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austlii:qld/QBCCMCmr/2026/94
General information, not legal advice.
QBCCMCmr
2026-03-27
Original judgment source is linked above.
Hope Island Resort Principal Body Corporate [2026] QBCCMCmr 94
Fairway Residential Body Corporate (respondents)
Section 77 of the Building Units and Group Titles Act 1980 (Qld) (BUGT Act); Section 179A of the Integrated Resort Development Act 1987 (Qld) (IRD Act)
MAINTENCE - where it is claimed that the Principal body corporate failed to maintain a water meter located on common property and as a result the applicant was overcharged for water usage - whether the body corporate failed to comply with its statutory obligations and thereby caused the applicant to suffer financial loss.
BREACH OF IRDA - Whether a breach of Integrated Report Development Act may be dealt with Section 77 Building Units and Group Titles Act , pursuant to Section 179A of IRDA.
Integrated Resort Development Act 1987 (IRDA) 179A, 151
[1] The applicant is the owner of lot 81 in Fairway Island Residential Body Corporate (RBC) GTP107328, which is part of the Hope Island Resort Principal Body Corporate (PBC).
[2] The applicant seeks orders under the Building Units and Group Titles Act 1980 (BUGTA) against both the Principal Body Corporate (PBC) and the Residential Body Corporate (RBC).
[3] The applicant seeks the following final outcomes:
a) Order 1 - Compensation for Failure to Maintain Common Property
He seeks an order that under BUGTA and PBC By‑law 4.01(f), the PBC must compensate him for overcharges caused by its failure to maintain the faulty meter, which was replaced on 11 Feb 2025.
The second order sought is that the PBC and RBC be ordered, under the Building Units and Group Titles Act 1980 (Qld), PBC By-law 4.01(f), and RBC By-laws 7.4-7.6 (maintenance and utility management) and 11.1-11.8 (fair and accurate administration of accounts and charges, to:
That the PBC and RBC be ordered, under the Building Units and Group Titles Act 1980 (Qld), PBC By-law 4.01(f), and RBC By-law 12.1, to jointly adopt and circulate a Water Management and Loss Policy that outlines:
• Responsibilities for meter maintenance and reading accuracy.
• Procedures distinguishing a faulty meter from a concealed leak.
• The process for billing adjustments and communication with lot owners.
[4] The applicant says that between October 2022 and February 2025, he was overcharged for water usage at his lot within the Hope Island Resort due to a faulty water meter connected to his lot. The water meter was owned and maintained by the Principal Body Corporate (PBC), and he seeks compensation and changes to administrative processes.
[5] The Principal Body Corporate (PBC) holds the master water account with GCCC and is responsible for maintenance and replacement of all meters on common property.
[6] Meter reading and billing is performed by a contractor, Metered Energy, on behalf of the PBC. The RBCs then on‑charge lot owners.
[7] The applicant says that in in October 2022, the GCCC and the PBC had a meeting regarding a proposal by the PBC that the GCCC take back responsibility for water supply within the Hope Island resort. The request was refused by GCCC based on cost implications to GCCC including administration of meter reading and the cost of replacing old water meters reaching their end of life.
[8] He further states that the GCCC advised, inter alia, that:
In accordance with the City's Concealed Leakage Remission Policy, Community Title Schemes
with lot entitlements are only eligible for leak remission when the Body Corporate makes the
application. Under this scenario, the minimum threshold for relief (based on leak volume) is
increased directly in proportion to the number of the residents in the scheme. Where there are
private sub-meters that are read by the Body Corporate, a resident who has an on-lot leak after
their meter becomes responsible for the entire cost of the leak. It is incumbent on the resident to
request the Body Corporate make application for remission to the city on their behalf. As there
is minimum threshold for relief based on leak volume and a limit of one remission per three year
period, a Body Corporate may choose not to make a remission application, instead
choosing to keep the option available should another larger leak occur.
[9] Therefore, the Principal Body Corporate (PBC) holds the master water account with GCCC and is responsible for billing and meter reading as well as maintenance and replacement of all meters on common property.
[10] The applicant says that a number of systemic issues have been identified regarding water distribution including recurring variances in meter readings and billing.
