Body Corporate and Community Management (Specified Two-Lot Scheme Module Module) Regulation 2020

SPECIFIED TWO-LOT SCHEME - LOT OWNER AGREEMENT - REASONABLENESS - The scheme comprises two lots. Under the Specified Two-Lot Scheme Module, body corporate decisions must be made by a lot owner agreement. The applicants, as owner of one lot, require the agreement of the other lot owner to install a shed on their exclusive use area, which has been declined. The Act provides that an order may be made giving effect to the LOA if agreement was unreasonably withheld.

The questions are (a) whether the other lot owner, acting reasonably, may act with self-interest or must also consider the interests of the proposing or owner, and in light of that test (b) whether the refusal to agree to the proposal was unreasonable.

Body Corporate and Community Management Act 1997 (Qld): ss 94(2); 276(1); Sched 5, item 17; Sched 5, item 26

Body Corporate and Community Management (Specified Two-Lot Scheme Module Module) Regulation 2020: ss 45; 111E; 111H

• [1] 4 Princess CTS 51515 is a scheme comprising 2 lots and common property.
• [2] Each lot is surrounded by an area of common property over which each has exclusive use rights. The applicants, the owners of lot 2, wish to install a 70 m2 shed on their exclusive use area. The application is made because they have been unable to secure the necessary agreement of the other owner.
• [3] The scheme is governed by the Act[1] and, as identified in its community management statement (CMS), the Body Corporate and Community Management (Specified Two-Lot Scheme Module Module) Regulation 2020 (STLS Module).
• [4] In schemes regulated under the other regulation modules, decisions about a body corporate's affairs are made either by its committee or by owners voting in a general meeting. However, due perhaps to their small size, schemes regulated by the STLS Module do not have committees and general meetings, but instead must make lot owner agreements (LOA) to make those decisions.[2]
• [5] Because the scheme's exclusive use by-law does not specifically allow an owner to make an improvement to their exclusive use area, the STLS Module requires them to make a LOA about any such proposal with the other owner.
• [6] The owner of lot 1, Colin Raynor, does not agree to the applicants installing the proposed shed, in essence because he considers its size and location would diminish the enjoyment of his lot. The applicants say Mr Raynor's opposition is unreasonable.
• [7] The applicants therefore seek an order giving them approval to install the shed.
• [8] In summary, I have decided not to make an order to that effect because I am not satisfied Mr Raynor, or alternatively the body corporate, acted unreasonably in declining to give approval.

• [9] The mechanisms for authorising an improvement to common property which is part of an exclusive use area in a STLS are found in section 45 of the STLS Module**.** It provides that if the exclusive use by-law does not authorise an owner to make 'stated improvements', the owner must get body corporate authority through a LOA. The terms of section 45 make it clear that the proposed improvement must be specifically provided for. In this case, there is no dispute that the applicants' proposal requires a LOA.
• [10] Section 111E of the Act explains the meaning and effect of a LOA:

(1) A lot owner agreement for a specified two-lot scheme is an agreement between the owners of the lots included in the scheme about a matter -

(a) related to the carrying out of the functions given to the body corporate under this Act and the community management statement; and

(b) for which the body corporate is required or permitted to make a decision under this Act or the community management statement.

(2) A lot owner agreement for a specified two-lot scheme is a decision of the body corporate.

• [11] Section 111H of the Act explains the mechanics of proposing and making a LOA:

(1) The owner of a lot included in a specified two-lot scheme may ask the owner of the other lot included in the scheme to enter into a lot owner agreement about a proposed decision.

(a) be made in the way prescribed under the specified two-lot schemes module; and

(b) state a reasonable period for the owner of the lot to whom the request is made to enter into a lot owner agreement about the proposed decision.

(3) If the owner of the lot to whom the request is made does not enter into a lot owner agreement about the proposed decision within the period stated, the body corporate is taken to have decided against making the proposed decision contained in the request.

(4) Subsection (3) applies despite section 111G (2) .

(a) about a matter related to the carrying out of the functions given to the body corporate under this Act and the community management statement; and

(b) that the body corporate is required or permitted to make under this Act or the community management statement.

• [12] I will note here, as it becomes relevant later in my reasons, that sections 111E(2) and 111H(3) of the Act explicitly provide that a decision to enter or to decline to enter a LOA is taken at law to be a body corporate decision.
• [13] The proposed LOA (set out in more detail below) encompasses a number of different improvements, but the applicants presently seek only an outcome in respect of the shed. Elsewhere in their submission the applicants say they also wish to get approval for the other potential future improvements. Given those matters are not addressed in the outcomes section of the application form and are not addressed at all in the submissions, I will not consider them at this time.

• [14] The requested outcome is an order giving the applicants approval to construct the proposed shed. An adjudicator does not have power to give that approval, as such. However, the Act empowers an adjudicator to make an order giving effect to the applicants' proposed LOA, or a variation of it.
• [15] I will start by setting out the relevant legislation, and then deal with a High Court decision which is relevant to the interpretation of those provisions.
• [16] I firstly note that section 276(1) of the Act empowers an adjudicator to make an order to resolve body corporate-related disputes. It relevantly provides:

(1) 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 the context of a community titles scheme, about -

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

(b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

(3) Without limiting subsections (1) and (2) , the adjudicator may make an order mentioned in schedule 5.

• [17] Section 276(1) thereby empowers an adjudicator to make orders in 2 types of circumstances - about a contravention of the legislation or by-laws, or about the exercise of rights (etc) under the legislation and by-laws.
• [18] Sched 5 to the Act details a number of specific orders in addition to the general order-making power in section 276(1), without limiting that power. The Sched 5 items explicitly relevant for LOAs are:

8A An order declaring that a decision purportedly made by a lot owner agreement was at all times void.

9A An order declaring that a decision purportedly made by a lot owner agreement is a valid decision of the body corporate.

1. If satisfied that a decision made by a lot owner agreement was unreasonable - an order -

(a) declaring that the decision was at all times void; or

(b) giving effect to a variation of the lot owner agreement.

1. If satisfied that an owner of a lot included in a specified two-lot scheme was unreasonable in not entering into a lot owner agreement following a request from the owner of the other lot - an order -

(a) giving effect to the decision proposed by the owner of the other lot; or

(b) giving effect to a variation of the decision proposed by the owner of the other lot.

