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

APPLICATION FOR INTERIM ORDER - where the respondent is carrying out renovations to its lots without first obtaining approval from the body corporate and relevant council - whether the interim order sought by the body corporate is warranted in the circumstances.

1. The application for an interim order is dismissed.

• [1] Douglas Manor CTS 968 is located in Port Douglas, Queensland. It is comprised of 11 commercial lots and is governed by the Standard Module.
• [2] The applicant in this dispute is the body corporate for Douglas Manor. The respondent, Angel Developments FNQ Pty Ltd, is the owner of three lots in the scheme, Lots 8, 9 and 10. It became the owner of these lots on or about 5 June 2024.
• [3] I understand the respondent wanted to convert Lots 8, 9 and 10 into a high-end cocktail bar. The respondent made two development applications to the Douglas Shire Council (Council), one in or around June 2024 and one in or around November 2024, for approval of a material change of use for the lots. However, on both occasions the Council found the applications were 'not properly made'.
• [4] In early December 2024, the respondent emailed the scheme's Body Corporate Manager (BCM) advising works on the lots would commence in two weeks and it was expected they would take around 6 months to complete. It asserted the works would not involve any structural changes to the lots.
• [5] I understand the works commenced and the body corporate wrote to the respondent on 18 December 2024 alleging that the continued renovation of the lots would contravene By-law 9(a) and By-law 23 and may constitute a development offence under the Planning Act 2016. It sought various undertakings from the respondent including that the renovations would cease until the works had been approved by both the body corporate and the DCS.
• [6] I understand that the respondent replied to the body corporate saying the contraventions as alleged were not made out and, it refused to provide the undertakings sought by the body corporate.
• [7] The body corporate says that by proceeding with the works without approval the respondent may have committed a development offence under the Planning Act 2016 and is contravening, or intends to contravene, By-law 9(a) and By-law 23 of the scheme's by-laws.
• [8] The body corporate seeks the following final orders:

(a) Within three months of the Final Orders being made (Deadline), the Respondent is to

reinstate the Lots to the condition they were in before the Alteration of Lots (Works);

(b) If the Respondent fails to complete the Works by the Deadline, the Body Corporate is

authorised in accordance with section 281 of the BCCM Act and section 212 of the

(ii) Recover from the Respondent as a liquidated debt the costs of and incidental

to the Works (Debt), including any recovery costs reasonably incurred by the

(c) Such other orders as the Adjudicator deems appropriate.

• [9] In addition, the body corporate seeks an interim order that the respondent immediately cease renovation of the lots and that the works are not recommenced until further order.
• [10] This is my consideration of the body corporate's request for an interim order. As the applicant, the body corporate bears the onus to establish that the interim order it seeks is warranted in the circumstances.

• [11] The body corporate submitted this application for adjudication on 25 February 2025.
• [12] The commissioner referred the interim order request to department adjudication under section 247(2)(b) of the Act.
• [13] There is no statutory requirement to obtain comments from a respondent or affected party before an interim order is decided. However, in the circumstances of this case, comments were invited from the respondent and it submitted a response.
• [14] I have reviewed and considered all the submissions and materials submitted on this dispute before making my decision.

• [15] An adjudicator may make an interim order if satisfied, on reasonable grounds, that one is necessary because of the nature or urgency of the circumstances to which the application relates.1
• [16] In deciding whether an interim order is warranted in the circumstances, adjudicators often adopt the approach taken by courts to considering interim injunction applications.2 Accordingly, to determine if it is just and equitable to make the interim order sought by the body corporate, I must consider the substantive issues in dispute, the nature and urgency of the matter, as well as the balance of convenience between the parties. I will explain each consideration in more detail below.
• [17] Firstly, I must consider the substantive issues in dispute and be satisfied there is a serious legal question to be answered. At this stage, the body corporate does not need to satisfy me that, on the balance of probabilities, its legal position is the correct one to take in the case. However, I must be satisfied the body corporate's case has a sufficient likelihood of success or that there is a 'live' legal issue to justify the making of an interim order prior to a full investigation into the matter being concluded.
• [18] Secondly, an adjudicator may make an interim order only if satisfied, on reasonable grounds, that it is necessary because of the nature or urgency of the circumstances.3 The body corporate must therefore establish that the circumstances warrant an interim order. This may be where, for example, the order is necessary to prevent serious or irreparable harm from taking place or to stop something that cannot be undone. I must also balance the inconvenience of granting relief now if final orders are ultimately refused, against the inconvenience of refusing relief now if final orders are ultimately granted.

