Take a Walk Around! – The Duty to Inspect.

A body corporate, usually via its Committee, has an ongoing responsibility to

conduct regular inspections of the common property.

What they didn’t do in the West…

A recent case heard in the Western Australian Court of Appeal, Drexel London(a
firm) v Gove (Blackman)1, affirmed the statutory duty to keep the common
property in good and serviceable repair but stopped short of requiring regular
inspection by specialist experts.

In that case a builder had substituted Jarrah wood for Oregon which
subsequently rotted causing a balcony to collapse which seriously injured several
people. The Court considered2 whether the body corporate had conducted
inspections of the common property from time to time in order to determine
whether any repair, maintenance or replacement was required.

A body corporate must have a system in place for periodic monitoring of the
maintenance and state of repair of the common property with particular regard to
safety issues. Identification is the key to ‘maintaining’.

In consideration of a previous NSW case3, the judge re-affirmed that the

obligation to inspect does not require inspection by anyone more highly qualified
than an experienced managing agent or a person with general building
maintenance skills, unless the body corporate has reason to believe that
inspection by a specialist is required.

[2009] WASCA 181.

2
Ibid, at paras [193]-[241].
3
Ridis v Strata Plan 10308(2005) 63 NSWLR 449.
The situation in Queensland – a Higher Standard?
This duty exists also under Queensland law and requires that a body corporate
control and manage the common property for the benefit of all lot owners. This
has also been determined to include all persons who lawfully use the common
property.4

However, while the duty in other states is to maintain common property in good
and serviceable repair, the statutory duty in Queensland is to also maintain to ‘a
structurally sound condition’. Does this suggest knowledge required to a higher
standard, something akin to specialist experts inspecting the common property?

1
2

4
 While committee members are not liable for their actions when acting in good
faith and without negligence, a breach of a statutory duty may provide evidence
of a breach of duty in an action for negligence. Alternatively, a breach of
statutory duty may found an action for damages in which case negligence is
irrelevant.
4
Seden v The Proprietors ‘Tyalla Court’ [1978] Qd R 53.

What you need to do…

All Committees must have in place a system of regular inspections of the common
property and body corporate assets, and if in any doubt, organise for the
appropriate specialist expert to further inspect, repair and maintain in good
condition.

For further legal advice…

Each scheme has individual circumstances and this advice is provided as
general advice only. As lawyers knowledgeable in body corporate law and
experienced in representing bodies corporate, we are able to provide
comprehensive advice in relation to these matters specific to your scheme.

For more information…

Contact Stuart Harrigan at redchip lawyers on 07 3852 5055 or

stuarth@redchip.com.au .

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