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

MAINTENANCE - whether the body corporate or relevant lot owners are responsible for water ingress remediation works on balconies and courtyards that form part of the lots.

Act, s 20, 238; Accommodation Module, ss 170, 201.

• [1] This application is one of several dispute applications made by the owners of Lot 406 against the body corporate.
• [2] The current application raises four separate disputes, related to two distinct issues. The applicants seek:
  1. An order for the committee to rescind a decision to 'allocate all income from utilities over to the Principal Body Corporate'. I have referred to this aspect of the application as the 'Utility Services Dispute'.
  2. An order that the body corporate recover costs incurred in relation to water ingress remedial works undertaken on the balconies of Lots 804 and 902. I have referred to this aspect of the application as the 'Remedial Works Dispute Lots 804 and 902'.
  3. An order that the body corporate be responsible for water ingress remedial works undertaken on the balconies of lots 506 and 607. I have referred to this aspect of the application as the 'Remedial Works Dispute Lots 506 and 607'.
  4. If I do not agree to the sought order in the Remedial Works Dispute Lots 506 and 607, an order that the body corporate recover from owners all costs incurred in relation to historical waterproofing works at the scheme. I have referred to this aspect of the application as the 'Remedial Works Dispute Historical Works'.
• [3] I refer to the Remedial Works Dispute Lots 804 and 902, Remedial Works Dispute Lots 506 and 607 and Remedial Works Dispute Historical Works collectively as the 'Remedial Works Disputes'.
• [4] I have not made the order relevant to the Utility Services Dispute. The applicants have brought another application seeking the same order, which I have determined at the same time as this decision and have dismissed.[1] I dismissed that application as I was not satisfied there was good reason for waiving the legislative time limit, particularly where the motion appears to have little relevance to the body corporate's current utility service arrangements.
• [5] I have not made an order relevant to any of the Remedial Works Disputes. The onus is on the applicant to satisfy me that they are entitled to the orders they are seeking. Based on the material in front of me, I am not satisfied the body corporate was not responsible for the works to Lots 804 and 902, or any other historical works it paid for. I have also not been satisfied that the body corporate is responsible for the works to Lots 506 and 607.

• [6] The respondent Body Corporate for Petrie Point Apartments CTS 28735 is regulated by the Accommodation Module and is subject to a layered arrangement. The principal scheme is Petrie Point CTS 28733 (Principal Body Corporate). There are two subsidiaries, Petrie Point Terraces CTS 28734, comprised of 8 lots, and Petrie Point Apartments CTS 28735, comprised of 175 lots.
• [7] The survey plans for the scheme shows it is a building format plan subdivision (BFP) comprised of 12 levels. The two lower levels are generally comprised of common property, exclusive use car parks and exclusive use storage areas. On the upper levels, there are lots where patios and balconies form part of those lots.

• [8] The applicants seek several final orders. One final order relates to the supply of utility services at the scheme. The remaining orders sought relate to three separate disputes, all centred around the issue of water ingress remedial works on lot balconies and courtyards.
• [9] Those orders read as follows:

A. That the body corporate rescind the committee decision as noted in the committee minutes of the meeting dated 7 June 2023 (annexure 13 - item 4.6 of those minutes), namely: > > '4.6 Petrie Principal - Billing > > The Committee agreed to allocate all income from utilities over to the Principal Body Corporate, as they are now paying for utility bills. The Committee also authorised a bill to be raised to the Principal to recover funds for incorrectly paid invoices relating to utilities. > > RESOLVED that the motion be carried Yes 6 No 0 Abstain 0'.; and > > B. That the body corporate recover from the owners of apartments 804 and 902 the amounts of $10120 and $12545.50 respectively; > > C. That the body corporate accept liability for the waterproofing repairs to apartments 506 and 607; > > D. Alternatively to C above, if it is held that the owners of 506 and 607 are responsible for the waterproofing cost, the body corporate, recover from owners all money spent on waterproofing described under 4.2.3.2 - Phase 1 below.

