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

MAINTENANCE - where water is leaking through a balcony into the lot below - whether orders for the body corporate to carry out repairs is warranted in the circumstances.

Act, ss 94, 152, 331; Standard Module, ss 180, 211

1. Within three months of the date of this order, the Body Corporate for Rutherford Apartments must engage a contractor to carry out the works to repair/replace the waterproofing membrane on Lot 12's balcony including removing and replacing the tiles and any other ancillary works to enable the works for the waterproofing membrane to be carried out.
2. The above works will be funded by money available in the scheme's sinking fund. If the sinking fund has insufficient funds to cover all the required works, the Body Corporate for Rutherford Apartments must raise a special levy to cover any shortfall.

• [1] Rutherford Apartments CTS 1240 is a 12-lot scheme situated in Yorkeys Knob, Queensland. The 12 lots in the scheme are arranged over three stories with two lots on the ground floor, six lots on the first floor, and four lots on the top floor.
• [2] The applicant, Stacey Kennedy, is the owner of Lot 12 in the scheme. Lot 12 is located on the top floor of the scheme. Lot 12 has a large balcony which acts as a roofing structure for the lot directly below it, Lot 8.
• [3] The applicant says water has been leaking from Lot 12's balcony into Lot 8 for several years. She says the body corporate has failed to carry out the necessary maintenance to ensure Lot 12's balcony is watertight.
• [4] At the annual general meeting held on 23 January 2025, the applicant submitted a motion for the body corporate to undertake repairs to Lot 12's balcony. The motion read as follows:

Moved that the body corporate undertakes and pays for all costs associated with repair and replacement works required to stop water ingress into Unit 8 from Lot 12's outdoor balcony area caused by its failure to install or maintain a waterproof membrane by approving one of the accompanied quotes. Works include removing existing tiles, membrane and waste, repair of any existing cracking to the suspended concrete slab, levelling and scree for appropriate fall to existing drainage points, repair/update of existing drainage points as required, and laying of new tiles and tile skirting to the terrace area (approx. 67m²).

• [5] The motion did not pass with only two votes in favour and eight against.
• [6] The applicant says the body corporate is responsible for the repairs required to Lot 12's balcony and that it cannot avoid this responsibility despite the majority of owners voting against her motion. She seeks the following orders:
  1. That the duty of the Body Corporate to maintain the roofing membrane and roof structure located between Lot 12 and Lot 8 is mandatory and cannot be avoided even if a majority of

1. That the body corporate is liable under 180(2)(a)(iii) & 180(2)(b)(ii) of the Standard Module to maintain in good condition -roofing membranes that are not common property but that

provide protection for lots or common property; and that the body corporate must maintain in a structurally sound condition elements of scheme land that are not common property such as roofing structures providing protection.

1. That the body corporate is currently in breach of its obligations by failing to maintain in good condition the waterproofing membrane across Lot 12's outdoor balcony area.
2. That the body corporate is currently in breach of its obligations by failing to maintain in a structurally sound condition the roof structure between Lot 12 and 8.
3. That the body corporate undertakes and pays for all costs associated with repair and

replacement works required to stop water ingress into Unit 8 from Lot 12's outdoor balcony area. Works include at a minimum - removal of existing tiles, membrane and waste, repair of any existing cracking to the suspended concrete slab and any other required foundational repairs, levelling and scree for appropriate fall to existing drainage points, repair/update of existing drainage points as required, and laying of new tiles and tile skirting to the terrace area (approx. 67m²).

1. That the Body Corporate meets the obligations outlined in item 5 by agreeing to one of the previously provided quotes (if still valid) and that the work is scheduled to take place within a reasonable timeframe (maximum 3 months from the date an order is made) or before the next wet season (whichever occurs first).
2. That if the provided quotes are no longer valid new quotes will be sourced by Lot 12 (within a reasonable timeframe) for consideration and agreement by the Body Corporate, and that the works outlined in item 5 are completed within 3 months of these new quotes being provided or before the next wet season (whichever occurs first).

8. That if sufficient funds are not available to pay for the required works that the Body

Corporate ensure that the necessary levies are raised to meet the timing outlined in items 6 and 7.

• [7] The applicant bears the onus to establish that the orders she has sought are warranted in the circumstances.

