//
austlii:qld/QBCCMCmr/2026/82
General information, not legal advice.
QBCCMCmr
2026-03-16
Original judgment source is linked above.
PRIVATE NUISANCE - PUBLIC NUISANCE - UNREASOBALE INTERFERENCE - STANDING - INVESTIGATION BY ADJUDICATOR - EVIDENCE - BURDEN OF PROOF - QUIA TIMET INJUNCTION
A lot owner allegedly caused nuisance and unreasonable interference to others' use of lots and common property, and damaged common property. The questions are whether the alleged conduct could amount to private nuisance, public nuisance or unreasonable interference.
The body corporate is the only applicant. The question is whether the body corporate has standing to apply orders to remedy harm to others.
BCCM Act s 167(1)(a) private nuisance requires proof of 'substantial' interference whereas s 167(1)(b) unreasonable interference does not. The question is what is the implication of that 'lack of substantiality'.
The respondent did not make a submission in response to the application. The question is whether the adjudicator should draw an adverse inference from their lack of a denial.
The applicant did not file evidence for some of the allegations. The question is whether an adjudicator is obliged to invite evidence from the applicant.
The applicant sought declarations. The question is whether a declaration would have any utility in the circumstances. The applicant also sought injunctions to restrain the conduct, where the conduct had not continued. The question is whether a quia timet injunction is warranted where the likelihood of a further contravention is possibly low.
The body corporate sought orders to restrict the form of the respondent's communications with the body corporate. The question is whether an adjudicator has power to make such an order.
Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53
In the course of reviewing the statement of my reasons issued 16 March 2026, I noted certain typographical errors, now corrected herein. The orders and substantive reasons remain unchanged. In particular, I draw attention to para 12, which is now: 'But the obligation to investigate does not require ...'.
[1] The Body Corporate for Il Palazzo CTS 16986 (applicant) alleges Susan Kovacs, the owner and occupier of lot 31 (respondent) harassed, disrupted and communicated offensively with body corporate committee members, caretaking staff, the body corporate manager, and contractors invited onto the scheme. It also says she damaged common property and smoked frequently on her lot or the common property.
[2] The applicant says the respondent thereby contravened s 167 of the Body Corporate and Community Management Act 1997 (Qld) (Act), which prohibits various types of nuisance and hazard. It says the respondent also contravened its by-laws 3 and 5, which prohibit obstruction of and damage to common property, respectively.
[3] The Body Corporate seeks orders declaring the respondent caused nuisance and contravened by-laws, and injunctions restraining the respondent's future conduct in that regard. It also seeks an order restraining the form of the respondent's communications with the body corporate's committee, its contractors and agents.
[4] In summary, I have found two contraventions stemming from one allegation, being of s 167(1)(c), concerning unreasonable interference with the body corporate's use of the common property to provide a system of orderly parking, and of by-law 5, regarding related damage to the common property. However, I have declined to make an order restraining that conduct quia timet, as I am not satisfied it is likely to continue or that it would cause substantial harm if it reoccurred. I have otherwise dismissed the application, on various grounds including that the body corporate does not have standing to apply in relation to disputes with which it is not directly concerned, and otherwise that the alleged contraventions are not made out.
[5] These reasons set out in detail a new reasoning process on the tort of private nuisance adopted in a recent High Court decision,[1] relevant to subs 167(1)(a) nuisance. I also consider how the tort of public nuisance might apply in the context of a community titles scheme, which to my knowledge is novel in this jurisdiction.
[6] Il Palazzo CTS 16986 comprises common property and 42 lots described by the applicant as 'residential'. The body corporate for the scheme is governed by the Act, and its community management statement (CMS) specifies the applicable regulation module to be the Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module).
[7] I am satisfied that the nature of the dispute is within my jurisdiction, that the requested remedies are within my power, and that the applicant, being a body corporate in dispute with an owner and occupier, generally has standing to bring the application against the respondent, albeit subject to some matters discussed below.[2]
NATURAL JUSTICE, INVESTIGATION, EVIDENCE AND BURDEN OF PROOF
[8] This application brings to the fore a number of fundamental issues about the adjudication process, including about whether each party had an adequate opportunity to have their say about the application, whether the respondent's choice not to make a submission proves anything about the allegations, which party is required to produce evidence about the allegations and whether an adjudicator's obligation to investigate an application obliges them to invite a party to provide missing evidence.
[9] Section 269(3)(a) of the Act requires an adjudicator to 'observe natural justice'. The concept of natural justice has no fixed meaning but for present purposes it may be described as including two important requirements. The first is that a person who might be affected by a decision must be allowed a reasonable opportunity to have their say about it: that is sometimes called the Hearing Rule.[3] The second requirement is that, in making their decision, the adjudicator must be reasonably satisfied the allegations underlying the applicant's claim are proven by appropriate evidence.[4]
[10] As to the first requirement, most importantly, a respondent to an adjudication application must be given a copy of the application and be allowed a reasonable opportunity to make a submission in response. In this case, the Commissioner invited the respondent to make a submission, and when none was received by the requested date the Commissioner's delegate contacted the respondent by telephone to ask whether the respondent wished to make a submission. I have reviewed the note of that conversation. The respondent indicated she was aware of the application and I infer from the content and tenor of the conversation that the respondent did not propose to make a substantive submission. After the Commissioner had referred the application for adjudication, I again invited a submission from the respondent. In response, by telephone calls and an email, the respondent indicated that she generally denied the allegations, but without going into detail. In light of that, I am not satisfied the respondent gave the application proper consideration, but I am satisfied that the respondent was given a reasonable opportunity to respond to the allegations and was therefore afforded natural justice.
[11] Section 269(1) of the Act requires an adjudicator to investigate an application before determining it. Natural justice also requires that an applicant be afforded a reasonable opportunity to make their case. The applicant has not provided any evidence in support of some of its claims. That raises the question whether I should have investigated the application further and invited the applicant to provide such evidence.
[12] It has been held that, in the ordinary course, an adjudicator need do no more than ensure the applicant was allowed a reasonable opportunity to make their case, through submissions, and evidence, and to make a submission in reply to any submission made against it.[5] It may be an error of law for an adjudicator to dismiss an application for a lack of evidence without further investigation where evidence was submitted but determined to be inadequate.[6] But the obligation to investigate does not require the adjudicator to invite the applicant to provide evidence where none has been provided and where the party had a reasonable opportunity to present its case as it wished.[7] As Member Roney KC recently put it in the QCAT appeal Choi v The Body Corporate of Macquarie Place CTS 10897, it is not the function of an adjudicator to 'interrogate the records or the parties outside of the material provided to the adjudicator to ascertain whether what parties say is the case, is truly the case'.[8] Even more recently, Member Roney KC said:[9]
Parties usually will be invited to make submissions on any critical issue that might be the basis for determining the matter that has not been identified by the parties themselves. That places the onus on parties to identify the relevant issues and provide supporting evidence and submissions on those issues.
[13] The legislation as it pertains to making an application is not explicit on the point of when an applicant must file its evidence. However, the Act does require an application to be 'made in the approved form'.[10] The approved application form, which was used in this case, clearly states: 'Please attach and refer to documents to support your case. For example: quotes [etc]'. I also note that at the end of that form is a check-box with a statement 'I have attached all the relevant evidence'. The applicant checked that box. I note also that some evidence in support of the application was provided in relation to some of the allegations. The applicant in this case was represented by lawyers, whom the evidence reveals to have been involved in making the application. From all of that, I consider the applicant was on notice, or ought reasonably to have been aware, that it was required to file its evidence when it lodged the application, and further that it had a reasonable opportunity to do so.
[14] Section 269(3)(c) of the Act provides that an adjudicator is not bound by the rules of evidence, which apply to a proceeding in a court. But that is not to say those rules may safely be ignored. Evidence relied upon must be logically probative; if evidence is capable of having any probative value, the decision maker must still consider the weight to give it; and ultimately, to depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force.[11] As to the strength and weight of evidence required in a given case, Dixon J said in the often-cited Briginshaw v Briginshaw ,[12] whether reasonable satisfaction is achieved as to the relevant questions will depend on the nature and consequence of the facts to be proved, the seriousness of an allegation made, the inherent unlikelihood of it occurring, and the gravity of the consequences flowing from a particular finding.
[15] I have noted above that the respondent declined to make submissions on the application. A question therefore arises as to what if any inferences I may draw from that, for example whether I may infer that the lack of a denial or explanation from the respondent constitutes an admission or at least a concession that she had nothing to say which would be helpful to her. Mr KD Dorney QC (as his Honour was then) addressed that issue in Cox v Body Corporate for Grand Pacific Resort, and distilled from the relevant authorities the following:[13]
[16] One of the authorities referred to by Mr Dorney QC, Thomas v Hollier, offers a helpful illustration of those points. Gibbs CJ considered what implications may arise from a respondent's earlier failure to respond to a letter from the applicant asserting the existence of a debt owed by the respondent, and said:[14]
The failure to answer a letter may amount to an admission if there are circumstances which render it more reasonably probable that a man who denied the assertions made against him in the letter would answer those assertions than that he would not..... The letter of 20 July 1982 was written by a solicitor; it enclosed a copy of the acknowledgement executed on 14 February 1982 and threatened the institution of proceedings unless payment was made within seven days. It would have been easy enough for the appellant to have stated that the acknowledgement of his liability did not represent the true facts, if that had been the case, and it is unlikely that he would have allowed the solicitor's assertions to pass unchallenged if they had been erroneous. The appellant's failure to reply to the solicitor's letter is therefore an admission - although perhaps not in itself strong evidence - of its correctness.
[17] His Honour's comment in that last sentence as to the 'strength' of such evidence indicates care ought to be taken as to the weight it is given, paying attention to the circumstances.
[18] Ordinarily, in a civil proceeding before a court, the applicant bears the onus of proving their case.[15] I would add a note of caution that who bears the evidentiary burden in this jurisdiction, and in particular how they can reasonably be expected to go about meeting it, is less clear than in adversarial proceedings before a court. While the adjudication process has adversarial hallmarks, it is primarily inquisitorial,[16] in that the Act obliges the adjudicator to investigate the application.[17] Unlike adversarial civil proceedings in Australian courts, the parties to an adjudication application do not have access to the tools by which parties in court can, in effect, investigate each other's claims. Those tools are such things as orders for discovery and subpoenas to produce or give evidence, and orders to give further and better particulars of the opponent's claims. Further, evidence is not given on oath and, because there is no hearing, a party is unable to cross-examine the other's witnesses.
[19] That said, as the authorities on the adjudicator's obligation to investigate indicate, neither the respondent nor the adjudicator are required fill in gaps in the applicant's claims and submissions to make an arguable case for them, nor to speculate as to the meaning or relevance of unclear submissions, nor to hunt through verbose submissions and voluminous attachments for details and evidence which the applicant ought reasonably be expected to have brought to the fore as central to their case. In short, it is not a job for others to make out a case which is not readily apparent on the face of the materials they choose to provide.
[20] Accordingly, in my view, the better approach to burden of proof in this jurisdiction is for the adjudicator to decide whether they are satisfied of the relevant matters, in view of their obligations to investigate the application and to give the parties reasonable opportunities to present their arguments and evidence, rather than to focus primarily on whether the applicant met the burden of proving their case.
[21] The applicant alleges the respondent has breached s 167 of the Act through conduct described in the submissions[18] by defined terms Chain Smoking, Harassment, Nuisance, and Further Harassment and Nuisance, the details of which are set out below. Section 167 comprises a number of subsection provisions which deal with nuisance in different ways. This application touches on most of those subsections. Accordingly, I will firstly give an overview of the provision and how I understand the subsections interrelate. I will then address in more detail certain decisions which inform the application of those provisions.
