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austlii:qld/QBCCMCmr/2026/29
General information, not legal advice.
QBCCMCmr
2026-02-06
Original judgment source is linked above.
Broadwater Tower [2026] QBCCMCmr 29
The Body Corporate for Broadwater Tower (applicant)
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.
(i) Accessing Parking Space 42, or any common property area including but not limited to the area between Parking Space 42 and the space marked as the 'Bin Room' in the plans attached to the scheme's prevailing Community Management Statement; and
(ii) Carrying out waste removal activities and bin rotation at the scheme until further or final order.
[1] This dispute primarily pertains to access by the body corporate to an exclusive use parking space, to transport large garbage bins in and out of the scheme.
[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 first respondent, Jimmy Vivlios, is the owner and co-occupier of Lot 3 at the scheme.[1] He is also the sole director of the corporate entity (i.e., Green Point Pty Ltd) engaged as the scheme's caretaking service contractor ('Caretaker'). The Caretaker under the prevailing caretaking service contract receives $185,685.00 plus GST per annum as remuneration.
[4] The caretaking service contract was granted to the Caretaker in the form of a quadripartite agreement between the body corporate, the previous caretaker (the assignor), the present Caretaker (the assignee) and the first respondent (guarantor). The first respondent under this agreement appears to guarantee the performance of the relevant obligations of the Caretaker.
[5] The first respondent and the body corporate indicate that the prevailing caretaking service contract is set to expire on 31 March 2026.
[6] The third respondent is a co-occupier of Lot 3.
[7] The second respondent is the owner of Lot 78 at the scheme. She also happens to be a family member of the first and third respondents.
[8] The applicant is the Body Corporate for Broadwater Tower CTS 9041.
[9] 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.
[10] Lot 3 also has rights under an exclusive use by-law to (among other things) a car space i.e., an area marked '42' on the CMS ('Parking Space 42')[2]. This space is of an area of 14m2, with its dimensions being 2.6m length by 5.5m width. This space lies adjacent to a common property corridor, beyond which lies the garbage chute room for the scheme. The width of the corridor between Parking Space 42 and the garbage chute room is 1.41m.
[11] Lot 78 has rights under an exclusive use by-law to a car space, i.e., an area marked '113' on the CMS ('Parking Space 113').
[12] There are over 30 levels in the scheme building. The building contains garbage chutes accessible from each level, which travels to a large bin in the garbage chute room located in the basement. It has evidently been the practice at the scheme for decades, for its large garbage bins located in the garbage chute room, to be transported in and out of the building through Parking Space 42 three times a week. During such transport, the Caretaker vacates Parking Space 42 to make room for the bins. This is because the other common property corridors are too narrow for these bins to be manoeuvred. Further, the first respondent argues that the relevant corridors constitute evacuation routes that cannot lawfully be used for waste removal.
[13] On 12 October 2020, the first respondent sought body corporate approval to install a garage door and wire mesh enclosure around Parking Space 42. The first respondent had previously complained of other occupiers at the scheme leaving rubbish and trolleys in Parking Space 42 - hence motivating his proposal for a fence.
[14] On 12 November 2020, the body corporate denied the first respondent's request on the grounds that (among other things) a fence would impede access to facilitate the removal of the garbage bins from the garbage chute room.
[15] The first respondent made the same request on 23 January 2023. However, around February 2023, this request was seemingly amended and limited to the construction of a fence on the left side of Parking Space 42 with a gate opening inwards.
[16] Subsequent correspondence and negotiation between the committee and the first respondent indicates that the former consistently emphasised the importance of maintaining body corporate access to and from the garbage chute room.
[17] On 24 February 2023, the committee considered and passed the following motion with five votes in favour and two votes against the same:
The Caretakers and Owners of Lot 3 submitted a request to the Committee, seeking approval to install a fence along the left white line of their exclusive use car space with a gate extending to the garbage chute room, next to the carpeted walkway leading to the lifts. Similarly, to the above matter, the Committee considered whether this application was within their jurisdiction to consider.
