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

JURISDICTION - whether adjudicator has jurisdiction in dispute about maintenance of easement; MAINTENANCE - whether body corporate is relieved of its duty to maintain common property when the common property is burdened by a right of way easement; REASONABLENESS - whether body corporate acted reasonably in making decisions at a general meeting; ADMINISTRATOR- whether to appoint an administrator.

Act, ss 94(2), 152, and 270; Standard Module, s 180

1. I dismiss, for lack of jurisdiction pursuant to section 270(1)(a) of the Act, the part of the application that seeks orders relating to Easement A, registered as J415848F, that benefits the respondent and burdens the neighbouring parcel (Lot 1 on RP214692).
2. The remainder of the application is dismissed in its entirety.

• [1] This application is about the administration of the body corporate and decisions about maintenance of common property.
• [2] There are only 4 lots in the scheme. The applicant owns one of those lots. A company (Penben) owns 2 lots, with the remaining lot owned by a third person. Penben also owns the neighbouring property on which it operates a childcare and kindergarten centre (Kindy).
• [3] The applicant says generally that the body corporate is not being administered in accordance with the legislation. The current chairperson of the body corporate is a director of Penben. The applicant asserts that the chairperson's duties to Penben and his business interests in the Kindy conflict with his interests and duties to the body corporate. She implies this is causing the chairperson to make decisions that are not in the best interests of the body corporate. To address those concerns, the applicant seeks an order removing the current chairperson from the role and orders appointing a body corporate manager to act as administrator.
• [4] The application also raises issues about the maintenance of common property at the scheme. Due to the configuration of the two properties - each being a "battle-axe" shaped block - both the scheme and the Kindy are accessed by a driveway on the "handle" of those blocks. There are two registered right-of-way easements that provide for the sharing of the driveway. The body corporate has the benefit of an easement over the Kindy driveway and the Kindy has the benefit of an easement over the body corporate common property.
• [5] The applicant takes the position that the body corporate has no legal obligation to pay for maintaining any of the shared driveway, including the portion that is on the common property of the body corporate. She seeks a declaration to that effect. She also seeks orders that the body corporate's recent resolutions about maintenance of the driveway are invalid.
• [6] For the reasons that follow, I have dismissed one aspect of the application for lack of jurisdiction. I have dismissed the remainder of the application in its entirety.

• [7] The scheme known as Hanflame Court CTS 19488 (Hanflame Court) is located in Labrador. It comprises of 4 lots and common property. Hanflame Court is registered as GTP 3773, which is a standard format plan of subdivision. The community management statement (CMS) for Hanflame Court shows the Standard Module applies.
• [8] The applicant is the owner Lot 1.
• [9] The respondent is the Body Corporate for Hanflame Court.

• [10] The applicant initially applied for interim orders to restrain the respondent body corporate from making or implementing decisions to commence works on areas of scheme land she claimed were not the responsibility of the body corporate to maintain. I made some of the interim orders requested by the applicant.[1]
• [11] The applicant made this application for final orders to resolve the dispute. The application then proceeded according to the legislation, with the Commissioner inviting the respondent and all owners to make a submission on the application.[2] A representative of Penben, the owner of 2 lots, made a submission. The owner of Lot 2 also made a submission. The applicant elected to inspect the submissions and provided a reply.
• [12] A dispute resolution recommendation was made to refer the application to department adjudication.[3] I investigated the application by, among other things, reviewing the application and submitted materials and by reviewing the CMS and the survey plan for the scheme.
• [13] I have also considered whether I have jurisdiction and power to resolve the disputes presented by this application. An adjudicator has jurisdiction generally to make orders that are just and equitable in the circumstances to resolve disputes between certain parties about a claimed or anticipated contravention of the Act or CMS, or about the exercise of rights or powers, or the performance of duties, under the Act or CMS.[4]
• [14] The parties to the dispute are the owner of a lot and the body corporate. This is a combination of parties provided for in the Act and the applicant has standing.[5] This application concerns disputes about claimed and anticipated contraventions of the Act. I am satisfied the majority of the application falls within the dispute resolution provisions of the Act and within the jurisdiction of an adjudicator.[6] There are, however, some aspects of the application that may be outside the jurisdiction of an adjudicator to resolve. I will address those aspects further in the analysis section below.