• [8] The applicant submitted this application for adjudication on 17 February 2025.
• [9] The commissioner invited submissions from the body corporate committee, affected persons named in the application and all other owners in the scheme. The committee, and two other owners in scheme made submissions in response.
• [10] The applicant inspected the submissions made in response but did not submit a reply.
• [11] A dispute resolution recommendation was made referring the file to department adjudication.[1] I was then tasked with deciding the matter.

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

• [14] The applicant says that in December 2023, during the heavy rains associated with ex-tropical cyclone Jasper, she was notified by the owner of Lot 8 of water leaking into their unit from the ceiling located below the balcony of Lot 12. She says she understands this issue has occurred on previous occasions and appears to be particularly evident with heavy, sustained rain.
• [15] The applicant says the scheme building was constructed in 1986 and the current tiles in the outdoor area of Lot 12 are likely to be quite old. She says the grout between the tiles has degraded in some areas, some tiles are drummy and, water pools near the existing drainage pipes and in other areas of the balcony. She says the tiles were in this condition when she purchased Lot 12 in 2021.
• [16] The applicant says that prior to the weather event caused by ex-tropical cyclone Jasper, the owner of Lot 8 had reported water staining on the plasterboard ceiling of their laundry room. This water ingress was associated with the drainage pipe which drains the balcony area of Lot 12 located immediately above Lot 8's laundry room. She says the drainage pipe, fittings and plasterboard drop ceiling in Lot 8 were all repaired. To enable this repair, tiles surrounding the pipe needed to be removed. The applicant says the contractor completing the works said it appeared as though some type of waterproofing was present under the tiles.
• [17] The applicant says that body corporate records indicate that in a weather event which took place in 2018, the body corporate sought to address similar water ingress issues via an insurance claim. The claim was not successful, but the building report conducted during the investigation found damage to Lot 8 from water ingress via Lot 12's balcony area. The applicant says the noted locations of the damage are similar to those which have recently been reported. She says to her knowledge, the body corporate has not attempted to address the water ingress issues besides fixing the drainage pipe.
• [18] The applicant says that based on the above, water ingress into Lot 8 has been occurring from Lot 12's balcony for many years and is most likely due to a deteriorated or faulty waterproofing membrane. Failure to address this issue has exacerbated water pooling issues leading to deteriorating grout and drummy tiles on Lot 12's balcony. She says the ongoing water penetration is also likely to be deteriorating the suspended concrete slab. She says repairs are needed to avoid ongoing damage to the roof structure between Lots 12 and 8.
• [19] The applicant says she tried to ascertain what needed to be done to rectify the water ingress and who would be responsible to carry this out however, she was unable to obtain any clear guidance from the body corporate committee. The applicant says to assist with resolving the matter, and to prevent any further water damage to Lot 8, she engaged a qualified professional to conduct a building inspection of Lot 12's balcony and provide a report. She says she also sought legal advice on who would be responsible for repairs in relation to water ingress through Lot 12's balcony.
• [20] The applicant says the body corporate is responsible for maintaining roofing membranes (or roofing structures) that are not common property but that give protection for lots or common property. She says the body corporate has not taken any reasonable action to fix the membrane or structure on Lot 12's balcony and water is continuing to leak through into the ceiling of Lot 8. She says this is a breach of the body corporate's responsibility under the Act.

• [21] The body corporate committee says the issue causing the water ingress into Lot 8 has not been fully identified or confirmed however, it believes the waterproofing membrane on Lot 12's balcony may be compromised. The committee says the tiles on Lot 12 are not original but were installed by a previous owner. It says the original surface allowed easy access to maintain the waterproofing membrane. The committee says that while is acknowledges responsibility for the waterproofing membrane, it disputes it is liable for the removal and replacement of the tiles, given they are not original. The committee submits evidence that the balcony of Lot 9 (the mirror unit of Lot 12) is not tiled and it says this demonstrates the original surface was not tiled.
• [22] The committee says it accepts the body corporate is responsible for the waterproofing membrane and it will cover the cost of removing and replacing the membrane. However, it does not accept the body corporate is responsible for removing and replacing/relaying the tiles.
• [23] The committee says there is the additional issue of whether reasonable repairs were carried out to protect the waterproofing membrane from damage. It says the applicant has admitted in her grounds that she was aware of the poor condition of the tiles but she did not carry out any maintenance to rectify the isses.
• [24] The committee have included an adjudicator's order from 2002. In the reasons for the decision the co-owner of Lot 9 sought an order to be reimbursed for replacing the waterproofing membrane on Lot 9's balcony which serves as a roofing structure for Lot 3. In this decision, the reasons note that in 1998, the waterproofing membrane on Lot 12's balcony became perforated and water was leaking into the unit below. It notes the body corporate reimbursed the owner of Lot 12 for the cost of replacing the waterproofing membrane.

