BY-LAWS - where the body corporate claims the respondent has used the lot for short term accommodation - whether there has been a breach of the by-laws - whether the respondent is liable for the body corporate's legal fees to enforce the by-laws

1. I declare that the respondent's use of Lot 52 for short term accommodation contravenes by-laws 14(i) and 14(j);
2. The respondent must not let, sublet, licence or otherwise permit the occupation of Lot 52 for a period of less than 3 consecutive months, without obtaining the written approval of the body corporate and otherwise complying with the requirements of the by-laws, including by-laws 14(i) and 14(j).
3. The application is otherwise dismissed.

• [1] The body corporate brings this application against the respondent lessee of Lot 52 for allegedly using the lot for short term accommodation without approval. The body corporate says this breaches the by-laws and that despite bringing the contravention to the respondent's attention, the respondent has continued to use the lot as a short term rental. The body corporate has demanded the respondent to pay for its legal costs to enforce the by-laws, but the respondent has refused to do so.
• [2] The respondent denies that she has been engaging in short term letting, that the body corporate's allegations are based on speculations and that the body corporate's legal costs are not recoverable in the absence of an established breach.
• [3] The body corporate seeks the following outcomes:
  1. a declaratory order that the respondent's use of Lot 52 for short term accommodation contravenes by-laws 12(h),14(i) and 14(j);
  2. a final order that the respondent must not let, sublet, licence or otherwise permit the occupation of Lot 52 for a period of less than 3 consecutive months, without obtaining the written approval of the body corporate and otherwise complying with the requirements of the by-laws, including by-laws 14(i) and 14(j); and

(i) a final order that the respondent reimburse the body corporate for the costs to enforce by-laws 12(h), 14(i) and 14(j) against the respondent in the amount of $953.89 including GST (Reimbursement Order); or

(ii) alternatively, if the Reimbursement Order is not made, a declaratory order that the body corporate is entitled to recover the costs to enforce the by-laws against the respondent.

• [4] I will consider whether the evidence establishes that the respondent has used her lot for short term accommodation in breach of the by-laws and if so, whether there is any basis to order the respondent to reimburse the body corporate for its legal fees in this instance.

• [5] Emporium Apartments leasehold building units plan 107461 (Emporium Apartments) is a 131-lot plan in South Brisbane. It forms part of the South Bank development which operates under the South Bank Corporation Act 1989 (SBC Act).
• [6] Schedule 4 of the SBC Act provides a 'Modified Building Units and Group Titles Act' which applies (with some amendments) provisions similar to the Building Units and Group Titles Act 1980 to plans within Southbank. Part 5 of Schedule 4 provides for a referee to determine disputes including the general power to make orders.[1] Under that general power, on application by certain persons in connection with a parcel, a referee can make an order against certain persons to settle a dispute or rectify a complaint about the exercise or performance of, or the failure to exercise or perform, a power or function conferred or imposed by the SBC Act in connection with the parcel.
• [7] The applicant is the body corporate for Emporium Apartments. The respondent is the registered lessee of Lot 52. I am satisfied I have jurisdiction to determine a dispute between these parties.

• [8] Notice of the application was given to the respondent and all lessees of Emporium Apartments. The respondent made a submission to which the body corporate submitted a reply. In investigating the application, I requested further information from the parties. Their various submissions, where relevant, will be discussed in the course of the analysis below.
• [9] It should be noted at the outset that in determining this application, I have not considered the claims made by the respondent against the caretaking service contractor (Caretaker), regarding alleged misconduct, including the unauthorised deactivation of the respondent's fob key and access to her mailbox. Such matters are beyond the scope of the current application.

• [10] All lessees of lots are bound by the by-laws in force for the leasehold building units plan.[2] I have conducted a search of the Titles Registry and confirm that the by-laws for Emporium Apartments are those as registered on 29 May 2019, and as amended on 19 April 2024.
• [11] The body corporate alleges that the respondent is in breach of the following by-laws:

Lessees and Occupiers of a Lot must not without the approval of the Committee let, sublet, licence or grant any occupation rights to an area of exclusive use allocated under this by-law to any person who is not lawfully occupying the Lot.

