The Body Corporate for Beach Front Apartments on Trinity Beach (respondent)

Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(h) and 229(3)(a)

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

INTERIM ORDER - The body corporate passed a motion to give body corporate consent to owners making a material change of use application for the scheme to the local government authority. The applicant is the authorised letting agent and seeks an interim order that the body corporate inform the local government authority that it temporarily withdraws its consent, pending a final determination of whether the motion was lawfully passed. The main complaints are that the motion was not properly grouped as one of 3 same issue motions, and otherwise that passing the motion was unreasonable because it will diminish the income and value of the letting business. The question is whether an interim order is warranted in the circumstances.

Body Corporate and Community Management Act 1997 (Qld): ss 94(2); 279(1)

Body Corporate and Community Management (Accommodation Module) Regulation 2020: s 79

• [1] B. Montgomery Pty Ltd ACN 079 110 393 as trustee for the Montgomery Family Trust (applicant) is the caretaker and letting agent for Beach Front Apartments on Trinity Beach CTS 32389.
• [2] This is an application for interim and final orders to stop or undo the implementation of the body corporate's decision to pass motion 15 of its 2025 annual general meeting held 7 May 2025 (AGM).
• [3] The resolution gave the body corporate's consent to lot owners lodging a material change of use (MCOU) application with the local government authority. The MCOU application is for approval to allow lots also to be used also for permanent occupancy, in addition to the currently approved use of short-term accommodation. The MCOU application has since been lodged with the local government authority.
• [4] The applicant is concerned that, if the MCOU application is approved, the income from and value of the rights it purchased to be the scheme's letting agent will be substantially diminished, because there will be reduced letting and associated activity.
• [5] Presently for determination is the application for interim orders, expressed as follows:

[T]he Body Corporate must not take any steps to implement Resolution 15 in the 2025 AGM, including that:

(i) the committee may not be a party to or provide consent to any Development Application to amend, add to, change or vary the applicable use of lots at the Scheme from the existing, sole use of short term accommodation and if such consent has already been given or participation in such a Development Application has already occurred, it must be withdrawn until a Final Order is given; and

(ii) the committee is not to sign, execute or otherwise enter into any documents on behalf of the Body Corporate in relation to Motion 15 until final orders are made, and if such documents have been signed, executed or otherwise entered into, the committee must withdraw that document until final orders are made

• [6] For determination in due course is the application for the following final orders:

[T]hat Resolution 15 "Change of use to include permanent residential accommodation" passed by ordinary resolution in 2025 AGM was at all times, void.

• [7] The applicant applies for the orders on 3 grounds, essentially:

¾ a timing issue, in that the Body Corporate should not have consented to the MCOU application until the statutory timeframe of three (3) months given by section 242(2)(b) of the Act had expired

¾ an agenda issue, in that motions 13, 14 and 15 are 'same issue motions' but were not presented as such in the AGM papers in the way required by section 79 of the Accommodation Module, and nor was the explanatory schedule prescribed by section 80(4) of the Accommodation Module included in the papers. Accordingly motion 15 was void from the outset and could not have been voted upon, and

¾ a decision making issue, in that the body corporate acted unreasonably in passing motion 15, in contravention of section 94(2) of the Act, and accordingly the resolution was invalid.

• [8] In summary, I have declined to make interim orders because I am not satisfied that the applicant's case is sufficiently strong to warrant it.

