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

GENERAL MEETING MOTION - where the applicant submitted a motion seeking reimbursement for work to rectify waterproofing on the deck of their lot - whether the body corporate failed to act reasonably in deciding not to pass the motion.

Act, ss 94; Standard Module, ss 180, 211 212

• [1] This application is about the responsibility for work undertaken by the applicant on their Lot 4.
• [2] Lot 4 includes a large, tiled sundeck that had garden beds. The applicant says for years there was uncertainty about the responsibility for the waterproof membrane on the sundeck. It appears water ingress was reported in Lot 3, below the sundeck. The applicant removed the garden beds and then in April 2025 engaged a contractor to replace the waterproofing on the deck. By a motion at the extraordinary general meeting (EGM) on 29 May 2025, the applicant sought reimbursement of the cost of the work. The motion was defeated.
• [3] The applicant asserts it was unreasonable of the body corporate not to pass the EGM motion. The primary question then is who is responsible for the cost of the waterproofing work.

• [4] Reef Reflections community titles scheme 149 (Reef Reflections) is a 5-lot scheme in Townsville. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building units plan 71499.
• [5] The application seeks an outcome '...for Motion 2 (defeated 4-1) at EGM 2025 of Reef Reflections CTS 149, was unreasonable and should have been passed.'

• [6] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[2]

• [7] This application was lodged on 4 June 2025. The Commissioner's delegate sought clarification on some aspects of the application.[3] The application was subsequently amended.[4]
• [8] The Commissioner invited submissions from the committee and all owners.[5] Two submissions were made opposing the application. The applicant responded to the submissions.[6]
• [9] The application was referred to department adjudication.[7]
• [10] I have now investigated the dispute, including reviewing the application and submissions.[8]

• [11] Reef Reflections was created when building units plan 71499 was registered in August 1999. It comprises 4 levels. Lots 1 and 2 are on Level A. Lot 3 is on Level B above Lots 1 and 2. Lot 4 is on Level C. A significant portion of Lot 4 comprises a large sundeck located above Lot 3. Lot 5 is then on Level D, above the internal component of Lot 4.
• [12] The original building permit issued by the Townsville City Council in 1992 specified that the weatherproofing of the deck above Lot 3 was to comply with standard building by-laws. A tiling company provided written confirmation to the council in June 1993 that the waterproof membrane on the deck area was carried out to the manufacturer's specifications.

• [13] There is a history of dispute about water ingress issues at Reef Reflections, including:
  1. In 2000 the owner of Lot 2 sought an order about water ingress.[9] In June 2000 an adjudicator ordered the body corporate to obtain a report on the cause of water ingress and pooling on common property. Then, if the report indicated the source was a body corporate responsibility, the adjudicator ordered it to take remedial steps recommended in the report to rectify the water penetration and pooling and repair Lot 2.[10]
  2. In 2011 the owner of Lot 2 applied for conciliation against the body corporate about water ingress damage to that lot.[11] The parties reached a conciliated agreement.
  3. The owner of Lot 2 lodged a further application in 2012 about the same issue.[12] In September 2012 an adjudicator made similar orders to those in 2000.[13] It appears from the decision that the owner had taken action to enforce the 2000 order and that in 2011 the body corporate had again been ordered to do the things in the 2000 order.
  4. The owner of Lot 2 made another adjudication application in 2013 about repairs to the water damage.[14] However, that application did not proceed.
  5. In 2015 a former owner of Lot 1 applied for conciliation against the body corporate about water damage to their lot.[15] The parties agreed on steps to pursue that matter.
  6. In 2024 the applicant lodged two applications about the responsibility for waterproofing in Lot 4,[16] but withdrew both.
• [14] The parties provide two different 'Building Condition Report' from building inspector Rapid Inspections. One is dated 18 February 2019 and refers to inspections in January and February 2019. It was primarily directed at moisture ingress around windows. The second was dated 20 February 2019 but refers to an inspection in February 2020, so I assume it was misdated.
• [15] The second report says its purpose was to determine the source of water ingress. Its observations include that high moisture readings and moisture signatures recorded in Lot 3 'marry up' with the garden areas above in Lot 4. The report also noted a separate issue of water ingress to Lot 2 from Lot 3, and that the drains in the balcony of Lot 4 'marry up' with the internal areas of Lots 1 and 2 where moisture signatures are located.
• [16] The report's findings included:

From the thermal imaging camera and moisture meters used during the inspection, it was found that the most likely cause of water ingress would be from the garden area in Apartment 4. I would suggest over time the waterproofing on this level has perished or has been damaged by the root systems of plants/shrubs/trees that have been added to these garden beds.