A Lot may not be used for Short Term Accommodation unless the Lessee of the Lot has first obtained the written consent of the Committee which consent may be given on reasonable conditions. Before giving such consent the Committee is entitled to require from the Lessee:

(i) a letter from a qualified building certifier, town planner, the Brisbane City Council or South Bank Corporation confirming that Short Term Accommodation:

1. either:

   • complies with the development approval for Emporium Apartments; or
   • does not require a specific development approval from Brisbane City Council or if a specific development approval is required, that it has been issued;

2. complies with all relevant planning laws and regulations;

3. is permissible in the Class of building (as set out in the Building Code of Australia) for Emporium Apartments;

(ii) a letter from a qualified fire engineer or fire certifier certifying that the use of the Lot for Short Term Accommodation is within the existing design parameters of the fire safety system for the Lot and Emporium Apartments without the need for any upgrade which certification must include advise as to whether in relation to and having regard to the use of the Lot for Short Term Accommodation:

A the Lot contains the necessary fire safety equipment such as fire extinguisher, fire sprinkler heads, fire evacuation diagram;

B the fire panel for Emporium Apartments complies with relevant laws, regulations and codes;

C the passive fire installations and design in Emporium Apartments are adequate (e.g. fire door ratings, path of travel to the nearest fire exit).

Before a Lessee lets, sublets, licences or grants any occupation rights to a Lot to another person (other than to a director of a corporate Lessee, the immediate family of a Lessee or of a director of a corporate Lessee) for any duration, a Lessee must:

A the Lessee's and the Lessee's property management agent's 24 hour contact details (phone numbers and email addresses) so that they can be contacted in emergencies, lockouts or in the event the person letting, subletting, licensing or occupying the Lot (Lot Occupant) is creating undue noise or a nuisance;

B the Lot Occupant's name, address and 24 hour contact details;

C the registration number, make and model of any motor vehicle (including any motor cycle) which the Lot Occupant intends to park in the Car Parking Area; and

D the term of any such letting, subletting, licensing or occupation including when it starts and when it ends; and

(ii) ensure that there is compliance in all respects with the Work Health and Safety Act 2011, Work Health and Safety Regulation 2011 and all other relevant safety laws and regulations applicable to the Lot and provide evidence of that to the Caretaker on request.

• [12] "Short Term Accommodation" is defined in the by-laws as the use of a lot for residential or like purposes for a period of less than 3 consecutive months whether by letting, subletting, licensing or occupying in any other way, other than by a lessee, a director of a corporate lessee, the immediate family of a lessee or of a director of a corporate lessee.[3]
• [13] The body corporate alleges that the respondent has breached the above by-laws by carrying out short term accommodation in the lot without:
  1. obtaining the written approval of the body corporate as required by by-laws 12(h) and 14(i); and
  2. providing to the Caretaker the Lot Occupant's details as required by by-law 14(j).
• [14] The body corporate produced the following material to support its allegations:
  1. an Airbnb listing of the unit showing the host as "Chao Yi" who, the body corporate says, is a representative for Lot 52;
  2. a written statement from the Caretaker that Lot 52 is being used for short term accommodation (Caretaker's statement); and
  3. photographs of varying vehicles parked in the car-space allocated to Lot 52 over a short period from 1 January 2025 to 8 January 2025.
• [15] I will consider each of the submitted evidence below.

• [16] The Airbnb listing is for a 2 bedroom unit in South Brisbane described as "Best of South Bank with car park". The unit is hosted by "Chao Yi". There are 12 reviews of the accommodation attached to the listing.
• [17] The respondent does not say that the advertised unit is not her lot. Rather, she argues that she is the sole registered owner (lessee) on the title for Lot 52 and that there is no-one else authorised to act on her behalf in relation to the lot.
• [18] The body corporate has provided further evidence that satisfies me that Chao Yi Qiu acts in some form of representative capacity for Lot 52, including:
  1. a copy of the body corporate roll showing that both "Y Qiu and B Guo" have been listed as 'owners' for Lot 52 since 18 July 2018;
  2. minutes of the annual general meeting of 6 October 2022 in which the respondent nominated Chao Yi Qiu for a position on the committee;[4]and
  3. body corporate records, including correspondence from both Bing Guo and Chao Yi (Michael) Qiu in relation to the lot.
• [19] While the respondent, Bing Guo is the registered lessee for Lot 52, it is clear to me that Chao Yi Qiu is also a representative for the lot.
• [20] The respondent says even if the name Chao Yi Qiu is associated with the lot, there is no evidence that she (the respondent) personally had knowledge of or authorised the Airbnb listing or any short term use of her unit. I do not accept this argument, particularly given the unit has been advertised and hosted by the respondent's authorised representative. In any event, whether or not the respondent had personal knowledge of the bookings or specifically authorised them does not change the fact that the unit has in fact been let for short term accommodation.
• [21] The respondent also submits that the link for the Airbnb listing is now inactive, which she says further weakens the body corporate's claim. I do not agree. While the listing may no longer be active, there is sufficient evidence to support the body corporate's claim that Lot 52 has (at some point) been used for short term accommodation.