• [15] The applicant is the owner of Lot 1. Until the most recent annual general meeting of the body corporate held on 20 January 2025 (2025 AGM), she was the chairperson. She is currently the treasurer. The applicant says the body corporate has a contract with a body corporate manager (Current BCM). With the assistance of the Current BCM, she considers the body corporate was well-run, democratic, and economically viable before the 2025 AGM.
• [16] She explains that Lots 3 and 4 were purchased by Penben last year. She says this gave Penben majority voting power in the scheme. At the 2025 AGM, Penben's representative became the scheme's chairperson. The applicant says he had not disclosed his interests in the neighbouring parcel of land and the Kindy before he was elected as chairperson.
• [17] The applicant says there is an easement that benefits the Kindy Land and is burdening land that is part of Hanflame Court (Easement B). She says for Easement B, the Kindy benefits from the easement and is considered the dominant tenement, while the body corporate's land is burdened and is therefore the servient tenement. Notwithstanding that Easement B is over the common property of Hanflame Court, it is her understanding that the dominant tenement is responsible for the repairs and maintenance of Easement B. In other words, she says that "obligations of the dominant tenement should supersede the Body Corporate's general duty to maintain common property."[7]
• [18] The applicant says she believes the chairperson's objective is for the body corporate to finance the repairs and maintenance of Easement B, including the construction of a new driveway and turning circle for the benefit of the Kindy and Penben's business. She says the Kindy (as the dominant tenement) and not the body corporate is responsible for all of those works.
• [19] At the 2025 AGM, the body corporate considered 4 motions - Motions 11a, 11b, 11c, and 11d - about the maintenance of the driveway and crossover. She says that the chairperson, voting on those motions on behalf of Penben as a lot owner, caused the body corporate to pass those motions. The applicant asserts that, due to its conflict of interest, Penben's representative should not have been permitted to vote on those motions.
• [20] The applicant seeks an order that the body corporate's resolutions for Motions 11a-d are deemed void. She also seeks an order "directing" that the maintenance of the easements are the responsibility of the owner of the Kindy land.
• [21] Regarding the administration of the body corporate, the applicant takes issue with the chairperson's behaviour and statements. The applicant claims the actions of the chairperson are causing increases in the body corporate's costs, including by seeking to terminate the contract with the Current BCM.
• [22] The applicant is seeking 7 final orders, namely that:
  1. The Adjudicator rescind the motions numbered 11a, 11b, 11c and 11d passed on 20 January 2025.
  2. The Adjudicator appoint Mr Alan Stone, current Body Corporate Manager, as Administrator of the Body Corporate for a period of 17 of months.
  3. The Adjudicator removes Mr Ben Semple as Chair Person of the Body Corporate.
  4. The Adjudicator stay the EGM to be held on 21 March 2025 0900
  5. The Adjudicator directs the current Body Corporate Management, Coastal Realty and Strata, continue with their Contract with the Body Corporate and cannot be terminated before the end of their Term.
  6. The Adjudicator directs the maintenance obligations of Easement A and Easement B are the responsibility of the dominant tenement and not the Body Corporate, despite the easements being situated on common property. To clarify, the maintenance obligations of Easement A are the responsibility of the Lot Owner of 1/RP214692.
  7. The Adjudicator grants to the Administrator power to review, rescind and change as necessary the Body Corporate expenditure, to reverse the changes made that saw the levies suddenly increase substantially at the EGM held on 10 February 2025. have contravened By-law 15 submit a complete application of all works for the purpose of obtaining written approval rectify all damage caused to other lots and common property infrastructure, and pay the expenses incurred by the body corporate for inspection of their lot to ensure fire safety compliance and structural integrity.

• [23] A submission was made by the representative of Penben, in its capacity as the owner of 2 lots, opposing each of the orders sought by the applicant. I will describe and consider the arguments presented by Penben in the analysis section below in the context of each order sought.
• [24] The owner of the remaining lot (Lot 2) also made a submission. She says she was aware that Penben also owns the Kindy when she voted at the AGM. She says further that she makes her own decisions and is not influenced by the director of Penben. She also thinks it is in the best interests of the body corporate that a new BC Manager be engaged.

• [25] The applicant obtained a copy of the submissions and provided a reply. The relevant parts of which are included below in the analysis.

• [26] The 7 orders sought by the applicant can be broadly grouped into orders relating to:
  1. the maintenance of common property (Orders 1 and 6)
  2. the administration of the body corporate (Orders 2, 3, 5 and 7), and
  3. the EGM called for May 2025 (Order 4).
• [27] Due to the overlapping issues, for brevity and efficiency, I will consider the orders sought by those 3 categories.
• [28] To provide context for my determination about the orders sought, I will first describe some of the general principles about maintenance responsibilities in a body corporate, terminology relevant to easements, the jurisdiction of an adjudicator's jurisdiction, and some general principles about decision making by bodies corporate. I will also make some findings of fact. Finally, I will determine whether to make any of the orders sought.

