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

MAINTENANCE - whether the body corporate must maintain a carport on common property.

Accommodation Module, s 170

1. Within 6 months of the date of this order, the Body Corporate for Silvapine Villas must complete all work reasonably required to ensure that the carport (including the structure and associated slab and retaining wall) allocated for the exclusive use of Lot 46 is in good and structurally sound condition.

[1] This application is about the condition of the applicant's carport.

[2] Under the community management statement (CMS) for this scheme each lot has exclusive use of a carport on common property adjacent to their lot.[1] The applicant's Lot 46 is allocated carport 46. The exclusive use by-law says the body corporate continues to be responsible for the maintenance duties under the Act for the exclusive use areas.

[3] The applicant says their carport is damaged and hazardous due to the body corporate's failure to maintain it. They say it is unusable. They say they notified the body corporate on numerous occasions but have been dismissed.

[4] The applicant seeks an order for their carport to be repaired. The question then is whether the body corporate has failed to meet its obligations, such that an order is warranted.

[5] Silvapine Villas community titles scheme 8160 (Silvapine Villas) is a 50-lot scheme at Woodridge. The CMS shows the Accommodation Module applies. The scheme is registered as building unit plan 7077.

[6] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[2] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[3]

[7] The applicant originally applied for conciliation about the carport in March 2024.[4] A conciliation session was held in August 2024, but the parties did not reach an agreement.

[8] This application was lodged on 5 September 2025. The Commissioner's delegate sought clarification some aspects of the application.[5] The application was subsequently amended.[6]

[9] The Commissioner invited submissions from the committee and all owners.[7] Two submissions were received. The applicant obtained but did not respond to the submissions.[8]

[10] The application was referred to department adjudication.[9] I have now investigated the dispute, including reviewing the submitted material and seeking further information.[10]

[11] A submission made on behalf of the committee says it has engaged structural engineers to inspect all retaining walls showing signs of stress or deterioration, including the Lot 46 carport. It says that, on receipt, it will arrange quotes for rectification works pursuant to the engineer's recommendations. It expected the works would exceed the committee spending limit and so would be submitted to a general meeting for approval.

[12] An owner submission notes no engineering report was supplied as supporting evidence that the slab is unsafe or the brickwork is damaged, and no pre-purchase building inspections were provided. They say that photographs in the applicant show airspace under the slab but not apparent brickwork damage. They note the annual safety inspection reports for the last 5 years do not mention the Lot 46 carport. They say the body corporate cannot act without engineering proof, and it has a duty to ensure community funds are properly spent. They say the body corporate cannot commission an engineering report unless they want to be open to spending community funds on every owner's desired investigation.

[13] Photographs included in the application indicate issues with the condition and structural integrity of the carport foundations. A quote obtained by the applicant from a contractor in December 2023 said that from their inspection the concrete carport slab showed evidence of voidage and subsidence, with up to 210mm subsidence measured.

[14] After the committee submission was made, the body corporate received an engineering report. The report, dated 27 October 2025 from Booth Engineers & Associates Pty Ltd (Booth), was a preliminary investigation into the retaining wall and carport structure. From a visual inspection, the report said its observations included:

1. the concrete sleeper retaining wall had failed to the rear right
2. a retaining wall post was not central to the concrete foundation
3. the slab was severely cracked in several locations
4. the slab was separating from the adjacent brick wall
5. the slab was not constructed to meet the relevant Australian Standard
6. the right side of the carport structure was supported on steel posts bolted to the slab and has the slab subsided, the posts had followed so the gutter no longer falls to the downpipe, with overflow leading to further flushing of materials and subsidence
7. the retaining wall posts had ad hoc fixings, and
8. survey levels showed differences of up to 212mm in the slab, with overall deviations of 1/41 across the rear of the slab far exceeding Australian Standards guidelines.

[15] Based on its site inspection, Booth said structural rectifications were required and exclusion fencing should be installed, cordoning off the area until rectifications occurred. Its recommendations included removing the existing carport structure and the defective slab, replacing defective sections of the existing concrete sleeper retaining wall, and installing a new slab, footings, and carport structure in accordance with detailed steps.

[16] After providing the report to the applicant, the body corporate confirmed it would proceed with the recommendations and was arranging quotes to put to a general meeting.

[17] After reviewing the submitted material, at my request a member of the Commissioner's office contacted the body corporate manager (BCM) to ascertain the status of the matter. The BCM verbally advised in December that quotes had only been obtained for the removal of the carport at that time. In response to further queries in January, the BCM verbally advised there had been delays with quotes due to the Christmas period. They said once the carport was removed, they would organise a new carport to be installed. They also noted the body corporate had designated a visitor car space for the applicant to use.

[18] I then sought a written update on the matter from the body corporate in early February. The BCM advised that two quotes had been obtained for the first stage of the project, being the removal of the carport, but were not 'like for like'. They said revisions to the quotes were being sought so the work could be approved at a general meeting. The BCM again said a temporary carpark had been allocated until the works were completed.