167 Nuisances
(1) The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that -
(a) causes a nuisance or hazard; or
(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
(2) Without limiting subsection (1), the occupier contravenes this section if -
(a) the occupier regularly uses, or regularly permits an invitee to use, a smoking product on the lot or the common property of the scheme; and
(b) an occupier of another lot or an invitee of the occupier of the other lot, or a person who is lawfully on the common property, is regularly exposed to the smoke or emission from the smoking product -
(i) in the other lot; or
(ii) on the common property.
[23] I note at this point that s 167 was amended in 2024, to add subs (2). Until then, current subs 167(1)(a) was subs 167(a), current subs 167(1)(b) was subs 167(b), and current subs 167(1)(c) was subs 167(c). That accounts for the differing references in the case law discussed below.
[24] The Act does not define what is meant by the term 'nuisance' for subs 167(1)(a) purposes. At common law, the term 'nuisance' refers to the tort of nuisance, which provides remedies when a person interferes with another person's right to use land.[19] When interpreting and applying subs 167(1)(a) nuisance, courts and adjudicators adopt that meaning.[20]
[25] The tort of nuisance comprises two types: private and public nuisance. A private nuisance arises where a person uses land in a way which causes substantial and unreasonable interference with another person's right of use and enjoyment of their land, for example excessive noise from a residence keeping a nearby neighbour awake at night.[21] A public nuisance arises from conduct which harms the public or a substantial section of it, for example factory emissions harming the people in the surrounding area. Unlike private nuisance, public nuisance is not predicated on the affected persons having an interest in or a right to occupy or exclusively possess the land. Both types of the nuisance tort are discussed in more detail below.
[26] To be clear, however, the use of the legal tests applied for the tort of nuisance does not change the nature of the claim in this jurisdiction; an application made pursuant to subs 167(1)(a) remains a claim based on the statutory prohibition on causing a nuisance. It is not the same as making a civil claim for nuisance. Accordingly, in my view, while adjudicators decide s 167(1)(a) nuisance claims consistently with the law on the tort of nuisance, they may also adapt it so as to have proper regard to the purpose of the Act, the way bodies corporate operate, and the context in which s 167 appears in the Act. That accords with a view expressed by Ambrose J in Platt v Ciriello,[22] suggesting that an action in common law nuisance may be open where one co-owner substantially interferes with another co-owners' use and enjoyment of common property - ie, the private nuisance action is not limited to interference with the use of their lot.
[27] Subsection 167(1)(a) 'hazard' also is not defined in the Act, and so carries its ordinary meaning, being 'a risk' or 'an exposure to danger or harm' or 'the cause of such a risk' or 'a potential source of harm, injury or difficulty', encompassing situations with a potential for harm which has not yet occurred.[23]
[28] Subsection 167(1)(b) prohibits an occupier of a lot using their lot or the common property to interfere unreasonably with the use or enjoyment of another lot.
[29] Subsection 167(1)(c) prohibits an occupier of a lot using their lot or the common property to interfere unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
[30] Subsection 167(2) deals specifically with smoking on a lot or common property. However, because subs (2) explicitly applies without limiting subs (1), smoking may also be dealt with under any one of the s 167(1) provisions.
[31] In practice, there is significant overlap between these various s 167 provisions. The question therefore arises as to how and when each of the various aspects of s 167 might be applied.
[32] In my mind, the question is most easily answered by firstly considering another important question, of who has 'standing', ie a right to seek a remedy for a particular wrong. That question arises both under the Act generally and for s 167 purposes specifically.[24]
[33] The issue arises generally under the Act because s 238 limits the right to make a dispute resolution application to a person who is 'a party to and directly concerned with' the dispute and s 227(1) limits the types of disputes within jurisdiction with reference to types of parties. The requirement to have standing does not necessarily preclude a body corporate from making an application. A directly-concerned person might also be a 'legal person' in the form a of body corporate,[25] and I note also that a body corporate under this Act can sue and be sued in its name.[26]
[34] The question of standing also arises specifically under s 167, because it requires a finding either that a particular person's rights have been interfered with, necessitating that the harmed person is identifiable (and accordingly they will need to be the applicant in the dispute), or that a broad class of persons have been subjected to the conduct, as a public nuisance or hazard.
[35] The question who can sue in a particular instance cannot be answered without considering the nature of the right allegedly interfered with and who can exercise it.[27] For example, a residential lot's occupier uses it for sleeping and uses the common property swimming pool for recreation, but it makes no sense to say that a body corporate, as an incorporeal legal person, has a right to use a lot or the common property in those ways (although its invitee might). By contrast, only a body corporate has a right to use common property for the purpose of maintaining it (for example), but an owner acting by themselves does not.
[36] It has been held that a body corporate does not have standing to sue in private nuisance on behalf of individual owners for interference with the rights associated with their lots; rather, those individuals were required to take their own action.[28] In my view, it follows that a body corporate also cannot sue under s 167 where it is not the directly affected party, with exception for a public nuisance-type case or where the affected party was an invitee who could not have standing due to s 227(1) Act.
[37] In light of the above, and without proposing to be exhaustive or prescriptive for all cases, I consider these are likely to be the appropriate applicants for a dispute about these various circumstances under s 167:
[38] Subs 167(1)(a) nuisance and subs 167(1)(b) and (c) unreasonable interference can overlap in their application, depending on the circumstances. The difference is that a remedy for private nuisance arises only when the interference is 'substantial', whereas subss 167(1)(b) and (c) only explicitly prohibit interference which is unreasonable. The question therefore arises what is the implication of those latter provisions not specifying that the interference must also be 'substantial'?
[39] It has been held (see Miles-QCAT below) that, because s 167(1)(b) does not use the word 'substantial', then s 167(1)(b) unreasonable interference 'does not involve any notion of substantiality'. The same must obviously be said of s 167(1)(c). It is also said that s 167(1)(b) unreasonable interference must therefore encompass conduct less consequential than would satisfy the test for common law nuisance.[29]
[40] In Miles & Anor v Body Corporate for Solarus Residential Community Titles & Ors (Miles-QCAT)[30] a QCAT appeal of an adjudicator's decision on s 167(a) nuisance and s 167(b) unreasonable interference, Senior Member Brown considered the ground of appeal that the adjudicator had fallen into error by conflating the two tests and hence importing a requirement into s 167(b) that the unreasonable interference also be substantial (as required for common law nuisance). The Senior Member noted that s 167(b) 'does not involve any notion of substantiality', but also found that the adjudicator had not applied that concept as part of the test, saying:[31]
The adjudicator does not refer at [35] to any notion of substantiality which could only be relevant to a finding of nuisance. The only reference by the adjudicator to a substantial interference is at [65] of the reasons where he refers to the applicants having "failed to establish the level of interference (with the view) is substantial enough to offend ordinary notions of reasonable standards for the use or enjoyment of Lot 1001". Despite the use of the word "substantial", it is clear from the reasons that the adjudicator was using the word in the context of a finding that the level of interference was within ordinary notions of reasonable standards.
The findings at [65] must also be read in the context of the adjudicator's findings at [64] that the loss of view was minor and that the minor obstruction of the view did not establish a breach of s 167(b) BCCMA. (emphasis added)
[41] In my view, it is clear from that passage that the Senior Member did not find error in the adjudicator's view that s 167(b) interference needed to be something more than minor, even if it could be less than 'substantial'. The Senior Member's decision was affirmed in Queensland's Court of Appeal,[32] wherein their Honours concurred with the Senior Member's view that the adjudicator's consideration of whether the interference was 'minor' was not an impermissible resort to the 'notion of substantiality'. Their Honours characterised the adjudicator's reasoning as a consideration of 'whether the interference was of sufficient consequence in the circumstances - or "sufficient enough" - to meet the test' for s 167(b) purposes. They also confirmed Senior Member Brown's finding that it was not a misapplication of the test.[33]
[42] What then is to be made of Senior Member Brown in Miles-QCAT holding that s 167(b) 'does not involve any notion of substantiality'? I will start by saying that I consider it an error to construe it as meaning that insubstantial interference might therefore be a contravention, for the following reasons.
[43] It seems to me that the word 'substantial' arose as a central issue in Miles-QCAT only because the tort of private nuisance was at the same time (and still is) defined by the elements 'substantial' and 'unreasonable' - and only the latter term appeared explicitly in s 167(b), and now s 167(1)(b). But it should also be noted neither the Senior Member nor their Honours hearing the further appeal were discussing the test for s 167(b) in isolation. Rather, the context for those decisions was consideration of an appeal point that the adjudicator had improperly treated s 167(b) unreasonable interference and s 167(a) nuisance as the same. But I cannot see that either judgment proposed that there was absolutely no threshold above which conduct needed rise in order to be an unreasonable interference. Nor can I see that the Senior Member and their Honours went so far as to say that the de minimis principle (the law does not concern itself with trifles) does not apply to unreasonable interference.
[44] For s 167(b), the next question is what does 'unreasonable' interference mean. Firstly, I suggest there is no reason to say that private nuisance and s 167(1)(b) employ the word 'unreasonable' differently. Indeed, President Wilson (as he then was) in Norbury v Hogan[34] addressed the 'unreasonable interference' requirement in subss 167(a) and (b) as if, to that extent, they involved the same test, and that later drew apparent approval from the Court of Appeal hearing the appeal[35] of Miles-QCAT. President Wilson held that unreasonable interference "needs to be an inconvenience that materially interferes with the ordinary notions of a 'plain and sober' person, and not merely the 'elegant or dainty' habits of the complainant'". Further, authorities on common law nuisance sometimes subsume the question of whether interference was substantial into the question of whether it was unreasonable, including by considering the extent of the interference.[36] As Gageler CJ notes in Hunt Leather v Transport for NSW (Hunt Leather),[37] 'what is reasonable in the context of private nuisance is incapable of abstract definition and turns on a consideration of the totality of the circumstances'.[38] (The decision is discussed in detail, below) The Chief Justice also noted that Lord Wright had referred to the 'gist' of the action for private nuisance expressed in Sedleigh-Denfield as 'the unreasonable and unjustified interference by the defendant in the user of his land with the plaintiff's right to enjoy his property',[39] ie without reference to substantiality. Gageler CJ in Hunt Leather went on to refer to other leading authorities on the question of what constitutes unreasonable interference:[40]
Another way of describing an interference with use and enjoyment of land that is "unreasonable" is accordingly as: an interference that is "unacceptable in the sense of being so objectively bothersome to another that the other is not expected to put up with the bother"; or an interference that is "greater than he ought to be required to bear under the circumstances, at least without compensation".
[emphasis added; citations omitted]
[45] In Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford, Carmody J and Senior Member Brown, while commenting that s 167(1)(b) unreasonable interference 'is something less than would satisfy the test for nuisance',[41] nonetheless then immediately also set out the following passage from the WA Supreme Court of Appeal decision Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (also referred to by Gageler CJ in Hunt Leather with approval) as to the meaning of unreasonable interference:[42]
In making a judgment as to whether interference is unreasonable, regard is had to a variety of factors including the nature and extent of the harm or interference .... the hypersensitivity (if any) of the user or use of the plaintiff's land, the nature of established uses in the locality, whether all reasonable precautions were taken to minimise any interference, and the type of damage suffered.
