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

INTERIM ORDER - whether an interim order is warranted

1. The application for interim orders is dismissed.

[1] Casino Towers is a multi-level residential scheme on George Street in the Brisbane CBD. Next to Casino Towers is another building known as 'Adina'.

[2] The applicant is a lot owner at Casino Towers. He says that over an extended period of time, he has observed what appears to be an increasing and unmanaged use of the basement areas by persons who do not appear to be either residents or authorised visitors of the scheme. The applicant asserts that Adina (its guests, staff and contractors) are extensively using Casino Towers' common property without evidence of lawful authority to do so.[1] In particular, the applicant submits that there is a pedestrian door and a roller door in the common wall on Level B2 (B2 doors) which are being used by Adina to move their commercial rubbish bins, equipment and deliveries, and for pedestrian access between the 2 buildings. He says despite repeated requests, the body corporate has not produced any evidence of authorisation relating to the installation and use of the B2 doors.

[3] The applicant wants a determination as to whether the B2 doors were installed and used without the required statutory authorisation, and in a manner inconsistent with the scheme's community management statement (CMS) or building management statement (BMS). If found to be without lawful authority, the applicant seeks an order that the body corporate permanently seal the doors and reinstate the wall to its original condition. Multiple other associated and consequential final orders are also sought.

[4] In the interim, the applicant seeks, inter alia, that the body corporate temporarily prevent Adina from accessing the building and carrying out its operational activities through the B2 doors.

[5] The only issue at this time is whether an interim order is warranted.

[6] The applicant is the owner of Lot 3003 at Casino Towers. He has brought this application against the body corporate regarding alleged unauthorised changes to and use of common property. An adjudicator may make an order to resolve a dispute between a lot owner and the body corporate regarding a claimed contravention of, or the exercise of rights or powers or the performance of duties under, the Act or CMS.[2] Further, an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances.[3] Prima facie, I am satisfied I have jurisdiction to determine this matter.

[7] The application seeks 7 interim orders pending final determination of the application. These are, in effect, as follows:

1. That the body corporate must temporarily cease and prevent all access, use, or operational activity by Adina and any external parties through the B2 doors;
2. That the body corporate must temporarily prohibit any further alteration of the B2 doors or the adjoining fire-rated wall;
3. That the body corporate must immediately notify its insurer that undocumented door openings and commercial operations are occurring through Casino Towers common property for the temporary purpose of preventing non-disclosure risk during the interim period;
4. That the body corporate must provide the applicant and all owners with a copy of the insurer's written response as received, during the interim period;
5. That the body corporate must temporarily prevent any continuation or expansion of the above activities until the adjudicator's final decision;
6. That the body corporate engage a qualified fire engineer, building certifier to inspect the B2 doors and if it is identified that the existing openings do not meet the required fire legislation, fire-rating standards, QFES requirements, or insurance obligations, then the body corporate must install temporary fire-compliance works to ensure the openings are not left in a non-compliant or unsafe condition during the interim period;
7. That the body corporate temporarily prevent Adina and any associated external parties from engaging in any commercial activities on Casino Towers common property for which no lawful authority has been produced.

[8] The Commissioner has referred the application to me to decide whether an interim order is warranted. I invited a submission from the committee on behalf of the body corporate in response to the interim order application. The body corporate's submission, where relevant, will be referred to in the analysis below.

[9] The only issue at this time is whether an interim order is warranted. To determine whether it is just and equitable to grant interim relief, it is necessary to consider:

1. whether the application raises a 'serious legal issue' with some likelihood of success at final determination, that is, whether there is any merit to the application; and
2. whether the balance of convenience favours the interim order being granted. This requires balancing the inconvenience of granting relief now if final orders are ultimately refused against the impact of refusing interim relief if final orders are ultimately granted. Of particular significance is whether an interim order is necessary to prevent serious or irreparable harm.

[10] Firstly, does the application raise a serious legal issue, or in other words, is there a prima facie case?

[11] Though comprising 280 pages, at this preliminary stage, I find the application to be lacking in substance with no clear legal basis for the orders sought. In fact, it is difficult to identify what the precise legal issue is. While the applicant suspects "governance failures", it is unclear what is specifically being claimed against the body corporate and how this amounts to a contravention of the Act, regulation module or CMS, for which I have jurisdiction to determine.

[12] The applicant describes the dispute as concerning whether Adina's current use of Casino Towers common property, including access through the B2 level, operational activity within the basement, reliance on the B2 doors, and the use of easement car spaces for ongoing commercial functions, has any lawful authority under the Act, the CMS, the BMS or any registered easement. He says the body corporate has been unable to produce any records, approvals, or disclosures that would confirm these activities are permitted.

