Shanara [2025] QBCCMCmr 227 (30 June 2025)

MAINTENANCE - whether the body corporate failed to maintain common property - whether the duty to maintain is strict - whether the body corporate is liable for damage caused to the applicant's property due to a failure to maintain common property.

Act, ss 94, 152, 280 and 281; Standard Module, s 180

1. As soon as reasonably practicable, but before the lapse of six months from the date of this order, the Body Corporate for Shanara CTS 8990 ('Body Corporate') must repair and/or replace the roof of the scheme building and any relevant associated components including but not limited to guttering, flashing and waterproofing membranes to prevent any further water ingress to Lot 4.
2. As soon as reasonably practicable, but before the lapse of six months from the date of this order, the Body Corporate must repair the areas of the ceiling of Lot 4 damaged by water ingressing from the roof of the scheme building and associated components. Such repair includes but is not limited to the removal of mold, the rectification of any swelling, sagging or discoloration of, and bubbling on the said ceiling.

1. For the avoidance of doubt, in the event the Body Corporate makes an insurance claim in relation to the works described in Order 1 and/or 2 above, it must bear any insurance excess payable in relation to the same.

• [1] This dispute is about the purported maintenance of the roof of a scheme building and the consequential water ingress into a lot.

• [2] The scheme comprises six lots and common property, and is regulated under the Standard Module. It is created under a building format plan of subdivision.
• [3] The scheme building contains three levels labelled alphabetically. Level A contains Lot 1 and part of Lots 2, 3, 4, 5 and 6. Level B contains the remainder of Lots 2, 3 and 4 whilst Level C contains the remainder of Lots 5 and 6. The building roof covers parts of Lots 4, 5 and 6 and common property.
• [4] The applicant has been the owner of Lot 4 since August 2024. The respondent is the body corporate.
• [5] The applicant states that around March 2024, the former owner of her lot raised an issue with the respondent body corporate regarding water ingressing through the building roof. Pursuant to the applicant's purchase of the lot, she made the same complaint.
• [6] The evidence suggests that Lots 5 and 6 are also impacted by water ingress issues though perhaps not as severe as Lot 4.
• [7] The applicant states that around late 2024, the respondent body corporate issued a work order but the contractor it engaged was unable to repair the roof. Evidently, the contractor concluded that the pitch of the roof was non-compliant with the relevant building codes and regulations, meeting less than half of the minimum requirement. He recommended commissioning a builder to rectify the problem.
• [8] The respondent body corporate has seemingly been reluctant to address the ongoing damage to the applicant's lot until the roof is rectified. To this end, it has been seeking quotes from various tradespersons over the past few months, but has not approved one as of yet. The chairperson has also expressed his concerns to other lot owners regarding the structural integrity of the building, noting cracks in the common property ceilings, staircases and brick walls. He has proposed commissioning an engineer to assess the building in this regard before proceeding with any roofing works.
• [9] Meanwhile, the applicant states that there have been over 20 separate incidents of water ingress into her lot, which would have caused flooding had it been left unattended. She states that consequentially, the wet ceiling in multiple areas of her lot is growing mold and may collapse with further rain.
• [10] She complains that over a year has lapsed since the issue was first raised with the respondent body corporate and to date no rectification works have occurred.
• [11] To make matters worse, Cyclone Alfred worsened the water ingress into the applicant's lot, and had for some time, left the roofing and building industry with more demand than supply. The respondent body corporate had little success in obtaining competitive quotes in the aftermath of the cyclone. However, it has been submitted that it has since successfully obtained at least seven quotes for the roofing works.
• [12] In these circumstances, the applicant seeks the following final orders:

(a) Roof inspection report completed by a licensed professional, outlining and quoting all the repairs that need to be completed on Unit 4 roof;

(b) The Body Corporate accept and progress with one of the quotations within 6 months;

(c) The roof rectification works be completed before Summer wet season;

(d) The consequential ceiling damage and mold within unit 4 be replaced;

(e) The further water damage to the main entrance door be replaced;

(f) The Body Corporate pay the excess of $2,000.00 to the Suncorp Insurance Claim as it is unreasonable for us to pay on the Body Corporate negligence;

(g) That the Body Corporate reimburse the application fee $231.90

• [13] 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 Community Management Statement ('CMS')[1] or about the exercise of rights or powers or performance of duties under the Act or CMS.[2] Further, an order may require a person to act, or prohibit a person from acting in a manner stated.[3] An order may also contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[4]
• [14] I am satisfied that I have jurisdiction to determine the dispute in question by virtue of sections 276(1)(a) and (b) of the Act (read together with section 227(1)(b) of the Act).

