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austlii:qld/QBCCMCmr/2026/28
General information, not legal advice.
QBCCMCmr
2026-02-05
Original judgment source is linked above.
Eagles Nest [2026] QBCCMCmr 28
The Body Corporate for Eagles Nest (respondent)
Mark Bresman and Irene Hauxwell, owners of Lot 6 (affected persons)
Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and 229(3)(a)
INTERIM ORDER - whether an interim order is warranted in the circumstances.
[1] Eagles Nest is a community titles scheme of residential acreage blocks in Brookfield. This matter concerns the repair of the common property roadway that provides access within the scheme.
[2] The applicant, Mr Hirst is a long-term occupier of Lot 4. He objects to the works that the body corporate has resolved to undertake, and specifically to the decision to replace the existing asphalt roadway with concrete. Mr Hirst disputes the works primarily for the following reasons:
[3] Mr Hirst seeks an interim order to restrain the body corporate from "laying concrete on the common property, commencing any physical reconstruction works, or entering into a binding contract for the reconstruction of the common property roadway until the final determination of this adjudication application".
[4] The application seeks a number of final orders, including that the resolutions authorising the works and associated special levy be invalidated, and that the body corporate recover the cost of the works from the owners of Lot 6.
[5] The only issue at this time is whether an interim order is warranted.
[6] The commissioner has referred the application to me to decide whether an interim order is warranted. 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.[1]
[7] For an interim order application, the commissioner is not required to give notice of the application or invite submissions from relevant parties. In the circumstances, I considered it appropriate to seek comment from the committee and the owners of Lot 6 in regard to the interim order application. A submission was received from the committee.
[8] Before I go on to consider the substantive issues raised by the application, there is a preliminary issue of standing that I will briefly address. As stated, the applicant, Mr Hirst is the occupier of Lot 4. Mr Hirst does not own a lot in the scheme.
[10] The committee questions whether as an occupier, Mr Hirst is entitled to make this application. I too have reservations about the applicant's standing. It is unclear how the issues raised in this application directly impact Mr Hirst as an occupier. In particular, liability for the roadway repairs is an issue for the body corporate and lot owners in the first instance; it does not seem to be a matter that directly concerns Mr Hirst as an occupier. In this regard, Mr Hirst argues that if the special levy is imposed, he would be required to contribute through his occupancy arrangement.
[11] The applicant's standing can be further investigated at final orders. For the purposes of the interim application, I am prepared to accept that prima facie, the matter falls within the Chapter 6 dispute resolution provisions.[4]
[12] The application relates to 3 motions passed at an extraordinary general meeting held on 21 November 2025 (the EGM). Minutes of the EGM show that the following motions were passed by ordinary resolution:
[13] An explanatory note to Motion 2A states that the proposed work addresses areas where there are a number of potholes, severe cracking and where the bitumen is showing signs of early deterioration.
[14] An explanatory note to Motion 3 explains that the proposed works involve installing a concrete slab in a location that has previously been repaired multiple times using bitumen, which has consistently failed within a short period, and that proceeding with the concrete installation will provide a more durable and long-term solution.
[15] As an occupier, Mr Hirst did not vote on the motions. However, he says the decisions affect his rights as an occupier. From what I can make of Mr Hirst's application, his arguments against the motions are essentially two-fold.
[16] Firstly, he says the roadway damage was caused by construction works to Lot 6. Mr Hirst says for approximately 6 months, Lot 6 undertook major renovations and landscaping which involved transporting very large sandstone blocks and regular use of heavy construction vehicles and machinery. Mr Hirst says the worst-affected section of the roadway is the part adjoining and directly servicing Lot 6 but the damage extends onto the main roadway affecting all users, including him. He claims he can evidence that the damage done is directly attributable to heavy vehicles servicing Lot 6 and that prior to these works, the roadway was in good condition. Mr Hirst says that instead of considering this evidence, investigating the cause of the damage and holding Lot 6 accountable, the body corporate has attempted to shift the full cost of the repair works onto lot owners by passing a special levy at the EGM. Mr Hirst argues it is unreasonable for the body corporate to do so when the damage to the roadway was not due to general wear and tear but was caused only by Lot 6. He seeks a final order that the body corporate recover the repair costs from the owners of Lot 6.
[17] Secondly, Mr Hirst says all driveways and internal roads in the scheme are surfaced in asphalt. He says the body corporate's decision to repair a section of the roadway with concrete is inconsistent with the scheme's appearance and construction. Mr Hirst claims that the change constitutes an 'improvement' that has not been properly approved.
[18] 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:
[19] The body corporate is responsible for administering the common property for the benefit of the owners in the scheme, and for enforcing the community management statement, including any by-laws.[5] In carrying out its functions, the body corporate must act reasonably, including in making, or not making, a decision.[6]
[20] The applicant claims the body corporate acted unreasonably by failing to investigate the cause of the roadway damage, failing to enforce the by-laws against Lot 6 and holding those owners responsible, and instead making all owners liable for the repairs via a special levy.
[21] The committee says the damage to the roadway was not caused by a specific lot owner but was a result of years of asphalt degradation caused by normal traffic, water seepage and the nature of the steep driveway coming from the main estate road. Further, it says concrete is not an unreasonable response. It says that portion of the road leading to Lot 6 was repaired with asphalt some time ago, but this did not last. The committee says it obtained a quote from PHP Asphalt to do the repair with a deeper road base and thicker asphalt, but they would not warrant it to last any reasonable time. PHP Asphalt's recommendation was to use concrete and thus a concrete quote was obtained and approved at the EGM.