• [10] There have been several applications lodged by the applicants against the body corporate:
  1. In April 2024, the applicants lodged an application for conciliation against the body corporate regarding several disputes (Conciliation Application).[2]
  2. In May 2024, the applicants lodged an application for final and interim orders in relation to a utility services dispute (Connected Application).[3] The application for interim orders was dismissed on 12 June 2024 (Interim Decision).[4] The application for final orders has been determined at the same time as this application, and has also been dismissed.[5]
  3. In July 2024, the applicants lodged this application for final orders (Current Application).[6] The Current Application repeats the outcome sought in the Connected Application, which is the Utility Services Dispute. The Current Application however includes several additional outcomes that were also raised in the Conciliation Application, being the Remedial Works Disputes.
• [11] Submissions across the Current Application and Connected Application were overlapping. For example, the body corporate filed identical submissions in both matters and included responses to matters raised in the Conciliation Application but were not relevant to either of the two adjudication applications.
• [12] Due to the overlapping nature of the disputes and filing of submissions and replies, I have reviewed all materials filed in the Current Application and Connected Application. However, in this decision, I am only considering whether the final orders in the Current Application are warranted. For the avoidance of any doubt, I have not had regard to submissions made on the issues in the Conciliation Application and Connected Application that are not relevant to the final orders sought in the Current Application

• [13] Six submissions from four lot owners were received in both the Current Application and the Connected Application. All submissions opposed the Current Application. The body corporate also provided submissions.
• [14] After the applicant filed their reply to submissions in this application, the body corporate provided further submissions without invitation. This included commentary from an architect that I considered to be relevant. In the interests of natural justice, I invited the applicant to provide a response to this new material, which they did.
• [15] I found that the application lacked information around the causes of water ingress and the scope of works. I sought further information, requiring the body corporate to provide me with information on which lots were subject to water ingress remedial work from 2016 onwards, and invoices or expert reports obtained in relation to all of the works subject of the Remedial Works Dispute. The body corporate provided copies of invoices that they held in its records and submitted further comment on the matter. No expert reports were provided.
• [16] I invited the applicant to respond to the new material. The applicants also submitted more invoices from contractors relevant to the dispute and further submissions. I did not seek further comment from the body corporate regarding this new material submitted by the applicants, as the material has not formed any adverse finding against the body corporate. Yet the body corporate again provided unsolicited submissions. Those submissions have not impacted my decision, and they did not appear to have relevance in any event.

• [17] The first final order sought relates to a utility infrastructure and supply of services dispute, where the same final order was also sought in the Connected Application.[7] At the time the Current Application was lodged, the Connected Application had not been determined. It has now been determined and has been dismissed.[8] For the reasons outlined in the dismissal of the Connected Application, I am not satisfied that the order is warranted. It is not necessary to restate those reasons again in this decision.

• [18] The remaining final orders sought relate to disputes over who is responsible for costs incurred for waterproofing and water ingress works. They are related, but are three separate disputes:
  1. Remedial Work Dispute Lots 804 and 902 - The second order seeks for me to find that the body corporate is not responsible for works to the balconies of Lots 804 and 902, and that the body corporate should take steps to recover those costs from the owners of those lots.
  2. Remedial Work Dispute Lots 506 and 607 - The third order seeks for me to find that the body corporate is responsible for works to the balconies of Lots 506 and 607, and make a declaratory order to that effect.
  3. Remedial Work Dispute Historical Works - If I do not make the third order the applicants seek, then they say I should order that the body corporate recover costs from all lot owners for all waterproofing works on balconies and courtyards since 2016.

• [19] At the heart of these disputes, there appears to be a severe breakdown in relationship between the applicants and some committee members. It appears the breakdown of the relationship began while the first applicant (John Knipe) was employed by the scheme's caretaking service contractor as the onsite manager. During that time, John Knipe was involved with coordinating trades and contractors undertaking works for the body corporate, which included much of the works subject of the Remedial Works Disputes.
• [20] The Remedial Works Disputes are marred by allegations regarding of breaches of code of conduct, engaging contractors without relevant authority, and decisions not being recorded in minutes. As a result, much of the material from both the applicant and the body corporate are dedicated to issues that are not relevant to the final orders sought. My role is only to determine whether the final orders sought should be made, which solely relate to who may be responsible for the remedial works pursuant to the legislation.
• [21] The crux of the dispute is that John Knipe engaged a contractor to undertake works to Lots 506 and 607 without the express approval of the committee. Once the body corporate was sent the invoice for the works, it sought reimbursement from the lot owners on the basis that it did not authorise the works and the scope was outside of the body corporate's maintenance responsibilities. The applicants, although not the relevant lot owners, object to this.
• [22] The applicants say that if the body corporate is not going to pay for the works to Lots 506 and 607, then the body corporate should not have paid for other works throughout the scheme. Specifically, works to Lots 804 and 902, and more generally all works that have taken place since around 2016.

