Calmwater Shores [2025] QBCCMCmr 330 (30 September 2025)

• [74] The law largely remains unsettled as to the meaning of 'under the Act' or 'under the enactment' in general contexts. There is no single formulated test that applies in all contexts. However, in my view, this much is clear from recent precedent:
  1. Whether an action has been taken or a thing has been done 'under an Act' must be determined based on the circumstances of each case considering the objects, scope, subject, language and structure of the Act. It may not always be appropriate to apply the tests laid down in precedent mutatis mutandis[43], but it would be inappropriate to ignore the underlying principles set out in these past cases;
  2. The enactment being the source (immediate or proximate or otherwise) of the general power to do the act in question is generally insufficient. Kirby J (dissenting) in Tang was of the view that the question whether the lawful source of the power to do the act or thing lay in the enactment is relevant. However, this constituted only the first limb of the test posited by His Honour;
  3. The first limb of the test established by the plurality in Tang i.e., that the act done must be expressly or impliedly required or authorised by the enactment, remains applicable for present purposes. This is not dissimilar to the first limb of the test posited by Kirby J (dissenting);
  4. When determining the second limb of the test in Tang, much regard was had to the 'characterisation' of the thing done, in the sense that it must be derived from the Act in question. This was in my view not only because the test pertained to a decision of 'administrative character', but also because characterisation was an essential component of the enactment under which the thing was done. I reiterate that the plurality in Tang held that some force is to be given to the phrase 'made under the enactment' by the words preceding it.[44] It is also useful to draw parallels to the second limb of the test as established previously by Lehane J in Australian National University v Lewins[45] (as cited and refined in Tang) that the thing done must be given 'legal force or effect' by the enactment in question. To put it differently, as Gleeson CJ stated, the thing done must 'draw its legal efficacy' from the enactment.[46] To draw a further parallel, Applegarth J in Davis refers to a 'connection' between the contents of the enactment and the thing done, noting that in that case the enactment did not contain specific provisions about the doing of the thing, despite the relevant body having the general power to do it.[47] Accordingly, an additional qualifying factor regarding a sufficient nexus exists, whether it is based on characterisation or legal force and effect based on the circumstances of each case.

• [75] The primary object of the Act is to provide for flexible and contemporary communally based arrangements for the use of freehold land, having regard to the secondary objects.[48]
• [76] The secondary objects of the Act include the following:
  1. To balance the rights of individuals with the responsibility for self-management as an inherent aspect of community titles schemes;[49]
  2. To promote economic development[50] by establishing sufficiently flexible administrative and management arrangements for community titles schemes;[51]
  3. To ensure that bodies corporate for community titles schemes have control of the common property and body corporate assets they are responsible for managing on behalf of owners of lots included in the schemes;[52]
  4. To provide bodies corporate with the flexibility they need in their operations and dealings to accommodate changing circumstances within community titles schemes.[53]
• [77] A body corporate is vested with all the powers necessary for carrying out its functions and may for example hold, deal with and dispose of property including documents[54] (section 95(1) of the Act - 'Body corporate's general powers').
• [78] A body corporate must keep rolls, registers and other documents, must give access to them and may dispose of them, in the way, and to the extent, provided for in the regulation module (section 204 of the Act).
• [79] The legislation identifies specific documents that a body corporate is required to keep. They include the following:
  1. Division 2 of Chapter 9 of the Standard Module contains provisions that require a body corporate to keep a roll[55], a register of body corporate assets[56], a register of engagements and authorisations[57], a register of authorisations affecting the common property[58], a register of allocations under exclusive use by-laws[59], and a register of reserved issues[60];
  2. Section 175(1)(a) of the Standard Module requires a body corporate to keep proper accounting records. Similarly, section 231(1) of the Standard Module lists certain documents a body corporate must mandatorily keep such as its accounting records, statements of accounts, orders made against the body corporate by a judicial or administrative authority, correspondence received and sent by the body corporate, minutes of meetings etc.
• [80] Further, the legislation also sets outs the manner in which certain identified documents (which are records) must be kept and for how long they must be kept, as follows:
  1. Section 231(2) of the Standard Module provides that certain records the body corporate is required to keep may be kept in their original paper form or in photographic or electronic form;
  2. Section 231(3) and (4) of the Standard Module lists documents (which are records) that the body corporate may dispose of a certain number of years after they are created or received;
  3. Section 231(5) of the Standard Module states that despite subsections (3) and (4), a body corporate may not dispose of a document if it has current relevance to the scheme.[61]
• [81] On the one hand, one may argue that under section 231(5) of the Standard Module, a body corporate must not dispose of any document in its possession of control if it has current relevance to the scheme. It may be argued that the class of documents under this provision is not limited to those records specifically identified under section 231(1) to (4) of the Standard Module and instead includes any document whatsoever that has current relevance to the scheme.
• [82] However, I am of the view that such a wide interpretation may not be appropriate given the manner in which that provision has been constructed, and its placement under the broader section 231 of the Standard Module. If section 231(5) of the Standard Module was meant to apply to any document whatsoever as opposed to those specific records listed under sections 231(1) to (4) of the Standard Module, it would presumably have appeared under a fresh section (although perhaps under the same part and chapter of the legislation). In this regard, I also note that the examples provided under section 231(5) of the Standard Module are accommodated by sections 231(1) and (3) of the same.
• [83] It is also worth noting that all the subsections under section 231 of the Standard Module (save for subsection 5) contain specific and exhaustive lists of types of documents. They do not leave open or make room for another general class of documents that are similar to those listed. This too is indicative that the concept of current relevance under subsection 5 does not extend any further than those types of documents listed under the remaining subsections of section 231 of the Standard Module.
• [84] Accordingly, section 231(5) of the Standard Module merely operates as an exception to disposal authorisations under sections 231(3) and (4) of the Standard Module. In other words, this provision is part of the broader disposal regime set out under section 231 of the Standard Module for those types of documents (records) listed under subsections (1) to (4).
• [85] I also note that whilst the body corporate is required to administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners,[62] there is no express requirement or specific power under the Act for a body corporate to install surveillance devices and to maintain any such surveillance footage.
• [86] It is also pertinent to note that there is no provision setting out how a body corporate may keep any non-mandatory documents or even simply its documents as a whole.
• [87] Furthermore, and most importantly, there are multiple provisions across the legislation that contemplate at least three distinct categories of body corporate property, namely body corporate assets, body corporate records, and 'other documents of a body corporate'. This indicates that the legislature intended to create a separate class of documents that a body corporate may possess or control which are not necessarily part of its 'records'.[63] In borrowing the language of the legislation, I will refer to this category as 'other documents of a body corporate'. The said multiple provisions include:
  1. Section 235(1)(a) of the Standard Module regarding the return of body corporate property that is a 'record or other document of the body corporate' or a body corporate asset;
  2. Section 251(2)(c) of the Act which allows the Commissioner to inspect a 'body corporate asset or record or other document of the body corporate' before deciding on a dispute resolution recommendation for the application or dismissing the application;
  3. Section 271(1)(d) of the Act which allows an adjudicator when investigating an application to inspect 'a body corporate asset or record or other document of the body corporate';
  4. Section 118(2) of the Standard Module which requires the secretary to provide to a person calling a general meeting in certain circumstances[64], the 'records or other documents of the body corporate' reasonably required to enable the person to perform the relevant functions.

