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

FAILURE TO MAINTAIN COMMON PROPERTY - LIABILITY FOR CONSEQUENTIAL DAMAGE TO LOTS

MAINTENANCE / IMPROVEMENTS - whether repair works to common property constitute "improvements" or "maintenance".

Sections 152, 159, 281 Body Corporate and Community Management Act

Sections 180 186 Body Corporate and Community Management (Standard Module) Regulation

Building Act 1975 & Standard By-Laws

Ridis v Strata Plan 10308 [2005] NSWCA 246

The Moroccan [2006] QBCCMCmr 729

MAGOG (NO 15) P/ L v Body Corporate for the Moroccan [2010] QDC 70

The Presidents Lodge [2018] QBCCMCmr 226

Morcom and Ors v Campbell-Johnson and Ors [1955] 3 All ER 264

No 9 Port Douglas Road [2006] QBCCMCmr 674

Klinger v Body Corporate for Costa D'Ora Apartments [2007] QDC 300

Oceans Mooloolaba [2019] QBCCMCmr 293

Stella Grande [2017] QBCCMCmr 556

Sydney Trains v Argo Syndicate AMA 1200 [2024] NSWCA 101

Agricultural Land Management Ltd v Jackson [2014] WASC 102

I HEREBY CERTIFY this is a true copy of the order and reasons for decision.

Within 6 months of the date of this order, the Respondent is to perform their statutory duties under section 152(1)(b) of the Act and comply with their imposed obligations with regard to the common property under sections 180(1), 180(2)(a)(ii),(iii) and 180(2)(b) of the Standard Module by carrying out the rectification works and structural repairs to the damaged common property affecting Lot 100, by:

(i) the structural and roofing issues identified in the CRG Report, pursuant to the rectification works as recommended by CRG in the CRG, and

(ii) the roofing issues identified in the RR Report (as concurred by CRG), pursuant to the rectification works as recommended by RR in the RR Report

(b) Co-ordinating the carrying out of the structural rectification works with the Applicant, the Applicant's engineer (CRG) and other lot owners who are affected by the rectification works to the common property, and at such time that the Respondent perceives that the rectification works are complete:

(i) the Respondent must arrange an inspection with CRG to observe the completed rectification works, for the purposes of assessing any further issues that may prevent the commencement of the internal rectification works to Lot 100; and

(ii) in the event that after the inspection, CRG provide further recommendations that contest the completion of the structural and roofing rectification works to the common property affecting Lot 100, the Applicant and the Respondent must:

A. engage an independent engineer for the purposes of providing an independent report; and

B. pay the costs of obtaining the independent engineer's report, on an equal basis.

Pursuant to Sections 281(1)(a) and 152(1)(b) of the Act, within 6 months of the date of this order, the Respondent is to engage an appropriately qualified professional to carry out the internal repairs to Lot 100, identified in the 6 January 2025 Reflex Property Services (RPS) Quotation numbered 3067 (the estimated fees are $32,092.00 (inclusive of GST)) and such repairs shall be at the cost of the Respondent .

I declare that Applicant is not in contravention of section 160 of the Act and section 211 of the Standard Module.

I HEREBY CERTIFY this is a true copy of the order and reasons for decision.

• [1] The Applicant, Mr Leo Anthony Mir (Mr Mir), in his capacity as a personal representative of an owner of Lots 100 and 101 (being Units 509 and 510) and as an owner of Lot 102 (being Unit 511) (the Units), has filed three separate Adjudication Applications, all of which are all based on the identical material facts and the issues that remain in dispute (Related Applications).
• [2] The Related Applications seek identical final orders, with the exception of final order 3 which relates to the respective Units individually. The Applicant wishes to have the Related Applications heard together.

• [3] The Applicant seeks the following final orders:

A final order that, pursuant to section 276(1)(b) of the Body Corporate and Community

Management Act 1997 (Qld) (Act), the Respondent be ordered to perform their statutory

duties under section 152(1)(b) of the Act and comply with their imposed obligations with

regard to the common property under sections 180(1), 180(2)(a)(ii),(iii) and 180(2)(b) of

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

by immediately carrying out the rectification works and structural repairs to the damaged common property affecting Lot 100, by:

(i) the structural and roofing issues identified in the CRG Report, pursuant to the rectification works as recommended by CRG in the CRG Report;

(ii) the roofing issues identified in the RR Report (as concurred by CRG), pursuant to the rectification works as recommended by RR in the RR Report;

(b) Co-ordinating the carrying out of the structural rectification works with the Applicant, the Applicant's engineer (CRG) and all other relevant stakeholders for which are affected by the rectification works to the common property, and at such time that the Respondent perceives that the rectification works are complete:

(i) the Respondent must arrange an inspection with CRG to observe the completed rectification works, for the purposes of assessing any further issues that may prevent the commencement of the internal rectification works to Lot 100; and

(ii) in the event that after the inspection, CRG provide further recommendations that contest the completion of the structural and roofing rectification works to the common property affecting Lot 100, the Applicant and the Respondent must:

A. engage an independent engineer for the purposes of providing an independent report; and

B. pay the costs of obtaining the independent engineer's report, on an equal basis;

(iii) in the event that CRG assess that the rectification works to the common property, has caused property damage to the internal elements of Lot 100 to an extent that is greater than the current internal damage to Lot 100 (as dealt with in Order 2 below), or:

A. is associated with the existing defective roof structure or the result of the structural rectifications; or

B. is a consequence of further delays in the Respondent carrying out the structural rectifications to the common property affecting Lot 100, the Respondent is ordered to make good the further property damage caused to the internal elements of Lot 100, at the Respondent's costs, pursuant to Section 281(1)(a) of the Act.

A final order that, pursuant to Section 281(1)(a) of the Act, given the Respondent's strict statutory duties as set out under section 152(1)(b) of the Act, the Respondent be ordered, at the Respondent's costs, to engage an appropriately qualified professional to carry out the internal repairs to Lot 100, identified in the 6 January 2025 Reflex Property Services (RPS) Quotation numbered 3067 (the estimated fees are $32,092.00 (inclusive

A declaratory order that, by virtue of the Respondent's contravention of section 152(1)(b) of the Act as stated in Order 1, the Applicant is not in contravention of section 160 of the Act and section 211 of the Regulation.

• [4] The Respondent is the Body Corporate for the Top of the Mark CTS 11751 which consists of 177 lots and common property, registered on BUP No. 3410. Top of the Mark is located on the eastern side of Orchid Avenue and consists of a 4 level podium containing commercial tenancies and carparking space. A residential tower approximately 13 stories high is located on the northern end of the podium. It was constructed in 1979.
• [5] Townhouses are located on the eastern and southern sides of the podium. Townhouses 509 to 511 are located on the eastern side of the podium. The building was constructed in 1979 and the Pacific Ocean is located approximately 200 metres to the east of the building.
• [6] The applicant says that maintenance of the roofing structure has been neglected and that the damaged common property roof structure is the cause of longstanding internal and external water ingress damage to Lots 100, 101, and 102 (being units 509, 510, and 511). They say that the water ingress has been ongoing since at least 27 August 2020, and is the basis for this Adjudication Application.
• [7] The applicant says the Body Corporate has not carried out any rectification works to the damaged common property roof structure, with the exception of temporary "make safe works" that were necessary to prevent the damaged roof structure from complete collapse and irreparable condition.
• [8] Since the Leaks were first reported on 27 August 2020, they made numerous attempts at self resolution with the Body Corporate (predominately via communications with the Body Corporate Manager, Pinnacle Strata Pty Ltd (BCM) without success.
• [9] They say that throughout August 2020 to August 2022 (which they refer to as the "Assessment Period"), they frequently engaged in correspondence with the Body Corporate and relevant third parties, to facilitate the assessment of the damaged roof structure and the losses claimable by the owners of the Units.
• [10] The third parties referred to above include the following:

(a) Cozens Regan Group (CRG), the structural engineer engaged by the Applicant

(b) contractors and/or service providers engaged by the Body Corporate, including:

(i) insurer's claim adjuster, Crawford & Company (C&C);

(iv) structural engineer, Structural Diagnostics (SD); and

(v) body corporate's preferred builder, Down Under Constructions (DUC)

• [11] During the Assessment Period, the parties obtained structural rectification reports from their respective engineers, and quotations for the required rectification works, which are set out below.
• [12] On 12 August 2022, they sent two substantive letters to the Body Corporate via their Lawyers and the BCM, which detailed (amongst other things):

(a) the history of the dispute;

(b) the respective engineer reports and rectification works quotations;

(c) the legal liability of the Body Corporate to carry out the rectification works;

(d) the loss and damage sustained by the owners of the Units;

(e) the appropriate steps for the Body Corporate to mitigate further losses;

(f) their intention to commence proceedings if the resolution of all matters was not forthcoming.