• [9] Beach Front Apartments on Trinity Beach CTS 32389 comprises 20 lots and common property. It is governed by the Body Corporate and Community Management Act 1997 (Qld) (Act) and, as specified in its community management statement, the Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module).
• [10] The applicant applies in its capacity as the scheme's caretaking service contractor, which is the term used in the Act to describe someone who is both the caretaker and letting agent. Accordingly, the dispute is within the Act's jurisdiction pursuant to section 227(1)(d) of the Act, which applies to disputes between a body corporate and its caretaking service contractor.
• [11] That raises an important question about my capacity to decide this application, because disputes in that category of section 227(1) would usually be a complex dispute and therefore fall outside a department adjudicator's jurisdiction. Section 229(2) of the Act provides that 'the only remedy for a complex dispute' is a resolution of the dispute by a specialist adjudicator (which I am not) or QCAT. The necessary implication of the words 'only remedy' is that only a specialist adjudicator or QCAT has jurisdiction to decide a complex dispute.[1]
• [12] Schedule 6 of the Act defines complex dispute with reference to disputes mentioned in one of various provisions of the Act, including section 149B. Section 149B provides that it applies to a dispute about a 'claimed or anticipated contractual matter' including about the engagement of a caretaking service contractor, and confirms that a party to such a dispute may apply to a specialist adjudicator or QCAT for an order to resolve the matter. A caretaking service contractor is defined by Schedule 6 of the Act to mean a service contractor for the scheme who is also a letting agent for the scheme, which is the case here. Schedule 6 defines a contractual matter as follows:

contractual matter, about an engagement or authorisation of a body corporate manager, service contractor or letting agent, means - > > (a) a contravention of the terms of the engagement or authorisation; or > > (b) the termination of the engagement or authorisation; or > > (c) the exercise of rights or powers under the terms of the engagement or authorisation; or

(d) the performance of duties under the terms of the engagement or authorisation.

• [13] However, in this case, I consider the dispute is best characterised as primarily about the lawfulness of the body corporate decision to pass motion 15, and my determination of the application does not require findings about a contractual matter.
• [14] Accordingly, I am satisfied that the application is within an adjudicator's jurisdiction.

• [15] An adjudicator may make an interim order only if satisfied it is necessary due to the nature or urgency of the circumstances.[2] Accordingly, an applicant must satisfy the adjudicator that serious and irreparable harm would be caused without the interim order.
• [16] An interim order has effect for a period stated in the order, not to be longer than one year, and may be extended, varied, renewed or cancelled by the adjudicator until a final order is made, and otherwise lapses when an application is finally determined or withdrawn.[3]
• [17] In deciding whether an interim order is warranted, adjudicators often adopt the approach taken by courts to considering interlocutory injunction applications.[4] The first issue is whether the applicant has made out a 'prima facie case' or raised a 'serious legal question', in the sense that if the evidence remains as it is there is some probability that the applicant will succeed at the final determination stage. The second issue is whether, assuming there is a prima facie case, any inconvenience or injury which the applicant would be likely to suffer if an interim order were refused outweighs or is outweighed by any inconvenience or injury which the respondent would suffer if an interim order were granted.
• [18] Those two issues of serious legal question and balance of convenience are parts of one ultimate question - whether an interim order is warranted - and therefore should not be addressed mechanically or in isolation from one another.[5]
• [19] The questions of law and fact raised by the application do not need to be finally decided at the interim order determination stage, and doing so is not appropriate where the evidence is potentially incomplete or questions of law require opposing arguments and unhurried consideration. That said, if the answer to a question of fact or law is clear on the evidence and issues, as presented in the interim order application, it may be appropriate and beneficial to express strong preliminary views about that and even to decide such questions at the interlocutory stage.[6]

15 Change of Use to include permanent residential occupation Ordinary Resolution

Body Corporate for CTS 32389 to approve that the committee provides owners consent for common property to accompany any development application(s) to Cairns Regional Council from any individual lot owner or owners seeking a Material Change of Use for permanent residential occupation as well as existing short-term holiday letting.

This cost would be met by each lot owner wanting "residential occupation as well as existing short term holiday letting" and the Body Corporate for CTS

• [21] Motion 15 passed, with 12 votes in favour, 6 against and 1 abstention. Motion 15 refers also to motions 13 and 14, which also potentially gave the body corporate's consent to lodging the MCOU application. The AGM minutes record that motions 13 and 14 were ruled out of order, but also record the votes cast for and against them, being 0 in favour and 6 against, and 0 in favour and 7 against, respectively. Presumably, those votes were cast before the meeting opened.
• [22] The change of use application has since been lodged with evidence of the body corporate's consent. In the materials before me is a document titled 74-7 Moore Street, Trinity Beach, Lot 0, 2-6, 8, 12-13 and 15 TOWN PLANNING REPORT MATERIAL CHANGE OF USE (MULTIPLE DWELLING / SHORT-TERM ACCOMMODATION). The MCOU application:

... seeks to facilitate dual land uses at the site to lawfully enable occupants to reside at the premises on a long-term basis through establishing Multiple Dwellings on site, in addition to the continuation of existing use rights for shorter-term holiday accommodation (Short-term Accommodation).

