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

INTERIM ORDER - repair of water damage to applicant's lot - whether interim order required to direct how repair work is to be undertaken.

1. The application for an interim order is dismissed.
2. The final outcomes sought by the applicant remain outstanding, and if necessary, will be determined in due course.

• [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.

• [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 (attachment (5)).
  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 (17).
  3. That the body corporate reimburse her for the cost of conciliation and adjudication.

• [4] The applicant seeks an interim order in the following terms:

I would like to request an interim order to stop the committee acting on it's decision to engage a builder to do the repairs until the adjudicator makes a final decision. The committee have not given me a start date for a builder.[1]

• [5] 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.
• [6] After an insurance claim was made, a loss adjustor appointed by the insurance company inspected the applicant's property. He advised her that if the body corporate repairs her lot, and there is further water ingress, it will not be covered by insurance. The applicant has requested written advice from Longtitude Insurance regarding the progress of the matter. However she has not yet received a response regarding the outcome of the insurance claim.
• [7] 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.[2] However the failed waterproofing to the balcony of unit 19 above has not been rectified.
• [8] 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 (attachment (5)).

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 lot 16 from unit 19 above over several years as per the Report which she obtained prior to purchase of her unit.[3] The applicant has owned her unit since August 2021 and the first incident of water ingress was in February 2022. 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[4]. A leak detection test was done at that time,[5] 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. No spray 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, attachment (20) 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.[6]
• [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.[7] 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 the extensive repairs to her unit.
• [14] The applicant is therefore seeking the following final outcomes:
• 1. That the body corporate undertake repairs to the failed waterproofing to the balcony of lot 19 before further damage is caused to her lot as per the leak detection report from MDR Plumbing.[8]
• 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.[9]
• [15] At this point in time the applicant is seeking an interim order in the following terms:

I would like to request an interim order to stop the committee acting on it's decision to engage a builder to do the repairs until the adjudicator makes a final decision. The committee have not given me a start date for a builder.

• [16] I am satisfied that this matter falls within the legislative dispute resolution provisions.[10] 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.[11] Further, an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances.[12]
• [17] The commissioner has referred the application to me to decide whether an interim order is warranted. Pursuant to section 271 of the Act, I gave the committee a brief opportunity to respond to the interim order application.
• [18] A submission was made on behalf of the body corporate which advised as follows:
  • Over the last 10 years the unit block has had 4 occasions where water has ingressed from lot 19 balcony into lot 16's bedroom ceiling. With the 2 x storm events on February 2022 & Christmas Eve 2023 causing the worst damage for both lots.
  • On all 4 occasions the water damage to lot 16's bedroom ceiling has 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.
  • storm damage experienced on Christmas Eve 2023 was remedied in November 2024 by:
    1. Replacing the entire back wall (re-cladding & resealing all fixatures) for lot 19; and
    2. Repairing the damaged bedroom ceiling for lot 16
  • 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
  • on 21 December 24, the applicant notified the committee that there was visible water damage showing on the bedroom ceiling and the Committee confirmed to lot 16 owner that they would be contacting builder on 6 Jan 2025 to investigate and quote on repairs required.
  • 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.
  • The Insurer advised that 3 x reports would be submitted post investigations:

• On 28 February the applicant re-contacted the 2 builders to seek inspection dates now that insurance team had finished their inspections and 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 x balcony waterproofing specialists sourced - inspections to occur shortly on Lot 19
• On 10 March the Committee wrote to the applicant inquiring how the unit had fared post the cyclone wind/rain. Also confirmed they had a builder and LeakTech available and were aiming to lock in dates later that day
• Also on 10 March, 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.

• 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. Will contact next when we have a commencement date and estimated time for lot 19's balcony repairs
• Between mid-March and mid- April, the committee plans to obtain a second quote from a balcony waterproofing specialist and will review the quotes
• Between mid- April and mid-May, the committee plans to engage a contractor to carry out the repairs
  • In mid- May, the committee will source mould detection specialist in preparation for investigating stain discoloration in the bedroom ceiling.
• Once the committee has a repair timeline for lot 19's balcony, they will recommence sourcing relevant trades for lot 16 repairs.

