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austlii:qld/QBCCMCmr/2026/20
General information, not legal advice.
QBCCMCmr
2026-02-02
Original judgment source is linked above.
Broadwater Tower [2026] QBCCMCmr 20
The Body Corporate for Broadwater Tower (respondent)
Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and 229(3)(a)
INTERIM ORDER - whether an interim order is warranted.
[2] The scheme, Broadwater Tower CTS 9041, comprises 130 lots and common property. It is regulated under the Body Corporate and Community Management Act 1997 ('Act') and the Body Corporate and Community Management (Standard Module) Regulation 2020 ('Standard Module').
[3] The applicant, Jimmy Vivlios, is the owner of Lot 3 at the scheme. He is also the sole director of the corporate entity engaged as the scheme's caretaking service contractor ('Caretaker').
[4] The respondent is the Body Corporate for Broadwater Tower CTS 9041.
[5] The Community Management Statement ('CMS') identifies Lot 3 as the 'Management Unit' which may be used for residential and other purposes consistent with its character.
[6] Lot 3 has exclusive use rights to a car space (an area marked '42' on the CMS) and a courtyard (an area marked 'C3' on the CMS). Parts of Lot 3 are located on Levels A and B of the scheme building.
[7] It is claimed that the air conditioning condenser that services Lot 3 is installed on the external wall of the ground floor of the scheme building, with associated wiring and pipework penetrating the building's walls and slab.
[8] It also claimed that the hot water system servicing Lot 3 is installed in the common property basement storage room, with associated wiring and pipework penetrating the building's walls and slab.
[9] The applicant states that around November 2017 and February 2018, the committee for the respondent body corporate approved the installation of an air conditioner for Lot 3 amidst other lot renovation works. The approval process required inspection of the installation works by a building inspector nominated by the committee. In this regard, on 11 April 2018, the applicant paid a sum of $165.00 to the body corporate's account for the inspection of the installed air conditioner. The applicant has also obtained a letter dated 22 December 2025 from the committee secretary at the time of the works, confirming that approval for the works was provided subsequent to inspection. Accordingly, the applicant maintains that the committee approved the works.
[10] On the other hand, the respondent body corporate holds the view that these works were carried out without requisite body corporate approval. It states that these works constitute an improvement to common property requiring authorisation by way of ordinary resolution at a general meeting, as opposed to committee approval.
[11] Meanwhile, the lot owner has provided some evidence indicating that the works involved replacing and upgrading one air conditioning unit with another as part of 'routine maintenance', with seemingly no material change to the impact on common property.
[12] The applicant is also of the view that given the air conditioner has been operating for eight years without issue, the respondent body corporate ought to be considered as having acquiesced to its installation.
[13] The respondent body corporate, as complained, wishes to remove all or some of the components associated with the air conditioner that lie on common property. The lot owner seeks interim relief to (among other things) maintain the status quo until final determination of the dispute at department adjudication.
[14] The respondent body corporate states that on an unspecified date, a hot water system servicing Lot 3 was installed in a common property basement storage room, which is generally used for the storage of cleaning and maintenance equipment and supplies. It is of the view that this constitutes an improvement made to common property without requisite body corporate approval.
[15] The applicant maintains that the works relating to the hot water system were approved by the respondent body corporate. The secretary of the committee at the time these works occurred, confirms that they were indeed authorised.
[16] The applicant states that on 17 December 2025, closed-circuit television (CCTV) cameras at the scheme captured footage of the chairperson of the committee, turning off the hot water system that services Lot 3. The applicant states that such conduct constitutes a breach of section 167 of the Act (nuisance).
[17] The applicant believes that the respondent body corporate will cause further interference with the hot water system and other utility services to his lot. Accordingly, he seeks an interim order to prevent any such interference.
[18] On 24 February 2023, the committee of the respondent body corporate approved the applicant's request to erect a fence along the left boundary of the exclusive use parking space marked and labelled as '42' on the CMS ('Parking Space 42'). A white line evidently appears on this boundary. The approval granted was limited to a fence being constructed on the said white line.
[19] On 8 December 2025, the committee wrote to the applicant indicating that he had breached the condition of the approval pertaining to the white line, and on this basis, revoked the approval and demanded the fence be removed.