• [23] At Schedule 4 - OWNERS CONSENT to the change of use application is a copy of the AGM minutes evidencing that motion 15 was passed. Also attached is a document titled Body Corporate owner's consent to the making of a development application under the Planning Act 2016 executed on 17 June 2025 by the body corporate manager, apparently on behalf of the body corporate, indicating the body corporate's consent to the application's lodgement.
• [24] By way of background, the applicant says:

¾ The Scheme is identified within the Tourist Accommodation Zone as per Cairns Plan 2016. The Tourist Accommodation Zone Code taken from the Cairns Plan 2016 relevantly provides that the Tourist Accommodation Zone is to provide for:

• − short term accommodation, and
• − community uses and small scale services, facilities and infrastructure, to support short term accommodation and tourist attractions

¾ The 20 lots within the Scheme are holiday apartments.

¾ The Cairns Plan 2016 defines short term accommodation as:

(i) providing accommodation of less than three (3) consecutive months to tourists or travellers; or

(ii) a manager's residence, office or recreation facilities for the excusive use of guests, if the use is ancillary to the use in subparagraph (i), but

(b) does not include a hotel, nature based tourism, resort complex or tourist park.

Examples: includes motel, backpackers, cabins, serviced apartments, accommodation, hotel, farm stay. Does not include hostel, rooming accommodation, tourist park.

• [25] I will firstly address whether there is a prima facie case for any of the grounds advanced by the applicant.

• [26] The applicant says the respondent should not have consented to the MCOU application until the statutory timeframe of 3 months given by section 242(2)(b) of the Act had expired. The MCOU application was lodged on 3 July 2025 and the Body Corporate gave its consent via the Body Corporate Manager on 17 June 2025.
• [27] Section 242(2)(b) in effect requires that an application to declare void a committee or body corporate resolution must be made within 3 months of the meeting at which the decision is made. It does not require a committee or body corporate to wait 3 months before it implements such a decision. Indeed, it is generally preferable for decisions to be implemented without delay.
• [28] Accordingly, there is no prima facie case in regard to this ground.

¾ Motions 13, 14 and 15 in the 2025 AGM all dealt with alternate ways of the Body Corporate making or consenting to a development application to Cairns Regional Council for a material change of use to allow permanent residential accommodation as well as short term letting (which is currently the only type of use permitted in lots within the Scheme).

¾ Motions 13, 14 and 15 were not included in the 2025 AGM Agenda as a Group of Same Issue Motions as required by section 79 of the Accommodation Module and nor was the explanatory schedule prescribed by section 80(4) of the Accommodation Module included in the 2025 AGM Agenda.

¾ Prior to the 2025 AGM being held, the Applicant instructed our firm to write to the Body Corporate to put the Body Corporate on notice that Motions 13, 14 and 15 in the 2025 AGM Agenda were void, pursuant to section 79(9) of the Accommodation Module because there was more than one motion included on the Agenda which proposed alternative ways of dealing with the same issue and they were not presented as a group of same issue motions.

¾ We requested that the Chairperson ruled the Motions out of order pursuant to section 88 of the Accommodation Module. The Minutes of the 2025 AGM show that, in the event, Motions 13 and 14 were ruled out of order at the 2025 AGM, however, Motion 15 was not ruled out of order and it was voted upon as a valid Motion.

¾ Motion 15 was submitted by a lot owner, whereas Motions 13 and 14 were submitted by the committee. However, the lot owner who submitted Motion 15 must have had prior knowledge of Motions 13 and 14 because the words "Should Motion 13 and 14 be defeated" were included as a precondition to Motion 15 being considered, at the beginning of Motion 15.

