Section 77 of the Building Units and Group Titles Act 1980 (Qld) (BUGT Act)

INTERIM ORDERS - whether circumstances warrant an interim order

1. The application for interim orders is dismissed.

• [1] This application is about water billing arrangements at Hope Island Resort. The applicant, Rosebank Group Titles Plan No. 3033 (Rosebank) is a subsidiary body corporate and member of the respondent Hope Island Resort Principal Body Corporate (PBC).
• [2] For some time, there have been unresolved issues around water billing of individual lots, and specifically who should take on the responsibility for the invoicing process. Rosebank submits the following background:
  1. The agreement for the supply of water is between the PBC and the Gold Coast City Council (GCCC);
  2. The PBC owns the water supply pipes and meters. Historically, the PBC read the meters and sent details of each lot's meter readings to Rosebank who then invoiced individual owners;
  3. However, a referee's order of 31 August 2020[1] made orders that:
     1. The body corporate must not in future impose a charge of any kind against a proprietor or occupier of a lot, for the provision of a garbage collection service to them or their lot, who has not individually and explicitly agreed to be supplied the service on notified terms and conditions.
     2. The body corporate must not in future impose a charge of any kind against a proprietor or occupier of a lot, for the supply of water to them or their lot, who has not individually and explicitly agreed to be supplied on notified terms and conditions.
     3. The body corporate must use its best endeavours to be compliant with these orders as soon as is reasonably
  4. Rosebank considers the effect of the above order means that it would be required to enter into individual water supply agreements with owners before issuing invoices however Rosebank says it cannot do so as it is not the provider of the water supply service and therefore cannot legally execute such agreements;
  5. Rosebank has advised the PBC that effective from 31 December 2024, it would cease invoicing and recovering funds for water usage from individual lots on behalf of the PBC. It requested that the PBC immediately transition to invoicing owners directly or that the PBC facilitate GCCC to directly manage the water supply and invoicing process;
  6. Since then, there have been no water bills issued to lot owners and no apparent solution.
• [3] At the annual general meeting of the PBC held on 22 August 2025 (2025 AGM), the PBC proposed the engagement of a third party utility provider as a short-term solution. The PBC resolved to enter into an agreement with Metered Energy Holdings Pty Ltd (Metred Energy) for a period of 364 days at a cost of $142,735.50.
• [4] Rosebank objects to this decision and seeks interim orders to:

(1) restrain the PBC from signing a contract with Metered Energy; and

(2) require the PBC to accept voluntary interim payments for water usage from Rosebank owners and that such payments be credited against unissued invoices.

• [5] Rosebank also seeks, in effect, the following final orders:

(1) That motions 30.1 & 30.2 of the 2025 AGM be deemed invalid and set aside;

(2) Alternatively, a finding that the PBC failed to exercise or perform a power, authority duty or function conferred by or imposed by the BUGT Act in not taking immediate and urgent steps to either:

a. develop a plan with the GCCC for direct billing of water usage; or

b. take advice from the Office of the Commissioner for Body Corporate and

Community Management that the PBC can bill lot owners directly.

(3) That the PBC immediately begin invoicing individual lot owners in Rosebank and other subsidiary bodies corporate for water supplied to each lot based on actual consumption for each lot and that water charges are no longer levied against Rosebank or other subsidiary bodies corporate.

• [6] The only issue at this time is whether interim orders are warranted.

