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

MAINTENANCE - where the applicant alleges issues with the scheme roof led to damp and mould in its lot causing the lot to become uninhabitable - whether the orders sought by the applicant are warranted in the circumstances.

Act, ss 152, 270, 281, 331; Standard Module, s 180

• [1] The respondent, the Body Corporate for Sylvan Oceans, is a 39-lot scheme situated in Bellara, Queensland. It is governed by the Standard Module.
• [2] The applicant, MA & MA Hooley BT Pty Ltd (MA Hooley), is the owner of Lot 313 in the scheme. The director of MA Hooley, Mr Hooley, has brought this application on its behalf.
• [3] Mr Hooley says the Body Corporate for Sylvan Oceans has failed to adequately maintain the scheme's common property, namely the roof, gutters and flashings of the building. He says as a result, Lot 313 suffered significant water damage and mould growth. Mr Hooley says the lot became uninhabitable because of the mould and the tenant ultimately broke their lease and moved out.
• [4] Mr Hooley asserts the applicant has suffered loss and damage totalling $31,162.70. He says this is made up of $726.00 for the first cleaning of the mould growth;[1] $70.00 for loss of rent for the period of reduced rent from 26 July 2023 to 1 August 2023 and $30,366.70 for loss of rent for the period 1 August 2023 to 9 December 2024.
• [5] Mr Hooley says the applicant also incurred legal costs of $8,338.18 and there is also the question of any future losses incurred by the applicant as a result of the roof issues.
• [6] Mr Hooley seeks the following orders on behalf of the applicant:
  • That the body corporate pay MA Hooley the sum of $39,500.88.[2]
  • That the body corporate rectify the mould growth and any incidental damage due to the roofing issues without further delay.
• [7] The applicant bears the onus of establishing that the orders it seeks are warranted in the circumstances.

• [8] The applicant submitted an application for conciliation on 3 April 2024.[3] The application was referred back to the commissioner as the parties reached an agreement (conciliation certificate issued 21 June 2024).
• [9] Unfortunately, this did not resolve the dispute and the applicant submitted this application for adjudication on 21 November 2024.
• [10] The commissioner invited submissions from the body corporate committee, affected persons named in the application and all other owners in the scheme. The body corporate committee made a submission in response.
• [11] The applicant inspected the submission the body corporate committee made in response and submitted a reply.
• [12] A dispute resolution recommendation was made referring the file to department adjudication.[4] I was then tasked with deciding the matter.
• [13] On reviewing the application, I noted the company named as the applicant and owner of Lot 313 in the scheme was MA & MA Hooley Superannuation Fund Pty Ltd (ACN: 659 305 334). However, the title search for Lot 313 records the owner of the lot to be MA & MA Hooley BT Pty Ltd (ACN: 659 307 301).
• [14] On 3 June 2025 this office wrote to Mr Hooley explaining the above and seeking an explanation.
• [15] On 3 June 2025, Mr Hooley confirmed there was an error on their part and that they are the owners of Lot 313 under the company MA & MA Hooley BT Pty Ltd (ACN: 659 307 301).
• [16] On 4 June 2025, this office wrote to Mr Hooley explaining that in order to move forward with the application, the applicant will need to be amended to MA & MA Hooley BT Pty Ltd (ACN: 659 307 301). And, the application will need to be referred back to the commissioner for the amendment to be made.
• [17] On 4 June 2025 the applicant confirmed he was happy for the application to be referred back to the commissioner for the applicant to be amended to MA & MA Hooley BT Pty Ltd (ACN: 659 307 301).
• [18] The application was amended and on 16 June 2025 the body corporate confirmed it was happy to proceed with the application on the basis of the submissions it had previously made about the dispute.
• [19] A dispute resolution recommendation was made referring the file back to department adjudication.

• [20] An adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, about (relevant to this dispute): a claimed or anticipated contravention of the Act or the CMS, or about the exercise of rights or powers or performance of duties under the Act or the CMS.[5]
• [21] I am satisfied I have jurisdiction to determine this matter under the legislative dispute resolution provisions.