**_(v) What is the scope of 'body corporate records' & 'other documents of a body

• [88] I am of the view that a document of a body corporate (such as a document controlled by or in the possession of a body corporate) falls into one of two categories:
  1. Body corporate records; or
  2. Other documents of a body corporate.
• [89] To expand further, a document kept is a body corporate record only if it is:
  1. Specifically identified as a document that must be kept by the body corporate under a provision of the legislation (for e.g., the documents identified under sections 175(1)(a), 224, 226 to 230, and 231(1) of the Standard Module); or
  2. Any other document that in the circumstances of each case can be considered as being kept by the body corporate 'under the Act'.[65]
• [90] I consider that any document of a body corporate that is not a body corporate record to fall within the category of 'other documents of a body corporate'. In my view, these documents are beyond the ambit of sections 205 and 205AAB of the Act:
  1. But are covered by the protections afforded under the return of property provisions i.e., sections 234 and 235 of the Standard Module;
  2. But may be subject to inspection by the Commissioner and adjudicators under sections 251(2)(c) and 271(1)(d) of the Act;
  3. But may be accessible by a lot owner depending on the circumstances, pursuant to a body corporate acting reasonably upon a suitable request to access the same;
  4. And are not covered by the statutory exceptions to access records[66] namely legal privilege and defamation (as described further above in this decision), but may be covered under exceptions applicable in the circumstances guided by reasonableness and under general law (such as privacy, legal privilege etc.) [67].