[20] On 18 December 2025, the applicant through his solicitors wrote to the respondent body corporate indicating that he engaged a surveyor to identify the 'true boundary' of Parking Space 42. The letter adds that this space in fact extends 90mm into the carpeted common property hallway. Accordingly, the applicant indicated that he would proceed to remove the encroaching carpet; paint a new white line over the 'true boundary'; and move the fence to the new boundary.
[21] The applicant claims that the respondent body corporate's revocation of the approval to construct the fence is an abuse of power and must be invalidated pursuant to sections 184 and 227 of the Act (which the applicant seemingly claims are legislative provisions relating to abuse of power, hostile and retaliatory conduct).
[22] This aspect of the dispute relating to the fence is not relevant to this application for interim orders, and only pertains to the final orders sought (which shall be determined later). More importantly, I note that this aspect of the dispute overlaps with that of application for interim and final orders bearing number 0048-2026. I will make some recommendations in this regard further below in this decision.
[23] On 8 December 2025, the applicant requested access to all body corporate records pertaining to the installation of the air conditioner servicing his lot, including (among other things) the following:
...
- All building plans, drawings, or specifications showing the original configuration of the battery room and any subsequent modifications
...
All records relating to BCCM Adjudication Reference 1187-2025, including any legal advice, committee discussions, or instructions to solicitors
All records of committee decisions or resolutions regarding Lot 3 air conditioning or battery room matters from 1991 to present
...
[emphasis added]
[24] On 11 December 2025, the respondent body corporate wrote to the applicant indicating that the records requested are available in 70 pages of documents, and that an invoice for the same will be issued in due course.
[25] More importantly, the respondent body corporate noted that 'a significant number of the items requested [by the applicant] cannot be provided because the documentation does not exist within the body corporate's statutory records [including] plans, inspection records, approvals, maintenance records, engineering documentation, and correspondence dating back to 1991'.
[26] Further, the respondent body corporate claimed that the records pertaining to application bearing reference 1187-2025 was subject to legal privilege and declined to provide access to the same. It added as follows:
If you wish to pursue access to these documents, I would recommend that your solicitor write directly to the Body Corporate's solicitor outlining why you believe such records should be released and the legal basis for requesting them.
[27] On 14 December 2025, the applicant responds in relation to the non-existent body corporate records as follows:
Section 205(6) of the BCCM Act states: "If the record asked for does not exist or cannot be found, the body corporate must give the person asking for access to the record a signed written statement to that effect."
This is mandatory. An informal email does not satisfy this requirement.
The body corporate must provide a signed written statement that:
(a) Identifies each specific category (from items 1-17 of my Form 12 request) that does not exist or cannot be found;
(b) States clearly for each record whether it does not exist OR cannot be found;
(c) Is signed by the body corporate secretary or manager;
(d) Confirms that a proper and thorough search has been conducted.
[emphasis added]
[28] The applicant conveyed to the respondent body corporate as follows in relation to the question of legal privilege:
Section 205(5) of the BCCM Act provides only two grounds for refusing access to body corporate records:
(a) The record contains defamatory material about a person; or
(b) The record if legally professionally privileged
If the body corporate intends to rely on legal professional privilege under section 205(5)(b), it must provide a signed written statement that:
a) Specifically identifies each document claimed to be privileged;
b) Provides a brief description of each document (without revealing privileged content);
c) States the basis for the privilege claim for each document;
d) Is signed by the body corporate secretary or manager.
Your suggestion that I "have my solicitor write to the Body Corporate's solicitor" does not constitute compliance with section 205(5). The Act requires a signed written statement from the body corporate.
[29] Furthermore, the applicant is of the view that the exception of legal privilege does not encompass the following:
[30] The applicant accordingly seeks a declaration that the respondent body corporate breached its duty to maintain necessary records under 'sections 205(5) and (6) of the Act'.
[31] The applicant states that he subsequently accessed the available records of the body corporate, and found that the documents pertaining to the approval of the installation of the air conditioner including the 'Form 16 Electrical Safety Certificate' provided in 2018, were missing.
[32] He relies on this purported breach of a duty to maintain records, to support an argument that the respondent body corporate cannot benefit from its failure to fulfill this duty and shift the onus of proof onto the applicant for establishing that the air conditioner was installed pursuant to requisite body corporate approval. The applicant states that this is the result of the application of the legal principle, 'Estoppel by Own Wrong'.
