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

INTERIM ORDER - whether the body corporate should be ordered to undertake works to temporarily stop water entering a lot via a planter box and balcony area above the lot.

1. The application for interim orders is dismissed.

• [1] The owner of Lot 3 brings this application for interim orders against the body corporate.
• [2] The applicant says they are experiencing water ingress into their lot, which is tenanted. This is obviously a problem. They argue the water is entering their lot due to there not being a waterproofing membrane on the balcony area above their lot, and a failed waterproofing membrane in the planter box above their lot. The applicants believe the balcony and planter boxes form part of common property, but the survey plans seem to suggest the areas are part of Lot 17.
• [3] The applicants say that a potential sale of their lot has already fallen through due to the situation, and they hold concerns that if the matter is not fixed within a few weeks, their tenants will terminate the lease. Therefore, the applicants are seeking interim orders that the body corporate implement temporary measurers to both the planter box and the balcony that would prevent further water ingress into their lot.
• [4] I understand the current situation is frustrating for the applicant. However, I cannot make the orders sought based on the material in front of me. I have not been satisfied that the nature and circumstances warrant the interim orders sought as:
  1. While the applicant has raised a prima facie case for part of the orders sought by providing evidence that water ingress may be attributable to a failed waterproofing membrane in a planter box (that the body corporate is likely responsible to maintain under section 180(2)(a)(ii) of the Standard Module), the applicant has also submitted that the balcony does not have a waterproofing membrane installed and this is also a cause of the ingress. The application does not currently raise sufficient argument as to how the body corporate is responsible for works to the balcony generally, when it likely forms part of Lot 17.
  2. Further, the balance of convenience does not favour a mandatory injunction where the applicants have not specified or evidenced what temporary works would be effective in stopping water ingress into their lot.
• [5] I note that the body corporate submits it is taking steps to resolve the issue including lodging an insurance claim.

• [6] While I may make an interim application without receiving submissions from the respondent, I must observe natural justice. I invited submissions from both the respondent body corporate, as well as the owner of Lot 17. The owner of Lot 17 has not been listed as an affected party, but in the circumstances, I consider them materially affected by the outcome sought in the application.[1] The following background information is correlated from the application and submissions from the body corporate and the owners of Lot 17.
• [7] The scheme is a building units plan subdivision, now referred to as a building format plan subdivision (BFP), of 26 lots in the suburb of Kenmore. Lots appear to be used for a commercial purpose. The community management statement (CMS) shows the Standard Module applies.
• [8] The part of the applicant's Lot 3 is situated directly below part of Lot 17.
• [9] On 10 March 2025 the applicant's tenants alerted them to water ingress issues in the lot. The next day, the tenant suggested to the applicants that they may terminate the lease due to the water ingress and resulting damage.
• [10] The applicants alerted the body corporate to the situation and requested assistance on 12 March 2025. The body corporate's manager responded with information on how the applicant could lodge an insurance claim and gave information on the excess payable. [2] The applicants advised they would not be lodging a claim on the body corporate's building insurance as they believe the damage would be under the $2,000 excess.
• [11] The applicant engaged a contractor to dry and sanitise the lot. There are documents in front of me that suggest the applicants may have made a claim on a different insurance than the body corporate's building insurance,[3] but the application is not clear on this point.
• [12] Later that month, the applicant says a prospective sale of Lot 3 fell through due to the water ingress issue.
• [13] In following weeks, the applicants say a builder inspected Lot 17's balcony and verbally suggested the balcony 'may not be waterproofed'. The applicants also argue that the owners of Lot 17 undertook renovations to the balcony of their lot without the required body corporate approval and this could have caused water to enter via the balcony.[4] The owners of Lot 17 dispute this and say they have not made any changes to the flooring of the balcony.
• [14] A licensed plumber was also engaged, who conducted a dye test and provided a report (Plumbing Report). The Plumbing Report says that water is entering Lot 3 from the planter boxes, and the waterproofing membrane in the planter boxes appears to be peeling away. It recommends that the planter boxes be re-waterproofed and the mortar rectified.
• [15] During this time, the applicant repeatedly requested for the body corporate to take 'temporary protective measures' to stop water ingress into their lot. The applicants say those temporary measurers could include taping or sealing to prevent further water ingress. The body corporate has not done as requested, and the applicant says water continues to enter their lot after heavy rain. However, the body corporate says it has approached contractors, and the advice has been that there are no temporary solutions available, only permanent fixes. The body corporate says it is committed to resolving the issue and is considering lodging a claim on its building insurance.