(vi) Is CCTV footage of the common property as generally recorded,

• [91] I will now consider whether CCTV footage as generally recorded by the CCTV camera system at this scheme, is automatically a body corporate record. The facts of the case indicate that the CCTV system is installed at the scheme, and operated by a Contractor. The specific camera in question covers among other things, the gate and entrance to the scheme.
• [92] Based on the definition of 'under' as per Schedule 1 of the Acts Interpretation Act 1954 read together with section 36(1) of the same, if a document can be said to have been kept by a body corporate either 'by' the Act, 'for the purposes of' the Act, 'in accordance with' the Act, 'within the meaning of' the Act, 'in pursuance of' the Act, or 'under the authority of' the Act, it is a body corporate record.[68]
• [93] Generally speaking, CCTV footage of this kind, cannot rationally be considered a document kept 'by' the Act or 'within the meaning of' the Act. Further, I am not convinced that it can automatically be considered a document kept 'for the purposes of' the Act, 'in accordance with' the Act, 'in pursuance of' the Act, or 'under the authority of' the Act. This is because while the legislation grants a body corporate the general power to hold, deal with and dispose of property including documents,[69] it does not set out how a body corporate may maintain documents it is not mandatorily required to keep (such as CCTV footage).
• [94] One may argue that a body corporate may save such footage and keep it, in the course of exercising its powers, and performing its functions and duties as set out under the legislation. However, the keeping of such footage cannot in my view necessarily be considered as being done 'under the authority of the Act'. Rather it is done under the authority of the body corporate pursuant to a general power conferred by the Act. In that sense, my reasoning does not significantly differ from that of Applegarth J in Davis as described above.
• [95] Based on the criteria for relevant tests as set out in the precedent above, in my view, such footage may automatically be considered as having been kept by the body corporate under the Act if firstly, the body corporate was authorised or required to keep it by the Act; and secondly, if there is a sufficient nexus between the keeping of such footage and the Act (in the manner posited in Davis), or a nexus based on the characterisation of the footage or whether the Act provides legal force or effect to the footage, or whether the footage draws legal efficacy from the Act.
• [96] As stated above, the body corporate has all the general powers necessary for carrying out its functions and may for example hold, deal with and dispose of property (including documents) under section 95(1) of the Act. Accordingly, a body corporate may pursuant to its function to administer, manage and control the common property under section 152(1)(a) of the Act, have CCTV cameras in place recording footage of common property spaces. It is authorised and empowered to keep and deal with the recorded footage under section 95(1) of the Act. Hence, I am satisfied that the first criterion as described above is met.
• [97] With regard to the second criterion as described above, I am not firstly (and perhaps most importantly) satisfied that there is any connection (as discussed in Davis) between the contents of the Act and the keeping of the footage, given the Act does not include provisions about the keeping of a non-mandatory document such as the footage.[70]
• [98] Secondly, in this case, the body corporate maintains that it is the Contractor who operates the CCTV system and stores the footage. This indicates that it is the contract with the said Contractor that characterises, and provides legal efficacy and force to the keeping of the footage. In other words, the footage is kept under the terms of the contract as opposed to under the Act.[71]
• [99] Thirdly, even under the test posited by Kirby J in his dissenting judgment (if applied to these circumstances mutatis mutandis[72]) such CCTV footage cannot automatically be considered a body corporate record. This is because, while the lawful source of the body corporate's power to keep CCTV footage may be section 95(1) of the Act, it would nevertheless be empowered to keep this footage in the absence of this provision, in the same way an ordinary member of the public would.
• [100] Furthermore, it is pertinent to note that the purpose of the phrase 'under this Act' is necessarily to restrict the ambit of body corporate records. If Parliament intended for every document kept by the body corporate to be a record, this phrase would have been excluded. Moreover, I reiterate that it must be assumed that Parliament intended to recognise 'other documents of a body corporate' as a category of documents distinct and separate from body corporate records.
• [101] If all CCTV footage of common property recorded by a CCTV camera system installed at the scheme is automatically considered a body corporate record, all lot owners would have a statutory right to inspect them as frequently as they please provided they make a written request and pay the prescribed fee of approximately $20.00. Often when lot owners decide to install surveillance cameras, it is not with the intention that every lot owner or other interested person can access the same without providing proper reason, and without any vetting on the part of the body corporate. In my view, there are obvious privacy concerns associated with any right (subject only to a written request and modest payment)[73] for interested persons to inspect such surveillance footage. This process then becomes open to serious abuse, by allowing not only the body corporate to monitor the common property but also any other interested person regularly exercising this right of access.[74]
• [102] If all such footage of common property are not automatically considered part of body corporate records (and consequently if lot owners do not have a statutory right to access the same) it would in fact help reap the intended benefits of surveillance upon the continued support of lot owners for the same. This would then help ensure that the body corporate maintains control of the common property so monitored by the CCTV cameras; promote a greater balance between self-management and the privacy rights of individual lot owners, and afford flexibility to the body corporate in who it provides access to, and when and how it does so acting reasonably. Accordingly, such an interpretation in my view, is consistent with the secondary objects of the Act.

(vii) Can lot owners access 'other documents of a body corporate'?

• [103] Some adjudicators have previously held that a lot owner's right to access body corporate records is an inherent one, given they are members of a body corporate and that records are the property of the body corporate. By that same reasoning, lot owners should strictly speaking also have an inherent right to access other documents of a body corporate given they are also body corporate property.[75]
• [104] I must admit that I too have previously stated that a lot owner has a prima facie[76] inherent right to access body corporate records, in cases where the outcome did not turn upon the precise nature of that right. However, pursuant to further and more careful consideration as warranted in this application, I henceforth proceed with a different interpretation of the nature of that right, i.e., that the right to access body corporate records and other documents of a body corporate is not an inherent one per se.
• [105] My understanding of an 'inherent right' is that it is intrinsic and fundamental to the existence of a person (for e.g., upon the birth of a natural person or the incorporation of a juristic person) or an office (for e.g., upon the appointment of a chairperson or director) or an institution (for e.g., upon the establishment of a court of law) etc. An inherent right does not have to be conferred on a person, office or institution etc. by the legislature or common law. It can however be regulated by laws though perhaps not completely alienated. In my view, to the extent that the legislature or common law remains silent, a person retains their inherent rights unfettered.
• [106] Some examples of inherent rights are the right to life, liberty, self-defence, and property.
• [107] The inherent right to property is relevant for discussion here. Based on my understanding, an inherent right to property commonly refers to (among other things) a right to own property and consequently to access, use and alienate such property.
• [108] The ordinary meaning of the term 'property' is a thing belonging to someone. However, its meaning is rather different in law. Gleeson CJ, Gaudron, Kirby and Hayne JJ explained the meaning of the term in Yanner v Eaton[77] as follows:

The word "property'' is often used to refer to something that belongs to another. But in [the Act], as elsewhere in the law, "property'' does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of "property'' may be elusive. Usually it is treated as a "bundle of rights''. But even this may have its limits as an analytical tool or accurate description, and it may be, as Professor Gray has said, that "the ultimate fact about property is that it does not really exist: it is mere illusion''. Considering whether, or to what extent, there can be property in knowledge or information or property in human tissue may illustrate some of the difficulties in deciding what is meant by "property'' in a subject matter. So too, identifying the apparent circularity of reasoning from the availability of specific performance in protection of property rights in a chattel to the conclusion that the rights protected are proprietary may illustrate some of the limits to the use of "property'' as an analytical tool. No doubt the examples could be multiplied.

Nevertheless, as Professor Gray also says, "An extensive frame of reference is created by the notion that `property' consists primarily in control over access. Much of our false thinking about property stems from the residual perception that `property' is itself a thing or resource rather than a legally endorsed concentration of power over things and resources."

"Property'' is a term that can be, and is, applied to many different kinds of relationship with a subject matter. It is not "a monolithic notion of standard content and invariable intensity''. That is why, in the context of a testator's will, "property'' has been said to be "the most comprehensive of all the terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have''.

Because "property'' is a comprehensive term it can be used to describe all or any of very many different kinds of relationship between a person and a subject matter. To say that person A has property in item B invites the question what is the interest that A has in B? The statement that A has property in B will usually provoke further questions of classification. Is the interest real or personal? Is the item tangible or intangible? Is the interest legal or equitable? ...[78]

• [109] In the context of access to body corporate records and other documents of a body corporate, it is crucial to consider the structure of ownership in a body corporate as established by the Act and Standard Module. Lot owners upon the exercise of an inherent right to property, acquire freehold title to their lots. These lots, common property, body corporate assets, records, other documents of a body corporate etc. form the corpus of a community titles scheme. In this regard I note:
  1. All lot owners are members of the body corporate for the scheme within which their lots are contained;
  2. Common property is owned by all lot owners as tenants in common in shares proportionate to the interest schedule lot entitlements of their respective lots.[79] However, it is the body corporate that may sue and be sued for rights and liabilities related to the common property as if the body corporate were the owner of the common property;[80]
  3. Body corporate assets however are owned by the body corporate but held beneficially, i.e., for the benefit of lot owners;[81]
  4. Body corporate records and other documents of a body corporate are owned by the body corporate. Lot owners have a statutory right to access body corporate records in accordance with the legislation. However, the legislation remains silent on access to other documents of a body corporate.
• [110] To put it simply, lot owners have co-ownership rights to common property, and a beneficial right to body corporate assets. However, their proprietary rights with respect to records and other documents of a body corporate are not specified or defined.
• [111] A person who solely owns a document (and accordingly has property in that document) would naturally have access to the same, such as a person when keeping a personal diary or journal. However, in my view, property in a body corporate record or document lies with the body corporate, and not directly with the members of the body corporate (i.e., lot owners) in shares or jointly.[82] The proprietary interests that lot owners have in these records and documents, are by virtue of their membership with the body corporate. It is the body corporate that remains in control of these records and documents, such as by making decisions on how to keep them and dispose of them subject to the legislation.
• [112] The question is then whether this proprietary interest in these other documents of a body corporate affords lot owners any right or means to access them. I note that whilst I am unable to find any further indicators in the legislation as to the nature of any rights of lot owners, there are indications as to the obligations the body corporate may owe in respect of these other documents of a body corporate.
• [113] There is a general requirement under section 94(2) of the Act that a body corporate must act reasonably in anything it does in (among other things) 'administering the common property and body corporate assets' for the benefit of lot owners; and in carrying out its 'functions given to the body corporate' under the Act and CMS; and in making or not making any related decisions.
• [114] There are clear provisions regarding the body corporate's function in providing access to body corporate records. However, I reiterate that there are none pertaining to providing access to other documents of the body corporate. Accordingly:
  1. One may argue that the duty to act reasonably under section 94(2) of the Act does not apply to any provision of access to the other documents of a body corporate. Further, it may be argued that providing access to the other documents of a body corporate does not amount to administering common property and body corporate assets given it may be viewed as a separate class of property; and that on that basis the statutory duty to act reasonably does not apply. It is worth noting that the Act does not expressly state that the duty to act reasonably applies to bodies corporate when exercising their powers as expressed under section 95 of the Act, but only to the performance of its functions under section 94(1) of the Act;
  2. On the other hand, with respect to CCTV footage recorded by a CCTV camera system installed at a scheme, i.e., prima facie[83] classed under other documents of a body corporate as opposed to body corporate records - the recording of the footage covering common property or a body corporate asset, and monitoring the same may be considered part and parcel of the function of administering, managing or controlling the common property for the benefit of lot owners[84]. In that regard, it is my view that section 94(2) of the Act is worded widely enough to capture anything it does in performing that function, including dealing with CCTV footage resulting from the monitoring activities. In this regard, QCAT held in Body Corporate for the Reserve CTS 31561 v Trojan Resorts Pty Ltd[85] as follows:

The distinction between the functions given to the body corporate under s 94, which are subject to the requirement of reasonableness, and the powers given to the body corporate under s 95, which are not specifically subject to the requirement of reasonableness, is an artificial one. Section 95 states that the body corporate has all the powers necessary for carrying out its functions. If a body corporate must perform its functions reasonably, and it exercises its power to perform its functions, then it stands to reason that the powers must also be exercised reasonably.