• [15] The applicant sought interim orders for this dispute by way of an application lodged on 10 March 2025. The Commissioner sought further information from the applicant in accordance with section 240 of the Act, and the applicant subsequently amended her application.
• [16] On 12 March 2025, the Commissioner referred the interim order application for department adjudication in accordance with section 247 of the Act.
• [17] On 13 March 2025, I through my delegate provided a copy of the application for interim orders and invited all owners and the committee on behalf of the respondent body corporate to make submissions.
• [18] The representative of the owner of Lot 5 ('Cheung') who is also the chairperson, made a submission.
• [19] On 31 March 2025 I dismissed the application for interim orders and referred the matter back to the Commissioner.
• [20] On 2 April 2025, the Commissioner's delegate provided the applicant with an opportunity to amend her application for final orders.
• [21] On 13 April 2025, the applicant amended her application. Subsequently, on 16 April 2025, the Commissioner provided a copy of the application and invited the committee on behalf of the respondent body corporate and all owners to make a submission.
• [22] No submissions were made. Accordingly, on 9 May 2025, the Commissioner referred the dispute to department adjudication.
• [23] On 4 June 2025, I requested further information from the applicant. On 7 June 2025, the applicant responded to my request.
• [24] Subsequently on 16 June 2025, I shared this information with the respondent body corporate and invited it to comment on the same as well as the application itself. The respondent body corporate did not respond. However, Cheung submitted his views.
• [25] I have investigated this dispute by reviewing the application, interim submissions, and further information provided, in accordance with section 271 of the Act.

• [26] Whilst I have not set out every aspect of the application, submissions and further information provided, all such material have been duly considered.
• [27] I will firstly explain the relevant provisions of the legislation that are applicable to this dispute, and then consider its application to the issues in dispute.

(a) What are the legal obligations relevant to this dispute?

• [28] The legislation and general law impose a variety of obligations on bodies corporate. In this instance, there are three statutory obligations that are particularly relevant, namely the duty to act reasonably; the duty to administer, manage and control common property; and the duty to maintain common property and other prescribed aspects of scheme land in certain instances.

• [29] Section 94(2) of the Act requires a body corporate to act reasonably in anything it does under the Act including when making or not making decisions. Furthermore, the committee too has a statutory obligation to make reasonable decisions.[5] In this regard, the legislation specifies that a decision of the committee is a decision of the body corporate itself.[6]
• [30] The question of whether a body corporate has acted unreasonably is not a straightforward one. What is reasonable is a question of fact, based on a consideration of all relevant matters in the circumstances of the particular case.
• [31] The test of reasonableness was considered by the Queensland Civil and Administrative Tribunal ('QCAT') in Body Corporate for Beaches Surfers Paradise v Backshall[7] ('Beaches') which held as follows:

(a) 'Reasonable action is evidence-based and rational';[8]

(b) 'A finding that a decision or action in issue is "not irrational, absurd or ridiculous" does not necessarily mean it is a reasonable one'.[9]

• [32] QCAT also held in Beaches that legal unreasonableness encompasses decision-making errors such as irrelevance, adding that decision-making in practice requires that 'all relevant matters [be] taken into consideration and irrelevant ones left out'.[10]

• [33] Bodies corporate as part of their general functions with respect to the management of schemes, must administer the common property for the benefit of its lot owners.[11] As stated above, bodies corporate must act reasonably in carrying out its general functions.[12]
• [34] However, in relation to a certain specific function, i.e., that of property management, section 152(1)(a) of the Act states that a body corporate is required to administer, manage and control the common property reasonably and for the benefit of the lot owners.[13]

