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

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

MAINTENANCE -where air conditioning cooling tower requires extensive repairs or replacement - where cooling tower is common property - where cooling tower now services only applicants' lots - where body corporate has signalled intention to decommission the cooling tower- where applicants argue body corporate must maintain and if necessary replace cooling tower

DISPOSITION OF COMMON PROPERTY - where body corporate is seeking to decommission the common property air conditioning cooling tower - where applicant argues decommission of air conditioning cooling tower is a disposal of common property

REASONABLENESS - whether it would be reasonable re applicant argues decommission of hot water system breaches the duty to act reasonably

Act, ss 20, 94, 152, 159; Commercial Module, ss 127, 157

1. Subject to Order 2 below, the Body Corporate must within 5 months of the order date:

(a) carry out repair works in accordance with the Isothermal Quote 42130R dated 1 April 2025;

(c) (if necessary) call a general meeting to decide how to fund the Repair Costs, including by way of a special levy.

1. Order 1 is subject to any decision that may be made by the Body Corporate, within 3 months of the order, to pass a resolution to decommission the Air-Conditioning Service.

• [1] Chermside Medical Complex consists of 17 lots on a building format plan and is regulated by the Commercial Module.
• [2] It is a commercial scheme that comprises:

(iii) an air-conditioning and condenser unit that services Lots 7 and 8.

• [3] The applicant is the owner of lots 7 and 8 which are tenanted by Clinical Oncology Network Pty Ltd ACN 151 293 891 (Tenant).
• [4] The applicant says the Air-Conditioning System requires replacement and/or major repairs, and is concerned that the body corporate may decommission the system. It seeks both interim and final orders regarding any actions by the body corporate to decommission the system.
• [5] The Final Orders sought by the applicant are that:

(a) the Body Corporate must carry out the Works in accordance with the Isothermal Quote 42130R dated 1 April 2025 within 3 months of the Final Orders being made;

(c) (if necessary) the Body Corporate call a general meeting to fund the payment of

the Repair Costs, including by way of a special levy;

(d) the Body Corporate be permanently restrained from Decommissioning the Air-

(ii) the replacement Air-Conditioning System is operational; and

(e) such other orders as the Adjudicator deems appropriate.

• [6] On 19 June 2025 I made the following interim orders:
  1. Pending the making of further orders, the Body Corporate is not to commence decommissioning the air-conditioning and condenser unit that services Lots 7 and 8.
  2. Should the decommissioning have already commenced, the Air-Conditioning System is to be reinstated.

• [7] The applicant states that Lots 7 and 8 are tenanted by Integrated Clinical Oncology Network Pty Ltd ACN 151 293 891 (Tenant). They say that since May 2024, the Air-Conditioning Unit and Condenser Unit (Air-Conditioning System) which service Lots 7 and 8 have deteriorated and require major repairs and/or replacement (Works).
• [8] On 24 May 2024, the Tenant provided a quote to complete the Works in the amount of

$11,671.44 including GST (Repair Costs). On the same day the Applicant notified the Body Corporate Manager of the Repairs and requested confirmation that the Body Corporate is responsible for the Estimated Repair Costs.

• [9] Later that day on 24 May 2024 at 12:26pm, the Body Corporate Manager forwarded the Request to the Committee noting "The Body Corporate is responsible for any utility infrastructure that services more than 1 Lot".
• [10] On 18 June 2024, the Committee refused the Request and claimed that the Works and Repair costs were an "Owner expense and not Body Corporate".
• [11] It would seem that the extent of the required repairs was greater than initially thought and on 19 June 2024, the Tenant provided a further quote in the amount of $175,726 inc. GST to complete the Works, involving replacement of numerous components.
• [12] On 1 August 2024, the Applicant responded to the body corporate noting that:

(a) the Authorities largely concern whether the utility infrastructure services one Lot or more; and

(b) the Condenser Unit services more than one Lot;

(c) it is the Body Corporate's responsibility to replace the Condenser Unit, which was confirmed by SSKB in their email of 24 May 2024.

• [13] On 12 August 2024, SSKB responded to the Applicant advising that they had not received further instructions from the Committee that would change the Decision.
• [14] On 16 September 2024, a letter was sent to the Body Corporate on behalf of the Applicant by its solicitors, HWLE, which advised that the Decision was invalid and the Authorities, properly applied, confirm this.
• [15] The applicant says the Air-Conditioning System is vital to the operation of the Tenant's business (Tenant's Business), which:

(a) provides cancer-related care to patients; and

(b) includes maintaining pharmaceutical drugs at correct temperatures (Tenant's Stock).

