Fusion [2025] QBCCMCmr 262 (28 July 2025)

APPLICATION FOR INTERIM ORDER; alleged breach of BY-LAWS.

1. The application for an interim order is dismissed.

• [1] The body corporate brings this application against the occupier of lot 56, A Y Qld Pty Ltd, in relation to unauthorised alterations to common property. It seeks final orders that the unauthorised shutters currently installed on the common property be removed and the affected area of common property restored to its original condition, at the expense of the occupier. The body corporate also seeks an interim order restraining the occupier from making any further alterations to the common property, pending final determination of this application.
• [2] The body corporate says the respondent has already installed shutters and, more recently, security cameras on common property without proper approval. The cameras are not in keeping with the approved style or colour used by other commercial lots and were installed without compliance with the scheme's by-laws. If an interim order is not made, it says there is a risk that the occupiers may install further non-compliant fixtures or remove or tamper with existing installations before the dispute is resolved. This would result in irreversible changes, inconsistencies across the scheme's appearance, and potential costs to rectify breaches.
• [3] The body corporate says it has requested in writing that no further changes be made, but there has been no commitment to cease works.

• [4] Fusion was established in July 2005 with the registration of Survey Plan 158213 (lots 1 - 53). Lot 51 was later (in February 2007) subdivided into lots 54-56, with the registration of Survey Plan 172788. All lots in the scheme are used for residential purposes, except for 5 lots. There are 4 commercial lots (52, 54, 55 and 56) in the scheme used for retail and one lot is used as an office to run a caretaking and letting business for the scheme.
• [5] Lot 56 is the largest of the commercial lots and comprises 222m2 on the ground floor, fronting Commercial Road. It appears the respondent occupies part of lot 56, closest to the common property walkway, referred to as Shop 1B.
• [6] Although there is no statutory requirement to obtain comment from a respondent or affected party before an interim application is decided, in this case, I provided the occupier and owner of lot 56 with an opportunity to make a submission on the interim order application. Both did.

• [7] I can make interim orders if satisfied they are necessary due to the nature or urgency of the circumstances.[1] An interim order is normally only warranted when a serious legal question needs to be determined and the balance of convenience favours it.

• [8] The body corporate alleges that shutters and more recently, security cameras, have been installed on common property in contravention of the by-laws. It appears concerned that further unauthorised alterations will be made if an interim order is not granted. It says the situation is urgent due to the ongoing nature of the alterations and their visual and legal impact on the common property.
• [9] In its submission, the occupier says the shutters and cameras were installed to address urgent security needs. They confirm their understanding that any future alterations will require prior written approval from the body corporate and say they will strictly follow all future processes.
• [10] I am not satisfied that there is a sufficient (or any) degree of urgency to warrant consideration of an interim order being made.

• [11] While I will not decide any legal questions posed by the application at this interim stage of proceedings, it is necessary to confirm that serious questions are raised as part of determining whether any interim orders would be appropriate.
• [12] The body corporate alleges that shutters and more recently, security cameras, have been installed on common property in contravention of the by-laws. It cited breaches of by-laws 3.1 and 10.1 in the by-law contravention notice issued on 13 February 2025 in relation to the shutters, as follows:

3.1 No structural alterations may be made by Owners or Occupiers to any lot (including any alteration to gas, water or electrical installations or work for the purpose of enclosing in any manner whatsoever the balcony, if any, of any lot). An Owner or Occupier must not in any way alter the exterior appearance of a Lot, nor cause to be constructed or placed upon any part of a Lot which can be viewed from outside the Lot any materials or items without the prior written consent of the Committee.

10.1 No window will be covered with aluminium or similar reflective material or tinted and no shutters, awnings or other window cover shall be affixed externally to any building or visible from the exterior of the building. This by-law will not prevent security screens being installed over windows but only after the written consent of the Committee as to the type, quality, colour and style of security screens has been obtained. Such consent may be withheld in the absolute discretion of the Committee.

On 11 December 2024 the Body Corporate became aware of exterior shutters installed at Lot 56 and on the same date, 11 December 2024, the appointed body corporate manager emailed you to draw your attention to the applicable by-law 3 General Appearance of Lots and by-law 10 Window Covers and provided you with an Improvement to Lot request form as the installation of the shutters were installed without the knowledge and consent of the Body Corporate.

On 12 December 2024, a Voting Outside of Committee motion considered the written Improvement to lot request for the installed exterior shutters. On 13 December 2024 the Committee resolution unanimously voted not to approve the installation of shutters in accordance with the applicable scheme by-laws, cited above.

Subsequently, written correspondence was sent on 18 December 2024, 10 January 2025, 28 January 2025 and 07 February 2025 requiring the shutters to be removed as they were not approved by the Committee and contravene the scheme by-laws.

• [13] In their submissions, both the occupier and owner acknowledge that the shutters were installed without approval. However, once made aware that approval was required, a formal request for retrospective approval was submitted and refused by the committee. The owner and occupier allege that the committee's refusal was unreasonable in the circumstances. It is argued that the shutters are necessary for security reasons, and to protect stock in the tobacco shop from sun damage.
• [14] I note that by-law 3.1 applies to lots, whereas the body corporate alleges the shutters have been installed on common property. Whether the by-laws have been breached and whether the committee's refusal to grant retrospective approval for their installation was unreasonable, are serious questions, but not ones that are capable of resolution at this interim stage of proceedings.

• [15] An adjudicator must 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. Evidence that an interim order is necessary to prevent serious or irreparable harm is particularly relevant.
• [16] The body corporate says an interim order is necessary to prevent any further unauthorised alterations. The respondent says the shutters and cameras were installed to address urgent security needs. They confirm their understanding that any future alterations will require prior written approval from the body corporate and say they will strictly follow all future processes.
• [17] I do not consider that there is any evidence of serious or irreparable harm that is imminent if interim orders are refused, nor of any further inconvenience to either party. I am not persuaded by the body corporate's submission that the installations have such a detrimental impact visually and legally that interim orders are necessary, especially in circumstances where the respondent says their hours of operation are 8am until midnight, so the shutters are only down after 1am and until 8am.
• [18] If final orders are ultimately granted in favour of the body corporate, there is no evidence of any inconvenience that cannot be remedied, for example, by ordering that the respondent, at its expense, remove the unauthorised installations and restore any common property affected.

• [19] The body corporate alleges by-law breaches by the occupier of lot 56. Both the owner and occupier of lot 56 question the reasonableness of the committee's refusal to grant retrospective approval for the installation of the shutters and the cameras. Whilst serious questions have been raised, there is no apparent urgency, and the balance of convenience does not favour the making of any interim orders.
• [20] The application for final orders will be progressed in accordance with the Act.