During the course of the inspection the owner of Apartment 4 (Barbara West) said that over time some of the larger vegetation had been removed. With larger plants there is an obvious correlation between the size of the plants and the root system they need to survive, I would suggest this is the most likely cause of the failed waterproof system on this balcony.

• [17] It appears that in February 2023 the committee resolved to obtain legal advice about the rooftop gardens, membrane and damage, and its solicitors wrote to the applicant in July 2023. That letter noted the original plans for the scheme did not provide for garden beds and it appeared they were installed later, without approval. The letter asked that the applicant remove the gardens and rectify the waterproofing.
• [18] At an annual general meeting in November 2023 the body corporate considered a submitted by the applicant proposing that the body corporate maintain the roofing membrane under the Lot 4 sundeck in good condition. The motion failed.
• [19] The applicant indicates that in November 2024 the owner of Lot 3 reported water ingress.
• [20] On 7 April 2025 Pro Surface Solutions provided the applicant a quote (for $21,560) for remedial waterproofing works. It said it had conducted multiple site inspections and that "After observing the garden area both filled and excavated, and assessing the substrate during rainfall in Townsville, it is evident that the existing waterproofing system (if installed) has failed due to incorrect falls, directing water towards the back of the dwelling with no effective drainage route." It further noted that improper falls accelerate the deterioration of any waterproofing system, undermining performance and longevity.
• [21] On 9 April the applicant emailed the other owners to advise that waterproofing of the sundeck would commence on 14 April. The email said the applicant would be claiming the cost of the work from the body corporate on the basis that it was responsible for the membrane. The email noted that after trying several waterproofers, only one quote was forthcoming.
• [22] An email from the director of Townsend Constructions NQ to the applicant on 30 April is described as a report on 'slab defects and water ingress'. It said the slab was constructed with inadequate falls, preventing proper water runoff and leading to pooling. It said there was a lack of waterproofing, with no visible membrane or coating to protect the slab. It said the improper falls and lack of waterproofing led to excessive water pooling. It said the slab was not functioning as intended, leading to potential structural deterioration and water ingress. It recommended removing the existing surface, installing a waterproof membrane, reinstating the surface, and ensuring proper drainage. It queried the next steps for remediation work.
• [23] The applicant's motion to the EGM in May 2025 (Motion 2) proposed that the body corporate reimburse the owner of Lot 4 for $20,735 to replace the waterproofing membrane on the deck of Lot 4. The motion failed with 1 vote in favour and 4 against.
• [24] On 4 June Pro Surface Solutions provided a completion report on the works it undertook. It provided certification of the waterproofing dated 29 April.