• [13] Following this, the Body Corporate obtained a quotation from Amalgamated Group (for the rectification works) to be voted on at the AGM set for 29 September 2022. Although the applicant raised concerns that the Amalgamated Group quote was inadequate, the Body Corporate approved the quote at the AGM on 29 September 2022.
• [14] The applicants sent numerous items of correspondence to the Body Corporate, as set out in chronological form, which they say confirms:

(a) the Body Corporate was on notice of the potential rental abatement claim they may bring against the Body Corporate;

(b) the Body Corporate was on notice that they were willing to commence proceedings against the Body Corporate.

(c) by virtue of the BCM advising that the Body Corporate was "gearing up to carry out the roof repairs" and other statements to that effect, all of the Units have been vacant since March 2024 (with Unit 510 being vacant and unfit for habitation since December 2020);

(d) throughout 2020 to date, they have sought to resolve the issues in dispute internally with the Body Corporate but to no avail.

• [15] The applicant says the Body Corporate has:

(a) failed to meet the demands sought by them in relation to the loss of rent claims;

(b) not undertaken any rectification works to the external roof or the roof cavity structure, which has contributed to the gravity of the Leaks and associated damage;

(c) by virtue of the inherent delays in addressing the damaged common property, prevented the internal repairs to the Units from being completed, which has directly increased the losses and damages claimable by the owners of the Units.

• [16] The applicant says the damage to Lot 100 includes:

(a) Water damaged and mouldy plasterboard walls and ceilings

(b) Collapsed balcony ceiling- Villaboard lining missing

(c) Water stained/ mouldy carpet in lounge

(d) Other stained carpets

• [17] The applicant has provided a timeline of events set out in a table titled "Chronology". This includes a detailed history of the dispute and all relevant correspondence between the parties to date.[1]

On 27 August 2020 the Applicant reported the Leaks to the Body Corporate and provided a detailed report including photographs.

On 08/12/2020 the tenants of Unit 510 vacated due the inhabitable condition of the Lot and on 10/12/2020 their letting agent advised the Body Corporate of the unhabitable condition of Unit 510.

On 14/12/2020 a storm cause further damage to the roof structure and balconies of the Units.

On 11/01/2021 C&C (the Insurance Loss Adjuster) inspected the further damage caused to the roof structure in Unit 511, stating that "the ceiling of the unit was about to collapse".

On 13/01/2021 their letting agent sent an email to C&C, who engaged JLG to inspect the property damage to the Units.

On 4/01/2021 their letting agent sent an email to C&C and the BCM, wherein the unhabitable condition of the Units was raised.

On 5/01/2021 C&C arranged JLG to make temporary 'make safe' repairs for Unit 511, using props and temporary support beams.

On 0/01/2021 their letting agent sent an email to C&C, confirming that Unit 510 was uninhabitable as a result of the Leaks.

On 9/01/2021 their letting agent sent an email to the BCM, stating:

the Building Manager and yourselves were made aware of the Leaks on 27/08/2020 and nothing has be addressed."

"unit 510 is un-rentable in the current state... an applicant pulled out after the storm caused the ceilings to collapse"

"these issues need to be dealt with in a timely manner and clear communications moving forward from all parties to mitigate the Owners losses.

On 8/01/2024 The BCM responded to the above email outlining that the Body Corporate's roofing contractor had been onsite investigating the cause of the water ingress. 546 - 547

On 2/01/2024 The BCM advised that the Body Corporate is committed to rectifying the works. The Owners point out that the Body Corporate has not confirmed that they will rectify the outstanding damage to the Units nor cover the loss of rent claims.

On 9/02/2024 their letting agent sent an email to the BCM, advising:

after our meeting with Justin from Tender Guide Consultants and Darrick from Amalgamated at the 509, 510 and 511 properties the seriousness of the scope of works required by the Body Corporate and Committee at the building and the fact that we can no longer guarantee the safety and well being of the tenants residing at units 509 and 511, the owner Mr Mir has had to give both apartments tenants Notice to Leave for non-liveability.

On 12/06/2024 their letting agent sent an email to the BCM, advising that the tenants in Unit 509 vacated on 11/03/2024, and the tenants in Unit 511 vacated on 16/03/2024.

On 15 August 2024 a Budget Committee Meeting was held, the minutes of which included the following:

The Committee held considerable discussion on the ongoing repairs required to the eastern townhouses. It was noted that Justin Percy from TenderGuide Consultants has been engaged to project manage the repairs and liaise with all stakeholders. It was noted that Amalgamated Group who has been engaged to carry out the previously approved roof beam repairs has also been requested to provide fee proposals on the additional repairs required by the Body Corporate. This includes the replacement of the box gutter along the eastern townhouse roof as well as spalling repairs to the external building façade which can be completed whilst access is available.

RESOLVED THAT the Committee authorise an expenditure of up to $200,000.00 plus GST to carry out repairs to common property, structural components of a lot and utility infrastructure.

The Committee discussed the internal damage repairs to Lots 99-102 (Units 508-511) and felt it was prudent for the owners to carry out the repairs to their unit using their preferred tradespeople and seek indemnification from the Body Corporate which has been the process adopted by this Body Corporate in similar issues that have occurred in the past.

RESOLVED THAT the Body Corporate Committee make a cash settlement offer to the owners of Lots 99- 102 (Units 508-511) for resultant damage to their lot as follows:

AND FURTHER THAT the Body Corporate Manager be instructed to present these offers to the respective lot owners and/or their representatives.

• [18] However as at the date of the application, the applicant says that the respondent has not undertaken any rectification works to the external roof or the roof cavity structure, which has contributed to the gravity of the Leaks and associated damage which is continuing.
• [19] Over the last 4 years the parties have obtained a number of expert reports from engineers and builders experienced in undertaking remedial work, as detailed below:

(a) Report from Structural Dynamics dated 9 July 2021, obtained by the body corporate

(b) Report from Roof Response (RR Report) dated 5 October 2021, obtained by Johns Lyng

(c) Quote from insurer's builder, Johns Lyng Group (JLG) engaged by the insurer to quote on repairs.

(d) Quote from Amalgamated Group Property Maintenance dated 22 February 2022, obtained by Body Corporate re steel refurbishment rectification works, following inspection & review of Structural Diagnostic Report.

(e) Report from Cozens Regan Group Pty Ltd re structural adequacy of the building, collapsed ceilings and structural integrity of the roof structure.

(f) Quote from Down Under Constructions dated 25 February 2022, obtained by the body corporate

(g) Quote from Reflex Property Services to applicant dated 6 January 2025

(h) Report from Edge Consulting Engineers dated March 2025.