• [19] Of those, only item 26 fits the factual circumstances of this case.
• [20] Although not specific to LOA's, Sched 5 item 17 is also potentially relevant, because it applies to proposals for improvements on or changes to common property, and an exclusive use area remains part of the common property. It provides:
  1. If satisfied the body corporate's decision about a proposal by the owner of a lot to make improvements on or changes to common property is an unreasonable decision - an order requiring the body corporate -

• [21] While item 17 refers to a body corporate decision, it is potentially relevant to a LOA refusal because section 111H(3) deems the other owner's refusal to be a body corporate decision. Further, while item 17 refers to decisions about common property, an exclusive use area is also common property.

• [22] The applicants say that Mr Raynor is being unreasonable in refusing to make the proposed LOA. They do not point to any particular provisions in support of their application, but Sched 5, items 17 and 26 above are clearly potentially relevant, because they apply respectively to a lot owner's proposal to improve or change common property and to a lot owner not entering into a proposed LOA.
• [23] The applicants' stated grounds also invoke section 94 of the Act. It is a key provision of the legislation, imposing various functions on a body corporate and, particularly relevant in this case, requiring a body corporate to act reasonably in fulfilling them. It provides:

(1) The body corporate for a community titles scheme must -

(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and

(b) enforce the community management statement (including enforcing any by-laws for the scheme in the way provided under this Act); and

(c) carry out the other functions given to the body corporate under this Act and the community management statement.

(2) The body corporate must act reasonably in anything it does under subsection (1) including making, or not making, a decision for the subsection.

Examples for subsection (2) of a body corporate making a decision -

• passing a motion by resolution at a general meeting or a committee meeting

• not passing a motion after a vote at a general meeting or a committee meeting

• owners of lots included in a specified two-lot scheme entering into a lot owner agreement for the scheme (see section 111E (2) )

• owners of lots included in a specified two-lot scheme failing to enter into a lot owner agreement following a request made by one of the owners (see section 111H (3))

• [24] Section 94(2) sits neatly with item 17 insofar as both deal with the reasonableness of a body corporate decision. With respect to item 26, however, section 94(2) does not, at least directly, prescribe or proscribe anything in regard to decisions made by individual owners. However, the examples provided in section 94 about its application include the circumstance of lot owners in a specified two-lot scheme (STLS) failing to enter into a LOA. That thereby unambiguously indicates that the section 94(2) obligation imposed upon bodies corporate to act reasonably was intended by the legislature to apply to owners considering a LOA in a STLS. Further, it draws attention specifically to item 26, which deals with an owner unreasonably failing to enter into a LOA. The examples also draw attention to section 111H(3) which, as I noted above, describes such a decision as a body corporate decision.
• [25] Thus, it might seem obvious that this application could be resolved by an item 17 order or by an item 26 order, in each case empowered by subsection 276(1)(a) of the Act, on the basis that the body corporate had acted unreasonably in contravention of section 94(2) (if I found in fact that was the case).
• [26] However, resolving the problem is not as straightforward as it may seem because, in a two-lot scheme, the defeat of the proposal turns on only one owner's vote and the words of item 26 focus attention on the reasonableness of a lot owner's decision, whereas section 94(2) refers to body corporate decisions. At least in other contexts, that distinction raises a questions as to the way in which the test for unreasonableness is applied. The answer to that question must be found in the leading authority on reasonableness in this jurisdiction, being the decision to which Mr Raynor's submission refers, namely the High Court in Ainsworth v Albrecht [3] (Ainsworth). I will therefore proceed firstly by discussing that decision in some detail.

• [27] The High Court in Ainsworth heard an appeal of an adjudicator's decision[4] about a lot owner's failed motion to grant them exclusive use over certain common property and approve proposed changes to the area, by joining the airspace between the lot's two separate balconies. The applicant's motion had failed to get the required resolution without dissent in a general meeting, ie without disagreement by any voter. The adjudicator deemed the motion to have passed on the basis it was defeated unreasonably. The appeal had first proceeded through QCAT[5] (where the adjudication decision was overturned) and then the Queensland Court of Appeal[6] (where the adjudication decision was reaffirmed). The original applicants in BCCM thereby became the appellants in the High Court.
• [28] Adjudicator Rosemann at first instance applied section 94(2) of the Act, finding that the body corporate had acted unreasonably in defeating the motion because (among other things) that decision did not represent a reasonable balance of the competing interests of the owner who proposed the motion and the other owners (or at least those other owners who opposed the proposal). The adjudicator then went on to make an order[7] which deemed the motion to be passed.
• [29] In that process, Adjudicator Rosemann noted that item 10 of Sched 5 to the Act referred specifically to motions requiring, but failing to get, a resolution without dissent. I note at this point that items 26 and 10 are very similar in that they both focus attention on the reasonableness of the opposing owner, rather than on the reasonableness of the body corporate.
• [30] Item 10 provides:

If satisfied a motion ... considered by a general meeting of the body corporate and requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable - an order giving effect to the motion as proposed, or a variation of the motion as proposed.

• [31] The adjudicator considered (and the High Court agreed) that the 'opposition' referred to in item 10 is the opposition of each dissenting voter, acting individually.[8] Attempting to resolve the apparent inconsistency between section 94(2)'s focus on the body corporate's decision and item 10's focus on the individual voter's decision, Adjudicator Rosemann said:

In my view, the relevant legal obligation is whether the Body Corporate acted reasonably (pursuant to section 94(2)) in deciding not to approve the proposal. Schedule 5, items 10, 11, 17, 22, 24 and 25 (and potentially other example orders) all contemplate different circumstances where a body corporate decision may not have been reasonable. There is not, in my opinion, a different legal obligation depending on which Schedule 5 order has been contemplated by an applicant.