• [22] The Caretaker's statement asserts that Lot 52 is being used for short term letting as shown by the various vehicles parked in their car-space. He also states that he has spoken with several occupants who confirmed that they booked the unit through Airbnb.
• [23] The respondent challenges the credibility of the Caretaker's statement, referring to the Caretaker's prior conduct and ongoing hostility towards her. I note there is a history of conflict between the parties, however this of itself does not necessarily mean the Caretaker's statement is inaccurate, malicious, or otherwise unreliable. The body corporate has also produced Tenant Statement 1 and Tenant Statement 2, both of which indicate that guests have in fact stayed in Lot 52 on a short term basis. The respondent claims that just because the guests say they booked the unit via Airbnb, this does not prove that she permitted such use. As discussed above, whether or not the respondent had personal knowledge of or specifically authorised the bookings is irrelevant to the question of whether the unit has in fact been let for short term use.

• [24] The photographs of multiple cars parked in Lot 52's car-space over a short period of time may not automatically demonstrate that the unit is being used for short term accommodation. There may be other plausible explanations such as the respondent's suggestion that others have unlawfully parked in their car-space. However, in the circumstances and considering the totality of the evidence, it seems more likely than not that the photographed vehicles belonged to guests using the unit for a short term stay.

• [25] In isolation, each piece of evidence may not unequivocally prove that Lot 52 has been used for short term accommodation. However, when considered as a whole, I accept the evidence establishes, on the balance of probabilities, that Lot 52 has been used for short term accommodation. As this has been done without the approval of the committee, I find the respondent in breach of by-law 14(i).
• [26] In addition, before a lessee lets their lot to another person for any duration, they are required to provide to the Caretaker the occupation details listed in by-law 14(j). The respondent has not done so. She submits the unit is used for family purposes, and that as they rent a different vehicle for each stay, it is impractical and unnecessary to notify the Caretaker of each change in vehicle registration. I accept that the respondent and her family may also have visited the unit at various times and that by-law 14(j) does not apply in those instances. However, where the lot has been let to guests for short term stays, there is no evidence that the details of those occupation arrangements have been provided to the Caretaker as required by by-law 14(j). Accordingly, I also find the respondent in breach of by-law 14(j).
• [27] The body corporate also asserts a breach of by-law 12(h) which provides that the lessee must not without the approval of the committee "let, sublet, licence or grant any occupation rights to an area of exclusive use allocated under this by-law to any person who is not lawfully occupying the Lot". While I have made a finding that the respondent's lot has been used for short term accommodation, I do not consider that a person occupying the respondent's unit is therefore "unlawfully occupying the lot". The intention of by-law 12(h) seems to be to prevent lessees from letting their exclusive use car-space separate to their lot. There is no evidence to suggest this is happening in this case. I have therefore not made a finding that the respondent has breached by-law 12(h).
• [28] Finally, the respondent argues that the body corporate is not enforcing the by-laws equally as there are other units in the building that engage in short stay rentals. The body corporate denies that it has selectively enforced the by-laws and says it has issued legal correspondence to other lessees who have used a lot for short term accommodation without approval. Further, even if it was selectively enforcing the by-laws against the respondent, the body corporate says this does not excuse the respondent from complying with the by-laws. I agree with the body corporate. The respondent, like all lessees must comply with the by-laws. Whether or not the body corporate has similarly enforced the by-laws against other lessees is irrelevant to the determination of this application.

• [29] The next issue is one of costs. The body corporate has a statutory obligation to reasonably enforce its by-laws.[5] The body corporate claims that in enforcing the by-laws against the respondent, it has incurred legal costs in the amount of $953.89 including GST.
• [30] The application includes a copy of the following tax invoices from the body corporate's solicitors, Mahoneys:
  • Tax invoice dated 28 October 2024 for a total of $825.92; and
  • Tax invoice dated 3 December 2024 for a total of $127.97.
• [31] The body corporate points out that these are not costs relating to the application but to the provision of legal advice and services leading up to it.[6] Specifically, the costs relate to the issuing of "cease and desist" letters to the respondent. The application contains a copy of letters dated 19 September 2024 and 28 October 2024 in which Mahoneys wrote to the respondent demanding that she cease the use of the lot for short term accommodation in contravention of the by-laws.
• [32] The body corporate refers to section 78(1)(a) of Schedule 4 of the SBC Act which relevantly empowers a referee to order a party to the dispute to pay money not exceeding the sum of $1,100 to a person specified in the order. While this provision gives me the power to make an order for the payment of monies, the question is whether there is any basis for the body corporate to recoup its legal costs from the respondent.
• [33] The body corporate relies on by-law 37(e) which, in context, provides as follows (underlining mine):

Behaviour of agents, invitees, contractors and employees

(a) An Occupier of a Lot must take all reasonable steps to ensure that its invitees, agents, contractors and employees do not behave in a manner likely to interfere with the peaceful enjoyment of an Occupier of another Lot or of any person lawfully using the Common Property.