[33] This aspect of the dispute, i.e., that pertaining to a purported record-keeping failure is also not directly relevant to the application for interim orders sought. I shall however, make some important recommendations in this regard.
[34] The applicant seeks final orders (to be determined at a later stage) in the following terms:
[35] The applicant cites a breach of sections 94 (reasonableness), 167 (nuisances), 184 (preliminary procedures), 205 (giving of information), 227 (disputes) of the Act; equitable estoppel, 'estoppel by own wrong' and acquiescence as grounds for the final orders sought.
[36] The applicant seeks the following interim orders (that is the subject of this decision):
[37] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS[1] or about the exercise of rights or powers or performance of duties under the Act or CMS.[2] Further, an order may require a person to act, or prohibit a person from acting in a manner stated.[3] An order may also contain ancillary and consequential provisions the adjudicator considers necessary or appropriate. [4]
[38] I am satisfied that I have jurisdiction to determine the dispute in question by virtue of sections 276(1)(a) and (b) of the Act (read together with sections 227(1)(b) and 279 of the Act).
[39] This application for interim orders was lodged on 4 January 2026.
[40] On 6 January 2026, the Commissioner's delegate requested further information from the applicant under section 240 of the Act.
[41] Pursuant to the receipt of this information, on 8 January 2026, the Commissioner's delegate referred the interim order application to department adjudication.
[42] On the same day, I instructed my delegate to contact the respondent body corporate and convey that I would like to provide it with an opportunity to make a submission, provided it could furnish a written undertaking to refrain from taking the action that is subject of the first nine interim orders sought until the determination of this interim order application.
[43] The respondent body corporate promptly provided the said undertaking, and was invited to make a submission.
[44] On 21 January 2026, the committee made a submission.
[45] On 19 January 2026, a further interim order application (bearing reference 0048-2026) was lodged by the applicant against the body corporate. This application largely pertains to the fence around Parking Space 42. Further, the final order sought under this application relating to the parking space is duplicated thereunder.
[46] Given I have carriage of both interim order applications, i.e., 0008-2026 and 0048-2026, I will decide these matters collectively.
[47] An adjudicator may make an interim order only if satisfied it is necessary due to the nature or urgency of the circumstances.[5] Accordingly, an applicant must satisfy the adjudicator that serious or irreparable damage would be caused without the interim order.
[48] 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.[6]
[49] An interim order is usually made in the form of a temporary injunction - an order not to do something, pending a final determination of an application.
[50] In deciding whether an interim order is warranted, adjudicators often adopt the approach taken by courts to considering interlocutory injunction applications.[7] 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 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. 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.
[51] 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 application, it may be appropriate and beneficial to decide such questions at the interlocutory stage.[8]
[52] Even if the considerations of urgency or balance of convenience favour the applicant, it is not inappropriate for an interim order application to be dismissed if there is little or no prospect of success on the legal arguments and the uncontroversial facts, at the final determination stage.
[53] Ordinarily, an interim injunction should do no more than maintain the status quo for a limited time or until the determination of the main application, usually in the form of a restraining injunction.
[54] Accordingly, the only issue for determination at present is whether the interim orders sought are warranted.
[55] I am satisfied that the applicant has raised a serious legal question as to whether the air conditioner was installed pursuant to requisite body corporate approval, and whether it is unreasonable in the circumstances for the respondent body corporate to seek to remove components of the air conditioner on common property.
[56] I note that on 17 December 2025, the committee wrote to the applicant confirming its intention to remove components of the air conditioner present on common property.
[57] The respondent body corporate notes that the applicant's caretaking service contract is due to expire on 31 March 2026. It adds that it will not be renewing this contract and instead will be engaging a new facilities manager. It states that a small room in the common property basement is intended to be established as an onsite office for the facility manager, and 'may need to be air conditioned'. It states that the wires and pipes servicing the applicant's air conditioner go through voids in walls and the slab, in a manner that another air conditioner's infrastructure cannot be accommodated.
[58] Furthermore, the respondent body corporate submits that at committee meeting dated 20 January 2026, it resolved as follows:
RESOLVED THAT the Committee undertakes that it will not alter or interfere with the air-conditioning and hot water infrastructure presently located on common property and servicing lot 3, until final determination of Adjudication Application reference number 0008-2026, that application being withdrawn, or otherwise before it gives 60 days prior warning to the Owner of Lot 3.
