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

MAINTENANCE - where the body corporate acknowledges that pillars on common property and surrounding stormwater infrastructure require repair, but wishes to postpone it because it considers other maintenance more important; whether the body corporate must carry out the repairs.

Act, ss 152; 180(1); Accommodation Module, ss 152(2)(a), 170; Land Title Act 1994, ss 48C, 49C(4).

Within six months, the respondent must carry out all works necessary to return the external pillars and surrounding stormwater infrastructure before lots 41 and 42 to good condition, including replacing the rusted downpipe clips.

• [1] Lots 41 and 42 form a three-storey duplex townhouse. An external pillar rises from the ground to the middle level of the building near the entrance to each lot. The connection between the pillars and the building has cracked and Ms Williams and Mr Thompson of lot 42 say the cracks are admitting water:

Water has got into both these cracks and into the pillar from the rain and storms. This has done extensive damage in which steel supporting rods that support the structure have been compromised and rusted out, along with other damage to wood and plastered areas.

• [2] Ms Williams and Mr Thompson say the pillars are common property that the body corporate should restore to good condition. They first requested maintenance on 7 February 2024, advising the body corporate committee the pillars were "moving apart from the building structure" and some clips holding downpipes in place were rusted. In minutes of 13 March 2024, the committee observed that the by-laws made those works the owner's responsibility, though "legislation does state otherwise", and "it is the role of the Committee and Owners/Occupiers alike to abide by the by-laws as they are".
• [3] Ms Williams and Mr Thompson had a builder, Cottonwood Homes, inspect the pillars. Cottonwood reported on 26 June 2024:

There is movement to the front pillar section as a result of ground movement that is most likely being exacerbated by storm water leakage due to incorrect plumbing fittings below ground. This then allowing the expansion joint to open up with water entering to the structure behind causing rot and possibly the connection between pillar and timber structure being compromised.

• [4] Cottonwood quoted on repairs to stormwater infrastructure and an invasive inspection of the connection between the pillars and building. Ms Williams and Mr Thompson passed the quotation on to the committee. In reply, the chairperson said the committee was addressing lot 42's maintenance needs alongside other maintenance needs at the scheme, and requested that lot 42 obtain a second quotation.
• [5] Cottonwood went ahead and cut inspection holes in the soffit before the entrances to lots 41 and 42 to examine the internal connection between the pillars and the building. On 10 October it recommended the following repairs for $4620:
  • Reconnection of timber structural beam to feature brick pillar
  • Install of 2x16mm galv threaded rod into core filled feature brick pillar
  • Connect rods to existing timber beams through 5mm galv angle
  • Repair of broken storm water pipe at bottom junction using expanda joint
  • Reseal of existing expansion joint to brick pillar and front corner
  • Repair of ceiling to front porch
  • Prep, seal and paint of front porch ceiling to best match existing
  • Prep, seal and paint of expansion joint to front brick pillar.
• [6] Ms Williams and Mr Thompson now seek orders to compel the body corporate to carry out these works and replace the rusted downpipe clips.
• [7] The committee said in its submission in January 2025 that it is investigating carrying out repairs to lot 42 in conjunction with works to other three-storey lots, but it is "acutely aware" of its "limited financial resources" and that other work, such as the replacement of leaking skylights, is more deserving. I sought an update in May and the committee advised that it had resolved to defer further consideration of the issue pending the outcome of this application, but any works "will be undertaken and will be completed so as not to interfere with the painting project which is scheduled to start in October/ Nov 2025".

• [8] It is not disputed that the pillars are common property and they are not in good condition.[1] A body corporate must maintain common property in good and (where it is structural in nature) structurally sound condition.[2] The timing of that maintenance (with reference to other projects and financial constraints) is the issue in dispute.
• [9] Brereton J of the Supreme Court of New South Wales found "there has been a breach of the ... duty as soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair".[3] That leaves no scope for a body corporate to defer maintenance because it has inadequate funds or because other maintenance needs are considered more pressing. All work that is necessary to keep the common property in good and structurally sound condition must be undertaken promptly to ensure it does not fall into disrepair. If that creates "a liability...for which no provision, or inadequate provision, has been made in the budget, the body corporate must...fix a special contribution to be levied on the owner of each lot towards the liability".[4]
• [10] By-law 5.1(a) says every owner must maintain in good condition and repair the exterior of their lot, including all walls. That was presumably the by-law underlying the committee's resolution of 13 March 2024 when first approached by Ms Williams and Mr Thompson. But the boundaries of lots 41 and 42 are the structural features, such as the external walls, that separate them from one another and from surrounding common property.[5] The precise boundary lines lie at the centre of those structural features, with the effect that the external surfaces of the walls and everything outside them is common property.[6] The Accommodation Module requires the body corporate to keep the common property in good condition, and by-law 5.1 is invalid to the extent that it says otherwise.[7]

• [11] Given the time that has elapsed since Cottonwood's quotation, further work may now be required to restore the pillars and stormwater infrastructure to good condition. Rather than ordering the body corporate to carry out the specific repairs identified by Cottonwood, I will simply order the body corporate to carry out all works necessary to return the pillars and surrounding stormwater infrastructure to good condition, including replacing the rusted downpipe clips. If the body corporate wishes to combine that with other work to the other three-storey lots, it may.
• [12] As the body corporate will need to obtain updated quotations and may need to call a general meeting to raise funds, I will allow six months for compliance.

[2] Act, s 152; Accommodation Module, s 170(1).

[3] Seiwa Pty Ltd v The Owner's Strata Plan 35042 [2006] NSWSC 1157, cited by Newton DCJ in MAGOG (NO. 15) Pty Ltd v The Body Corporate for the Moroccan [2010] QDC 70 at [84].

[5] Land Title Act 1994, s 48C.

[6] Land Title Act 1994, s 49C(4).

[7] Act, s 180(1).