[46] If relevant factors include the materiality, nature and extent of the interference and the complainant's hypersensitivity (if any), and whether the conduct was too bothersome or greater than ought to be put up with, then it would surely be a rare case that objectively little or no interference with the complainant, from an otherwise lawful act, would still amount to unlawful unreasonable interference. The Court of Appeal, in hearing the appeal of Miles-QCAT, suggested 'interference which did not rise to the level of being substantial might nonetheless be unreasonable if, for example, it had no purpose but to annoy'.[43] But to extrapolate from that and conclude that a person may apply for orders about a 'dispute' concerning conduct having no significant consequence for them, merely because the respondent acted with an improper motive, begs the question whether it is an appropriate use of taxpayers' money to entertain an application to 'resolve' it. To decide otherwise would also be inconsistent with an adjudicator's power to dismiss an application for being frivolous.[44] Further, it is no light thing to make an enforceable order to restrain someone from engaging in what is otherwise lawful conduct.
[47] In my view, it cannot be the purpose of subss 167(1)(b) and (c) to empower an adjudicator to grant an injunction for conduct which is otherwise lawful and which causes barely any harm, or carries no significant risk of harm, for another person or property.
[48] I will next discuss the particular subsections and some of the relevant case law.
s 167(1)(a) private nuisance and the recent Hunt Leather decision
[49] As I noted above, nuisance for s 167(1)(a) purposes is not defined in the Act and therefore it is commonly held to have the same meaning as for the tort of nuisance, itself comprising private and public nuisance. I will firstly discuss private nuisance and the way the relevant issues were dealt with in two recent decisions in Australia and the UK.
[50] Private nuisance concerns interference with a right to use land. It has long been settled that the ultimate purpose of the tort of private nuisance is to balance a plaintiff's right to use their land with the right of a defendant to use their land.[45] Bramwell B in the often-cited English case Bamford v Turnley (Bamford) described it as 'a rule of give and take, live and let live.'[46]
[51] The test for private nuisance has typically been expressed as requiring proof of substantial and unreasonable interference with the plaintiff's use and enjoyment of their land. However, while continuing to hold to that general view of the purpose of private nuisance, the recent High Court decision in Hunt Leather adopts a different expression of the reasoning process, in response to a UK decision (Fearn, discussed below) which does the same. It follows that these decisions have implications for deciding s 167(1)(a) nuisance cases in this jurisdiction.
[52] The applicants in Hunt Leather had business premises in the vicinity of long-running construction works for the Sydney Light Rail public transport infrastructure. Efforts to minimise the disruption to local residents and businesses had been found by a court below to be a 'complete failure'. The applicants alleged private nuisance due to interference with the use of their premises to conduct business. The High Court unanimously upheld their appeal of the dismissal of their application, but their Honours were divided as to what is now the preferred expression of the test for private nuisance.
[53] Of the five judges hearing the appeal in Hunt Leather, Gageler CJ and Jago J applied the formulation which, at the time, was the settled expression of the test for private nuisance in Australia and other common law jurisdictions. That test required the court to be satisfied of 'substantial' and 'unreasonable' interference with the plaintiff's use of their land, unreasonableness being assessed objectively in all of the circumstances with reference to the interests of both parties and the ordinary usages of the place and time.[47]
[54] However, the joint judgment of Gordon and Edelman JJ and the separate but largely concurring judgment of Beech-Jones J adopted a new expression of the test, following a recent majority decision in the Supreme Court of the United Kingdom in Fearn v Board of Trustees of the Tate Gallery (Fearn).[48] For convenience I will refer to the reasons of Gordon, Edelman and Beech-Jones JJ as the Hunt Leather majority (as to the expression of the private nuisance test, rather than the ultimate outcome).
[55] In Fearn, the majority arrived at the revised expression of the test by returning to a key passage in a seminal decision on private nuisance, being Baron Bramwell's reasons in Bamford:[49]
There must be, then, some principle on which such cases must be excepted. It seems to me that that principle may be deduced from the character of these cases, and is this, viz, that those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action.
[emphasis added]
[56] The revised expression of the test for private nuisance therefore requires proof that the defendant's use of their land caused a substantial interference with a plaintiff's ordinary use or enjoyment of their land and the defendant's use of their land was for a purpose which was not common and ordinary, or otherwise that the defendant's use (while common and ordinary), was not 'conveniently done'.[50] The various aspects of this test are discussed in more detail below.
[57] Despite the division of views in the Australian and UK courts over the preferred expression of the test, it remains common ground that the ultimate purpose of the test is to balance a plaintiff's right to use land with the liberties of a defendant to use their land.[51] Gordon and Edelman JJ in Hunt Leather expand upon that:[52]
That justification involves a reciprocal concern with the reasonably expected purposes and means of use in a locality, which in turn are determined by what purposes and means of use are "ordinary" or reasonably expected in the locality in which the plaintiff and defendant reside. A plaintiff will be expected to put up with substantial interference with their enjoyment of land if the purpose of the plaintiff's enjoyment is not common and ordinary. Equally, a defendant will not be liable for a use of land for a purpose that is common and ordinary and by means that are convenient.
[58] Lord Leggat in Fearn explains the same point in this way:[53]
This principle of reciprocity explains the priority given by the law of nuisance to the common and ordinary use of land over special and unusual uses. A person who puts his land to a special use cannot justify substantial interference which this causes with the ordinary use of neighbouring land by saying that he is asking no more consideration or forbearance from his neighbour than they (or an average person in their position) can expect from him. Nor can such a person complain on that basis about substantial interference with his special use of his land caused by the ordinary use of neighbouring land. By contrast, a person who is using her land in a common and ordinary way is not seeking any unequal treatment or asking of her neighbours more than they ask of her.
[59] The other unchanged and common elements between the two expressions of the test are that liability only arises if the interference is with use and enjoyment of the plaintiff's land, and the interference is substantial.
[60] I see no indication in either the Hunt Leather or Fearn majority views that the revised expression of the test should change the scope for private nuisance.
[61] The difference between the two expressions of the test comes from a shift in the questions to be asked once substantial interference with the plaintiff's ordinary use of their land is established: from the broad question of whether the defendant's interference was 'unreasonable' (which of course invites a number of different considerations) to the questions whether the interference arose from the defendant's use of their land which was not 'common and ordinary' or otherwise, if it was common and ordinary, arose from a use which was not 'conveniently done'. Jago J noted that the 'common and ordinary' criterion 'functioned as an aspect of, a proxy for, or a means of calibrating a broader inquiry focusing on the objective reasonableness' both before and after Bamford.[54] The recent SA District Court decision, Fullston v Schultz & Rumsewicz, made with reference to Hunt Leather, seemingly takes that approach.[55]
[62] As I understand their reasons, Gageler CJ and Jago J, the minority judgments in Hunt Leather as to the expression of the test, remained unconvinced that a new expression of the test is called for. Gageler CJ considered it pertinent to distinguish the facts in Hunt Leather from Fearn on the basis that the former was a case of a public authority exercising statutory power from a case where the dispute is between private landholders,[56] however Beech-Jones J regarded it as a distinction without a difference.[57] Jago J lamented the abandonment of the 'great workhorse of reasonableness',[58] whereas Lord Leggatt in Fearn had complained that the term 'unreasonable' is 'without explanatory power' and was no more than another way of applying the conclusionary label 'unlawful'.[59] Gageler CJ in Hunt Leather also noted that the majority view in Fearn has not been followed in more recent decisions on private nuisance in the Supreme Court of the UK, which continue to describe nuisance in terms of substantial and unreasonable interference.[60]
[63] As to which approach should be applied here, I note the Hunt Leather majority approach has since been followed in recent decisions of the NSW and SA District Courts,[61] whereas a recent decision in the NSW Supreme Court[62] continued to express the test as 'substantial and unreasonable', even while referring to Hunt Leather. Given the majority view on the expression of the test for private nuisance in the highest court of Australia is now that of Gordon, Edelman and Beech‑Jones JJ in Hunt Leather, I consider I am bound to apply it here. In any event, as I have noted above, both approaches seem to share the same purpose and there is no indication that an adjudicator should come to different conclusions by way of the two different expressions of the test.
[64] As I have noted above, the private nuisance test calls for the following enquiries, in this order:
If the answer is no, the plaintiff succeeds. If yes:
[65] The meanings and application of the key concepts are discussed below, as is the question of onus of proof.
[66] Deciding the common and ordinary use or enjoyment of land is necessary for deciding both whether the conduct interfered with a use or enjoyment of the plaintiff's land which should be protected, and whether that interference arose from a use of the defendant's land which should be allowed to continue unrestrained.
[67] The phrase 'use and enjoyment' was described in Miles-QCAT: 'use refers to utilising a lot for its normal purpose, and enjoyment is the pleasure or benefit derived from the lot', [63] and the same may be said with respect to common property. I note that s 167 speaks of 'use OR enjoyment' rather than 'use AND enjoyment', but is seems the expressions are used interchangeably, including within Hunt Leather.
[68] To be actionable, the interference must be with the utility and amenity of land; it is not sufficient just to prove personal discomfort or harm to those who are coincidentally occupying the land.[64] So, for example, it was said that a 'sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens' and presumably also keeping open their windows to enjoy fresh air.[65] In Victoria Park Racing and Recreation Grounds Co Ltd v Taylor[66] an owner of land next to a racecourse allowed an observation platform to be built on his land from which a radio broadcaster could see the plaintiff's horse races and broadcast a commentary for the defendant's invitee's own profit. The owner of the racecourse complained that the conduct resulted in loss of profits for its business, claiming nuisance. The majority of the High Court held that the claimant had no right of action in nuisance. The court considered that a person looking into the plaintiff's land was itself trivial in its effect on the applicant's capacity to use its land. The claim failed because the majority held that the interference was not with a right associated with the plaintiff's use of the land, but with the profit to be derived from its business.
[69] The inquiry into use involves consideration of both the purpose of the use and the means by which the purpose is achieved.[67] The word 'purpose' is generally taken in the law to mean the end sought to be accomplished by the conduct, as distinct from the reason for seeking that end (motive) or the manifest effect (outcome), although the effect may be the clearest indication of the purpose.[68]
[70] The compound expression 'common and ordinary' is perhaps tautological, in that applying the yardsticks of only 'common' or 'ordinary' probably would lead to the same result in the decided cases, and when referring to a plaintiff's uses it is often deployed only as 'ordinary'. It has also been expressed as 'normal and usual',[69] and 'what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society'. That expression of the criterion is said to be the originator of the reasonableness test.[70]
[71] There is no conceptual limit to what type of act or omission can constitute a nuisance; anything which materially interferes with the plaintiff's enjoyment of rights in land is capable of being a nuisance. That includes, for example something tangible such as an invasive plant, noise, vibration, quarry debris, and factory fumes, or intangible such as obstructed access to land by a strike picket line, obstructed flow of air, obstructed connection to public utilities, a withdrawal of foundation support for the claimant's land, the sun's reflected glare, bright commercial signage, offensive sights such as junked vehicles, use of a house for prostitution incongruently with a residential area, and invasion of privacy (for example, the Fearn dispute).[71]
[72] A purpose is common and ordinary in the sense that it is consistent with the reasonable expectations of the locality as to the use of that land.[72] The characterisation of the locale might be no more specific than 'agricultural', 'residential', 'closely populated' or 'industrial'.[73] It will not prima facie be a nuisance if the interference arises from a use which, though generally unusual or uncommon, is not unexpected for the particular location, for example a very noisy type of manufacture in a location dominated by industry (provided also that the act is 'conveniently done').[74] Similarly, noise and other interruptions made by televisions and crying babies, cooking, cleaning, quarrels, and comings and goings, will be the result of common and ordinary use in a residential neighbourhood and therefore prima facie lawful, even if substantially interfering with the enjoyment of adjoining apartments because of inadequate sound insulation between them.[75] However, a use having a malicious purpose, even if the interference might reasonably have been expected for other purposes - such as a television left on only so as to annoy a neighbour[76] - will likely be contrary to the reasonable expectations of the locality, and therefore may be a nuisance.[77]
[73] A plaintiff has no claim in nuisance for an interference with their use or enjoyment of their land which is abnormally sensitive to interference.[78] For example, in Eastern and South African Telegraph Co v Cape Town Tramways Co Ltd[79] heat rose from the defendant's cellar into the plaintiff's warehouse and damaged the particularly delicate paper stored there. That was found not to be a nuisance because the heat would not have affected ordinary paper, and so was not sufficient to interfere with the ordinary use of the plaintiff's property. It has been said a person 'cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure'.[80]
[74] The appropriate level of abstraction when deciding and describing what are the relevant uses of the plaintiff's and defendant's land will depend on the circumstances.[81] The characterisation of the plaintiff's use of their cellar In Eastern and South African Telegraph was quite specific - storing 'delicate' paper as opposed to just paper. In Hunt Leather the use alleged to cause nuisance was the various activities associated with construction of light rail public transport infrastructure along a public roadway, which interfered with the operation of nearby businesses. Gordon and Edelman JJ described the purpose of the defendant's use quite specifically, finding it to be the construction of light rail infrastructure, which as such was not consistent with the reasonable expectations of the locality about the purposes for which the land, comprising the road, would be used, and therefore their Honours considered it was not a common and ordinary purpose for that locality.[82] Their Honours contrasted that use with works on a roadway for the purposes of repairing or upgrading it, for example to insert speed bumps or roundabouts, which they said would be works for a purpose which is common and ordinary. Beech-Jones J in Hunt Leather preferred a higher level of abstraction in that particular case, and cautioned that a too-low level of abstraction might otherwise 'mandate uniformity in the use of that land'.[83] His Honour decided the purpose of the defendant's use was better described more generally, as 'construction', without reference to the goal of the construction being a light rail, explaining it thus:[84]
[I]n circumstances where the substantial interference with the use of the land arises from the process of construction it is far from clear that the authorities support an approach to characterisation of the relevant use that looks beyond the construction activity to what is being constructed. I am inclined to the view that, where the substantial interference arises from the activity of demolition and building, the relevance of what is being constructed and the time taken to undertake the construction are matters that form part of the assessment of whether the construction activity is being "conveniently done" rather than whether or not the use of the land for construction of that thing is common and ordinary.
