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

MAINTENANCE - where motions proposing remediation works failed to pass at a general meeting - whether the body corporate has failed to maintain the common property in good condition - whether it was unreasonable not to pass the motions - whether the motions should be deemed passed or given effect to.

Act, ss 94, 100; Accommodation Module, s 170

• [1] This application relates to the maintenance of the scheme, particularly regarding waterproofing.
• [2] The applicant says there is a history of defects at the scheme and, based on unchallenged expert reports, the common property is not in good condition. As a result, the applicant says the body corporate is in breach of its duty to maintain common property. They say extensive work is required to return the common property to a good condition.
• [3] The body corporate engaged Buildcheck Engineering (Buildcheck) to prepare a scope of the works (SoW) required to rectify the building, and tender for contractors to undertake the works. Subsequently, three motions to engage and fund contractors to undertake rectification works were considered at an annual general meeting (AGM) in July 2024. None passed.
• [4] The applicant says there is no reason to suggest that the Buildcheck SoW exceeds what is necessary to rectify the common property or that the work could be done more cheaply. They argue the decision at the 2024 AGM to refuse all the options to rectify the common property breaches the body corporate's statutory duty and was unreasonable.
• [5] The applicant seeks a declaration that the common property is not in good condition. They then seek orders deeming 2024 AGM motions to have passed and requiring the body corporate to engage one of the contractors to undertake remediation works.

• [6] Sentosa Waters community titles scheme 43348 (Sentosa Waters) is a 50-lot scheme in Surfers Paradise. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as survey plan 238764.
• [7] This application seeks the following orders:

(a) a declaration that the Common Property for the Scheme is not in 'good condition';

(b) an order authorising the committee of lot owners for the Scheme to, on behalf of the Body Corporate, do all things reasonably required to:

(i) engage Renfay Projects to carry out remediation works for the Scheme in accordance with:

1. the Scope of Works prepared by Buildcheck; and
2. Option A-B of the Tender Summary from Buildcheck (Renfay Contract),

both circulated with the agenda papers for the Annual General Meeting of the Scheme held on 25 July, 2024 (AGM);

(ii) enter into and execute a loan agreement with Lannock Capital 2 Pty Ltd (ACN 153 391 283), in the terms circulated with agenda papers for the AGM (Lannock loan);

(iii) draw down on funds able to be advanced under the Lannock Loan to meet the obligations of the Body Corporate under the Renfay Contract.

(c) an order declaring that:

(i) motion 12, alternative 12.a, considered by the lot owners of the Sentosa Waters Community Titles Scheme 43348 at the AGM, was passed by special resolution; and

(ii) motion 14 considered by the lot owners of the Sentosa Waters Community Titles Scheme 43348 at the AGM, was passed by special resolution; and

(iii) motion 15, alternative 15.b, considered by the lot owners of the Sentosa Waters Community Titles Scheme 43348 at the AGM, was passed by ordinary resolution.

(d) such further or other order(s) as may be determined to be just and equitable for the purpose of determining this dispute.

• [8] 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]

• [9] This application was lodged on 3 February 2025.
• [10] The Commissioner's delegate sought clarification from the applicant on some aspects of the application.[3] The application was subsequently amended.[4]
• [11] The Commissioner then invited submissions from the committee and all owners.[5] Twelve submissions were received. The applicant obtained and responded to the submissions.[6]
• [12] The application was referred to department adjudication.[7] I have now investigated the dispute, including reviewing the application and submissions and seeking further information.[8]