• [19] The question to be determined at this point in time, is whether an interim order is warranted. The applicant bears the onus of establishing, on the balance of probabilities, that the interim order being sought in this application is warranted in the circumstances
• [20] Under section 227 (1) (b) of the BCCM Act, the definition of dispute includes a dispute between the owner of a lot included in the scheme and the body corporate for that scheme.
• [21] Under section 228 (1) of the BCCM Act, disputes within the jurisdiction of the Commissioner's Office include contraventions of the BCCM Act and the exercise of powers, or the performance of duties, under the BCCM Act.
• [22] An Adjudicator has jurisdiction to hear a dispute between a lot owner and the body corporate. Pursuant to section 279, I may make an order to resolve a dispute including an interim order. In order to obtain an interim order, an applicant must establish that the circumstances warrant urgent intervention and that the applicant has some prospect of success.[13] In general, the purpose of such an order is to preserve the status quo pending final determination of the dispute so as to ensure that there is some utility in the determination of the final dispute. An interim order will not be made if the only urgency is a desire to expedite resolution of a dispute.
• [23] The case of SDW2 Pty. Ltd. V JLF Corporation Pty Ltd [2017] QSC 1 provides some guidance as to when it would be appropriate to make an interlocutory injunction at paragraph [21]:

The legal principles governing the disposition of an application for interlocutory injunction were discussed by me in Stacks Managed Investments Ltd v Tolteca Pty Ltd [2015] QSC 234 at 3 to 5 and again in Tribal Health Pty Ltd v Flush Fitness Pty Ltd [2016] QSC 103. In the latter case I summarised relevant principle in these terms (at [23]):

(a) The law in Australia has long regarded it to be necessary to make two main inquiries: (i) whether the applicant has shown that it has a prima facie case; and (ii) whether the applicant has shown that the balance of convenience favours the granting of the relief claimed.

(b) The significance of the requirement that a prima facie case be shown is elaborated upon in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 572 and Live Earth Resource Management Pty Ltd v Live Earth LLC [2007] FCA 1034 at [11] to [13].

• [24] Therefore in addition to establishing a prima facie case, the applicant needs to establish that the balance of convenience between the parties justifies injunctive relief. What this means is that an adjudicator must 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. Of particular relevance is evidence an interim order is necessary to prevent serious or irreparable harm.
• [25] The applicant must therefore show:
  1. there are urgent circumstances;
  2. there is a prima facie case of sufficient merit to justify relief;
  3. the order if granted, would be just and equitable, and
  4. the balance of convenience between the parties justifies the order.
• [26] The applicant seeks an interim order in the following terms:

I would like to request an interim order to stop the committee acting on it's decision to engage a builder to do the repairs until the adjudicator makes a final decision. The committee have not given me a start date for a builder as per attachment (23).

• [27] The applicant is the owner of lot 16 and states that 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. The applicant says the waterproofing to the balcony of unit 19 needs to be fixed to stop the water ingress.
• [28] 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.
• [29] 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 .
• [30] However it is clear from the interim submissions that the committee intend to firstly undertake repairs to lot 19, and the lot 19 balcony, before undertaking repairs to lot 16.
• [31] On 14 March, the Committee wrote to the applicant, confirming that they would take no further action with respect to inspection and obtaining quotes for lot 16, until the repairs to lot 19 had been completed. The committee will then source a mould detection specialist in preparation for investigating stain discoloration in the bedroom ceiling. Once the committee has a repair timeline for the lot 19 balcony, they will recommence sourcing relevant trades for lot 16 repairs.
• [32] More recently the applicant has raised concerns with this Office regarding a proposal to engage a contractor to undertake investigatory work regarding the source of the water ingress into lot 16. In further communications with this Office, the body corporate manager, has undertaken to obtain the consent of the applicant before a contractor is engaged to undertake investigatory work regarding the source of the water ingress.
• [33] At this point in time I do not see a need to make interim orders. It is evident that the committee is progressing the repair work and has prepared a timeline schedule for the repairs to lots 19 and 16. Further, the committee is cognisant of the need to firstly undertake the repairs to lot 19 before undertaking works to lot 16.
• [34] The final outcomes sought by the applicant remain outstanding and if necessary will be determined in due course.

[13] Which is variously described as establishing a prima facie case, an arguable case or that there is a serious question to be tried.