[11] In April 2025, the PBC engaged Grace Lawyers to review their billing mode. In their advice, they advised that:
The current process for water billing is inconsistent with the way funds are to be raised to
meet liabilities of the PBC under the Integrated Report Development Act 1987 (Qld) (IRDA)
[12] In a management letter dated May 2025, the PBC auditors advised that Water On- charging and Accuracy was a 'critical' issue for attention. The audit letter which went on to state:
A review of water charges encompassing the accuracy of the water meters and the
appropriateness of the billing entity is currently under investigation within Hope Island Resort.
This investigation includes consultation with the PTBC, sub schemes and legal advice being
sought on the water recovery billing process. This review was still ongoing at the time of the
audit
[13] At the 2025 AGM of the PBC, it was resolved that Metered Energy Holdings Pty. Ltd. (Metered Energy) would take over responsibility for water meter reading and invoicing, as well as dispute resolution. Metered Energy assumed responsibility for these functions from 1 November 2025.
[14] The applicant says the current dispute relates solely to the applicant's financial loss arising from over-charging due to a faulty PBC-owned water meter and not to any concealed leak. He says the Lot 81 water meter was faulty, causing inflated water‑usage readings until its replacement on 11 February 2025.
[15] The applicant sought reimbursement from the PBC for his overpayment of inflated water‑usage readings. He says he quantified the overpayment based on the previous water invoices average daily rate, compared to the latest invoice, and then reduced the difference by 50% to allow for "a more than reasonable for margin of error". The calculation was $1,899 reduced 50% = $950.
[16] He says the RBC had no discretion to adjust billing because they rely entirely on data supplied by the PBC. Therefore, he directed his complaint to the PBC. However, he says the PBC incorrectly classified the problem as a "concealed leak", instead of "faulty meter" and directed the applicant through the wrong process.
[17] He also says that no corrections were made to either PBC or RBC financial records to account for overcharging.
[18] The applicant seeks the requested orders on the following grounds:
[19] Pursuant to section 73 of the Building Units and Group Titles Act, both respondents - the Hope Island Resort Principal Body Corporate & the Fairway Island Residential Body Corporate were invited to make submissions.
Fairway Island Residential Body Corporate Submission
[20] The Fairway Island Residential Body Corporate (FIRBC) says it acts on behalf of proprietors to implement decisions, liaise with the Primary Body Corporate (PBC), manage fiscal levies, and recover water usage payments until 1 November 2025, when the Metered Energy contract took over. Importantly, FIRBC has no responsibility for providing, maintaining, operating, or controlling water supply infrastructure. This includes valves, meters, leaks, and reticulation systems.
[21] FIRBC has no commercial relationship with the Gold Coast City Council (GCCC) regarding water. Their role in water charges is solely administrative and they issue invoices based on PBC data and remit collected funds to the PBC without any adjustments.
[22] If a proprietor does not pay their water invoice, FI RBC must still pay the PBC.
As a result, FIRBC currently carries several thousand dollars in unpaid water arrears.
[23] FIRBC states that it has no authority to alter or verify water usage amounts and therefore should not bear liability for discrepancies or compensation.
[24] Any directive that impacts FIRBC financially or legally, for issues it does not control or benefit from, would be unfair and unreasonable.
[25] FIRBC maintains that the dispute is fundamentally between the Applicant and the PBC, not the FIRBC.
Hope Island Resort Principal Body Corporate Submission
[26] The PBC says his application should be dismissed for the following reasons:
a) the Referee has no power to hear this dispute.
b) The Dispute is not about obligations under IRDA.
c) There is no factual basis for the Applicant's claim.
[27] It says that (a) pursuant to section 78(1)(c) of BUGTA, the application should be struck out for want of jurisdiction because the referee has no jurisdiction under Part 5 of BUGTA to determine an application brought by a proprietor in a subsidiary body corporate against the PBC.
[28] It also says that pursuant to section 94C of BUGTA, the Applicant pay the PBC $2,000 costs as the application was misconceived and without substance.
PBC says an Adjudicator does not have Power to hear this dispute.
[29] The PBC's primary position is that the application must be struck out because the Referee lacks statutory jurisdiction under the Building Units and Group Titles Act 1980 (BUGTA). It says that the matter cannot lawfully be determined by the Referee.
[30] It is argued that as the Applicant does not own a lot within the PBC parcel, it lacks standing to bring a BUGTA dispute against the PBC.