• [23] The body corporate submits that the orders sought relating to the Remedial Works Disputes have been made out of time and should be dismissed pursuant to section 242 of the Act. Section 242 of the Act provides that an application seeking an order declaring a resolution of the body corporate void must be made within three months of the date of the meeting where the resolution passed. I am not satisfied the application for orders connected to the Remedial Works Disputes should be dismissed on this basis. Those orders are not seeking to void a resolution of the body corporate. Rather, it is a dispute about maintenance responsibilities under the legislation.

• [24] The Remedial Works Disputes require me to be satisfied that the body corporate is responsible for works to Lots 506 and 607. I also need to be satisfied that the body corporate is not responsible for works done to Lot 804 and 902, and various historical works dating back to 2016. The onus is on the applicants to satisfy me of these things.
• [25] Who is responsible for maintenance works is not always straightforward, particularly when it relates to water ingress in a BFP. Each situation should be carefully considered.
• [26] To advance their argument, the applicant alleges inconsistencies in whether the body corporate paid for remedial works on balconies and courtyards to address water ingress since approximately 2016. While I understand the applicants' concerns, the fact that the body corporate has paid for some works and not others is not of itself enough to satisfy me that there has been any error by the body corporate. Who is responsible for water ingress repair works is highly dependent on the unique facts of each situation.

4.3.1. Maintenance of lots and common property

• [27] Generally, the body corporate is responsible for maintaining common property in good condition,[9] and the lot owner is responsible for maintaining their lot in good condition.[10] The survey plans for the scheme show that the courtyards and balconies form part of the lots, indicating that lot owners will have an obligation to maintain the areas. However, there are circumstances where the body corporate will be responsible for maintenance works despite the balconies and courtyards forming part of the lots.

• [28] In a BFP the body corporate is responsible for maintaining in good condition 'roofing membranes that are not common property but that provide protection for lots or common property' (amongst other things).[11] This means that, even on a balcony that forms part of a lot, the body corporate still has a responsibility to maintain the waterproofing membrane if that membrane is providing protection to lots or common property below.

• [29] Further, in a BFP the body corporate must also maintain in a structurally sound condition the following elements of the scheme that are not common property: foundation structures, roofing structures providing protection and essential supporting framework.[12] If remedial works are necessary to preserve the structural integrity of a balcony, then those works will also be the body corporate's responsibility.[13]

• [30] Finally, whether or not utility infrastructure (such as drainage pipes)[14] are common property can have a bearing on these disputes. Utility infrastructure is common property unless the utility infrastructure is:
  1. solely related utility services to a lot, and
  2. within the boundaries of the lot, and
  3. located other than within a boundary structure.[15] A 'boundary structure' means a floor, wall or ceiling, other than a false ceiling, in which is located the boundary of with another lot or common property.[16]
• [31] The utility infrastructure must meet all three criteria to not be considered common property. Where it is common property, the body corporate has an obligation to maintain the utility infrastructure in good condition.[17] There are, however, further exceptions to this rule.[18]

• [32] Despite anything else in the legislation, a party can be responsible for repairing damaged property where the cause of the damage is due to a contravention of the legislation or by-laws by that party.[19] For example, if a waterproofing membrane is damaged due to the lot owner not maintaining their tiles in good condition in breach of section 201 of the Accommodation Module, the lot owner may be held responsible for the repairs to the membrane, despite the membrane usually being the body corporate's responsibility.
• [33] In the same vein, the body corporate can also recover costs of carrying out maintenance to things like a waterproofing membrane from a person whose actions cause or contribute to damage or deterioration of part of the lot.[20]

• [34] The applicants seek orders that the body corporate take steps to recover, from the owners of Lots 804 and 902, costs it has incurred for works to those lot's balconies.
• [35] The applicants say the body corporate is not responsible for the works in circumstances where:
  1. The body corporate received legal advice that it was not responsible for the works.
  2. There was 'no breakdown' of the waterproofing membrane.
• [36] The body corporate submits that it is responsible for the works in circumstances where:
  1. The waterproofing membrane was defective, where it did not rise adequately to the hob.
  2. The defect in the membrane forms part of the body corporate's maintenance obligations.