• [29] Hanflame Court is a scheme consisting of 4 lots and common property.
• [30] The scheme was established by registration of a group titles plan (GTP3773). Those types of plans are now known as a standard format plan. The boundaries of lots on a standard format plan are defined using a horizontal plane and by references to marks on the ground.[8] The parts of the scheme land that are not part of a lot are the common property of the body corporate.[9]
• [31] The legislation describes which parts of a community titles scheme the lot owners are responsible for maintaining, and which parts the body corporate is responsible for. Owners are generally obligated to maintain their lot in good condition.[10]
• [32] For its part, the body corporate is required to maintain the common property "in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition."[11]

• [33] Easements can be generally described as a right to use a portion of someone's land in a particular way. A right of way easement is a particular type of easement typically benefitting landlocked properties. It allows a person (usually the owner or occupier of a property) to cross another property so the person can access their own property.
• [34] The land that benefits from a right of way easement is called the dominant tenement. The land over which a right of way easement is granted is called the burdened land or the servient tenement.
• [35] Easements can be created in several ways. Relevantly here, a right of way easement may be created by a written agreement between the grantor (owner of the servient tenement) and the grantee (owner of the dominant tenement) and registration of the easement on the certificate of title for each of the affected properties.[12]

• [36] Adjudicator's are only given jurisdiction to resolve certain disputes between specified combinations of parties.[13] I am not aware of any provision of the legislation that gives an adjudicator jurisdiction to determine a dispute between a body corporate and the owner of a neighbouring parcel of land.[14]
• [37] Where it appears to an adjudicator that they do not have jurisdiction over a dispute, the adjudicator may make an order dismissing the application.[15] In addition, if satisfied a particular dispute should be dealt with in another forum, an adjudicator may dismiss that part of the application so that it can be dealt with in a court or tribunal of competent jurisdiction.[16]

• [38] A body corporate can only fulfill its functions by making decisions. Some decisions can be made on its behalf by the committee. Other decisions must be made by the members of the body corporate (owners) voting on motions proposed at a general meeting.
• [39] When making decisions, both the committee and the body corporate have an express statutory duty to "act reasonably" in making or not making decisions.[17] Higher courts have made clear that the statutory duties for a committees and a body corporate to "act reasonably" in making decisions are imposed on the respective body making the decision and are not intended to apply to individual voters.[18]
• [40] When the committee is making a decision, it does so on behalf of the body corporate in a representative capacity. For committee decisions, the committee is the body with the statutory obligation to act reasonably.[19] Although section 100(5) of the Act binds the committee as a group to act reasonably, when individual members are voting on a committee motion, they are acting in a representative capacity. Accordingly, it makes sense that the legislation separately imposes duties on each voting committee member. The Act provides that individual committee members must comply with a code of conduct that requires them to act honestly, fairly, and in the best interests of the body corporate.[20] The Act also requires individual committee members to disclose direct and indirect interests that could conflict with their duties about the consideration of an issue.[21] A committee member is not entitled to vote on motions involving the conflicted issue.[22]
• [41] In contrast, for body corporate decisions made at a general meeting, voters are acting directly and in a personal capacity as the owner of a lot. In that capacity, their right to vote arises from and is "based upon the property rights which accrue to lot owners."[23] I am not aware of any separate statutory duties imposed on individuals exercising their property-based voting rights at a general meeting.[24] Nor am I aware of any statutory provisions requiring owners (or their associates) to disclose any direct or indirect interests when voting on a motion proposed at a general meeting.
• [42] The body corporate is required by section 94(2) of the Act to "act reasonably" when making decisions.[25]
• [43] Courts have found that to act reasonably is not the same as making a reasonable decision. The term "act reasonably" is used in its ordinary sense and means that the actions - the process of considering a proposal and weighing the factors for and against - must be genuine, evidence-based, and rational.[26] To be rational in decision making means that a body corporate (and its committee) is required to evaluate relevant factors that have a bearing on the issue and to ignore irrelevant factors.[27] The specific factors to be considered will vary depending on the context of the decision and the scheme.
• [44] When determining whether a body corporate has acted reasonably in its decision making, an adjudicator must consider whether the body corporate has properly and realistically considered the factors that are relevant to the decision.[28]

• [45] Based on the submissions and my investigations, I am satisfied that, up until around 1993, there existed two parcels of land known respectively as Lots 1 and 2 on RP214692:
  1. Lot 1 on RP 214692 has not been subdivided. It is currently owned by Penben. I will refer to this parcel as the Kindy Land.
  2. Lot 2 on RP214692 was subdivided into 4 lots and common property. In or around 1993, the subdivided land was registered as GTP 3733 and the body corporate known as The Proprietors "Hanflame Court" was established. I will refer to this parcel as Scheme Land.