[59] Accordingly, the respondent body corporate is of the view that the nature of the circumstances does not warrant the interim orders sought with respect to the air conditioner.
[60] The undertaking provided via a committee resolution is a prima facie generous one. However, if I were to dismiss the interim orders sought (pertaining to the air conditioner) on that basis, and if the body corporate were to then proceed to issue 60 days' notice of removal of components of the air conditioner, the applicant may very likely find himself making a further interim order application.
[61] Accordingly, I note that on the one hand, there may be a need for an air conditioned office for the new facilities manager. On the other hand, I note that Lot 3 is used for inter alia residential purposes by the applicant and his spouse. It has for eight years now had the benefit of air conditioning. I reiterate that the applicant has raised a serious legal question. In these circumstances, I am satisfied that the balance of convenience favours preserving the status quo until final determination.
[62] Accordingly, I shall order that the respondent body corporate must not alter, remove or otherwise interfere with the infrastructure or components associated with the air conditioner servicing Lot 3 until further or final order. I also order that it must not cause for the same to be done by its contractors, employees or agents.
[63] I see no reason to grant the interim orders in the broad wording as that sought by the applicant.
[64] The applicant has provided relatively minimal evidence in support of his claim that the installation of the hot water system on common property was pursuant to requisite body corporate approval. Nevertheless, I am satisfied that he has raised a serious legal question in this regard.
[65] I must however admit that based on the evidence provided in the application alone, I was not convinced that an interim order pertaining to the hot water system was warranted. This is because even if the chairperson had in fact turned off the hot water system servicing Lot 3, there was no evidence furnished to demonstrate that the same was done on the instructions of the committee. Furthermore, the application alone lacks evidence to demonstrate that the respondent body corporate is likely to interfere with this hot water system going forward.
[66] However, the respondent body corporate provides greater clarity on this matter and indicates in its submission that the applicant's hot water system currently occupies approximately 1/16th of the small basement common property room that is used for the storage of cleaning and maintenance supplies. It adds that given the caretaking service contract is set to expire on 31 March 2026, the full capacity of this room may be reasonably required to facilitate the storage of equipment and consumables by the facilities manager, cleaners and gardeners.
[67] I reiterate the undertaking provided by the committee as described above. I also reiterate my concerns regarding a dismissal of the interim orders sought on that basis, and the likelihood of a further interim order application if the respondent body corporate were to issue 60 days' notice of removal of components of the hot water system.
[68] I note that on the one hand, the respondent body corporate may need the space occupied by the hot water system for storage purposes. However, on the other hand, if the interim order is not granted, the applicant and his spouse who reside in their lot may experience a loss of an important utility service. I am satisfied that the balance of convenience favours the preservation of the status quo in this regard.
[69] Accordingly, I shall order that the respondent body corporate must not alter, remove or otherwise interfere with the infrastructure or components associated with the hot water system servicing Lot 3 until further or final order. I also order that it must not cause for the same to be done by its contractors, employees or agents.
[70] I note that the applicant has not under section 9 of the application form (Form 15) sought any interim orders pertaining to the fence along Parking Space 42. However, under the grounds statement for the interim orders sought, the applicant briefly argues for the preservation of the status quo in relation to the said fence.
[71] I am not satisfied that the applicant has appropriately sought an interim order in this regard, or provided sufficient evidence and detail in support of such an interim order.
3.4 Interference with other utilities, services, fixtures, fittings and installations
[72] The applicant has sought various interim orders to prevent the respondent body corporate from interfering with any utility services to Lot 3 including electricity and water, and any infrastructure, fixtures, fittings or installations servicing or connected to Lot 3.
[73] However, the applicant has not provided sufficient details in support of these interim orders sought or explained why such orders are warranted.
[74] Accordingly, I and unable to grant these interim orders.
3.5 Interference with caretaking and letting business
[75] The applicant has sought an interim order to restrain the respondent body corporate from interfering with his operation from Lot 3 as the caretaking service contractor. The reasoning provided is that the loss of utilities such as air conditioning and hot water makes it impossible for him to perform him caretaking and letting duties from Lot 3.
