that they the owner didn't want their ceiling opened until a mould report had been received.
• [30] On 31st March the insurer received Advanced Buildings & Restorations Rectification Report - post 6 February inspection.
• [31] Between 17 March and 19 April the committee focused on obtaining quotes for lot 19's repairs. It says it carried out appropriate investigations to source most experienced and relevant water proofing specialist for the water ingress issue. The Committee further states that it specifically looked for trades who could provide accurate recommendations/reports on required works (and warranty), so that the committee could be confident when making their decision on the preferred contractor.
• [32] Current reports from MDR Plumbing, LeakTech & Advanced Buildings were made available.
• [33] On 28 April a mould detection specialist carried out an inspection at lot 16 and at the date of their submission, they were awaiting the report.[12] This was the earliest date available for the trade and owner (due to leave)
• [34] Committee reviewed the quotes received and expected to make a decision by 9 May. It was expected that the water proofing specialist would commence repairs in early June.
• [35] Once the committee has a repair timeline for lot 19's balcony they will recommence sourcing relevant trades for lot 16 repairs
• [36] Once lot 19's repairs have been completed, it will submit a detailed invoice to the insurer showing works completed and reports from leak tests and mould investigations to determine required repairs for lot 16.

• [37] The final outcomes sought by the applicant are as follows:
  1. That the body corporate repair the failed waterproofing of lot 19 before further damage is caused to lot 16 as per the leak detection report from MDR Plumbing.[13]
  2. That the body corporate make the necessary repairs to the lot 16 master bedroom and indoor balcony caused by the failed waterproofing as per the report form Advanced Building and Restoration attachment.[14]
  3. That the reimburse the applicant for the cost of conciliation and adjudication applications.
• [38] The applicant is the owner of lot 16 and states that on a number of occasions there has been water ingress into her lot as a result of failed waterproofing on the balcony of unit 19 which is above her lot.
• [39] As mentioned above, the applicant has made an insurance claim in respect of the damage and has been advised that if the body corporate repairs her lot, and there is further water ingress, it will not be covered by insurance. The applicant was concerned that the body corporate would not wait until the failed waterproofing to the balcony of unit 19 above has been rectified before they go ahead and engage a builder to undertake repairs to her unit.
• [40] The body corporate does not deny that it is obliged by section 170 of the Accommodation Module to maintain in good condition roofing membranes that provide protection for lots or common property. The body corporate also acknowledges that it is responsible for the repair of consequential damage to property pursuant to and understands the applicant's frustrations with recent weather events and damage to their property, but says it is committed to carrying out repairs as soon as possible.
• [41] While I recognise the applicant's frustration with the length of time that has elapsed in remedying the situation, the evidence submitted by the body corporate committee shows that it is mindful of the need to find all possible sources of rainwater ingress and that repairs are undertaken professionally with a view to finally resolving the water ingress issues. Unfortunately this can be a time consuming process. To date the body corporate has obtained expert plumbing, leak investigation, mould investigation and building reports as outlined in the 2025 timeline provided with their submission. I am therefore of the view that the body corporate has the matter in hand and there is no need to make the requested orders.

• [42] Finally, the applicant seeks an order that the body corporate reimburse them the cost of lodging this adjudication application, and the conciliation application before it.
• [43] Section 280 of the Act provides that:
  1. if the applicant for an adjudication application made a conciliation application for the same dispute; and
  2. the respondent to the adjudication application was the respondent to the conciliation application; and
  3. the commissioner ended the conciliation application under section 252K because the respondent failed, without reasonable excuse, to participate in the department conciliation:

If asked by the applicant, the adjudicator may order the respondent to pay to the applicant the fees for the conciliation and adjudication application.

• [44] While the applicant made a conciliation application for the same dispute and the body corporate was the respondent, the Conciliation Certificate issued by the conciliator states that the application was referred back to the Commissioner because the parties had reached an agreement. It does not state that the respondent failed, without reasonable excuse, to participate in the department conciliation. Therefore, I am precluded from making the order sought in relation to the reimbursement of application fees and have also dismissed this aspect of the application.

• [45] I am of the view that the body corporate has the matter in hand and there is no basis to make the requested orders. The application is therefore dismissed.

[11] Sections 227 and 228 of the Act

[12] I note that this Report has since been received.