• [20] The applicant says the quotations from builders engaged by the Body Corporate are inadequate, or otherwise fail to address the matters of concern clearly detailed in the parties respective Engineers' reports.
• [21] The applicant says that:

(a) the Respondent has not undertaken any rectification works to the external roof or the roof cavity structure, which has contributed to the gravity of the Leaks and associated damage;

(b) by virtue of the inherent delays in addressing the damaged common property, prevented the internal repairs to the Units from being completed, which has directly increased the losses and damages claimable by the owners of the Units.

• [22] The Body Corporate denies that it has failed to maintain the common property. It says there is currently a project underway to rectify deficiencies in the roof's structural steel. It says delays in commencing this project arose from the Applicant's efforts to include work that they do not believe to be the Body Corporate's responsibility.
• [23] The respondent body corporate denies that it failed to maintain common property and says the application should be dismissed. It is argued that the Application is misconceived.
• [24] Firstly it is alleged that the Body Corporate has failed to maintain roof structures, and that led to internal ceilings dropping in two lots. The respondent body corporate acknowledges that there are some structural issues in the roof involving corrosion, but says there is little to no evidence that they contributed to the internal ceiling damage. It is argued the compelling evidence is that a storm was the proximal cause of the ceilings dropping.
• [25] Secondly, the respondent body corporate says that it is obliged to maintain the structure to the standard to which it was originally designed and installed, and not to improve it to comply with modern wind loading standards, or to change the roof pitch.
• [26] Thirdly the respondent body corporate says the applicant has assumed that water only entered the three Lots through the roof, thereby making the Body Corporate responsible for all the water damage. However the respondent says there is evidence that the primary cause of the water entry that caused most of the damage in the Lot was a balcony overflow within the Lot1 and that the overflow happened because the Applicant failed to ensure that his tenants kept the balconies free of rubbish.
• [27] The Body Corporate says it has been working to effect repairs that are its responsibility, but have been hampered by:

(a) successive storm events have enlarged the scope of work.

(b) the difficulty of obtaining quotations in the current construction market.

(c) the Applicant demanding expanded scopes of work for his three Lots, where responsibility was either the applicant's, or was unclear.

• [28] It says the Applicant has been offered the proceeds of the insurance settlement for damage occasioned by the First Storm Event in August 2020 but refused to give his bank details to allow the transfer. Instead of effecting repairs, he has left his Lot unrepaired and this has contributed to mould growth.
• [29] Next the body corporate says no one has been engaged to carry out internal repairs to the Lot because liability remains uncertain. It believes that the best way to address this is for the Applicant to make the repairs and then, if he considers that the Body Corporate is liable, to make a claim on the Body Corporate
• [30] The Lot is one of a series of multi-level townhouses (lots 97-102) that are accessed from the top external level of the Scheme's four level podium. The upper level is used for the main living area, laundry, and kitchen. The living area opens onto an east facing balcony which is about 200 metres away from the ocean. The lower level is accessed from the top level by stairs within the Lot, and contains bedrooms and bathrooms.
• [31] The roof over the Lot is constructed from Klip-Loc sheet metal roofing which clips onto, and is supported by, a structural steel frame involving steel parallel flange channels (PFC) and rolled steel purlins. The steel frame is supported on masonry walls. The body corporate says that the roof is generally constructed with a low pitch of "about" 1° over most of the Western side of the Lot, but with a steep 45° pitch over the balcony on the Eastern side.
• [32] The ceiling inside the Lot, other than the upper balcony, uses a suspended plasterboard ceiling system involving upper hanging rods that attach to the purlins, and lower hanging rods, from which the plasterboard ceiling is suspended. Spring steel clips join the upper and lower hanging rods.
• [33] The balcony ceiling originally had a suspended ceiling system too, but at some time before the relevant storms, the suspension system had been replaced with fixed timber framing to which the balcony ceiling was fixed. After the 13 December 2020 storm, a balcony ceiling was constructed using plywood sheeting.
• [34] The Body Corporate argues that proximal cause of the balcony ceiling damage was the storm, and that the applicant has not shown that the as designed and as constructed roof could ever have sustained it. Therefore, it is argued that there is no basis to conclude that the cause of the roof leaking, or ceilings dropping, was due to any failure to maintain the roof structure.
• [35] The Body Corporate does not dispute reports of rusted steel members being found in the as-constructed ceiling, and says that some steel members may need to be replaced due to corrosion, but some are just require maintenance.
• [36] They argue that following Cyclone Tracey in 1974, Australia substantially upgraded its wind loading standard so that structures would better withstand high wind loading. However they say that whatever wind loading standard the Scheme buildings were designed to in the late 1970s, was not a post-Tracey design standard - because the improved wind loading standard was not released until 2002**.** Further, they say that like every building built before 2002, the Scheme buildings were never designed to the modern wind loading standards. Bringing the roof structure up to that standard is an improvement, for which the Body Corporate must pass a resolution pursuant to s 186 Regulation. The Body Corporate says it is under no obligation to improve common property.
• [37] The Respondent says that examples of where the Applicant is effectively demanding improvements include:

(a) the internal ceiling suspension system;

(b) the balcony ceilings; and

(c) changing the roof pitch.

• [38] The Body Corporate also says it is not denying that any water entered through the roof, but says that neither the Roofing Response nor Cozens Reports prove that all water entry was through the roof. They argue that while water has entered through the roof sheeting or flashings and caused damage to a ceiling or upper wall as it did in the First Storm event, the damage in the lower part of the top level walls, carpet and flooring of the top level, and to the lower level of the Lot, were more likely to have been due to balcony flooding caused by the Lot's balcony drain being blocked.
• [39] The respondent says that Roofing Response never looked in the roof cavity to determine whether any water had actually entered through the roof, but rather proceeded on the basis that the author had been told that was the mechanism. They also say that Cozens, in turn, relied on the Roofing Response Report and assumed it was correct.
• [40] The balcony drains run through the parapet wall, and any blockage on the Lot side would be unlikely to self-clear. In any case, the evidence of rubbish on the balconies (paras 90(a)(i)(C) and 90(a)(ii)(B)) suggests that the blockages arose from the occupant's failure to keep the balconies free from rubbish, and so are not the Body Corporate's responsibility - s 211(3) Regulation
• [41] The respondent says there appear to have been four storm events relevant to the Related Applications:

(a) the first storm event occurred in August 2020 (First Storm Event). The respondent says the first report of damage to the Three Lots seems to have been when water leaks occurred during the storm event of August 2020. It notes that a quote was received from Vaun Management on 18 November 2020[2] to fix shows water damaged ceilings & repaint the ceilings in 4 lots. Attached were three photographs of water damaged ceiling and peeling paint.

(b) The second storm event occurred on 13 December 2020. The problems that arose from this event included that the ceiling had dropped in some of the Three Lots and water had pooled on their balconies.

(c) The third storm event occurred on 28 February 2022, after which Unit 509 (Lot 100) was reported to have a water leak. The respondent says Unit 510 (Lot 101) remained dry, and Unit 511 (Lot 102) was not inspected because the tenants denied access.

(d) The fourth storm event occurred on 15 February 2024 . The respondent says it is unclear whether this caused any further damage.