¾ This is not a case where, if Motion 15 is declared void, a lot owner is disadvantaged by an error made by the committee in preparing the 2025 AGM Agenda and failing to include the three Motions as a Group of Same Issue Motions. The lot owner was cognisant that the other two Motions would be included on the Agenda, as is apparent from the drafting of Motion 15.

• [30] Section 79 of the Accommodation Module requires that, where there are two or more motions which propose alternative ways of dealing with the same issue, the committee must list those motions as a group of same-issue motions on the voting paper for the general meeting. The relevant provisions, including as to the effect of non-compliance, are:

(1) This section applies if 2 or more motions (the original motions) proposing alternative ways of dealing with the same issue are submitted, under section 76, for consideration at a general meeting of the body corporate.

(2) The committee must list the original motions as a group of motions dealing with the same issue (a group of same-issue motions) on the voting paper for the general meeting.

(9) Other than for an original motion that is part of a group of same-issue motions, if more than 1 motion about the same issue is listed on the agenda, or stated in a voting paper, for the meeting all motions about the issue are void.

• [31] I accept that Motions 13, 14 and 15 deal with alternative ways of the body corporate giving consent for the MCOU application. I also accept that they were not properly presented as a group of same-issue motions on the issued papers. It also seems to be the case that there was no explanatory schedule for those motions, as required by section 80(4) of the Accommodation Module.
• [32] I do not accept the submission that the lot owner who submitted motion 15 ought to share responsibility for the error. It is the committee which alone has both the obligation and authority to prepare an AGM agenda and voting papers.[7]
• [33] The question is whether motion 15 was void, even though motions 13 and 14 were ruled out of order and therefore not voted upon. Section 79(9) clearly requires that if there is more than one motion on a general meeting's agenda or voting paper about the same issue, and those motions are not part of a group of same-issue motions, all of those motions are void. An original motion is, by definition in subsection 79(2), not a part of a group of same issue motions until such time as it is listed as a group of same issue motions.
• [34] It is arguable then that all of motions 13, 14 and 15 were void from the outset, ie as soon as that agenda and voting paper were issued without the motions being grouped appropriately. It seems to be an unfair and unnecessary outcome given that an owner's motion can be rendered void in such a fashion by a committee's error, and I doubt that was the intention of the legislature when the provision was drafted. However, it appears to be the outcome which necessarily follows from the terms of the provision.
• [35] This problem in a very similar circumstance was dealt with by Adjudicator Jones in Arcadia Gardens [2025] QBCCMCmr 193. An owner had submitted a general meeting motion and the committee also submitted a motion dealing with the same issue but failed to properly group them. The Adjudicator found that the committee acted unreasonably in erroneously preparing the meeting paper, and by reason of that declared the motion the committee submitted to be void from the outset, leaving the owner's motion to survive as the only motion on the agenda dealing with the issue:

[33] The applicant argues that this issue should not disadvantage them or their relief regarding Motion 15, as this is nothing more than a technical defect. It is true that technical deviations from the legislation will not necessarily render a decision of the body corporate invalid. However, defective motions should not stand unless exceptional circumstances exist. Exceptional circumstances may be where the irregularity was trivial and has no material impact, and the irregularity caused no prejudice or disadvantage to other parties.

[34] I cannot accept the applicant's argument because, even when the elements of exceptional circumstances are established, where the legislative text indicates an intention that the error would invalidate the motions, I am bound to find those motions are void. The wording of section 79(9) of the Accommodation Module could not be clearer in that respect - the necessary consequence of not properly grouping same-issue motions is that all of them are void. Nonetheless, this does not conclude the matter for the applicant.

[35] The applicant also says that it was 'not necessary' for the body corporate to propose Motion 14. The applicant's position may be better articulated as an argument that the body corporate acted unreasonably in its decision and action to propose Motion 14 and not list it on the agenda as grouped with Motion 15. I do not suggest the committee could not have reasonably proposed Motion 14, but rather, the act of proposing and not listing it as a group of same issue motions could not be a reasonable action where it does not comply with the legislation. I also note that, before taking that action, the body corporate would have to make a conscious or inadvertent decision to do that act. It is with this decision process and action that the issue arises.

