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

INTERIM ORDER - whether an interim order stopping the body corporate from acting on potentially defective motions is warranted.

1. The Body Corporate for Spinnaker Main Beach CTS 9625 must not take any steps to implement Motion 2.1 or Motion 2.2 of the 2 October 2025 extraordinary general meeting, if either motion is passed by the body corporate at that meeting.
2. This interim order has effect until (12) months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn or otherwise ended.

• [1] This application for interim orders is brought by the owners of Lot 115 against the body corporate.
• [2] For this interim order, the most relevant final issue in dispute relates to the body corporate considering the engagements of contractors to performing waterproofing membrane works on the scheme's roof, which forms part of Lot 119. The applicants contend that the body corporate is not responsible for these works as the cause of the breakdown of the membrane may be attributed to improvements made to the common property roof area by the owners of Lot 119.
• [3] Until the matter can be finally determined, the applicants seek interim orders that would stop the body corporate from acting on any decision it may make to engage contractors for the works at an upcoming general meeting.
• [4] I have made the interim order sought as on my preliminary review of the material currently in front of me:
  1. I am satisfied the applicants have raised a prima facie case for the motions being potentially invalid where an expert report notes several causes for the ingress, and it is not immediately clear whether the body corporate is responsible for those causes, nor is there an obvious intention to seek reimbursement for the works.
  2. I am satisfied the balance of convenience justifies the interim relief where the cost of the proposals subject to the motions are significant, and the interim relief does not prevent the body corporate from investigating the matter further, and proposing alternative ways in processing and rectifying the issue.

• [5] The scheme is a building units plan subdivision, now referred to as a building format plan subdivision (BFP), of 119 lots and common property in Main Beach on the Gold Coast. The survey plans show the scheme was registered in 1983, and depicts a single tower with 34 floors.
• [6] Most notably, Lots 119 and 118, are contained within two of the uppermost residential floors (referred to as Level FF and Level GG). The plans note that, on Level GG, there are uncovered parts (indicating an open rooftop area) and that the lot boundaries extend to ceiling height in those areas.
• [7] The community management statement (CMS) shows the Standard Module applies to the scheme.

• [8] It is not disputed that Lot 119 has experienced water ingress into the lower floor of their lot. It appears to not be indispute that the water has entered the part of the lot on Level FF, from the part of the lot on Level GG.
• [9] A building condition report was obtained to give insight into the cause of the water ingress. The report was prepared by Buildcheck and dated 28 May 2025 (Buildcheck Report). Buildcheck also provided a scope of works document to assist in a tender review. That document is dated 7 May 2025, before the Buildcheck Report, although I note there are some time stamps to suggest the document was revised on 18 July 2025 (Buildcheck Scope of Works). The scope of works advises contractors would:
  1. Re-level, waterproof, and re-tile the full external roof terrace.

1. Install skirting tiles around the entire perimeter of the re-tiled areas.
2. Install riders within the enclosed area of the rooftop.
3. Ensure all downpipes and and pipe penetrations are properly sealed and waterproofed.
4. Supply and install a new strip drain system.

• [10] Based on the Buildcheck Scope of Works, proposals were tendered and Buildcheck provided a Tender Summary Document dated 22 August 2025 (Buildcheck Tender Summary).
• [11] An extraordinary general meeting of the body corporate has been called to be held on 2 October (Pending EGM), where there are two motions, listed as a group of same issue motions with the numbers 2.1 and 2.2, for the engagement of alternative contractors to perform works to address the cause. The costs of the proposals are approximately $330,000 to $480,000. The meeting notice and agenda materials include the two tenders, and the Buildcheck Tender Summary.
• [12] The dispute centres around the specific cause of the water ingress, and whether the body corporate is responsible for the proposed works to address the cause. The applicants say the body corporate is not responsible. The applicants also take issue with various processes and steps taken that led to the proposal of Motion 2.1 and 2.2.

• [13] The applicants seek the following interim order:

That no action be taken to implement any decision made in regard to Motion 2 (21 and 2.2) at the forthcoming EGM on 2/10/25 until final orders are determined.