• [37] There may be a question as to whether this application is about a debt dispute, as the applicants are seeking orders that the body corporate take steps to recover amounts from lot owners.
• [38] While adjudicators generally have exclusive jurisdiction over disputes between owners and a body corporate,[21] there are exceptions. An adjudicator will not have jurisdiction where the matter is a debt dispute.[22] A debt dispute is defined as:

...a dispute between a body corporate for a community titles scheme and the owner of a lot included in the scheme about the recovery, by the body corporate from the owner, of a debt under this Act. [emphasis added][23]

• [39] Adjudicators also do not have jurisdiction over related disputes to a debt dispute. A dispute is a related dispute to a debt dispute where:

(a) the subject matter of the dispute is related to the subject matter of the debt dispute; and > > (b) there are proceedings in a court or before QCAT to recover the debt the subject of the debt dispute; and > > (c) the commissioner considers that the dispute and the debt dispute are connected in a way that makes it inappropriate for the dispute to be dealt with by a dispute resolution process.[24]

• [40] To "recover" has been defined as "to obtain or secure by legal process".[25] A wide reading of section 229A, particularly the words 'about the recovery', may not allow an adjudicator to hear disputes about the validity of how the debt came to be.
• [41] A narrower reading was preferred in the Q1 decision,[26] where it was said an application that sought to dispute the existence of a debt was not a debt dispute itself, but had the potential to be a 'related dispute'. This narrower interpretation was preferred in the QCAT decision '11 Joseph' CTS 33588 v Desarrollo Pty Ltd ATF The Cove Trust 1 and anor [2022] QCATA 41 where Member Gordon stated:

[49] It is clear from the remainder of Chapter 6 that a department adjudicator can resolve disputes about (for example) the exercise of rights or powers, or the performance of duties under the Act or community management statements, and the adjustment of lot entitlement schedules. Hence a dispute about such matters cannot be a 'debt dispute'. Such disputes might determine whether or not a particular body corporate debt is payable, but they would not be an action to recover such a debt: that is left to the tribunal or the courts.

• [42] And in relation to the Tribunal or courts hearing related disputes:

[54] ...it suggests that when hearing such a claim the court or tribunal can consider related disputes such as validity of the body corporate debt, provided of course the department adjudicator has not already determined that issue.

• [43] I also agree with the narrower reading of 229A(3). The orders sought are not strictly requiring the owners of Lots 804 and 902 to make payment. The orders are about whether the owners are liable such that the body corporate should take steps to claim a debt. I am therefore satisfied I have jurisdiction over the question of maintenance responsibilities under the Act and whether the body corporate should take steps to recover amounts.

• [44] The sought orders would negatively impact the owners of Lots 804 and 902. However, the applicants have not individually identified those owners as either respondents or affected parties. Rather, the applicants wrote 'indirectly - all owners' in section 5(c) of the prescribed form[27] (where affected parties should be identified or described).[28]
• [45] Arguments as to whether this was an adequate listing of affected parties aside, it is necessary for me to observe natural justice. This requires be to ensure persons that could be negatively impacted by a decision are given opportunity to know the case to be answered, and are given the opportunity to be heard.
• [46] As part of the dispute resolution application process the Commissioner required the body corporate to disseminate the application to all lot owners,[29] all of whom are given opportunity to respond, which includes the owners of Lots 804 and 902.The owner of Lot 902 did put forward submissions.
• [47] It appears that the owner of Lots 804 and 902 were given some notice and opportunity to respond, at least initially. However, further information and submissions have occurred since the initial application was disseminated to them. Typically, I might provide the owners of Lots 804 and 902 with the further submissions and provide opportunity for further comment. However, I have not found this necessary because I am not persuaded by the application for the reasons that follow. Where I am not making a decision that would negatively impact the owners of Lots 804 and 902, it is not necessary to seek further comment from them.