• [35] Section 152(1)(b) of the Act states that a body corporate must comply with the obligations with regard to common property and body corporate assets imposed under a regulation module.
• [36] Section 180(1) of the Standard Module states that a body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.
• [37] Further, to the extent that lots in a scheme are created under a building format plan of subdivision, section 180(2) of the Standard Module requires the body corporate to maintain in good condition (and structurally sound condition) roofing membranes that are not common property but that provide protection for lots or common property.
• [38] There appears to be two schools of thought on the nature of a body corporate's maintenance obligations, as explained below.
• [39] The more widely held view based on precedent is that a body corporate's duty to maintain (among other things) its common property is a strict one.
• [40] The New South Wales ('NSW') Supreme Court held in Seiwa Pty Ltd v Owners Strata Plan 35042[14] ('Seiwa') with respect to a statutory obligation in NSW for owners corporations to 'properly maintain and keep in a state of good and serviceable repair' the common property:

That duty 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.

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 [Hamilton v National Coal Board [1960] AC 633, 647 (Lord Keith of Avonholm); Haydon v Kent County Council [1978] QB 433, 464 (Shaw LJ); Ridis v Strata Plan 10308 [2005] NSWCA 246, [161]]. 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 [Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Limited (1989) 18 NSWLR 33 (Young J); Ridis, [162]-[163]]. The duty extends to require remediation of defects in the original construction of the common property [Proprietors Strata Plan No. 6522 v Furney [1976] 1 NSWLR 412, 416 (Needham J); Ridis [164]-[165]]. 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 [Proprietors Strata Plan 159 v Blake (1986) CCH Strata Titles Cases 30-068 (Yeldham J); Ridis, [166]].

It follows that as 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 s 62 duty [cf Ridis [177]]...

• [41] Seiwa was then applied by the District Court of Queensland in MAGOG (NO. 15) Pty Ltd v The Body Corporate for the Moroccan[15] ('Magog'), whereupon Newton DCJ relying on the same concluded that a body corporate's duty to maintain under the Act is one of strict liability.[16]
• [42] Adjudicators accordingly, have often relied on the principle in Magog (citing the NSW case, Seiwa) that the statutory duty to maintain imposed upon a body corporate under Queensland legislation is also one of strict liability.
• [43] The second school of thought is that whilst the duty to maintain is a strict one under NSW's strata law, in Queensland the corresponding duty is instead guided by reasonableness.
• [44] As stated above, Queensland legislation imposes a rather wide general duty upon bodies corporate to act reasonably in anything it does under the Act. On the other hand, owners corporations in NSW do not have the same overarching express statutory obligation to do so (although reasonableness is accounted for with respect to certain specific functions).
• [45] Under this school of thought, the provision imposing a maintenance obligation (section 180 of the Standard Module) is read together with the provision laying down the general functions of the body corporate (section 94 of the Act).[17] In this context, it may be argued that the legislature may not have intended for a specific duty imposed under an instrument of subordinate legislation to have standalone force as a strict liability obligation, contrary to the overarching standard of reasonableness expressly imposed by section 94(2) of the Act.
• [46] Furthermore, the Act states that both the general duty cast on a body corporate to administer the common property,[18] and the specific duty to administer, manage and control the common property is one that must be carried out reasonably.[19] It is pertinent to note that the maintenance obligations imposed on a body corporate under section 180 of the Standard Module operates under section 152 of the Act.[20]
• [47] In this regard, the adjudicator in The Peninsula Airlie Beach[21] states as follows:

Further, I do not consider the maintenance responsibility of the body corporate to be as strict as the applicant suggests.

In [NSW] it has been determined that the obligation of an owners corporation under the Strata Scheme Management Act 1996 (NSW) to maintain common property is a strict liability that has been contravened as soon as some part of the common property is no longer operating effectively or has fallen into disrepair. However, this obligation to maintain does not impose a standard of care requiring the body corporate to inspect the premises for the purpose of discovering unknown and unsuspected defects.

It has been held in Broadwater Shores that in Queensland, the Act provides that the body corporate must "administer, manage and control the common property...reasonably and for the benefit of lot owners" and the body corporate must act "reasonably" in carrying out its functions (Act 152(1), 94(2), 100(5)). In this context, it appears that the obligation in section 159 of the Standard Module[22] that the body corporate "maintain common property in good condition" should not be interpreted as imposing a strict liability that is contravened as soon as something stops operating properly. Rather, it appears that a body corporate, acting reasonably, should have a system in place for monitoring the maintenance and state of repair of the common property. The body corporate would only be in breach of its duty to maintain if it fails to remedy deterioration or defects within a reasonable time of when it became aware of the problem or should reasonably have become of the problem.[23] Also, the body corporate would not be in breach of its duty if there is no deterioration or defect but water ingress occurs only as a result of an extreme weather event.