[31] The respondent notes that section 179A(1) of IRDA provides, relevantly, that a dispute about the operation of IRDA or the rights and obligations of persons under IRDA may be dealt with under Part 5 of BUGTA.
[32] However they say a practical difficulty with section 179A (1) of IRDA is that it seems to refer a broader range of disputes to a referee than a referee has jurisdiction to determine under Part 5 of BUGTA.
[33] Section 179A (1) of IRDA is identical to section 104A (1) of the Sanctuary Cove Resort Act 1985 (SCRA). The respondent says that is important because case law relevant to these submissions deals with section 104A (1) of SCRA and is analogous to the issue before the referee under IRDA.
[34] The PBC says that various decision makers have grappled with the question of whether a referee has jurisdiction to decide an application by proprietor in a subsidiary body corporate against a principal body corporate.
[35] They argue that section 77 of BUGTA does not allow a proprietor in a subsidiary body corporate to bring a dispute against a principal body corporate. A number of authorities are cited to confirm this, including:
Sanctuary Cove Principal Body Corporate [2019] QBCCMCmr 88
Locke v Hope Island Resort PBC (Magistrates Court unreported decision, 15 March 2011)
Sanctuary Cove [2023] QBCCMCmr 241
[36] In Sanctuary Cove Principal Body Corporate [2023] QBCCMCmr 241, the Referee referred to an earlier appeal decision of Acting Magistrate Finger[1] and stated:
[7] Acting Magistrate Finger found no jurisdiction for a proprietor within a subsidiary body corporate to make an application against a principal body corporate under section 77(1) of BUGTA, citing an earlier referee's order as follows:
I consider however that, in interpreting the applicability of section 77(1) of BUGTA, I must adopt the definition in that Act of "body corporate". This definition restricts the "body corporate" against whom an order of a Referee might be made to the body corporate created by registration of the specific building unit plan, and not, the community body corporate for Cathedral Place. Consequently, the orders sought by the applicants against Cathedral Place body corporate cannot be made as BUGTA simply does not contemplate and create jurisdiction for such a dispute.[2]
[37] The PBC says BUGTA does not contemplate layered community schemes (like PBC/RBC structures), and the law has not been updated to permit such disputes. Section 179A (1) of IRDA refers some IRDA disputes to BUGTA but does not expand BUGTA jurisdiction. The respondent says the dispute must still satisfy s77 of BUGTA - which it does not.
[38] The PBC recognises that in the appeal decision of Sanctuary Cove PBC v Nakahara et al [3] Magistrate Magee found that this section allowed the Sanctuary Cove PBC to make an application against the proprietor of a lot within a subsidiary body corporate concerning the enforcement of a residential zone activity by-law. However, it points out that residential zone activity by-laws are created by the principal body corporate under section 96A of the Act to regulate residential zones, and they expressly apply to proprietors of lots within the residential zone, in addition to the members of the principal body corporate. A dispute between parties subject to that section, about the operation of that section, is a dispute about the rights and obligations of persons under the Act and therefore comes within section 104A (1).
[39] Further, the PBC says that even if the IRDA threshold had been met, subsection 179A(1) does not apply because the PBC secondary thoroughfare by‑laws do not impose any maintenance obligations relevant to his claim. Even if the Applicant intended to rely on by-law 5 (which he did not), there is nothing in by-law 5 that imposes a maintenance responsibility on the PBC for the issue alleged by the Applicant.
[40] Secondly, the PBC says the dispute is actually about internal water billing allocations, not IRDA rights or obligations.
[41] The PBC says the water meter that was repaired on 11 February 2025, is not the meter that records the Applicant's own lot consumption, and the Applicant was told this in emails earlier in 2025.
[42] Because his billing is based on his own correctly functioning meter, no overcharging occurred.
[43] The applicant notes that the PBC seeks dismissal of the application on jurisdictional grounds and says the relied-upon by-laws impose no relevant obligations. However, the applicant says those contentions misconceive both the nature of the dispute, and the proper construction of the statutory and by-law framework.
[44] The applicant says that properly characterised, this dispute concerns:
(a) the PBC's exclusive control, maintenance and repair of common infrastructure.
(b) the reasonable administration of that infrastructure and consequences flowing from it &
(c) direct financial loss suffered by the Applicant as a result of a PBC act or omission.