• [25] The submission from the owner of Lot 1 includes:
  1. Water leaks and high moisture content in the ceiling of Lot 3 have been an ongoing issue for many years. It was identified that correlated with the gardens on Lot 4.
  2. The rooftop gardens are unpermitted, illegal structures. They were not shown on the original plans and no subsequent building permit was lodged and approved. The body corporate cannot be held accountable for repairs on a structure with no building permit.
  3. The gardens were poorly constructed and maintained with inadequate drainage, poor soil, overwatering, and inappropriate planting of large trees which damaged the membrane. The gardens created a nuisance to other units.
  4. The body corporate can recover costs from a person whose actions cause or contribute to the deterioration of a lot.
  5. The applicant claimed the cost of the whole of the sundeck membrane replacement, and not just the area of the gardens. The applicant had the entire area retiled to get a continuous look. They do not see why they should pay to replace the entire deck.
  6. There was no consultation. The applicant only advised she would claim the cost of the works as they were about to start. They do not consider they can be expected to pay for work they did not initiate, agree to, or have any input into.
  7. The regulations required 2 quotes to be obtained and agreed on.
  8. The body corporate cannot be held liable for the applicant acting unilaterally and not following the regulations.
  9. He worked with the applicant about the issue and believed she was taking responsibility. He was not involved in discussions as a body corporate representative.
  10. The building permit waterproofing certificate shows the product used were not technically specified for use under gardens rather than tiles.
  11. The director of Townsend Constructions NQ has a conflict of interest and is not independent because they are related to the applicant.
  12. The body corporate believes the applicant has future responsibility for maintaining the roofing membrane and liability for damages and repairs if there is water damage from the membrane failure. It would like directions to that effect. The applicant replaced the membrane without consulting the body corporate, providing or receiving technical advice, approval for the works, or obtaining a minimum of two quotes. The body corporate cannot be held responsible for further maintenance or be liable for future water leaks for work that it did not commission, approve or have any say in.
  13. The body corporate believes the tiles laid may be non-compliant or inadequate. To confirm this, they want the adjudicator to direct the applicant to have a survey made of the deck by a licenced surveyor and a subsequent report on compliance, to be engaged at the direction of the body corporate and the cost of the applicant. If the sundeck fall is non-compliant, they want the adjudicator to direct the applicant to engage a consultant directed by the body corporate to provide recommendations for repair, and then enact that work in consultation with the body corporate, at the applicant's expense.
• [26] The owners of Lot 5 say the applicant disputed the issue for years, but countless votes did not agree to pay for the building damage by the applicant. Until recently the area had substantial trees and plants planted directly onto the deck that were poorly maintained and overwatered. Reports recorded that the gardens were the cause of moisture in the lots below, but the applicant failed to take responsibility for it. The unpermitted gardens compromised the integrity of the roofing structure and resulted in damage. They object to the applicant's conduct.
• [27] The applicant's response to the submissions includes:
  1. The 2019 report was done after a major flood event when there was significant rain.
  2. Council must have given the final certificate of classification and the building has been occupied since 1993 so she does not understand that the gardens are unpermitted.
  3. There was no damage to the concrete once the garden beds were removed.
  4. There was little evidence of the waterproofing membrane remaining. As the building is 32 years old you would expect deterioration.
  5. She is only requesting reimbursement for the membrane. Targeted rectification action was carried out using engineered screed only where non-compliance existed.
  6. She did not approach the body corporate due to negative feedback for 8 years, and a new owner complained of leaks.
  7. She had tried for years to find a suitable contractor to no avail, and when she found Pro Surface Solutions she decided to go with them.
  8. She disputes that she watered heavily or that roots caused damage. She was diligent in maintaining the gardens and plants and sweeping off pooled water.
  9. There was 1 hoop pine and 8 figs planted. When she noticed fig roots cracking the kerb, she removed the figs. The hoop pine remained until 2022.
  10. The owner of Lot 1 tried to convince her that she was responsible for the membrane, but she always believed it was a body corporate responsibility.
  11. She disputes that the waterproofing and tiling work was non-compliant.

• [28] The issue in this dispute is whether EGM Motion 2 should be deemed passed. In deciding that matter, I will consider the relevant legislative provisions and responsibilities for maintenance, and then consider the submitted evidence.
• [29] The owner of Lot 1 seeks various outcomes and directions about the consequences of the work undertaken by the applicant. The Act provides that an adjudicator may make an order to resolve a dispute.[17] An order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate.[18] But I do not consider the outcomes and directions sought can be characterised as ancillary or consequential to the order sought in this application, or the dismissal of that order. The Act does not provide for counterclaims except on a limited basis in relation to costs.[19] Accordingly, I could not make orders about the matters sought in that submission even if warranted. It is open to the body corporate or any individual owner to pursue a separate dispute if required, and to substantiate the basis for that.