• [16] They state that if the Works are not completed and/ or the Air-Conditioning System ceases to function property, the Applicant will suffer significant financial loss because the Tenant has indicated that:

(a) Lots 7 and 8 will no longer be fit for the Tenant's Business; and

(b) they will lose about $400,000.000 worth of the Tenant's Stock.

• [17] On 12 November 2024, the Body Corporate threatened to decommission the Air-Conditioning System (Decommissioning) rather than complete the Works.
• [18] The Body Corporate's position was that it bears no obligation with respect to maintenance of the Air- Conditioning Unit and on this basis, is not required to undertake the Works
• [19] On 8 April 2025, the Applicant warned the Body Corporate of the potential Losses and said that if the Body Corporate takes steps to effect any decommissioning, it would file an urgent adjudication application.
• [20] In addition to seeking interim orders, the applicant advised that they would seek final orders that the Body Corporate:

(a) carry out the Works; and

(b) pay for the costs of carrying out the Works (Repair Costs).

• [21] Since 8 April 2025, the parties have engaged in "without prejudice" correspondence in the hope of resolving this dispute but it would appear that the parties are now at an impasse. The Applicant is concerned that if the Interim Orders are not made:

(a) the Body Corporate will:

(i) commence Decommissioning the Air-Conditioning System; and

(ii) not reinstate the Air-Conditioning System;

(b) the Applicant and/or the Tenants will suffer significant losses.

• [22] The Applicant's Lawyers (HWLE) say they sought an undertaking from the respondent in relation to decommissioning, on the following terms:

(a) the Undertaking must be provided by 12:00pm on 28 May 2025; and

(b) should the Undertaking not be provided by that time, HWLE had instructions to proceed with the Adjudication Application for Interim Orders without further notice.

• [23] They say that on 29 May 2025, the respondent's lawyers advised HWLE that they had not received instructions from the Body Corporate in relation to the Undertaking.
• [24] The applicant understands that the Body Corporate has decided that it will:

(a) not complete the Works; and/or

(b) decommission the Air-Conditioning System.

• [25] The Applicant submits that the Decision was unreasonable and unlawful because:

(a) the Body Corporate, not the Applicant, must repair and maintain the Air-Conditioning System in a good condition;

(b) the Air-Conditioning System has not been in a good condition for over twelve (12) months; and

(c) rather than carry out the Works, the Body Corporate has threatened to decommission the Air-Conditioning System, despite knowing that doing so will cause significant Loss to the Applicant and/ or their tenants.

• [26] The Applicant believes the authorities relied upon by the Body Corporate when making the Decision have been misapplied. Rather they say that properly applied, the Authorities require the Body Corporate to carry out the Works without delay.

• [27] The Body Corporate requests that the Application be dismissed.
• [28] Alternatively, if an order is made requiring the system to be returned to good order, the Body Corporate requests that the order be subject to either:

1. The Body Corporate passing a resolution to Decommission the Air-Conditioning Service within 3 months of the order date; and/or

2. The Applicant and Respondent entering into an agreement pursuant to section 157 of the Module (which allows recovery of service costs from users).

• [29] The Body Corporate resists the final orders, contending that even if it has a maintenance obligation, it has no obligation to maintain the system indefinitely or replace it. The Body Corporate argues that it is entitled, and it is reasonable, to decommission the Air-Conditioning System.

• [30] The Body Corporate asserts that the Air-Conditioning System is at the end of its life and replacement is required. Authorities establish that while a body corporate must maintain assets, it is not required to retain them forever or replace an asset that has reached the end of its useful life; rather, it may decide to decommission or remove it.

• [31] The Body Corporate can authorize decommissioning by ordinary resolution, subject to acting reasonably. The Body Corporate submits that its decision to decommission is reasonable, especially since:

(a) The system solely benefits the Applicant's Lots, and other lot owners maintain their own systems.

(b) Requiring the Body Corporate to pay the circa $180,000 replacement cost would mean other owners subsidizing air-conditioning for the Lots.

(c) The replacement cost is approximately four times the cost of decommissioning.

(d) Air conditioning is not a utility service the legislation requires bodies corporate to provide.