• [13] Sentosa Waters was established on its registration in February 2012. It is a building format plan of subdivision (BFP) comprising a building over 6 levels with a basement on Level A and lots on Levels B to F. Level F is a roof terrace including 'roof gardens' that form the upper level of the two storey Lots 401 to 407.
• [14] The applicant refers to the following expert reports and advice obtained about the scheme:
  1. In May 2014, SRB Consulting provided a 'first impressions' report. It said the complex presented in a generally sound and competent structural condition with no structural remedial repairs of significance required. However, it considered repairs were required particularly with regard to waterproofing (primarily of the roof and lower podium decks but also in the basement), including because of inadequate initial waterproofing.
  2. In September 2016, Envirotech Waterproofing Solutions reported on the roof membrane system. It said the membrane was poorly installed and inadequate, and although still performing, with minor repairs its life expectancy would be 1 to 2 years.
  3. WAM Engineers Pty Ltd provided a structural engineering opinion on the building in November 2019, particularly having regard to cracks observed in 4 lots. The report said the cracks had caused serious water leaks and corrosion. It recommended in-depth investigation and design checks.
  4. WAM Engineers Pty Ltd then provided a hydraulic analysis in May 2022. It said the main structure was not under threat, but the building required a new hydraulic design. It recommended the roof slab be regraded, the membrane on the roof be replaced, changes to guttering and downpipes, servicing and checking of a retention tank, checking door and windows sealing, and waterproofing some external blockwork.
  5. Buildcheck was then engaged by the committee to provide a SoW to 'rectify specified areas and improve the overall watertightness of the building'. [9]
  6. Buildcheck subsequently provided a summary on the outcome of a tender process on the SoW for 'complete building refurbishment works'.[10] The total cost of the works, including project management (by Buildcheck), levy and contingencies, under the various options and quotes, were in the range of $3 to 3.4 million excluding GST.

The tender summary refers to a meeting with 3 contractors in June 2023 and encloses detailed quotes from Building Rectification Services, Amalgamated Property Maintenance, and Renfay Projects.[11] 7. Buildcheck also provided a building condition report in March 2024, stated to be based on a visual inspection in April 2023. It said the concrete slabs showed evidence of waterproofing failure, and recommended those areas be rectified. 8. Another Buildcheck report is dated November 2024, limited to assessing a proposed rectification procedure to address waterproofing failure in a quote from S & S Remedial. It said the proposed works were non-complaint and recommended against them.

• [15] Buildcheck's SoW dated 19 January 2024 lists the following areas of work:
  1. hallway window waterproofing, including replacing some windows
  2. ceiling and internal water damage repairs
  3. façade render repairs
  4. balcony waterproofing and tile replacement
  5. roof drainage rectification and area upgrade, including a deck extension and balustrade modification
  6. refurbishment or replacement of balcony steel stairs connecting Level 3 balconies and Level 4 terraces
  7. balcony steel support fixing replacements
  8. roof services support replacement
  9. air conditioning system relocation (to allow for membrane works)
  10. roof hob construction
  11. roof waterproofing
  12. roof fire door replacement
  13. podium level refurbishment, demolition of planter boxes and extension of tiled areas or waterproofing of the planter boxes
  14. ground level render repairs
  15. polyurethane hydrophilic injection in the basement and other locations
  16. painting
  17. exterior walkway rectification
  18. north planter box and wall repairs, and
  19. installation of a roof on a north sector electrical switchboard.
• [16] At its AGM on 25 July 2024 the body corporate considered 3 motions relevant to this issue.
  1. Motion 12 was a group of same-issue motions, listed as requiring a special resolution, proposing to proceed with building remediation. The motions referred to remediation works in accordance with the Buildcheck SoW dated 19 January 2024. Motion 12a was to engage Renfay Projects at a total cost of $3,028,517.39 (excluding GST). Motion 12b was to engage Amalgamated Property Maintenance at a total cost of $3,385,897.27 (excluding GST). Motion 12c was to engage Building Rectification Services at a total cost of $3,116,981.03 (excluding GST). Motion 12a received 11 votes for and 23 against. Motions 12b and 12c received 6 votes for and 28 against.
  2. Motion 14 proposed entering into a 'multi drawdown facility agreement' with Lannock Strata Finance to assist in funding the building remediation works. It was listed as requiring a special resolution and failed with 10 votes in favour and 22 against.
  3. Motion 15 was a group of same-issue motions proposing a special levy to fund the building remediation works. Motion 15a was for a single payment of $66,000 per lot entitlement and received 7 votes for and 27 against. Motion 15b was for the same amount across 4 instalments and received 11 votes for and 23 against.
• [17] The applicant says after the AGM the owners of Lots 403 and 405 engaged S & S Remedial to paint a polyurethane layer and sunscreen over the existing tiles. The applicant says the committee also investigated if that was a viable alternative. It obtained a quote from S & S Remedial but, as noted above, Buildcheck recommended against the proposal.
• [18] In December 2024 the body corporate, through its committee at the time, lodged an application seeking the same orders as sought in this application.[12] An adjudicator dismissed the application in January 2025. The adjudicator found they had no jurisdiction to determine that application because it was lodged without naming a respondent, despite being a dispute that required a specified combination of parties under section 227(1) of the Act.
• [19] The 2025 AGM, held on 28 March, considered further motions relevant to this dispute:
  1. Motion 11 was a group of same-issue motions that proposed the body corporate proceed with common area waterproofing pursuant to one of the attached quotes, with the cost to be paid for from the sinking fund or a special levy of no more than $3,000 per lot. It noted that 'revalidation' of the quotes would be required. Motion 11a proposed engaging Stop & Seal Pty Ltd at a cost of $138,160 including GST. Motion 11b proposed engaging S & S Remedial Services at a cost of $124,135 including GST.