• [48] The applicants say in 2022 remedial works took place to the balconies of Lot 804 and Lot 902 to address water ingress. The applicants say water entered from the sliding doors on the balconies into the rooms.
• [49] The body corporate submits that water was entering the indoor sections of Lots 804 and 902 due to deficiencies the balcony's waterproofing membrane and drainage, particularly in relation to the hob below the balcony's sliding doors. The body corporate submits photos of the balcony of Lot 804. The body corporate says the photos show:
  1. The waterproofing membrane did not rise to the hob, as it should.
  2. The hob was built out of broken bricks and mortar, which it says is unacceptable.
• [50] The body corporate submits that ultimately the 'fault lay in the unwaterproofed hob'. It also provides an opinion from WBP Architects dated 16 and 18 November 2024 (architect opinion) who, based on photos and information provided by the body corporate, says 'the waterproofing [had] indeed been poorly constructed', and makes comments about falls towards drainage and that waterproofing should rise to the hob.
• [51] The body corporate submits that there is also no allegation that the owners caused or contributed to damage or deterioration of the membrane,[30] and in those circumstances, the body corporate was responsible for the works. Unfortunately, it is not always as straightforward as the body corporate suggests. The sliding doors and the hobs on which they sit are wholly part of the relevant lots and are not common property. As such, the lot owners will generally be responsible for maintaining the area in good condition, unless one of the several legislative exceptions apply that would make the body corporate responsible. However, in this matter, the onus rests on the applicant to satisfy me that they are entitled to the relief they are seeking. Therefore, the onus is on the applicant to satisfy me that the works fall outside of the body corporate's legislative maintenance responsibilities.
• [52] The applicants say the body corporate received legal advice that the lot owner was responsible for the works. The advice the applicant relies upon is a series of emails. It is not apparent what information the solicitor was given to base their advice on, or if any expert reports were obtained and reviewed by the solicitor. These emails therefore do little to satisfy me the body corporate was not responsible for the works.
• [53] The applicants rely on a statement from Gold Coast Remedial Waterproofing, who was the contractor involved in the remedial works at the scheme. The contractor states that there was 'no breakdown' of the waterproofing membrane. Rather it was 'more a case of the original waterproofing was applied to approximately 75mm in height from the slab up... as the acceptable building standard'. They go on to say that the tile bed was thicker than 75mm which allowed water to enter the apartment.
• [54] Upon reviewing the photos, images and survey plan, I am satisfied that the relevant balconies of Lot 804 and Lot 902 provide protection to lots or common property below. It follows that where there is a roofing membrane on that balcony, the body corporate will be responsible for maintaining it in good condition.
• [55] Good condition does not merely mean repairing the membrane if it deteriorates. The obligation to maintain in good condition includes:
  1. keeping the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to service the purpose for which it exists
  2. attending to cases where there is a malfunction
  3. taking preventative measures to ensure that there not be a malfunction, and
  4. remediating of defects in the original construction of the common property.[31]
• [56] The material in front of me suggests that the waterproofing membrane was defective where it was not adequately applied to the hob and allows ingress, despite meeting relevant building standards at the time.
• [57] In the decision of Waves,[32] the adjudicator found that the body corporate was not responsible for waterproofing the hob between the balcony and the sliding doors of a lot. However, there was a significant difference in the circumstances in Waves and the current dispute. In Waves, the balcony in question did not have a waterproofing membrane previously installed. Further, when the body corporate did install a membrane, it was only 150mm wide and applied only to the hob.
• [58] Here there is a membrane that I am satisfied the body corporate has a responsibility to maintain, and there is evidence that it was defective in it did not adequately rise to the hob. The obligation to maintain includes resolving defects.[33] I am therefore not satisfied the applicants have established that the body corporate was not responsible for the works on Lots 804 and 902 or that it should take steps to recover the costs of the works from the owners of Lots 804 and 902, in the circumstances.

