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

INTERIM ORDER - whether an interim order is warranted

1. The application for interim orders is dismissed.

• [1] This dispute relates to water leaks in the applicant's unit.
• [2] The applicant is a lot owner at The Regent. She says her property has sustained substantial water ingress, firstly during Cyclone Alfred in March 2025 when water entered from the ceiling join between her lounge and laundry. Following this, the applicant says heavy rain on 26 and 27 July 2025 caused further water ingress, again through the ceiling between the lounge and laundry and additionally through her kitchen ceiling.
• [3] The applicant's builder carried out a thermal imaging inspection of the unit and identified moisture above the kitchen ceiling and along the wall adjoining the laundry. The applicant also engaged a plumber to undertake leak-detection testing which determined that the leak in the kitchen originated from the balcony of the lot above (Lot 42).
• [4] On 4 August 2025, the applicant submitted a motion asking the body corporate to investigate the source of water ingress into her lot. The body corporate says there are no issues with its utility infrastructure, and instead attributes the leak to a faulty tap in Lot 42 which has since been repaired.
• [5] The applicant considers there are at least 2 likely causes of water ingress, being defects in the common property utility infrastructure and defective balcony waterproofing and fittings in Lot 42. She seeks final orders to compel the body corporate and owners of Lot 42 to thoroughly investigate and permanently rectify all water ingress causes. The applicant also seeks orders for reinstatement of her laundry ceiling which was cut open to carry out inspections, and for reimbursement of her costs associated with investigating and repairing the leaks.
• [6] Pending determination of the application, the applicant wants both the body corporate and owners of Lot 42 to put temporary measures in place to prevent water entering her lot. She says insurance repairs to her unit are already in progress and that any further water entry will destroy those works and may make the unit uninhabitable.
• [7] The only issue I will consider at this time is whether interim orders are warranted.

• [8] The Regent CTS 9573 is a multi-storey residential building comprising 64 lots and common property. The scheme is registered as Building Unit Plan No. 5630 and is regulated by the Accommodation Module.
• [9] The applicant is the registered owner of Lot 38. She brings this application against the body corporate and against Lesley and Stan Janczyk purportedly as owners of Lot 42. However, a title search of Lot 42 shows it is in fact registered to Stanja Pty Ltd ACN 079 241 651.
• [10] The application was lodged on 22 September 2025 seeking interim orders that the body corporate:
  1. Arrange immediate inspection of common property above and adjacent to Lot 38;
  2. Implement temporary protective measures (for example, sealing, temporary waterproofing or other reasonable works) to prevent further ingress; and
  3. Repair and reinstate the laundry ceiling opening left by its plumber on 27 July 2025 including fitting a man-hole cover to match the existing ceiling and to protect the lot from dust, vermin and water.
• [11] The application also seeks interim orders against the owners of Lot 42 that they take reasonable interim steps to prevent water from their balcony or hot-water services entering Lot 38, for example, by ceasing use of defective areas until permanent repairs are complete or final orders are made.

• [12] The following final orders are sought against the body corporate:
  1. Engage, without delay, a suitably qualified hydro engineer/plumber to investigate all possible sources of water ingress affecting Lot 38, including (without limitation) roof drainage, balcony membranes, balustrades, slab penetrations, overflow pipework and any other relevant common property above Lot 38.
  2. Take all steps necessary to maintain and repair the common property so that water does not enter Lot 38, in accordance with ss 94 and 163 of the BCCM Act.
  3. Make good any damage to Lot 38 reasonably attributable to defects in common property - including reinstating the laundry ceiling opened by the body corporate's plumber on or about 27 July 2025 and reimbursement for the repair works already undertaken to the wall between the laundry and living room.
  4. That the body corporate reimburse the applicant, pursuant to s281(1)(b) of the BCCM Act, for the reasonable costs of expert investigation, leak-detection testing and necessary rectification already undertaken as set out in the Schedule of Expenses (Attachment J).
• [13] Final orders are also sought against the owners of Lot 42 to:
  1. Promptly repair and properly waterproof their balcony (and maintain associated fittings) so that water does not penetrate Lot 38.
  2. Maintain their hot-water system and connected overflow pipework so that it does not discharge or pressurise common property or Lot 38.
  3. That the owners of Lot 42 reimburse the applicant, pursuant to s281(1)(b) of the BCCM Act, for the reasonable costs of the 22 August 2025 leak-detection test and any proven damage caused by their lot (not exceeding $10,000).
• [14] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1] 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 community management statement (CMS).[2] Further, an adjudicator may make an interim order if satisfied, on reasonable grounds, that one is necessary because of the nature or urgency of the circumstances.[3]
• [15] The Commissioner has referred the application to me to decide whether an interim order is warranted. There is no statutory requirement to obtain comment from other parties before an interim order is decided.[4] In the circumstances, I gave both respondents a limited opportunity to respond to the interim order application.