[75] Beech-Jones J said that, even if the relevant use of the land was to be characterised more specifically as the construction of the light rail, he would still regard that as an ordinary and common use of the land in question, especially when regard was had to its locality.[85]
[76] In Fearn, the complaint concerned the construction of a viewing platform at the defendant's highly popular art museum in London, which invited many thousands of visitors to the gallery to look out from the gallery and consequently also straight into the living areas of the plaintiffs' nearby residential apartments. The museum's purpose of using its land in that way was held to be uncommon because the purpose of the viewing platform was characterised as not simply to view art, but in particular to look out from the gallery.
[77] A particular use does not automatically become protected as being common and ordinary merely because it is specifically authorised, unless the interference associated with that use also is specifically authorised.[86] However, at a more general level, whether a type of use is permitted in an area can form part of the assessment of what are, broadly speaking, the common and ordinary uses within the area.[87]
[78] Where a defendant's use of land is found not to be common and ordinary, any social or public utility associated with that activity has traditionally been treated as irrelevant to questions of liability.[88]
[79] To prove private nuisance, there must be actual harm caused to the plaintiff,[89] although that may be physical or non-physical.[90] So, for example, mental distress may be actionable in nuisance,[91] and an injunction qia timet may be granted for conduct which is not presently occurring but which is reasonably feared to occur in the future and then cause actual harm[92] (see further the discussion below about appropriate orders).
[80] The test for 'substantial' interference with enjoyment of land is objective; what amounts to a material or substantial interference is judged not by what the claimant finds disruptive, annoying or inconvenient but by the standards of an ordinary or average person in the claimant's position.[93]
[81] Measured objectively, the interference with the plaintiff's use and enjoyment of their land must be neither trivial nor transient,[94] nor a minor annoyance nor a trifling and small inconvenience.[95] However, isolated instances of what might otherwise not in themselves be nuisance may, taken as a whole, become so if they are persistent, and the duration or the extent of the persistence of conduct may be taken into account in determining whether interference is substantial or unreasonable.[96] For example, sustained harassment of neighbours was found to be private nuisance in Dejanovic v Sheppard [2025] VSC 588 where, over the course of years, the defendant banged on the commonly shared internal wall during the night, shouted and screamed, and played loud music from a radio or television.
[82] It is no defence to say that a plaintiff did not take steps to mitigate the interference, as that would place responsibility for avoiding the impact of an activity entirely on the victim rather than on the person who carries out the activity.[97]
[83] Once substantial interference with the plaintiff's ordinary use of land has been proved, the focus turns to whether the defendant has acted with lawful justification or excuse.[98] The defendant will have a justification or excuse if they were using their land for a common and ordinary purpose, and if it was 'conveniently done'.
[84] The use will have been 'conveniently done' if done in a manner which reasonably minimised the extent of the interference with the plaintiff's ordinary enjoyment of land,[99] or if undertaken with proper consideration of the interests of the neighbouring occupiers,[100] or if all reasonable and proper steps were taken to ensure that no undue inconvenience was caused to neighbours.[101]
[85] The assessment of whether a defendant's activity was 'conveniently done' requires consideration not only of the convenience of the defendant, but also the convenience of the plaintiff, ie the relative interests of each of the parties, in all the circumstances.[102]
[86] In Hunt Leather, the majority judgments all decided that the use was not conveniently done, Beech-Jones J deciding that arose once the construction project had exceeded a reasonable period for it, the excessive time arising as a consequence of poor planning for the project.[103]
[87] In a private nuisance action, the plaintiff bears the onus of proving that there was a substantial interference with the common and ordinary use of their land, and that the interference arose from the defendant's use of their land for a purpose which was not common and ordinary.[104] If those things are proven, the application succeeds.
[88] If substantial interference is proven but it is found to have arisen from the defendant's common and ordinary use of their land, the application fails unless the plaintiff satisfies the evidentiary onus of identifying some respect in which the defendant's use of land was not conveniently done,[105] for example that the construction, while common and ordinary, nonetheless took too long or was needlessly noisy. The defendant then bears the onus of proving that their use was 'conveniently done', but the defendant does not bear an 'impossible onus of negating every imaginable allegation that the means adopted for the use of land were not conveniently done'.[106]
[89] Beech-Jones J in Hunt Leather explains the rationale for that approach:[107]
This approach to the onus of proof accords with what can be reasonably expected of the party undertaking the activity that occasions the substantial interference with the other's use and enjoyment of the land. That party is in the best position to demonstrate that what he or she was doing was "conveniently done". If that party asserts that the impugned acts were carried out with appropriate expedition and by taking reasonable steps to minimise the inconvenience to the claimant, then that party ought to be the one to prove it. If it is said that there are reasonable steps available to the claimant, consistent with the claimant's common and ordinary use of the land, to mitigate the effects of the defendant's conduct then the defendant must demonstrate what those steps are and their effect.
[90] Apart from my comments further above about the evidentiary burden in this jurisdiction, I consider the remarks in Hunt Leather about onus otherwise also apply in this jurisdiction.
[91] To my knowledge, the authorities have equated s 167(1)(a) nuisance only with private nuisance,[108] but that may simply be because applications about s 167(1)(a) nuisance (and its equivalents in other jurisdictions) have almost exclusively concerned interference with a particular person's exercise of their rights to use land. However, I cannot see anything in s 167(1)(a) nor those authorities which rules public nuisance-type claims out of considertion in this jurisdiction. The common law tort of public nuisance survives even though it is also codified as a criminal offence in Queensland[109] and in any event, as I have noted above, while a proceeding under s 167(1)(a) nuisance is informed by the tort of nuisance, it is nonetheless a statutory prohibition.
[92] The tort of public nuisance was developed to deal with socially objectionable acts (and omissions) which were not readily actionable as a private nuisance.
[93] In the courts below, the Hunt Leather plaintiffs also alleged public nuisance, for which the elements were said to be:[110]
[94] It is said that the leading modern authority on public nuisance is Attorney General v PYA Quarries Ltd (PYA Quarries),[111] action brought to restrain nuisance caused by blasting at a quarry, which was said to project stones, splinters, and dust into the neighbourhood and to cause vibrations in nearby buildings.
[95] From that decision come two often-repeated statements of the law on public nuisance. Romer LJ said:[112]
I do not propose to attempt a more precise definition of a public nuisance than those which emerge from the textbooks and authorities to which I have referred. It is, however, clear, in my opinion, that any nuisance is 'public' which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. The sphere of the nuisance may be described generally as 'the neighbourhood'; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected for an injunction to issue.
[96] Lord Denning put it this way:[113]
[A] public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.
[97] As Romer LJ notes in the extract above, while public nuisance addresses conduct affecting a number of persons at one time, what constitutes a sufficient number in a given case is a question of fact. The point is to differentiate it from private nuisance, which focusses on conduct affecting one person's use or enjoyment of their property. Perhaps one way of approaching the question of how many is to ask Lord Denning's question: has the number of affected persons reached the point that it is unreasonable to expect one person to take action. However, that is not to say that a public nuisance cannot also comprise in part a number of actionable private nuisances,[114] for example as was likely the case in PYA Quarries where the blasting interfered at the same time with the public commonly and use and enjoyment of private residences individually.
[98] A line of decisions after PYA Quarries seemingly broadened the scope of public nuisance, by accepting that an action lay in public nuisance for a series of acts each directed only against an individual. For example, in R v Johnson[115] public nuisance was found where the defendant made numerous obscene telephone calls to at least 13 different women over a period of 5 years. However, more recently, on appeal to the House of Lords in R v Rimmington (Rimmington)[116] their Lordships held that that Mr Rimmington's sending of hundreds of packages containing racist material to different members of the public over the course of 10 years, however vile, was not a public nuisance because there was no common injury from any one instance; rather the harm in each instance was limited to the recipient of each package.[117] Their Lordships considered R v Johnson and similar decisions not to be good authority on public nuisance, for the same reason. Lord Rodger however seemed to leave open the door to finding public nuisance from a series of isolated acts where the recipients were part of a smaller or related community.[118] The example comes to mind of a person targeting only individuals but with the purpose or effect of causing psychological harm to others in the broader community, like a schoolyard bully targeting one but deliberately in front of many.
[99] As to the question of intention, the test expressed by the UK Court of Appeal in R v Shorrock[119] is that a person is responsible for a nuisance which they knew, or ought to have known because the means of knowledge were available to them, would be the consequence of their conduct. In Rimmington, their Lordships also considered another appeal, by Mr Goldstein, who had been found to cause public nuisance when he mailed an envelope to an acquaintance into which he had also put a small amount of salt. That was accepted by the court to be intended as no more than a joke between the two men, but unfortunately the salt leaked from the envelope at the postal sorting office, sparking a scare that it might be a dangerous substance and hence an evacuation of a large number of workers. There was no dispute that the act caused a common injury to the public, but Mr Goldstein appealed on the basis that he did not have any intention to cause the nuisance. Their Lordships found in his favour, deciding that while he intended to send the envelope containing the salt, he did not intend and could not reasonably have foreseen that the salt would leak from the envelope at the sorting office, and therefore it did not matter that the scare was a foreseeable consequence of the leak. Their Lordships contrasted that with a case of public nuisance found when workers caused harm by doing things not specifically directed by the owner and done without their knowledge but nonetheless where harm was a foreseeable consequence of conducting the business.[120]
[100] A question also arises as to how harm must be proven, given that it is to the public generally or a substantial section thereof. It must be established that the nuisance would cause actual harm; it is not enough to say there was a potential for harm, but at the same time it must be proved that the public, comprising a considerable number of persons or a section thereof, was affected, as distinct from individual persons.[121]
[101] It is not necessary to prove that every member of the public was affected; it is sufficient if the act or omission materially affected the class of people who come within the sphere of its operation, nor is it necessary to prove that every member of the relevant class has been harmed, provided that a representative cross-section of the class is shown to have been affected.[122] Accordingly, for example in PYA Quarries, although the number of houses affected by the quarry blasting varied from blast to blast, each blast tended to affect homes in the vicinity of the quarry and a picture of the overall effect of the blasting on the community could be built up from the evidence of individual residents about its effect on them.[123]
[102] The next question is who may take action for s 167(1)(a) public nuisance. I have addressed the issue of standing generally, above. As to s 167(1)(a) public nuisance specifically, I firstly note that it is statutory provision, and the authorities point to the tort of nuisance only for the purpose of giving it meaning. Accordingly, I do not consider that s 167(1)(a) nuisance is strictly bound by every aspect of the tort; it remains a valid framing device provided s 167(1)(a) public nuisance is not applied in a way which renders it substantially different from the tort.