[45] The applicant notes the PBC claim that the referee has no jurisdiction because this is a layered scheme structure and the argument that the above Locke and Sanctuary Cove decisions establish that a proprietor in a subsidiary body corporate, is not entitled to bring a dispute against a principal body corporate under section 77 of BUGTA. However, the applicant says cases such as Locke do not create a blanket exclusion - jurisdiction depends on the nature of the dispute, not who the parties are.
[46] The applicant also says there are prior decisions that support jurisdiction of the Referee when the dispute involves operational matters rather than governance issues. The present dispute does not seek to challenge PBC voting decisions or by-law making. It concerns the performance of an operational function the PBC has exclusively reserved to itself.
[47] The applicant argues that section 77 of the Act permits disputes concerning the exercise, or failure to exercise, a duty or function imposed under the Act in connection with the relevant parcel. Here, the relevant parcel is land comprising the Secondary Thoroughfare on which the water infrastructure is situated and controlled by the PBC. This dispute concerns operational infrastructure, so Part 5 Jurisdiction does exist. Section 179A (1) of IRDA expressly permits such disputes.
[48] Although the PBC says by-law 4.01(f) is only a restriction on owners, not an obligation on PBC, the applicant says the by-law's effect is that owners are prohibited from touching water infrastructure. Therefore, responsibility necessarily falls on the PBC, who holds exclusive control, exclusive access and exclusive authority to repair.
[49] The applicant says the PBC's own action of paying for the meter replacement confirm this responsibility. Any alternative interpretation would leave infrastructure with no responsible entity, which is legally untenable.
[50] FIRBC's submissions confirm that it has no responsibility for the provision, control, maintenance or operation of water services and acts solely as a pass-through entity for values supplied by the PBC. Those concessions confirm that responsibility for meter integrity, fault management and adjustment decisions rests exclusively with the PBC. The Applicant does not seek any adverse order against FI RBC. Any adjustment or compensation may be directed to the PBC, with FIRBC acting administratively as required.
[51] The Integrated Resort Development Act 1987 (IRDA) is defined as a 'specified act' under section 326 of the Body Corporate and Community Management Act 1997 (Qld) (the BCCMA). Section 325(2)(a) of the BCCMA provides that the BUGTA continue to apply to building units plans registered under the Act for a specified Act.
[52] The applicant's dispute relates to a faulty water meter, replaced on 11 February 2025, which he says, caused inflated water charges to be billed to him for the preceding 2 years.
[53] He says that he has calculated his "overpayment" by comparing previous water invoices showing the average daily usage rate over a two-year period, to the daily rate appearing in the first invoice issued. He further states that he has reduced the difference by 50%, which he says, is a more than reasonable for margin of error. His calculation is $1,899 reduced by 50% is $950.[4]
[54] The applicant seeks an order that under BUGTA and PBC By‑law 4.01(f), that the PBC compensate him for what he says are excess charges caused by its failure to maintain the faulty meter, which was replaced on 11 Feb 2025. He says that although the excess water charges are attributable to a faulty PBC‑owned water meter, the PBC incorrectly treated the issue as a concealed leak, which prevented appropriate financial adjustment.
[55] The applicant also seeks an order that the PBC and RBC adopt a Water Management and Loss Policy that outlines:
(a) Responsibilities for meter maintenance and reading accuracy,
(b) Procedures distinguishing a faulty meter from a concealed leak and
(c) the process for billing adjustments.
[56] In order to succeed in his claim for reimbursement of $900, the applicant must establish the following:
(a) Whether a referee has jurisdiction under Part 5 of BUGTA to determine an application brought by a proprietor in a subsidiary body corporate against the PBC. In other words, does the applicant have standing to bring a BUGTA dispute against the PBC when the Applicant does not own a lot within the PBC parcel.
(b) Whether the PBC had an obligation - statutory or otherwise to maintain the water meters, which are located on PBC land, and
(c) Whether it failed to comply with that obligation, and that failure resulted in the loss claimed by the applicant.
[57] Section 179A of the Integrated Resort Development Act 1987 (IRDA) provides as follows:
179A Dealing with particular disputes under Building Units and Group Titles Act 1980
(1) Subject to subsection (2), a dispute about the operation of this Act or the rights and obligations of persons under this Act may be dealt with under the Building Units and Group Titles Act 1980, part 5.