[13] The applicant says aside from the records requests, he has also submitted motions to the body corporate requesting investigation into the unauthorised use of common property, securing of the Level B2 access points, and immediate action to ensure statutory compliance and risk management. The applicant says the committee has not taken any action nor provided any response in relation to his requests other than a solicitor's letter advising that the body corporate will not be engaging further on this matter. As such, the applicant says this appears to be a breach of the body corporate's statutory duty to act reasonably. The applicant also refers generally to the body corporate's obligations relating to the administration of common property, enforcement of by-laws and keeping of records. However, the application does not explain how these obligations have not been met. The applicant simply states that the appearance of governance failure is confirmed by the body corporate solicitor's letter of 9 February 2026 that the committee "may reasonably decide not to deal with the proposal" and will not engage in further correspondence. The applicant says this appears to constitute an explicit refusal by the body corporate to administer the scheme properly under sections 94,100 and 152 of the Act. Given these circumstances, the applicant says an interim order is now the only available mechanism to protect the scheme and its owners.

[14] Section 94(1) of the Act sets out the general functions of a body corporate, including administration of the common property and body corporate assets, and enforcement of the CMS including the by-laws. In discharging its functions, a body corporate must act reasonably, including in making, or not making a decision.[4] A committee also has an obligation to act reasonably in making a decision.[5]

[15] What is reasonable is an objective question of fact, having regard to all the circumstances. Reasonable decision-making "...involves an evaluation of the known facts, circumstances and considerations that tend to have a rational bearing on the issue..." and "...requires that all relevant matters to be taken into consideration and irrelevant ones left out."[6]

[16] The applicant seems to be suggesting that by not engaging further with his enquiries, the body corporate is unreasonably refusing to administer common property. This very general assertion is unsupported by any sound reasoning or evidence. The body corporate has various statutory duties when it comes to common property.[7] The applicant has not identified which of these duties the body corporate is failing to fulfill. The body corporate's obligation to act reasonably also does not compel it to respond to every request seeking clarification, confirmation or further investigation of matters relating to the history and administration of the scheme, as the applicant appears to be seeking here. As such, if the applicant is alleging that the body corporate has acted unreasonably in its administration of common property by not responding to such requests, I am not presently satisfied there is any prima facie case.

[17] The body corporate has a duty to provide access to body corporate records, but this only extends to doing what is required under the Act. Within 7 days after receiving a written request from an interested person accompanied by the prescribed fee, the body corporate must permit an inspection of the body corporate's records or give the person a copy of a record kept by the body corporate.[8] Failure by the body corporate to comply with a records request may give rise to a dispute under the Act which can result in an adjudicator's order for the requested record to be provided. This, however, is not the subject of the dispute before me. The current application does not claim a breach of section 205, nor does it seek an order for the provision of specific records. Rather, the applicant's claim seems to be that because the requested documents have not been produced, it is presumed that they do not exist and therefore orders are sought to verify the lawfulness of the installation and use of that common property. In my preliminary view, this does not evidence a dispute under the Act.

[18] A key element of the dispute relates to the installation and use of the B2 doors. The applicant suspects that the doors have been installed and used without "lawful authority" and seeks an interim order that the body corporate temporarily prevent Adina from accessing the scheme through the B2 doors.

[19] The body corporate submits that as far as it understands, both the roller and pedestrian doors formed part of the original construction of Casino Towers, as illustrated by the submitted construction plans. It says the applicant has provided no evidence that the doors were modified or installed at some point after the scheme's construction, or that they are not compliant, or fire rated as appears to be claimed.

[20] An applicant bears the onus of proof. Prima facie, it appears the B2 doors formed part of the original construction of the scheme. The applicant has not provided any evidence to the contrary. It is unclear to me on what basis the applicant asserts the doors were more recently installed without authority.

Is Adina's use of the B2 doors lawful under the Act, CMS and BMS?

[21] The applicant questions whether Adina's use of the B2 doors is supported by any lawful authority under the body corporate legislation, CMS or BMS.

[22] The body corporate explains that Casino Towers and Adina form part of a mixed-use development regulated by a BMS. It says the BMS expressly grants Adina with access rights over Casino Towers' lobby, lift, car park and stairwell areas which include the use of, and access through, the B2 doors. The body corporate argues that it is not for the committee "to satisfy the applicant's idle curiosity" about the lawfulness of the BMS which has been in place and operational for in excess of 20 years. Further, the body corporate says that as the respondent, it does not bear the onus of proving the validity of the BMS. Rather, it is the applicant who must articulate at least some basis in law to assert that the BMS is unlawful as he contends. The body corporate says the applicant has a copy of the BMS but appears to have proceeded with this application either in ignorance of, or in complete disregard for, the terms of the BMS.