[103] Typically, private nuisance actions are brought by the Attorney-General for that jurisdiction, acting 'on the relation' of the affected community, although the plaintiff can also be an individual who has suffered 'special damage' (greater or more particular harm than others). Action may also be taken by a public authority which is vested with statutory power to take such action or which has suffered damage over and above that suffered by the public at large, such as a local government authority under a duty to repair a highway.[124]
[104] I do not consider it a stretch to say that a body corporate stands in an position sufficiently analogous to either or both of a public authority vested with power to take the action or the Attorney-General acting for their constituency. It is capable of suing in its name, liable to administer the common property and body corporate assets for the benefit of the owners and enforce its by-laws,[125] and is the only entity capable of representing the collective interests of owners, occupiers and invitees. Allowing a body corporate to take action under s 167(1)(a) for public nuisance also accords neatly with Denning LJ's characterisation of the action lying where it would not be reasonable to expect one individual to take proceedings on their own. So, for example, an adjudicator might accept that a body corporate can take action under s 167(1)(a) for public nuisance against an occupier who's obnoxious conduct interfered broadly with others' use of a common property swimming pool. It would also address the potential difficulty an adjudicator might have in granting an appropriately wide injunction: they could safely make an order in terms like 'do not act offensively around the pool' rather than the more limited 'do not act offensively around the pool in view of the applicant'.
Nuisance and communications between owners/occupiers and a body corporate
[105] The applicant seeks orders to govern the respondent's communications with the body corporate and its contractors, and so I will next discuss the legislation and case law about that particular issue.
[106] It is the common view among adjudicators[126] that s 167(1) is not well-designed to deal with communications between members and officers of the body corporate. That is because, as I have noted above, that provision and the underlying common law of nuisance require both the conduct and the effect of the conduct to be tied to the use of property, and not just to the harm to the recipient. As Adjudicator Stone noted in Proximity One, the lack of connection between the use of a lot or common property, and communications which do not rely on the parties being physically proximate on that land, like telephone calls, letters, emails and text messages, is illustrated by the fact that a piece of offensive communication would have the same nature and effect regardless of whether the sender were on or off the scheme land. Perhaps even more pointedly, its receipt does not affect the use and enjoyment of the land on which it is read - the recipient may well experience distress or offence, but that will be so whether they read the email in their apartment or on a bus; it has nothing to do with the location. The Rimmington decision also illustrates the difficulty of proving public nuisance from communications directed to individuals or only a very small number of people such as a committee, in that the harm is not suffered by a sufficient number.
[107] That said, other forms of communication might be a unlawful nuisance in certain circumstances: for example, it may offend s 167 if a person on scheme land regularly shouts in the middle of the night in the vicinity of a person who is trying to use their residential lot to sleep, or if a person uses scheme land to display signage with an offensive message which affects another person's reasonable enjoyment of the view from their window.[127] In each case, the physical proximity of the parties governs the nature and effect of the conduct.
[108] The question then arises whether, regardless of any limits of s 167 discussed above, an adjudicator can make an order which prescribes or proscribes certain things about communications between a body corporate and its members. In Bryson v Withey Street Townhouses CTS 15365[128] Member Lumb decided an appeal about the form of an adjudicator's orders. In that case, the body corporate had complained of voluminous and repetitive requests from the respondent concerning access to body corporate records and, as a result, the body corporate had taken to blocking their emails. The adjudicator ordered that (by implication) the body corporate was entitled to disregard correspondence which did not meet certain criteria, the point of the applicant's appeal being that the applicant had not requested such an order. Member Lumb found for the applicant on that basis but also expressed doubt (without having to decide the issue) that an adjudicator has power to make an order which limits the nature of a lot owner's communications. Member Lumb left open the possibility (but again, without deciding) that such an order may be appropriate where, in the circumstances, the owner's communications were found to be 'oppressive'. The Member did not indicate what might constitute oppression by an owner or occupier in a body corporate, and I cannot see how the legislation deals with such an issue either directly or by implication, if one takes 'oppressive' to mean cruel or unfair exercise of power. Accordingly, given the decision in Bryson, I cannot see what would be an adjudicator's source of power to make such an order. Further, it renders doubtful the capacity of a body corporate to pass a by-law which imposes such limits, because of the inconsistency principle.[129] It has the effect that a by-law cannot expand the powers of a body corporate or diminish owners' and occupiers' rights granted under legislation or the general law to the extent that lawful conduct is rendered unlawful.[130]
[109] In any event, I agree with the view, again of Adjudicator Stone in Proximity One, that there is no need for such an order (nor, in my view, such a by-law), because nothing requires a committee to give more than cursory attention to offensive, pointless, voluminous or repetitious correspondence.[131] But it is a different thing for a body corporate to dictate the nature of correspondence allowed to be sent. To me, that seems inconsistent with the reason for the existence of a body corporate, which is to serve its members' interests.
[110] The body corporate alleges the respondent interfered with car park numbering signage, on 10 August 2025 and other occasions at about the same time, causing nuisance and contravening by-law 5 which prohibits damaging common property. It is said to be evidenced by two video files of CCTV footage. The footage shows what could be, on the date alleged, a female person removing something from the walls in the areas of two different car parking spaces. In the first video,[132] the person clearly removes something from the wall but it is not clear what was removed. The second video[133] is not conclusive that the something was removed from the wall because that occurs out of view, but when the person returns into view they have in their hand signage about 20 cm square showing the numeral 4.
[111] There was only one submission from a lot owner, and that was limited to the smoking allegation. It came from the owner and occupier of Lot 30, Mr Goodwin, who says:
[112] The only other evidence of the alleged contraventions is a copy of an email addressed to the body corporate's lawyers dated 15 August 2025 from 'Travis' using an email address which is seemingly the scheme's caretaker's. It provides (quoting the entirety of it verbatim):
Parking:
Sunday 10/8
Some security footage of Susan changing the parking bay numbers.
Not sure if it could be of any use. In the ch08 clip you can see her holding the removed number 4.
We let unit 34 use bay 3 a couple of years ago (when the tenant was running the nearby restaurant) and changed the displayed numbers.
Not too sure why Susan is changing them, has happened 3 times recently.
We have stopped answering calls from Susan as we have had enough of the abuse.
Susan has car park 31.
Other
26/06/2025
Susan talked to plumbers we had onsite and asked them to do something.
Susan talked to me and I said I would ask BC for permission for her to use plumbers on BC property.
I decided to talk to the plumber first to determine what she had asked.
Susan came down again and I informed her I would contact BC once I had talked to plumber.
Susan's conversations are now harassment with very negative comment towards my family, "Mike doesn't know what he is doing" etc
Plumber came back and I talked to him then I emailed BC to ask for permission for her.
Susan called my personal mobile and I informed her I was waiting on a response.
She was not happy on my responses so I hung up on her. She called my mobile again, I then blocked her number.
Plumbers left about 11:50am said they had another job close by but could drop back.
Susan's request to BC was denied.
She came down to complain to me, told her to contact body corporate.
Wed 16/7
Police called me. Susan said someone had gone into her room as she had gone out and when she returned the door was locked.
24/7
Multiple abusive phone calls from Susan
Ridiculous abusive language and shouting from her.
Susan started calling about 0848, Margaret answered the first 4 calls, lots of swearing, calling us liars.
Said we turned away a plumber she talked to. Yelled that Travis banged on her door (he did not).
Said we did not try to stop the roof leaks. Costing her $1000 last week.
Margaret said she could not talk to her like this, more swearing. Did not answer the next 4 calls.
About 1115 Mike answered the phone, more yelling saying that Mike was stealing furniture off her patios. All wrong.
1120 She called again to Margaret, said we had to stop cars parking close to her designated spot. Called Margaret a liar, more yelling.
31/7
Susan refused to take a letter addressed to her, swearing again.
Around Sunday 3/8
Susan very up close and intimidating with our cleaner, saying the timing of the midstay services were not legal and it's dangerous for the cleaner to handle dirty linen.
11/8 4 calls from Susan not answered.
[113] Taking into account what I have said above about natural justice and evidence in this jurisdiction, I am satisfied the video evidence is sufficient to prove the allegation concerning the 10 August 2025 Car Park Numbers incident on the balance probabilities, because: the evidence is consistent with the applicant's allegation; it is unlikely that the allegation was fabricated and that the CCTV footage depicts something else; the respondent could have explained away the allegation, if the evidence depicted something other than as alleged; and the allegation, although not trivial, is not particularly serious. The caretaker's 15 August 2025 email says it has occurred '3 times recently' and it seems inherently unlikely that is not true and that another person is responsible. I therefore find that on or about the 10 August 2025 and on two other occasions around that date, the Respondent removed signage from the common property carpark without authorisation.
[114] Based on the submission from the owner and occupier of lot 30, I find that the respondent regularly smoked on her lot with the effect that smoke drifted into lot 30 to a substantial extent. However, there is no evidence in that submission nor the other materials raising a prima facie case that the applicant smoked on or caused significant smoke drift onto common property, and so I am not prepared to treat the respondent's failure to deny that allegation as an admission. I therefore make no finding as to that allegation concerning smoking and common property.
[115] The other allegations set out in the email dated 15 August 2025 from 'Travis' are recounted by the caretaker soon after the alleged events, from matters apparently within the caretaker's knowledge through their own observation or otherwise recounted second-hand to the caretaker by 'Margaret' and 'our cleaner'. I consider that, given the way in which he describes the events, the caretaker is not likely to have heightened sensitivity nor to be exaggerating. The respondent chose not to deny the allegations, and while the allegations are not trivial, finding them to be true would not have particularly serious consequences. In the circumstances, I consider it unlikely that at least the gist of the allegations is not true. I therefore also find that:
[116] I am also satisfied of the truth of the allegations under 'Wed 16/7' concerning the police, under '31/7' concerning the respondent's refusal to take a letter, and under '11/8' concerning unanswered calls from the respondent, but I do not see the relevance of those things to any contravention.