• [32] It was on this point that the High Court centred its analysis, finding that the adjudicator erred in applying section 94(2) and therefore irrelevantly considering whether the body corporate's decision evidenced a proper balancing of the competing owners' interests. As Mr Raynor specifically raises this point, I will address the High Court's reasons in Ainsworth in further detail.
• [33] Regarding the interrelationship between item 10 and sections 94(2) and 276(1) of the Act, the Court said:
  • Item 10, which is the basis on which rights of lot owners may be altered by the adjudicator in the face of an otherwise lawful decision not to pass a motion requiring a resolution without dissent, concerns the exercise of a right or power by an owner. [9]
  • The adjudicator incorrectly viewed section 276(1)(a) of the Act as the source of power to make the order to resolve the dispute, ie an order about a contravention of the Act, when the better view was that it was instead within the power conferred by section 276(1)(b), ie an order about the exercise of a right or power.[10]
  • Section 276(1)(b) of the Act operates to the exclusion of section 276(1)(a) (to whatever extent the latter might apply), according to the maxim expressum facit cessare tacitum (ie, where a provision expressly deals with something, it prevails to the exclusion of a provision which impliedly provides for it in a different way).[11]
  • Section 94(2) of the Act did not govern the resolution of the matter. The machinery in Sched 5 for the enforcement of section 94(2) is item 24, not item 10. The language of item 10, which focusses on the reasonableness of a lot owner's opposition, stands in contrast to the language of item 24, which empowers an adjudicator to deem a motion passed if it is unreasonably defeated and which focusses on a decision of a body corporate in general meeting.[12]
• [34] Regarding the focus of the reasonableness test, the Court said:
  • The issue for the adjudicator was, as raised by item 10, whether the opposition of each dissenting voter was unreasonable, not whether the decision of the Body Corporate was unreasonable.[13]
  • The reasonableness of the dissenter's opposition to the proposal can only be determined by considering the circumstances of the proposal and its likely effect on their property interests; but that is not to say that their opposition to the proposal is unreasonable if it is not informed by altruism or sympathy for the interests of the proponent, at the expense of the opponent's reasonable view of their own interests.[14]
  • A reasonable decision must have a rational basis.[15] The standard of reasonableness is objective, and it is to be applied in this case at the time of rejection of the defeated motion taking into account all relevant factors including factors which were extant but which the parties may not have identified or appreciated at the time.[16]
  • The reliance by the adjudicator on the judgment in Waters v Public Transport Corporation, which concerned the duty of a decision-making body to reach a reasonable decision taking into account competing considerations, was misplaced, because a lot owner registering their opposition to a motion is not a decision-maker of that kind.[17]
  • This was not an instance in which the adjudicator was required to strike a balance between competing positions and weigh all the relevant factors in determining whether the dissenters' opposition was unreasonable. It is not unreasonable for dissenters not to have taken account of factors favouring the proponent.[19]
• [35] Regarding the application of the reasonableness test to the facts in that case, the Court said:
  • It is no light thing to conclude that opposition by a lot owner to a resolution is unreasonable where adoption of the resolution will have the effect of:
    • − appropriating part of the common property to the exclusive use of the owner of another lot, for no return to the body corporate or the other lot owners
    • − altering the features of the common property which it exhibited at the time an objecting lot owner acquired his or her lot, and
    • − potentially creating a risk of interference with the tranquillity or privacy of an objecting lot owner.[20]
  • Item 10 is intended to operate in respect of a broad range of resolutions which are required to be passed without dissent. It must, therefore, be understood that it is neither necessary nor desirable to attempt an exhaustive statement of the circumstances in which such an order may be made. That said, opposition to a proposal that could not, on any rational view, adversely affect the material enjoyment of an opponent's property rights may be seen to be unreasonable.[21]
  • The fact that a lot owner might have an interest in improving his or her lot is not a prima facie affirmative proposition, the pursuit of which can be assumed to be appropriate or supported by other lot owners.[22]
  • Item 10 is not to be read as if it contained the words 'in the opinion of the adjudicator', nor as if it otherwise threw the determination of what is unreasonable upon the subjective and unexaminable opinion of an adjudicator. Evidently, the BCCM Act so values the interests of lot owners in common property that, subject only to proven unreasonableness, it conditions the disposition of common property upon unanimity.[23]

Reconciling Ainsworth, item 17, item 26, and ss 276(1) and 94(2)

• [36] I have noted that both items 17 and 26 are relevant in these circumstances. I note also that they approach the issue from different paths: the former is relevant here because it applies specifically to decisions about proposed changes to common property and generally to all types of schemes; whereas the latter is also relevant here because it applies generally to all LOA decisions regardless of the subject matter but specifically to STLSs.[24]
• [37] My decision as to which item to apply is further complicated by the fact that item 17 focusses on a body corporate's decision but item 26 focusses on the lot owner's decision. As the High Court in Ainsworth cautions, they are not to be treated as involving the same adjudication reasoning process.
• [38] In many instances where 2 statutory provisions might apply, that often can be resolved by adopting the well-accepted approach to statutory interpretation that a more general provision does not detract from, or should be interpreted consistently with, a more specific provision.[25] But that approach is unhelpful where it is not clear which of items 17 and 26 is the more specific provision - the provisions intersect, rather than sit as under and overlay. I therefore think the answer lies in the following passage from another High Court decision, to the effect that I must find a way to accommodate both:[26]

The most enduring of the canons of construction that have been applied throughout the history of this Court is that which enjoins the decision-maker, faced with apparent statutory intersection, to endeavour, to the fullest extent permitted by the language, to read the two statutes so that each, within its own sphere, can continue to operate, such that no part of either is taken to be repealed or inoperative, for Parliament has not said so.

• [39] I will focus primarily on resolving the dispute through an item 26 order, if only because it seems to be the more winding path, for reasons which will become apparent below. Along the way, I will also deal with item 17.
• [40] Having read Ainsworth, one might reason in this case as follows:
  • a single opposing owner in a STLS is like a single voter in another type of scheme dissenting on a motion in general meeting
  • item 26 is like item 10, in that both focus on the reasonableness of the owner/voter
  • item 26 deals expressly with the fact-scenario of this case, and so applies to the exclusion of item 24 (which deals with the reasonableness of body corporate decisions), and
  • item 26 concerns the exercise of rights or powers, or the performance of duties, under this Act, and

therefore the correct approach is as found in Ainsworth, adjusting for these circumstances, ie:

• consider whether to make an item 26 order, via section 276(1)(b) of the Act, and
• do not apply section 94(2) of the Act to make an order via section 276(1)(a) of the Act.