[19] At my request, a member of the Commissioner's office also contacted the applicant to ascertain if they felt the matter was being resolved. The applicant noted that a general meeting had not yet happened, and the body corporate was only obtaining quotes to demolish the carport and not to repair it after demolition. They noted it had been over 2 years without any rectification in sight. They said the body corporate previously refused to take responsibility for the damage and classified it as cosmetic and not meriting an engineering report. The applicant indicated concern that nothing would happen without an order to establish a timeframe and 'create some type of resolution'.

[20] I will note some general information and then consider the current circumstances.

[21] A body corporate must usually maintain common property in good and structurally sound condition.[11] Some responsibilities for maintaining common property will transfer to an owner under an exclusive use by-law granting the owner rights to the common property, unless the by-law specifies otherwise.[12] But in this case it is clear from the by-law that the body corporate retains the responsibility for maintaining the carports.

[22] 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.[13]

...there is an intention disclosed by the legislation for a duty of care to arise.[14]

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

The duty to maintain: involves an obligation to keep a thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists; requires the body corporate not only to attend to cases where there is a malfunction, but also to take preventative measures to ensure that there not be a malfunction; extends to require remediation of defects in the original construction of the common property; and extends to oblige the body corporate to do things which could not be for the benefit of the proprietors as a whole or even a majority of them. There is a breach of the duty as soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair.[15]

[24] The duty to maintain is one of strict liability. A body corporate cannot avoid or defer required work because it has not budgeted for the work, has insufficient funds, or has other priorities.

[25] Also, inherently the obligation to maintain includes the obligation to ascertain whether something has fallen into disrepair or requires work to be maintained in good and structurally sound condition. Particularly where a body corporate has been alerted to a genuine maintenance issue, it may be unreasonable for it to simply fail to act or to expect an owner or occupier to obtain reports to substantiate the need for repairs.[16]

[26] In this matter it is not disputed that the carport is on common property or is the responsibility of the body corporate to maintain in good and structurally sound condition.

[27][ In light of the Booth report, it is evident the carport is not in good or structurally sound condition. Moreover, the Booth report confirms the applicant's assertions that the carport is not usable. This is clearly not merely a cosmetic issue. It appears the original construction of the slab may have been deficient, and it seems likely the current state of disrepair has developed over an extended period.

[28] It is evident the body corporate has failed to meet its statutory duty to maintain the carport.

[29] The body corporate does not now appear to dispute that the carport needs maintenance and that it must take steps to rectify the carport. The body corporate has indicated it will follow the recommendations in the Booth report.

[30] Unfortunately, it appears that in the nearly 4 months since the Booth report was received by the body corporate, little progress has been made. Quotes have been obtained but only to remove the slab, retaining wall and carport. It does not appear that a general meeting has yet been called regarding that work, let alone the work being approved or progressed. I appreciate there can be genuine difficulties in obtaining appropriate quotes. But there is no indication that any of the numerous other steps recommended by Booth have been pursued. For example, there is no indication that the body corporate has sought quotes for engineering advice on the design of a new slab or retaining wall, or any necessary certification or approvals, let alone obtained quotes to replace the slab, retaining wall and carport. Each of those steps will take time, including the time (being a minimum of 21 days) to hold a general meeting to approve work and expenditure.

[31] The loss of the use of their exclusive use area affects the proprietary rights of the lot owners. While the body corporate has now made another car space available, until the matter is resolved, there will undoubtedly continue to be significant inconvenience to the owners.

[32] I accept on the submitted evidence, and it is not disputed, that the carport and associated concrete slab and retaining wall on the common property allocated for the exclusive use of Lot 46 are not in good or structurally sound condition. I accept on the submitted evidence, and it is not disputed, that the body corporate is responsible for rectifying that common property. It should so do as soon as practicable.

[33] Unless it obtains an alternative or subsequent advice from an appropriately qualified professional, it would arguably be unreasonable for the body corporate not to undertake the rectification steps recommended in the Booth report.[17]

[34] Given the history of the matter, I share the applicant's concern that the required work may not be progressed in a timely manner without an order. I propose to make an order requiring the body corporate to rectify the carport within 6 months. It should of course endeavour to complete all required work sooner, but I have allowed that time acknowledging the numerous steps that appear to be required.

[35] Noting the need for general meeting approval of the required works and associated expenditure, the body corporate may wish to provide a copy of this decision with the notice of any general meeting considering such motions. While the body corporate can decide who undertakes the rectification work and may have some discretion about the specifics of the work, owners should be aware that the body corporate cannot refuse to rectify the carport.

[1] By-law 21, schedule E and sketches A, B and C in the CMS recorded on 23 May 2003, Titles dealing number 706631750.

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

[11] Section 170 of the Accommodation Module

[12] Section 182 of the Accommodation Module

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

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

[15] 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

[16] Noting the obligation to act reasonably under section 94(2) and 100(5) of the Act.

[17] Noting sections 94(2) and 100(5) of the Act