• [115] Even if my analysis is flawed, I note that Carmody J in Body Corporate for Beaches Surfers Paradise v Backshall[86] states that in addition to this statutory duty to act reasonably, bodies corporate are required under mandatory general law to make fully considered, rational and reasonable decisions that are not conflicted, arbitrary, patently absurd or plainly unjust. This duty to make reasonable decisions under the general law is not limited to specific functions, duties and powers of a body corporate under the Act, but would extend to cover all decisions it would have the power to make whether under the Act, or another statute or common law.
• [116] As a result, if a lot owner makes a request to access other documents of a body corporate, it may be unreasonable for a body corporate to deny access without justification. (As stated above, these justifications are guided by reasonableness and may include privacy considerations.)
• [117] From a practical point of view, when a body corporate purchases and/or maintains a CCTV camera system, it does so (and should only do so) for the collective benefit of lot owners and it is done using body corporate funds sourced by lot owner contributions. Accordingly, if an owner wishes to access a copy of lawfully recorded CCTV footage, they must prima facie[87] be provided access to the same (unless to not do so is justified which is likely only in a small proportion of cases). For e.g., a lot owner notices that a valuable fitting from his lot has gone missing in the past eight hours. He suspects it may have been stolen. He reasonably believes that the CCTV cameras at the common property by the entrance to his lot may have captured footage that may assist him. Accordingly, he seeks a copy of this footage. In such an instance, it would generally be unreasonable for a body corporate to deny access to the footage. This is because among other things, the purpose of a CCTV camera system is to enhance security, to detect and deter criminal activity and to collect evidence to aid a relevant investigation. To refuse access to a lot owner who pays his share for that amenity would prima facie[88] be unreasonable.
• [118] On the other hand, for e.g., if a body corporate has a CCTV camera system in place and a lot owner requests to inspect all footage recorded by the system of all common property (including lifts, staircases, and corridors leading to all lots) a body corporate may refuse on the grounds of privacy. The body corporate may instead ask the owner to provide reasons for the request for access, and perhaps also to narrow down the access request to footage recorded during a specific time period and of a particular location on common property. Based on the reasons and details provided, the body corporate acting reasonably may then give the lot owner a copy of the relevant footage.
• [119] Upon receipt of a request to access such a document (that is not a body corporate record), a body corporate is not bound by the strict timeframes and penalties under sections 205 and 205AAB. However, it is required to provide access to the documents within a reasonable period of time, unless a justification to deny access applies in the circumstances.
• [120] Similarly, any request to access such a document would not attract the fees prescribed under sections 233 and 233B of the Standard Module (including the per-page fees for copies of records). Instead, the body corporate may acting reasonably require the lot owner seeking access to cover any reasonable costs (as opposed to charges or fees) incurred in making a copy.

(viii) Is the CCTV footage of the Incident a body corporate record?

• [121] The CCTV footage of the Incident recorded an interaction on common property between two individuals, identified in the application as the second applicant and Mr van Sleeuwan, by the entrance gate to the scheme. It also captures two vehicles and a bicycle.
• [122] The applicants do not provide reasons as to why they believe that the footage of the Incident is a body corporate record, and regardless, I am not persuaded in the circumstances of this dispute that it is one. This is for largely the same reasons I find that CCTV footage as generally recorded at a scheme by a CCTV camera system is not automatically a body corporate record. There is nothing in the substance of this footage that characterises it as deriving from the legislation, and there is nothing to denote a nexus to the legislation as explained above. (For e.g., an adjudicator previously held that an audio recording of a meeting recorded and kept by a body corporate for the purpose of keeping full and accurate minutes was a body corporate record.[89])
• [123] I note that the body corporate maintains that it was not the committee but the Contractor who had access to the CCTV footage. This does not however mean that it was not the body corporate that kept the document or that it is not under the control of the body corporate. The Contractor maintained the footage for and on behalf of the body corporate as its agent.
• [124] Accordingly, in my view the footage of the Incident falls into the category of other documents of a body corporate. It accordingly does not fall within the scope of section 205 of the Act.

(ix) Did the body corporate contravene section 205(2) of the Act or section 94(2) of the Act?