[36] Section 79 of the Accommodation Module was introduced, along with other amendments, for the purpose of enhancing lot owner protections and stopping 'gaming' of the outcomes where there are multiple motions dealing with the same issue. I do not mean to say that the committee actively turned its mind to the issue and purposefully failed to comply with section 79, rendering the applicant's Motion 15 invalid - in that regard, I note the outcome of the committee's action is that the body corporate's Motion 14 would also be invalid. Rather, the circumstances suggest committee failed to pay heed to the extremely relevant factor of section 79 of the Accommodation Module when it decided to place Motion 14 on the agenda and voting papers in the way it did, thereby unfairly disadvantaging the applicant In their legitimate attempt to have the installation approved.

[37] In my view, the circumstances indicate that the committee failed to have proper regard to a highly relevant requirement - namely, section 79 of the Accommodation Module - when resolving to list Motion 14 on the agenda and voting papers. I am therefore satisfied that the committee acted unreasonably in proposing and placing Motion 14 on the agenda and voting papers in the manner that it did. I will make an order that invalidates the body corporate's decision and action in this regard.

[38] It then follows that the only valid motion proposed dealing with the air conditioning condenser is Motion 15, and section 79 of the Accommodation Module does not impact the validity of Motion 15.

• [36] In circumstances where the owner who submitted motion 15 is not at fault, and the motion was clearly the option supported by the majority of all owners, I consider the approach taken by Adjudicator Jones to also be the just approach in this case. That is, I find that the committee acted unreasonably in not properly listing its 2 motions on the papers as a group with motion 15, and accordingly motions 13 and 14 were void from the outset, leaving motion 15 validly standing as the sole motion dealing with that issue. It follows that there was also no contravention of the requirement to include an explanatory note for motion 15, because it was not part of a group of same issue motions.
• [37] I will consider making a declaration to that effect at the final determination stage. For present purposes, it is enough for me to decide that I am not satisfied the prima facie case for invalidating the resolution pursuant to motion 15 is made out.

¾ The Body Corporate must act reasonably in administering the common property, enforcing the community management statement and carrying out its functions under the BCCM Act, pursuant to section 94(2) of the BCCM Act.

¾ The Body Corporate has failed in its statutory obligation to act reasonably in approving Motion 15 because:

• − a material change of use to include concomitant permanent residential accommodation offends the:
  • tourist accommodation zone within which the Scheme is located;
  • original development approval for the Scheme;
  • the regulation module which applies to the Scheme, being the Accommodation Module; and
  • conditions which existed at the Scheme at the time the Applicant purchased the management rights at the Scheme, including the right to operate a letting business at the Scheme for short term accommodation holiday apartments.

¾ The original regulation module which applied to the Scheme was the Standard Module. Lot Owners decided by special resolution in 2013 to change the regulation module to the Accommodation Module, due to the nature of the Scheme. the Accommodation Module is not designed for community titles schemes that are used for permanent accommodation purposes. According to the Explanatory Memorandum for the Accommodation Module, it:

provides management processes designed for community titles schemes that are used predominantly for short or long-term letting purposes (including for example, holiday letting or serviced apartment operations) with the need for accommodation management.

¾ After changing specifically to the Accommodation Module from the Standard Module and putting long term Caretaking and Letting Agreements in place under the Accommodation Module, to introduce permanent residential accommodation to the Scheme is an unreasonable and inconsistent about-face which places the Applicant at significant and substantial financial disadvantage, having purchased the management rights business at the Scheme in reliance upon the fact that the Scheme allowed short term holiday accommodation only.

