QLD: Does a body corporate have a duty to investigate suspected waterproofing failure in a planter box causing water damage?

Question: The waterproofing membrane for a planter box appears to have failed. The body corporate committee is reluctant to investigate in case the report states repairs are required. What is the body corporate’s duty to investigate?

Our scheme has a large, 20 year old concrete planter box sitting on the common property podium with the original waterproofing membrane. There is no doubt the body corporate is responsible for maintaining the box in good condition.

The elastomeric paint on the walls immediately below the box is continually blistering in many spots. The blisters leak water when pierced. The basement car park immediately below these walls has water running into it. The seepage is causing damage.

Two professionals have carried out visual inspections. They have reported the membrane in the planter box has most likely failed, and if so, this is causing the paint to blister and the water ingress into the basement carpark. The reports indicate that the situation will get worse unless rectified. Both professionals recommend inspection by water leak specialists to confirm whether the planter box is the source.

The committee opposes proceeding because of possible rectification costs.

Does a body corporate have a duty to investigate the probable cause of a breach of statutory duty to maintain, and if so, does it seem we may be at that stage with this planter box?

Answer: Indications the body corporate may be responsible for remedial works is sufficient to trigger a duty to investigate.

The key issue here is that there are already indications the body corporate may be responsible for remedial works. This is sufficient to trigger a duty to investigate. If that investigation leads to work the body corporate is responsible for, it is required to carry out the work – irrespective of the cost. Just because the body corporate is unaware of failing to meet its statutory maintenance obligation does not mean it is discharging it. The maintenance obligation is a strict one, as set out in Klinger & Anor v Body Corporate for Costa D’Ora Apartments:

The statutory duty imposed on the Body Corporate … is one which obliges it to remedy any defect as soon as any of the building parts covered by the duty fall into disrepair or were not operating properly. Failure to do so, once aware, gave rise to a breach of its duty.

The duty to investigate has been discussed by adjudicators as follows:

1. In The Reserve [2017] QBCCMCmr 304 the adjudicator provides (our emphasis):

   It is evident that the respondent is aware of its obligation under section 159 of the Standard Module to maintain common property. Similarly, the respondent is aware that under section 281 of the Act, a person who suffers damage to property because of a failure by the body corporate to do so, may seek an order that the body corporate carry out stated repairs or seek reimbursement.

   Accordingly, I have made orders requiring the body corporate to engage a suitably qualified professional to investigate the claimed water leak into the main bedroom of lot 16. If the investigation reveals that water is penetrating lot 16, the respondent is to undertake repairs and meet the reasonable cost of repairing damage to the main bedroom that can be attributed to a failure by the respondent to maintain common property.

1. In Ashfield Apartments [2018] QBCCMCmr 117, the adjudicator provides (our emphasis):

   However, Morgan recommends exploratory work which may lead to repairs being carried out on common property which may remedy damage to the building and/or Lot 4. In my view, the body corporate has a statutory duty to have this work carried out. I have given the body corporate three months to have the investigations conducted as recommended by Morgan to the extent those investigations relate to common property plumbing, down pipes and drainage systems, and to the extent the site investigation relates to a soil test. The spending to have the investigations conducted may be approved by the committee if it is within its spending limit (the statutory limit on committee spending is $200 multiplied by the five lots or $1,000). Otherwise it will require body corporate approval at a general meeting or via section 111 of the Act.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753