The Committee discussed the application in detail and agreed to approve the application based on the standard approval conditions:
RESOLVED that the Committee agree to approve for the Owners of Lot 3 to install a fence and gate along the left side of their exclusive use car space, space 42, subject to the standard approval conditions.
[18] A white line evidently appears on the boundary of Parking Space 42. The approval granted for the fence was limited to construction on the said white line. The gate however, extends over unallocated common property onto the wall of the garbage chute room.
[19] On 11 July 2025, the body corporate noted that the first respondent had installed his fence and gate beyond the boundary marked by the white line. It also noted that this would disrupt waste removal operations at the scheme.
[20] On 24 November 2025, the committee passed the following motion with seven votes in favour and nil against:
11.1 Rescind Approval for Car Space Fencing (Car Space 42)
RESOLVED THAT the decision made at the Committee Meeting on 24th February 2023 (Item 6.4) be rescinded as the conditions placed on the approval have not been complied with, specifically the condition which states: "The fence will be limited to the white line outlining the left side of the car space only;" ...
[21] On 8 December 2025, the committee wrote to the first respondent 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.
[22] The first respondent denied that he had breached the conditions of the approval. He added that regardless the bin tractor had to be moved through Parking Space 42, and that the 1.41m clearance between the boundary of the garbage chute room and the fence post was insufficient for waste removal activities. Further, he indicated to the body corporate that it cannot compel access to or through this space, given indefeasible title to the same lies with him. He stated that the presence of the fence does not change the fact that access to Parking Space 42 is restricted for the body corporate.
1.2.2 Waste removal duties & the use of Parking Space 42
[23] As stated above, the caretaking service contract is evidently set to expire on 31 March 2026. Around September 2025, the body corporate resolved to engage a facilities manager (seemingly to perform some of the duties that the Caretaker currently performs) instead of renewing the caretaking service contract with the Caretaker (i.e., an entity owned by the first respondent).
[24] The first respondent states that the only compliant and risk-free route for transporting the garbage bins for waste removal is through Parking Space 42, which he remains in control of. In short, the first respondent states that pursuant to the expiry of the caretaking service contract, any lawful waste removal at the scheme through the garbage chute room must necessarily occur with his leave and license.
[25] In December 2026, the body corporate commissioned an investigation and report by an engineering consultant ('Buildcheck') on alternate solutions to the waste removal process. Buildcheck evidently advised that smaller bins may be used, but would have to be emptied daily by transporting them from the garbage chute room, out the gate that the first respondent installed, through the corridor and out the building.
[26] However, Buildcheck evidently advised that for the smaller bins to work, the following issues are likely to be encountered:
[27] The body corporate states that the smaller bin alternative would deny the first respondent most of the leverage he has attempted to create for himself.
[28] In this regard, the first respondent states that on 25 August 2025, a building consultant that he engaged, inspected the scheme building and reported that the use of a common property emergency evacuation route for the purpose of transporting the garbage bins contravenes the National Construction Code and the Queensland Development Code MP 6.1. This consultant also noted that the use of smaller bins is problematic for various other reasons. The first respondent notes that based on this report ('Groom Report') the use of such a route could result in substantial fines (over $15,000.00 per incident)[3] being imposed with a risk of compromising insurance cover.
[29] Subsequently, on 31 October 2025, a building certifier ('Certis') relying on the Groom Report and an inspection of the scheme building recommended maintenance of the status quo with regards to evacuation and travel routes (consistent with the Groom Report).
[30] The first respondent states that the only alternative for waste removal (other than the use of Parking Space 42 with his permission) is for occupiers to carry the waste by hand, and travel on foot to dispose of them in the large bins located a considerable distance outside of the scheme building.