¾ The infrastructure on Scheme land, including carparking and activities permitted under the Letting Agreement, are tailored specifically to short term/holiday let accommodation and not to permanent residential accommodation, for example, until 30 June 2048 when the Letting Agreement expires, the Applicant may, without limitation:

• − Use an area of common property to park a courtesy bus or coach for the convenience of short term/holiday guests;
• − Hold an exclusive right to use areas of common property including the reception area and other areas for the conduct of the letting business;
• − Run a car hire business on Scheme land;
• − Provide cleaning, laundry and room service facilities;
• − Provide ticket sales, tour bookings and entertainment bookings;
• − Install and maintain amusement and vending machines on the common property;
• − Conduct the business of sales or letting agency for lots in the building; and
• − Provide serviced apartments within the building.
• [39] I can deal briefly with most of those arguments.
• [40] Whether permanent or long-term occupancy is inconsistent with local government zoning or the scheme's physical design is a matter for the local authority, and presumably those questions will be primary considerations in the local authority's decision on the MCOU application. I also presume the applicant may make a submission to the local authority on that question.
• [41] The MCOU application, if successful, will not necessarily result in the type of occupancy becoming predominantly inconsistent with the Accommodation Module.[8] If in fact that does eventuate, the Act contemplates a body corporate deciding to change to a more appropriate regulation module by recording a new community management statement, as the Applicant acknowledges. Further, the Act also expressly contemplates the effect that might have on rights awarded to service contractors and letting agent, by providing in section 128(2) that provisions of the existing regulation module applying to the engagement or authorisation continue to apply until the engagement or authorisation, including any renewal or extension of the engagement or authorisation, comes to an end.
• [42] The claim that the change in use of the scheme, if it occurs, would put the Applicant at significant and substantial financial disadvantage, having purchased the management rights business at the Scheme in reliance upon the fact that the Scheme allowed short term holiday accommodation only, bears closer consideration. As the Applicant notes, section 94(2) of the Act requires a body corporate to act reasonably, including in making a decision.
• [43] The leading authority on section 94(2) reasonableness is the High Court in Ainsworth v Albrecht.[9] From that and other decisions[10] which follow it, the following general principles may be drawn:

¾ The standard of reasonableness is objective and the test is to be applied with reference to the time the allegedly unreasonable action was taken, given all relevant factors and excluding irrelevant factors.

¾ Basing a decision substantially on rational considerations and evidence is rarely an unreasonable action.

¾ Acting reasonably requires consideration of all the circumstances, including a balancing of any competing interests.

¾ There is no onus on a body corporate to satisfy an adjudicator that it acted reasonably. Rather, if the adjudicator is to invalidate an action or decision, the adjudicator must be satisfied that the body corporate acted unreasonably.

¾ A body corporate's decision is not an unreasonable action simply because it could reasonably have made a different decision.

¾ An adjudicator may not simply substitute their own view as to what would be a preferable or 'more' reasonable decision.