• [30] The applicant says it was unreasonable of the body corporate not to pass EGM Motion 2. The Act requires a body corporate to act reasonably in regard to its functions, including in making or not making a decision.[20]
• [31] The test for whether a decision is reasonable is objective.[21] It is a question of fact, having regard to all the circumstances.[22] Reasonable decision-making "...involves an evaluation of the known facts, circumstances and considerations that tend to have a rational bearing on the issue..." and "...requires that all relevant matters are taken into consideration and irrelevant ones are left out".[23] Furthermore a "...legally reasonable decision is not a uniquely right one. It involves matters of degree about which contrary - even opposite - conclusions can be reasonably reached on the same body of evidence by different lines of reasoning or by reference to other determinants without either being demonstrably right or manifestly wrong."[24]
• [32] The person challenging a decision bears the onus of establishing that it was unreasonable.
• [33] If a body corporate has failed to act reasonably, an adjudicator can make an order that is just and equitable to resolve a dispute, including overturning or amending that decision.[25] But it is not for an adjudicator to supplant the body corporate's decision or impose their own views.

• [34] Reef Reflections is registered as a building format plan of subdivision (BFP). In this type of survey plan, the boundaries are defined by the structural elements of a building, including the floors, walls, and ceilings. Where a lot is separated from another lot or common property by a floor, wall or ceiling, the boundary is the centre of the floor, wall, or ceiling.[26]
• [35] A lot owner must maintain their lot in good condition, except where it is the body corporate's responsibility to maintain.[27] A body corporate must maintain common property in good and structurally sound condition.[28]
• [36] But in a BFP, a body corporate must also maintain the following things that are not on common property in good condition:[29]
  1. railings, parapets, and balustrades on the boundary of a lot and common property
  2. doors, windows, and fittings in the boundary of a lot and common property, and
  3. roofing membranes that provide protection for lots or common property.

It must also maintain foundation structures, roofing structures providing protection, and essential supporting framework including load-bearing walls, in structurally sound condition.[30]

• [37] In the context of a body corporate's maintenance obligations, the District Court of Queensland has considered the statutory duty in the Act to maintain. The Court has said:

The statutory duty imposed ... is one which obliges it to remedy any defect as soon as any of the building parts covered by the duty fall into disrepair or were not operating properly. Failure to do so, once aware, gave rise to a breach of its duty.[31]

...there is an intention disclosed by the legislation for a duty of care to arise.[32]

• [38] The latter decision applied a Supreme Court of New South Wales Equity Division case:

The duty to maintain: involves an obligation to keep a thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists; requires the body corporate not only to attend to cases where there is a malfunction, but also to take preventative measures to ensure that there not be a malfunction; extends to require remediation of defects in the original construction of the common property; and extends to oblige the body corporate to do things which could not be for the benefit of the proprietors as a whole or even a majority of them. There is 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. [33]

• [39] The regulations provide that despite a body corporate's obligation to maintain parts of a lot in a BFP, it can recover costs as a debt from a person whose actions cause or contribute to the damage or deterioration of part of the lot.[34] The costs claimable will be the portion of the reasonable cost to the body corporate of carrying out maintenance that the body corporate reasonably considers can be fairly attributed to the person's actions.
• [40] Also, if an adjudicator is satisfied that an applicant has suffered property damage because of a contravention of the legislation or the CMS, the adjudicator can order the person they reasonably believe to be responsible for the contravention to carry out stated repairs or reimburse the applicant for repairs they have carried out.[35]

• [41] There is apparently a view that the gardens on the Lot 4 deck were not approved and were 'illegal'. I do not consider that is substantiated.
• [42] The fact that gardens were shown in a development application but not in building permit plans does not mean they are not permitted. No evidence has been provided that building approval was required for plantings on the deck or that the inclusion of plantings was rejected by the council. That appears to be supposition. It is evident the gardens were in place for at least 20 years (since before the applicant acquired the lot in 2004), if not much longer. But I have been given no evidence that the council has ever considered there to be a breach of the development approval because of the installation of the gardens.
• [43] And if the gardens were installed by a former owner of Lot 4 after the original construction and certification of the building, no evidence has been provided that body corporate approval was required for them or was not given. The legislation does not inherently require owners to obtain body corporate approval for alterations to their lot; that could only be a requirement pursuant to a by-law. It is not apparent that the body corporate has recorded a by-law that would have required approval for an owner to install gardens on their lot. Moreover, if the body corporate approval was required (which is not evident), where the gardens were in situ for over 20 years, if not 32 years, it appears the body corporate either approved them or could not reasonably resile from its long-term acceptance of them.
• [44] In any event, I do not consider the status of the gardens is determinative of the legal responsibility for the membrane on the Lot 4 deck.