• [16] An interim order will only be granted if it is necessary due to the nature or urgency of the circumstances. To determine whether an interim order is warranted, an adjudicator generally considers:
  1. whether the application raises a serious legal issue with a likelihood of success at final determination, that is, whether there is any merit to the application; and
  2. whether the balance of convenience favours the interim order being granted. This requires balancing the inconvenience of granting relief now if final orders are ultimately refused against the impact of refusing interim relief if final orders are ultimately granted. Of particular significance is whether an interim order is necessary to prevent serious or irreparable harm.

• [17] A function of the body corporate is to administer the common property and body corporate assets for the benefit of owners in the scheme.[5] The body corporate must act reasonably in doing so, including in making, or not making a decision.[6] A decision of the committee is a decision of the body corporate.[7] The committee also has an obligation to act reasonably in making a decision.[8]
• [18] In order to determine what the body corporate is responsible for maintaining and what is the responsibility of individual lot owners, it is necessary to understand where the boundaries of the lots and common property lie. The lots subject of this application are created under a building format plan (BFP).[9] In this type of survey plan, the boundaries are defined by the structural elements of the building, including the floors, walls and ceilings. 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]
• [19] The body corporate is responsible for maintaining common property in a good and structurally sound condition.[11] Common property includes all utility infrastructure other than utility infrastructure that is solely related to supplying utility services to a lot, is within the boundaries of the lot, and is located other than within a boundary structure for the lot.[12] Relevantly, for a scheme created under a BFP, the body corporate is also responsible for maintaining in good condition roofing membranes that are not common property but that provide protection for lots or common property.[13]
• [20] However, the body corporate is not responsible for maintaining fixtures or fittings installed by the occupier if they were installed for the occupier's own benefit.[14]
• [21] A lot owner must maintain their lot in good condition including any utility infrastructure within the boundaries of the lot (and not part of common property).[15]
• [22] Further, a lot owner is responsible for maintaining in good order and condition, utility infrastructure situated on common property, to the extent the utility infrastructure relates only to supplying utility services to the owner's lot, and is 1 of the following types -
  1. hot-water systems;
  2. washing machines;
  3. clothes dryers;
  4. solar panels;
  5. air-conditioning systems;
  6. television antennae;
  7. another device providing a utility service to a lot.
• [23] For example, where a hot-water system is installed on the common property, but supplies water only to a particular lot, the owner of the lot is responsible for maintaining the hot-water system and the associated pipes and wiring.[16]

• [24] The applicant argues that the body corporate has breached its obligations to administer and maintain common property in good condition, and to act reasonably. She says the body corporate has failed to investigate adequately despite clear evidence and formal requests to do so. Specifically, the applicant relies on her builder's report which she says identified moisture above her kitchen ceiling and along the wall adjoining the laundry, and recommended urgent investigation of roof drainage, balcony membranes, slab penetrations and overflow pipes to determine the source of any water penetration.
• [25] In response, the committee (on behalf of the body corporate) says that the applicant's assertions are unsubstantiated as her builder's report offers numerous suggestions as to where the issue might be but no concrete evidence. The committee says interim orders should be refused as the matter is not urgent and would only waste owners' funds on futile further investigations. Specifically, in relation to the alleged leak, the committee submits:
  1. The assumption made by the applicant that the leak to her feature wall was a result of faulty body corporate pipework and drainage is incorrect. The leak has been investigated and proven to have come from a faulty hot water tap hose in the kitchen of Lot 42 above. The leak was successfully repaired on 28 July 2025 by a qualified plumber.
  2. The leak in the feature wall was not a result of the rain. The leak had started before the rain set in on the weekend of 26-27 July. Further, there was a significant rainfall event on 20-22 August and no leaks were reported.
  3. As the leak was caused by a faulty tap, not by rain, and as it has since been located and repaired, it does not pose a further risk to Lot 38. There is no danger of damage to the unit from potential rainfall.
• [26] The applicant seeks an interim order for the body corporate to arrange an inspection of all relevant common property above or adjacent to Lot 38 that may allow water entry.
• [27] The purpose of an interim order is generally to preserve the status quo pending determination of the application. An interim order will only be granted if it is necessary due to the nature or urgency of the circumstances and where it is necessary to prevent serious or irreparable harm. It will not be made if the only urgency is a desire to expedite a decision on the dispute. At this stage, I see no basis to order the body corporate to inspect the common property for potential water entry. The order sought is not interim in nature. The committee believes the leak has been fixed and that there are no issues with the body corporate infrastructure. The applicant says the evidence she has submitted from her builder suggests otherwise. Whether or not the body corporate has an obligation to carry out further investigations as requested by the applicant will be decided at final orders.
• [28] The applicant says her property is at risk of further damage if there is another significant rain event and so wants temporary steps taken to prevent any potential further water ingress. However, in the current circumstances where:
  1. it is unclear whether there is in fact an ongoing leak and if so what is causing it, or where it is coming from; and
  2. it is unclear whether the leak that previously occurred was the result of rain entering the property or from an internal source,

I am not satisfied there is any basis to make the interim order sought. There being no identifiable source of water entry posing a current risk to the applicant's lot, I cannot see what temporary measures the body corporate can sensibly be ordered to put in place.

