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

• subsidence created a void on common property beneath the applicant's balcony and the body corporate resolved to have it filled
• the applicant is concerned that the work will not address the full extent of the subsidence and has not been approved by an engineer.

Whether the body corporate should be prevented from carrying out the work while the application is decided.

Act, ss 94(1)(a)&(2), 279; Standard Module, ss 173, 180(1); Land Title Act 1994, s 48C(1).

1. The body corporate must not implement motion 10 of the annual general meeting held on 30 July 2025.
2. This interim order will remain in effect for one year, or until ended or amended as described at section 279(2) of the Act, whichever is earlier.

• [1] Ms Steel's lot 6 and surrounding exclusive use courtyard have suffered significant subsidence, causing:
  1. a drop of some 200mm from the lot balcony to the courtyard ground level
  2. the courtyard to slope back toward the building rather than falling away from it
  3. drainage inspection pipes to protrude above ground level in the courtyard
  4. damage to plumbing and electrical infrastructure, and
  5. a void beneath the balcony.
• [2] Booth Engineers & Associates carried out an inspection on 17 July 2024 and found:

...that the ground subsidence, particularly to the right side of Unit 6 has been influenced by insufficient / incomplete initial backfilling, particularly under the balcony as well as subsequent fill settlement / consolidation and possible poor drainage and plumbing leaks defects / breaks.

• [3] Booth noted that the subsidence had damaged some electrical infrastructure and may also have damaged plumbing infrastructure, and recommended:

...that a plumber and electrician are engaged (as above) to inspect and rectify defects as required. Following this, the area can be refilled (including the areas under the sections of the unit projecting past the building line below), to include suitable surface profiling to direct surface water away from and around the building / towards drainage pits etc...

• [4] Adept Plumbing and Gas inspected the area on 29 August 2024 and found:
  1. inadequate drainage behind a retaining wall bordering the courtyard
  2. a break in the connection between a down pipe and the main storm water line
  3. a "minor break in the line located 600 mm to the righthand side of the large capacity pit in the corner of the yard", and
  4. the retaining wall is failing and should be inspected by an engineer.
• [5] The plumbing and electrical defects appear to have been corrected by the body corporate. No orders are sought in relation to them.
• [6] Ms Steel had a further inspection done by Sound Building Inspections on 3 April 2025, who:
  1. confirmed the subsidence
  2. observed it appeared to have had "no structural or bearing effect on the building"
  3. found that the step height from the balcony to ground level and the fall of the surrounding ground level back toward the building are now contrary to the National Construction Code, and
  4. recommended "top filling the subsided ground area", ensuring falls away from the building and a maximum step height from the balcony of 190mm.
• [7] At an annual general meeting held on 30 July 2025, the body corporate resolved at motion 10 to:

...engage R & M Monteverde Pty Ltd to undertake repair works to the backyard of lot 6 for a sum of up to $15,000.00 including GST.

• [8] According to the explanatory note and quotation, the work would involve injecting grout to fill the void beneath the balcony slab after first isolating services in the area with a weak sand and cement mix.
• [9] Ms Steel is concerned that this work will not resolve the defects identified by the various experts and may adversely affect her lot. She seeks final orders in the following terms:

1. The lot owner is seeking that the body corporate undertake maintenance, and repair works within the exclusive use area to rectify damage caused by a broken roof and stormwater drainage issues around the balcony and building edges. Upon completion of the body corporate works, the lot owner also requests that the consulting engineer provide written confirmation - based on the findings and outcomes of their original inspection report - that all identified drainage issues have been resolved**.**

2. The lot owner is seeking the body corporate undertakes maintenance / repair of the protruding drainage inspection pipes, which have been identified as a safety hazard impacting the occupier. The protruding state of the drainage pipe is a result of damaged cause by body corporate broken drainage and building defects. These pipes are located on the exclusive use area of the owner's lot.

3. The lot owner is seeking that Motion 10, titled "Lot 6 Backyard Works - Monteverde," from the Minutes of the Annual General Meeting ... be invalidated and declared void.

4. The lot owner is seeking that the body corporate reimburses the lot owner to the sum of $790.10 which is the cost incurred in justifying the lot owner's maintenance request and pursing the matter with the office of the body corporate commissioner.

- Independent Building Surveyor engaged to assessing the safety issues identified by the lot owner - $440

- Body corporate dispute resolution Conciliation - $110.30

- Body corporate dispute resolution - Adjudication $239.80.

• [10] Until the application can be decided, Ms Steel seeks an interim order:

...to suspend the commencement of proposed works by the body corporate - specifically those to be undertaken by RM Montverde on the boundary and exclusive use area of Lot 6 - until the adjudicator has made a final decision.

• [11] I am only concerned with the interim order at this stage, which may be granted if warranted by the nature or urgency of the circumstances.[1] An interim order is only appropriate where an applicant raises serious legal questions with prospects of success at final orders.