• [14] The final orders the applicants seek, which are not being determined at this time, read as follows:

1. That Motion 2, consisting of option 2.1 and 2.2, is carried at the EGM, set down for 2/10/25 is invalid. > > 2. That the Body Corporate ask [the current secretary] and [the current chairperson] to resign their positions on the Committee. Should they refuse then that the Body Corporate issue Breach Notices for Breaches of the Code Of Conduct against [the secretary and chairperson]. > > 3. That the Body corporate take all necessary steps to recover costs of the BuildCheck Report, Scope of Works, Legal Opinion from [the body corporate's lawyers] and the additional secretarial costs incurred by Stratasphere in the calling and holding of the EGM of 2nd October 2025 from [the owner of Lot 119].

• [15] The applicants say the first final order is justified and the body corporate is not responsible for the works as the applicants argue:
  1. The Buildcheck report attributes the breakdown of the waterproofing membrane, and other water ingress issues, to items the body corporate does not have a responsibility to maintain. Rather, the applicants say the owner Lot 119 may be responsible for the works in circumstances where the (current or past) owner of Lot 119 made modifications to their lot rooftop area on Level GG that they are responsible for maintaining, and may be responsible to rectify any damage to the membrane attributed to those items as a result. The applicants say the modification was roofing and enclosing Level GG and included the installation of:
     1. tiles over the roofing membrane
     2. a strip drain
     3. roofing, including gutters and downpipes
     4. windows and glass panels.
  2. The body corporate committee failed to provide its solicitors with the Buildcheck Report, so the legal advice received may not be accurate.
  3. The committee did not review the two quotes for the works before calling the Pending EGM and proposing Motions 2.1 and 2.2.
  4. The committee has provided misleading information to voters in the leadup to the Pending EGM.
• [16] The applicants also raise several arguments for the second and third final orders. However, for reasons I will explain below, I will not detail those grounds at this juncture.

• [17] Seeking comments from those who may be affected before making an interim order is generally desirable. However, I may make interim orders without seeking submissions from the respondent or any affected parties.[1] This application for interim orders was referred to be on 1 October, with the Pending EGM to take place on the afternoon of 2 October. Given the timeframe, I have not sought comment from the body corporate's committee or any affected parties.
• [18] I note that if the respondent or any affected party is able to provide evidence that the cause is solely the body corporate's responsibility, or that there is any pressing urgency to the works taking place, it is open to them to seek a variation of the interim order.

• [19] Interim orders are temporary in their effect. Typically, their purpose is to maintain the status quo, preserving a party's rights or interest until the matter can be finally determined, usually by stopping a party from taking certain actions.
• [20] The ability for an adjudicator to make an interim order is provided for in the legislation. An adjudicator may make an interim order where satisfied, on reasonable grounds, that the order is necessary due to the nature or urgency of the circumstances.[2] Adjudicators often follow the test applied by courts in interlocutory applications, being whether the applicant has shown that it has a prima facie case, and whether the applicant has shown that the balance of convenience favours the granting of the relief claimed.[3]
• [21] Therefore, to be successful in their application for interim orders, the applicants must satisfy me that:
  1. there is a prima facie case to justify relief, and
  2. the balance of convenience justifies the interim relief.

• [22] While I am not determining the final orders sought, determining whether there is a genuine legal issue at the interim stage requires some level of assessment of the final orders.
• [23] The onus is on the applicants to prove there is a prima facie case to justify the relief they seek. The applicants do not need to show that it is more probable than not that they will succeed. The applicants need to show a sufficient likelihood of success to justify the interim orders pending a final determination of the matter.[4] How strong the possibility of success that is needed depends upon the nature of the rights the applicants assert, and the consequences of the order sought.[5]