• [41] However, that last step poses a problem because, as I have noted above, the examples given in section 94(2) indicate it applies to a failure to enter into a LOA. I must therefore apply item 26 compatibly with sections 94(2) and 276(1)(a). I consider the following points are the path to getting there.
• [42] First, item 26 must be employed in this case (compatibly also with item 17), because it explicitly applies to the circumstances. In Ainsworth, the High Court could have affirmed the adjudicator's application of section 94(2) simply by finding that item 10 may be ignored, noting that subsection 276(3) provides that the specific orders in Sched 5 do not limit the application of the more general subsection 276(1), or finding that item 24 (which easily dovetails with section 94(2)) could be applied instead. However, their Honours considered it preferable to apply item 10, because it was explicitly tailored to the circumstances of the case. I cannot see any justification for diverging from that approach, here.
• [43] Second, while a decision about a LOA is deemed by section 111E(2) of the Act to be a body corporate decision, item 26 focuses unequivocally on the reasonableness of the individual owner's decision, not the body corporate's. The Ainsworth decision makes it clear that the distinction has implications for the way in which the decision-maker may and must act, if acting reasonably.
• [44] Third, for the purposes of item 26, and again following Ainsworth, the requirement to act reasonably permits an owner in a STLS to act solely with self-interest in considering a proposed LOA. I will deal with this in more detail, below.
• [45] Fourth, section 94(2) explicitly applies to a LOA. Again, in light of their Honour's insistence in Ainsworth that explicitly relevant provisions must be applied, I cannot see any justification for ignoring section 94(2) in deciding this application, either.
• [46] Fifth, section 94(2) orders may only be made with reference to the power in subsection 276(1)(a), and not subsection 276(1)(b). Central to the Ainsworth decision was the concern that the adjudicator did not have due regard to which of those two limbs was engaged when finding power for making the order. It follows that section 276(1)(a) also must be engaged.
• [47] Sixth, item 26, although apparently concerning an exercise of a right, power or duty, can be reconciled with section 276(1)(a), concerning contraventions of the Act.
• [48] Seventh, item 26, while permitting self-interested decision making, can be reconciled with section 94(2) insofar as it ordinarily requires a balancing of competing interests. I will also deal with this and my sixth point in more detail, below.
• [49] I will now address my third point, above, in more detail.
• [50] While section 111E(2) of the Act expressly provides that a LOA for a STLS is a decision of the body corporate, if item 26 called for an assessment of the body corporate's reasonableness and not the owner's, it would have been drafted in such terms. That distinction must be given due regard.
• [51] I will therefore start by following, for item 26 purposes, the view firmly expressed by the High Court in Ainsworth in respect of an individual owner deciding how to vote on a motion: a lot owner acting reasonably in considering a LOA proposal need not take account of the proponent's interests in considering their own position. Apart from the obvious need for me to make decisions consistently with the considered views of the High Court, I respectfully consider that to be the logical approach for a lot owner in a STLS deciding whether to enter a LOA, too.
• [52] I will deal briefly with the contention that, otherwise, to the extent section 94(2) of the Act applies, the reasonableness of a body corporate's decision is to be assessed including as to whether the decision represents a proper balancing of competing interests. The High Court in Ainsworth does not explicitly say as much; rather, both the joint reasons and Nettle J say that a balancing exercise is not required in the circumstance of that case, where section 94(2) does not apply at all and the focus is instead on the decision of the individual dissenting voter. However, I understand those reasons to indicate that their Honours did otherwise consider the balancing requirement would apply, for example, to a body corporate decision not to pass a motion requiring an ordinary resolution, which is subject to section 94(2). I take that view because it seems to me that it would have been simple for their Honours to say there was no balancing exercise required for any body corporate decision, whether or not section 94(2) applied, if they considered that to be so, rather than to reason at some length that it did not apply in the special case of a motion requiring a resolution without dissent. The view that section 94(2) ordinarily requires a balancing exercise was subsequently taken by QCAT Senior Member Stilgoe OAM and Member Collins in Body Corporate for the Reserve CTS 31561 v Trojan Resorts Pty Ltd[27] and Justice Carmody in QCAT, in Body Corporate for Beaches Surfers Paradise v Backshall.[28]
• [53] It bears emphasising that a LOA involves only two lot's owners. If the opposing lot owner were obliged to take into account the proponent's interests, in considering the LOA, then surely the proponent, in proposing the LOA, must also be required to take into account the opponent's interests. Otherwise, the burdens put on the two owners would be asymmetrical and would strongly favour the proponent. But the legislation does not require the proponent to be mindful of the other owner's interests. If one owner can act entirely with self-interest in proposing a LOA,[29] then surely the other owner can act entirely with self-interest in opposing it.
• [54] However, there is some nuance to that position. An owner in a STLS considering a proposed LOA is, at least to some extent, engaging in a body corporate decision-making process differently from an owner in other types of schemes considering a motion (whether or not it requires a resolution without dissent). Significantly, they are able to engage in discussion with the proponent and perhaps renegotiate the terms of a LOA. That observation might prompt a conclusion that the proponent and opponent in a two-lot scheme are like a committee considering a proposal from an owner or occupier. That then might raise the question whether, like a committee making a decision, they are obliged to engage in a negotiating and interests-balancing exercise, as discussed by Carmody J in Body Corporate for Beaches Surfers Paradise.[30]
• [55] In my view, requiring an opposing owner in a STLS to act as if they are a committee member casts too heavy a burden on them. They are not, like a committee member, negotiating at arm's length from the proposal.[31] Rather, they take part as the sole guardian of their own interests as a lot owner. As I concluded above, to require an opposing lot owner to have taken into account the interests of the proponent and possibly compromise their own position would ironically place a greater burden on them than is placed on the proponent owner. Further, while an owner in a STLS considering a lot owners agreement may look like some hybrid of the single voter in Ainsworth and the committee in Beaches, I cannot conceive of a practicable middle ground between self-interested decision-making and interests-balancing decision-making. One either does or does not consider the interests of others; for practical purposes, the choice in that regard is binary.
• [56] Of course, an adjudicator can still make an item 26 order to deem the LOA to have been made if the opponent is being unreasonable in purporting to protect their own interests. There must be a reasonable basis for their objection - as variously expressed in Ainsworth, it cannot be irrational or based on irrelevant factors or feelings of spite, ill-will or attention-seeking. To that, I would add that it is arguably unreasonable for a lot owner to refuse to engage at all with a proposed LOA, thereby defeating it by default.[32]
• [57] That is not to say that acting entirely selfishly, with no regard to the owners' common interests, is reasonable in every case. This case, and cases like Ainsworth, involve proposals for which the proposer has no inherent right (other than the right to ask). I would contrast that with a hypothetical case of a lot owner in a STLS refusing to contribute funds for necessary common property maintenance because they would instead like to spend the money on themself - in that case, an adjudicator might find that their opposition was unreasonable insofar as it was inconsistent with their obligation as a body corporate member to maintain common property, even when they have a competing right to spend their money as they wish. That is simply to say that whether a self-interested decision is reasonable will depend on circumstances including the subject matter of the proposal and the consequences of opposing it. Their entitlement to act with self-interest is therefore not unfettered.
• [58] I will deal with my sixth and seventh points, above, together, and I will start by considering whether there is technical compatibility between item 26 and section 276(1)(a).
• [59] I will pause here to note that item 17 is clearly compatible with section 94(2), because both explicitly deal with a body corporate's reasonableness, and it also follows that item 17 is compatible with an order pursuant to section 276(1)(a) for a contravention of section 94(2).
• [60] In Ainsworth, the High Court found error in the adjudicator's contention that item 10 represented a circumstance which could be prosecuted through section 94(2). Firstly, that was because item 10 and section 94(2) are referrable, by their nature, to different limbs of section 276(1): section 94(2) operates through subsection 276(1)(a) because they both deal with contraventions of the Act; whereas item 10 operates through subsection 276(1)(b) because they both deal with the exercise of rights etc. However, while item 26 on its face also deals with the exercise of rights etc, section 94(2) and 111H(3) drag it into the realm of contraventions. While that may seem like forcing a square peg into a round hole, that is what deeming provisions can do - create legal coherence out of discordance. The High Court in Ainsworth had no equivalents of sections 111E(2) and 111H(3) to similarly knock the metaphorical corners off item 10.
• [61] Further, the High Court noted there was different machinery in Sched 5 for enforcing section 94(2), namely item 24. But in this case, regardless of item 24, item 26 clearly is machinery for enforcing section 94(2), because the circumstance described in item 26 is explicitly repeated in the examples for section 94(2). That is also consistent with 111H(3) of the Act deeming a decision not to enter a LOA to be a decision of the body corporate.
• [62] I am therefore satisfied that, in a technical sense, section 276(1)(a) is a power for enforcing section 94(2) through an item 26 order.