• [44] A question arises as to whether a body corporate's section 94(2) reasonableness obligation is owed to parties external to the body corporate, such as a caretaking service contractor. The QCAT decision in Body Corporate for the Reserve CTS 31561 v Trojan Resorts Pty Ltd (Trojan) concerned a dispute about a body corporate's decision to terminate a caretaking service contract. Senior Member Stilgoe OAM and Member Collins found that the body corporate's obligation extended to acting reasonably in a making a decision affecting such a third parties. They also observed that the competing interests to be balanced therefore included the caretaking service contractor's interests.[11] However, the obligation to act reasonably does not require a body corporate to put the third party's interests ahead of its owner members' interests, or even on an equal footing; it simply requires the third party's and owners' interests to be taken into account.[12] The learned Members were careful to point out that the primary focus could permissibly be on owners' interests.[13] Accordingly, a decision which is essentially binary - ie, where only one of the two competing sides can 'win' - will not be unreasonable simply because it puts owners' interests wholly ahead of the third party's interests. The learned Members also make it clear (following Ainsworth) that individual owners, while voting in general meeting, are not obliged by section 94(2) to act reasonably or thereby take other parties' competing interests into account.[14]
• [45] The Tribunal in that case decided that the body corporate's decision to terminate the agreement was unreasonable. However, in my view Trojan is otherwise not particularly instructive for the present circumstances, because in that case the body corporate's action, which was prompted by technical non-compliance by one of the contractor's directors, seemingly was of no great benefit to owners (or did not account for the disbenefit) in circumstances where the caretaker was otherwise carrying out its duties and where the consequent cost of litigation eroded body corporate assets.[15] In this case, the change in permitted occupancy uses (if approved) would be an overall benefit owners, or at least they perceive it to be so, as evidenced by the vote easily passing.
• [46] This application proceeds on the basis that the body corporate's decision does not adequately (or at all) account for the interests of the applicant. That raises the question of what were the reasonable expectations for the Applicant when it purchased the letting rights. A letting agent for a scheme is a person authorised to conduct a business of letting out lots in the scheme for owners. However, owners are not obliged to use the authorised letting agent to let out their lots; they can do so privately or through another letting agent. Section 16 of the Act specifically provides that a 'letting agent' is a person authorised to conduct such a 'letting agent business', which in turn is defined to mean 'the business of acting as the agent of owners of lots included in the scheme who choose to use the person's services', clearly indicating that there is no obligation on an owner to use the services. The body corporate may choose to execute an agreement to the effect that the letting agent has such rights exclusive of other letting agents, but that exclusivity extends only to exclusive rights to use parts of the scheme for the purpose of the business (for example a reception area), and also thereby being formally recognised for the purposes of the legislation as the scheme's authorised letting agent, giving them standing to make an application for dispute resolution under the Act. If due diligence had been done, that presumably would have been priced into the value of the letting agreement from the outset. Further, I have noted above that, even if the MCOU application is successful, it does not necessarily follow that the scheme will not still prominently be used for short term letting. Accordingly, I cannot be certain that this potential for the change in the demand for the letting agent services defeats a reasonable expectation held by the Applicant.
• [47] In light of that, even without the benefit of submissions from other owners and the body corporate, I am not satisfied that the Applicant's case as presented has any real prospects of success at the final determination stage.

• [48] I accept the applicant's argument that, taken in isolation, the balance of convenience favours the applicant. However, as I have noted above, consideration that question must be proceed in light of the strength of the prima facie case.
• [49] As can be seen above, based just on the Applicant's own materials, I consider the Applicant's case for final orders is weak at best.
• [50] Accordingly I do not consider it appropriate make an interim injunction to mandate that the body corporate withdraw its consent to the MCOU application or to restrain it from taking any further steps in that regard.

• [51] In light of the above, I am not satisfied I should make interim injunction orders in this application.
• [52] Finally, I will comment on a submission made about the timing of the application. The application was made on 6 August 2025, barely within the 3 months of the 7 May 2025 AGM decision, which as the Applicant notes is the time limit required by section 242(2)(b) of the Act. The Applicant's delay is explained on the basis that the 'Applicant's solicitor had a substantial workload which contributed to the Applicant's unavoidable delay in getting the Application lodged'. I have some sympathy for the Applicant in that regard but I consider it to be a poor explanation for its solicitor to give. In my view, the delay was not unavoidable, it was avoidably caused by the solicitor and it is no excuse for a solicitor to take on work they cannot deal with in a timely fashion, especially when time is clearly of the essence. The solicitor's complaint that the body corporate did not wait out the 3 months provided for in section 242(2)(b) before giving its consent to the MCOU application is plainly groundless. I do not hold the delay against the Applicants, but regardless the Applicant's prospects for final orders would not have been any better had this application been made before the MCOU application was lodged.
• [53] The application will now be returned to the Commissioner for case management of the final order application.

[1] James & Anor v The Body Corporate Aarons Community Title Scheme 11476 [2003] QCA 329 at [12] per Davies JA

[4] For general principles see for eg Australian Broadcasting Corporation v O'Neill [2006] HCA 46 and SDW2 Pty Ltd v JLF Corporation Pty Ltd & Ors [2017] QSC 1

[5] SDW2 Pty Ltd v JLF Corporation Pty Ltd & Ors [2017] QSC 1 at [21]

[6] Cohen v Peko-Wallsend Ltd [1986] HCA 70 at [6]

[9] [2016] HCA 40 (Ainsworth)

[10] See also for eg Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177

[11] [2017] QCATA 53 at [24]

[15] Ainsworth at [51]; Trojan at [32], [49]