• [48] Adjudicator Underdown held a similar view in Warrego Lodge[24] and in On Cronin[25].
• [49] Earlier this year, the decision in The Peninsula Airlie Beach was cited favourably by QCAT in Maartens v Body Corporate for Montague Markets South[26].
• [50] The key difference in the application of these two views is that with the former (strict view), a body corporate is prima facie automatically in breach of its maintenance obligation as soon as the relevant property aspects fall into disrepair, whereas with the latter (reasonableness view) it would only be in breach of the same if it fails to remedy deterioration or a defect within a reasonable period of time of becoming aware of it.[27]
• [51] I note that Magog remains the highest and most recent binding authority where I am concerned as an adjudicator.
• [52] I am of the view that the requirement for bodies corporate to act reasonably under section 94(2) of the Act, and for the same to administer, manage and control its common property reasonably under section 152(1)(a) of the Act is not antithetic to a strict duty to maintain under section 180 of the Standard Module.
• [53] Strict liability (as opposed to fault-based liability) is a legal principle where an entity, in this case a body corporate, can be liable for damage or loss caused regardless of fault. Strict liability is a standard of liability. It may be argued that the standard of care or conduct required to fulfil a duty that attracts strict liability[28] may be higher than the standard of reasonable care. However, importantly the High Court of Australia held otherwise in Burnie Port Authority v General Jones Pty Ltd[29], as follows:

Even where a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v Fletcher [strict liability] is involved, the standard of care remains "that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances". In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of "reasonable care" may involve a degree of diligence so stringent as to amount practically to a guarantee of safety".

• [54] It states that it is within the standard of reasonable care and conduct itself, for an ordinary person acting reasonably to 'consider it necessary to exercise special care or to take special precautions' when the circumstances warrant it.[30]
• [55] Accordingly, it is my view that the body corporate's duty to maintain common property and other aspects of a scheme building in certain instances is indeed one of strict liability, and that the same is congruous with the Act and Standard Module.

(b) Has the body corporate breached its duty to maintain the roof and associated components?

• [56] The roof of the scheme building which has been created under a building format plan of subdivision, is common property. Hence under section 180(1) of the Standard Module, the respondent body corporate is required to maintain the same in good condition.
• [57] The evidence indicates that the roof was built below the minimum pitch prescribed under the relevant building codes and regulations. Furthermore, a roofing contractor pursuant to a site visit expressed to the respondent body corporate that all of the box gutters and the drainage out the side of these box gutters are also non-compliant. It was further observed that the box gutters were holding water and had rusted prematurely.
• [58] One of the purposes of a sufficient roof pitch and of appropriate box guttering is the facilitation of water drainage and run-off, thereby preventing leaks and damage.
• [59] The applicant has provided photographic evidence of the damage to the ceiling in her lot. She complains that the leaks occur during heavy rainfall. This in my view is consistent with the evidence of the flaws in the roof.
• [60] I note that Cheung (who has taken charge of obtaining quotes for the roofing works) acknowledges that if it were not for the flaws in the roof, the leaks into multiple lots and other common property areas would not occur. He also considers that the respondent body corporate is responsible for the resultant damage to the applicant's ceiling.
• [61] I note the lack of objection to this position and conclusion on the part of any lot owners.
• [62] Accordingly, I am satisfied on the balance of probabilities that the water ingress and damage has been caused by rain falling through a faulty roof and associated components such as guttering, flashing and membranes.
• [63] As explained further above, the moment an aspect of common property falls into a state of disrepair, the body corporate is automatically in breach of its maintenance obligation, which is one of strict liability.
• [64] Accordingly, the respondent body corporate has contravened section 180(1) of the Standard Module read together with section 152 of the Act.

(c) Is the body corporate required to rectify the non-compliant elements of the roof?