• [59] The applicants say that in March 2023 the owner of Lot 507 reported a water leak coming from the lot above (Lot 607). The applicant says there was also a leak into Lot 406 (the applicants' lot) from Lot 506. One of the applicants, John Knipe, while they were the onsite employee of the caretaker, organised a contractor to attend on behalf of the body corporate. It is acknowledged by both parties that John Knipe did not have the express prior approval of the body corporate to engage the contractor on its behalf. John Knipe does however believe he possessed implied authority.
• [60] Once the invoices for the works were received, the body corporate sought to recover those costs from the owners of Lots 506 and 607.
• [61] The applicants say the body corporate should be responsible for the works, in circumstances where:
  1. The cause of the water ingress was that the drainage was insufficient, just as it was for the balconies on level 9 that the body corporate paid for.
  2. The waterproofing membrane failed, and the body corporate has a legislative responsibility to maintain the membrane.
  3. The cause was also the drain pipe, which is utility infrastructure the body corporate has an obligation to maintain.
• [62] The body corporate submits that it is not responsible for the works in circumstances where:
  1. The body corporate did not authorise the engagement of the contactors for the work.
  2. There was no waterproofing membrane on the balconies of Lot 506 or Lot 607.
  3. The balconies are not a roof to 'habitable' areas below, and that there was cracking in the tile grouting around the waste point which allowed water to penetrate through the balcony slab.

• [63] There is some argument that the applicants do not have standing to bring this dispute. While section 227 of the Act contemplates disputes being lodged between an owner and the body corporate, section 238 of the Act provides that a person may make an application if the person 'is a party to, and directly concerned with, a dispute'. It is questionable whether there is actually a dispute in relation to both lots, as Lot 607 has already paid the amount. If there is a dispute, it is questionable as to whether the applicant is sufficiently connected to the dispute where the only nexus is that they are an owner in the body corporate, however, seeks orders that would not favour the body corporate.
• [64] It is clear that if I were to simply dismiss the application on this basis, without commenting further, the dispute is likely to continue in a new application. Therefore, concerns regarding standing aside, I will make comment on the material in front of me.

• [65] The body corporate repeatedly makes submissions regarding the relevant balconies not being over 'habitable areas of a lot below' and it therefore having no maintenance obligations over the area. The legislation does not use the words habitable areas and I would encourage the body corporate to review section 170 of the Standard Module.
• [66] Nevertheless, the applicants do not offer evidence to substantiate their claims that there was a membrane on the balconies and that the membrane required maintenance.
• [67] The applicants also advance an argument that the drain was the cause. The drainage pipe is the body corporate's responsibility to maintain as it sits within a boundary structure (the balcony slab),[34] and it will have that obligation unless one of the several legislative exceptions apply.[35] However, while there were works done to the pipe, there is little information in front of me confirming that the works were necessary to resolve any defect in the pipe, or if the works were necessary due to something else.
• [68] The applicant provides a statement by Gold Coast Remedial Waterproofing, which states that 'water had leaked from the penetration though the slab around the drain on the balcony of the apartments above and into the lights below'. They advise that remedial works include cutting the drainpipe to the level of the slab and waterproofing into the pipe. Silicone expansion joints were replaced to stop water from entering the tile bed. The narration on the invoice for the works for Lot 506 says 'remove floor tiles around floor waste, to remove floor waste and cut to allow screed drainage, to fix tiles and sealant joint'. While this gives insight into the scope of works, it does little to evidence a clear cause of the water ingress, and why this particular scope of works was necessary.
• [69] The body corporate says the cause was cracked tiles and grouting around the drain (not the drain itself) which allowed water to pass where it shouldn't. If that was the case, then there is an argument that the lot owner could be responsible for the works as maintenance of the tiles and the tile bed within the lot is generally the responsibility of the lot owner. If the lack of maintenance to the tiles had then caused damage or deterioration elsewhere, then it is possible the lot owner could be held responsible for those additional works.[36] The statement by Gold Coast Remedial Waterproofing leaves open the suggestion the cracked tiles could have contributed to the problem where it was stated there was water penetration 'though the slab around the drain' and reference to stopping water from entering the tile bed. It is therefore not clear to me if these works were done to address lack of maintenance to the tiles and tile bed, or a defect in the drain.
• [70] Based on the information currently in front of me, I cannot be satisfied that the cause of the reported water ingress to Lots 506 and 607 was something that the body corporate was responsible for, such that it was responsible for the remedial works.

• [71] Where I have not made orders in relation to the Remedial Works Dispute Lots 506 and 607, the applicants argue I must therefore consider all historical works relating to water ingress on balconies and courtyards are also not the body corporate's responsibility, and I should order that the body corporate take steps to recover costs from all relevant lot owners.