[23] It is important to note that a BMS is not governed by the Body Corporate and Community Management Act 1997. It is registered under and governed by the Land Titles Act 1994. As such, disputes about a BMS do not fall within the jurisdiction of the Commissioner's Office and adjudicators do not have any role in enforcing a BMS.

[24] On its face, I note Clause 2 of the BMS appears to give Adina access rights to the lobby, lift, car parks and stairwell within Casino Towers. The applicant questions whether this includes access through the B2 doors but does not provide any explanation or evidence to indicate why it would not. At this stage, the applicant's case is purely one of speculation.

[25] In any event, it is not for me to interpret or enforce the terms of the BMS. I have jurisdiction to determine alleged breaches of the Act and CMS, but at this stage the applicant has not established how the body corporate is in contravention of the Act or CMS.

[26] The applicant also seems to vaguely suggest that the body corporate is permitting Adina to carry out commercial operations on common property without approval, including installation of signage and bollards, use of the lifts, movement of commercial rubbish bins, and conversion of car park spaces into storage areas. The applicant says the body corporate has not presently identified "any clear, formal approval, agreement, easement, licence, by-law or resolution supporting this level of use".

[27] Again, the applicant's case is unclear in this regard. He speculates generally that the level of use is unauthorised but has not articulated how the body corporate is in breach of its statutory obligations. While the issue may warrant further investigation, based on the applicant's current submissions, I am not satisfied there is evidence of a prima facie case.

[28] I am not satisfied the application raises a serious legal issue. Nevertheless, I will go on to consider whether the balance of convenience might justify the granting of interim orders.

[29] The applicant argues that the interim orders are urgently required as Adina's continued use of the B2 doors presents an increased and ongoing risk to fire safety, liability and insurance exposure.

[30] In response to the applicant's claims of urgency, the body corporate submits that:

1. The applicant provides no evidence of any risk of fire or other hazard.
2. That the insurance policy does not list Adina (and others) as insured parties is not evidence of any material non-disclosure to the insurer.
3. Adina plainly has a right to use the B2 doors pursuant to the BMS. In any event, no circumstance of urgency arises from the assertion that the use is unlawful.
4. The body corporate has not refused to act - there is nothing to act upon. In any event, this is not a circumstance of urgency.
5. There is no resolution, proposal or stated intention of the body corporate to alter, enlarge, modify or adapt the B2 doors.
6. More broadly, the B2 doors have been in place for over 20 years. There is no explanation from the applicant as to why the existence and use of those doors has suddenly become urgent.

[31] The body corporate submits that the applicant will suffer no prejudice at all if interim orders are not granted, whereas the prejudice to the body corporate if the interim orders are granted are considerable and serious. In particular, the body corporate will be compelled to prevent a third party (Adina) from exercising its legal rights under the BMS to access the car park and undertake its commercial activities.

[32] I accept the submissions of the body corporate. The applicant has not demonstrated he will suffer any serious or irreparable harm if the interim orders are not granted. Where it appears the disputed doors and access have been in place for many years, and there is no evidence of any urgent circumstances that have arisen or irreparable harm that will be suffered, I am not satisfied the balance of convenience justifies granting interim relief. This is particularly so where on the contrary, if interim orders are granted, the body corporate would potentially be in breach of its legal obligations towards Adina under the BMS.

[33] For these reasons, I have dismissed the application for interim orders. The application is now referred back to the Commissioner to progress under the Act.

[34] The body corporate seeks that the application be dismissed in its entirety for being misconceived and without substance, and that a costs order of $2,000 be made against the applicant.

[35] Where an application is dismissed for being frivolous, vexatious, misconceived or without substance, an adjudicator may order costs against the applicant to compensate the respondent for loss resulting from the application, including for example, legal expenses reasonable incurred.[9] If the applicant proceeds with this matter to final orders, I will consider the body corporate's request for costs.

[1] Common property including the lifts, car parks, storage bays, signage, bollards, fire stairs, foyers, rubbish areas, Level B2 access and internal wall openings.

[6] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 42, citing McKinnon v Department of Treasury [2006] HCA 45; (2006) 228 CLR 423

[7] See generally sections 180-187 of the Standard Module

[9] Section 270(3) of the Act. The maximum amount of costs that may be ordered is $2,000.