• [19] Firstly, I will consider whether a serious legal issue has been raised in terms of development approval being required for the works the respondent is carrying out as asserted by the body corporate.
• [20] From the material before me, it appears uncontroversial that Lots 8, 9 and 10 were previously used as office space (and this is what the lots have development approval for). The respondent acknowledges it attempted to obtain approval for a material change of use of the lots so that it could convert the space into a high-end cocktail bar. However, after both its applications to the Council were found to be 'not properly made', the respondent says it is now carrying out works to reconfigure the lots to be used again as office space.[1]
• [21] At this stage, the body corporate has not persuaded me there is a live legal issue that the respondent has, or will imminently, breach the development approval for lots 8, 9 or 10.

1. For completeness, I note that the wall between Lots 9 and 10 appears to have been removed many years ago. The respondent has provided a copy of a resolution passed by the committee in which it granted the previous owner of Lots 9 and 10 permission to remove the non-load bearing wall between the two lots.[2]

• [23] The body corporate has provided no evidence that development approval was required to remove the wall between the lots. In any event, it was something that took place in or around 2006 and the body corporate has provided no evidence that it has created any issues in the intervening years.
• [24] I now turn to consider whether a serious legal issue has been raised in connection with the body corporate's allegation that the respondent has, or intends to, breach By-law 9(a) and By-law 23.1 of the scheme's by-laws.
• [25] The Body Corporate for Douglas Manor executed a new CMS on 16 October 2024.[3] By-law 9(a) of the new CMS provides:

(a) An Occupier must not make a change to the external appearance of a Lot or make any structural alterations to a lot, except with the consent in writing of the Body Corporate Committee.[4]

• [26] And, By-law 23.1 of the new CMS provides:

23 RENOVATIONS TO THE INTERIOR OF AN OWNER'S LOT

23.1 An Owner wishing to undertake major renovations within its lot and or which renovations may impact upon the common property of the Scheme or to Services / Services infrastructure within the scheme must use reasonable endeavours to ensure that minimal damage, noise nuisance or hazard is caused to the Body Corporate or to other owners or occupiers within the Scheme during such renovations and:

23.1.1 must as a prerequisite to undertaking any such renovations seek the prior written consent of the Body Corporate to the proposed renovation works ("Works") at least 21 days prior to parties undertaking the Works; and

23.1.2 must notify the Body Corporate and surrounding occupiers of lots in the Scheme at least 21 days prior to the works commencing; and

23.1.3 agrees that the Body Corporate may set reasonable conditions in regard to such Works including without limitation:

(i) that the Owner indemnifies the Body Corporate for all costs incurred by the Body Corporate arising from damage to the common property or damage to the Body Corporate assets or improvement situated on the common property caused due to:

(a) the action or negligent act or omission of the renovating owner or the renovating owner's contractors and agents during the renovation or post completion of the renovation works; and

(b) during, and or upon completion of the works, cleaning of air conditioner compressors situated on the common property from dust; and

(c) conditions in regard to any:

(a) new toilet receptacles; and /or

(b) new or changed Services or Service Infrastructure connections within the lot; and / or

(c) contributions by the Owner to the increased fire protection or insurance costs which may be incurred by the Body Corporate as a consequence of the renovation.

(d) That no renovation works may be undertaken unless and until the Owner obtains all necessary planning approvals and building approvals required from the Douglas Shire Council relating to such works.