• [7] Hope Island Resort is a layered development created under the Integrated Resort Development Act 1987 (IRD Act). Rosebank has brought this application against the PBC for alleged contraventions of the IRD Act. The IRD Act is one of a number of statutes defined as a 'Specified Act', to which the BUGT Act continues to apply.[2] Section 179A of the IRD Act provides that "a dispute about the operation of this Act or the rights and obligations of persons under this Act" may be dealt with under Part 5 of the BUGT Act.
• [8] Part 5 of the BUGT Act concerns disputes, and sections 75 to 94C provide for orders by a referee. Section 77(1) provides for "the settlement of a dispute or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform a power, authority, duty or function conferred or imposed by this Act..."
• [9] Prima facie, I am satisfied I have jurisdiction to determine this matter.
• [10] A referee may make an interim order if requested by the applicant, and if satisfied on reasonable grounds that one should be made because of the urgent circumstances of the case.[3] An interim order may be made notwithstanding that any power or duty of the referee under section 73(1) of BUGT Act has not been exercised or performed with respect to the application. Section 73(1) requires the referee to invite submissions on the application from anyone who would be affected by the requested final order.
• [11] In the circumstances, I gave notice of the application to the PBC and invited a submission from its committee in response to the interim order application. The PBC committee made a submission which I will include in my discussion below.

• [12] The only question at this time is whether the circumstances warrant the granting of an interim order. In determining whether to grant injunctive relief, there are generally 2 guiding principles:
  1. Whether the applicant has shown that it has a prima facie case, that is whether the application raises a 'serious legal issue' with some likelihood of success at final determination; and
  2. Whether the applicant has shown that the balance of convenience favours the granting of the relief claimed. This requires balancing the inconvenience of granting relief now if final orders are ultimately refused against the impact of refusing interim relief if final orders are ultimately granted. Of particular significance is whether an interim order is necessary to prevent serious or irreparable harm.

• [13] Rosebank objects to motion 30 as it alleges that pursuant to section 162(1)(c) of the IRD Act, any matter which seeks to alter the annual monetary contribution of members of the PBC is a restricted matter for the committee.
• [14] In response, the PBC submits that section 162 of the IRD Act deals with restricted matters for the executive committee; it does not apply to decisions of the PBC.
• [15] I agree with the PBC in that the decision in question has not been made by the executive committee. Rather, motion 30.1 was passed by the PBC in general meeting. As such, prima facie, section 162(1)(c) would not appear to apply. In this respect, Rosebank's application appears to be misconceived.
• [16] Rosebank also submits that section 163(1)(c) of the IRD Act requires the executive committee not to undertake expenditure unless "consented to by such persons entitled to vote at a general meeting of the principal body corporate who represent an aggregate lot entitlement of not less than 75% of the aggregate of all lot entitlements recorded in the principal body corporate roll". As motion 30.1 was consented to by only 56.47% of persons entitled to vote, this does not appear to have satisfied the requirements under section 163(1)(c).
• [17] The PBC submits that section 163 of the IRD Act again deals with restrictions on executive committee spending but the spending involved here, by entering into the agreement with Metered Energy, was not done by the committee. Rather, it was expenditure authorised by the PBC at the 2025 AGM, and the committee simply implemented that resolution.
• [18] Section 163 of the IRD Act must be read in context. I will provide the section in full below:

163 Statutory restrictions on powers of executive committee

(a) otherwise determined pursuant to a special resolution of the principal body corporate; or

(c) consented to by such persons entitled to vote at a general meeting of the principal body corporate who represent an aggregate lot entitlement of not less than 75% of the aggregate of all lot entitlements recorded in the principal body corporate roll;

the executive committee shall not undertake expenditure.

(2) In respect of any proposed expenditure which, under subsection (1), the executive committee is not entitled to undertake the executive committee shall -

(a) submit the proposal for determination at an extraordinary general meeting of the principal body corporate convened for the purpose of, or for purposes which include, consideration of the proposal; and

(b) if the proposed expenditure is in respect of work to be performed or the purchase of personal property - submit at least 2 tenders to that meeting with the proposal.