The explanatory note to Motion 11 noted the common area roof was one of several areas identified as needing repair. It recommended the Stop & Seal quote for several listed reasons. It said the option was more cost effective in the long term.

Motions 11a and 11b were listed as requiring ordinary resolutions. Motion 11a received 18 votes for and 15 against, while Motion 11b received 1 vote for and 29 against. Accordingly, Motion 11a was carried.

1. Motion 12 was a group of same-issue motions about the building remediation project. Motion 12a proposed engaging Renfay Projects Pty Ltd to carry out remediation works in accordance with the 19 January 2024 SoW, at a total cost of $3,028,517.39 (excluding GST), on the condition that a minimum special levy of $1,000,000 was raised before the contract was signed. Motion 12b proposed raising a special levy to fund the of $68,000 with owners having the option to pay in 1 or 4 instalments. Motion 12c proposed entering into a multi drawdown facility agreement with Lannock Capital to assist in funding the building remediation works.

Each of the motions in Motion 12 were listed as being submitted by the applicant and requiring a special resolution. Motions 12a and 12b were defeated with 6 votes for and 29 against. Motion 12c was defeated with 2 votes for and 31 against.

• [20] Eight submissions from owners (some of whom were elected to the committee at the 2025 AGM) oppose the application. Several submissions express concern about the former committee and its approach. The submissions most relevantly include the following:
  1. They acknowledge the need to address water ingress on the rooftop and window leaks but are concerned about how they were handled by the former committee.
  2. There was a lack of transparency and meaningful discussion on options. There was no communication following the 2024 AGM.
  3. The works need to be carried out in a cost effective way. Funds should not be spent on unnecessary or inefficient work.
  4. Most owners support the rectification of defects but were given a vast and expensive refurbishment project as an all or nothing choice.
  5. The former committee was pursuing a $3 million remediation project that could be achieved for less than $200,000.
  6. There is concern about the financial impact on owners, and their ability pay a levy.
  7. Other quotes were put to the former committee but not put to a general meeting.
  8. They object to the SoW. They refer to the works previously recommended for repair as being urgent. The SoW also included refurbishment, unnecessary work, work with no bearing on water ingress, and works that are not a priority. It includes items that are the responsibility of owners, including staircases within lots and tiles damaged due to poor maintenance. It included enhancements to penthouse lots and extending a balustrade which would give the applicant 'functional ownership' of common property.
  9. One acknowledges substantial communication before the 2024 AGM and that owners understood the project scope. As such, they say owners were aware the SoW was greater than needed to seal water ingress which is why it was voted down.
  10. The waterproofing is urgent. Once it is completed, refurbishments can be undertaken.
  11. One submitter says they would prefer the onsite manager to manage the work, rather than external company, which would reduce costs.
  12. One submitter asserts discrepancies in the SoW, tender documents and quotes.
• [21] A committee member at the time, made a submission in support of the application on behalf of the committee at the time.[13] The submission said despite years of seeking professional advice, no plans or actions have followed to address all major waterproofing issues and consequential damages. They say the result is continuing deterioration of the building and if is not addressed now, the costs will increase. The submitter says that despite extensive consultation with owners, an independent scope of works and tenders voted down.
• [22] Three other submissions from owners (including former committee members) support the application and the proposed remediation project. They express concern at the significant safety risk from the deterioration of the building and the health hazard from mould. They say it is in the interests of owners to protect their investment, and is the body corporate's legal responsibility to do so, before the building becomes too expensive or decayed to repair. They say despite independent advice, there has been no action to address serious issues. They say the Buildcheck SoW is not 'gold-plated' but is cost effective, long-lasting and appropriate.
• [23] In response to the submissions, the applicant expresses concern at the effort being put into berating the (former) committee rather than understanding and engaging with the issues and providing a different detailed plan. They detail the consultation and engagement processes. They believe this is mostly about money for most owners. They respond to statements in the submissions. The response most relevantly includes:
  1. While many now acknowledge that remediation is required, there is a view that only certain repairs are needed. Some consider their unqualified view is more valid that of the professionals.
  2. In regard to alternatives, the committee instructed the engineers to provide a cost-effective, long term solution. Taking its advice was considered the right decision.
  3. A staged approach was considered, but the engineers indicated the costs would be higher and the damage would continue.
  4. There is no proposed plan or detail about the approach proposed in the submissions.
  5. They dispute receiving alternative quotes or other requests about other options.
  6. Many owners consider unit roofs to be an owner responsibility despite lawyers advising it is a body corporate issue.
  7. Buildcheck had many inspections as the SoW evolved to its final form. Requoting was done for the 2024 AGM. The quotes will have to be validated if the works proceed.
  8. Buildcheck says it compiled the works to address existing issues and ensure compliance with current standards.
  9. They dispute that extending balustrading over common property for Lots 4017 and 407 is illegal. They say the solution was recommended by the engineers, but the committee asked the engineers to look at this again as it was seen as a problem by owners.
  10. Buildcheck indicated the tile damage is due to water pooling/membrane failure. It listed staircase damage as consequential damage relating to the membrane failure.
  11. After the 2024 AGM the committee proceeded where possible to remedy some items.

