Section 78 of the Building Units and Group Titles Act 1980 (Qld) (BUGT Act)

PROPERTY DAMAGE - where the applicant is seeking reimbursment for repairs he says were the body corporate's responsibility - whether the orders sought are warranted in the circumstances.

1. I declare that The Cascades - Noosa Springs Body Corporate is responsible for the repairs to the electrical cables and conduit carried out by the electrical contractor on or around 9 to 11 September 2024.
2. I order that within 7 days, The Cascades - Noosa Springs Body Corporate must pay the applicant, Robert Hobart, the amount of $1,000 in part reimbursement for the repairs.

• [1] The applicant in this dispute, Robert Hobart, is the joint proprietor of Lot 39 in The Cascades - Noosa Springs Group Titles Plan 106817 (The Cascades). The respondent is The Cascades Body Corporate.
• [2] The applicant says The Cascades Body Corporate Committee has refused to reimburse him for repairs he had carried out when his lot was having issues with power. He says the electrical contractor he engaged to carry out the repairs identified that the issue was a conduit and cables located in a common property garden having been damaged by tree roots.
• [3] The applicant says the body corporate is responsible for the repairs and the committee is in breach of its responsibilities to lot owners in respect of section 37(1) of the BUGT Act in refusing to reimburse him. He is seeking an order that he be reimbursed for the electrical contractor's invoice in the amount of $5,068.57.

• [4] Noosa Springs is a development under the Mixed Use Development Act 1993 (MUD Act) located in Noosaville, Queensland. It consists of the Noosa Springs Community Body Corporate and six subsidiary bodies corporate. The Cascades is a subsidiary body corporate at Noosa Springs, comprising 59 lots.
• [5] The MUD Act is one of several 'specified Acts' defined under section 326 of the Body Corporate and Community Management Act 1997 (BCCM Act). Section 325(2)(a) of the BCCM Act and section 5A of the BUGT Act provide that the BUGT Act continues to apply to plans registered for a specified Act.
• [6] Part 5 of the BUGT Act concerns disputes. Sections 75 to 94C provide for orders by a referee, with section 77(1) providing a general power to make orders as follows:

A referee may, on the application of a body corporate, a body corporate manager, a lessee, a person having an estate or interest in a lot or an occupier of a lot in respect of a parcel, make an order on any person entitled to make an application under this subsection or on the chairperson, secretary or treasurer of the body corporate for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power or function conferred or imposed by this Act in connection with that parcel.

• [7] The applicant is a proprietor, seeking an order against the body corporate about the exercise or performance of a power or function conferred under the BUGT Act in relation to the parcel. I am satisfied the application falls within the scope of the dispute resolution provisions in Part 5 of the BUGT Act.
• [8] However, I want to note that under section 78(1)(a) of the BUGT Act, a referee is only empowered to make an order for a party to the dispute to pay money not exceeding the sum of $1,000. So, even if I find in the applicant's favour, I will only be able to make an order for reimbursement for the maximum amount of $1,000.

• [9] The applicant's arguments have been summarised in the overview section above. He says that after protracted attempts at self-resolution which have proved fruitless, he has filed this application for an order of a referee to obtain reimbursement for the repairs. The applicant has provided a copy of the contractor's invoice and photographs to support his case. He has also included relevant correspondence and meeting minutes where the issue was discussed by the committee.

• [10] Ten owners made submissions in response to the dispute.
• [11] Nine lot owners made submissions in support of the applicant's case. In summary, the various owners state the body corporate has the responsibility to repair any infrastructure if the damage is caused by, in this case, tree roots on the common property. They all agree the applicant should be reimbursed for the repairs he paid for.
• [12] The owners of Lot 110 and Lot 117 made submissions in support of the committee's decision not to reimburse the applicant for the repairs. They say the chairperson of the committee informed the other committee members in an email that the electrical contractor attending to the repairs informed the chairperson that the cable insulation had deteriorated over time leading to the conduit being filled with water and shorting the electrical system. They say this was the reason for the fault, not tree roots. Accordingly, the chairperson considered that the repairs were the applicant's responsibility.
• [13] The owners of Lot 110 and Lot 117 then address the applicant's evidence. They say the contractor's invoice refers to "incorrect installation" and "tree root damage to the conduit". They say the contractor also provided a statement claiming that tree roots had "damaged the conduit 300m [sic] under the pillar box". They say the tree root damage was contrary to the information provided to the committee member in attendance on the day the repairs were carried out.
• [14] The owners of Lot 110 and Lot 117 say the chairperson requested that the applicant provide evidence to confirm that tree roots had damaged the conduit. They say the applicant provided no technical or photographic evidence to establish this.
• [15] The owners of Lot 110 and Lot 117 say the body corporate re-excavated the area the electrical contractor had identified as having the fault and carried out an inspection. They say the inspection revealed that while there were surface roots to a depth of 250-300mm, there was no evidence of any repairs to the conduit or of any tree roots at the lower depth in the area of the conduit. They attached photographs of the inspections.
• [16] The owners of Lot 110 and 117 say they do not agree with the applicant's contention that the damaged cable is "body corporate infrastructure". They say the cable originates from a pillar box on common property and services only the applicant's lot. They reiterate it is not shared and is not part of a network used by multiple lots.
• [17] The owners of Lot 110 and 117 say the committee made a good will offer to settle this matter with the applicant which he rejected.
• [18] In conclusion, the owners of Lot 110 and 117 say there is insufficient evidence that tree roots caused damage to the conduit and the subsequent cable fault, the committee acted in good faith in making an offer to cover part of the repair. They ask for the application to be dismissed.