• [12] Ms Steel is effectively requesting an interim order to prevent the implementation of motion 10 prior to final orders. She says the motion is not consistent with the experts' recommendations, has not been approved by the body corporate's engineer, and may leave the lot in worse condition. This may be an argument that the body corporate is failing to meet its statutory maintenance obligations and/or is acting unreasonably in the exercise of its functions contrary to section 94(2) of the Act.
• [13] The void that Monteverde has been engaged to fill is beneath lot 6's balcony. As Torwyn on Cracknell was created under a building format plan of subdivision, the lot boundaries are structural features of the building.[2] The void is below the slab that forms the lower boundary of the lot and hence is common property. The body corporate is responsible for its administration and maintenance.[3]
• [14] While filling the void would not satisfy all the recommendations of the various experts, I do not see that it would be inconsistent with those recommendations nor amount to a failure to maintain the area in good condition. Booth said only that the area "can" be refilled once plumbing and electrical infrastructure has been tested and rectified as necessary, but did not specify how that ought to be achieved. When Ms Steel's husband contacted Booth about the body corporate's proposed approach, Booth replied that "a number of possible suitable methods to achieve this...can be undertaken".[4] Torwyn on Cracknell's body corporate manager quoted Booth as saying in relation to Monteverde's proposed approach that the plumbing under the balcony should be "suitably isolated from any grout", and "alternatively, the void could be filled with soil and/or gravel".[5] Monteverde proposes to isolate the services in the area with a weak sand and cement mixture consistent with this recommendation. Filling with "soil and/or gravel" was only suggested as a possible alternative. There is nothing to indicate that Booth considered the use of grout to be inadvisable or soil/gravel to be preferable.
• [15] Sound Building Inspections recommended "filling the subsided ground area with suitable soil material". It did not recommend grout, but also did not say anything to indicate that grout would be inappropriate. To the extent that "suitable soil material" is interpreted to exclude grout, there was nothing unreasonable about the body corporate choosing an alternative method on the recommendation of another contractor in the absence of any objections from its engineer.
• [16] Adept Plumbing did not discuss filling the area.
• [17] The body corporate is under no specific obligation to have an engineer oversee all work to the common property. Its statutory obligation to act reasonably may weigh in favour of consulting an engineer in some circumstances, but in this case:
  1. Booth had already been consulted and had said in its report that the area could be filled
  2. Booth described the subsidence as "primarily a landscaping issue",[6] which did not suggest that engineering oversight is essential, and
  3. Booth was consulted about Monteverde's proposed approach by both the body corporate and Mr Steel and did not suggest that it would be inadvisable to inject grout provided plumbing in the area was isolated first, as it will be.
• [18] No evidence has been tendered in support of the claim that the proposed work may leave lot 6 in worse condition.
• [19] However, there is an obvious issue with motion 10 that has not been argued by Ms Steel. It proposed expenditure of up to $15,000 but did not offer owners a choice between at least two quotations. Where a motion proposes carrying out work that will cost more than the "relevant limit for major spending", owners must be given a choice between at least two quotations.[7] The relevant limit for major spending is as:

(a) the amount last set as the relevant limit for major spending by ordinary resolution of the body corporate at a general meeting; or

(b) at any time there is no amount set, the lesser of the following amounts -

(i) an amount worked out by multiplying $1,100 by -

(A) for a principal scheme in a layered arrangement of community titles schemes - the number of layered lots for the scheme; or

(B) for another scheme - the number of lots included in the scheme;

• [20] I asked the body corporate manager whether the body corporate has ever resolved to change this limit, and if so, to submit minutes of that resolution. She replied:

The Torwyn major spending limit is the standard $1,100 per lot = $23,100.00.

• [21] But the default limit is the lesser of $1,100 per lot or $10,000. At Torwyn on Cracknell with its 21 lots, that means the limit is $10,000.
• [22] For that reason, there is a good chance that motion 10 will be found invalid at final orders. I will make the requested interim order to prevent it from being put into effect before then.
• [23] That does not seem likely to impose any significant inconvenience on the body corporate for two reasons:
  1. The work is not urgent. Booth has described it as a landscaping issue, Sound Building Inspections said the subsidence was not of structural significance, and the body corporate acknowledged in its submission that "there was no impact to the building itself due to backfill settlement".
  2. If the body corporate would prefer not to wait for confirmation at final orders that motion 10 is invalid, it is at liberty to call a further general meeting, present at least two quotations to owners, and make the decision again. As the application only concerns the validity of motion 10 as considered at the AGM of 30 July, the interim order will not prevent a future resolution on the same subject from being put into effect.

[2] Land Title Act 1994, s 48C(1).

[3] Act, s 94(1)(a); Standard Module, s 180(1).

[4] Keith Hart, Building Investigator, email of 4 August 2025.

[5] Grace Tuffery email to applicant of 8 August 2025.

[7] Standard Module, s 173.

[8] Standard Module, Schedule 1, "relevant limit for major spending".