• [24] After the application was referred to adjudication, this office was informed of relevant outcomes from the 2025 AGM. The new chairperson advised that a new committee had been elected and Motion 11 about waterproofing had passed. The chairperson said this showed that the claim the body corporate was unreasonably refusing to rectify common property was unfounded. The chairperson indicated the steps that would be taken to pursue the resolution.
• [25] Having regard to that information, I asked a member of the Commissioner's office to contact the applicant. I sought copies of the notice and minutes of the 2025 AGM, details of any steps taken since the AGM, and the basis on which orders were still required in light of Motion 11.
• [26] The applicant advised on 9 June 2025:
  1. Stop & Seal had not yet been engaged pursuant to Motion 11 and there had been no communication as to when that would occur or on any of the other maintenance issues.
  2. The Stop & Seal quote only provided for waterproofing on a portion of the common property roof. It omitted the balconies of Lots 401 and 407. The quote does not address other areas of water ingress and waterproofing membrane failure.
  3. There had been no correspondence from the committee regarding a special levy.
  4. The current sinking fund balance is $153,000, with further levies due in July.
  5. The proposed annual budget at the 2024 AGM shows a special sinking fund levy of $250,000 but there was no motion to raise that levy.
  6. The basis for the application has not changed as the obligation on the body corporate to maintain the building remained. In the absence of any plan to address maintenance and waterproofing issues, the building remained at risk of ongoing damage.
  7. In their opinion, some owners simply do not want to pay to repair the building.

• [27] Substantively, the applicant seeks to give effect to motions considered at the 2024 AGM proposing a building remediation project. The applicant does not suggest any procedural defect with the conduct of that AGM or the consideration of the motions. Rather, they assert that the decision not to pass any of the options put to the 2024 EGM was a breach of the body corporate's statutory maintenance duty and was unreasonable.
• [28] The submissions discuss issues relating to the conduct and approach of the committee before and after the 2024 AGM on a range of matters. I do not consider it necessary to consider those matters to decide this application. I would also note that the dismissal of the previous application for similar orders has no bearing on my determination of this application. That order was based on the form of the application and did not relate to the merits of the orders sought.