• [42] Next the respondent advises that a number of condition reports have been prepared over time, outlined damage to the lots.
• [43] Report by applicant's letting agent dated 12 January 2021. [3]

Ceiling collapsing with timber props holding up ceiling

• [44] Report by applicant's letting agent dated 19 January 2024.[4]

Temporary plywood balcony ceiling water damaged mouldy

• [45] A firm named "Tender Guide" also conducted assessments on 2 February and 11 March 2025, and reported additional damage as follows:

Lounge carpet soaked & needs to be removed due to mould

Lounge carpet soaked & needs to be removed due to mould

Drain blocked on balcony causing water to back up into unit

Drain blocked on balcony causing water to back up into unit

• [46] The body corporate acknowledges that the ceiling water marks and peeling paint were caused by the First Storm Event in August 2020. However it says the Body Corporate's insurer paid out this claim. All that is required for the Applicant to be paid is for him to give his banking details so that the funds can be disbursed to him. It is submitted that there is no basis for affording the Applicant any further relief for this damage.
• [47] It is acknowledged that the ceilings were lost in the Second Storm Event on 13 December 2020. However they say the structural timber supporting the ceiling remained intact and structurally sound (para 61(c) for Lot 100, para 65(d) for Lot 101, para 69(d) for Lot 102).
• [48] The lot 100 dining room carpet and wall were noticed to be stained after the Second Storm Event on 13 December 2020. However the respondent argues that as this room is on the top level of the Lot, the respondent believes it is likely that the damage to carpets and lower walls arose when the balcony overflowed due to drainage issues.
• [49] It was evident that there was a piece of loose skirting board and 1-2 floor tiles in the lounge room were loose. Again, it is argued that as this room is on the top level of the Lot it is likely that the damage arose from the balcony drainage issues.
• [50] There were some black marks on the plywood balcony ceiling of Lot 100 showing. The respondent says the Applicant is responsible for maintaining his Lot in good condition pursuant to s 211(3) Regulation, and so the Applicant's claim should be denied in this regard.
• [51] There was a leak in Lot 100 coming onto the carpet and into the downstairs bedroom and fire alarm after the Fourth Storm Event on 15 January 2024. This room in on the bottom level of the Lot, and it is again claimed that it is likely that the damage arose from the balcony drainage issues.

• [52] As to the complaint about fireproofing of dividing walls in the roof cavity, the respondent says that neither the Cozens Report (para 49 and Application Annexure F p356) nor the EDGE Report (para 52(b) and Exhibit 1D p 57) were able to determine whether the party walls were correctly fireproofed.
• [53] It is submitted that the Adjudicator should not make orders regarding the fireproofing when they have not yet been shown to be defective; and even if a party wall did not comply with current building standards, it is not known if the current construction complied with the building standards of the late 1970s.
• [54] To the extent that improvement is contemplated, improving the fireproofing requires a resolution by the Body Corporate pursuant to s 186 Regulation. Whatever responsibility the Body Corporate may have to maintain the fireproofing, it has no obligation to improve it.

• [55] Section 276 of the Act relevantly provides as follows:

An adjudicator to whom the application is referred may make an order that is just and

equitable in the circumstances (including a declaratory order) to resolve a dispute, in

(a) a claimed or anticipated contravention of this Act or the community

(b) the exercise of rights or powers, or the performance of duties, under this Act or

• [56] In summary, the principal outcomes sought by the applicant are:

That the Respondent be ordered to perform their statutory duties under section 180 of

(i) the structural and roofing issues as recommended by CRG in the CRG Report;

(ii) the roofing issues identified in the RR Report (as concurred by CRG),

That, pursuant to Section 281(1)(a) of the Act, the Respondent be ordered to carry out the internal repairs to Lot 100, identified in the 6 January 2025 Reflex Property Services (RPS) Quotation numbered 3067 (estimated at $32,092.00 (inc GST)).

• [57] From the documentation provided, it is evident that on a number of occasions since 27 August 2020, a large volume of rainwater has entered through the roof into the living areas of lots 100, 101 and 102, causing extensive damage to the plasterboard ceilings and walls. This is evident from correspondence between the applicants, their letting agent, tenants, the body corporate manager and Insurance Loss Adjuster.[5] This includes correspondence from tenants regarding damaged and collapsing ceilings following rain events,[6] tenants of lots 100,101 &102 have either vacated the units or obtained a rent reduction.
• [58] The correspondence is accompanied by the Inspection Report dated 12 January 2021 which contains photographs[7] showing the following damage in lot 100:

(a) Water damaged, peeling and mouldy paintwork on ceilings

(b) Water damaged plasterboard ceilings and walls

(c) Collapsed balcony ceiling- Villaboard lining missing

(d) Water stained/ mouldy carpet

(e) Debris on balcony

(a) Water damaged plasterboard ceilings and walls

(b) Water damaged, peeling and mouldy paintwork on interior ceilings

(c) Collapsing internal ceilings

(d) Collapsed balcony ceiling- Villaboard lining missing

(e) Debris on balcony

(a) Water damaged, peeling and mouldy paintwork on ceilings

(b) Damaged plasterboard ceilings and walls

(c) Collapsing ceilings that are being held in place with acrow props

(d) Collapsed balcony ceiling- Villaboard lining missing

(e) Debris on balcony

• [61] Following the second storm event which occurred on 13 December 2020 the Body Corporate, and the Body Corporate insurer's loss adjustor investigating the Leaks, (Crawford & Company) were advised that the ceilings were about to collapse. Temporary 'make safe' repairs with the use of props and temporary support beams were arranged by the loss adjustor and placed in Unit 511 on 15 January 2021.
• [62] On 30 August 2021, the loss adjustor sent an email to Pinnacle Strata and others advising that the insurer had determined that the claim for internal repairs to the Units would be cash settled for the sum of $20,181.88 (excluding GST and net of $25,000 policy excess), and that the insurer would not accept any further loss of rent claims for the Units (which had been settled up to 31 July 2021). The insurer also advised that there would be no coverage for any further damage which occurred as a result of failure to undertake the necessary maintenance.

• [63] As outlined by the respondent, a subsequent condition report dated 19 January 2024 was prepared by the applicant's letting agent. In essence this included the damage previously recorded but also noted that There was a leak in Lot 100 coming onto the carpet and into the downstairs bedroom and fire alarm after the Fourth Storm Event on 15 January 2024.
• [64] Also as outlined by the respondent, the Tender Guide Assessments of 2 February and 11 March 2025 reported that in Lot 100 the lounge carpet was soaked & needed to be removed due to mould

Was Damage Attributable to Failure to Maintain Common Property?

• [65] I am of the view that the weight of the evidence leads to the conclusion that the roof and structural framework for the roof, are defective and in need of repair. I therefore follows that the Body Corporate has neglected to adhere to and have consequently breached their legislative maintenance responsibilities prescribed under sections 180(1) and 180(2) of the Standard Module and consequently section 152(1)(b) of the Act.
• [66] Section 180 of the Standard Module relevantly provides:

180 Duties of body corporate about common property

(1) The body corporate must maintain common property in good condition, including, to the extent that common property is structure in nature, in a structurally sound condition.

(2) To the extent that lots included in the community titles scheme are created under a building format plan of subdivision, the body corporate must-

(i) railings, parapets and balustrades on (whether precisely, or

for all practical purposes) the boundary of a lot and common property; and

(ii) doors, windows and associated fittings situated in a boundary wall separating a lot from common property; and

(iii) roofing membranes that are not common property but that provide protection for lots or common property; and

(b) maintain the following elements of scheme land that are not common property in a structurally sound condition-

(iii) essential supporting framework, including load-bearing walls.

(4) To avoid doubt, it is declared that, despite an obligation the body corporate may have under subsection (2) to maintain a part of a lot in good condition or in a structurally sound condition, the body corporate is not prevented from recovering an amount of damages from a person (whether or not the owner of the lot) whose actions cause or contribute to damage or deterioration of the part of the lot.

• [67] The duty to maintain involves an obligation to keep something in proper order by acts of

maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists.[8] Therefore the body corporate is obliged not only to attend to cases where there is a malfunction, but also to take preventative measures to ensure that there not be a malfunction.[9] The duty extends to require remediation of defects in the original construction.

• [68] The parties have obtained a number of expert reports from engineers and builders experienced in undertaking remedial work, as detailed below:

(a) Report from Structural Dynamics dated 9 July 2021, obtained by the body corporate

(b) Report from Roof Response (RR Report) dated 5 October 2021, obtained by Johns Lyng

(c) Quote from insurer's builder, Johns Lyng Group (JLG) engaged by the insurer to quote on repairs.