[31] The first respondent indicates under application bearing reference 0048-2026, that he now holds 'a strong negotiating position', and that his 'primary objective remains negotiating either a car space licence agreement or a new caretaker's contract that provides an appropriate return on [his] investment' of $1,900,000.00. He anticipates that the loss of the facility of a garbage chute would result in a loss of $48,000.00 for each of the 130 lots at the scheme. He seemingly anticipates license fees in the sum of $50.00 per lot per week which would total $343,200.00 annually by his calculations. He also anticipates that the body corporate would be liable to pay compensation to persons affected by its 'failure to negotiate chute access when they had a duty to do so' and for 'causing quantifiable financial loss to all owners'.
[32] On 24 November 2025, the committee during a meeting discussed the Groom Report, and subsequent advice from two fire safety consultants who it states noted that there were nil compliance concerns, and who noted that the Groom Report was inapplicable to the scheme on account of the building's age and certification standards at the time of construction etc.
[33] On 11 December 2025, the first respondent stated through his solicitors that he withdraws all permissions for the body corporate to use Parking Space 42.
[34] On 18 December 2025, the first respondent indicated to the body corporate that he would be proceeding to move the large bins from the garbage room to the kerb. He noted that this means that any waste thereafter deposited down the chute will 'travel at speed' and hit the floor of the chute room. He then stated that the Caretaker's contract does not 'contemplate waste removal of this sort'.
[35] On the same day, the body corporate through its solicitors wrote to the first respondent indicating that any exclusive use rights he may have to Parking Space 42 does not override the body corporate's statutory obligations under section 94(1) of the Act. It noted that accordingly, the body corporate cannot be refused entry into the space. It further added that moving the large bins to the street would among other things, expose occupiers to various risks of slips, falls and injuries, especially the elderly and mobility-impaired occupiers; and also result in potential non-compliance with local government regulations.
[36] On 20 January 2026, the body corporate authorised the Caretaker to enter Parking Space 42 to carry out the garbage collection and removal works as usual on its behalf, and evidently issued notice to the first respondent under section 163 of the Act in that regard.
[37] The body corporate states that it did so, whilst continuing to explore the smaller bin alternative.
1.2.3 Reallocation Agreement & further developments
[38] On 27 January 2026, the first and second respondents entered into a reallocation agreement, i.e., essentially to swap each other's rights under the exclusive-use by-law to Parking Space 42 and Parking Space 113.
[39] The respondents claim that this reallocation agreement was entered into due to the second respondent's disability, caused by a chronic lung disease which impairs her mobility. They add that she holds a valid Australian Disability Parking Permit.
[40] The respondents state that Parking Space 42 has in fact been used by the second respondent for approximately the past four years.
[41] On the same day, the second respondent issued correspondence to the body corporate indicating that she does not permit the facilities manager, its employees and agents to enter or use Parking Space 42 for any purpose.
[42] The body corporate states that later that evening, it found a vehicle bearing registration ACG-74 parked not only on Parking Space 42 but also across the unallocated common property corridor between this space and the garbage chute room. The body corporate states that parking in such a manner would preclude success upon opting for the smaller bin alternative.
[43] The body corporate states that on 27 January 2026, the first respondent applied zip-ties to the garbage chutes on each level of the building to prevent them from being used.
[44] The body corporate states that the following day, the third respondent moved a parked car out of Parking Space 42 to allow the first respondent to replace the bin from the garbage chute room.
[45] The body corporate states thereafter, the first respondent placed notices on common property that the garbage chute is inoperative.
[46] The body corporate states that subsequently, committee members discovered that the bin that the first respondent had placed beneath the chute was closed preventing any rubbish from falling into it. It states that committee members proceeded to open the bin, remove all the zip ties on all levels of the building, and restore the garbage chute amenity. Committee members thereafter locked the garbage chute room to prevent further interference.
[47] The body corporate states that thereafter, the first respondent locked the gate that provides access to the unallocated common property corridor between the garbage chute room and Parking Space 42. It adds that it does not have a key to this lock.