(b) A Lessee of a Lot shall be liable to compensate the Body Corporate in respect of all damage to the Common Property or damage to Body Corporate assets caused by the Occupier of that Lot or the Occupier's invitees, agents, contractors or employees.

(c) A Lessee of a Lot which is the subject of a sub lease, tenancy or licence must ensure the sub lessee, tenant or licensee receives a copy of the bylaws and must take all reasonable steps, including any action available under any such sub lease, tenancy or licence, to ensure that any sub lessee, tenant or licensee or other Occupier of the Lot or their invitees, agents, contractors and employees comply with these by-laws.

(d) An Occupier of a Lot must take all reasonable steps to ensure that invitees, agents, contractors and employees of the Occupier comply with these by-laws. If an invitee, agent, contractor or employee of the Occupier does not comply with these by-laws the Occupier must take all reasonable steps to ensure that the invitee immediately leaves the Emporium Apartments and the Building.

(e) Where the Body Corporate expends money to make good damage caused by a breach of the Act, the Management Statement or these by-laws by any Occupier of a Lot or the invitees, agents, contractors or employees of the Occupier of a Lot or any of them, the Body Corporate shall be entitled to recover the amount so expended as a debt in any action in any Court of competent jurisdiction from the Lessee of the Lot at the time when the breach occurred.

• [34] Read in context as a whole, the by-law is about ensuring the behaviour of an occupier and their invitees, agents, contractors or employees. Where damage is caused as a result of an occupier failing to comply with the by-laws, the body corporate may recover the costs of making good that damage from the lessee of the lot.
• [35] Here, the amount claimed relates to legal expenses incurred by the body corporate in seeking to enforce the short term accommodation by-laws against the respondent lessee. The costs do not relate to damage caused by the actions of an occupier of the lot (or their invitees etc). While I have determined that the respondent breached the by-laws by engaging in short-term letting of the lot without approval, I am not satisfied there was any resulting "damage" that the body corporate was required to "make good" in the circumstances. Accordingly in my view, by-law 37(e) does not apply.
• [36] The body corporate also refers to by-law 42(b) which provides as follows (underlining mine):

(a) A Lessee of a Lot must pay on demand the whole of the Body Corporate costs (including solicitor and own client costs), which amount shall be deemed to be a liquidated debt due, in recovering all and any levies or moneys duly levied upon or payable by the Lessee of the Lot by the Body Corporate pursuant to the Act or these by-laws.

(b) Where the Body Corporate expends money to make good damage caused by a breach of the Act, the Management Statement or these by-laws by any Occupier of a Lot or its invitees, agents, contractors or employees or any of them, the Body Corporate shall be entitled to recover the amount so expended as a debt in an action in any Court of competent jurisdiction from the Lessee of that Lot at the time when the breach occurred.

• [37] By-law 42 is specifically about the recovery of costs. I note the body corporate does not seek reimbursement of its costs pursuant to by-law 42(a) as that subclause appears to relate only to costs incurred by the body corporate in the recovery of levies. Rather, the body corporate seeks recovery of its legal costs under by-law 42(b) which again entitles the body corporate to recover monies expended to "make good damage caused by a breach". As discussed above, the body corporate has not been required to make good any damage in this instance as a result of the respondent's (or an occupier's) breach. While I accept that the body corporate expended money to engage solicitors to enforce its by-laws, I am not persuaded that by-law 42(b) entitles the body corporate to recover such legal costs.
• [38] I see no basis under either by-law 37(e) or 42(b) for the body corporate to be reimbursed of its claimed legal costs.
• [39] The body corporate refers to the decision in Araucaria[7] where the referee was of the view that a party who has made legitimate disbursements is entitled to be repaid. In that case, the respondent had parked his caravan in a position that was considered hazardous and in breach of the by-laws. When the respondent failed to remove his caravan, the body corporate installed warning barriers and lights around the caravan as a safety precaution. The referee considered the expense was reasonable in the circumstances, particularly where the body corporate had taken adequate steps to advise the respondent of its concerns and had given him more than adequate time to redress the breach. In those circumstances, the referee ordered the respondent to recompense the body corporate for the cost of hiring safety barriers and lights. The referee in Araucaria also gave an example that if a body corporate had to repair a fence damaged by a respondent, a referee might order that the respondent recompense the body corporate for the damage caused. Unlike the examples cited, the respondent's actions in the current matter did not cause any damage or result in the body corporate incurring additional costs to address the situation apart from its own legal expenses. In such circumstances, I see no similar basis upon which to order that the respondent recompense the body corporate.
• [40] The body corporate submits that if the referee is not satisfied that a reimbursement order should be made, then alternatively that a declaratory order should be made that the respondent is liable for the costs to enforce the by-laws. I have difficulty following the body corporate's argument in this regard.
• [41] The body corporate refers to the decision in Rolling Rock Nightclub Pty Ltd v Commissioner for Body Corporate and Community Management[8] (Rolling Rock) and appears to suggest that I have some basis in equity to make the declaration sought. In particular, the body corporate references the following from Rolling Rock (underlining is that of the body corporate's):