• [125] On 13 September 2024, the first applicant made a written request to the body corporate for CCTV footage of the Incident. Subsequently on 20 September, he made a second written request for a copy of this footage coupled with an offer to pay any relevant fees.
• [126] On 27 September 2024, the body corporate manager responded to the first applicant indicating that she is unable to specify the price to be paid since it would depend on the fees associated with the download of the file. She added that she did not have the requisite authority to obtain the footage from the Contractor.
• [127] On 30 September 2024, the first applicant provided the body corporate with notice of his intention to seek an interim order due to the failure to provide a copy of the footage. I note that the body corporate acknowledged receipt of this notice that same day.
• [128] On 2 October 2024, the applicants lodged an application for interim orders in relation to access to this footage.
• [129] The applicants state that on 15 October 2024, the body corporate provided a copy of the footage, albeit one that is of extremely low resolution and quality. (This information was not provided to the Office before the interim order was made on 5 November 2024).
• [130] The applicants complain that the footage they sought was a copy of the original CCTV footage which is of a far greater resolution and video quality. They state that a copy of the original footage would have allowed them to identify the persons and vehicles in it. Accordingly, they maintain that the footage actually sought was never provided.
• [131] I note in this regard that section 32E of the Acts Interpretation Act 1954 states partly that if a person who keeps a record by way of an electronic or other device is required under an Act to produce a document or make the same available to another for inspection, the person is obliged to provide it in a form capable of being understood.
• [132] I note that the applicants claim that the body corporate contravened section 205(2) of the Act. However, I reiterate that the CCTV footage of the Incident in question (be it the low quality copy or any original high quality video) falls into the category of 'other documents of a body corporate' and not body corporate records.
• [133] Accordingly, any request for access to the same does not attract the application of section 205 of the Act. This means that the body corporate did not contravene section 205(2) of the Act.
• [134] Rather, in response to a request for access to this footage, the body corporate must act reasonably in terms of section 94(2) of the Act.
• [135] More specifically, this section states that a body corporate must act reasonably in among other things, enforcing its CMS (including the by-laws), carrying out its functions under the Act and CMS and making or not making any related decisions.[90] Similarly, under section 100(5) of the Act, the committee is required to act reasonably in making a decision. (Further, section 100(1) of the Act states that a decision of the committee is a decision of the body corporate.)
• [136] In the event this does not occur, an adjudicator may intervene to make an order that is just and equitable to resolve a dispute.
• [137] The question of whether a body corporate has acted unreasonably is not a straightforward one. What is reasonable is a question of fact, based on a consideration of all relevant matters in the circumstances of the particular case. There is no onus on a body corporate to satisfy an adjudicator that it acted reasonably.[91] Rather, it is for the person alleging that the conduct or decision was unreasonable to prove the same.
• [138] The test of reasonableness was considered by the Queensland Civil and Administrative Tribunal ('QCAT') in Body Corporate for Beaches Surfers Paradise v Backshall[92] ('Beaches') which held as follows:

(a) 'Reasonable action is evidence-based and rational';[93]

(b) 'A finding that a decision or action in issue is "not irrational, absurd or ridiculous" does not necessarily mean it is a reasonable one'.[94]

• [139] A legally reasonable decision is not a uniquely right one. It involves matters of degree about which contrary - even opposite - conclusions can be reasonably reached on the same body of evidence by different lines of reasoning or by reference to other determinants without either being demonstrably right or manifestly wrong'.[95] Accordingly, it is not sufficient to find that the body corporate could have made a better or more reasonable decision, or that a different body corporate could reasonably have come to a different decision.[96] Further, it is not the adjudicator's role to substitute his/her own view as to what would be the preferable decision by the body corporate.[97]
• [140] In this case, the applicants with whom the onus lies to make their case, have not provided any evidence to demonstrate that the CCTV camera system installed at the scheme recorded a higher resolution footage of the Incident. Had they provided at the very least the details or specifications of the CCTV camera system in place, I may have likely been able to ascertain the specifics of the footage recorded and downloaded. Further, the body corporate denied holding any video of higher resolution.
• [141] Accordingly, based on the evidence before me, I can only conclude that the body corporate furnished a copy of the footage it actually had. In doing so, I cannot hold that it acted unreasonably.
• [142] The only remaining issue is the delay on the part of the body corporate in engaging with and responding to the first applicant.
• [143] The body corporate submits as follows:
  1. The first applicant's request for access to the CCTV footage of the Incident was resolved on 25 September 2024, when it supplied a copy of this footage to QPS;
  2. The committee does not have access to the CCTV systems. This lies with the Contractor;
  3. Given the footage captures other residents, the committee decided the best course of action was to provide it to QPS only, thereby avoiding privacy breaches;
  4. Due to an inbox error, the committee regrettably overlooked an email sent by the first applicant. The email sent on 10 September 2024 was actioned promptly by liaising with the facilities team and external advisors; etc.
• [144] The supporting documents provided by the body corporate indicates that pursuant to the receipt of an email on 10 September 2024 from the body corporate manager regarding the access request by the first applicant, the committee did indeed liaise with the Contractor operating the CCTV cameras, and direct it to furnish a copy of the footage to QPS.
• [145] However, the error on the part of the body corporate here was conflating QPS's request for the footage and the first applicant's request for the same. It was not sufficient for the body corporate to accommodate QPS's request and ignore the first applicant's, in the naïve and overly optimistic expectation that QPS would pass it on to the first applicant.[98]
• [146] I am not persuaded that any legitimate privacy considerations apply in these circumstances given the second applicant was present in the recorded video. She was already party to the occurrence, and should not be denied a copy of the footage based on the 'privacy' of Mr van Sleeuwan or any other passer-by, especially in circumstances where audio was not recorded. Further, any such privacy considerations on account of the fact that the access request was made by the first applicant (as opposed to the second applicant) would also in my view be inapplicable. This is because the evidence indicates that first applicant in making the access request was also acting on behalf of his wife and co-owner of Lot 637, the second applicant. I note that the second applicant was copied on certain emails.
• [147] Furthermore, as stated above the body corporate cannot maintain that it did not have access to the CCTV camera system. Its Contractor records and keeps CCTV footage of the scheme for and on behalf of the body corporate as its agent in accordance with its contract(s). Unless the contract states otherwise, the footage remains the property of the body corporate and not of the Contractor. (If the contract states the reverse, that may be an unreasonably negotiated term.) Accordingly, the body corporate cannot circumvent its obligation to act reasonably in providing access to a document on this basis.
• [148] In circumstances where the applicants were urgently seeking a copy of the footage to support a police investigation, the body corporate ought to have - within a reasonable period of time - at the very least responded to the first applicant specifying that it had supplied the footage to QPS on 24 September 2024; or indicated that the footage (regardless of its quality) had been preserved; or facilitated the first applicant's request in some other reasonable manner.
• [149] The body corporate did not provide the first applicant with any meaningful response until 15 October 2024, which is almost a month after QPS sought a copy of the same footage that the body corporate knew was requested by the first applicant.
• [150] In these circumstances, I am satisfied that the body corporate acted unreasonably in contravention of section 94(2) of the Act.
• [151] However, there is no substantive order I can make in these circumstances, given the low resolution footage has already been provided to the applicant, and given there is no evidence to demonstrate that a higher quality video exists.