[117] The applicant alleges s 167 is contravened as specified in application para 54(b)(i), (ii), (iii) and 54(c):[134]
54. The Respondent's conduct, as outlined in these submissions and the attached materials, constitutes a clear breach of section 167 of the BCCM Act because:
(a) she is the occupier of a Lot included in the Applicant, namely Lot 31;
(b) the Nuisance, Harassment and Further Harassment and Nuisance:
(i) met the threshold test for nuisance within the meaning of that word in section 167 as it caused a substantial degree of interference according to what are considered reasonable standards for the enjoyment of the Scheme, noting that in respect of the occupiers of Lots, the Caretaker, and the Employees, it is reasonable for those persons to expect that they will not to be verbally abused, threatened, photographed, shouted at or have their property damaged; [with reference to Miles-QCAT]
(ii) interfered unreasonably with the use or enjoyment of another Lot included in the Scheme, in particular the Caretaker's Lot; or
(iii) interfered unreasonably with the use or enjoyment of the Common Property by a person who is lawfully on the Common Property, in particular the Caretaker, the Employees and those Lot owners affected by the Car Park Incident; and
(c) Further, the Chain Smoking constitutes a "hazard" within the meaning of the word used in section 167 of the BCCM Act. [with reference to Artique [2021] QBCCMCmr 596].
[emphasis added]
[118] The 'Caretaker' is a service contractor engaged by the body corporate. It owns and occupies Lot 2, employs staff to perform its duties, and has an occupation authority over an office and reception area at the scheme. The 'Employees' are the caretaker's staff.
[119] The applicant particularises the Nuisance as:[135]
11. Between 8 to 9 May 2025, the Respondent has caused a nuisance at the Scheme by (Nuisance):
(a) kicking the fly wire door of Mr Trivett's Lot;
(b) verbally abusing Mr Trivett;
(c) smoking outside a Lot belonging to an unwell lot owner;
(d) intermittently banging on the door to her Lot 31;
(e) videoing Mr Trivett and Employees while they were on the Roof;
(f) attending the Reception and demanding to know who Mr Trivett was with and why the Employees were talking to him;
(g) telling the Employees words to the effect that:
(i) they should not to speak to Mr Trivett because it was illegal; and
(ii) Mr Trivett should not be let into the office.
[120] There is no evidence in the materials before me of these allegations. Further, in light of that, I draw no adverse inference against the respondent for choosing not to deny the allegations. Accordingly, I am not satisfied that the 'Nuisance' allegations are proven.
[121] The applicant particularises the Harassment as:[136]
9. Since about January 2025, the Respondent has engaged in a campaign of harassment (Harassment). The Harassment was primarily directed at:
(a) BCS since 29 January 2025;
(b) Grant Trivett, previous Committee Secretary and former owner of Lot 30; and
(c) the Caretaker and/or the Employees since 29 March 2025.
10. On 5 May 2025, the Caretaker appointed replacement Employees at the Scheme because of the behaviour of the Respondent.
[122] BCS is the body corporate manager engaged by the body corporate.
[123] The applicant does not say what constituted the acts of 'harassment' of BCS, although elsewhere in the application there is an allegation (without evidence) that on 11 September 2025 the respondent attended a general meeting at the office of BCS and was generally disruptive, including by screaming at the body corporate manager.[137] Accordingly, I draw no adverse inference from the respondent's choice not to deny the allegation. I am therefore not satisfied the allegation is proven.
[124] There are no details given about the nature of the harassment in respect Mr Trivett, apart from the matters defined to be a 'Nuisance', above, nor evidence in the materials before me of these allegations. In light of that, I draw no adverse inference against the respondent for choosing not to deny the allegations. I am therefore not satisfied the allegation is proven.
[125] There is no evidence before me that the caretaker needed to hire new staff because of the respondent's conduct. Accordingly, I draw no adverse inference from the respondent's choice not to deny the allegation. I am therefore not satisfied the allegation is proven. I have made findings above concerning some alleged conduct involving the caretaker and its employees. Accordingly, except to that limited extent, I am not satisfied that the 'Harassment' allegations are proven.
[126] The applicant particularises the Further Harassment and Nuisance as:[138]
19. Despite the Correspondence and Contravention Notices, the Respondent engaged in further Contraventions, Harassment, and Nuisance at the Scheme as follows (Further Harassment and Nuisance):
(a) on 26 June 2025, the Respondent interfered with plumbing contractors engaged by the Applicant and became verbally abusive toward the Caretaker when her request to the Body Corporate to use the plumbing contractors for other works was denied;
(b) on 24 July 2025, the Respondent made multiple phone calls to the Employees whilst they were at the Scheme in which she:
(i) shouted;
(ii) used aggressive and offensive language; and
(iii) made false accusations including that the Employees:
(A) had banged on her door;
(B) were liars; and
(C) were stealing furniture off her patios;
(c) on 31 July 2025, the Respondent refused to accept a letter addressed to her and responded by swearing at the Employees;
(d) on or around 3 August 2025, the Respondent confronted and intimidated an Employee whilst they were performing duties at the Scheme;
(e) on 10 August 2025, the Respondent damaged and/or defaced the Car Park, without the authorisation of the Applicant, by removing Car Park Numbers. This incident was recorded on security cameras and resulted in multiple calls to the Caretaker from other lot owners, querying why the Car Park Numbers had been changed; and
(f) on 11 August 2025, the Respondent made four unsolicited calls to the Caretaker, continuing a pattern of harassment and disruptive behaviour.
[127] I have made findings, above, concerning conduct directed towards the plumbers (paragraph 19(a)), but there is no evidence they were 'interfered with' in any significant way.
[128] I have also made findings, above, about interactions with the caretaker and its employees (para 19(b)), but the evidence does not substantiate the severity of the allegations. I cannot see any relevance in the allegation that the respondent refused to accept a letter (para 19(c)).
[129] I have made findings, above, about the interaction with the employee on 3 August 2025 (para 19(d)). However, the description of the interaction being 'intimidating' is not sufficiently apparent from those facts to warrant finding that to be the case. I also cannot be certain that the cleaner is not a person of heightened sensitivity who might have reacted in a way an ordinary person would not.
[130] In light of my findings, above, the allegation concerning damage to the common property on 10 August 2025 in the car park (para 19(e)) is proven.
[131] I accept as proven that the respondent made 4 unsolicited telephone calls to the caretaker on 11 August 2025 (para 19(f)), but there is no evidence upon which I can characterise them as 'harassment and disruptive behaviour'.
[132] The applicant particularises the Chain Smoking as:[139]
8. Since around November 2023, the Respondent has chain smoked and coughed, either from Lot 31 or the rooftop patio (Chain Smoking).
[133] I have found, above, that the respondent regularly smoked on her lot and affected the occupier of Lot 30, and I am therefore satisfied that allegation is proven. However, there is no evidence the smoking occurred elsewhere or affected common property, and so I decline to draw an adverse inference from the respondent's failure to deny the allegation. I therefore find the Chain Smoking allegation proven only to the limited extent that it involved lots 30 and 31.
[134] The applicant's submission in application para 54(b) combines all of the Nuisance, Harassment and Further Harassment and Nuisance conduct together to constitute, without any differentiation, 3 types of nuisance.
[135] Firstly, (at para 54(b)(i)) the Nuisance, Harassment and Further Harassment and Nuisance conduct together is said to constitute one or more contraventions of subs 167(1)(a) nuisance in respect of 'enjoyment of the Scheme'. The applicant then refers to that effect on 'the occupiers of Lots, the Caretaker, and the Employees', but does not say whether that is in regard to their use and enjoyment of their respective lots or the common property or both. Nor does the applicant say whether it is private or public nuisance, although I note I am referred to the decision in Miles-QCAT, which concerns only private nuisance. It is also not clear whether there is nuisance alleged to be caused to the body corporate. I will deal with all of the possibilities.
[136] In a community titles context, it is clear that private nuisance may occur where a lot or the common property is used by a person to interfere with another person's use of their lot. The comments of Ambrose J in Platt v Ciriello[140] referred to above suggest that an action in private nuisance may also arise where a co-owner makes 'excessive' use of 'reciprocal rights as tenants in common' to interfere with another person's lawful use of common property. While his Honour is not explicit on the point of whether that would be an action in private or public nuisance, the context suggests to me his Honour was speaking of private nuisance, ie where the interference was with one person's use of the common property, rather than interference common to many (although it might also amount to the latter, because, as I have also noted, public nuisance may be comprised also of private nuisance instances).
[137] The conduct which is relevant to private nuisance - ie, affecting only one person - potentially includes all of the conduct described as proven under the heading 'Findings of fact', above. However, as I have noted, the body corporate does not have standing to apply for orders in respect of interference with another person's use and enjoyment of their lot or the common property. The proven conduct for which the body corporate might have standing is the respondent's interaction with the plumbers, (insofar as they were engaged to do work on common property for the body corporate) and the respondent's interference with the car park numbering.
[138] In the case of the plumbers, I will assume the body corporate (through the plumbers) was using the common property for the purpose of maintaining it, which is an ordinary use. The applicant's purpose is unclear but the caretaker's evidence suggests she interacted with them for the purpose of getting them to do work on her lot. There is no clear evidence she had a malicious intent, although for argument's sake I will assume she might have. Ultimately, however, I cannot see that the body corporate's use of the common property (through the plumbers) was even significantly interfered with, and certainly the interference was not substantial, as it seems the plumbers came back after briefly leaving the scheme to attend to another job. Accordingly, I am not satisfied the incident amounted to private nuisance.
[139] As to the car park numbering, the body corporate's relevant use of the common property might be described as using it to provide a system for orderly car parking. The respondent's motive for using scheme land to interfere with the parking arrangements is unclear, but it cannot reasonably be described as a common and ordinary use. Ultimately, however, it seems the effect of the conduct was limited to causing a number of telephone calls to be made to the caretaker by confused residents. I cannot see that the interference rose to the level of substantial. Accordingly, I am not satisfied the incident amounted to private nuisance. I would likely say the same if one of the affected residents were the applicant in this case - the interference does not likely rise to the level of substantial.
[140] Putting the body corporate's lack of standing to one side, I will comment on the allegations insofar as they affect the caretaker and its business, and I will assume for argument's sake the conduct occurred both on the caretaker's lot and on the common property. The caretaker, insofar as they own a lot and reside in it, is permitted by s 227(1) to make an application against another owner or occupier insofar as a dispute relates to them as a resident. However, insofar as their use the lot or the common property in their capacity as a caretaker is interfered with, such an action would have to be brought by the caretaker as a civil action in tort outside this jurisdiction, because s 227(1) of the Act effectively restricts applications involving a dispute with an owner or occupier to applications by the body corporate or another owner or occupier. The mere fact that the body corporate can make an application against an owner or occupier does not in itself confer standing upon it to make the application in every type of dispute; rather, it must also be a dispute directly involving the body corporate.
[141] For the sake of illustrating how the new expression of the private nuisance test might be applied, I will briefly comment on what the caretaker's prospects for a civil action might be. The caretaker's ordinary use of its lot and the common property is for the purpose of conducting the caretaking business. In turn, owners and occupiers are entitled to use their lot or common property for the purpose of interacting with the caretaker and its staff, and to express disapproval in strong terms if it is warranted. Noting an example given above - a sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens - I do see that such conduct would ordinarily interfere with the caretaker's use of its lot and the common property for those purposes. However, the interference might rise to the level of substantial for example if it were proven (as is alleged here) that the respondent's conduct caused the caretaker to have difficulty in attracting or keeping staff to conduct its business. Further, if the respondent's conduct went beyond what was reasonable in the circumstances, given the parties' respective rights and interests, then their use of the scheme land for that purpose would not be 'conveniently done'. To put it another way, the interference would be unreasonable.
[142] The nature of the nuisance as alleged in application para 54(b)(i), insofar as it is said to affect a number of person living and working on the scheme, has some flavour of public nuisance. However, I am not satisfied that the proven or otherwise alleged conduct would presently amount to public nuisance, because it lacks the necessary element of common injury - each instance of the conduct affected only one or a very small number of people at the time. As was found quite decisively in Rimmington, there is no longer good authority for the proposition that isolated and unrelated acts may amount to public nuisance because of their cumulative effect. Accordingly, I am not satisfied that public nuisance is proven.