• [72] The application did not initially identify which lots were impacted, with the applicants stating some lots on or around level 9 had works done to them. In later submissions, the applicants provided invoices for works done historically, but this may not be the full extent of works done. Again, there are natural justice issues in relation to this order sought. Albeit all owners were invited to respond to the application, they have not received or had opportunity to respond to the further submissions provided. Again, I have not found it necessary to seek further comment from any lot owners, as I will not be making the order sought for the following reasons.
• [73] The lack of identification of lots impacted is also a merit issue with the application being fundamentally unsubstantiated.

• [74] The applicants seek an order that the body corporate recover costs for historical works from lot owners. If the body corporate was to attempt to pursue recovery action in a Court of competent jurisdiction, it is likely most of these actions would be out of time.[37] Any order that the body corporate take recovery action would likely be of little utility.

• [75] The parties provide approximately 60 invoices related to water ingress remedial works at the scheme since 2016. I have reviewed those invoices and the works described. Again, who is responsible for water ingress remedial works on balconies and courtyards in a BFP subdivision is highly dependent on the facts, and the onus is on the applicants. The invoices and their narrations simply give vague insight into the works the body corporate was billed for. They do little to explain the circumstances as to why those works took place and the causes of any ingress, and therefore do little to satisfy me that these were not works that the body corporate could not be responsible for.
• [76] It is notable that, even if some of the works were not the body corporate's responsibility, it appears one of the applicants played a significant role in guiding the body corporate to those decisions.

• [77] I have not revisited the issue raised in the Utility Services Dispute, as the applicant has already had that matter dismissed in another application.
• [78] Despite the submissions from both the applicants and the body corporate being voluminous, there was little that was relevant to the final orders sought, and even less relevant and persuasive evidence provided.
• [79] The applicants have therefore not satisfied me that the body corporate is not responsible for the works to Lots 804 and 902, nor other historical works that happened around level 9, nor that the body corporate is responsible for the works to lots 506 or 607. The application must be dismissed.

[1] Petrie Point Apartments [2025] QBCCMCmr 150.

[4] Petrie Point Apartments [2024] QBCCMCmr 215.

[5] Petrie Point Apartments [2025] QBCCMCmr 150.

[8] Petrie Point Apartments [2025] QBCCMCmr 150.

[9] Accommodation Module, s 170(1).

[10] Accommodation Module, s 201(3).

[11] Accommodation Module, s 170(2)(a)(iii).

[12] Accommodation Module, s 170(2)(b).

[13] See, for example, Sanctuary Gardens [2007] QBCCMCmr 570 where the adjudicator found '... that there is no duty on the body corporate under this section to repair a membrane if the balconies are constructed without a membrane. However, there is a duty on the body corporate to take steps to maintain the structure of a lot, and it may be that providing a membrane is the way to do that.'

[14] Act, Sch 6 Dictionary, definition of utility infrastructure.

[15] Act, s 20(2).

[16] Act, s 20(3).

[17] Accommodation Module, s 170(1).

[18] See, for example, ss 177, 170(4).

[20] Accommodation Module, s170(5).

[21] Act, ss 229(3), 276.

[25] The Australian Oxford Dictionary, as cited in Lynvale Pty Ltd v Body Corporate for Surf Edge CTS 34002 [2017] QDC 191 at [54].

[26] Q1 [2010] QBCCMCmr 433.

[27] Act s 239(1)(a); BCCM Form 15.

[28] Act, s 239B(b)-(d); Act, Schedule 6 Dictionary.

[29] Act, s 243.

[30] Accommodation Module, s 170(5).

[31] MAGOG (NO. 15) Pty Ltd v The Body Corporate for the Moroccan [2010] QDC 70 at [83] citing Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 at [4].

[32] Waves [2024] QBCCMCmr 103.

[33] MAGOG (NO. 15) Pty Ltd v The Body Corporate for the Moroccan [2010] QDC 70 at [83] citing Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 at [4].

[34] Act, s 20; Accommodation Module, s 170(1).

[35] For exceptions see Accommodation Module ss 170(3)-(5), 177, Act s 281.

[37] Limitation of Actions Act 1975 (Qld) s 10.