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austlii:qld/QBCCMCmr/2026/76
General information, not legal advice.
QBCCMCmr
2026-03-12
Original judgment source is linked above.
The Body Corporate for Returns at River (respondent)
Body Corporate and Community Management Act 1997 (Qld) (Act), and (3)(a)
Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module)
MAINTENANCE - where the applicant had rectification works carried out to the stormwater utility infrastructure in their exclusive use courtyard - where the body corporate has not reimbursed the applicant for the cost of the work - whether orders are warranted.
[1] This application is about the liability for stormwater rectification works carried out in the applicant owner's exclusive use courtyard - specifically, area "Y5" on the exclusive use plan marked "A".
[2] The applicant says that prior to their purchase of the property, the stormwater pipework in the exclusive use courtyard failed and burst in the ground, causing a sinkhole. They say the body corporate paid for the original repairs in January 2025 but did not follow the plumbing company's recommendation to engage an engineer to assess the ground before completing the works (including backfilling the hole). The applicant submits that subsequent rain impacted the incomplete work, causing further damage.
[3] The applicant communicated with the body corporate manager (BCM) regularly in May and June 2025 asking for the work to be completed.
[5] By a vote outside a committee meeting in September 2025, the committee resolved not to reimburse the applicant $6,374.50 for cost of the works. The applicant contends that the committee's reasons for refusing reimbursement have no legal basis.
[6] The applicant is seeking reimbursement for the total cost of the stormwater rectification works and the application lodgement fees for conciliation and adjudication.
I am seeking full reimbursement of $6374.50 for the storm water repairs that I personally paid due to urgency and the committee's lack of action. I am also seeking full reimbursement of the conciliation and adjudication fees.
[8] Returns at River community titles scheme 47545 (Returns at River) is a 34-lot scheme at Bundamba. The community management statement (CMS) indicates the Accommodation Module applies. The scheme is registered as survey plan 269664 and 269665.
[9] 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 the performance of duties under the Act or CMS.[3] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions in the Act.[4]
[10] The applicant initially applied for conciliation in September 2025.[5] A conciliation session was scheduled in October 2025. However, the conciliator considered that the body corporate did not make a reasonable attempt to participate in conciliation.
[11] This application was then lodged on 8 October 2025.
[12] The Commissioner invited submissions from the committee on behalf of the body corporate and all owners.[6] No submissions were received.
[14] The primary question for determination is whether the body corporate is required to reimburse the applicant for the stormwater rectification works carried out in the applicant's exclusive use courtyard.
[15] In the absence of a submission outlining the body corporate's position, I will consider the correspondence sent to the applicant from the BCM in addition to the committee's reasons for refusing reimbursement.
[16] Before turning to the current dispute, I will first outline the legislation pertaining to maintaining exclusive use areas and utility infrastructure.
[18] Relevantly, section 182(2) of the Accommodation Module provides that:
An exclusive use by-law is taken, in the absence of other specific provision in the by-law for maintenance and operating costs, to make the owner of the lot to whom the exclusive use or other rights are given responsible for the maintenance of and operating costs for the part of the common property to which the exclusive use by-law applies.
[19] However, if a lot is created under a building format plan (BFP) of subdivision (as is the case here), section 182(3) of the Accommodation Module provides that unless the by-law specifies otherwise, the body corporate will be responsible for maintaining in good condition roofing membranes in the exclusive use area which provide protection for lots or common property and for maintaining in a structurally sound condition structural elements (specifically, foundation structures, roofing structures providing protection, and essential supporting framework not constructed by or for the owner) in the exclusive use area.
[20] By-law 30 pertains to exclusive use courtyards at Returns at River.[11] The parts of By-law 30 about maintenance obligations provide as follows:
30.1 The Owner or Occupier of each of the Lots listed under the heading "Exclusive Use Courtyards" in Schedule E shall have the exclusive use of those parts of the Common Property as shown on the Exclusive Use Plans. The Owner or Occupier shall at all times keep the exclusive use area clean and clear of rubbish and will not store in or on the exclusive use area any unsightly items and will remove from those areas any items immediately upon being directed to do so by the Committee of the Body Corporate (but the Body Corporate shall retain all obligations under the Act in respect of Common Property).
...
30.3 The Owners or Occupiers of a Lot to which this By-law relates, will at all reasonable times allow the any [sic] contractor employed by the Body Corporate access to the Exclusive Use Area for maintenance or repair purposes.
30.4 To avoid any doubt, the Owner of a Lot to which this By-Law relates is responsible for the satisfaction of any obligation of the Body Corporate in respect of the Exclusive Use Courtyard Area including the maintenance of any lawns or gardens within the Exclusive Use Area.