• [65] There is some evidence indicating that the existing corrugated iron roof is the original building roof i.e., as built in the 1980's. The evidence also suggests that the non-compliant pitch of the roof is a defect in the original work.
• [66] I am of the view that the duty to maintain common property under the legislation extends to curing defects in the original build. Other adjudicators have held the same view.[31]
• [67] The authority for this extension as cited in other adjudicator's orders as well as Seiwa is Proprietors Strata Plan No. 6522 v Furney[32] ('Furney'). This decision considered a body corporate's duties to maintain and to keep in a state of good and serviceable repair, and to remedy defects. It held in relation to the duty to keep in a state of repair as follows:

The fact that repair includes replacement and renewal is clearly established, for example, by Greg v Planque (1) , and in Burns v. National Coal Board (2), Lord Patrick said: "It is true that the primary meaning of the word 'repair' is to restore to sound condition that which has previously been sound, but the word is also properly used in the sense of to make good. Moreover, the word is commonly used to describe the operation of making an article good or sound, irrespective of whether the article has been good or sound before."

I think that the interpretation should be applied to the word "repair" in s. 68, firstly, because it is the ordinary meaning of the word but, secondly, because, if the power to make good that which was not good before does not vest in the body corporate under the legislation, there is a gap in the legislation which would mean that nobody has power to perform that duty, no matter how necessary it might be in any particular case.

• [68] Whilst Needham J in Furney attributes the extension to rectify defects in the original build to the obligation to keep in a state of good and serviceable repair, as opposed to that of maintenance per se, I am of the view that the same rationale applies to the duty to maintain in good condition under the legislation in Queensland. Repairing in my view is part and parcel of maintaining.[33]
• [69] Hence, as deduced in Seiwa and previous adjudicators orders, the duty to maintain indeed extends to remedying defects in the original build, and is one of strict liability.
• [70] In these circumstances - to the extent that the incorrect pitch results in damage to lots or common property, or precludes the proper repair of the roof[34] - the respondent body corporate must ensure the roof and associated components, including the incorrect pitch, are rectified and brought to good working order.

(d) Should the body corporate rectify the damage caused to the applicant's lot?

• [71] Section 281 of the Act states as follows:

(1) If the adjudicator is satisfied that the applicant has suffered damage to property because of a contravention of this Act or the community management statement, the adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for the contravention -

(a) to carry out stated repairs, or have stated repairs carried out, to the damaged property; or

(b) to pay the applicant an amount fixed by the adjudicator as reimbursement for repairs carried out to the property by the applicant.

A waterproofing membrane in the roof of a building in the scheme leaks and there is damage to wallpaper and carpets in a lot included in the scheme. The membrane is part of the common property and the leak results from a failure on the part of the body corporate to maintain in good order and condition. The adjudicator could order the body corporate to have the damage repaired or to pay an appropriate amount as reimbursement for amounts incurred by the owner in repairing the property.

(a) for an order under subsection(1)(a) - the cost of carrying out the repairs is more than $75,000; or

(b) for an order made under subsection(1)(b) - the amount fixed by the adjudicator would be more than $10,000.

• [72] I am satisfied on the balance of probabilities that the damage to the applicant's ceiling (supported by photographic and other evidence) was caused by rain falling through a faulty roof and associated components. In other words, I am satisfied the said damage was caused as a result of the respondent body corporate contravening section 180(1) of the Standard Module read together with section 152 of the Act.
• [73] Accordingly, the respondent body corporate must repair the water damaged ceiling of the applicant's lot, and remove the mold thereon.