(a) does not apply to a dispute or matter mentioned in section 175W, 175X or 179B; and
(b) is subject to section 179C.
[58] Part 5, division 3 BUGTA makes provision for orders by a referee.
77 General Powers of Referees to make orders.
(1) A referee may, pursuant to an application of a body corporate, a body corporate manager, a proprietor, a person having an estate or interest in a lot or an occupier of a lot in respect of a parcel, make an order on any person entitled to make an application under this subsection or on the chairperson, secretary or treasurer of the body corporate 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 in connection with that parcel.
(a) requires a party to the dispute before the referee to pay money not exceeding the sum of $1,000 to a person specified in the order; or
(b) requires a party to the dispute before the referee to do, or refrain from doing, some specified act to which the application relates.
(c) strikes out for want of jurisdiction the dispute before the referee.
[60] Section 151 of the Integrated Resort Development Act 1987 (IRDA) provides as follows:
(a) control, manage and administer the secondary thoroughfare for the benefit of its members; &
(b) properly maintain and keep in a state of good and serviceable repair -
(i) the secondary thoroughfare, including any improvements thereon; and
[61] The Hope Island Resort Secondary Thoroughfare By-laws include the following:
These by-laws shall extend and apply to the control, management and administration.
by the PBC of that part of the Site designated as Secondary Thoroughfare.
5.01 The PTBC shall be entitled by its representatives to install a water meter in or on the Secondary Thoroughfare for the purposes of measuring water consumption by the PBC.
5.02 The PBC will be responsible to repair at the cost of the PBC any damage, howsoever caused, to any water meter installed pursuant to by-law 5.01. Failure by the PBC to repair a water meter will entitle the PTBC to repair the water meter at the cost of the PBC, which cost may be recovered as a liquidated debt.
[62] It is evident that the PBC holds the main water account with Gold Coast City Council (GCCC), pays it, and then recovers costs from RBCs. The applicant says all water meters across Hope Island are on PBC land and the PBC is responsible for maintaining and replacing all water meters (except the "Links" RBC).
[63] The applicant says that at a meeting with the PBC in 2022, the GCCC confirmed that the GCCC would not retake responsibility for metering due to cost. Therefore, the current billing system involves:
[64] The applicant has provided video evidence showing his water meter pit filled with water and says that water was leaking through the glass face on the water meter. He has also provided the following table:
[65] The applicant says that in the period of approximately 2.5 years before then replacement of the meter, his recorded water usage was .78 Kl per day. However in the 42 day period after the new water meter was installed (11/2/25), he says his daily water usage has been .46 kilolitres per day, which is a 41% reduction in daily usage.
[66] I note that in email correspondence with the applicant, the body corporate manager has made a number of statements which include the following:
There has not been an over charge, the reads that are charged to your property are reads that are taken from your water meter with relation to water that has travelled through your meter and been used within your property boundary, and
If the water meter is leaking on the nature strip/before your water meter, this water is not travelling through the water meter, therefore is not being recorded as usage through your water meter. The meter located on your lot was leaking before the meter and therefore, the leak was not recorded through your water meter.
(a) the PBC exercised exclusive control over the meter which is located on the secondary thoroughfare
(b) the PBC authorised and paid for the meter replacement.
(c) abnormal consumption was recorded prior to replacement of the meter; and
(d) consumption materially reduced following replacement.
[68] I am of the view that in appropriate circumstances, an evidentiary inference can be drawn from established or proven facts, to reach a conclusion about a "fact in issue".[5]
[69] The applicant has provided video evidence of water leaking through the glass face on the water meter, and his water meter pit filled with water. In the circumstances I believe it is reasonable to infer that where a faulty water meter is repaired, and recorded consumption immediately normalises, the abnormal recorded usage may be attributed to the faulty meter.
[70] Section 151 of the Integrated Resort Development Act 1987 (IRDA) provides as follows:
(a) control, manage and administer the secondary thoroughfare for the benefit of its members; &
(b) properly maintain and keep in a state of good and serviceable repair -
(i) the secondary thoroughfare, including any improvements thereon; and
[71] I am of the view that the PBC has an obligation to maintain essential utility infrastructure including the repair and maintenance of water meters. A construction that denies any maintenance responsibility on the PBC would leave essential utility infrastructure with no responsible entity.