Responsibility for the membrane on the Lot 4 deck

• [45] The boundary between Lot 4 and the lot below is the centre of the slab. The upper side of the slab, including any tiles and gardens on the deck, is part of Lot 4. Prima face that is the applicant's responsibility to maintain in good condition. The body corporate is responsible for maintaining the slab in a structurally sound condition. And, as the slab provides protection for Lot 3 below, the body corporate is responsible for the roofing membrane on the slab.
• [46] The responsibility for the cost of the waterproofing work will depend on the reason for it.
• [47] If the membrane was being removed or replaced to facilitate other works that the lot owner chose or was required to undertake on the lot (for example, because the applicant wanted to rectify the fall on the deck, remediate the area where the gardens had been removed, or to replace the tiles) that would inherently be an owner responsibility. If the roofing membrane on the deck was in good condition, there would be no grounds to require the body corporate to repair or replace it to ensure it was in good condition. And I have been given no evidence that the slab underneath the membrane was not structurally sound, or that the work was required for the body corporate to maintain the slab in a structurally sound condition.
• [48] On the evidence, it appears the work was undertaken because the waterproof roofing membrane on the sundeck, or at least part of it, was inadequate or defective.
• [49] Prima facie, it was the body corporate's responsibility to repair or replace the deficient membrane. It had been on notice since at least February 2020 that the membrane had deteriorated, and Rapid Inspections said the issue required attention. It is concerning that the body corporate did not act at that time or at all. Even if it believed the applicant was responsible for the deterioration of the membrane, it should have acted promptly to remedy the membrane itself and then claimed the cost of the work from the owner as a debt. It was inappropriate and unreasonable to do nothing. And it is disingenuous to complain about how the work was done, when the body corporate failed to pursue the work itself.
• [50] But while the body corporate was inherently responsible for undertaking the repairs necessary to maintain the membrane in good condition, whether the cost could then be passed on to the lot owner depends on the reason for the damage or deterioration of the membrane.
• [51] There appear to be several potential reasons for that from the submitted evidence.
  1. Townsend Constructions NQ and Pro Surface Solutions both cite inadequate falls in the deck surface, resulting in insufficient drainage and water pooling. Pro Surface Solutions noted that improper falls accelerate the deterioration of any waterproofing.
  2. Townsend Constructions NQ said there was no visible evidence of a waterproof membrane. However, that opinion appears inconsistent with the contemporaneous evidence of waterproof membrane being installed on deck in June 1993. And the applicant does not appear to dispute that there was a membrane.
  3. Rapid Inspections opined that the membrane might have perished over time. As I understand it, waterproof membranes have a limited lifespan, and it would be unsurprising if the membrane deteriorated over the 32 years after it was apparently installed without any other intervening cause.
  4. Rapid Inspections also suggested the membrane might have been damaged by the roots of plants and trees planted on the deck. It considered that to be the more likely cause of the failed waterproof system.
• [52] Those different possible causes give rise to different liabilities.
• [53] If the membrane had simply deteriorated over time, it was the body corporate's responsibility to repair or replace it to ensure the membrane was in good condition. If there was no membrane installed when there was clearly a need for one, arguably the body corporate should have rectified the deficiency to meet its obligation to maintain roofing membranes in good condition.
• [54] But the applicant would be responsible for any inadequate fall on the deck. Although that might be viewed as a construction defect, it is a defect within the boundaries of the lot that the lot owner is responsible for. It could not be said that any inadequate fall on the slab itself meant the deck was not structurally sound such that the body corporate would be responsible for rectifying it. So, if inadequate falls on the deck caused or contributed to the deterioration of the membrane, that was a cause the applicant is liable for.
• [55] Similarly, the applicant was responsible for maintaining the plants and trees planted on the deck. If those plants and trees, or the growth or maintenance of those plants and trees, caused or contributed to the deterioration of the membrane, the applicant was liable for it.
• [56] I think it unlikely on the submitted evidence that there was no waterproof membrane installed. But to the extent that there was a membrane installed, the evidence is not clear as to why the membrane failed, or whether it was a combination of factors that caused it to fail. It could have wholly been factors that were the applicant's responsibility, wholly the body corporate's responsibility, or a combination.
• [57] But ultimately, I have insufficient evidence to reach any definitive conclusion as to the cause or causes of the deficient waterproofing on the Lot 4 sundeck. If there was a combination of factors, I have insufficient evidence as to the extent or percentage of each relevant factor's contribution. And because the work has already been undertaken, there is now no scope for further reports or other investigations into the cause. It follows that I have insufficient evidence to determine who is responsible for the inadequate or deteriorated membrane on the deck.