• [22] Mr Hooley alleges the body corporate has failed to keep the scheme roof in good repair and this has led to damp and mould growth in Lot 313. He says the applicant suffered damages as a result of the mould issues and is seeking orders against the body corporate.
• [23] Section 281(1) of the Act provides that if an adjudicator is satisfied the applicant has suffered damage to property because of a contravention of the Act, they may order the person who the adjudicator believes is responsible for the contravention to: (a) carry out stated repairs to the damaged property, or (b) pay the applicant an amount as reimbursement for repairs the applicant has carried out.[6] However, an adjudicator cannot make an order for carrying out repairs if they will cost more than $75,000 or make an order for reimbursement of repairs for more than $10,000.[7]
• [24] In light of the above, a key question I need to determine is whether I am satisfied the applicant in this case has suffered property damage because of contravention of the Act perpetrated by the body corporate. In considering this issue, I will firstly consider the body corporate's maintenance obligations.
• [25] Sylvan Oceans was created as a building format plan of subdivision.[8] Where a scheme is created as a building format plan of subdivision, boundaries are defined on the survey plan by the structural elements of a building, including, for example, the floors, walls and ceilings.[9] And, where a lot is separated from another lot or common property by a floor, wall or ceiling, the boundary is the centre of the floor, wall or ceiling.[10]
• [26] Section 152 of the Act sets out a body corporate's duties about common property. It provides that the body corporate must administer, manage and control the common property reasonably and for the benefit of lot owners; and comply with the obligations with regard to common property imposed under the regulation module applying to the scheme.
• [27] As set out at paragraph [1] above, Sylvan Oceans is governed by the Standard Module. Section 180 of the Standard Module provides that the body corporate is generally responsible for maintaining common property in good and structurally sound condition.[11] And, where a scheme is created under a building format plan of subdivision, the body corporate must also (as relevant to this dispute): (1) maintain in good condition roofing membranes that provide protection for lots or common property;[12] and (2) maintain in a structurally sound condition roofing structures providing protection.[13]
• [28] In its response to the application, the Body Corporate for Sylvan Oceans acknowledges that to the extent required by section 180 of the Standard Module, it has an obligation to maintain common property in good condition as well as roofing membranes that are not common property but that provide protection for lots or common property.

• [29] The statutory duty to maintain common property has been considered extensively by the courts.[14] It is clear from the case law that a body corporate has a duty to maintain common property in good condition and that it must do so as soon as any of the building parts covered by the duty fall into disrepair.[15] Failure to do so once aware of an issue would give rise to a breach of the body corporate's maintenance obligations.
• [30] Mr Hooley explains that in June 2023, the tenant residing in Lot 313 notified the rental agent of mould growth in the lot. The tenant subsequently issued the applicant with a breach notice in relation to the mould. Mr Hooley says on receipt of the breach notice, they engaged JNZ Services (JNZ) to clean and remove the mould. The cost of doing so was $726.00.
• [31] In July 2023, Mr Hooley says the tenant advised the rental agent that the mould had returned. I understand the rental agent then spoke to the body corporate's chairperson and the chairperson indicated that mould growth was affecting the entire top floor of the scheme saying it was being caused by several minor leaks in the roof of the building.
• [32] Mr Hooley says JNZ re-inspected Lot 313 and recorded a humidity level of 75% in the areas the mould was growing. He says JNZ advised that the high humidity in the lot indicated structural issues and that mould would continue to grow until the structural issues were resolved.
• [33] It is not clear from the application but, it appears that during this time the body corporate was in the process of investigating roof issues at the scheme and obtaining quotes for repairs. Mr Hooley says that in August 2023, he contacted the scheme's chairperson and requested, (amongst other things), information on the scope of repairs to be completed and the expected timeline for those repairs. He says the chairperson responded that the committee was in the process of obtaining a quote for the repairs.
• [34] I understand the body corporate subsequently engaged National Roof Inspections (NRI) to carry out an assessment of the scheme building roof to enable it to obtain a better scope of repairs for a quote. NRI found that the roof was in overall poor condition and identified multiple issues which could potentially be allowing water to ingress into the building.
• [35] Mr Hooley says he again raised the issue of the roof repairs explaining that Lot 313 was being affected by damp and mould. I understand the body corporate's response was that it had received conflicting advice from various contractors about what was required to rectify the roofing issues. I understand the body corporate subsequently sought advice from a structural engineer as recommended by NRI.
• [36] Nothing happened for a few months but Mr Hooley says that in January 2024, the body corporate advised him it was still in the process of obtaining quotes for the roofing repairs. Mr Hooley says it further stated the repairs would be in the range of 300k to 700k and were complicated due to the roof being constructed with concrete.
• [37] Mr Hooley says that on 24 March 2024, the body corporate held an extraordinary general meeting (EGM) to consider motions to approve a quote for repairing the roof of the scheme building and to raise a special levy to fund the repairs. Mr Hooley did not confirm in his submissions which, if any, of the motions passed. However, I understand the roof repairs were carried out sometime in August 2024.
• [38] Having reviewed the report from NRI and the other material before me, I am satisfied the body corporate was aware the scheme roof required maintenance. The body corporate was therefore in breach of its maintenance obligations and I may make an order, pursuant to section 281 of the Act, in respect of any damage caused to Lot 313 by the body corporate's failure to maintain the roof and roofing membrane in good condition. However, I first need to determine whether the damp and mould in Lot 313 was caused by the issues with the roof.
• [39] The body corporate denies that the mould growth in Lot 313 was caused by the roofing issues. It refers to the roofing report provided by NRI. I note NRI was asked to inspect the scheme roof to identify leaks and potential issues. It inspected the roof on 22 August 2023. The report from NRI states the following:
  • The roof is in overall poor condition.
  • Multiple sections of the roof are suffering from water pooling due to insufficient fall and this will lead to issues such as water ingress and concrete cancer.
  • There are evident cracks in the concrete of the roof which will potentially be drawing in water.
  • The railings have been poorly installed through the tiles of the parapet wall and there is no sealant surrounding the fixing points. Water running down the parapet wall may be entering the wall at the fixing points.
  • The gutters are showing signs of debris build up and deteriorating membrane which will prevent water from draining away and lead to severe water ingress.
  • The L trim flashings have come loose from the edge of the roof causing moisture to be trapped and plants are growing out of them.
  • Multiple layers of membrane have been applied to the gutter system to prevent further water ingress but, this has proven insufficient as water is still making its way into the building.
  • There are cracks forming in the walls potentially drawing in moisture.
• [40] The report from NRI clearly identifies there were multiple issues with the roof that needed to be addressed. However, with many of the issues raised in the report, NRI only notes that there was 'potential' for the particular defect to be drawing in water or that a defect 'may' lead to water ingress. Furthermore, where the report is more definitive about water entering the building, it does not say where the water was coming into the building or detail which lots, if any, were being affected by water ingress. From the scant details provided in the NRI report, it is difficult for me to reach the conclusion that the mould in Lot 313 was being caused by the issues with the roof.
• [41] In its report, NRI recommended that an engineer attend the scheme to provide solutions for structural changes to allow water to drain off the scheme roof efficiently. I understand the body corporate engaged NJA Structural Engineers (NJA) to provide an engineering report. However, it appears the engineer from NJA did not actually visit the site but provided their opinion based on reviewing the roof report from NRI. I do not consider the engineer's report to be particularly helpful in the circumstances. However, I did note the engineer seems to have made the preliminary assumption that the roof is not currently leaking saying the report from NRI gave no indication that this is the case. This emphasises that NRI did not detail any reports of water ingress into the building and, if this was happening, which lots it was affecting.