[143] However, I would leave open the possibility that, in the future, if conduct of the nature alleged were to recur frequently and persist for some significant period of time, and where each instance had the purpose or foreseeable effect of diminishing the use or enjoyment of a substantial proportion of persons on the scheme, that might then amount to public nuisance. In such an application, the body corporate would need to put on evidence (itself or through other parties' submissions) to that effect from persons who use the scheme land, and from a sufficient number of them to satisfy the adjudicator that they were a representative cross-section of the scheme's community. The body corporate would also need to satisfy the adjudicator that the nuisance behaviour was likely to continue, and that it would continue to interfere with use or enjoyment of scheme land.
[144] Secondly, at application para 54(b)(ii), the Nuisance, Harassment and Further Harassment and Nuisance conduct together is said to constitute contraventions of subs 167(1)(b) unreasonable interference with the caretaker' lot.
[145] As I have noted above, the body corporate does not have standing to seek orders in respect of interference with other parties' use of their lots.
[146] Accordingly, I make no finding of a contravention of s 167(1)(b).
[147] Thirdly, at application para 54(b)(iii), the Nuisance, Harassment and Further Harassment and Nuisance conduct together is said to constitute a contravention of subs 167(1)(c) due to unreasonable interference with the use or enjoyment of the common property by the Caretaker, the Employees and those Lot owners affected by the Car Park Incident.
[148] Again, as I have noted above, the body corporate does not have standing to seek orders in respect of interference with other persons' rights.
[149] As to the body corporate's rights, I am satisfied that the respondent's interference with the body corporate's use of the common property to provide a system of orderly parking was more than trivial and was in all of the circumstances unreasonable. Accordingly, I am satisfied there was a contravention of s 167(1)(c) in that regard.
[150] Application para 54(c) alleges hazard caused by the smoking. The proven smoking conduct affects only the occupier of lot 30. It would likely constitute a hazard to that person, but, as I have noted above, the body corporate does not have standing to apply for an order about hazard caused to a single lot owner.
[151] Accordingly, I am not satisfied there is a proven contravention of s 167(1)(a) hazard.
[152] I will now set out the allegations in respect of by-law 3 and by-law 5. I note the application also refers to by-law 1, which prohibits causing interference through noise, but otherwise the applicant does not make any submission or request an order about that by-law. I will therefore not deal with by-law 1.
3. Obstruction - A proprietor or occupier of a lot shall not obstruct lawful use of common property by any person.
[154] The events and circumstances alleged to give rise to by-law 3's contraventions are said firstly to be as detailed in the by-law contravention notice issued to the respondent about by-law 3.[141] Presumably that is the notice issued under cover of the letter from the body corporate's lawyers dated 26 June 2025. It alleges:
(i) presented on the roof whilst the manager was performing the duties;
(ii) obstructed the manager by video recording him whilst he was discussing maintenance issues with the secretary for the body corporates committee (Secretary);
(iii) presented at the reception whilst the manager was performing the duties;
(iv) obstructed the manager whilst he was performing the duties by yelling that the secretary should not have been on the roof with him.
(i) approached the secretary and the proposed new manager (proposed manager) Stephen Church whilst they were on common property discussing cleaning paths and using a special high pressure hose;
(ii) began video recording the secretary and the proposed manager; and
(iii) caused an obstruction to the secretary and the proposed manager by:
(B) saying words to the effect that the secretary was "corrupting residents and his actions were illegal"
(i) obstructed occupiers of lots (occupiers) whilst they were on common property as the occupiers were loading furniture into a removal van (Furniture)
(ii) initially asked the occupiers if she could have the furniture; and
(iii) later demanded the occupiers give her the furniture, failing which she said words to the effect that she would "commenced legal action against them".
[155] Further allegations are said to be those set out in paragraphs 12 to 14 of the application submissions.[142] Paragraph 13 merely repeats the allegation regarding the furniture of 15 May 2025, set out in the contravention notice, and paragraph 14 merely states the committee resolved to issue contravention notices to the respondent. Paragraph 12 alleges:
12. On 13 May 2025, there was a significant escalation in the Respondent's conduct when she:
(a) called the Queensland Fire Department (QFD) and triggered a major emergency response at the Scheme; and
(b) yelled at the people at the Scheme words to the effect that "there was no fire" and that they should "come back inside", despite the presence of QFD personnel at the Scheme.
[156] The applicant also alleges by-law 3 was again later contravened:
49. The Respondent contravened By-Law 3 during the Compliance Period because:
(a) On 26 June 2025, the Respondent obstructed plumbing contractors engaged by the Applicant whilst they were lawfully using the Common Property and verbally abused the Caretaker whilst it was lawfully performing duties on the Common Property; and
(b) On or around 3 August 2025, the Respondent confronted and intimidated a cleaner whilst they were lawfully performing duties on the Common Property.
[157] The word 'obstruct' is defined in Schedule 6 of the Act, albeit not in the context of the use of common property, but regardless it seems to reflect the ordinary meaning of the word when used in relation to obstructing another person: 'obstruct includes hinder, resist and attempt to obstruct'. In another context, in Haywood v Mumford[143] Griffith CJ described obstruction as 'continuous physical occupation' of a space and in the same case O'Connor J spoke of 'obstruction which interferes to an appreciable practical extent'.[144]
[158] There is no evidence in the application from anyone to the effect that they could not use the common properly for a significant period of time to do whatever they wished to do as a result of the alleged conduct.
[159] Even if the allegations as-made were proven, I do not see a contravention of the by-law in the described conduct. I cannot see any meaningful connection between the events involving the QFD and the concept of obstruction. Even if it occurred, the conduct as described would not seem likely to have caused anything more than a temporary, brief interruption to the other persons' activities on the scheme. Of course, misusing emergency services is a serious matter, but I have no power to deal with that directly.
[160] Accordingly, I am not satisfied there has been any contravention of by-law 3.
5. Damage to Common Property - A proprietor or occupier of a lot shall not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property except with the consent in writing of the Body Corporate...
[162] The events and circumstances which give rise to by-law 5's contraventions are said firstly to be those detailed in the by-law contravention notice issued to the respondent about by-law 5. Presumably, that is the notice issued under cover of the letter from the body corporate's lawyers dated 26 June 2025. It alleges:
(a) since around 8 May 2025 the lot owner has been observed kicking the fly wire screen doors to the secretary's lot (Screen Door)
(b) the exterior of the screen door is:
(i) located on common property, and
(ii) have been marked, damaged and or defaced as a result of the lot owner's repeated kicking of them.
[163] There is no evidence in the materials of those allegations and, given no prima facie case is raised against the respondent, I draw no adverse inference against her for not denying the allegation. Accordingly, I am not satisfied by-law 5 was contravened in regard to this allegation.
[164] The applicant also says the contravention is as set out in paragraph 12 to the application, which is the allegation in relation to the QFD set out above. I cannot see any relevance of that to the by-law, and so I am not satisfied by-law 5 was contravened in regard to this allegation.
[165] The applicant says the by-law was contravened also by the following conduct:
52. The Respondent contravened By-Law 5 during the Compliance Period because:
(a) on 10 August 2025, the Respondent damaged and/or defaced the Car Park, without the authorisation of the Applicant by removing Car Park Numbers (Car Park Incident);
(b) the Car Park Incident was recorded on security cameras and clearly depicts the Respondent damaging and/or defacing the Car Park by removing Car Park Number 4 and holding it (Footage);
(c) the Footage is included in the materials with this Application;
(d) the Car Park Incident resulted in multiple calls to the Caretaker from other lot owners, querying why the Car Park Numbers had been changed; and
(e) the Applicant did not approve or consent to the Respondent damaging and/or defacing the Car Park by removing Car Park Numbers.
[166] I have found the car park incident allegations to be proven, and accordingly I find that the respondent contravened by-law 5 in that regard.
[167] The applicant applies for the following orders:[145]
[168] Section 276 of the Act empowers an adjudicator make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of this Act or the scheme's CMS, and may require a person to act, or prohibit a person from acting, in a way stated in the order.
[169] The only contraventions I have found are in relation to the respondent interfering with the car park signage, of s 167(1)(c) and of by-law 5.
[170] The applicant seeks a declaration to that effect but I see no point in making it. There is no need to clarify the legal status of anything in that regard, and so it would not resolve a dispute. A declaration has utility if it would serve to educate the public,[146] but in this instance it would not serve that purpose because it is unlikely anyone would be surprised to know that the conduct contravened the by-law.
[171] The applicant also seeks an injunction restraining repetition of the conduct.
[172] It is uncontroversial that an injunction may be granted to restrain conduct where that conduct is and would continue to be unlawful and harmful. Evidence that conduct is continuing despite the plaintiff's application, or would continue but for a temporary restraining order, will be good evidence it will likely continue in the future. Intermittent actions, such as occasional noise, can be regarded as a continuing where it occurs on a regular basis.[147]
[173] In this case, the proven conduct is limited to the respondent interfering with car park numbers. It occurred on only a small number of occasions in about August 2025. This application was lodged in October 2025, and there is no evidence it continued after August. The conduct is undoubtedly annoying to all concerned, but in itself it is relatively minor damage in the sense it would be quick and inexpensive to rectify, and minor interference with orderly parking. Even if I were to accept as true the allegation the respondent damaged Mr Trivett's door, again it seems to have been an isolated incident without recurrence. The respondent has not, to my knowledge, otherwise indicated a propensity to damage or interfere with common property. Accordingly, the question arises as to whether an injunction against the alleged specific conduct, or generally against causing damage, is appropriate.
[174] An 'injunction quia timet' may be granted where an applicant can show that, while a contravention is not presently occurring, the respondent intends to do something which will likely be unlawful and harmful.[148] The degree of probability of future occurrence and harm required to be established is not fixed; the likelihood of the conduct occurring must be weighed against the degree of seriousness of the harm, the inconvenience to the restrained person and the requirements of justice between the parties. However, it must be shown that there is some likelihood that the conduct will occur; it is not sufficient for the plaintiff merely to express a fear of threatened harm. Quia timet relief will not be granted where there is no evidence of any intention on the part of the defendant to act unlawfully.
[175] In this case, the history of the alleged actions suggest that, if anything, they have abated, and so the probability of recurrence seems low. The applicant has shown no propensity for causing serious damage to common property. Accordingly, I decline to make an injunction order about it.
[176] As to the requested order for Communication Guidelines, I have not found any contravention in the respondent's communications with the body corporate. I have found at most that the respondent sometimes speaks and acts inappropriately. I have discussed above adjudicators' usual approach to this issue. The applicant refers me to two authorities for the proposition that I have power and good reason to make the requested orders: adjudications Plantation at Rainbow Accommodation [2022] QBCCMCmr 12 and Tank Tower [2015] QBCCMCmr 322. In the first of those decisions, the adjudicator made orders very similar to orders regarded by Member Lumb in Bryson as probably beyond power. The second authority is the Tank Tower[149] decision, which is distinguishable on the basis there was a contravened by-law governing communications, and in any even I have doubts that such by-laws are valid or otherwise reasonably enforceable. Those decisions do not have the weight for which the applicant contends.
[177] But even if I did have power to make such orders, the requested order goes well beyond anything even alleged in this application, let alone proven. For example, I am given no reason why the respondent's written letters must be limited to two A4 pages.
[178] I am therefore not convinced that I can, or that otherwise I should, make an order regulating the nature of a lot owner's communications with the body corporate, its committee or its contracted services providers.
[179] For the reasons above, the application is dismissed in its entirety.
[180] The respondent ought to be aware that, if behaviour of this type continues, and there is evidence provided of its effect, and if an application is made by an appropriate person, the risk of orders being made against her will rise considerably.