Jurisdiction under Section 179A (1) of IRDA & Section 77 of BUGTA
[72] The next question for consideration is whether a referee has jurisdiction to decide an application by proprietor in a subsidiary body corporate against a principal body corporate.
[73] Section 179A(1) of IRDA provides that disputes 'may' be dealt with under Part 5 of BUGTA which the respondent takes to mean that some disputes may not be dealt with under Part 5 of BUGTA because, for example, a referee may not have jurisdiction.
[74] The legislative framework regulating bodies corporate established under Integrated Resort Development Act is not straightforward and quite complex. It is true that various decision makers, including Referees and Magistrates, have grappled with the question of whether a referee has jurisdiction to decide a dispute resolution application by proprietor in a subsidiary body corporate, against a principal body corporate.
[75] The Respondent has referred to the following decisions to claim a lack of jurisdiction:
Sanctuary Cove Principal Body Corporate [2019] QBCCMCmr 88
Locke v Hope Island Resort PBC (Magistrates Court unreported decision, 15 March 2011)
Sanctuary Cove [2023] QBCCMCmr 241
[76] Clearly, those decisions have adopted the position that:
(a) a proprietor in a subsidiary body corporate has standing only in relation to the body corporate of the parcel in which they own a lot (not the PBC) and
(b) section 179A of IRDA does not expand a referee's powers under section 77(1) of BUGTA.
[77] However, more recently Magistrates,[6] have adopted the view that the owner of a lot in a residential zone body corporate may make a direct application against the principal body corporate.
[78] In the decision of Sanctuary Cove PBC v Nakahara et al (unreported decision, 12 February 2020). [7] Magistrate Magee stated:
[26] Part 5 BUGTA empowers referees to decide disputes under "the Act." Essentially the referee decided that for the referee to have jurisdiction the dispute must come within the ambit of both s.104A(1) SCRA and s. 77 BUGTA. It is difficult to understand how this could be so, given that s.77 BUGTA is limited to disputes about powers, authorities, duties and functions under "the Act" i.e., the Building Units and Group Titles Act, unless the effect of s.104A(1) SCRA is to expand "the Act" in s.77 to include SCRA.[8]
[79] In the appeal decision of Warren v Hope Island Resort PBC (QMC, unreported, Bentley, 2461-24, 2 May 2024)[9] the Tribunal stated:
8. As stated above, the Referee queried whether he had jurisdiction to make the orders sought by the appellant due to the fact that the appellant was a holder of a lot in a subsidiary body corporate which was not the respondent.
Duties and powers of body corporate regarding property etc.
a. control, manage and administer the common property for the benefit of the proprietors; and
b. where reasonably practicable, establish and maintain suitable lawns and gardens on the common property; and
c. subject to section 37A, properly maintain and keep in a state of good and serviceable repair (including, where reasonably necessary, renew or replace the whole or part thereof)-
10. The Hope Island Resort Principal Body Corporate is governed by IRDA. Section 179A of that Act provides that a dispute about the operation of this Act or the rights and obligations of persons under the Act may be dealt with under BUGTA.
11. Part 5 BUGTA sets out the procedures to be followed in relation to disputes arising
12. Pursuant to s 77 BUGTA a body corporate, a body corporate manager, a proprietor or a person having an estate of interest in a lot or an occupier of a lot in respect of a parcel, may apply to the referee for orders.
13. Section 7 BUGTA defines parcel as the land comprised in a plan and plan means a
14. A referee may order a body corporate, a body corporate manager, a proprietor, a
person having an estate or interest in a lot or an occupier of a lot to do, or to refrain.
from doing, a specified act with respect to a parcel - s 75(3) BUGTA.
15. Section 78(1)(b) empowers a referee to require a party to a dispute before the
referee to do, or refrain from doing, some specified act to which the application.
16. I can see no bar to the appellant seeking orders against the principal body corporate.
17. The appellant is a person having an estate or interest in a lot and therefore may bring
an apply to the referee for orders under s 77 BUGTA.
18. The respondent is an entity in respect of which the referee may make orders under s
19. I am satisfied that the referee had jurisdiction to decide the application and that I, pursuant to s106 BUGTA, have jurisdiction to hear the appeal of that decision.