[32] As to the scope of the power to make an order that is just and equitable in the circumstances, the BCCM Act has been found to vest the necessary equitable jurisdiction in adjudicators to consider equitable claims and defences arising from or relating to disputes described in the section.

[33] Although not expressly stated in s 276 it is implicit that in order to resolve disputes an adjudicator must not only have the power to consider equitable claims and defences, but also legal claims and defences.

[37] The causes of action potentially give rise to relief in favour of Rolling Rock by way of a Declaration, an order for the award of damages or restitution. There is nothing in the BCCM Act to suggest that an adjudicator does not have available to him or her the full suite of remedies in law and equity, provided Rolling Rock has standing to bring claims against the Body Corporate as a party directly concerned in the dispute.

[38] ...It is possible that the claims and relief sought can be framed only in terms of liability a Body Corporate may have to an occupier for loss and damage suffered as a result of the way in which it exercises its powers under a by-law.

• [42] Firstly, I note Rolling Rock was a decision made in relation to the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act) and it refers to the powers of adjudicators under that legislation. Section 276 of the BCCM Act vests in adjudicators the power to resolve a dispute in a manner that is "just and equitable in the circumstances". This has been interpreted as vesting the necessary equitable jurisdiction in adjudicators.[9] However, there is no such or similar provision in the SBC Act that can be interpreted as conferring equitable jurisdiction in referees. The courts have held that the jurisdiction to grant equitable relief cannot be implied and that there would need to be a clear statutory conferral of power to vest a decision-maker with an equitable jurisdiction.[10]
• [43] Further, even if there is some equitable remedy available for a dispute under the SBC Act, there must firstly be some proper basis in law or equity for the grant of the relief. It has been said that without such a basis, an adjudicator (or referee) would be exercising an arbitrary power upon one's own subjective notion of unfairness.[11] Here, the body corporate has not established any basis in law or equity for the requested declaration. Accordingly, I have declined to make the declaration sought.

• [44] On balance, I am satisfied that the respondent has used Lot 52 for short term accommodation without body corporate approval in contravention of the by-laws. However, the body corporate has not identified any basis that entitles them to recover its legal fees from the respondent.
• [45] I have made orders to reflect this accordingly.

[1] Section 77(1) of schedule 4 of the SBC Act

[2] Section 30(5) of schedule 4 of the SBC Act

[4] The minutes record the nominee for Lot 52 as "Michael Qiu" but I am satisfied from the submitted material that Michael Qiu and Chao Yi Qiu are one and the same person.

[5] Section 27(3) of Schedule 4 of the SBC Act

[6] Section 75(7) of Schedule 4 of the SBC Act provides that the referee may not, in connection with an application for an order, make any order for the payment of costs.

[7] [2008] QBCCMCmr 249

[8] [2020] QCAT 435

[9] Sitting Bear Pty Ltd (receivers and managers appointed) v Body Corporate for Sphere Southport Living CTS 37951 [2014] QCATA 360

[10] See J Thomas in Sandmoon Pty Ltd v Body Corporate for South Pacific Noosa Apartments CTS 26117 [2008] QCCTBCCM 27 (4 November 2008), paras 28-39 citing Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd (1991)(1) Qd R 192 and Matelot Holdings Pty Ltd v Gold Coast City Council (1993)(2) Qd R 168

[11] See Rolling Rock paras 31-35 citing Wheeler and Smith v Body Corporate for Calypso Towers [2016] QCATA 66 at para 63 citing Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300 at para 100