• [74] At the time this application was lodged, the applicant claimed that water ingressing through the roof damaged the main door to her lot. However, during my consideration of the application for interim orders, Cheung advised that the respondent body corporate replaced this door on 25 March 2025.
• [75] This claim remained unchanged despite the applicant being provided an opportunity to amend her application for final orders.
• [76] I also note that the Commissioner's delegate emphasised on more than one occasion that it is the applicant's responsibility to provide sufficient evidence in support of each order sought. Given there was no evidence in support of the applicant's claim pertaining to the replacement of the main entrance door, I wrote to the applicant seeking the same.
• [77] The applicant responded as follows:
  1. On 25 March 2025, the main entrance door to her lot was indeed replaced by the respondent body corporate;
  2. This replacement necessarily required replacing the lock to the same. The tradesperson commissioned by the respondent body corporate, damaged the door frame and surrounding brickwork when removing this lock, leaving sharp exposed steel edges that present a safety hazard;
  3. She notified the respondent body corporate (via the body corporate manager) of the damage later that same day. However, the respondent body corporate refuses to rectify the damage caused by its tradesperson.
• [78] The applicant has provided a copy of an email trail between herself, other lot owners, committee members and the tradesperson in question.
• [79] I note that the tradesperson alleges that the damage to the brickwork was raised with him nearly three months after the door was replaced. He denies causing any such damage, and maintains that the old lock was only removed at the request of the applicant.
• [80] Other lot owners and committee members claim that the removal of the lock was unnecessary and carried out without body corporate approval. They further claim that the applicant failed to bring this to the attention of the respondent body corporate until three months after the door was replaced.
• [81] I am not satisfied that the applicant with whom the onus (to prove her case) lies, has provided sufficient evidence to demonstrate that the replacement of the door necessarily required the removal of the old lock, and the installation of a new one in a different style to the original. Furthermore, the photograph provided of the damage contrary to an assertion (in the email trail between owners, committee members and the tradesperson) that it is timestamped, bears no such stamp on the face of the photograph itself. Neither has the applicant provided me with a copy of the metadata for the photograph taken, displaying the date and time the original photograph was taken.
• [82] The applicant appears to argue that the cause of the damage is irrelevant given it is the respondent body corporate who is statutorily liable to maintain the door. I respectfully disagree with that proposition. Whilst a body corporate has a statutory duty to maintain certain property aspects in good condition, if the property aspect in question was damaged by a lot owner or person charged by a lot owner, it is not unlawful for the body corporate to require the lot owner to remedy the damage.
• [83] In these circumstances, I cannot order the respondent body corporate to repair the damage to the door frame and surrounding brickwork.
• [84] This does not however prevent the applicant from communicating with other lot owners about the matter; providing them with evidence demonstrating that the lock required replacement as claimed, and that the damage was caused by the tradesperson engaged by the respondent body corporate; and tabling a motion for the relevant repairs to be carried out.

(e) Should the body corporate pay the insurance excess?

• [85] The applicant attempted to make a claim under the body corporate insurance policy, and was asked by the insurer to pay an excess of $2,000.00.
• [86] I presume that the applicant's claim pertained to the damage to her lot caused by the water ingress. In any event, I have determined above that the respondent body corporate is liable to repair the water damage to the ceiling of the applicant's lot including the mold thereon, and is liable to bring the roof and associated components to good working order.
• [87] The respondent body corporate in carrying out these works may choose to make a claim on its insurance policy, and if so, it must bear the cost of any excess payable.

(f) Should the body corporate pay the cost of the adjudication application fee?

• [88] Under section 280 of the Act, an adjudicator may, if asked by an applicant, order the respondent to pay to the applicant, the application fees for the conciliation and adjudication application if:

(a) The applicant for an adjudication application made a conciliation application for the same dispute; and

(b) The respondent to the adjudication application was the respondent to the conciliation application; and

(c) The Commissioner ended the conciliation application under section 252K of the Act because the respondent failed, without reasonable excuse, to participate in conciliation.

• [89] There is no evidence of the applicant having made any application for conciliation. Accordingly, I do not have the power to order the respondent to pay the applicant the adjudication application fee.