3.1.1. First final order - validity of Motions 2.1 and 2.2

• [24] The applicants ultimately take the position that the body corporate is not responsible for the water ingress rectification works proposed by Motion 2.1 and 2.2.
• [25] A body corporate is created from the legislation, and as such, draws its powers and functions from the legislation. Unless there is a basis in the legislation for the body corporate to undertake the works, there is an argument the motions may be invalid on this basis.
• [26] Who may or may not be responsible for maintenance of a water proofing membrane, and other works related to water ingress, in a rooftop area of a BFP is complex. These disputes are typically highly technical, with the outcome dependent on the unique circumstances and evidence provided via expert reports.
• [27] On face value, the body corporate in a BFP is responsible for maintaining roofing membranes which provide protection to lots or common property below, pursuant to section 180(2)(a)(iii). This applies regardless of the area forming part of a lot. The body corporate can also be responsible for replacing tiles and screed on top of the membrane, if removed to maintain the membrane.[6] Although, there are circumstances where this will not be the case.[7]
• [28] The body corporate in a BFP is also charged with maintaining roofing structures and essential supporting framework in a structurally sound condition, pursuant to section 180(2)(b) of the Standard Module. Therefore, if the works are necessary to preserve the structural integrity of the building, then the body corporate may be responsible for those works.
• [29] However, there are several exceptions to these general rules. For example:
  1. A lot owner must maintain their lot in good condition, pursuant to section 211 of the Standard Module. Insofar as any works fall outside of membrane works, or works necessary for structural soundness, the lot owner may be responsible if within the lot.

1. The legislation does not, in and of itself, require a lot owner to obtain body corporate consent for improvements to a lot. However, by-laws (that are unique to the scheme) may require the lot owner to obtain consent. It is not unusual for there to be terms and conditions attached to the body corporate's approval that may impact maintenance obligations related to an improvement to a lot. This may be relevant in this matter, insofar as any cause can be attributed to maintenance of an improvement.
2. Further, insofar as utility infrastructure is involved, it is possible for it to be common property even where inside a lot.[8] Yet, insofar as a lot owner makes an improvement to common property, which could include adding additional utility infrastructure to common property utility infrastructure, the lot owner remains responsible for the maintenance of the improvement unless excused.[9] Based on the material currently in front of me, it is not immediately clear if any of the structures, and particularly the utility infrastructure, subject of this dispute could be considered improvements to common property that the lot owner may be responsible for.
3. Most importantly, there are various sections of the legislation that would allow a body corporate to pursue a lot owner for the cost of works where their action or inaction may have caused or contributed to damage to property, including the waterproofing membrane.[10]

• [30] On my preliminary review, the most compelling evidence the applicant relies upon is the Buildcheck Report. The report advises the following (amongst other things):
  1. Elevated moisture levels and visible ceiling damage in the lower level of Lot 119 evidence ongoing water ingress through the roof slab, and is consistent with a compromised roof waterproofing system.
  2. Moisture-related deterioration of roof tiles suggest consistent pooling of water, indicating a failure in the drainage and tile bedding, allowing compromise of the membrane and substrate.
  3. Incorrect falls are contributing to water ponding, accelerating compromise of the membrane and substrate.
  4. One of the downpipes (which may be part of improvements made to the lot by the lot owner) discharges directly onto the tiles which is a 'significant design failure' and acted as a point of accelerated failure of the membrane.
  5. There is water ingress through the window system (which may be part of improvements made to the lot by the lot owner) due to inadequate design, poor falls and the absence of hobs.
  6. The strip drain (possibly part of improvements made to the lot by the lot owner) is insufficiently sized and poorly located.
  7. There are concerns of concrete spalling.
• [31] It is not immediately clear that the body corporate is wholly responsible for the works outlined in the Buildcheck Scope of Works, based on the causes outlined in the Buildcheck Report. Particularly, where the cause may be attributed to poor design of any improvements made to the area by the current or previous lot owner.
• [32] I note that the body corporate did obtain legal advice in relation to responsibility for the total of the Buildcheck Scope of Works. However, as the applicant has pointed out, it is not clear as to whether the solicitors were briefed with the Buildcheck Report, which may have impacts on the advice rendered.
• [33] I will also note here that there are avenues where the body corporate may decide undertake the full scope of works, and seek repayment from the lot owner. This option carries some risk to the body corporate, although, there may be less of an ability to criticise the validity of Motion 2.1 and 2.2 if that is the planned path. However, based on the material currently in front of me, this does not appear to be the intention of the body corporate and Motions 2.1 and 2.2.
• [34] Based on my preliminary review of the causes outlined in the BuildCheck Report, I am currently satisfied the applicant has at least raised a serious legal question, and a prima facie case for the first final order is currently established. For the avoidance of any doubt, my current finding does not mean that the applicants will be ultimately successful, only that there is enough evidence to raise the question.
• [35] I also note that there are several other arguments the applicants raise to justify the first final order sought. Given that I am already satisfied there is a prima facie case, I do not find it necessary to discuss those other arguments at this time.