• [152] Based on my interpretation of the applicable laws in question, one may then wonder whether a record that is no longer required to be kept under the Act (such as a document evidencing an installation carried out on common property that no longer bears current relevance to the scheme, and that can upon the application of section 231(3)(c) of the Standard Module be disposed of six years after its receipt or creation) ceases to be a body corporate record. In my view, if the body corporate continues to keep it for whatever reason or for no reason at all, it remains a record. This is because the legislation does not require bodies corporate to dispose of such records. It merely allows them to. Accordingly, in my view, such a record continues to retain its character as a record if a body corporate has chosen to keep it.
• [153] My interpretation may also give rise to questions as to whether bodies corporate are required to maintain two separate collections of documents, one for body corporate records and another for other documents of a body corporate. In my view the answer to that question is that it is not required to physically separate them but it would be prudent to do so. In this regard, I note the following:
  1. A body corporate may choose to separate from its records, the ones that are covered by legal privilege in the circumstances, and the ones which contain parts that have defamatory content. Alternatively, it may filter out records subject to legal privilege and redact any that contain defamatory material as and when an access request is made.
  2. Similarly, bodies corporate may when an access request for specific documents is made, determine whether it pertains to records and/or other documents of a body corporate. (I must note that in my view, if a document sought falls into the category of 'other documents of a body corporate', a body corporate must be inclined to provide access unless there is a justification not to in the circumstances - as opposed to an inclination to deny access unless a justification to provide it applies).
  3. The challenge l suppose lies with a request to inspect all the records of a body corporate. In such an event, it would be prudent for a body corporate to have pre-identified its records or at the very least flagged the 'other documents of a body corporate' that may contain sensitive information to which a justification to limit access may apply.
• [154] Finally, I note that the decisions of courts and QCAT are binding on adjudicators. However, the decisions of one adjudicator are not binding on other adjudicators. I reiterate that my interpretation of the law on the documents of a body corporate differs from that of other adjudicators. Accordingly, my interpretation does not bind other adjudicators. In other words, an adjudicator in like circumstances in another dispute may not agree with my interpretation.

• [155] All CCTV footage as recorded by the CCTV camera system installed at the scheme are not automatically body corporate records. Further considering the circumstances of this case I am not satisfied that the footage of the Incident constitutes a body corporate record. However, it does fall into the category of 'other documents of a body corporate'.
• [156] This means that while this footage does not form the subject of the record keeping and disposal regime under the Act and does not fall within the scope of section 205(2) of the Act, the body corporate must however act reasonably upon receipt of a request to access it under section 94(2) of the Act.
• [157] Accordingly, I cannot find that the body corporate contravened section 205(2) of the Act.
• [158] I do however, find that the body corporate acted unreasonably in the circumstances by delaying engaging with the first applicant, pursuant to his request for the footage. In that regard, I find that it contravened section 94(2) of the Act.
• [159] Whilst I can make a declaration to that effect, I am unable to provide the applicants with any substantive relief given they have already received a copy of the footage, albeit one of low resolution, and given they have not demonstrated that any video of a higher resolution exists or existed.