• [16] The final orders the applicant currently seek, which is not being decided at this time, read as follows:

The Body Corporate must immediately and permanently repair the planter boxes, [verandas], and related structures above Unit 3 to ensure the property is watertight and safe. > > The Body Corporate must reimburse the Applicant for the following actual expenses already > > paid:

• Metrodry Restoration Invoice #1 (26 April 2025): $5,373.50
• Metrodry Restoration Invoice #2 ( due 11 May 2025): $4,235.00
• Plumbing Leak Investigation Invoice (Mr. Emergency Plumbing): $901.55
• Air Conditioning Cleaning and Sanitisation (Technicool): $785.00
• BCCM Adjudication Application Fee: $231.90

[The] Body Corporate must undertake or fund permanent repairs and related works including:

• Carpet full replacement (Estimate: $5,000),
• Ceiling tile replacement, Internal gyprock and paint repairs (Estimate: $5,000 - $8,000),
• Permanent re-waterproofing of planter boxes and [verandas] (Quote pending),
• Payment for further emergency drying or mitigation works if additional rain events cause further water ingress prior to full repairs being completed.

• [17] The interim orders the applicant seeks is for the body corporate to:

(a) Immediately implement appropriate temporary waterproofing or mitigation measures to prevent any further water ingress into Unit 3, including but not limited to tarping, sealing, or drainage diversion of the common property areas (planter boxes and [verandas]) above Unit 3; and > > (b) Provide written confirmation to the applicant that such interim protection measures have been implemented, including the date, location, and nature of the works.

• [18] The power for an adjudicator to make an interim order is provided for in the legislation.[5] Interim orders are temporary in their effect. Typically, their purpose is to maintain the status quo, preserving a party's rights or interests until the matter can be finally determined, usually by stopping a party from taking certain actions. However, the interim order currently being sought is of a slightly different nature. The applicant seeks an order that would put a positive obligation on the body corporate to take certain actions to stop water entering their lot (on a temporary basis). This type of order is known as a mandatory injunction. An order requiring a respondent to do something (as opposed to a restraint) which is not needed to preserve an existing interest of the applicant, and which imposes a non-compensable burden or loss on the respondent - is a special case. It is rarely made by courts and calls for particularly careful consideration, with the effect that the balance of convenience is shifted in the respondent's favour (all other things being equal).[6]
• [19] The legislation provides that an adjudicator may make an interim order where satisfied, on reasonable grounds, that the order is necessary due to the nature or urgency of the circumstances.[7] Adjudicators often follow the test applied by courts in interlocutory applications, being whether the applicant has shown that it has a prima facie case, and whether the applicant has shown that the balance of convenience favours the granting of the relief claimed.[8]
• [20] Therefore, to be successful in their application for interim orders, the applicants must satisfy me that:
  1. there is a prima facie case to justify relief, and
  2. the balance of convenience justifies the interim relief, being particularly careful with this consideration in the context of a mandatory injunction.

• [21] While I am not determining the final orders at this time, determining whether there is a genuine legal issue at the interim stage requires some level of assessment of the final orders sought.
• [22] The onus is on the applicant prove there is a prima facie case to justify the interim orders. The applicant does not need to show that it is more probable than not that they will succeed. The applicant needs to show a sufficient likelihood of success to justify the interim orders pending a final determination of the matter.[9] How strong the probability of success needed depends upon the nature of the rights the applicant asserts, and the consequences of the order sought.[10]

• [23] The first final order is that the body corporate undertake works to the planter box and balcony of Lot 17 to make the area 'watertight'.
• [24] The applicants say these areas are common property. Based on my preliminary review of the survey plans, I currently disagree. The balcony and planter boxes appear to be part of Lot 17. Generally, the obligation is on the lot owner to maintain their lot in good condition,[11] not the body corporate. However, there are several exceptions to this general rule.
• [25] The body corporate can still have an obligation to maintain waterproofing membranes within Lot 17. Section 180(2)(a)(iii) of the Standard Module provides that the body corporate, in a BFP subdivision, must maintain in good condition roofing membranes that are not common property but provide protection for lots or common property.
• [26] The applicant has provided evidence, via the Plumbing Report, that there is a membrane within the planter boxes, and that the membrane appears to be peeling and requires maintenance. Based on the material currently in front of me, my preliminary view is that maintenance of the membrane in the planter box is likely the body corporate's responsibility and maintenance is required to be undertaken.
• [27] On the other hand, the applicant has submitted that the balcony area of Lot 17 does not have a membrane. Where there is no membrane, there cannot be any responsibility on the body corporate to maintain one. Whether the body corporate has any obligation to install a membrane where the is not one is highly dependent on the facts. The body corporate does not have a general statutory obligation to stop water from entering lots below or placing a membrane where they may be generally beneficial.[12] However, the body corporate in a BFP subdivision does have an obligation to maintain roofing structures and other essential supporting framework in a structurally sound condition,[13] and in some instances the installation of a membrane may be the way for the body corporate to meet that obligation.[14] Therefore, to obtain an order that the body corporate install the membrane, the applicant will need to satisfy me that the installation of the membrane is necessary to maintain the area in a structurally sound condition. My preliminary view is that I cannot be satisfied of this based on the material currently in front of me.