[76] I am satisfied that the orders granted pertaining to the air conditioner and hot water system as described above sufficiently addresses the applicant's concerns.
[77] The applicant seeks an interim order that the respondent body corporate be liable for all costs and expenses incurred by the applicant if the other interim orders sought are granted.
[78] The express statutory power for an adjudicator to award costs is limited to two specific scenarios, firstly under section 270(3) of the Act and secondly under section 280 of the Act. Neither of those scenarios apply to the applicant's claim for costs. Accordingly, I am unable to grant this interim order.
4.1 Citing incorrect and non-existent statutory provisions
[79] I note that the application material is replete with inaccurate citations of statutory provisions.
[80] For e.g., the applicant states that section 227 of the Act is a provision about abuse of power and retaliatory conduct, whereas it actually pertains to the 'meaning of dispute'.
[81] A second example is the applicant's reference to section 205(6) of the Act which he claims relates to 'non-existent body corporate records'. Rather, that provision relates to the giving of a body corporate certificate.
[82] A third example is the applicant's reference to section 167 of the Act as a provision pertaining to 'oppression and interference with services', when that provision in fact relates to nuisances caused by occupiers of lots.
[83] I may be mistaken, but it appears to me that the applicant may have relied on generative AI (artificial intelligence) tools in drafting his application. I fully appreciate that the provisions of the Act and Regulation Modules are terribly complex, to the point where even some legal professionals struggle to navigate them. Accordingly, it is unsurprising that self-represented parties without a background in law, can turn to freely available generative AI tools and chatbots for assistance.
[84] Whilst these generative AI tools and chatbots can be useful in many respects, they have been known - at least at this stage - to provide inaccurate and misleading responses to prompts relating to Queensland law.
[85] I will accordingly sound the same cautionary note as Adjudicator Sutherland in application bearing reference 1187-2025.
[86] Any party using such tools and chatbots must do so responsibly with an understanding of its limitations or (in the case of applicants) run the risk of a costs order being made against them for making submissions which are misconceived or without substance.[9]
[87] In these circumstances, I direct the applicant to revise his application for final orders (upon invitation by the Commissioner's delegate) by removing references to non-existent statutory provisions, and by ensuring that the provisions cited thereunder are in fact in the realm of what he says they are.
[88] The applicant may visit the official Queensland Legislation website at www.legislation.qld.gov.au[10] to access a free and reliable copy of the Act and Standard Module to aid him in this exercise. Further, should the applicant wish to research case law, he may visit Austlii's[11] free database, which is widely considered to be reliable.
[89] More importantly, the Commissioner's Office has a team dedicated to providing information (but not legal advice) about the legislation free of charge. The applicant may call them on 1800 060 119 (freecall) or visit the 'Ask a body corporate question' webpage on the Queensland Government website.[12]
[90] I note that application for interim and final orders bearing reference 0048-2026 relates mainly to the issue of the fence around Parking Space 42. Further, the final order sought on that issue under this application bearing reference 0008-2026 is duplicated under 0048-2026.
[91] Such duplication may result in unnecessary and added use of the limited resources of the Commissioner's Office. It may also result in the respondent incurring unnecessary legal costs in defending the same matter twice.
[92] I also note that 0048-2026 contains further relevant application material and evidence in relation to the fence issue than 0008-2026.
[93] Accordingly, it may be prudent for the applicant to confine the matter relating to Parking Space 42 to one application (perhaps 0048-2026) and to remove it from the other (0008-2026).
[94] I am satisfied that interim orders pertaining to the preservation of the status quo with respect to the air conditioner, hot water system and associated components are warranted.
[1] The CMS includes the scheme's by-laws
[2] Sections 276)(1)(a) and (b) of the Act
[4] See Brighton on Broadwater Breezes [2018] QBCCMCmr 243 at [8]
[7] For general principles see for e.g., Australian Broadcasting Corporation v O'Neill [2006] HCA 46 and SDW2 Pty Ltd v JLF Corporation Pty Ltd & Ors [2017] QSC 1
[8] Cohen v Peko-Wallsend Ltd [1986] HCA 70 at [6]
[10] The link to the Act and Regulation Modules are https://www.legislation.qld.gov.au/view/html/inforce/current/act-1997-028