[21] The definition of 'utility infrastructure' includes pipes and drains supplying a utility service to lots or common property.[12]
[22] Section 20(1)(b) of the Act provides that all utility infrastructure is part of the common property unless it:
[23] To clarify, utility infrastructure will be part of the common property unless all 3 of the above points apply.
[24] However, for specified types of utility infrastructure listed in section 170(4) of the Accommodation Module such as hot-water systems and air-conditioning systems, different rules apply. In such cases, if the utility infrastructure services only the owner's lot, the owner will be responsible for maintaining it in good condition, even if it is situated on common property.[14] Relevantly, stormwater pipes are not expressly listed as a type of utility infrastructure in section 170(4). Moreover, adjudicators have previously determined that pipes and drainage are not captured within the broader category of "another device providing a utility service to a lot" in section 170(4)(a)(ii)(G).[15]
[25] On 12 August 2025, the BCM sent an email to the applicant indicating that the committee's main point of concern in relation to the applicant's reimbursement request is that the relevant pipework services only the applicant's lot and is situated within the applicant's exclusive use area.
[26] As explained above, the fact that the utility infrastructure services only one lot does not mean that the owner of the lot is automatically responsible for its maintenance (unless it is a type of utility infrastructure specified in section 170(4) of the Accommodation Module, which is not the case here). Pursuant to the Act, exclusive use areas are, by definition, common property.[16] The stormwater utility infrastructure situated in the applicant's exclusive use courtyard is therefore common property under section 20 of the Act.[17]
[27] Exclusive use By-law 30 seems to contain somewhat conflicting provisions. By-law 30.1 says that the body corporate shall retain all obligations under the Act in respect of common property. But then in By-law 30.4 it says that to avoid any doubt, the lot owner will be responsible for the satisfaction of any obligation of the body corporate in relation to the exclusive use courtyard.
[28] In any event, it is not necessary to consider the effect of By-law 30 regarding maintenance obligations in relation to the stormwater pipework. Even if By-law 30 is purporting to make an owner responsible for all maintenance in an exclusive use courtyard (which is generally possible), common property utility infrastructure is an exception to the rule. Most relevantly, section 177(1) of the Act provides that:
An exclusive use by-law must not give exclusive use to the rights and enjoyment of, or other special rights about, utility infrastructure that is common property or a body corporate asset.
[29] Accordingly, it is not possible for a body corporate to impose its obligation to maintain common property utility infrastructure on an owner through an exclusive use by-law.[18] Therefore, prima facie, the body corporate retains responsibility for maintaining the stormwater utility infrastructure in the applicant's exclusive use courtyard pursuant to section 20 of the Act.
[30] I will now consider the reasons given to the applicant for the committee's refusal of their reimbursement request. The applicant asserts that the committee's reasons have no legal basis.
[31] The legislation requires a body corporate to act reasonably in carrying out its general functions, including making, or not making, a decision.[19] Similarly, the Act requires a committee to act reasonably in making a decision.[20] The test for reasonableness is objective, taking into account all relevant considerations and excluding irrelevant ones.[21] Importantly, an adjudicator's role is not to replace the committee's views with their own.[22] Rather, an adjudicator must be satisfied that the decision was manifestly unreasonable.[23]
[32] In an email to the applicant from the BCM, the committee's decision was said to be based on the following factors:
[33] The body corporate's statutory duty to maintain is one of strict liability. The District Court of Queensland applied a decision of the Supreme Court of New South Wales Equity Division when considering the body corporate's statutory duty to maintain.[24] In the Supreme Court decision, Brereton J noted that the body corporate's duty to maintain:
...is not one to use reasonable care to maintain and keep in good repair the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do so, but a strict duty to maintain and keep in repair.[25]
The duty to maintain involves an obligation to keep the 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...Thus the body corporate is obliged 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... The duty extends to require remediation of defects in the original construction of the common property...And it extends to oblige the owners corporation to do things which could not be for the benefit of the proprietors as a whole or even a majority of them...
It follows that as a soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair, there has been a breach of the...duty.[26]
[35] It is unclear whether the body corporate currently has insufficient funds to reimburse the applicant for the cost of the stormwater rectification works. In any case, as the body corporate's statutory duty to maintain is one of strict liability, the body corporate's contention that it has insufficient funds does not relieve it of its duty.[27] If necessary, the body corporate must raise a special contribution to meet the cost of the liability,[28] unless it raises the funds by some other means.[29]
[36] The fact that an insurance claim is no longer possible is an irrelevant consideration. Where damage to property is not claimable under the body corporate's insurance, the cost of the repairs will generally be borne by whoever is legally responsible for the maintenance of the relevant property.
[37] The claim that the previous owner may have worsened the condition of the utility infrastructure by not reporting the issue in a timely manner appears to be largely speculative. In any case, it does not change the body corporate's strict liability to maintain the relevant utility infrastructure.
