This month’s article of interest focuses on a case where respondent Owners of a large penthouse lot set right on the Brisbane River recently received a rude shock when they were ordered by a Body Corporate adjudicator to undertake significant works to their balcony including the replacement of tiles and grouting which they considered should be at the Body Corporate’s cost.

Spoiler alert: it was not at the Body Corporate’s cost.

In this case: http://classic.austlii.edu.au/au/cases/qld/QBCCMCmr/2023/348.html  the Body Corporate brought an application to seek declaratory and maintenance orders against penthouse owners in order to stop water from the irrigation system contained on their balcony from leaking into the lots of Owners living underneath the penthouse.

Owners living underneath the penthouse reported stalactites growing on their ceilings together with incessant mould, damage to lot carpets, damaged window dressings as well as staining to their balcony tiles and staining to internal ceilings.

Lawyers for the Respondent lot Owners regrettably took a bit of a jurisdictional misstep in attempting to argue that the preceding could not be commenced by the Body Corporate without a “special resolution” of the owners at a general meeting and that the application ought to be dismissed (incorrect: the Committee can authorise an application to the Body Corporate Commissioner’s office at Committee level).

As with all applications of this nature – well prior to the Adjudicator’s decision parties had attended a conciliation conference and entered into an agreement to jointly appoint a qualified report writer (in this case a Senior Civil and Structural Engineer and RPEQ Board member) to inspect the penthouse balcony and submit a report on his findings.

After considering the evidence filed by all parties, the Adjudicator found:

• It was disingenuous for the Respondent lot Owners to take issue with the report writer’s qualifications after agreeing to jointly appoint him at the conciliation conference; and
• The Respondent’s lot Owners’ hydraulic report (submitted to the adjudicator 5 months after the date for written submissions had closed) was disregarded; and
•  The Respondent lot Owner’s lawyers had not inspected material filed by the Body Corporate and by owners (which they were entitled to do, and which would have made a tactical difference to their submissions) however it was in order for the Adjudicator to consider their submissions made on the Respondent lot Owner’s behalf; and
• The Respondent lot Owners had failed to maintain their lot in good condition by allowing tiles and grout to fall into disrepair; and
• Excessive water from the Respondent lot Owner’s irrigation system had penetrated cracks in tiles and grout to reach lots underneath the penthouse; and
• The Respondents provided no evidence to support their claim that the water proofing membrane (for which the Body Corporate was responsible) was defective and had failed; and

Ultimately the Adjudicator found for the Body Corporate and made orders for the Respondent lot owners to attend to their maintenance works.

The takeaway warning for all owners is this: your balcony, your tiles, your grout – your maintenance to attend to. Where in doubt, seek advice to keep your balcony in good condition.