(3) Subsection (1) does not apply to the expenditure of moneys -

(a) in payment of any premium of insurance effected by or on behalf of the principal body corporate; or

(b) to comply with a notice or order served on the principal body corporate by any public authority or local government; or

(c) in discharge of any liability incurred in respect of an obligation of the principal body corporate authorised by the principal body corporate in general meeting. (underlining mine)

• [19] I have not received a copy of the 2025 AGM minutes, however based on the information provided by parties, it appears undisputed that motion 30.1 was passed by ordinary resolution. The motion was not passed by special resolution nor by persons representing an aggregate lot entitlement of not less than 75% of the aggregate of all lot entitlements. However, in my preliminary view, section 163(1) also does not apply.
• [20] Section 163(3)(c) expressly states that subsection (1) does not apply to the expenditure of moneys in discharge of any liability incurred in respect of an obligation of the PBC authorised by the PBC in general meeting. There appears to be a distinction here between the power of the executive committee to authorise and incur expenditure, and the power of the PBC in general meeting to authorise expenditure. Where the latter has occurred, as in this case pursuant to motion 30.1, then by virtue of section 163(3)(c) the committee is empowered to spend that money which has been authorised. I note this was the position adopted in The Royal Pines Resort Principal Body Corporate v Body Corporate for Lakeview GTP 107121 (unreported) in which Magistrate Magee states:

[10] I do not consider there to be any ambiguity in the wording of s 163(3)(c). It clearly

contemplates the principal body corporate in general meeting authorising the body

corporate to incur a liability. This is to be distinguished from (and this distinction is

made clear by s163) the executive committee authorising expenditure not approved

by the principal body corporate at an annual general meeting. If the executive

committee seeks to incur such expenditure it must then comply with the provisions

• [21] The PBC also submits that there is no serious legal question to be determined as the applicant has not identified what the PBC has failed to perform under the IRD Act. It argues that quite the opposite, the PBC has exercised a power under section 148(c) to enter into an agreement for the provision of amenities or services by it or another person to any lot, proprietor, occupier or subsidiary body corporate (such as the applicant). The PBC says that just because the applicant is not agreeable with the decision of the PBC does not mean that the PBC has failed to perform something under the IRD Act. It asserts that all of the arguments raised by the applicant are misconceived and seeks dismissal of the interim orders.
• [22] On the present material, I too am unable to see what contravention of the IRD Act is alleged by the applicant. In the circumstances, for the reasons given above, I am not satisfied the application for interim orders raises a serious legal issue for determination.

• [23] Rosebank submits that if a contract is signed with Metered Energy, this will incur a significant cost to the Hope Island Resort of approximately $143,000 per annum compared against a current cost of $15,000 per annum (associated with water billing processes). Rosebank considers it an unnecessary and unreasonable cost impost compared with other alternatives.
• [24] I am advised by the PBC that on 29 August 2025, the committee executed the agreement with Metered Energy in accordance with the resolution as passed.[4] As the agreement has already been signed, it is too late to consider the first interim order sought. The PBC says it would be in breach of the agreement if I were to restrain it from taking any further steps to implement the signed agreement. Any potential 'harm' (which the PBC denies) has, in essence, already been realised by the signing of the agreement which Metered Energy is entitled to rely on. I see no reason to restrain the PBC from proceeding further with the contract, particularly in circumstances where prima facie, it appears the agreement has been authorised in good faith by the PBC in compliance with the relevant statutory provisions.
• [25] In relation to Interim Order (2), that the PBC be ordered to accept voluntary 'interim' payments from lot owners, the PBC says this is not an order within the power of a referee to make under section 77 of the BUGT Act. It submits that granting such an order could have unforeseen legal consequences for any prior or future charges for water consumption issued by the PBC. While it is unclear to me what potential legal consequences may arise, I am not satisfied there is any purpose to be served by ordering the PBC to accept interim payments. The applicant has not demonstrated that such an interim order is necessary to prevent any serious or irreparable harm nor is it clear what the legal basis is for such an order. As the PBC has indicated, Rosebank (or any of its proprietors) can choose to make voluntary payments to the PBC at any time.

• [26] I am not satisfied the circumstances warrant interim orders. At present, I also see very little merit to the final orders sought. If Rosebank still intends to proceed with application for final orders, I will determine this after the invitation of submissions from all affected parties.

[1] Rosebank [2020] QBCCMCmr 450

[2] See sections 325(2)(a) & 326 of the Body Corporate and Community Management Act 1997 (the BCCM Act)

[4] A copy of the signed agreement has been provided with the PBC submission.