[81] Finally, I turn to what orders should be made.
[82] Section 179A of IRDA 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 the Building Units and Group Titles Act 1980, part 5. The PBC is required to maintain the water meter.
[83] Section 77(1) of BUGTA relevantly provides that a referee may, .... make an order ...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 in connection with that parcel.
[84] In the decision of Sanctuary Cove PBC v Nakahara et al (unreported decision, 12 February 2020). [10] Magistrate Magee considered the operation of section 104A(1) of the Sanctuary Cove Resort Act which is identical to section 179A(1) of IRDA.
[85] Magistrate Magee found that A dispute about the operation of the SCRA or the rights and obligations of persons under the SCRA may be dealt with under the BUGTA, part 5. At paragraphs [26] and [27] the learned magistrate stated:
[26] Part 5 BUGTA empowers referees to decide disputes under "the Act." Essentially the referee decided that for the referee to have jurisdiction the dispute must come within the ambit of both s.104A(1) SCRA and s.77 BUGTA. It is difficult to understand how this could be so, given that s.77 BUGTA is limited to disputes about powers, authorities, duties and functions under "the Act" i.e., the Building Units and Group Titles Act, unless the effect of s.104A(1) SCRA is to expand "the Act" in s.77 to include SCRA.
[27] The provision conferring jurisdiction on the referee for the disputes under SCRA is s. s.104A(1) SCRA. If the dispute comes within that provision referee is empowered to resolve the dispute. It is improper to curtail the ambit of the referee's jurisdiction with reference to s.77 BUGTA.
[86] I am of the view that on a balance of probabilities the water meter servicing the applicant's lot was faulty and that he was overcharged for water consumption in the period prior to replacement of the water meter on 11 Feb 2025. Further this was due to a defective water meter which the PBC was required to maintain.
Within 30 days of the date of this Order the Hope Island Resort Principal Body Corporate is to reimburse the applicant the sum of $900 in settlement of his claim that he was overcharged for water usage as a result of a faulty water meter that the PBC is required to maintain.
[88] I note that the applicant seeks a number of other orders including:
[89] However I do not believe that I am empowered to make such orders under s.77 of BUGTA , which provides the general dispute resolution power of Referees.
[90] The powers of Referees under subsection 77(1) of BUGTA are restricted to determination of disputes. Therefore, there is an initial requirement that there must be evidence that a dispute exists with respect to a particular matter.
[91] Secondly, the dispute must relate to the exercise of power, authority, duty or function conferred or imposed by the Act.
[92] Thirdly, subsection 77(2) provides that where a body corporate has a discretion as to whether or not it exercises or performs a power, authority, duty or function conferred or imposed on it by the Act, it shall be deemed to have refused or failed to exercise or perform that power, authority, duty or function only if it has decided not to exercise or perform that power, authority, duty or function.
[93] As far as I can see, there is no requirement under either the legislation, or the by-laws, to adopt a Water Management and Loss Policy. Perhaps the applicant could submit a motion to the body corporate suggesting the adoption of such a policy, and if the proposal is rejected, a dispute may arise if he considers that the decision was unreasonable.
[94] The request for an order that the bodies corporate correct their financial records to show prior overcharging is very broad. Further, given that it is impossible to calculate such amounts with any specificity, I do not propose to make further orders in this regard.
[1] Lock v Hope Island Resort Principal Body Corporate, per Acting Magistrate Finger SOUT-MAG-00160737/10(7), unreported decision, 15 March 2011.
[2] Cathedral Place [2006] QBCCMCmr 360.
[3] MAG-0056211/19(5), unreported decision, 12 February 2020.
[4] Note that section 78 of BUGTA provides that a referee may order a party to a dispute to pay an amount not exceeding $1,000 to a specified person. This means that in making a monetary order, the jurisdiction of the Referee is limited to $1,000.
[5] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at [6].
[6] See for example Warren v Hope Island Resort PBC (QMC, unreported, Bentley, 2461-24, 2 May 2024)
[8] This is apart from the application of s.96A(b) of SCRA regarding regulation of residential zones.
[9] Appeal of Referee's decision in Hope Island Resort Principal Body Corporate [2023] QBCCMCmr 442