• [27] I note that the first step in a dispute about an alleged by-law contravention generally requires that a contravention notice be issued to the person accused of breaching the by-law.[5] The Act provides that the body corporate may only make an application for resolution of such a dispute if it has issued a contravention notice for the by-law breach in question.[6]
• [28] Notwithstanding the above, the requirement to issue a by-law contravention notice before making an application for resolution of a dispute may be dispensed with in the case of an interim order application in certain circumstances. The body corporate must reasonably believe that special circumstances apply to the contravention and because of those special circumstances, it is necessary for the dispute to be resolved urgently.[7] Special circumstances arise if the alleged contravention is likely to cause injury to persons, serious damage to property; create a risk to the health and safety of persons; cause a serious nuisance or, for another reason, gives rise to an emergency.[8]
• [29] Douglas Manor Body Corporate acknowledges it has not issued the respondent with a contravention notice for the breaches it has alleged in its application. However, it says the circumstances surrounding the works the respondent is carrying out to Lots 8, 9 and 10 constitute special circumstances because:
  1. the respondent demonstrates complete disregard for the requirement for body corporate approval and development approval to undertake the works,
  2. the respondent demonstrates complete disregard for whether the noise emanating from Lots 8, 9 and 10 affects other lot owners; and
  3. the alteration of the lots exposes the body corporate to the risk of committing a development offence in circumstances where approval for the alterations has not been granted by the Council.
• [30] I note the body corporate has not articulated how any of the circumstances it has outlined are likely to cause injury to persons or serious damage to property or are creating a risk to the health and safety of persons. On the evidence currently before me, I am not yet persuaded that the works being carried out by the respondent are likely to be putting people or property at risk.
• [31] The body corporate indicates that the scheme's BCM received correspondence from another occupier in the scheme who is being disturbed by the noise of the works being carried by the respondent. I understand it asked whether any measures could be taken to minimise the disruption. While I can understand that renovation works must be frustrating for other occupiers, based on the material currently before me, I am not yet persuaded that the noise would amount to a serious nuisance such that the requirement to issue a contravention notice should be dispensed with.
• [32] I now turn to consider whether the circumstances outlined by the body corporate otherwise give rise to an emergency. As set out above, the body corporate has not yet persuaded me that the works being carried out by the respondent require development approval. Accordingly, I am not yet satisfied that this issue gives rise to an emergency.
• [33] The body corporate has also asserted that the respondent is disregarding the requirement for body corporate approval to undertake the works. Both By-law 9(a) and By-law 23.1 require that lot owners obtain permission to carry out alterations or renovations to their lots in certain circumstances. However, I am not yet persuaded that merely by virtue of failing to obtain the required approval before commencing works would in itself give rise to an emergency such that the requirement to issue a contravention notice should be dispensed with.
• [34] In any event, having carefully reviewed all the submissions and evidence submitted on this dispute thus far, I am not yet persuaded the respondent has raised a serious legal question about a breach of By-law 9(a). The body corporate has not provided evidence that the respondent is making changes to the external appearance of Lots 8, 9 or 10. In addition, the respondent contests the body corporate's suggestion that it has made any structural alterations to the lots pointing out that photographs contained in the body corporate's application show the ceiling cavities of Lots 9 and 10 and there is no evidence in these photographs that structural supports have been removed from the trusses in the ceiling.
• [35] The respondent has also provided a report from an engineer that the wall between Lots 9 and 10 was not load-bearing[9] and, it seems this wall was removed from between the lots sometime in 2006. At this stage, I am not satisfied the applicant has met its burden of demonstrating there is a serious legal question about a breach of By-law 9(a).
• [36] In relation to the alleged breach of By-law 23.1, although there is probably a serious legal question raised about whether the respondent has breached this by-law, even if I were to accept for the purposes of this interim application that there was a breach, it is not yet clear that I have jurisdiction to consider this issue, given my preliminary view is that the body corporate has failed to establish any special circumstances so that the requirement to issue a contravention notice can be dispensed with.
• [37] Going further, even if I accepted that I did have jurisdiction, I do not consider the balance of convenience weighs in favour of granting the interim order sought by the applicant. Based on the material currently before me, the body corporate has not yet persuaded me that any serious or irreparable harm would flow from the works continuing on Lot 8, 9 and 10. However, delaying the works being completed may cause the respondent a significant financial loss as it would be unable to re-rent the lots as office space.

• [38] The applicant has not persuaded me that the interim order it seeks is warranted in the circumstances. I have therefore dismissed its application for an interim order.
• [39] The application will now be referred back to the commissioner to progress under the Act.
• [40] I note the body corporate has not yet persuaded me that it is able to proceed with an application for resolution of a dispute about breaches of By-law 9(a) and By-law 23(1) without first having issued the respondent with a contravention notice for the alleged breaches. The body corporate may wish to review its application and consider whether it wants to issue the respondent with a by-law contravention notice for the breaches it alleges.
• [41] In the meantime, I encourage the respondent to make reasonable endeavours to minimise noise and any other nuisances or hazards that may flow from carrying out the renovations.

[1] The respondent explains it stripped-out the interior of the lots shortly after the purchase went through in June 2024.

1. [2] Motion passed by vote outside committee meeting on 11 May 2006.

[4] The remainder of By-law 9 relates to air conditioning units.

[9] Report from RECS Pty Ltd, a consulting engineer, dated 12 April 2006.