(d) Quote from Amalgamated Group Property Maintenance dated 22 February 2022, obtained by Body Corporate re steel refurbishment rectification works, following inspection & review of Structural Diagnostic Report.

(e) Report from Cozens Regan Group Pty Ltd re structural adequacy of the building, collapsed ceilings and structural integrity of the roof structure.

(f) Quote from Down Under Constructions dated 25 February 2022, obtained by the body corporate

(g) Report from Edge Consulting Engineers dated March 2025.

(h) Quote from Reflex Property Services to applicant dated 6 January 2025

Structural Dynamics Report (SD Report) obtained by the body corporate

• [69] I note that on 9 July 2021, the body corporate obtained the "Residential Townhouse Roof Report" from Structural Dynamics (SD), a structural engineering firm engaged by the body corporate to inspect the structural framing elements within the external balcony extents of the townhouse apartments, lots 100, 101 and 102. This was to confirm the structural integrity of framing elements prior to reinstatement of soffit linings, following recent storm damage which was the subject of an insurance claim.
• [70] Amongst other things, it noted that the townhouse roof framing structure comprises primary structural steel PFC roof beams and RHS truss section supporting light gauge steel purlins.
• [71] Balcony soffits were previously supported by a suspended ceiling system which has been replaced by temporary timber framed soffit, supporting plywood soffit linings.
• [72] The Units are categorised in the SD Report as "risk category Level 1". The Report includes photographs that evidence heavy corrosion and rusting of significant support beams and structural elements of the balcony roofs.
• [73] The SD Report recommends the removal and replacement of the more heavily corroded elements, as well as resurfacing and application of a rust preventative paint system to the more structurally sound elements.

Report from Roof Response (RR) dated 5 October 2021, obtained by Johns Lyng

• [74] On 6 October 2021, a copy of an Inspection Report from Roof Response Report (RR Report) 5 October 2021, obtained by Johns Lyng Group, the builder engaged by the insurer.
• [75] The RR Report was prepared following an inspection of the external aspects of the roof above the units on 23 September 2021. It identified a number of defective elements of the roof, including in terms of both design and installation. In particular, the report identified:

(a) the roof pitch is insufficient in certain areas,

(b) insufficient and inadequately fixed flashing

(c) poor joins

(d) deteriorated seals, and

(e) areas of rust and corrosion.

• [76] It recommended replacement of the roof sheeting and correction of the pitch of the roof. Alternatively, if more basic 'maintenance' works were carried out, no warranty could be provided, given that the pitch of the roof was below the manufacturer's guidelines.

Johns Lyng Group - scope of work / tender dated 27 October 2021

• [77] On 27 October 2021, Johns Lyng Group provided a scope of work / tender document in respect of the repairs which they considered to be necessary, in the sum of $344,756.50. These works included the following:

(a) Remove and replace roof sheeting - 0.42bmt Kliplok Colorbond Ultra. Approx. 517m2, with an allowance of $4000.00 to pack required purlin members to achieve required fall for sheeting.[10] > > (b) new tray flashings to skylights, all penetrations, pop up roof area and barge > > (c) new dektites to all vent pipes/ flue pipes. > > (d) New K flashings as required Replace 900mm x 900mm domes > > (e) new safety mesh and insulation blanket to entire roof area

Replace steel beams and purlins as identified by Engineer.

Clean, prep and paint rusty steel members as outlined by engineer

install framing to facilitate installation of FC Villaboard ceiling.

Remove all existing floor tiles and prepare slab for installation of new tiles apply waterproofing membrane in accordance with current Australian Standards. Supply install porcelain Floor/Skirting tiles to best match existing flooring

• [82] On 22 February 2022, the Body Corporate obtained a quotation for steel rectification works in the amount of $52,613.00 inc. GST (AG Quotation 1).
• [83] Works to Steel Framework as outlined on the Structural Diagnostics Plan SK-01 /Pl:

B3 - Existing 150PFC Beam to be removed (does not need to be replaced)

Cozens Regan Group Report (CRG Report) July 2022, obtained by Applicant

• [84] The Applicant commissioned Cozens Regan Group Pty Ltd, structural engineers, to conduct a site inspection and provide a report into the structural state of the entire roof. The CRG Report dated July 2022 was provided to the Body Corporate on 12 August 2022.
• [85] The CRG Report identifies serious structural defects with respect to the Units (in particular, the roof), including:

(c) significant water damage of ceilings and walls and associated mould growth;

(d) loose masonry walls nearby the adjoining roof structure

• [86] The CRG Report identifies serious defects with respect to the Structural steel work:
  • Extensive corrosion of the structural steel support beams and purlins is visible
    • Within the ceiling cavity, it is evident that purlins are corroded and it appears that some bridging members between the roof purlins are missing and need to be replaced.
    • Steelwork over the balconies will require replacing with hot dip galvanized due to the severity of corrosion.
    • Some existing members (M12 threaded rod) may need to be replaced due to corrosion or at least cleaned and painted similar to the structural steel work.
• [87] The report concludes that the roof requires complete or partial replacement of the entire suspended ceiling system. It also states that structural steel support beams and purlins should be replaced as required, and that other beams and purlins should be cleaned and painted with rust preventative paint.
• [88] It recommended this work take place after the ceiling had been removed to provide full access to the structural roof framing.

• [89] It was noted that the roof structure is structural steel framing, clad with Klip-Loc metal sheet roofing. The roof is generally constructed with a low pitch which changes to a steeply pitched roof over the verandas. The roof report supplied indicates significant issues with the general finishing of the roof such as roof pitch, joints, flashings and sealants.
• [90] The noted roof pitch of less than 1 degree fall in the report is below the minimum requirements set out in the National Construction Code to ensure water flow velocity and less than the roof sheeting manufacturer's minimum requirements.
• [91] Water damage to the ceilings is generally due to the poor condition of the roof and the associated flashings and seals. Adding to this is virtually no fall in the roof, which is most likely allowing water to pond on the roof in heavy rain and be blown in through poorly sealed joints and penetrations.
• [92] The entire suspended ceiling system and ceiling will require replacing as will the structural steel roof framing over the balconies. The remainder of the structural roof framing will require rectification works to replace, clean and repaint structural members.

• [93] The interior ceilings all have the same issue, with townhouse 511 being the worst affected. The ceilings are suspended from the structural roof system and the environmental conditions caused from being near the ocean has corroded the spring steel brackets in the hanging system to the point of failure. The ceiling is therefore no longer being adequately supported from the roof structure by the hanging system.
• [94] The exterior ceilings over the balconies have all collapsed due a storm event which reportedly occurred in December 2020. The cause of the collapse is the corrosion of the ceiling hanging brackets due to the close proximity to the ocean. The potential wind gusts and pressure changes that occurred during the storm combined with the failed support system were sufficient to bring the ceiling down. These ceiling have been temporarily rectified using timber framing and sheet ply to seal the ceiling cavity.
• [95] It is important these external ceilings be repaired and sealed as matter of urgency to avoid accelerated deterioration due to corrosion of the remaining structural steel. Rectification works would involve providing an entirely new ceiling and hanging system. It is highly recommended the external ceilings over the balconies be adequately sealed to minimise the incursion of salt air in the prevailing south easterly winds.

