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

MAINTENANCE; BODY CORPORATE RECORDS - whether the respondent must obtain and provide to the applicant various architectural, engineering, and regulatory documents relating to remediation of the roof drainage; whether the respondent must rectify the roof drainage.

Act, ss 205, 227.

• [1] Dr Carter's lot 1510 has suffered water ingress for years and is reportedly uninhabitable. The ingress is apparently due to defective roof drainage.
• [2] The body corporate and principal body corporate appear to be taking steps to try to resolve the problems, but Dr Carter is not satisfied with their efforts. She fears they are not engaging appropriately qualified contractors, carrying out effective works, nor meeting regulatory requirements.
• [3] She has repeatedly requested documentation of an architectural, engineering, or regulatory nature from her body corporate to address her concerns but is dissatisfied with what she has received. She believes the body corporate must have further records it has not shared.
• [4] Dr Carter made a conciliation agreement with her body corporate on 1 December 2023 and the body corporate agreed to provide her with certain records if it held them. Dr Carter believes the body corporate has not complied with the agreement.
• [5] She now seeks orders in the following terms:
  1. Refer AGM Minutes 17 Jan 2019 Item 15 and 17: To comply with the agreed and voted requirement to obtain architectural and engineering documentation suitable for the building certification of the building rectification works; and
  2. To obtain building certification for these works being of a value over $20,000 in relation to the rectification of a major structural defect being the leaking roof drainage system* (common lot and related works including re-certification of fire separation where consequential damage has comprised the fire separation of compartments and including all consequential damages to Lot 1510).
  3. To provide copies of the technical design documents and or technical descriptions and specifications from designers and contractors, and Building Approval(s), As Built certifications, warranties or statutory declaration for all works undertaken to The Johnson roof drainage system and the Apartment 1601 Exclusive Use Balcony since the Certificate of Classification was provided in September 2016.
  4. To provide an undertaking to deliver a rectified roof water drainage system and program so that Lot 1510 has a building approval and construction certified water tight interior.
• [6] However, the rooftop of the building is not the common property of The Johnson Apartments and therefore not within the control of the respondent. It is the common property of the principal body corporate, The Johnson CTS 49098. I cannot make orders 1, 2 and 4 against the respondent in relation to property it does not administer.
• [7] The principal body corporate consented to being substituted as the respondent, but an owner in a subsidiary scheme has limited ability to apply against a principal body corporate. They may only apply in relation to access to the principal body corporate's records, or a dispute about by-laws binding on both parties.[1]
• [8] Order 3 is about access to records. Dr Carter can obtain copies of body corporate records under section 205 of the Act if she lodges a written request with the relevant body corporate and arranges to pay the prescribed fee. She can seek records from her own body corporate as an owner,[2] and from the principal body corporate if she can satisfy it of her "proper interest in the information",[3] which should be straightforward where the records concern a building defect affecting the habitability of her lot.
• [9] However, it is not evident that Dr Carter has requested the records she describes in compliance with section 205. I am not aware that she has sought to pay the prescribed fee for copies of records from either body corporate.
• [10] Moreover, it is not evident that either body corporate possesses any further records matching Dr Carter's description that it has not supplied to her. Dr Carter often argues that further records should exist, but I do not know that they do, or that they are held by the bodies corporate. I see no indication that either body corporate is attempting to withhold anything from Dr Carter. There are several references in the application to the incomplete state of the records.
• [11] Dr Carter is entitled to inspect the records to see whether they hold anything else of relevance.[4]
• [12] The application is dismissed.

[1] Act, s 227(1)(j) & (3)(c).

[2] S 205(13)(a).

[3] S 205(13)(e).

[4] S 205(2)(a).