• [25] The owner of Lot 7 says the body corporate understands it is responsible for the waterproofing membrane but does not accept it is responsible for the cost of replacing the tiles. She says she believes it is the applicant's responsibility to ensure the tiles are correctly installed and properly maintained. She says the balcony in question is the private property of Lot 12.
• [26] In addition, the owner of Lot 7 says the problem with water ingress arises from the lack of access to the waterproofing membrane because the area has been tiled over. She says this has made maintenance of the membrane difficult, if not impossible. She says that while the tiling may have been done by the previous owner of the unit, once a property is purchased, the responsibility for maintenance transfers to the new owner.
• [27] The owner of Lot 8, the unit directly below Lot 12 which is being impacted by water ingress, also submitted a response. He says he purchased the unit in 2023. He says there are 5 leaks he is aware of coming through the slab that separates Lot 8 from Lot 12. He says the water ingress into the unit has caused considerable damage to his lot.
• [28] The owner of Lot 8 says that the damage to the waterproofing membrane could have been caused by the tiling of Lot 12's balcony. He says it would not be reasonable to hold all owners accountable for damage to the waterproofing membrane caused by modifications to the unit made by the owner. He says while the applicant may not have commissioned those works, as the current owner of the unit, she bears the legal burden.

• [29] Rutherford Apartments was created as a building unit plan of subdivision (now known as a building format plan of subdivision).[3] Where a scheme is created as a building format plan of subdivision, boundaries are defined on the survey plan by the structural elements of a building, including, for example, the floors, walls and ceilings.[4] And, 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.[5]
• [30] Section 152 of the Act sets out a body corporate's duties about common property. It provides that the body corporate must administer, manage and control the common property reasonably and for the benefit of lot owners; and comply with the obligations with regard to common property imposed under the regulation module applying to the scheme.
• [31] Rutherford Apartments is governed by the Standard Module. Section 180 of the Standard Module sets out that the body corporate is generally responsible for maintaining common property in good and structurally sound condition.[6] And, where a scheme is created under a building format plan of subdivision, the body corporate must also (as relevant to this dispute): (1) maintain in good condition roofing membranes that provide protection for lots or common property;[7] and (2) maintain in a structurally sound condition roofing structures providing protection.[8]

Discharging the obligation to maintain common property

• [32] The statutory duty to maintain common property has been considered extensively by the courts. In Klinger & Anor v Body Corporate for Costa D'Ora Apartments[9] Searles DCJ stated:

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.[10]

• [33] And, in Magog (No.15) Pty Ltd v The Body Corporate for The Moroccan[11] Newton DCJ stated:

In my view it is clear from the words of section 152 of the Act and section 109 of the Standard Module that there is an intention disclosed by the legislation for a duty of care to arise. A duty of care is owed by the Body Corporate for the benefit of lot owners and other users of the common property. The defendant had a duty to maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.[12]

• [34] The latter decision applied Seiwa Pty Ltd v The Owner's Strata Plan 35042,[13] a Supreme Court of New South Wales Equity Division case, where Brereton J stated:

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.[14]

• [35] It is clear from the case law that a body corporate has a duty to maintain common property in good condition and that it must do so as soon as any of the building parts covered by the duty fall into disrepair.[15] Failure to do so once aware of an issue would give rise to a breach of the body corporate's maintenance obligations.