• [58] The applicant bears the onus of proof. The applicant argues the body corporate failed to act reasonably in not passing her motion on the basis that it was responsible for replacing the membrane. The body corporate should have undertaken the work to rectify the membrane itself and not left it to the applicant to pursue. But the applicant has not provided sufficient evidence to enable a conclusion that the membrane simply deteriorated over time rather than that it failed wholly or in part because of a defect or failing (such as the lack of fall and the impact of the gardens) that the applicant or a predecessor owner of Lot 4 as responsible for. Accordingly, I have insufficient evidence to conclude that the body corporate was liable for the cost of the waterproofing works rather than it being a cost the body corporate was entitled to claim from the applicant. Where I have insufficient information to reach that conclusion, it follows that it was not unreasonable for other owners not to be satisfied the body corporate was responsible for the cost of the waterproofing works. I have dismissed the application.
• [59] However, the parties should be aware that the body corporate will be responsible for maintaining the new membrane in good condition into the future. I do not accept that the applicant is forever responsible for membrane now that she replaced it. Having liability for particular repairs not change the inherent legal responsibility for a thing. It would only be if any future damage or deterioration of the membrane was caused or contributed to by someone else, that the body corporate may be able to claim the costs of repairs.
• [60] Also, while there is concern the waterproofing work is non-compliant or inadequate, that has not been substantiated. There is nothing to indicate that Pro Surface Solutions is not adequately qualified and licenced to undertake the work in a compliant manner. If the body corporate or any owner wished to pursue that issue, arguably it would be responsible for obtaining professional evidence to support its assertions.

[2] Sections 227, 228, 276 and schedule 5 of the Act

[10] Reef Reflections [2000] QBCCMCmr 313

[11] Conciliation application 0685-2011

[12] Adjudication application 0170-2012

[13] Reef Reflections [2012] QBCCMCmr 429

[14] Adjudication application 0529-2013

[15] Conciliation application 1165-2016

[16] Adjudication applications 0250-2024 and 0659-2024

[21] Gold Coast Apartment Management P/L v Price & Ors [2017] QCATA 99

[22] Waters v Public Transport Corporation [1991] HCA 49

[23] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 43, citing McKinnon v Department of Treasury [2006] HCA 45; (2006) 228 CLR 423

[24] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 47

[25] For example, Item 24 of Schedule 5 of the Act

[26] Sections 48C and 49C(4) of the Land Title Act 1994

[27] Section 211 of the Standard Module

[28] Section 180 of the Standard Module

[29] Section 180(2)(a) of the Standard Module

[30] Section 180(2)(b) of the Standard Module

[31] Searles DCJ in Klinger & Anor v Body Corporate for Costa D'Ora Apartments [2007] QDC 300 at 67

[32] Newton DCJ in Magog (No.15) Pty Ltd v The Body Corporate for The Moroccan [2010] QDC 70 at 82

[33] Brereton J in Seiwa Pty Ltd v The Owner's Strata Plan 35042 [2006] NSWSC 1157, at para 4 and 5, cited in Magog (No.15) Pty Ltd v The Body Corporate for The Moroccan [2010] QDC 70 at 83 and 84

[34] Section 180(5) of the Standard Module