• [90] The respondent body corporate has contravened section 180(1) of the Standard Module by failing to maintain the common property roof of the scheme building in good condition. This contravention resulted in water ingress to the applicant's lot and damage to the ceiling of her lot.
• [91] Accordingly, the respondent body corporate must maintain its roof and associated components including guttering, flashing and membranes in good working condition, and ensure in this regard that further water ingress to any lots and common property is prevented. Given my powers as an adjudicator are limited to the application before me, I shall only order the respondent body corporate to rectify the roof and associated components to the extent that it prevents any further damage to the applicant's lot.
• [92] However, this does not mean that the respondent body corporate is discharged of its obligation to repair the roof with the objective of preventing damage to other lots and common property. The legislation already requires it to do so without my having to order it.
• [93] Furthermore, I also order the respondent body corporate to repair the water damage to the ceiling of the applicant's lot, including the mold thereon.
• [94] The respondent body corporate as submitted by Cheung has a rather poor history of maintenance. He states that lot owners do not wish to spend money on maintenance unless they absolutely must. This is somewhat reflected in the minutes of several general meetings including that dated 22 January 2025, 09 January 2024 and 19 November 2024, where majority of the lot owners either refrain from voting altogether, or vote against motions relating to regular maintenance. At all three meetings, motions to obtain quotes to inspect the roof have been defeated. I note that two of these motions were tabled by the committee and one by the applicant. If Cheung's statement in this regard is correct, it would be advisable for lot owners to apprise themselves of the strict nature of the statutory maintenance obligation and consider the potentially detrimental financial consequences of a failure to so maintain.
• [95] There is also some mention in the evidence of lot owners wishing to engage an engineer to conduct an assessment of the structural integrity of the scheme building due to visible cracking and other damage. Whilst such a decision appears to be sound, it cannot be used to justify or excuse delaying the repairs to the roof in circumstances where the applicant continues to suffer property damage until the repair is complete.
• [96] I note that the applicant has also sought an order for a licensed professional to provide a report on all aspects of the roof requiring rectification to prevent further water ingress to her lot, and to quote for such repairs. The evidence indicates that the respondent body corporate and Cheung have sourced numerous quotes in this regard, with one tradesperson in particular having provided a report of the areas of the roof requiring rectification. Accordingly, I do not see any need to order the respondent body corporate to do what has already been done since the application was lodged.
• [97] I do however note the possibility that once these identified issues regarding the roof are remedied, further (previously hidden) aspects requiring repair may be uncovered. Subject to the legislation, the respondent body corporate must ensure all such repairs are effected to prevent any further damage to the applicant's lot.
• [98] If the respondent body corporate wishes to make an insurance claim with respect to these repairs to the roof and associated components or the water damaged ceiling of the applicant's lot, it cannot require the applicant to pay any insurance excess.
• [99] Lastly, I would like to note that a failure to comply with this order may result in heavy fines payable by the respondent body corporate (owners' contributions).

[1] The CMS includes the scheme's by-laws

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

[4] See Brighton on Broadwater Breezes [2018] QBCCMCmr 243 at [8]

[7] [2016] QCATA 177

[8] SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 [15] - [16] as cited in Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [23]

[9] McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 [60] (Hayne J) as cited in Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [24]

[10] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [36] and [42]

See also the relevant headings of section 94, Division 1, Part 1 and Chapter 3 of the Act - In this regard, it is worth noting that sections 14(1) and (2) of the Acts Interpretation Act 1954 states that these headings are part of the Act itself

[13] See the relevant headings to section 152, Division 2, Part 3, Chapter 3 of the Act, noting the application of sections 14(1) and (2) of the Acts Interpretation Act 1954 which states that these headings are part of the Act itself

[14] [2006] NSWSC 1157

[15] [2010] QDC 70

[17] See MacDougall v The Body Corporate for House on the Hill [2020] QCATA 63 at [17]

[20] See heading of section 180 of the Standard Module - 'Duties of body corporate about common property - Act s 152')

[21] [2019] QBCCMCmr 433 at [67] to [69]. This decision was subject to an application for appeal which was later discontinued

[22] Now section 180 of the Standard Module

[23] Klinger & Anor v Body Corporate for Costa D'Ora Apartments [2007] QDC 300 at [67]

[24] [2012] QBCCMCmr 79 at [35]

[25] [2012] QBCCMCmr 172 at [50]

[26] [2025] QCATA 3 at [51] to [52]

[27] However, prior in Klinger & Anor v Body Corporate for Costa D'Ora Apartments [2007] QDC 300 at [67], Seiwa was seemingly cited as authority for the proposition that the duty to maintain is not a strict one, given, as it states, a body corporate would only be in breach of its duty to maintain as soon as it becomes aware that any building parts covered by that duty has fallen into disrepair

[28] Some argue that standard of care is irrelevant for non-fault based strict liability matters

[29] [1994] HCA 13; [1994] 120 ALR 42 at [65]

[31] See for e.g., Enderley Gardens [2024] QBCCMCmr 60 at [100]

[32] [1976] 1 NSWLR 412

[33] See section 210(1)(a) of the Standard Module

[34] Given there is some evidence to indicate that tradespersons refuse to carry out any repairs to the roof until the pitch is rectified