(e) A majority of lot owners in the Scheme have indicated an intention to vote to decommission the system.

• [32] The Body Corporate's obligations under the Act require it to administer assets for the benefit of lot owners in the scheme, not tenants of the lot owners.
• [33] The Applicant was made aware of the intention to decommission in November 2024 and was provided opportunities to take over maintenance or install its own system.
• [34] The Body Corporate intends to provide the Applicant 6 months' notice prior to decommissioning to allow for the installation of an alternate system.

• [35] The Body Corporate opposes reimbursing the Applicant for Repair Costs, noting that the Applicant was on notice of the Respondent's intention to decommission or transfer ownership of the system since November 2024. Furthermore, reimbursement under the relevant legislation (s281 of the Act) relates to property damage, which the Applicant has not suffered due to the system failure.

• [36] The dispute centres on the Respondent's failure to complete Repair Works and their proposal to Decommission the system instead, which the Applicant argues would be unreasonable and unlawful.
• [37] The Applicant asserts the system is utility infrastructure requiring a resolution without dissent to remove, challenging the Respondent's claims that it is a Body Corporate Asset or that decommissioning constitutes an improvement requiring only an ordinary resolution.
• [38] The Applicant seeks Final Orders compelling the Respondent to fulfill its maintenance obligations and prevent further delay to the oncology clinic tenant operating in their lots. The Applicant stresses that the requested Final Orders are urgent and refers to the Loss the Applicant will suffer if repair works are not completed promptly.
• [39] The Applicant says the Respondent's Submissions admit two key points:

1. The Air-Conditioning System is utility infrastructure under the BCCM Act.

2. The Respondent is responsible for repairing and maintaining the Air-Conditioning System.

• [40] Despite these admissions, the Respondent requests that the Application be dismissed or, alternatively, that any order requiring the Body Corporate to return the system to good condition be subject to Alternative Orders. These alternatives include convening a general meeting within three months to approve the Decommissioning Motion by ordinary resolution, and/or requiring the Applicant and Respondent to enter into a Section 157 Agreement.
• [41] The Applicant denies the Respondent's claim that the Air-Conditioning System is a "body corporate asset" or that the Decommissioning is an "improvement". Rather, it says the system is "utility infrastructure" that provides "utility services".
• [42] Since the system is utility infrastructure, the Decommissioning (if approved) would constitute a disposal of common property. Pursuant to section 131(2)(a)(i) of the Commercial Module, disposing of common property requires a resolution without dissent. As the Applicant (owner of Lots 7 and 8) would vote "No" to the Decommissioning Motion, it would inevitably be defeated.
• [43] The Applicant rejects the Respondent's claims the decommissioning would constitute an "improvement" under section 133 of the Commercial Module. They argue that decommissioning is not an "improvement" or a "non-structural change" because what the Respondent proposes is the removal of the Air-Conditioning System in its entirety, meaning it would not be an addition, exception, omission, or substitution as defined by relevant Acts. The Final Orders sought only require the Respondent to repair the existing system, not change or install a new one.
• [44] The Applicant maintains that authorizing the Decommissioning Motion would be objectively unreasonable and if carried, it would also constitute a fraud on the minority. Fraud on the Minority arises because the Majority Lots would vote YES solely because they "do not wish to contribute to the Repair Costs".
• [45] The Applicant highlights that the Air-Conditioning System is essential for the peaceful enjoyment of Lots 7 and 8 given the location and Queensland climate. Furthermore, the Tenant operates a 26-chair day oncology facility which requires the system to comply with legislative obligations for the safe and secure storage and distribution of temperature-sensitive medicines. In the context of the scheme, Lots 7 and 8 would be the only lots without air-conditioning if the Decommissioning occurs, while all other Lots reportedly have individual air-conditioning units.
• [46] The Applicant says it will contribute more to the Repair Costs than any other Lot Owner based on the Contribution Entitlements. The Applicant's Contribution is 1,821 / 10,095, meaning the Applicant would pay about 18.03% towards any Repair Costs and/or Replacement Costs. If the replacement cost is $175,000.00 plus GST, the Applicant would contribute about $34,700.00. The Applicant says it is willing to contribute to the Repair Costs or Replacement Costs in accordance with the Contribution Entitlements.
• [47] The Applicant argues that it is not required to enter into any Section 157 Agreement because the Air-Conditioning System is a "utility service" provided to Lots 7 and 8, not a "domestic service" provided by the Body Corporate.