• [36] The second and third final orders relate to allegations of breaches of the code of conduct[11] by certain committee members, and questions of agency, authority and liability to pay contractors for advice and reports.
• [37] I am not satisfied the applicants have raised a prima facie case for these orders. The legislation provides a clear process to follow where there are allegations of a breach of the code of conduct.[12]
• [38] Further, on my preliminary view, I hold concerns that while the applicants have attempted to word the orders against the body corporate, certain individuals would be directly negatively impacted by those orders, and those individuals are not respondents to the application.
• [39] Much of the material in the application goes to these allegations. If the applicants are primarily concerned with seeing a harmonious and well maintained body corporate, then I would invite the applicants to evaluate whether the application in its current form will achieve this, or cause further dispute.

• [40] I am currently satisfied the applicants have raised a prima facie case for the first final order sought where there is a question as to whether the body corporate is wholly responsible for the works proposed by Motion 2.1 and 2.2.
• [41] Before granting an interim order, I must balance the inconvenience to the respondent body corporate if I were to grant the interim relief now, in the knowledge that final orders might ultimately be refused, against the inconvenience to the applicant body corporate if I were to not grant relief now, in the knowledge that final orders might ultimately be granted.[13]
• [42] The cost of the proposed engagements for works are in the vicinity of $330,000 to $480,000 (not including possible contingencies). These are not insignificant amounts. While it may be possible for the body corporate to undertake the works and seek reimbursement from the owner of Lot 119 for any portion they may be responsible for, it is not guaranteed that the body corporate would be successful, and the path in doing so may not be so straightforward where large sums are involved.[14]
• [43] On the other hand, I am mindful there may be some urgency to the works to stop further damage to property. Yet, I am not satisfied that this outweighs the justification for the interim order, based on the material currently in front of me. The interim order would simply stop the body corporate from acting on Motion 2.1 or 2.2, if either is resolved at the Pending EGM. It does not stop the body corporate from conducting further investigations and obtaining further reports and legal advice, nor proposing alternative ways forward.

• [44] On my preliminary review of the material currently in front of me, I am satisfied the applicants have raised a prima facie case for the first final order, on the basis that it is not currently clear that the body corporate is wholly responsible for the proposed works and there appears to be no suggestion that any other party will be asked to continue or reimburse the body corporate.
• [45] I am satisfied, based on the material currently in front of me, that the balance of convenience justifies the interim relief in the circumstances. The cost of the proposed works is significant. Insofar as there may be any urgency for the works, the order does not stop the body corporate from investigating the matter further or moving forward with alternative proposals that may better reflect the body corporate's responsibilities. It is also possible for the final dispute to be decided by an adjudicator in a more accelerated manner if there is evidence of some kind of urgency. If the body corporate or an affected person has evidence confirming the cause and responsibility is solely attributed to the body corporate, and that there is significant urgency to this matter, it is open to them to seek a variation.
• [46] I consider it appropriate to again emphasise that disputes concerning water ingress in a BFP are often technical and complex. The present matter involves a number of factors which can render the attribution of responsibility to be intricate. With this in mind, I would like to remind all parties that it may be inappropriate to assume someone is acting in bad faith merely because they are acting on a different understanding as to where responsibility lies.

[3] SDW2 Pty. Ltd. V JLF Corporation Pty Ltd [2017] QSC 1 at [21].

[4] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at [622-623].

[5] Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57, at [65], [19].

[6] See, for example, Klinger & Anor v Body Corporate for Costa D'ora Units [2007] WDC 300.

[7] See, for example, Amelia Place [2018] QBCCMCmr 627.

[10] See, for example: Act, 281; Standard Module, s 180(5); Standard Module, s 212(2). Although, these sections may not preclude the body corporate from resolving to proceed with the works in the first instance.

[13] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65] citing Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at [5].

[14] For example, Act, s 281 is a possible avenue for parties to seek reimbursement from another party for repairs to damaged property via an order of an adjudicator. However, the section limits an adjudicator's power to do so to $10,000.