• [29] An owner must maintain their lot in good condition, except those parts of the lot that are the body corporate's responsibility.[14] A body corporate must maintain common property in good and structurally sound condition,[15] including utility infrastructure that is common property.[16]
• [30] In a BFP (which Sentosa Waters is) the body corporate has further obligations. I note that in a BFP, 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.[17]
• [31] In a BFP the body corporate must maintain the following things in good condition even though they are not on common property:[18]
  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.
• [32] The body corporate in a BFP must also maintain, in a structurally sound condition, foundation structures, roofing structures providing protection, and essential supporting framework.[19]
• [33] There are further qualifications. A body corporate is not responsible for fixtures and fittings installed by an occupier for their benefit.[20] An owner must maintain certain types of utility infrastructure that only services their lot.[21] If an owner has been authorised to make an improvement to common property, they must maintain it unless excused by the body corporate.[22] And if a body corporate is responsible for repairing a lot, it may recover the reasonable costs from a person (including an owner) who caused or contributed to the damage.[23]
• [34] 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.[24]

...there is an intention disclosed by the legislation for a duty of care to arise.[25]

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

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. [26]

• [36] A body corporate must undertake the maintenance it is responsible for when the need for it arises. A body corporate cannot avoid or defer required work because it has not budgeted for the work, has insufficient funds, or has other priorities. If a liability arises for which the body corporate has made insufficient provision in its budget, the body corporate should, by ordinary resolution, fix a special contribution to be levied on owners to meet the liability.[27]
• [37] If a body corporate is responsible for maintaining something, it will also be liable for damage (including to a lot) arising from its failure to maintain.[28] It will also be liable for work necessary to meet its obligations even if that is work that would otherwise be an owner responsibility. For example, if tiles within a lot only need to be removed to enable the body corporate to maintain the underlying waterproof membrane, the body corporate would be responsible for the cost of removing and replacing the tiles despite the owner's general responsibility for the tiles. However, if the tiles were damaged through some cause that the body corporate was not liable for, or if damage to the membrane arose because of the owner's failure to maintain the tiles, the body corporate may not be liable for the cost to remove or replace the tiles.
• [38] It is also relevant to note the distinction between maintenance and improvements to common property. It has been accepted that maintenance includes repairs or "...the replacement of something already there, which has become dilapidated or worn out ... albeit that it is a replacement by its modern equivalent...".[29] By contrast, additions or changes that are not necessary to maintain property are considered an improvement even if they are associated with maintenance, unless it was incidental. For example, if a body corporate needed to repair a dilapidated timber fence on common property and did so by replacing it with a new timber fence of the same style (albeit not necessarily identical), that would be maintenance. But if the body corporate took the opportunity to upgrade the fence, for example to a metal fence, the change would need to be approved as an improvement.[30]

• [39] A body corporate must act reasonably in undertaking its general functions, including in making or not making a decision.[31] A committee must similarly act reasonably in making a decision.[32]
• [40] There is considerable case law about the obligation to act reasonably. It has been said that 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".[33] I note the view that 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."[34]
• [41] An applicant bears the onus of establishing that a decision or action was unreasonable.
• [42] If a body corporate or its committee acts unreasonably, an adjudicator may intervene to make an order that is just and equitable to resolve the dispute including overturning a decision. But it is not for an adjudicator to supplant the body corporate's decision-making role or impose their own views on the body corporate. A decision will only be set aside if an adjudicator is satisfied the decision was so unreasonable that no reasonable body corporate could have come to it, or it is 'conflicted, arbitrary, patently absurd or plainly unjust'.[35]