• [46] The land that was Lot 2 on RP214692 and is now Scheme Land is in the shape of an axe. The "handle" of the axe is approximately 100 metres long. One section is approximately 4.5 metres wide, with another section approximately 9.0 metres wide.
• [47] In or about 1987, the owner of Lot 2 on RP214692 granted Easement B over part of that land.
• [48] I am satisfied from the documents provided that Easement B:
  1. was granted before the establishment of the scheme known as Hanflame Court
  2. is a right-of-way easement that benefits the grantee (the owner of the Kindy Land)
  3. burdens Lot 2 on RP214692 (now Scheme Land), which is the servient tenement
  4. the Kindy Land (as Lot 1 on RP 214692) benefits from the easement and is listed on the grant as the dominant tenement, and
  5. was registered in 1988 on the relevant titles as easement J415845X.
• [49] In terms of the covenants or terms of the grant of Easement B and its annexure, I am also satisfied that:
  1. the grantor gives a right of way "to pass and repass along and over the servient tenement" (the Scheme Land), and
  2. it does not contain any covenants imposing an obligation on the owner of the dominant tenement (the owner of the Kindy Land) to maintain the easement.
• [50] The body corporate known as Hanflame Court was established in or around 1993, which was after the grant of Easement B.
• [51] The applicant contends in some parts of her submissions that the driveway "does not fall within the defined common property or assets of the body corporate" and that land is not identified as part of the common property in the scheme's CMS. The Act makes clear, however, that any part of scheme land that is not part of a lot is part of the common property.[29] I am satisfied that the driveway at issue is not part of any of the 4 lots and that the part of Scheme Land that is burdened by Easement B is clearly marked on the survey plan for the scheme (GTP 3733) as part of the common property.

• [52] The Kindy Land is also in the shape of an axe. The handle portion is approximately 68 metres long and 4.5 metres wide and it is located parallel and adjacent to the narrower section of the "handle" portion of Scheme Land.
• [53] In or about 1987, the then-owner of the Kindy Land granted Easement A over the handle part of that land. Regarding Easement A, I am satisfied from the documents provided that:
  1. it was granted before the establishment of the scheme known as Hanflame Court
  2. it is a right-of-way easement benefiting the grantee (now Scheme Land)
  3. the Kindy Land is the servient tenement and is the land burdened by Easement A
  4. the Scheme Land is the dominant tenement and has the benefit of Easement A, and
  5. it was registered in 1988 on the relevant titles as easement J415848F.
• [54] In terms of the covenants of Easement A, I am also satisfied that:
  1. the grantor gives a right of way "to pass and repass along and over the servient tenement" (Kindy Land), and
  2. it does not contain any covenants imposing an obligation on the owner of the dominant tenement (the owner of Scheme Land) to maintain the easement.

• [55] Easements A and B serve as a shared driveway to access the substantive parts of the Kindy Land and the Scheme Land from the nearest street.
• [56] Regarding the driveway, from the photos provided, Easement B, which is Hanflame Court common property and is part of the shared driveway, appears to be partially paved (asphalt), partially gravel, and the remainder (along the fence line) is soil/grassed and/or garden.
• [57] I am satisfied from the photos that at least some sections of the asphalted/gravel part of common property burdened by Easement B is not in good condition. The applicant does not appear to dispute that the driveway requires maintenance work and acknowledges that there are currently "a number of large potholes in the driveway that require urgent attention."
• [58] For the crossover, I am satisfied that in January 2025, the body corporate received a "Safety Hazard - Notice to Rectify" from the local council advising that following an inspection, it had identified driveway non-compliance. Specifically, that the channel allowing water flow through the driveway cross-over was blocked. The council advised that maintenance of the vehicle cross-over is the responsibility of the body corporate and that the issue must be rectified.
• [59] At its 2025 AGM, the body corporate passed 4 motions by ordinary resolution relating to the driveway and cross-over. I am satisfied that the body corporate resolved, by 3 votes in favour and 1 against, to pass each of:
  1. Motion 11a (Driveway Cross-over) - to obtain quotes to "repair or re-do the driveway crossover in conjunction with the neighbouring owners"
  2. Motion 11b (Driveway Cross-over) - authorise the committee to select the most appropriate quote and engage a contractor to carry out the works to a maximum spend by Hanflame Court of $15,000
  3. Motion 11c (Driveway Re-Surface) - to obtain quotes to "resurface the driveway, carparks and relevant common property in conjunction with the neighbouring owner"
  4. Motion 11d (Driveway Re-Surface) - to authorise the committee to select the most appropriate quote and engage a contractor to carry out the works to a maximum spend by Hanflame Court of $15,000.