• [96] In unit 509 Cracking and minor sagging of the ceiling were visible but not to the same extent as Townhouse 511. No propping was in place. Inspection of the ceiling cavity reveals failure of the suspended ceiling system due to corrosion of the hangers. The spring steel brackets which join the upper and lower hanging rods have corroded to the point of complete failure in many of the hangers which are generally located at approximately 900 centres. The ceiling is unsupported in many areas and in danger of collapsing.
• [97] The ceiling to the balcony has been replaced with temporary timber ply sheeting after it collapsed. Inspection of the ceiling cavity reveals this ceiling was also supported by a suspended ceiling system hung from the roof purlins. The hanging supports are corroded or non-existent (the hangers may have been removed when installing the temporary timber frame & ceiling). A timber framing system has been installed to support the temporary timber ceiling.
• [98] While townhouse 511 has temporary timber frames supporting the ceiling, these frames are inadequate, and it is our opinion the ceilings of all units could potentially collapse anytime.
• [99] The entire suspended ceiling system of all townhouses will require replacing.

• [100] Ponding water was noted outside townhouses 510 & 509 with drains located within metres of the ponding water indicating incorrect or inadequate fall in the tiles.
• [101] Mould to the western wall of the stair well in Townhouse 509 is mostly caused by moisture penetrating the building. The source of the moisture is difficult to determine and could be coming from the external podium slab or through the roof and tracking down the wall to the stair landing. Rectification will require determining the source of the moisture and sealing the area involved whether it be the roof or the podium slab.
• [102] The water ponding outside the entry way to the units is indicating incorrect and/or inadequate falls to drainage points. This is detrimental to maintaining a watertight structure. It is recommended the falls in this area be rectified. The waterproof membrane in this area should also be checked and upgraded as required
• [103] Down Under Constructions quote dated 25 February 2022, obtained by the body corporate

(a) Works to Steel Framework as outlined on the Structural Diagnostics Plan SK-01 /Pl:

B3 - Existing 150PFC Beam to be removed (does not need to be replaced)

(b) Site measure existing beams and purlins.

(c) Fabrication of new structural items.

(d) Removal of existing area of soffit to gain access.

(e) Removal of damaged beams and installation of new items.

(f) Treatment of purlins and beams as outlined on the project documentation

(g) Removal of a section of roofing from unit 511. ($6,000 + GST)

(h) Reinstate soffits to balconies effected during the works.

(i) Painting to the balcony soffits only.

(j) No works have been allowed within the units.

• [104] Report from Edge Consulting Engineers dated March 2025.

(a) Identifies serious corrosion of structural steel and purlins

(b) Identifies serious corrosion of roof sheeting and flashings

(c) Recommends replacement of the roof and flashings,

(d) Recommends replacement of purlins where corroded (other than localised surface pitting)

(e) Recommends repair or replacement of steel beams & connections depending on the level of corrosion.

• [105] I believe that the above reports establish that Water damage to the ceilings is generally due to the poor condition of the roof and the associated flashings and seals. Adding to this is virtually no fall in the roof, which is most likely allowing water to pond on the roof in heavy rain and be blown in through poorly sealed joints and penetrations.
  • [106] A comprehensive inspection Report was provided by Roof Response (RR Report) on 5 October 2021 following an inspection of the external aspects of the roof above the units, on 23 September 2021. The report found that the roof was defective due to a combination of defective design, poor installation and deterioration of sealant used on the flashing joins which are depicted in 14 photographs contained in the report.
• [107] More specifically the report contained the following findings regarding probable sources of water ingress:

(a) Around skylights, silicone seals have deteriorated and joints to the flashings are poorly sealed

(b) In high winds and heavy rainfall it is likely that water is splashing up underneath the lip

(c) Flashings around ductwork are poorly sealed and ductwork is rusted

(d) Ingress around flue pipes appears to be from deteriorating or missing silicone and during high wind, water is getting underneath the tray flashings due to not being fixed down

(e) tray flashings have approximately 50mm lap whereas a minimum of 100mm lap is recommend.

(f) The tray flashings have also been fixed on the joints only with pop rivets. No fixings have been used to fix the tray flashings to the roof in between the laps of the trays allowing them to lift in winds

(d) Ingress to the "pop up" roof area appears to be entering an a few areas, mainly around the flashing installed to the wall

(e) Ingress was also reported underneath the flashing to the high end of the roof sheeting. They believe this is due to driving wind and rain and insufficient turn up of the roof sheeting.

• [108] These findings are consistent with the findings in the CRG Report which noted that the roof is generally constructed with a low pitch which changes to a steeply pitched roof over the verandas. Water damage to the ceilings is generally due to the poor condition of the roof and the associated flashings and seals. Adding to this, is virtually no fall in the roof, which is most likely allowing water to pond on the roof in heavy rain and be blown in through poorly sealed joints and penetrations.
• [109] RR says that in areas the roof is under the manufactures recommended minimum pitch for this style of roof sheeting. They recommend the removal and replacement of the roof including re-pitching to allow for the installation of roof sheeting to manufactures recommendations. This would ensure the manufacturers warranty would be valid along with workmanship warranties. The applicant has also stated that the insurer advised that there would be no coverage for further damage which occurred as a result of failure to undertake the necessary maintenance.
• [110] CRG also note that the roof pitch of less than 1 degree fall is below the minimum requirements set out in the National Construction Code[11] to have water flow from the roof. It is also less than the roof sheeting manufacturer's minimum recommended roof pitch of 1 degree for 0.48 mm BMT, and 2 degrees for 0.42mm BMT. [12]
• [111] The respondent has sought to argue that the building was not designed to the modern wind loading standards and bringing the roof structure up to that standard is an improvement. However I do not believe that there is any proposal upgrade the structural elements. Rather, the various reports recommend "like for like" replacement of various structural components and the roofing sheeting.
• [112] Top of the Mark was built in 1979, at which time the NCC (which includes the BCA[13]) had not been developed. Rather construction was regulated by the Standard By-Laws created under the Building Act 1975, although it is evident that in the context of design and installation of sheet roofing, the current day BCA/ NCC provisions predominantly reflect those required by the Standard By-Laws of the Building Act 1975.
• [113] The Standard By-Laws under the Building Act 1975 included the following :

PART 47-WEATHERPROOFING, DAMP-PROOFING AND FLASHING

47.1 Roofs and Walls. (1) Roofs to be Waterproof. Roofs shall be so constructed as to prevent the penetration of rain or other water to the inner parts of a building.

• [114] Obviously, If the roof pitch is too low, there will be limited flow of rainwater water down the roof surface into the gutters, causing water to pond on the roof, which leads to roof leaks and deterioration of the roofing, seals and flashings.
• [115] Standard By-Law 47.5 provided as follows:

Where metal sheet roofing without transverse laps is designed and installed in accordance with the relevant provisions of AS 1562, Design and Installation of Self-supporting Metal Roofing without Transverse Laps it shall be deemed to comply with the provisions of By-law 47.l (1).

• [116] AS1562 contains standards which address installation techniques including on proper lapping, weatherproofing, use of flashings to prevent water ingress and the need for adequate slope for drainage.
• [117] Volume 1 of the NCC 2022, Part 7.2, "Sheet Roofing" provides that sheet roofing must comply with the minimum pitch requirements for the associated roof profile in accordance with Figure 7.2.3. For concealed fastened roofing profile such as Klip Lok, the minimum pitch is 1 degree. The minimum pitch for other profiles is between 2 and 5 degrees.
• [118] In general, repair work on existing buildings does not need to comply with contemporary building regulations, unless it significantly alters the building or its structural components. However, the roof needs to be so constructed as to prevent the penetration of rain or other water to the inner parts of a building. Obviously, if the roof pitch is too low (ie below 1 degree), there will be limited flow of rainwater water down the roof surface. Further, I note that the roof sheeting manufacturer's minimum recommended roof pitch is 1 degree for 0.48 mm BMT, and 2 degrees for 0.42mm BMT. [14]
• [119] Roof Response has recommend the removal and replacement of the roof including a slight increase to the pitch of the structure to allow for the installation of roof sheeting to manufacturers recommendations. This would ensure the manufacturer's warranty would be valid along with workmanship warranties. Further, concern has been expressed that insurers will not provide coverage unless the roofing material is installed in accordance with the manufacturer's recommendations.
• [120] The cost quote from Johns Lyng contains an allowance of $4,000 to pack required purlin members to achieve required pitch for the roof sheeting. In the context of the total scope of works, the cost of increasing the roof pitch, using packing plates and/or shims is relatively modest.
• [121] For the above reasons I am of the view that the respondent body corporate is required to undertake roofing rectification works as recommended by the RR Report (as concurred by CRG).