• [28] The applicant seeks final orders that the body corporate repair or replace damaged property in the lot, as well as reimburse the applicant for costs incurred in relation to the damage.
• [29] Section 281 of the Act explicitly deals with an adjudicator's power to order repair works, or reimbursement for works, for damage to property. Where I am satisfied that:
  1. the applicant has suffered damage to property, and
  2. the damage to property was because of a contravention of the Act or CMS,

then I may make an order that the person who I believe, on reasonable grounds, is responsible for the contravention to:

1. pay the applicant a fixed amount for reimbursement for repairs.

• [30] However, there are limits to what an adjudicator may order under section 281 of the Act. I cannot order repair works where the cost is more than $75,000. I also cannot order reimbursement if the amount is more than $10,000. Currently, the applicant is seeking to be reimbursed more than $10,000, which may be beyond my power as an adjudicator. Though this does not necessarily mean that the applicant is unable to pursue their application.[15]
• [31] The applicant has brought evidence, via the Plumbing Report, that the damage may be attributable to the waterproofing membrane in the planter box failing. Therefore, my preliminary view is that the body corporate may have caused damage by contravening section 180(2)(a)(iii) of the Standard Module by not maintaining the membrane in good condition. The maintenance obligation is one of strict liability.[16]
• [32] The difficulty is that, if part of the damage is due to a lack of waterproofing membrane on the balcony where there is no membrane as the applicant suggests, the applicant has not raised an argument as to how the body corporate is responsible for those works under the legislation.
• [33] Nevertheless, on my preliminary review of the material currently in front of me, I am satisfied there is a prima facie case for at least part of the second and third final orders.

• [34] Before granting interim relief, I must balance the inconvenience to the respondent body corporate by granting relief now, in the knowledge that final orders might ultimately be refused, against the inconvenience to the applicant lot owners by not granting relief now, in the knowledge that final orders might ultimately be granted.
• [35] I understand that the applicant is seeking an urgent remedy, as their tenant may terminate the lease due to the situation, which will potentially increase financial harm suffered by the applicant.
• [36] Yet, it is difficult for me to say that the balance of convenience favours the applicant where they do not clearly specify in the orders, or provide any evidence, as to what exact temporary actions would provide any relief. It appears since being provided with the Plumbing Report, the body corporate has taken positive steps towards rectifying the issue with the planter boxes. The body corporate submits it has approached contractors however have been advised there are no 'temporary' fixes, only the permanent solution of complete replacement of the membrane will address the issue.
• [37] The lack of specificity also raises a natural justice issue, where the scope of works the order would require is not specified. As already explained, it is not currently clear whether works to the balcony would be the body corporate's responsibility. Therefore, based on the material currently in front of me, I cannot be satisfied that the balance of convenience favours making the current interim orders sought.

• [38] I understand the current situation is unfortunate and frustrating for the applicants. However, I cannot be satisfied the balance of convenience favours in the interim orders the applicant has sought, based on the material in front of me.
• [39] I have made comments that on my preliminary review the applicant has made out a prima facie case against the body corporate. In its submissions, the body corporate has indicated that it is considering lodging a claim on the building insurance and is taking steps to have works to the planter box attended to. I am hopeful that the parties can work together to resolve this dispute.

[1] Act, Sch 6 Dictionary definition of affected person.

[2] For more information on who may be liable to pay insurance excess amounts see: Standard Module, s 203; The Vue Scarborough [2024] QBCCMCmr 106 at [29-30].

[3] Metrodry Restoration report refers to a claim.

[4] The applicant believes the balcony is common property.

[6] Meagher, Gummow and Lehane's Equity: Doctrines & Remedies (J.D. Heydon, M.J. Leeming, P.G. Turner) (Fourth Edition) (Sydney: LexisNexis Butterworths, 2002) at [21-395]; Bingham & Anor v 7-Eleven Stores P/L [2003] QCA 402 at [106]-[108].

[8] SDW2 Pty. Ltd. V JLF Corporation Pty Ltd [2017] QSC 1 at [21].

[9] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at [622-623].

[10] Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57, at [65], [19].

[12] Rata Nui [2023] QBCCMCmr 117 at [26]; Bayview Tower [2022] QBCCMCmr 161 at [122].

[14] Sanctuary Gardens [2007] QBCCMCmr 570.

[15] See, for example, MAGOG (NO. 15) Pty Ltd v The Body Corporate for the Moroccan [2010] QDC 70 at [23]; Enderley Gardens [2024] QBCCMCmr 60 at [85].

[16] MAGOG (NO. 15) Pty Ltd v The Body Corporate for the Moroccan [2010] QDC 70 at [85].