• [60] Regarding the cross-over, the applicant contends that the collapsed drain was caused by asphalt being poured in that area. Where the body corporate never directed asphalt to be poured in that area, it is her position that regardless of the council notice requiring repairs, the body corporate is not responsible for those repairs.
• [61] As for the driveway, the applicant says she personally obtained legal advice about whether the body corporate was responsible for maintaining its common property burdened by an easement. She provided the advice from her lawyer who opines that:
  1. both the Kindy Land and the Scheme Land are burdened by an easement, which makes those parts of the respective land (the shared driveway) a servient tenement
  2. pursuant to a long line of legal authority, the owner of a servient tenement "is under no obligation to maintain or repair the improvements on the easement", and
  3. the body corporate for Hanflame Court has no obligation to make payment for repair or maintenance of anything on the easement.
• [62] On the basis of that advice, which is supported by the Current BCM, she says the body corporate should not have passed any of the 4 cross-over and driveway motions. She seeks two related orders:
  1. Order 6, that an adjudicator direct that, regardless of the easements being over common property, the dominant tenement (the owner of the Kindy) and not the body corporate has the legal responsibility for maintaining Easement A and Easement B, and
  2. Order 1, that the adjudicator rescind the motions numbered 11a, 11b, 11c and 11d passed by the body corporate on 20 January 2025.
• [63] The director of Penben opposes the orders sought. He says Orders 1 and 6 should not be made for one or more of the following reasons:

1. The order sought is not within the jurisdiction of an adjudicator because the Kindy Land is not part of the scheme. In its capacity as the owner of that land, Penben is not one of the persons referenced in section 227 of the Act 2. Such an order would be outside the purpose of the dispute resolution provisions of the Act, which is to resolve internal disputes about contraventions of the Act or CMS and the performance of duties under the Act 3. The order sought is contrary to the applicant's submissions, the facts, and the legal authorities on which she relies because:

(i) neither instrument for Easement A or Easement B provides that the owner benefitting from the easement (the dominant tenement) is required to maintain the land or improvements (a driveway) > > (ii) where the grant of an easement is silent on the question of maintenance, an owner of a dominant tenement has the right but not the obligation to maintain the land and improvements. Further, where the case relied upon by the applicant expressly states "the dominant tenement owner has no obligation to maintain or repair the improvements"[30] the applicant's understanding that the owner of a dominant tenement is obligated to maintain is misplaced and unsupported > > (iii) even if the applicant is correct and an owner of a dominant tenement is responsible for maintaining the improvements, as the owner of the dominant tenement for Easement A, this would make the body corporate responsible for maintaining the Easement A part of the driveway, and > > (iv) Penben has not made any request that the body corporate maintain Easement A and it has maintained that easement at its own expense. As such, any order that Penben maintain Easement A would be of no utility.

1. The existence of Easement B does not relieve the body corporate of its duty to maintain the improvements (driveway) on that common property. The body corporate has a statutory duty to maintain its common property driveway. The applicant previously accepted in an email to Penben as owner of the Kindy Land in 2022 (and before it owned lots in the scheme) that the body corporate is responsible for maintaining its portion of the driveway on common property. The body corporate also passed a motion at its 2023 AGM to obtain quotes to repair the asphalt driveway. 2. The applicant does not identify any alleged irregularity with the meeting at which the challenged motions were consider. 3. Motions 11a and 11b about the driveway cross-over should not be "rescinded" because:

(i) the body corporate must comply with the council notice as it otherwise might be faced with fines or prosecution for non-compliance > > (ii) the cross-over is not part of the scheme land nor subject to any easement, and > > (iii) Motion 11b only approved spending on something the body corporate is solely responsible for.

1. In addition to the reasons above, Motions 11c and 11d should not be "rescinded" because part of the required maintenance is not within the easement. The works proposed by those motions includes "the carparks and relevant common property of the respondent" (noting the works do not include the carparks within the boundaries of Lots 1-4 of the scheme). 2. The body corporate acted reasonably when it decided to pass each of the motions about the cross-over and driveway. The body corporate would be breaching its statutory duty to maintain if it did not pass these motions. Further, the body corporate cannot avoid its duty of care to owners, occupiers, and others who come onto its common property. "Maintaining driveways and carparks, particularly as regards potholes and uneven ground, could hardly be argued as a step that is unreasonable."

• [64] In reply, the applicant maintains that the body corporate is not responsible for maintaining the driveway that is on Easement B, regardless of whether it is part of the common property. For the cross-over, she says the council notice relates to a drain that is collapsed/blocked by asphalt. However, the body corporate has never authorised asphalt to be poured on the cross-over. The applicant implies it was done by others, presumably the owners of the Kindy Land. She also suggests a plumber has indicated the repairs will cost less than $1,800 rather than the $15,000 suggested in Motion 11b.
• [65] The applicant says she previously understood the body corporate was responsible for its driveway. Now, based on legal advice and on advice from the Current BCM, she maintains it would be a misuse of body corporate funds to pay for maintenance of the driveway to benefit the private business interests of Penben. Similarly, she says it would be a misuse of body corporate funds to pay for damage to the cross-over not caused by the body corporate.