• [36] The applicant engaged Capstone Building Inspections to provide a report on the condition of Lot 12's balcony (Capstone Report).[16] The Capstone Report describes the balcony as being comprised of a suspended steel reinforced concrete slab with a tiled surface. It notes there are two floor wastes that penetrate through the concrete slab to Lot 8 directly below. It further notes that one of the floor wastes has recently been repaired but this has not resolved the water ingress issues and Lot 8 is still experiencing widespread water/moisture in several locations.
• [37] The Capstone Report concludes that a number of factors are contributing to the water ingress through Lot 12' balcony into the ceiling of Lot 8. It outlines these as follows:
  • Waterproofing membrane: the waterproof membrane applied to the concrete slab has been compromised or is non-existent.
  • Calcium deposits: calcium deposits are a clear indicator of water damage from excessive moisture below the surface of the tiles caused by inadequate drainage. This is evident in serval locations to the tiled surface, specifically where the water is ponding due to inadequate fall to floor wastes.
  • Lack of expansion joints / incorrect adhesive: the balcony has numerous drummy tiles which is generally caused by the loss of adhesion between the tile and substrate. Loss of adhesion is typically due to incorrect installation or lack of control joints.
• [38] It is clear Lots 12's balcony requires maintenance to make it watertight. The Capstone Report recommends the following works be carried out:
  • Remove the floor tiles and associated wall skirting tiles completely, including any residual flooring compound/material.
  • Repair any cracks to the concrete slab surface and then screed the floor surface to ensure adequate falls are achieved towards the floor wastes.
  • Apply a waterproofing membrane to the entire floor area.
  • Re-tile the balcony with suitable non-slip rated outdoor tiles with a flexible adhesive and ensuring correct expansion joints are utilised.
• [39] The question I must determine is who is responsible for the required works.
• [40] I note the Capstone Report does not definitely establish there is a waterproofing membrane laid on Lot 12's balcony, instead it says the membrane has either been compromised or is non-existent. However, in response to the application, the body corporate has said it accepts that it is responsible for the waterproofing membrane on Lot 12's balcony and that it will cover the cost of replacing the membrane to fulfill its statutory maintenance obligations. It does not a dispute that there is a waterproofing membrane on the balcony. In the circumstances, I am proceeding on the basis that there is a waterproofing membrane on Lot 12's balcony which has fallen into disrepair and needs to be repaired/replaced. Furthermore, I am satisfied the body corporate is responsible for repairing/replacing the membrane.
• [41] Notwithstanding accepting liability for the waterproofing membrane, the body corporate disputes it is responsible for removing and replacing the tiles on Lot 12's balcony to enable the works to be carried out to the membrane. It says the tiles on the balcony are not in a good state of repair and argues the applicant has not fulfilled her responsibility to maintain her lot in good condition. It also says the tiles were not the original surface of Lot 12's balcony and it should not have to replace them.
• [42] Lot owners have an obligation to maintain their lot in good condition.[17] From the details provided in the Capstone Report, I accept the tiles on Lot 12 are not in good condition and this is contributing to the water ingress issues. However, the Capstone Report relevantly states that a fully functional waterproofing membrane is essential for this type of construction to prevent water/moisture ingress, specifically where the balcony is the roofing structure for the lot below it (in this case, Lot 8).
• [43] Accordingly, I am satisfied that the waterproofing membrane is an integral part of ensuring Lot 12's balcony remains watertight and I am satisfied that repairing/replacing the membrane is a key factor to resolving the water ingress issues irrespective of the condition of the tiles. The body corporate is responsible for repairing/replacing the waterproofing membrane and the works to complete this can only be carried out once the tiles have been removed. I am not persuaded the condition of the tiles excuses the body corporate from being liable for removing and replacing the tiles. This is part and parcel of being able to carry out works the body corporate is responsible for.
• [44] I note the argument the body corporate has made about the tiles not being the original surface of Lot 12's balcony. However, where a body corporate is responsible for repairing or replacing a waterproofing membrane, it is also responsible for undertaking all the works which enable that work to be completed. This includes removing the existing surface and replacing that surface on completion of the works. Even if the tiles were not the original surface applied to Lot 12's balcony, it is the existing finish now. Accordingly, the body corporate is obligated to remove and replace the tiles it removes to enable it to complete the works to repair the waterproofing membrane.

• [45] For the reasons provided above, I am satisfied the Body Corporate for Rutherford Apartments is responsible for carrying out works recommended by the Capstone Report to ensure Lot 12's balcony is watertight.
• [46] I note the applicant sought numerous orders however, in the circumstances I consider it appropriate to make an order that the body corporate repair/replace the waterproofing membrane on Lot 12's balcony including removing and replacing the tiles on the balcony and any other ancillary works to enable the works for the waterproofing membrane to be carried out. I have also made an order about how the works are to be funded.

[1] Section 248(3)(e) of the Act

[2] Section 276(1)(a) and (b) of the Act

[4] Section 48C of the Land Title Act 1994 (Qld)

[5] Section 49C of the Land Title Act 1994 (Qld)

[6] Section 180(1) of the Standard Module

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

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

[9] [2007] QDC 300

[11] [2010] QDC 70

[13] [2006] NSWSC 1157

[15] In fact, the body corporate ought to proactively carry out maintenance to prevent defects from arising where possible.

[17] Section 211 of the Standard Module