• [122] It is evident from the above reports that there are serious defects with respect to the Structural steel work. Extensive corrosion of the structural steel support beams and purlins is visible. Within the ceiling cavity, it is evident that purlins are corroded and it appears that some bridging members between the roof purlins are missing and need to be replaced.
• [123] The various Reports recommend that structural steel support beams and purlins should be replaced as required. Surface rust on other beams and purlins should be removed mechanically and painted with several coats of rust preventative paint.
• [124] At a minimum I am of the view that the respondent body corporate is required to undertake the following structural rectification works as outlined on the Structural Diagnostics Plan SK-01 /Pl:

B3 - Existing 150PFC to be replaced or removed as advised by a qualified engineer

Rust on other beams and purlins should be removed and painted as necessary

• [125] Broken or missing suspended ceiling components, including hangers rods and clips, are to be replaced as recommended in the CRG report. These are relatively inexpensive items and it may be more cost effective to replace corroded components than to salvage and refurbish them.

• [126] The body corporate also seeks to argue that it is only obliged to maintain the structure to the standard to which it was originally designed and installed, and is not obliged to make improvements. It argues that the applicant is effectively demanding that they make the following improvements:

(a) changing the roof pitch.

(b) Replacing broken or corroded components of the ceiling suspension system;

(c) Replacing ceilings.

• [127] I am unable to agree with this argument. It could be said that any maintenance or repair incorporates "a change" but such a change does not necessarily amount to an "improvement". For example like for like replacement of corroded railings and windows in ageing apartments is regarded as "maintenance" and not "improvement".
• [128] Maintenance work will often involve the replacement of something with a new item or a modern equivalent, and may also enhance the appearance of something. However this does not mean that the maintenance or repair work involves making an "improvement" for the purposes of section 186 of the Standard Module.[15]

Liability for repairs to Lot 100 pursuant to Section 281of the Act

• [129] The Respondent is responsible for maintaining common property in good and structurally sound condition pursuant to section 180(1) of the Standard Module. As the Scheme is created under a building format plan of subdivision the Body Corporate has additional responsibilities, including maintaining structural elements of scheme land that are not common property in a structurally sound condition pursuant to section 180(2)(b) of the Standard Module.
• [130] It is clear that the weight of the evidence leads to the determination that the Body Corporate have neglected to adhere to and have consequently breached their legislative maintenance responsibilities prescribed under sections 180(1) and 180(2) of the Standard Module and consequently section 152(1)(b) of the Act.
• [131] Section 281 of the Act relevantly provides as follows:

281 Order to repair damage or reimburse amount paid for carrying out repairs

(1) If the adjudicator is satisfied that the applicant has suffered damage to property

because of a contravention of this Act or the community management

statement, the adjudicator may order the person who the adjudicator believes,

on reasonable grounds, to be responsible for the contravention -

(a) to carry out stated repairs, or have stated repairs carried out, to the

• [132] It is patent that the Body Corporate has failed to properly maintain and keep the roofing structure above the units properly maintained and in a structurally sound condition. Further, I am of the view that in such circumstances the liability of the Body Corporate is strict.
• [133] The strict obligation for the owners corporation to maintain and repair the common property was originally clarified in the case of Seiwa Pty Ltd v The Owners Strata Plan 35042 [2006] NSWSC 115, where Brereton J. stated:

That duty is not one to use reasonable care to maintain and keep in good repair the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do so, but a strict duty to maintain and keep in repair.

• [134] It is also evident from Seiwa that as soon as the common property is no longer operating effectively, then it has fallen into a state of disrepair (Seiwa). That means that if the roof is leaking, the owners corporation has breached its statutory duty pursuant to section 180 of the Standard Module.
• [135] Inspection of the ceiling cavity by CRG revealed failure of the suspended ceiling system due to corrosion of the hangers. The spring steel brackets which join the upper and lower hanging rods have corroded to the point of complete failure in many of the hangers which are generally located at approximately 900 centres. The ceiling is unsupported in many areas and in danger of collapsing. Replacement of defective
• [136] The ceiling to the veranda has been replaced with temporary timber ply sheeting after it collapsed. Inspection of the ceiling cavity reveals this ceiling was also supported by a suspended ceiling system hung from the roof purlins. The hanging supports are corroded or non-existent (the hangers may have been removed when installing the temporary timber frame & ceiling). A timber framing system has been installed to support the temporary timber ceiling.
• [137] It is clear from the Structural Diagnostics Report that the external soffit framing requires replacement. Photograph 26 the Structural Diagnostics Report shows that the "top hats" and battens are severely corroded and that suspension rods are missing. Photograph 17 and 18 show that in places, timber framing has been used to support temporary plywood soffit lining.
• [138] I am of the view that the respondent body corporate is required to replace the balcony soffit framing with an approved external soffit system which satisfies the site external wind pressures as recommended in the Structural Diagnostics Report.
• [139] I am also of the view that the timber framing and plywood soffit lining were only installed as a temporary measure until proper framing and weatherproof fibre cement Villaboard soffit lining can be installed. I note from provided photographs that the plywood is not weatherproof and it already showing signs of water damage such as delamination and mould growth.
• [140] Next, I turn to the interior of lot 100. On a number of occasions since 27 August 2020, a large volume of rainwater has entered through the roof into the living areas of lots 100, 101 and 102, causing extensive damage to the plasterboard ceilings and walls. This is evident from correspondence between the applicants, their letting agent, tenants, the body corporate manager and Insurance Loss Adjuster.[16]
• [141] In addition the applicant has provided a large number of photographs of lot 100[17] showing:

(a) Water damaged plasterboard ceilings and walls

(b) Mouldy paintwork on ceilings and walls

(c) Soiled carpet

(d) Balcony where the ceiling lining has completely collapsed and framework is exposed

(e) Debris on the balcony which appears to be the remnants of the collapsed ceiling

(f) Cracked and lifting tiles

• [142] The respondent suggests that the water ingress into the lot may have been partly attributable to a blockage in the balcony floor drains. In this regard I note that the applicant's real estate agent reported that water was "going through the plywood and the hobs, through the loungeroom and down the stairs into the downstairs bedroom".[18]
• [143] However that paragraph also includes a reference to an makeshift repair to the skylight which was allowing rainwater to enter the interior of the lot. Also, if the roof and flashings were watertight, there would not be a flow of rainwater through the makeshift plywood ceiling.
• [144] It is clear that a substantial amount of rainwater is entering the lot through the defective roofing into the balcony area and interior areas. I am of the view that if the balcony drains were clogged, it is possible that the blockage was caused by debris from the collapsed ceiling. I do not believe the respondent has established that the chain of causation was broken by the applicant.[19]
• [145] The applicant has provided a copy of an estimate dated 6 January 25 from Reflex Property Services for $32,092 (inc GST) to carry out the following water damage repairs at lot 100:

(a) Demolish and dispose of temporary plywood linings to balcony soffit

(b) Demolish and dispose of water damaged wall linings as required

(c) Plastering repairs as required

(d) Re-line walls where demolished

(e) Treatment of water staining to ceilings in living areas

(f) Supply and install new fibre cement soffit linings to balcony

(g) Painting as required

• [146] From the documentation provided, it is evident that on a number of occasions since 27 August 2020, a large volume of rainwater has entered through the roof into the living areas of lots 100, 101 and 102, causing extensive damage to FC balcony ceilings as well as the plasterboard ceilings and walls. While it would appear that the Insurer and their Loss Adjuster have been prompt to respond to the body corporate but it has not been possible to undertake internal repairs to lots 100 to 102 until the roof and the associated flashings and seals are repaired. Further, it is not possible to repair the roof until structural rectification works are undertaken on the steel roof framing.
• [147] In the circumstances I believe it is appropriate to order that the respondent engage an appropriately qualified professional to carry out the internal repairs to Lot 100, identified in the 6 January 2025 Reflex Property Services (RPS) Quotation numbered 3067.
• [148] Next the body corporate says no one has been engaged to carry out internal repairs to the Lot because liability remains uncertain. It believes that the best way to address this is for the Applicant to make the repairs and then, if he considers that the Body Corporate is liable, to make a claim on the Body Corporate.
• [149] It also says the applicant has been offered the proceeds of the insurance settlement for damage occasioned by the first storm event in August 2020 but refuses to accept this and instead of effecting repairs, has left his lot locked up which has contributed to mould growth.
• [150] With respect, I am of the view that the insurance arrangements are of little relevance to the dispute. The body corporate has a responsibility to maintain or repair common property, and structural members of the building under section 180 of the Standard Module, regardless of whether the costs are fully or partially covered under an insurance policy.
• [151] Pursuant to s.281 of the Act, the body corporate is liable for any damage to property incurred as a result of their failure to maintain or repair common property. An Adjudicator may make an order for reimbursement of monies up to $10,000 (where repairs have been completed) or order that up to $75,000 of "stated" repairs be carried out.
• [152] On 9 December 2021, the applicant received an email in relation to the insurance claim for the Units, advising that a cash amount had been paid by the insurer to the Body Corporate on account of the assessment of the scope of work for the internal repairs to the units on 30 August 2021. The respondent offered the following amounts for each of the Units:

(a) Lot 100 - $2,244.09

(b) Lot 101 - $4,141.29

(c) Lot 102 - $12,725.81

• [153] It is not surprising that the applicant as owner of lot 100, has refused to accept payment of $2,244.09 as compensation for the damage to that lot when the cost of repairs claimable against the body corporate is in the vicinity of $32,000.
• [154] It is also unsurprising that the applicant has not undertaken repairs and that the unit has been closed up pending the outcome of this dispute, as he would only be entitled to reimbursement of $10,000 if he had already completed the repairs.

• [155] Ponding water was noted outside townhouses 510 & 509 with drains located within metres of the ponding water indicating incorrect or inadequate fall in the tiles. It is recommended the falls in this area be rectified and that the waterproofing membrane should also be checked and upgraded as required.
• [156] The applicant has not specifically sought orders regarding repairs to the tiles and screed. On the evidence available it is not possible to reach a definitive conclusion as to it is not a waterproofing membrane has been laid on the concrete slab and who is responsible for repairs to the tiling.
• [157] While the tiles and screed material are part of the lot and are generally the owner's responsibility to maintain, it is also established that the body corporate is responsible for their replacement if it removes them to discharge its obligation with respect to the underlying membrane.[20]
• [158] I am aware that many older buildings were constructed without application of a waterproofing membrane to balcony surfaces before the tiles were laid. While this may not be regarded as best practice by contemporary standards, such balconies were often designed in such a way as to ensure that a balcony was impervious to the absorption of rainwater. It is my understanding that Australian Standard 4654 regarding Waterproofing Membranes was first published in 2009 and adopted into the BCA some time later.

• [159] During the inspection of the ceiling cavity, it was noted by both CRG and Edge Consulting Engineers that the block walls terminate at underside of roof purlins. They were concerned that the infill material on top of the blockwork, such as plasterboard, would not provide a level of fire resistance required to prevent the spread of fire between separate dwellings.
• [160] This is outside the scope of the application and in any event I do not have sufficient information to determine whether at the time of construction, the building complied with Part 23 -"Separation of Building into Sections by Fire resisting Construction" under Standard By-Laws created under the Building Act 1975.
• [161] Obviously, it would be prudent for the body corporate to ensure that there is adequate separation, and that the building is compliant with current fire safety requirements.

• [162] For the above reasons I have made the following orders:

Within 6 months of the date of this order, the Respondent is to perform their statutory duties under section 152(1)(b) of the Act and comply with their imposed obligations with regard to the common property under sections 180(1), 180(2)(a)(ii),(iii) and 180(2)(b) of the Standard Module by carrying out the rectification works and structural repairs to the damaged common property affecting Lot 100, by:

(i) the structural and roofing issues identified in the CRG Report, pursuant to the rectification works as recommended by CRG in the CRG, and

(ii) the roofing issues identified in the RR Report (as concurred by CRG), pursuant to the rectification works as recommended by RR in the RR Report;

(b) Co-ordinating the carrying out of the structural rectification works with the Applicant, the Applicant's engineer (CRG) and other lot owners who are affected by the rectification works to the common property, and at such time that the Respondent perceives that the rectification works are complete:

(i) the Respondent must arrange an inspection with CRG to observe the completed rectification works, for the purposes of assessing any further issues that may prevent the commencement of the internal rectification works to Lot 100; and

(ii) in the event that after the inspection, CRG provide further recommendations that contest the completion of the structural and roofing rectification works to the common property affecting Lot 100, the Applicant and the Respondent must:

A. engage an independent engineer for the purposes of providing an independent report; and

B. pay the costs of obtaining the independent engineer's report, on an equal basis.

Pursuant to Sections 281(1)(a) and 152(1)(b) of the Act, within 6 months of the date of this order, the Respondent is to engage an appropriately qualified professional to carry out the internal repairs to Lot 100, identified in the 6 January 2025 Reflex Property Services (RPS) Quotation numbered 3067 (the estimated fees are $32,092.00 (inclusive of GST)) and such repairs shall be at the cost of the Respondent .

I am of the view that by virtue of the Respondent's contravention of section 152(1)(b) of the Act as stated in Order 1, the Applicant is not in contravention of section 160 of the Act and section 211 of the Standard Module.

[1] The corresponding document for each item is contained in the document bundle marked Annexure "F" to the Application. (see pages 54 to 695 of the "Annexure Bundle").

[8] Ridis v Strata Plan 10308 [2005] NSWCA 246,Seiwa v Strata Plan 35042 [2006] NSWSC

[11] Volume 1 of the NCC 2022, Part 7.2, "Sheet Roofing" provides that sheet roofing must comply with the minimum pitch requirements for the associated roof profile in accordance with Figure 7.2.3. For concealed fastened roofing profile such as Klip Lok, the minimum pitch is 1 degree.

[12] Base Metal thickness in millimetres

[13] The Building Code of Australia 1996 (BCA96) was adopted by Queensland on July 1, 1997.

[14] Lysaght Steel Klip Lok. BMT = Base Metal thickness in millimetres

[15] The Presidents Lodge [2018] QBCCMCmr 226

Morcom and Ors v Campbell-Johnson and Ors [1955] 3 All ER 264 per Denning LJ

No 9 Port Douglas Road [2006] QBCCMCmr 674

[19] See Sydney Trains v Argo Syndicate AMA 1200 [2024] NSWCA 101 at [117] per Leeming JA

Agricultural Land Management Ltd v Jackson [2014] WASC 102 per Edelman J at [429]

[20] E.g. Oceans Mooloolaba [2019] QBCCMCmr 293 at [118]; Stella Grande [2017] QBCCMCmr 556 at [29]; Arti's Villas [2013] QBCCMCmr 330 at [32-33]; Park Avenue Terraces [2010] QBCCMCmr 512; Sanctuary Gardens [2007] QBCCMCmr 678; Klinger v Body Corporate for Costa D'Ora Apartments [2007] QDC 300 at [65]- [70].