• [48] The Applicant seeks the Final Orders and submits that the Respondent should be permanently restrained from voting on any Decommissioning Motion.
• [49] Regarding costs already incurred, the Adjudicator may order the reimbursement of Repair Costs to the Applicant under section 276 of the BCCM Act.

• [50] The applicant seeks a number of final orders including the following:

(a) that the Body Corporate must carry out the Works in accordance with the Isothermal Quote 42130R dated 1 April 2025 within 3 months of the Final Orders being made;

(b) that the Body Corporate be permanently restrained from Decommissioning the Air- Conditioning System until such time as:

(ii) the replacement Air-Conditioning System is operational.

• [51] In response, the Body Corporate requests that the Application be dismissed. Alternatively, if an order is made requiring the system to be returned to good order, the Body Corporate requests that the order be subject to either:

1. The Body Corporate passing a resolution to Decommission the Air-Conditioning Service within 3 months of the order date; and/or

2. The Applicant and Respondent entering into an agreement pursuant to section 157 of the Module (which allows recovery of service costs from users).

• [52] Although the parties have previously engaged in without prejudice negotiations in the hope of resolving the dispute, it would appear that the parties are now at an impasse.
• [53] The Applicant is concerned that if the requested orders are not made, the body corporate will Decommission the existing Air-Conditioning System and not reinstate the Air-Conditioning System.
• [54] Section 276(1) of the Act provides that:

An adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

• [55] An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).
• [56] As mentioned above, Chermside Medical Complex is a commercial scheme that comprises:

(a) 17 lots including Lots 7 and 8;

(b) common property, including the roof; and

(c) an air-conditioning unit (Air-Conditioning Unit) and condenser unit on the Roof that services Lots 7 and 8 (Condenser Unit).

• [57] The applicant is the owner of lots 7 and 8 which is tenanted by Clinical Oncology Network Pty Ltd (Tenant).
• [58] The applicant says the Air-Conditioning System requires replacement and/or major repairs and is concerned that the body corporate may decommission the system. It says that the system is common property which the body corporate is obliged to maintain in good condition.
• [59] The applicant says that if the Air-Conditioning System ceases to function property, the Applicant will suffer significant financial loss because the Tenant has indicated that:

(a) Lots 7 and 8 will no longer be fit for the Tenant's Business; and

(b) they will lose about $400,000.000 worth of the Tenant's Stock.

• [60] I am of the view that the air conditioning cooling tower is utility infrastructure that provides a utility service, and that by virtue of section 20 of the Act, it is common property which the body corporate is obliged to maintain under section 127(1) of the Commercial Module.
• [61] Subsection 127(1) of the Commercial Module states:

(1) The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.

• [62] An exception to the general rule in Subsection 127(1) is contained in Subsection 127(4) of the Commercial Module and states:

(4) Also, despite anything in subsections (1) and (2) -

(c) the owner of the lot is responsible for maintaining, in good order and condition, utility infrastructure, including utility infrastructure situated on common property, to the extent that the utility infrastructure -

(i) relates only to supplying utility services to the owner's lot; and

(ii) is 1 of the following types -

• [63] I note that Utility infrastructure includes "..ducts, plant and equipment by which lots or common property are supplied with utility services."[1] Utility services includes "air conditioning."[2] Accordingly, I am in agreement that the applicant says the Air-Conditioning System is utility infrastructure under the BCCM Act.
• [64] The applicant says the Body Corporate has relied upon the QCAT appeal decision of Owltown Pty Ltd v Norwinn Commercial [2018] QCATA 2 to support their decision not to undertake repairs to the air conditioning system.
• [65] That decision involved the interpretation of section 115(3)(b) of the Body Corporate and Community Management (Commercial Module) Regulation 2008 (which is the equivalent to current section 127(4) of the Commercial Module).
• [66] The question for consideration in Owltown was whether the body corporate was required to maintain an elevator which was primarily for the benefit of one lot (lot 8).
• [67] On the initial appeal, the learned Member of QCAT was of the view that:

[39] If lot 8 did not exist, there would be no need for toilet facilities on the 1st floor of the building (which would then comprise only the internal upstairs areas in lots 4 to 7), nor would there be a need for disabled access to that floor. The elevator is only necessary because of the design of lot 8 and the consequent requirement to have additional toilet facilities.