[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]

[5] I note that section 101A of the Act pertains in part to negligent acts by a committee member. This provision however does not cover decisions made by the committee, which are in fact decisions of the body corporate itself by virtue of section 100(1) of the Act

[6] See Minister for Immigration & Multicultural Affairs & Anor v Tosn Ozmanian [1996] FCA 2017 on the making of bare declarations

[7] See sections 94(2) and 100(5) of the Act

[8] Proprietors of Strata Plan 17226 v Drakulic [2002] NSWCA 381 at [107]

[9] Ibid citing Gleeson CJ in Tame v New south Wales [2002] HCA 35 at [8]

[10] See for e.g., Club Lodge [2010] QBCCMCmr 223 p.5

[11] See definition of 'records' under Schedule 6 of the Act

[12] See section 235 of the Standard Module

[15] Exceptions which operate upon body corporate discretion. Note: The ability to redact parts of records containing defamatory material is a power that may be exercised by a body corporate and not an obligation that a body corporate must comply with

[16] Section 232(2) of the Standard Module

[17] Section 232(3) of the Standard Module

[18] Note: Further exceptions under other statutes and common law may apply. See Gympie Pines Fairway Villas [2021] QBCCMCmr 528 at [30] to [35]

[21] See section 205AAA of the Act and section 233AA of the Standard Module

[22] [1984] 1 FCR 254 at [153]

[23] See also Hawkesbury City Council v Foster & Mushroom Composters Pty Ltd [1997] NSWCA 141

[24] [2005] HCA 7

[25] Further, it was followed and confirmed in another case heard by the High Court of Australia as recently as December 2024. See Fuller v Lawrence [2024] HCA 45

[30] [1982] FCA 191; (1982) 43 ALR 25

[39] [2011] QSC 285 at [22]

[40] At [29] With reference to observations of the Deputy President of QCAT in determining the same dispute before the matter was brought before the Queensland Supreme Court

[42] Applegarth J stated "I am not persuaded that the exercise of a power conferred by a Queensland Act which results in the incorporation of an entity under the Corporations Act is sufficient to make the entity one that is "established... under an Act" of the Queensland Parliament.'

[43] A latin term (used when comparing two or more cases) making necessary alterations while not affecting the main point at issue

[44] See Griffith University v Tang [2005] HCA 7 at [10] and [79]

[45] [1996] 68 FCR 87

[46] Griffith University v Tang [2005] HCA 7 at [21]

[47] Davis v City North Infrastructure Pty Ltd [2011] QSC 285 at [35 to [38]

[54] See section 235 of the Standard Module re categories of body corporate property

[55] Section 224 of the Standard Module

[56] Section 226 of the Standard Module

[57] Section 227 of the Standard Module

[58] Section 228 of the Standard Module

[59] Section 229 of the Standard Module

[60] Section 230 of the Standard Module

[61] Examples of a document having current relevance is (a) a contract that is in force for longer than 6 years; and (b) a notice required to be given to the body corporate, if information included in the notice is still current information. I note that these examples are of types of documents/records accommodated by sections 231 (1) and (3)

[63] In other words, not every document controlled by or in the possession of a body corporate is part of its records

[64] Under sections 41, 48, 82, 84 and 85 of the Standard Module

[65] Considering the application of the test in Tang and Davis in the circumstances of each case

[66] Which operate upon the discretion of the body corporate

[68] See definition of 'under' - Schedule 1 of the Acts Interpretation Act 1954

[70] See Davis v City North Infrastructure Pty Ltd [2011] QSC 285 at [38]

[71] I am of the view that section 23A of the Acts Interpretation Act 1954 is applicable

[72] A latin term (used when comparing two or more cases) making necessary alterations while not affecting the main point at issue

[73] And exceptions in certain circumstances

[74] This issue is increasingly important in light of widespread domestic violence and coercive control in Queensland often at the hands of perpetrators residing in the same household as the victim. Another issue concerns general sensitivities associated with CCTV footage captured of pool areas on common property

[75] As evidenced by section 235 of the Standard Module

[76] A latin term that means at first sight

[77] [1999] HCA 53

[79] Section 35(1) of the Act

[80] Section 36(1) of the Act

[81] Section 45(1) of the Act

[82] See section 235 of the Standard Module

[83] A latin term that means at first sight

[85] [2017] QCATA 53 at [22]

[86] [2016] QCATA 177 at [34]

[87] A latin term that means at first sight

[89] The Astor Centre [2014] QBCCMCmr 345 at [20] and [21]

[91] Edgecliff Apartments [2021] QBCCMCmr 30 at [23] to [27] citing Ainsworth v Albrecht [2016] HCA 40; Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177

[92] [2016] QCATA 177

[93] SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 [15] - [16] as cited in Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [23]

[94] McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 [60] (Hayne J) as cited in Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [24]

[95] Woden Valley Glass v Psaila (1993) 122 ALR 378, 391 as cited in Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [47]

[96] Edgecliff Apartments [2021] QBCCMCmr 30 at [23] to [27] citing Ainsworth v Albrecht [2016] HCA 40; Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177

[98] See email dated 15 October 2024 by the committee to the body corporate manager (Pg 33 of the application)