• [29] I will also not require the body corporate to reinstate the applicant's laundry ceiling as an interim order. It forms part of the final orders sought. Further investigations are required to determine whether the body corporate is responsible for the repair of the ceiling. If it is found that the body corporate has breached its maintenance obligations resulting in damage to the applicant's lot, the body corporate may be ordered to carry out the repairs to the damaged property, or to reimburse the applicant for the repairs carried out.[17] Whether the body corporate is liable for any of the applicant's repairs will be a question to determine at final orders.
• [30] The applicant asserts the body corporate has a duty under section 163 of the Act to enter lots to investigate suspected defects affecting common property. Section 163 does not obligate a body corporate to enter a lot and investigate in the way the applicant seems to be suggesting. Rather, the section provides the body corporate with a power of entry and sets out the conditions when that power may be exercised. The applicant also asserts that the body corporate has a duty under section 167 of the Act not to allow a hazard or nuisance to interfere unreasonably with another lot. Section 167 does not apply to the body corporate; it applies to the occupier of a lot and imposes a duty on the occupier not to use the lot or common property in a way that causes a nuisance or hazard, or that interferes unreasonably with the use or enjoyment of another lot or common property. I am not satisfied there is any serious legal issue established against the body corporate pursuant to these sections warranting the interim orders sought.

• [31] The applicant seeks an interim order that the owners of Lot 42 take reasonable interim steps to prevent water from their balcony or hot-water services and pipework entering Lot 38, for example, by ceasing use of the defective areas until permanent repairs are complete or final orders are made.
• [32] The applicant says the owners of Lot 42 have failed to maintain their lot in good repair including balcony membranes and hot water fittings. The applicant's kitchen is positioned beneath Lot 42's balcony. It appears that spray testing was conducted on Lot 42's balcony which resulted in water coming through into the applicant's kitchen. The leak detection report says this confirms that the waterproofing in Lot 42 has failed. In regard to Lot 42's hot water system and fittings, it is unclear to me on what basis the applicant asserts these are also in disrepair. Presumably, the applicant is relying on the observations of her builder and the recommendations made in that report.
• [33] The owners of Lot 42 made a very limited submission. They submit that the applicant undertook unapproved renovations to their unit which could have damaged the storm water and plumbing pipes.
• [34] As I outlined earlier, for a scheme created under a BFP, the body corporate is responsible for maintaining in good condition roofing membranes that are not common property but that provide protection for lots or common property.[18] This includes as is the case here, a balcony membrane that forms part of the lot (Lot 42) but which provides protection for the lot beneath (Lot 38). Prima facie, it would appear any defective membrane in the balcony of Lot 42 is the body corporate's responsibility to repair. This will be a matter for final determination.
• [35] In the interim, I see no basis to order the owners of Lot 42 to prevent water from entering the applicant's lot. The obvious remediation step is to repair the membrane but that is not an interim measure. It will only be ordered upon a finding that the membrane has in fact failed and upon determining whose responsibility it is to repair it. Ordering the owners not to use the balcony in the meantime would not serve any meaningful purpose, particularly if the concern is that water is penetrating the balcony from heavy rain.
• [36] In regard to Lot 42's hot water system and fittings, I have no evidence at this stage that it is in a state of disrepair or that it is causing water to enter the applicant's lot. While the applicant may suspect that it contributed to a previous leak, this is an insufficient basis to grant an interim order.

• [37] While the application raises some questions about the legal obligations of the body corporate and Lot 42, I am not satisfied that interim orders are warranted at this time. In the first instance, I will recommend that the Commissioner refer this matter to department conciliation. It may be that some or all of the matters are able to be resolved by agreement between the parties. I would urge both the body corporate and the owners of Lot 42 to consider their maintenance obligations as I have outlined above, noting that failure to comply with these may result in them being liable for any further damage that is sustained to the applicant's lot.
• [38] Finally, as noted earlier, Lesley and Stan Janczyk have been named as respondent owners to this application, but Lot 42 is registered to Stanja Pty Ltd ACN 079 241 651. I cannot make orders personally against Lesley and Stand Janczyk as they are not the registered owners of the lot. Accordingly, the application will need to be amended if it proceeds to final orders.

[9] Building format plans were formerly known as building unit plans

[10] Sections 48C and 49C(4) of the Land Title Act 1994

[11] Section 170(1) of the Accommodation Module

[12] Section 20 of the Act

[13] Section 170(2)(a)(iii) of the Accommodation Module

[14] Section 170(3) of the Accommodation Module

[15] Section 201(3) & (5) of the Accommodation Module

[16] Section 170(4)(a) of the Accommodation Module

[18] Section 170(2)(a)(iii) of the Accommodation Module