• [43] It does not appear to be disputed that at least in some respects the common property at Sentosa Waters is not in good condition. In particular, it does not appear to be disputed that waterproofing in the scheme is defective. That is evidenced from the various expert reports obtained. As indicated above, the body corporate has a responsibility to maintain all roofing membranes providing protection for lots or common property in good condition regardless of whether they are located on lots or on common property.
• [44] But a question in this dispute is what work is actually necessary to meet the body corporate's statutory obligations. It is not necessary to investigate the detail of each item in the Buildcheck SoW, but I will make some general comments.
• [45] It may be the Buildcheck SoW presents a competent and cogent proposal for remediating the building. It may be that each item of work is appropriate and justifiable. But that does not mean the body corporate has a statutory obligation to undertake every item in the SoW. Even if included by a qualified professional, the mere inclusion of an item in the SoW is not of itself evidence that the work is required to ensure the common property is in good condition.
• [46] In response to the claim in the submissions that the SoW contains unnecessary works, the applicant says the submissions lack detail. But it is the applicant rather than the submitters who bears the onus of proof in this application. Where the applicant seeks orders in effect that the full SoW must be implemented, and it is evident that owners voted against the 2024 AGM motions in part due to the extent of the SoW, the applicant bears the onus of establishing that every item in the SoW is necessary to meet the body corporate's statutory obligations.
• [47] The SoW briefly lists the basis or intent of each item of work, but there is often only limited detail as to why the particular work proposed is required. For some items that may be relatively self-explanatory, but not always. While many items clearly relate to issues identified in previous reports, some do not. Some works refer to options, but I have no information as to why particular options were chosen for inclusion in the proposal put to owners. The description of Items 3.6 and 3.22 indicate owner requests rather than Buildcheck advice that the work was required. And some items appear to relate to cosmetic works.
• [48] And while the SoW may present an appropriate means of addressing the waterproofing and other maintenance issues, the applicant also has not demonstrated it is the only way in which those issues can be addressed. The body corporate has subsequently approved a quote from Stop & Seal to address some waterproofing issues. The applicant has not asserted that quote is not viable. The applicant provided advice that one method of addressing the waterproofing issue (the S & S Remedial quote) would not be compliant but does not suggest that advice is relevant to the Stop & Seal quote. The fact that 2025 AGM Motion 11 does not address all maintenance issues that need to be rectified, or even address all waterproofing issues, does not of itself mean the body corporate could not choose to proceed in that manner.
• [49] It is evident that some owners would prefer a staged approach to repairs at the scheme. The applicant says the engineers indicated the cost to do so would be higher. That may be the case (although the applicant does not evidence it), but potentially owners could rationally choose a staged approach even if it is more expensive. The applicant has not established that it was inherently unreasonable for owners to seek an alternative approach to the works, even if that was not the approach preferred by the then committee or the 'best' approach.
• [50] The applicant has also not established that every item of work included in the Buildcheck SoW is a body corporate responsibility. Companies such as Buildcheck would ordinarily be concerned with what work is required or appropriate, rather than legal liability for that work. The SoW includes items that individual owners are prima facie responsible for (including repairing or replacing internal stairs and tiles on lots). The body corporate would be liable for those works if they were necessary to rectify damage caused by the body corporate's maintenance failures or were required as a consequence of work that the body corporate was required to undertake. The applicant claims Buildcheck has indicated those works arise from the membrane failure. But that is not stated in the Buildcheck SoW or in any other report supplied, and the applicant provides no other evidence of it.
• [51] There is also a question (in the absence of further detail or supporting evidence) as to whether work such as the extension of the balcony for Lots 410 and 407 would be improvements to lots or common property rather than essential maintenance. And if the change would have the effect of giving the occupiers of those lots the sole use of an area of common property, the change may also require a formal grant of exclusive use over the affected common property.[36]
• [52] In the absence of further evidence, the applicant has not satisfied me that it was unreasonable for the body corporate to decide against motions proposing the engagement of contractors to implement the full Buildcheck SoW. Where the works were packaged as a whole project, owners had no choice but to vote against the proposal where they did not support some components. And if the SoW included maintenance to lots or improvements that were an owner responsibility, the body corporate could not lawfully agree to pay for those works.[37] In that circumstance, it would have been appropriate for owners to oppose the motions.
• [53] It also seems some SoW components may have been undertaken since the 2024 AGM. The applicant says Buildcheck indicated that if works have been done, they can be removed. But the applicant does not provide clear information about what has been done or how that would affect the orders sought. If some work in the SoW and proposed quote has been undertaken, an order in the terms sought by the applicant would no longer be warranted.