[48] The body corporate states that on 29 January 2026, it discovered that the first respondent had managed to gain access to the garbage chute room despite it being locked. It adds that it subsequently and urgently passed a number of committee resolutions to:
[49] In these circumstances, the body corporate seeks final orders (to be determined at a later stage) in the following terms:
[50] The body corporate seeks interim orders (the subject of this decision) in the following terms:
[51] 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[4] or about the exercise of rights or powers or performance of duties under the Act or CMS.[5] Further, an order may require a person to act, or prohibit a person from acting in a manner stated.[6] An order may also contain ancillary and consequential provisions the adjudicator considers necessary or appropriate. [7]
[52] 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).
[53] This application for interim orders was lodged in the afternoon of 30 January 2026.
[54] That evening the Commissioner's delegate pursuant to case management, referred the interim order application to department adjudication.
[55] I note that the solicitors for the body corporate copied the solicitors for the respondents on the email containing the application material to this Office. This act of professional courtesy led to the solicitors for the respondents making a prompt submission in response to the application for interim orders, without my having to invite them.
[56] I note that the Commissioner's Office has received three interim order applications from the first respondent against the body corporate over the same dispute (broadly speaking). One such application was determined by Adjudicator Sutherland under reference 1187-2025. The other two of these applications were determined by me last week under 0008-2026 and 0048-2026.
[57] In particular, 0048-2026 and the present application share largely the same facts. Accordingly, I have referenced details from my decision under 0048-2026 in this decision.
[58] An adjudicator may make an interim order only if satisfied it is necessary due to the nature or urgency of the circumstances.[8] Accordingly, an applicant must satisfy the adjudicator that serious or irreparable damage would be caused without the interim order.
[59] 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.[9]
[60] 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.
[61] In deciding whether an interim order is warranted, adjudicators often adopt the approach taken by courts to considering interlocutory injunction applications.[10] 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.
[62] 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.[11]
[63] 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.
[64] 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.
[65] Accordingly, the only question before me for determination is whether the interim orders sought are warranted.
[66] The body corporate sets out the following grounds for the orders sought:
[68] There is a question of the nature of the exclusive use rights that were originally granted under the CMS to the first respondent, i.e., also those which have been transferred to the second respondent under the reallocation agreement.
[69] More importantly, there is a section as to whether section 163 of the Act permits routine and regular waste removal through access to an area of common property that is the subject of an exclusive use by-law (Parking Space 42). The body corporate claims that the wording of this provision does not expressly limit the power of entry for one-off work matters. The respondents cite previous adjudicator's orders for the proposition that it does.
[70] Having superficially and in haste, considered Penno and other authorities such as Oceana on Broadbeach Community Titles Sche,e 24163 v Searle & Ors[13] and Woodhouse v The Body Corporate for Thirty Four Riverwalk & Ors[14], I am satisfied that a serious legal question has been raised requiring unhurried consideration of the law and precedent on the matter. There is some possibility that these authorities which I have not yet considered as thoroughly as I would like, may support the body corporate's position. This remains to be determined at the final order stage.
[71] I note the respondents' argument that it is the conduct of the body corporate that has led to the 'emergency' if at all, of waste accumulating in the garbage chute room and presenting a hazard. It adds that the body corporate was aware of the challenges associated with access to Parking Space 42 months ago before it decided to engage a facilities manager.
[72] On a preliminary basis, I respectfully disagree with that argument. It is not in dispute that the caretaking service contract which requires waste removal, is set to expire on 31 March 2026. Accordingly, the body corporate did not anticipate that the first respondent - who is the guarantor for the Caretaker's performance of its duties - would cause these services to be discontinued prematurely, and potentially be in breach of the Deed of Assignment.
[73] Further, I am also not persuaded at this stage that the body corporate ought to have had alternative waste removal means already negotiated and arranged. Once again, the body corporate possibly reasonably anticipated that it would have time until 31 March 2026 to explore suitable alternatives.
[74] The application and submissions material for 0048-2026 and the present matter collectively indicates that there are occupiers at the scheme living with disabilities and that requiring them to travel to the kerb, which appears to be a fair distance away from the scheme building, to dispose of their garbage may be unreasonable and unsafe. The second respondent herself is a person living with a disability, and may or may not be able to dispose of any garbage by walking such a distance to the kerb.