[63] Going to the next step, I also consider that section 94(2) and item 26 are not incompatible in a practical sense, for the following reasons.

• [64] The difficulty here, on its face, is that item 26 focusses on the reasonableness of the individual (where acting with self-interest is considered reasonable), whereas section 94(2) is said ordinarily to require consideration of the interests of all affected parties, ie a balancing exercise. However, for the following reasons, I do not consider it necessary to apply section 94(2) of the Act to a decision about a LOA in the same way one might apply it to other body corporate decisions, and thereby inconsistently with item 26.
• [65] In reality, body corporate decisions are made in different ways in different contexts. The practical mechanics of a decision made by an owner voting in a general meeting, and one made by a committee, and one made in a STLS, are different, yet all of those decisions are subject to section 94(2).[33] Common to all decisions on reasonableness is the view that it must be assessed in all of the circumstances,[34] and those circumstances include the nature of the decision-making process - section 94(2) requires a body corporate to 'act reasonably' in making a decision. That is not to say that reasonableness has different meanings depending on the context - objectivity, relevance, rationality and the like are touchstones in all contexts - but rather, a decision is not made in a vacuum, and understanding and acknowledging the circumstances in which the decision is made provides the framework for assessing the reasonableness of the conduct in the particular case.
• [66] Looking at it another way, section 111E(2) deeming a LOA to be a body corporate decision to which section 94(2) therefore applies does not mean that, in reality, a LOA shares all the characteristics of a body corporate decision made in a general meeting or a committee meeting. One might say it does no more than acknowledge that, because there are no committee or general meeting resolutions under the STLS Module, there must be some way of giving a LOA decision the formal status of a body corporate action. It also serves the purpose of distinguishing formal agreements between the two owners about body corporate affairs from informal agreements between neighbouring owners which do not relate to the body corporate's affairs (for example, one agreeing to feed the other's pet while they are away), or formal agreements between those owners for matters unrelated to the body corporate (for example, when one sells personal property to the other).
• [67] If one accepts that section 94(2) may apply differently in different decision-making contexts, then it is a short next step to say that its interests-balancing requirement can be satisfied in different ways. In this case, the context is a decision by one owner in the face of a proposal by the other owner, and in my view that in itself can satisfy the balancing requirement - the body corporate's decision has two steps, in which the interests of the proponent are accounted for in their formulating and putting up the proposal, and the interests of the other owner are accounted for in their consideration of it. As I suggest above, requiring an opposing owner to go further and consider the other owner's interests in the LOA would ignore the terms of item 26, the clear, considered, unanimous view of the High Court about a strongly analogous provision (item 10), and the reality that the proposer need not have the other owner's interests in mind.
• [68] In light of that, in my view, while section 94(2) of the Act applies to owners in a STLS failing to enter into a LOA, the section is not contravened for a lack of consideration by the opponent of the proponent's interests. To put it another way, for the purposes of an item 26 order, if the adjudicator is not satisfied that an owner in a STLS was unreasonable as to their own interests in not entering into a LOA, they cannot be satisfied that the body corporate acted unreasonably in making its decision, in contravention of section 94(2) of the Act. I also consider that item 17 may be applied consistently with this application of item 26 and section 94. That is, in this context, the body corporate's reasonableness is adjudicated with reference to the reasonableness of the opposing owner's decision, and without requiring an interests-balancing exercise.

• [69] I now turn to the parties' submissions.
• [70] The applicants say:

• Numerous attempts have been made to resolve the matter directly with Mr Raynor since June 2023. Despite these efforts, Mr Raynor has consistently refused to engage in direct discussions and has instead referred us to his lawyer.
  • Lot 1 is already substantially developed and we are seeking to do likewise on the exclusive area for our lot.
  • The objections we have encountered primarily concern the size and location of our proposed shed. Key considerations include:
    • − Our proposed 10 x 7 metre shed is significantly smaller than the existing shed on Lot 1, which measures 14 x 9 metres and is 7.5 metres high.
    • − The proposed shed is a reasonable and proportionate structure for a semi-rural area and is intended for storage purposes.
    • − We have plans, approvals, certifications and quotes.
  • As to the issues of the elevation of the shed and its impact on the lot 1's views:
    • − Lot 2 is situated at a lower elevation (approximately 35 m Australian Height Datum) compared to Lot 1 (approximately 40 m Australian Height Datum), making the shed's height and placement on Lot 2 less intrusive.