[40] Alternatively, if only the ground floor of lot 8 existed and the 1st floor did not, the elevator would not be required, which would have allowed space for additional toilet facilities on the ground floor, sufficient to cater for the requirements of the building housing lots 4 to 8.

[41] These facts demonstrate sufficiently to my satisfaction that the elevator does relate only to the supply of utility services to lot 8. That being so, under s 115(3)(b) of the Commercial Module, the owner of lot 8 is responsible for maintaining the elevator.

• [68] However Owltown Pty Ltd v Norwinn Commercial [2018] QCATA 2 was subsequently overturned by the Court of Appeal in JM Family Holdings Pty Ltd & Anor v Owltown Pty Ltd & Anor [2018] QCA 260 where the Court of Appeal found that :

[79] Given the definitions of "utility infrastructure" and "utility services", the text suggests the need for

(a) an objective identification and understanding of -

(i) the nature and function of the particular utility infrastructure concerned;

(ii) the type of utility services which it supplies;

(iii) the lots or common property to which those services are supplied; and

(b) against that background, a determination of the extent to which the utility infrastructure concerned could be said to relate only to the supply of the services to the particular lot concerned.

[80] In this case, the analysis referred to in the previous paragraph was left to be performed by an examination of plans which identified the physical layout of the relevant areas of Building B; a lay person's understanding of how building users might be expected to use the lift given the physical layout; some expert evidence of the impact of the Building Code of Australia; and, finally, evidence of how the lift was used in fact. There was not, as there might have been, any expert architectural or other design opinion shedding light on the analysis.

[81] In my view, the evident function of the lift was to provide one of two alternative means of access between the common property foyers on the lower and upper levels of Building B between lot 7 and lot 8, the second means being the common property stairs. As an alternative, the lift would be relevant and available to any person wishing to access or depart from the upper level of lot 8. But, critically, it would also be a relevant and available alternative to any person who wished to access or depart from the common property toilet facilities on the upper level or the roof itself. It would be impossible to reach a conclusion that there was a sole or exclusive relationship between the lift and the supply of utility services to lot 8. One could easily reach the conclusion that one function of the lift was to enhance access to lot 8. One might even be persuaded that that was the dominant function. But one could not conclude it was the only function because it would also be true to say that the lift enhanced access in relation to common property (namely by easing the path to and from the common property toilet facilities and the roof) such that it could be regarded as relating to the supply of access to common property.

[82] It was suggested by the appeal tribunal that no regard should be had to evidence of how and for what purposes the lift is used in fact. Whilst it would be correct to seek to exclude subjective statements of the intention some person had in installing a particular type of infrastructure, I think it would be wrong to conclude that evidence of actual usage would in all circumstances be irrelevant to the requisite analysis. In the present circumstances the conclusion I have expressed in the previous paragraph would be reached even if one disregarded the evidence of actual usage. However that evidence of actual usage tended to shed light on (so as to confirm) an objective understanding of how building users might be expected to use the lift.

[83] In my respectful view, the contrary conclusion reached by the appeal tribunal was reached because the learned member misconstrued s 115(3) of the Commercial Module as authorizing the application of a "but for" test. The learned member enquired whether "but for" the existence of lot 8, the lift would have been necessary. He answered the question in the negative and concluded that but for lot 8, the lift would not have been necessary and, accordingly, the infrastructure related only to the supply of services to lot 8. However, for reasons I have identified, the analysis called for by the proper construction of s 115(3) was not one to which the application of a "but for" test was apposite. The application of a "but for" test would, wrongly, operate to treat as irrelevant relationships between infrastructure and the supply of utility services to other lots or common property if those relationships existed, but could not be regarded as so significant that they explained the existence of lot 8. Section 115(3) does not contemplate that course.

[84] The conclusion reached by the adjudicator was correct and the decision of the appeal tribunal (QCAT) to reverse it should be set aside.

• [69] In its interpretation of paragraph 115(3)(b), the Court of Appeal was of the view that for the purposes of s 115(3), the phrasing "relates only", having considered its ordinary dictionary meaning, required:

... a sole or exclusive relationship between the utility infrastructure [the lift] and its supply of utility services to the lot concerned such that, if the utility infrastructure also relates to the supply of relevant services to common property or to lots other than the lot concerned, then it could not be said to "relate only" to supplying utility services to the lot concerned."