[75] Accordingly, I am not at this stage, persuaded that it was unreasonable for the body corporate to restore access to the garbage chute in late January 2026.
[76] Regardless, it is not disputed that the scheme now faces a growing hazard in the garbage chute room; and in the absence of any alternative waste removal processes in place this hazard will likely reappear every week if the garbage bins are not emptied.
[77] I am accordingly satisfied that the nature of the circumstances warrants interim relief.
[78] On the one hand, if the interim relief sought is granted, it would require the second respondent to (either by herself or another) remove any vehicle parked in Parking Space 42 until the bins are rotated. This may very well be an onerous imposition on a person living with a disability. However, I note the respondents' submission that the second respondent has in fact been using Parking Space 42 for the past four years even in the absence of a reallocation agreement. Further, during these four years, waste removal services occurred undisrupted. Accordingly, I note that the second respondent has had the benefit of some arrangement, most likely with the first and third respondents, that caused the parking space to be vacated until the bins were rotated.
[79] On the other hand, if the interim relief sought is not granted (in circumstances where the guarantor of the caretaking services contract has precluded the Caretaker from performing its duties; where the body corporate reasonably anticipated continuation of waste removal services until 31 March 2026; and where there is no alternative waste removal process in place) a hazard presenting on common property is guaranteed.
[80] I am satisfied that the balance of convenience favours the preservation of the status quo, i.e., for waste removal services to be carried out in the manner that it has for the past few decades, albeit perhaps by a different person authorised by the body corporate.
[81] The body corporate seeks the following interim order:
[The respondents] must remove the vehicle (registration number ACG-74) from [Parking Space 42...] within two hours of this interim order being made and keep [Parking Space 42] unobstructed until such time as the Body Corporate notifies them that the [garbage chute room] has been serviced by the rotation of the large steel bins. If the vehicle is not removed in two hours, the Body Corporate may have the vehicle towed away from scheme land for collection at the expense of [the respondents].
[82] In the circumstances described above, I am satisfied that an interim order requiring Parking Space 42 to be vacated to allow the current hazard to be tackled and the bins to be rotated is warranted. I appreciate that given garbage would have now been collecting for well over a week, and overflowing, the body corporate would require more time than it usually does to rotate the bins and clean the garbage chute room.
[83] However, the temporal aspect of requiring vacation of Parking Space 42 within two hours of the interim order being granted is in my view insufficient for the second respondent. Accordingly, I will provide for a different timeframe.
[84] Furthermore, whilst I am satisfied that an order directing the second respondent to ensure vacation of Parking Space 42 to allow bin rotation is warranted, I would not at this stage, go so far as to permit an obstructing vehicle to be towed in circumstances where the vehicle is wholly within Parking Space 42.
[85] In the event of a failure on the part of the second respondent to comply with the order, the body corporate may pursue enforcement action in the Magistrates' Court. The financial penalties for non-compliance with an adjudicator's order may exceed $60,000.00 as per section 288 of the Act. I am accordingly hopeful that this alone will discourage the respondents from non-compliance with the interim orders made.
[86] I am satisfied that the circumstances described above warrant the substantial granting of the remainder of the interim orders sought. I have varied certain terms in this regard that in my view provide for a more just and equitable outcome for all parties concerned.
[87] I am satisfied that interim relief is warranted.
[88] I note that both the body corporate and the respondents have the benefit of legal counsel. I would accordingly encourage all parties to continue efforts at internal dispute resolution whilst preserving the status quo, with or without the aid of counsel.
[3] As cited in the Groom Breach Report to QFES dated 13 January 2026. Note further, that letter dated 14 November 2025 by Mahoneys to the body corporate notes a fine figure of $21,320.00
[4] The CMS includes the scheme's by-laws
[5] Sections 276)(1)(a) and (b) of the Act
[7] See Brighton on Broadwater Breezes [2018] QBCCMCmr 243 at [8]
[10] 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
[11] Cohen v Peko-Wallsend Ltd [1986] HCA 70 at [6]