• [54] I acknowledge the applicant and other owners have genuine concerns about the ongoing failure to undertake required maintenance at this scheme. At least in some respects, it is evident the body corporate has not met its maintenance obligations at the scheme, particularly regarding waterproofing. That should be concerning for all owners. It also appears that some owners may not adequately understand the body corporate's maintenance obligations.
• [55] However, the applicant bears the onus of proof for this application. On balance, the applicant has not satisfied me that an order to give effect to 2024 AGM Motions 12a, 14 and 15b, or otherwise to engage Renfay Projects to undertake the Buildcheck SoW and fund that, is currently warranted. The body corporate must undertake all work reasonably necessary to ensure all the common property is maintained in good condition, and to meet its obligations with regard to the maintenance of lots. It must so in a timely manner. It cannot defer required work because of the cost or difficulty of organising and funding the work. But the applicant has not established that the body corporate's obligations must be met in the way proposed in the Buildcheck SoW and the Renfay Projects quote. In particular, the applicant has not established that the body corporate has an obligation to undertake each item in the Buildcheck SoW.
• [56] The applicant also seeks a declaration that the common property is not in good condition. It is evident that at least in some aspects of the common property, and other elements of scheme land that are not common property but are a body corporate responsibility, are not in good condition. But the applicant does not explain why the declaration is sought or required. I can see no utility in a broad declaration to that effect. Although there is no dispute about the need for some maintenance, I do not consider the material submitted by the applicant is sufficient to enable a determination on every element of the common property for which maintenance may be required or to which the Buildcheck SoW relates. Moreover, I do not consider a general declaration, without further specification of what is required or direction as to required action (which I do not consider is possible on the evidence submitted by the applicant), would assist the body corporate.
• [57] It follows that I will dismiss the application in its entirety.
• [58] Notwithstanding this decision, the committee and all owners must seriously consider how to ensure the body corporate pursues all necessary maintenance at the scheme promptly.
• [59] If it has not already done so, the committee should implement 2025 AGM Motion 11 as a priority. If it considers that can no longer be done, or could only be done in a different manner, it should call a further general meeting as soon as practical to consider motions to rescind Motion 11 and consider alternative motions to pursue the required work.
• [60] In regard to other works required or proposed at the scheme, the committee or individual owners can submit further motions. While there may be efficiencies in packaging or scheduling some works together, proposing individual works (particularly where some are controversial, and some are not) may assist the body corporate in moving forward.
• [61] Finally, while the cost of significant maintenance works may be confronting for some owners, that should be acknowledged as a fundamental part of ownership of a lot in a body corporate. The body corporate cannot lawfully or reasonably fail to undertake necessary maintenance because of the cost or a concern that owners do not want to contribute to the cost. If repairs are not pursued promptly, further applications for orders may unfortunately be necessary.

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

[3] Section 241 of the Act

[4] Section 245 of the Act

[5] Section 243 of the Act

[6] Sections 246 and 244 of the Act

[7] Section 248 of the Act

[9] The SoW included in the application is predominantly labelled 0907.QLD.001.01.SOW.Rev4 and dated 19 January 2024, but includes some pages labelled 0907.QLD.001.01 and dated 25 July 2023, and some pages labelled 0907.QLD.001.01.Rev3 and dated 1 November 2023. A submitter says the SoW included in the notice of the 2024 AGM was 0907.QLD.001.01.Rev3 dated 1 November 2023.

[10] The tender summary in the application is dated 4 February 2024 and references 0907.QLD.001.01.Rev3. A submitter provides a later version dated 17 May 2024 referencing 0907.QLD.001.01.SOW.Rev4 and indicating that a supplement to the SoW was given to the contractors on 30 April 2024.

[11] The Renfay Projects quote included in the application is dated 20 November 2023. The other two quotes are undated, but each use a tender form dated 1 November 2023.

[13] The submitter is also the applicant's spouse.

[14] Section 201 of the Accommodation Module

[15] Section 170 of the Accommodation Module

[16] Section 20 of the Act

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

[18] Section 170(2)(a) of the Accommodation Module

[19] Section 170(2)(b) of the Accommodation Module

[20] Section 170(3) of the Accommodation Module

[21] Section 170(4) of the Accommodation Module

[22] Section 177 of the Accommodation Module

[23] Section 170(5) and (6) of the Accommodation Module

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

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

[26] 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

[27] Section 162(2) of the Standard Module

[29] Lord Denning in Morcom and Ors v Campbell-Johnson and Ors [1955] 3 All ER 264

[30] Section 186 of the Accommodation Module

[31] Section 94(2) of the Act

[32] Section 100(5) of the Act

[33] 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

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

[35] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 34, 74 and 98

[36] Noting section 170 to 172 of the Act

[37] Pursuant to section 210 of the Accommodation Module, I note the body corporate could organise maintenance on behalf of owners, but only by agreement with those owners and only if the costs were recovered from the individual owners benefiting from the service.