• [70] The applicant points out that the Air-Conditioning System does not relate only to the supply of air-conditioning to Lot 7 or only to the supply of air-conditioning to Lot 8, but rather to Lot 7 and Lot 8. The Body Corporate does not dispute this fact.
• [71] At the interim stage I expressed my preliminary view that it is probable that the air conditioning system is common property utility infrastructure which supplies a utility service to more than one lot.

[72] However I am not sure the circumstances in Owltown are entirely apposite to the present case, and it is possible that Owltown could be distinguished.[3] In Owltown the utility infrastructure (lift) could be used to access common property where common property toilet facilities on the upper level. At paragraph [81] the Court of Appeal stated:

But, critically, it would also be a relevant and available alternative to any person who wished to access or depart from the common property toilet facilities on the upper level or the roof itself. It would be impossible to reach a conclusion that there was a sole or exclusive relationship between the lift and the supply of utility services to lot 8.

• [73] In the present case the body corporate says that the cooling tower has reached the end of its useful life and must be replaced if the current a body corporate supplied air conditioning service is still to operate. It is also evident that the applicants as owners and occupiers of lots 7 and 8 are now the only beneficiary of that service.
• [74] The air conditioning cooling tower is utility infrastructure that provides a utility service, and having regard to section 20 of the Act, it is common property which the body corporate is obliged to maintain by virtue of section 127(1) of the Commercial Module.
• [75] While the cooling tower system exists in the scheme, the body corporate must maintain it, subject to an appropriate resolution to decommission it being made. I do not believe that the body corporate is obliged to continue providing an air conditioning service indefinitely if very few owners are interested in receiving the service. Rather, I consider that the body corporate would be entitled to pass a resolution that the body corporate no longer provides the utility service. The Commercial Module does not mandate the body corporate to provide particular utility services.
• [76] A review of various Adjudicators' decisions indicates that while a body corporate is obliged to maintain common property and assets, it is not required to retain them forever or keep them unchanged. Changes can be made if properly authorised. When a body corporate asset or part of common property comes to the end of its useful life a body corporate can decommission or remove, and not replace it. It may replace it with something similar (maintenance) or replace it with something different (which may be regarded as an improvement).
• [77] It could be argued that the body corporate could pass a resolution to decommission the cooling tower, then pass a resolution to make an improvement to the common property by dismantling the system, and then pass a resolution to dispose of the decommissioned infrastructure. The type of authorisation required at each step would depend on the value of the work or asset. It may be that only one resolution to simply decommission the existing cooling tower would be sufficient.
• [78] Under section 94 of the Act the Body Corporate must act reasonably in regard to its functions. It has been held that that includes treating owners fairly and not discriminating between owners[4];

It does not follow that all owners should bear the costs associated with providing air conditioning services to those particular lots that connect to the cooling tower. Section 167 provides for the supply of utility and other services, including air conditioning, by the body corporate. Air conditioning services are not something that the legislation requires that bodies corporate must provide to owners. Section 157(1) provides only that this service may be provided by a body corporate. Unlike for example, maintenance of or electricity supply to common property, it is a service that benefits particular lots rather than the scheme as a whole. The Applicant and Respondent entering into an agreement pursuant to section 157 of the Module (which allows recovery of service costs from users).

• [79] Such a decision could be seen simply as fulfilment of the Body Corporate's obligation in section 94 of the Act to administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme, subject to the requirement also to act reasonably.
• [80] In Powerhouse Apartments [2017] QBCCMCmr 271, concerning body corporate-supplied air conditioning, the adjudicator said:

[32] Both parties agree that the air conditioning cooling tower is utility infrastructure that provides a utility service and that, by virtue of section 20 of the Act, it is common property which the body corporate is obliged to maintain, by virtue of section 157(1) of the Accommodation Module, unless it decides to decommission and/or remove it. [my emphasis]