• [19] The applicant was provided with a copy of the submissions and invited to provide a reply.
• [20] In relation to the submission's made by the owners of Lots 110 and 117, the applicant says he addressed every issue raised by the committee in numerous correspondence in the near 9 months since the electrical fault was first identified in early September 2024.
• [21] The applicant says the committee has continually referenced statements made to the committee chairperson by a young electrician carrying out the repairs as justification for refusing to reimburse him. However, the electrical contractor's formal report stated that "it was clear to us that tree roots in the front garden has damaged the conduit" and "while our electricians were on site, it was speculation (as to the cause) as [at] that point as [sic] we hadn't yet pulled the cable out".
• [22] The applicant says it is untrue that he has provided no evidence to confirm that tree roots in the common property garden damaged the conduit. He says the electrical contractor's invoice and the report the contractor provided stated this. He says this was also shown on a series of photographs taken by the electrical contractor on the day the location of the fault was exposed in the common property garden. He says the documents unequivocally confirm that tree roots were the cause of the fault.
• [23] The applicant says the photographs provided by the owners of Lots 110 and 117 do not support the committee's decision to deny reimbursement for the repairs. He says he does not see the relevance of the photographs.
• [24] The applicant says his claim for reimbursement has been treated unfairly and refused for spurious reasons. He says the committee has acted in clear departure from the law.

• [25] The key to this dispute is determining who is responsible for maintaining the electrical infrastructure in question.
• [26] Section 37 of the BUGT Act provides the following:

Duties and powers of body corporate regarding property etc.

(a) control, manage and administer the common property for the benefit of the proprietors; and

(b) where reasonably practicable, establish and maintain suitable lawns and gardens on the common property; and

(c) subject to section 37A,[1] properly maintain and keep in a state of good and serviceable repair (including, where reasonably necessary, renew or replace the whole or part thereof) -

(ii) any fixture or fitting (including any pipe, pole, wire, cable or duct) comprised on the common property or within any wall, floor or ceiling the centre of which forms a boundary of a lot; and

(iii) any fixture or fitting (including any pipe, pole, wire, cable or duct) which is comprised within a lot and which is intended to be used for the servicing or enjoyment of any other lot or of the common property; and

(iv) each door, window and other permanent cover over openings in walls where a side of the door, window or cover is part of the common property; and

(v) any personal property vested in the body corporate; and

(d) cause to be constructed and maintained at or near the street alignment of the parcel a receptacle suitable for the receipt of mail and other documents with the name of the body corporate clearly shown thereon.

• [27] Accordingly, a body corporate is generally obligated to properly maintain and keep in a state of good and serviceable repair any fixture or fitting - including any cable or duct (i.e.: conduit) - comprised on the common property. This includes, where reasonably necessary, renewing or replacing any such fixtures or fittings.
• [28] The applicant says the electrical fault was identified in the common property garden around 15 metres from the boundary of his lot. This accords with the evidence provided by the electrical contractor who carried out the repairs.
• [29] The body corporate committee did not provide its own submission on this dispute. However, from the materials before me, the committee does not appear to dispute the location of the fault being in the common property garden. On balance, I am satisfied the fault was in a fixture or fitting comprised on common property and that the body corporate had a duty to properly maintain and keep this infrastructure in a state of good and serviceable repair. And, where a fault had been identified, the body corporate was the one who was responsible for repairing it.
• [30] From the materials before me, it appears the committee denies the body corporate is responsible for the repairs because the applicant has not provided sufficient evidence to show the damage in question was caused by tree roots. It appears to argue that the committee chairperson was told something different by one of the electrical contractors working onsite when the repairs were carried out.
• [31] In addition, I note the owners of Lots 110 and 117 say the committee considers that the cable which was repaired is not 'body corporate infrastructure.' They say the cable originates from a pillar box on common property and services only Lot 39,[2] it is not shared and is not part of a network used by multiple lots.
• [32] I reiterate that the body corporate has a duty to properly maintain and keep in a state of good and serviceable repair any fixture or fitting comprised on the common property. As I have made the finding that the fault was caused by a fixture or fitting located on common property, the body corporate is therefore responsible for the repairs. It is not relevant whether tree roots or water penetration caused the fault.

• [33] I find that The Cascades Body Corporate is responsible for the repairs to the conduit and mains cables carried out by the electrical contractor on or around 9 to 11 September 2024 and have made a declaration confirming this finding.
• [34] As I indicated as paragraph [9] above, a referee only has the power to make an order for payment of an amount to a maximum of $1,000. Accordingly, I have ordered that within 7 days, The Cascades Body Corporate must pay the applicant the amount of $1,000.
• [35] The electrical contractor's invoice for the repairs was $5,068.57. Accordingly, the amount I am able to order for payment does not reimburse the applicant for the entire amount he paid for the repairs. In light of my declaration that The Cascades Body Corporate is responsible for the repairs, I encourage the committee to reimburse the applicant for the balance of the invoice.[3]
• [36] If the committee chooses not to do so, it remains open to the applicant to put forward a motion at a general meeting to seek the balance of the invoice for the repairs. In circumstances where the body corporate is responsible for the repairs, it would be unreasonable for it to vote against such a motion.[4]

[1] Section 37A deals with improvements to common property made by a proprietor of a lot with the proprietor taking over the body corporate's maintenance responsibilities unless excused by the body corporate. There is no suggestion that section 37A is applicable in this case.

[2] The submissions made by the owners of Lots 110 and 117 refer to Lot 139, but I understand them to have meant the applicant's lot, Lot 39.

[3] I note it would be within the committee's expenditure limit of $11,800 (see section 47 of the BUGT Act and section 12 of the Building Units and Group Titles Regulation 2008).

[4] A body corporate must act reasonably in carrying out the duties and functions imposed on it under the BUGT Act (see section 27 of the BUGT Act).