• [66] As an initial matter, it appears that I have no jurisdiction to resolve any dispute concerning Easement A. That easement burdens the Kindy Land and, while the body corporate may have a right of way over it, is not part of Scheme Land. Further, the owner of the Kindy Land is not one of the categories of parties described in section 227 of the Act. In my view, any dispute about Easement A does not fall within any of the categories of dispute resolution purposes found in section 228 of the Act.
• [67] For that reason, I have made an order pursuant to section 270(1)(a) of the Act dismissing for lack of jurisdiction the part of the application (Order 6) that relates to Easement A
• [68] Regarding Easement B which burdens the Scheme Land, the dispute concerns the maintenance of improvements to scheme land and whether the body corporate acted reasonably in making decisions about that maintenance. Accordingly, I consider I do have jurisdiction over the present dispute between the applicant and respondent about Easement B.
• [69] For the following reasons, the applicant has not persuaded me that Easement B completely relieves the body corporate of its statutory obligation to maintain its own common property:
  1. Prima facie, the body corporate has a statutory duty to maintain its common property, including that part of its common property burdened by Easement B.
  2. Neither the instrument granting Easement B nor the registration of that instrument contain any mention of any covenant about maintenance. There is no evidence of a covenant requiring the owner of the dominant tenement (the owner of the Kindy Land) to maintain any improvements to the land that is the subject of Easement B.
  3. The applicant has not identified any provision in the Land Title Act 1994, the Land Act 1994, or in any other legislation that operates to require the owner of land that is the dominant tenement to maintain the land that is the subject of the easement.
  4. None of the cases referenced by the applicant support her position that the common law in Queensland requires the owner of the dominant tenement to maintain improvements to an easement over and burdening the common property of a body corporate. The primary case on which the applicant relies is from a New South Wales court. Although the case may be instructive and provide guidance about the rights of the owner of a dominant tenement to enter a servient tenement and to maintain that land if that owner chooses to do so, the court expressly states that the owner of the dominant tenement has no obligation to do so.[31] Moreover, neither that case nor the others cited involve a body corporate or the common property of a body corporate.
• [70] Accordingly, I decline to make any part of Order 6 sought by the applicant about Easement B and that part of the application is dismissed.
• [71] For Order 1, I consider my task is to determine whether the applicant has demonstrated that the body corporate failed to act reasonably when it decided to pass Motions 11a-d.
• [72] Regarding the cross-over, the relevant factors for the body corporate to consider were the notice from the council requiring it to repair the cross-over and its obligation to comply with that notice. The applicant has not satisfied me that the body corporate did not properly and adequately consider these factors. As the relevant property owner, the body corporate is obligated to comply with the council notice. Even if the cross-over was damaged by another person, I cannot see how that would excuse the body corporate from complying with the notice. If it genuinely believed another person was responsible for the damage it would need to pursue recovery of the costs of repair from that person.
• [73] Accordingly, I am not satisfied that the body corporate failed to act reasonably when it passed Motion 11a and I dismiss this part of the application.
• [74] For Motion 11b, where the costs of the works are unknown and where each owner has a representative on the committee, I am not satisfied the body corporate failed to act reasonably when it decided to authorise its committee to engage, up to a limit of $15,000, a contractor to perform any necessary cross-over repair works. Although the applicant is of the view repair works will cost considerably less, the $15,000 amount is a maximum, the quotes will be presented to the committee, and she will have an opportunity to voice any concerns or offer lower quotes at that time. In the circumstances, I am not satisfied the body corporate failed to act reasonably when it decided to pass Motion 11b and have dismissed this part of the application.
• [75] Motion 11c proposed that the body corporate be authorised to seek quotes for works to re-surface the "driveway, carparks and relevant common property" in conjunction with the neighbouring owner. Motion 11d proposed that the body corporate authorise its committee to engage a contractor at a cost of no more than $15,000 to undertake such works.
• [76] In my view, to act reasonably in making a decision about those motions, the body corporate was required to consider the condition of the driveway and its statutory obligation to maintain its common property. The existence of Easement B burdening the land was also relevant. Specifically, acting rationally the body corporate could consider whether that easement by its terms, by operation of statute or common law, meant the body corporate's duty to maintain its common property was excused or superseded by Easement B.
• [77] In making its decision, the body corporate was entitled to consider and weigh those factors. Provided it did so genuinely and based on evidence, the body corporate will have acted reasonably in making its decision.
• [78] In the present case, the applicant has not demonstrated that the body corporate failed to give proper and genuine consideration to its obligation to maintain common property or whether Easement B modified or excused it from its duty. It is apparent that all owners agree the driveway is not in good condition. Three of the owners were satisfied that the body corporate had a duty to maintain the driveway and was not relieved of that duty by the existence of Easement B. I am satisfied the consideration of the easement and its affects (if any) on the body corporate's duty to maintain common property was evidence based and objectively reasonable. Moreover, the occupiers of the scheme use the driveway to access their lots and will benefit from the maintenance works. Simply because another party may also benefit when a body corporate decides to undertake work to comply with a statutory duty does not of itself make the decision unreasonable.
• [79] In the circumstances, I am not satisfied the body corporate failed to act reasonably when it decided to pass Motion 11c and have dismissed this part of the application. For the same reasons I was not satisfied that the body corporate acted unreasonably in passing Motion 11b, I am not satisfied the body corporate acted unreasonably in passing Motion 11d.