• [81] Therefore, I do not consider the legislation requires that all common property and associated utility services must be operated and maintained indefinitely. The issue then becomes one of whether the decision to decommission the cooling tower, albeit prima facie lawful, ought to be invalidated for being unreasonable, in contravention of section 94(2) of the Act.
• [82] Subsection 94(2) of the Act provides that a body corporate must act reasonably in carrying out its functions, for example in passing a motion by resolution at a general meeting. Similarly, section 100(5) of the Act provides that a committee must act reasonably in making a decision. If an adjudicator is satisfied that a body corporate acted unreasonably, and a dispute has arisen as a result, the adjudicator may make an order that is just and equitable to resolve the dispute. That could include making an order declaring a resolution to pass a motion at a general meeting is void and therefore of no effect.
• [83] As to the general concept of reasonableness, and invalidating a body corporate action for being unreasonable, the authorities establish the following principles:[5]
  1. The standard of reasonableness is objective and the test is to be applied with reference to the time the allegedly unreasonable action was taken, given all relevant factors and excluding irrelevant factors.
  2. Acting reasonably does not necessarily imply even-handedness, a conciliatory approach to a dispute or a recognition of the rights or wishes of others.
  3. There is no onus on a body corporate to satisfy an adjudicator that it acted reasonably. Rather, if the adjudicator is to invalidate an action or decision, the adjudicator must be satisfied that the body corporate acted unreasonably.
  4. A body corporate's decision is not an unreasonable action simply because it could reasonably have made a different decision.
  5. An adjudicator may not simply substitute their own view as to what would be a preferable or 'more' reasonable decision.
• [84] I am of the view that the Body Corporate can authorize decommissioning by ordinary resolution, subject to acting reasonably. The following factors weigh significantly in favour of a decision to decommission the cooling tower being reasonable:

(a) The system solely benefits the Applicant's Lots, and other lot owners maintain their own systems.

(b) Requiring the Body Corporate to pay the circa $180,000 replacement cost would impose a substantial financial burden on the owners but would only benefit the applicants. This would mean other owners would be subsidizing air-conditioning for lots 7 & 8.

(c) The replacement cost is approximately four times the cost of decommissioning.

(d) Air conditioning is not a utility service the legislation requires bodies corporate to provide.

(e) A majority of lot owners in the Scheme have indicated an intention to vote to decommission the system.

• [85] There is no doubt that the tenants of lots 7 and 8 provide a valuable medical service requires those lots to be air-conditioned in order to operate and also to maintain a stock of very expensive chemotherapy drugs.
• [86] I am of the view that the air conditioning cooling tower is utility infrastructure that provides a utility service, and that by virtue of section 20 of the Act, it is common property which the body corporate is obliged to maintain under section 127(1) of the Commercial Module. While the cooling tower system continues to operate in the scheme, the body corporate must maintain it.
• [87] However this obligation to maintain is subject to a decision of the body corporate, by an appropriate resolution, to decommission the system. I do not believe that the body corporate is obliged to continue providing an air conditioning service indefinitely if very few owners are interested in receiving the service.
• [88] Rather, I consider that the body corporate would be entitled to pass a resolution that the body corporate no longer provides the utility service. The Commercial Module does not mandate the body corporate to provide particular utility services.
• [89] Subsection 157(1) of the Commercial Module does provide that the body corporate may, by agreement with a person for whom services are supplied, supply 1 or more of the following types of services -

(a) maintenance services including, for example, cleaning, repairing, painting, pest prevention or extermination and mowing;

(b) communication services including, for example, the installation and supply of telephone, intercom, computer data and television;

(c) domestic services including, for example, electricity, gas, water, garbage removal, air conditioning and heating.

• [90] The term domestic service ordinarily refers to something relating to a home or household use, not commercial or professional premises. In legal and regulatory contexts (such as under the Electrical Safety Act 2002 (Qld), Building Code of Australia, or trade licensing laws), a "domestic service" typically means: the installation, maintenance, or supply of services for a dwelling or residential premises.

• [91] I have therefore made the following orders:

1. Subject to Order 2 below, the Body Corporate must within 5 months of the order date:

(a) carry out repair works to the Works in accordance with the Isothermal Quote 42130R dated 1 April 2025;

(c) (if necessary) call a general meeting to decide how to fund the Repair Costs, including by way of a special levy.

1. Order 1 is subject to any decision that may be made by the Body Corporate, within 3 months of the order, to pass a resolution to decommission the Air-Conditioning Service.

[1] BCCM Act, Schedule 6, definition of Utility Infrastructure.

[2] BCCM Act, Schedule 6, definition of Utility Service. See also Commercial Module, s127(4)(a)(ii)(E).

[3] Section 32C of the Acts Interpretation Act provides that in an Act -

(a) words in the singular include the plural; and (b) words in the plural include the singular.

(a)

[4] Bayview Shores [2007] QBCCMCmr 548

[5] See generally Ainsworth v Albrecht [2016] HCA 40; Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177