1. I understand the tenant previously residing in Lot 313 only reported mould growth in the lot and not an active leak.[16] I note Lot 313 is on the top floor of the scheme and there is the vague suggestion that mould growth was affecting the entire top floor of the scheme.[17] However, Mr Hooley has provided no evidence that this was the case and I note no other owners in the scheme responded to the application indicating that their lots had also been affected by mould.[18]

• [43] The body corporate has also provided a report from Fidato Services (Fidato) which inspected Lot 313 in September 2024. The report from Fidato notes bedrooms 1 and 2 of Lot 313 were the most affected by mould growth with visible signs of moisture and poor airflow. The report found that the absence of mould in the bathroom suggests that the ceiling vent is effectively allowing moisture to escape, underscoring the importance of proper ventilation.
• [44] The report from Fidato suggests the mould in Lot 313 could have been caused by insufficient airflow in the lot and not from water ingress through the roof. I note Mr Hooley says the alleged lack of airflow within the lot is a consequence of building design and structural integrity. However, he has provided no evidence to establish this is the case. In any event, his application has been predicated on the mould being caused by the issues with the roof.
• [45] This is a difficult situation and I have sympathy for Mr Hooley. However, from the material before me I am unable to reach a finding that the damp and mould in Lot 313 was caused by issues with the scheme roof. Accordingly, I have dismissed the applicant's application for orders.

• [46] I now turn to the issue of the costs being sought by the body corporate.
• [47] An adjudicator may make an order dismissing an application if it appears to the adjudicator that the application is frivolous, vexatious, misconceived or without substance.[19] And, where an adjudicator dismisses an application for being frivolous, vexatious, misconceived or without substance, they may order costs against the applicant to compensate the respondent, the body corporate or an affected person.[20] However, any costs awarded must be no more than $2,000.[21]
• [48] The body corporate says an adjudicator has no jurisdiction to decide a claim for lost rental income nor to make an order for carrying out repairs of more than $75,000 or reimbursement for repairs of more than $10,000. Accordingly, it says the applicant's application is an abuse of process. It says the application should therefore be dismissed and the applicant ordered to pay the respondent's costs pursuant to section 270(3) of the Act.
• [49] It is clear there were significant issues with the scheme roof. Ultimately, the applicant did not provide enough evidence to satisfy me on the balance of probabilities that the mould in Lot 313 was caused by these issues and was therefore unsuccessful in its application. However, where I cannot completely rule out the possibility that the issues with the roof may have at least contributed to the mould and damp in Lot 313, I do not consider the application was frivolous, vexatious, misconceived or without substance and will not dismiss it on this basis.

• [50] In light of the above, I have dismissed the applicant's application.

[1] Mr Hooley explains the mould quickly grew back as a result of the damp.

[2] Made up of cleaning the mould growth, lost rent and the legal fees the applicant has incurred in this dispute.

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

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

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

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

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

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

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

[14] See Klinger & Anor v Body Corporate for Costa D'Ora Apartments [2007] QDC 300, Magog (No.15) Pty Ltd v The Body Corporate for The Moroccan [2010] QDC 70, Seiwa Pty Ltd v The Owner's Strata Plan 35042 [2006] NSWSC 1157.

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

[16] Email from rental agent to Mr Hooley dated 27 June 2023.

[17] Statement from rental agent where she says the chairperson told her mould was affecting the entire top floor of the scheme.

1. [18] I note that there is some evidence that multiple lots on the top and second floor of the scheme were affected by water ingress while repairs to the roof were being carried out. However, it seems this was caused by something that occurred during the repairs. I understand this event has been submitted as an insurance claim.