• [80] The applicant seeks orders about the administration of the body corporate. Specifically final orders:
  1. effectively restraining the body corporate from terminating its contract with the Current BCM's contract until the end of the contract term (Order 5)
  2. removing the current chairperson - a director and representative of Penben as the owner of 2 lots - from that role
  3. appointing a person from the Current BCM to act as administrator of the body corporate for 12 months, and giving the administrator certain powers, including to review and change body corporate decisions about levies and spending.

• [81] The applicable body corporate legislation largely gives bodies corporate the responsibility for self-management. Indeed, that is recognised as an inherent aspect of a scheme and is one of the express purposes of the Act.[32]
• [82] As part of its self-management, a body corporate regulated by the Standard Module must have a committee unless it engages a body corporate manager under Part 5.[33] Eligible persons must be elected or appointed to act as executive or ordinary members of the committee for the body corporate in the way provided for in the regulations. The applicable regulations also provide for the term of office of committee members,[34] and prescribes a process by which a committee member may be removed from their role for breaching the code of conduct. [35]
• [83] The legislation gives an adjudicator express power to make orders appointing an administrator for a scheme.[36] An adjudicator's order appointing an administrator will define the powers that are being given to the administrator.[37] Such an order may require that the administrator receive assistance and may fix the remuneration to be paid by the body corporate.[38]
• [84] Although adjudicators are empowered to appoint an administrator, the legislation does not describe the criteria nor any factors an adjudicator should consider when determining whether it would be appropriate to make such an order.
• [85] Certainly, the effects of appointing an administrator require consideration. Those effects include that such an order shifts at least some of the decision making for a scheme from the body corporate to the administrator and that the costs of the administrator will be borne by the body corporate.
• [86] In considering what criteria to apply, many adjudicators and parties reference the case of Surace v Commiso.[39] In that case, regarding an adjudicator's power to appoint an administrator, Mackenzie QC observed:

... no criteria are prescribed for [deciding whether to appoint an administrator], but it is a significant step since it takes responsibility for the conduct of the affairs of the body corporate out of the hands of the committee and vests it in the administrator. An applicant must therefore demonstrate to the required standard that such a step is appropriate. Typically, without attempting to be exhaustive, there will be evidence that the body corporate is so dysfunctional that it cannot operate properly within the statutory framework that governs it, or that there is a well founded suspicion, on the part of an applicant for appointment of an administrator of financial malpractice within the body corporate, or that there is conduct that amounts to undue oppression in the conduct of its affairs. Without more, mere disagreements between the members, especially when the disputes are due to reasonably held differences of view and there are means available to resolve them by reference to external processes.[40]

• [87] As grounds for this group of orders, the applicant claims that the chairperson:
  1. appointed himself to the role at the 2025 AGM
  2. forces the body corporate into holding EGMs
  3. votes in a manner that has caused a significant increase in body corporate expenditure and levies
  4. is improperly attempting to terminate the contract with the Current BCM
  5. has provided false information to the BCM, committee, and owners
  6. has deliberately excluded her from committee correspondence and that committee decisions have been made with the required vote outside committee meeting
  7. wants to remove her from the committee and has offered to purchase her property at below market value to do so, and
  8. has breached his duty to act honestly and in the best interests of the body corporate.
• [88] In response, the chairperson denies and rejects the majority of the applicant's allegations. He opposes the orders sought on a list of other grounds, including that:

1. he was validly elected to the position at the most recent AGM with 3 votes in favour and 1 (the applicant's) against 2. it is difficult to respond to the applicant's request that he be removed as chairperson (Order 3) because the applicant does not identify a "dispute" nor the legal basis on which he should be removed as chairperson 3. he understood the Current BCM had agreed to a proposal that the contract be terminated but when corrected, he acknowledged the misunderstanding and Penben is no longer proposing a motion to terminate the Current BCM contract 4. although conflict of interest provisions apply to committee members voting at committee meetings, he has proposed motions as the representative of an owner for consideration by the body corporate at general meetings and he is entitled to vote on those motions 5. levy increases were necessary and the applicant voted in favour of them, and 6. regarding the appointment of an administrator, the application is deficient and orders should not be made because:

(i) the information required by Commissioner's Practice Direction 17 - for example, a nomination, consent, and proposed remuneration for the administrator - was not included with the application, and > > (ii) the appointment of an administrator is not supported where the body corporate is operating within the statutory framework, the disputes are disagreements and there is no evidence the body corporate is dysfunctional, and no well-founded suspicion of financial malpractice or conduct that amounts to oppression.