• − The shed's maximum height is 3.68 metres, which is below the slab level of Lot 1.
  • − The primary views from Lot 1 are to the northeast and southwest, while Lot 2 is oriented east-west. Therefore, the shed's proposed location will not block or negatively affect the views from Lot 1.
  • − We have also planted trees along the shared boundary to further screen the shed from view, ensuring minimal visual impact.

• As to traffic and usage impact:
  • − The shed is intended solely for the storage and retrieval of items. This limited use will not increase traffic or noise levels to the property.
  • − The current concern from tenants at Lot 1 regarding increased traffic is unwarranted.
  • − We are presently paying $400 per month (and have been doing so since moving into the property in June 2023) for storage of furniture and belongings that we wish to store on site in a shed constructed for this purpose.
  • − The storage facility will reduce the need for us to make trips to a commercial storage facility, thus decreasing traffic on the common driveway.
• As to unsuitable locations for the shed:
  • − The northern end of Lot 2 is not suitable for the shed due to its use as the only access point to the rear of the property.
  • − Additionally, there is insufficient space to place the shed in this location, in compliance with council regulations.
  • − The rear of the property cannot accommodate the shed due to the location of the effluent disposal system. Any modification to this system would constitute a development offence, as stipulated in the Decision Notice for the property.
• Given these factors, we believe the proposed shed is a reasonable improvement to the property and does not negatively affect the interests or rights of the owner of Lot 1.

• [71] Mr Raynor, the second respondent, says:
  • My daughter Lauren Raynor is an occupier of Lot 1. She informed me of a conversation she had in about July 2023 with Murray Wills' father, Geoff, who informed her that they had plans to convert the existing garage of Lot 2 into a granny flat.
  • We were initially told the ultimate purpose of the shed was to allow the existing garages to be repurposed into additional dwelling rooms, facilitated by the shed effectively becoming a garage. Since then, we have been told the shed is needed for storage of belongings. I understand the belongings the applicants have in storage are in a facility no bigger than a single car garage that typically measures 2.9 m by 5.8 m equating to approximately 16.8 square meters. I can only assume that it is for the purpose of parking cars as well as storge, in order to facilitate a later conversion of the existing garages to dwelling rooms.
  • A number of conversations ensued over the course of time about the proposal, including concerns about the size and location of the proposed shed. Geoff informed Lauren that an alternative size and location for the shed were not being considered, due to the fact they had already purchased the 10m by 7m shed.
  • The proposal for the construction of a shed would have it situated near the boundary of the exclusive use areas and therefore it would likely interfere with the tranquillity and privacy of the Lot 2's occupiers.
  • The shed is proposed to be 70 m² in size. No explanation is given as to why the proposed location is necessary or why the proposed size is necessary. In fact, the applicants' material suggests that they need nothing more than a regular sized storage shed for the storage of goods.
  • Where there is an appropriate alternative location for a more appropriately size shed, and where the location and size of the shed proposed by the applicants will interfere with the tranquillity and privacy of the occupiers of lot 1, the application should be refused.
  • That decision to oppose the proposed location and the size of the shed should also be considered in light of circumstances where the applicants have said the shed would be utilised for the parking of cars, which would have a direct impact on the tranquillity and privacy of the occupiers of lot 1.
  • It should not be lost that the respondents have already indicated agreement to a shed in an alternate location and size such that body corporate approval will be obtained without the need for an application.
  • When I subdivided the property into two lots, I ensured the dwelling was appropriate in the sense that it had a three car garage that was sufficient to meet the needs of new owners.
  • The applicants purchased Lot 2 of the Scheme with their eyes wide open, knowing the property they were purchasing formed part of a Community Titles Scheme. They knew or should have known the approvals they would require to make changes to the property.
  • The shed on Lot 1 does not impact on the amenity of Lot 2 as if it did, the applicants would not have proceeded with the purchase of Lot 2. The presence of an existing shed on Lot 1 does not grant the applicants automatic permission to build a shed of any size or in any location, especially one that impacts the amenity of Lot 1, when viable alternative spaces are available.
  • In the decision Ainsworth v Albrecht [2016] HCA 40 the High Court held that the task of an adjudicator was not balancing competing considerations, but determining whether the opposition to the proposal was unreasonable, noting that it is no light thing to conclude that opposition by a lot owner to a resolution is unreasonable where adoption of the resolution will have the effect of interference with the tranquillity or privacy of an objecting lot owner. The refusal by the respondents in all the circumstances is not unreasonable.
  • Prior to this application, the respondents put forward the alternative location and size for the shed, which the applicants had not taken up, and did not provide a reasonable explanation as to why that was not suitable for the needs. By refusing to adopt the alternate location and size, the applicants have themselves acted unreasonably by failing to consider the effect of interference with the tranquillity and privacy of the respondents.
• [72] Mr Raynor also provides a signed statement from Lauren Rayner confirming the essential matters in Mr Raynor's submission, including as to:
  • Geoff Wills' alleged conversation with her about the applicants' intention to convert the existing garage into a granny flat, and
  • the anticipated effects on lot 1's occupiers if the proposed shed were installed, mainly in regard to the increased number of occupiers of lot 2 (presumably because the existing garage would be converted to living area) and the resulting increased traffic on the common roadway, and the impact of the shed's size and close location to lot 1, visually and in regard to overland water flow.

[73] Lauren Raynor's contemporaneous text message of 15 September 2023 generally confirms those concerns:

Hi Geoff, I have spoken to both my parents and they have advised that they would like to know legally what the rules are regarding this, and also what approval is necessary. Both have concerns regarding the size of the shed and it being so close to the boundary fence, as well as any additional traffic that may be associated with it. At this stage we can't say yes to this being built. My dad has also expressed concerns that the building is due to take place tomorrow according to Murray. This is not adequate time for any decision to be made. Thanks Lauren

• [74] In reply submissions, the applicants say:
  • The assertion that the shed will be used for additional vehicle parking is incorrect - the shed is solely intended for storage, to replace costly off-site facilities.
  • Any information presented in relation to Geoff Wills' conversations or comments is irrelevant to this application. Geoff Wills is neither an owner nor a decision-maker for Lot 2 and his statements should not be considered in the adjudication.
  • We recognise that we entered the purchase of this property without a thorough understanding of the legislation related to a two-lot scheme. Unfortunately, we were misled by both the real estate agent and our solicitor (at the time of purchase) into believing that the only area involved in this scheme was the common use driveway.
  • We only became aware of the full implications of the two-lot scheme after consulting with a private building certifier and asking the respondent for their approval. At this time we contacted a new lawyer and learnt the by-laws of the two lot scheme. We have continually followed all correct processes and abided by the By Laws.
  • The shed's location and size have been designed within council regulations and do not significantly impact Lot 1. The proposed location is the most practical for the property layout and council compliance.
  • Mr Raynor has declined to engage in constructive resolution discussions and instead misrepresented facts to support their objections.