[22] In regard to the special levy, the committee says it was not proposed to specifically fund the concrete repairs outside of Lot 6. Rather, the body corporate is also undertaking general road repairs costing $40,621 and this expense would have seriously depleted the sinking fund which was already low. Hence, the committee says the special levy was to return the sinking fund to an appropriate level.
[23] What is reasonable is an objective question of fact, applied at the time the relevant decision was made, taking into account all relevant factors.[7] The question is not whether a 'better' or more informed decision could have been made, but whether the decision was unreasonable having regard to the circumstances of the case.[8] The onus is on an applicant to satisfy an adjudicator that the body corporate failed to act reasonably.
[24] Based on the current submissions, there is little to substantiate that the body corporate acted unreasonably. The applicant does not say that the roadway is not in need of repair. In fact, he cites the unsafe condition and instability of the road. Mr Hirst says he must navigate the damaged roadway daily and that "[l]oose debris, potholes, and subsidence present a serious safety hazard". Mr Hirst's claim is not that the work is unnecessary but that the owners of Lot 6 should be held responsible for it.
[25] The applicant refers to section 281 of the Act which provides:
281 Order to repair damage or reimburse amount paid for carrying out repairs
(1) If the adjudicator is satisfied that the applicant has suffered damage to property because of a contravention of this Act or the community management statement, the adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for the contravention -
(a) to carry out stated repairs, or have stated repairs carried out, to the damaged property; or
(b) to pay the applicant an amount fixed by the adjudicator as reimbursement for repairs carried out to the property by the applicant.
[26] However, a section 281 claim is not available to Mr Hirst, as it is not his property that has been damaged. It is the body corporate's, being the common property roadway. Therefore, even if is asserted that Lot 6 has breached the Act or by-laws resulting in damage to the roadway, it is the body corporate who would need to seek an order against the owners of Lot 6 for reimbursement of the repairs.
[27] The applicant also says that the use of concrete is not in keeping with the scheme's appearance. A body corporate may make improvements to common property of a structural or non-structural nature.[9] Making an improvement necessarily involves some degree of change. A change that impacts the visual appearance of a scheme does not automatically amount to unreasonableness. The applicant has not explained why it is unreasonable in the circumstances for the body corporate to replace that portion of the roadway with concrete. Conversely, it appears the body corporate has sound reasons for doing so given previous repair attempts and the lack of assurance that repairing with asphalt will be effective long-term.
[28] The applicant also claims the works were not properly approved. He says that as the existing asphalt roadway is being replaced with concrete, this is not simply maintenance but an improvement to common property. However, the applicant does not explain why he believes the improvement was not properly authorised. I note the proposed concrete works (Motion 3 of the EGM) was authorised by ordinary resolution. There is no suggestion the motion was not passed by the required resolution.[10]
[29] The applicant also claims a member of the committee failed to declare a material conflict of interest in the motions considered. This claim appears misconceived. The legislative conflict of interest provisions only apply to committee meeting decisions; they do not apply to general meeting decisions.[11] The applicant makes a further unsubstantiated claim that several members voted prior to receiving all evidence concerning the roadworks and were unable to reconsider their vote. The applicant does not explain what evidence was withheld from members, nor how such evidence would have affected the voting and outcome of the EGM.
[30] Prima facie, I see no basis to the applicant's claims that the works have not been properly approved or that there was any procedural irregularity affecting the validity of the resolutions.
[31] Mr Hirst says an interim order is necessary to prevent irreversible harm, that is, a significant and permanent change to the character of the scheme by the replacement of the existing asphalt roadway with concrete. He says there is no urgency to the proposed works as the roadway has been in this damaged condition for 6 months.
[32] The committee says there has been no date set for the concreting except to do it "after the early year wet season".
[33] While there is no urgency to the repairs, the roadway is clearly in a state of deterioration as Mr Hirst himself has complained about throughout the application. Apart from the concern that installing concrete will change the scheme's appearance, there seems to be no genuine objection to the roadway being repaired. Rather, the applicant's main argument is that the works should be paid for by the owners of Lot 6. I do not consider that allowing the works to proceed will result in irreparable harm. Ultimately, the works will need to be done. Whether the body corporate bears the costs of the works or seeks to recover them from Lot 6 is a separate matter for consideration.
[34] In the circumstances, I am not satisfied that the balance of convenience favours the granting of interim orders.
[35] The application does not establish any prima facie case regarding the validity of the EGM motions. The works to the roadway are required to maintain common property in good condition. The body corporate may make an improvement if authorised. There seems no issue with the concrete 'improvement' having been authorised at the EGM. There is no evidence at this stage that the body corporate acted unreasonably. I see no basis to put the works on hold simply because the applicant does not agree with the aesthetic change. If there is any argument as to liability for the works, that is a separate matter for the body corporate and owners of Lot 6.
[36] For these reasons, I have declined to grant the interim orders sought. The application is now referred back to the commissioner to progress under the Act. Mr Hirst may wish to review his application for final orders in view of the comments I have made in this interim decision, particularly in regard to his standing to bring a section 281 claim.
[7] Ainsworth & Ors v Albrecht & Anor [2016] HCA 40 at 148
[8] Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission [1997] FCA 1311; Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342
[9] See Schedule 6 Dictionary for definition of 'improvement'; section 159 of the Act; section 186 of the Standard Module
[10] Section 186(1) of the Standard Module sets out the requirements for authorising improvements to common property.