• [89] In terms of removal of the current chairperson, the applicant does not expressly challenge the validity of his election at the AGM. Nor is there any evidence that the applicant has proposed a motion to the body corporate that it decide to remove the current chairperson from his role for breaching the code of conduct. In those circumstances, the applicant has not satisfied me that there is a contravention of the legislation or that there is any legal basis on which I could order the chairperson removed from that role. Accordingly, I decline to do so and dismiss the part of the application seeking Order 3.
• [90] Regarding the request that I permanently restrain the body corporate from terminating its contract with the Current BCM, the applicant has not satisfied me there is a legal basis on which I could make the orders sought. There are circumstances where it may be reasonable for a body corporate to terminate a contract with a body corporate manager. In my opinion, in accordance with the purposes of the Act, in the first instance, that decision should remain with the body corporate. In any event, the representative of Penben has stated he would no longer vote in support of terminating the contract. I infer there is no longer a dispute about terminating the body corporate's contract with the Current BCM.
• [91] Finally, in my view, the applicant has not demonstrated to the requisite standard that the appointment of an administrator is warranted here.
• [92] The body corporate is calling and holding general meetings, striking budgets and collecting levies. It its taking steps to address common property maintenance issues. Although Penben does have 2 of the 4 votes at general meetings and interests in the Kindy next door, I am not satisfied on the evidence presented that this is causing the body corporate to act unreasonably or that there is sufficient evidence of conduct that amounts to undue oppression. Relevantly, the owner of Lot 2 voted in favour of the motions challenged by the applicant.
• [93] While there is certainly evidence of disagreements between members of the body corporate, there are means available to resolve those disagreements. In other words, I am not satisfied that the body corporate is dysfunctional.
• [94] For those reasons, I am not satisfied there is a legal basis on which to appoint an administrator, nor do I consider it would be just and equitable to do so. This part of the application is also dismissed.

• [95] The applicant originally sought an interim order that an extraordinary general meeting scheduled for 21 March 2025 (March EGM) be stayed. I declined to make the interim order and dismissed that part of the application for interim orders. The chairperson says the March EGM, however, did not proceed due to the Current BCM's interpretation of the decision.
• [96] The applicant now seeks a final order that the 2025 EGM be stayed.
• [97] Where it is now October 2025, clearly the order sought is moot. I will not make an order that is pointless and I dismiss this part of the application.

• [98] I have made orders for the reasons given above.

[1] Hanflame Court [2025] QBCCMCmr 95 (Interim Order)

[6] Sections 226, 228 and 276 of the Act

[7] See Application at [5] of 28 March 2025 memorandum

[8] See Section 48B of the Land Title Act 1994

[9] See Section 10(2) of the Act, including the note

[10] See Section 211 of the Standard Module. Depending on the circumstances, owners may have some other maintenance obligations. See e.g., Section 180(3) and (4) of the Standard Module

[11] See Section 180(1) of the Standard Module

[12] See e.g., Land Title Act 1994 at Part 6 Div 4 and the Land Act 1994 at Part 4 Div 8

[13] See Sections 227, 228 and 229 of the Act

[14] I note that adjudicators are expressly precluded from making orders about title to land. See Section 285 of the Act

[15] See Section 270(1)(a) of the Act

[16] See Section 270(1)(b) of the Act

[17] See Sections 94(2) and 100(5) of the Act

[18] See Ainsworth v Albrecht [2016] HCA 40 at [51]; Body Corporate for the Reserve CTS 31561 v Trojan Resorts Pty Ltd [2017] QCATA 53 (Reserve) at [18]

[20] See Section 101B and Schedule 1A (at 2 and 3) of the Act

[21] See Section 66(1) of the Standard Module

[22] See Section 66(2) of the Standard Module

[23] See Dindas & Anor v Body Corporate for One Park Road CTS 2114 & Ors [2006] QDC 302 (Dindas) at [39]

[24] Id.; see also Palm Springs at [89]

[28] Id. at [45] citing Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 (Khan); [1987] FCA 457; (1987) 14 ALD 291 at 292 (Gummow J)

[30] Hare v van Brugge [2013] NSWCA 74 at [28] (internal citations omitted)

[31] Hare v van Brugge [2013] NSWCA 74 at [28] (internal citations omitted)

[38] Sections 301(4) and 301(5) of the Act

[39] [2009] QCCTBCCM 42 (Surace)