• [75] Broadly described, the scheme land is rectangular, with lot 1's buildings on the right half and lot 2's buildings on the left. Title for each lot is confined to the depicted buildings, the rest of the scheme land being designated as common property. By-law 5 of the CMS grants exclusive use rights over common property, by reference to Schedule E of the CMS. The exclusive use areas comprise most of the remaining scheme land, save for the driveway servicing both lots, and those areas are separated by a line running about north-south through the scheme, and about half way between the lots. Lot 1 is granted area "A", comprising about the right half of the scheme, and Lot 2 is granted the area "B", comprising about the left half. The plan describes area "A" as 2513 m2 and area "B" as 2386 m2.
• [76] Through by-law 5, exclusive use is granted "for the purpose of garden, lawn and any other purpose lawfully permitted and compliant with the use of the Scheme land under the provisions of the town planning scheme for the local authority". Schedule E is worded differently but is largely the same, describing the permitted uses as "driveway and/or general yard and vegetation". As I noted above, there is no dispute that the by-law does not specifically allow for the proposed improvement and so the legislation requires the owners to make a LOA about it.
• [77] The proposed LOA was put to Mr Raynor by letter dated 26 March 2024. The LOA in full is expressed as follows:

The Body Corporate acknowledge and agree to support an application by the owner of lot 2, to undertake all or any of the following works:

1. Construct a shed 10 metres long and 7 metres wide not closer than 1.5 metres to the boundary of the exclusive use area of common property allocated to lot 2, as shown on the plan attached and to then have that area augmented to lot 2 on completion.

2. Constructed an inground or above ground pool on the common property allocated to lot 2, as shown on the plan attached and to then have that area augmented to lot 2 on completion (if applicable); and

3. Create additional parking area on the common property allocated to lot 2, as shown on the plan attached and to then have that area augmented to lot 2 on completion (if applicable).

(a) Building design and approval by certifier or Council

(d) the surveyor for preparation of a new Survey Plan and revised Exclusive Use plan,

(e) registration fees for the survey plan and New Community Management Statement once the works are completed and the survey plan drawn; and

(f) anything otherwise reasonably necessary to achieve the result of adding the Works to the title of lot 2.

• [78] The proposed LOA seeks agreement for three types of works: to construct the shed, to construct a swimming pool, and to create a (presumably unenclosed) additional parking area for lot 2. The proposal, if accepted, would also have the areas relative to those works "augmented to lot 2 on completion (if applicable)". I cannot find any reference to the word "augment" or "augmented" in this or the related legislation. It seems to me that the plain meaning and effect would have those areas of common property given up by the body corporate and incorporated into lot 2, as indicated also by item (f) of the LOA. As this is not addressed in the submissions or specifically sought in the outcome expressed in the application (which is limited to getting approval to construct the shed) perhaps this part of the proposal is no longer pressed by the applicants. In any event, I note that where an allowed improvement to common property will be enjoyed exclusively and indefinitely by a lot owner, that approval may amount to a gift of that common property to the lot owner, in which case the body corporate should effect that by clear and unambiguous terms[35] and consistently with section 33 of the STLS Module.
• [79] I have concluded, above, that the proper approach is to apply the reasonableness test proposed in Ainsworth. That is, in considering the LOA, Mr Raynor, acting reasonably, need not have balanced the competing interests by taking into account factors favouring the applicants (whether an item 17 or item 26 order is contemplated). Ainsworth also requires me to assess the decision's reasonableness according to the circumstances of the time Mr Raynor made it. It is difficult for an adjudicator to be reasonably satisfied that opposition was unreasonable unless there was no rational and substantial basis for it, or unless it appears the opposition was driven by spite, ill-will, or attention-seeking.[36] The onus rests with the applicant to convince the adjudicator that the dissenting owner acted unreasonably.[37]
• [80] I find that Mr Raynor's opposition to the LOA was driven primarily by his concern about the visual impact of the large shed being located close to his lot and the potential for the shed to substantially change the uses of lot 2 to the detriment of the enjoyment of lot 1, especially by increasing vehicular traffic near his lot. In my view, they are prima facie relevant and rational considerations and they are not, as the applicants assert, merely 'arbitrary preferences'.
• [81] That the concerns were genuinely held at the time is also not in doubt - the evidence from Lauren Raynor and the contemporaneous text message satisfies me that they were always Mr Raynor's and lot 1's occupier's concerns. Further, as Mr Raynor says, the status quo is evidence of his preference for the appearance and use of lot 2 because he developed the scheme in that way. The applicants say they dealt with the concern about visual impact by proposing to plant trees in the sightline, but that solution appears not to be acceptable to Mr Raynor, and that also does not seem to be a necessarily unreasonable position for him to take. There is no certainty the trees would fully soften the visual or noise impact of the shed, and even if the trees achieved that effect and were a suitable solution for Mr Raynor in the short term, there is no obligation on the applicants to maintain the trees so that they would continue to have that effect in the long term.
• [82] The applicant's say that any evidence in relation to Geoff Wills' conversations or comments is irrelevant because he is neither an owner nor a decision-maker for Lot 2. Presumably, they are referring to the alleged statement by Geoff Wills that the applicants intend to convert the existing garage into a granny flat. I also presume that this point is intended to bolster their contention that the shed would only be used to store household items and not also vehicles (which would be displaced from the garage if it were converted). Whether any information or evidence is relevant to a determination is a matter for the adjudicator, depending on the findings to be made and the dispute to be resolved. If instead the applicants mean that it is inadmissible, again I disagree. I am not bound by the rules of evidence,[38] although I must still be satisfied the evidence is reliable. In that regard, I note the evidence is given by a first-hand witness to the conversation in her signed statement. There is no indication that Lauren Rayner is not a reliable witness, nor that her evidence is inherently implausible. I note also that the applicants do not specifically deny that the existing garage will be converted to a granny flat, although they do insist that the proposed shed is not intended for vehicle storage and would only be used for household items. Even if mere storage for household items is the applicants' present intention, the proposed LOA makes no mention of limiting the shed's future uses. If its use changed and became an annoyance to lot 1's occupier's, there is no reasonable prospect of the location being changed once installed, and Mr Raynor's only recourse would be an application to this office in the nature of a nuisance claim, with no certainty of success. I therefore find that Mr Raynor had reasonably held concerns about the shed's potential impacts at the time he made his decision.
• [83] I cannot see in the evidence and indication that Mr Raynor was motivated substantially by spite, or ill-will, or irrational objections to change per se. Such a finding would be inconsistent with Mr Raynor's position that he would consent to a proposal for a smaller shed, and that he does not object in principle to the construction of the proposed pool.
• [84] In light of that, I am not satisfied that the body corporate's decision, or alternatively Mr Raynor's decision, not to accept the LOA for the applicants' proposed shed was unreasonable.
• [85] For completeness, I will also address the applicants' contentions which may have been relevant to an interests-balancing approach to the reasonableness requirement in this case.
• [86] The applicants say they should be allowed to have a shed including because lot 1 has one, but I do not see any force in that argument. The inescapable fact is that the applicants bought the lot knowing it was without a shed. I can accept they were ignorant of the restrictions on their rights to make improvements when they purchased the lot, but I cannot accept that to be a factor in their favour in this application. The applicants cannot now have any more rights than they in fact had at the time of purchase, due simply to their ignorance of the true position. Whether they were mistaken or misled, if any remedy or special dispensation is due to them, it should not come at Mr Raynor's cost. The true position is that the applicants could not have had any reasonable expectation, given the terms of the CMS and the legislation concerning owner decision-making in a STLS, that any improvements proposals would be agreed to. Nettle J squarely addressed that notion in Ainsworth, saying: "The fact that a lot owner might have had an interest in improving his or her lot was not a prima facie affirmative proposition, the pursuit of which can be assumed to be appropriate or supported by other lot owners."[39]
• [87] I am not satisfied that an additional 70 m2 of storage is necessary for the reasonable enjoyment of lot 1, especially when it already has a 3-vehicle garage. Further, the applicants' assertion that the proposed location is necessary or the only practicable solution is not borne out by the evidence. It is, rather, as much a matter of preference, indicated for instance by the applicant's email of 17 July 2024 to Mr Raynor, which says in part:

We purchased a 5 BR home on a half acre block for enough space to have a home, a garage and a shed. Currently our belongings are in storage at Robina which is not ideal. It is very costly and inconvenient. All we are proposing is the permission to build a shed next to the house to move our belongings to. Your daughter Lauren asked why we can't build this shed on the other end of our house. We park our vehicles there. If we put our shed there, which there is not enough room for anyway, it would then force us to be parking our cars at the other end of our home and we do not want to be driving across the lawn to park cars.

• [88] The applicants have no right to make the proposed improvement and Mr Raynor was under no obligation to agree to it. The improvement is not necessary for the reasonable enjoyment of lot 2, and the applicants could not have had any reasonable basis to expect it would be approved. Mr Raynor's grounds for objection were relevant, rational and evidence based. Accordingly, he or alternatively the body corporate did not act unreasonably in declining to make the LOA.
• [89] It follows that I will dismiss the application.

[1] Body Corporate and Community Management Act 1997 (Qld)

[2] See generally Ch 3, Part 1, Div 5 of the Act.

[3] [2016] HCA 40

[4] Viridian Noosa Residences [2013] QBCCMCmr 351 (Viridian) at [59]

[5] Re Body Corporate for Viridian; Kjerulf Ainsworth & Ors v Martin Albrecht & Anor [2014] QCATA 294

[6] Albrecht v Ainsworth & Ors [2015] QCA 220

[7] By implication, pursuant to section 276(1)(a), because it deals with contraventions of the Act.

[8] Ainsworth at [10], [47] per French CJ, Bell, Keane and Gordon JJ (joint reasons)

[9] Ainsworth at [27] per joint reasons, [71] per Nettle J

[10] Ainsworth at [27] per joint reasons, [71] per Nettle J

[11] Ainsworth at [71] per Nettle J

[12] Ainsworth at [47]-[50] per joint reasons

[13] Ainsworth at [27] per joint reasons, [71] per Nettle J

[14] Ainsworth at [60] per joint reasons

[15] Ainsworth at [56], [[63] per joint reasons

[17] Ainsworth at [51] per joint reasons. The court's reference to Waters v Public Transport Corporation relates to the finding in that case that a decision maker, acting reasonably, is required to strike a reasonable balance by weighing all the relevant factors.18

[19] Ainsworth at [45] per joint reasons

[20] Ainsworth at [55] per joint reasons

[21] Ainsworth at [63] per joint reasons

[22] Ainsworth at [85] per Nettle J

[23] Ainsworth at [101] per Nettle J

[24] Noting that a LOA is only made in a STLS.

[25] That principle is sometimes expressed as the maxim 'generalia specialibus non derogant'. See for eg Ferdinands v Commissioner for Public Employment [2006] HCA 5 at [106]- [107]

[26] Ferdinands v Commissioner for Public Employment [2006] HCA 5 at [108]

[27] [2017] QCATA 53 (Trojan) at [24], following Ainsworth at [48]-[51] per joint reasons

[28] [2016] QCATA 177 (Beaches) per Carmody J at [100]

[29] Provided they otherwise act lawfully.

[30] [2016] QCATA 177

[31] A committee member in schemes regulated by other regulation modules must not vote on a motion about which they have a direct or indirect conflicting interest in it: see for eg s 66(2) Body Corporate and Community Management (Standard Module) Regulation 2020.

[33] Ainsworth creates an exception for a motion requiring a resolution without dissent. Section 100(1) of the Act deems a committee decision to be a body corporate decision.

[34] For eg: Ainsworth at [60], [63] per joint reasons; [71], [101] per Nettle J; Body Corporate for the Reserve CTS 31561 v Trojan Resorts Pty Ltd [2017] QCATA 53 (Trojan) at [24]; Beaches at [42], [97]

[35] See Katsikalis v Body Corporate for "The Centre" [2009] QCA 77 at [25]- [32]

[36] Ainsworth at [63] per joint reasons

[37] Ainsworth for eg at [89], [97] per Nettle J