[38] Whether the applicant knew about the issue at the time of purchase has no bearing on the body corporate's strict liability to maintain the stormwater utility infrastructure. The mere knowledge of an issue would not shift the responsibility to a new owner who would not otherwise be responsible for the issue.
[39] The committee's argument that the cause of the problem is unclear does not support its decision to refuse reimbursement. Rather, it means that there is no legal basis for transferring liability for the stormwater rectification works to the applicant. If the body corporate had demonstrated that the damage to the stormwater utility infrastructure was caused by some contravention of the Act or the CMS by the applicant,[30] it would arguably have acted reasonably in refusing reimbursement. However, there currently appears to be limited evidence regarding causation. There have only been comments made about potential causes of the damage to the stormwater utility infrastructure, such as possible ground movement issues (which the original plumber said should be investigated further by an engineer) and incorrect initial installation.[31]
[40] In my view, the committee's decision not to reimburse the applicant appears to be predicated on a misconception that the applicant is responsible for maintaining the stormwater utility infrastructure in their exclusive use area. However, as outlined above, the stormwater pipework does not form part of the applicant's grant of exclusive use.[32] It remains utility infrastructure that the body corporate is responsible for. Furthermore, the body corporate has made no apparent argument (nor is there any evidence) that the applicant's actions caused or contributed to the damaged stormwater pipework. Based on the submitted material, I am satisfied that the body corporate did not act reasonably in refusing to reimburse the applicant.
Conciliation and adjudication application fees
[41] The applicant is also seeking to be reimbursed for the conciliation and adjudication application fees.
[42] The Act provides that an adjudicator may, if asked, order a respondent to reimburse an applicant for the conciliation and adjudication application fees if:
[43] I am satisfied that the conciliation application was for the same dispute with the same respondent. From the conciliation certificate dated 8 October 2025, I am also satisfied that the conciliation application for 0919-2025 ended because the respondent did not make a reasonable attempt to participate in conciliation.
[44] An applicant must generally attempt internal dispute resolution and then conciliation to resolve a dispute before lodging an adjudication application.[34] Conciliation is a more collaborative process which can assist parties to resolve a dispute more quickly than adjudication. The applicant incurred the additional expense of lodging an adjudication application because the respondent body corporate did not make a reasonable attempt to participate in conciliation.
[45] In the circumstances, I consider it appropriate to make an order that the respondent body corporate pay the applicant $228.20 for the application fees (being $114.10 for each application).
[46] For the reasons outlined above, I have granted the orders sought by the applicant for reimbursement of the total cost of the stormwater rectification works and reimbursement for the conciliation and adjudication application fees.
[47] As it is unclear whether the body corporate currently has sufficient funds to reimburse the applicant, I have allowed for a longer time to raise the funds if necessary. However, if sufficient funds are currently available to reimburse the applicant, the body corporate should endeavour to attend to the reimbursement as soon as practicable.
[1] One quotation was from the original plumbing company engaged by the body corporate in January 2025 (Tri Plumbing) and the other was from QPlumb (Quotation number 10055)
[2] Quote number 5124 dated 11 August 2025
[4] Sections 227, 228, 276 and Schedule 5 of the Act
[9] Section 170 of the Accommodation Module
[10] Section 173(b) of the Act and section 182 of the Accommodation Module
[12] See Schedule 6 (Dictionary) of the Act for complete definitions of "utility infrastructure" and "utility service"
[13] See section 20(3) of the Act for the definition of "boundary structure"
[14] Section 170(4) of the Accommodation Module.
[15] Ocean Plaza Apartments [2023] QBCCMCmr 9 at 63-64; Calamvale Willows [2021] QBCCMCmr 39 at 5; Circa Metro [2024] QBCCMCmr 49 at 15
[18] Glen Oaks Estate [2025] QBCCMCmr at 11; The Dorchester [2024] QBCCMCmr 406 at 113
[21] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 42
[22] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 105
[23] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 47
[24] MAGOG (NO. 15) Pty Ltd v The Body Corporate for the Moroccan [2010] QDC 70 at 83 and 84
[25] Seiwa Pty Ltd v Owner's Strata Plan 35042 [2006] NSWSC 1157 at 3
[26] Seiwa Pty Ltd v Owner's Strata Plan 35042 [2006] NSWSC 1157 at 4 and 5
[27] Parker [2025] QBCCMCmr 564 at 31
[28] Section 152(2) of the Accommodation Module
[29] For instance, by borrowing an amount under section 161 of the Accommodation Module
[31] Invoice number 98792 from Tri Plumbing dated 22 January 2025 and email from Tri Plumbing dated 12 June 2025
[32] Section 177 of the Act; Glen Oaks Estate [2025] QBCCMCmr at 11; The Dorchester [2024] QBCCMCmr 406 at 113