[181] The owner and occupier of Lot 30, Mr Goodwin, may wish to consider making his own application in regard to the smoking insofar as it affects his enjoyment of his lot and/or associated hazard.
[1] Hunt Leather Pty Ltd v Transport for NSW; Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53
[2] See generally Act, ss 227(1), 229(3), 238(1), 276(1)
[3] See for eg Kioa v West (1985) 159 CLR 550. Limited exceptions, not relevant to this application, apply in this jurisdiction if the application must be decided urgently or there is no dispute to be resolved and no-one is likely to oppose the application.
[4] See eg TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83
[5] Hablethwaite v Andrijevic [2005] QCA 336 per Keane JA at [28]
[6] Grut-Mackay v Cherwood Lodge [2004] QDC 229 at [21]; discussed in Cox v Body Corporate for Grand Pacific Resort [2007] QCCTBCCM 001 at [40]- [41]
[7] See for example the discussion of the investigation obligation by Member Barlow KC (as his Honour was then) in Body Corporate for Grand Pacific Resort CTS 29576 v Cox [2012] QCATA 14 at [36]- [49], with reference to Hablethwaite v Andrijevic [2005] QCA 336, Grut-Mackay v Cherwood Lodge [2004] QDC 229, and Cox v Body Corporate for Grand Pacific Resort [2007] QCCTBCCM 001
[9] Varglien & Anor v Body Corporate for Camden [2026] QCATA 56 at [118]
[11] Pochi v Minister for Immigration & Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482, at 492-493 per Brennan J (as he then was)
[12] [1938] HCA 34; (1938) 60 CLR 336 at 361-2
[14] [1984] HCA 35; (1984) 156 CLR 152 at 157
[15] In some circumstances, the burden may provisionally shift to a respondent; see for example under the heading 'Burden of proof'. See also Leader Computers P/L v Hakim and Wilson [2009] SADC 94 at [92] and [93] citing the House of Lords decision in Brown v Rolls Royce Ltd [1960] 1 All ER 577 at [581] and [582]. Also see J D Heydon, Cross on Evidence, (10th Edn, 2015), LexisNexis Butterworths (Australia) at pp [320] and [321]
[16] Grut-Mackay v Cherwood Lodge [2004] QDC 229 per McGill DCJ at [21]; cited with agreement for eg in Klinger & Anor v Body Corporate for Costa D'Ora Apartments [2007] QDC 300 at [47]
[19] The law of torts is part of the common law, adopted in many jurisdictions around the world, including Australia. It gives a claimant a right to sue for a remedy for conduct by another which infringes upon a legally recognised right, including for example rights associated with the possession and ownership of land.
[20] For eg Miles & Anor v Body Corporate for Solarus Residential Community Titles & Ors [2016] QCATA 130. Unlike in tort, the remedy of damages is not available under this Act.
[21] The 'unreasonable' element for private nuisance is now expressed differently but to all intents and purposes is the same test. See below the discussion of Hunt Leather Pty Ltd v Transport for NSW; Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53
[22] (1997) QCA 33; [1998] 2 Qd R 417 at 436
[23] Macquarie Dictionary; Mirana Investments Pty Ltd and Ors v Coupe [2012] QCATA 187 at [48]; Pittman v Newport [2022] NSWCATCD 173 at [79]. Pelican Waters Resort [2024] QBCCMCmr 170 considers the meaning of 'hazard' in more detail.
[24] See for eg Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53 and generally my discussion of standing in Somerset Gardens [2025] QBCCMCmr 297 at [72]- [89].
[25] Eg, as in Hunt Leather. See also Delga Nominees Pty Ltd And The Owners Of 5 Gale Street Busselton (Strata Scheme 25723) [2025] WASAT 7 at [87]
[27] See eg Delga Nominees Pty Ltd And The Owners Of 5 Gale Street Busselton (Strata Scheme 25723) [2025] WASAT 7 at [83]
[28] The Owners - Strata Plan 85044 v Murrell; Murrell v The Owners - Strata Plan 85044 [2020] NSWSC 20
[29] See for eg Neverfail Pty Ltd as Trustee for The Harris Siksna Family Trust & Anor v Radford [2016] QCATA 203; McCall v Martin & Anor [2017] QCATA 103 at [58]
[32] Miles & Anor v Gough & Ors [2017] QCA 190
[33] Miles & Anor v Gough & Ors [2017] QCA 190 at [14]
[34] [2010] QCATA 27 at [13]- [14]
[35] Miles & Anor v Gough & Ors [2017] QCA 190 at [12]
[36] See for eg Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287; Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1, cited with approval by Gageler CJ in Hunt Leather at [15]
[37] Hunt Leather Pty Ltd v Transport for NSW; Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53
[39] Sedleigh-Denfield v O'Callaghan [1940] UKHL 2; [1940] AC 880 at 904, referred to in Hunt Leather at [19]
[41] [2016] QCATA 203 at [83]- [84]
[42] [2012] WASCA 79 at [118], by reference to Marsh v Baxter [2015] WASCA 169
[43] Miles & Anor v Gough & Ors [2017] QCA 190 at [13]
[45] Eg Hunt Leather at [12]; [94]
[46] (1862) 3 B & S 66 [122 ER 27] at 84; followed in Hunt Leather at [39], [101], [199], [264]
[47] Eg Hunt Leather per Gageler CJ at [15]-[23], citing Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 and Elston v Dore [1982] HCA 71; (1982) 149 CLR 480
[50] For eg see Hunt Leather per Gordon and Edelman JJ at [57]; Beech-Jones J at [265]
[51] Eg Hunt Leather at [12]; [94]
[52] Hunt Leather per Gordon and Edelman JJ at [101]
[55] [2026] SADC 14 for eg at [112], [123]-[125]
[56] Hunt Leather per Gageler CJ at [35]
[57] Hunt Leather per Gordon and Edelman JJ at [133]
[60] Hunt Leather per Gageler CJ at [16]
[61] Paul Joseph Fitzsimon v Olympia Homes Pty Ltd ACN 600 940 243; Astrid Georgegina Scott v Paul Joseph Fitzsimon [2026] NSWDC 3; Fullston v Schultz & Rumsewicz [2026] SADC 14
[62] Clifffall Pty Ltd v Wollongong City Council [2026] NSWSC 84 at [49]
[63] Miles v Body Corporate for Solarus Residential Community Titles & Ors [2016] QCATA 130 at [130]; Delga Nominees Pty Ltd And The Owners Of 5 Gale Street Busselton (Strata Scheme 25723) [2025] WASAT 7 at [81]
[64] Hunt Leather per Gordon and Edelman JJ at [94]; per Jago J at [208]
[65] Fearn at [11], citing Hunter v Canary Wharf Ltd [1997] UKHL 14; [1997] AC 655
[67] Hunt Leather per Gordon and Edelman JJ at [94]
[68] News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45 per Gleeson CJ at [18]
[69] Hunt Leather per Gordon and Edelman JJ at [104]
[70] Hunt Leather per Gordon and Edelman JJ at [106], citing Sedleigh-Denfield v O'Callaghan [1940] UKHL 2; [1940] AC 880 at 903.
[72] See for eg Gordon and Edelman JJ in Hunt Leather at [123] referring to an extract from draft of the American Law Institute Restatement of the Law (Fourth) Property, Tentative Draft No 5 (2024), vol 2, Div I, Ch 2, ss2.1, 2.2.
[74] Hunt Leather per Gordon and Edelman JJ at [108], [128]
[75] Hunt Leather per Gordon and Edelman JJ at [108]
[76] See eg Dejanovic v Sheppard [2025] VSC 588 at [79]
[77] Hunt Leather per Gordon and Edelman JJ at [109]
[78] Hunt Leather per Gordon and Edelman JJ at [116]
[79] Robinson v Kilvert (1889) 41 Ch D 88, cited with approval in Fearn at [25]
[80] [1902] AC 381, cited with approval in Fearn at [25]
[81] Hunt Leather per Gordon and Edelman JJ at [107]
[82] Hunt Leather per Gordon and Edelman JJ at [134]
[86] Hunt Leather per Gordon and Edelman JJ at [110]
[87] Hunt Leather per Beech-Jones at [276]
[88] Hunt Leather per Gordon and Edelman JJ at [120]
[89] Frost v Northern Beaches Council [2022] NSWSC 1214; (2022) 110 NSWLR 265, 273 [25] (Brereton JA).
[90] Southern Properties (WA) Pty Ltd and Anor v Executive Director of the Department of Conservation and Land Management and Anor [2012] WASCA 79; (2012) 42 WAR 287, 310 [118].
[91] Hunter v Canary Wharf Ltd [1997] UKHL 14; [1997] AC 655 at 707
[92] R v Ong [2001] 1 Cr App R(S) 404
[93] Fearn per Lord Leggatt at [23]; Walter v Selfe [1851] EngR 335; (1851) 4 De G & Sm 315, 322
[94] Hunt Leather per Gageler CJ at [13]; Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40 and Benning v Wong (1969) 122 CLR 249 at 297.
[96] Harrison v Southwark and Vauxhall Water Co [1891] 2 Ch 409
[98] Hunt Leather per Gordon and Edelman JJ at [96]
[99] Hunt Leather per Gordon and Edelman JJ at [137]
[100] Hunt Leather per Beech-Jones J at [274]; Fearn at [58]
[102] Hunt Leather per Gordon and Edelman JJ at [113]
[103] Hunt Leather per Gordon and Edelman JJ at [65] addressing 'conveniently done' hypothetically, having found that the purpose was not common and ordinary; and [135]-[137]; Beech-Jones J at [299] having found that the use was common and ordinary.
[104] Hunt Leather per Beech-Jones at [274]
[105] Hunt Leather per Gordon and Edelman JJ at [111]; Beech-Jones J at [274]
[106] Hunt Leather per Gordon and Edelman JJ at [111]; Beech-Jones J at [266], [274]
[108] Eg Miles & Anor v Body Corporate for Solarus Residential Community Titles & Ors [2016] QCATA 130
[109] See for eg Murphy Operator V Gladstone Ports Corporation (No 9) [2023] QSC 35; White V Brisbane City Council [2025] QSC 318
[110] Hunt Leather Pty Ltd v Transport for NSW [2023] NSWSC 840 at [950], citing Onus v Telstra Corporation Limited [2011] NSWSC 33
[114] PYA Quarries at p.197; Rimmington at [47]
[115] [1996] EWCA Crim 428; [1997] 1 WLR 367; also for eg R v Norbury [1978] Crim LR 435; R v Millward (1986) 8 Cr App R(S) 209
[117] Rimmington per Lord Bingham at [6], [38], per Lord Rodger at [49], per Baroness Hale at [58]
[118] Rimmington per Lord Rodger at [49]
[119] [1994] QB 279 at 289
[120] R v Stephens (1866) LR 1 QB 702; see also Rimmington at [15]-[17]
[121] For eg R v Madden [1975] 1 WLR 1379 per James LJ at p. 1383
[124] LexisNexis Halsbury's Laws of Australia (online) (C) Public Nuisance [415-1035]
[126] See for eg: Proximity One [2016] QBCCMCmr 416; Drift Palm Cove [2021] QBCCMCmr 148; Addison Quays [2025] QBCCMCmr 42
[129] Delegated legislation (and by extension a by-law) is invalid if it contradicts or is repugnant to, or inconsistent with, the Act under which it is made.
[130] Redman v The Proprietors - Fairway Island GTP 107328 [2020] QDC 68 at [20]; The Proprietors - Rosebank GTP 3033 v Locke & Anor [2016] QCA 192 at [37]
[131] Proximity One [2016] QBCCMCmr 416
[132] Bearing the file name '2025.08.13 Susan Kovac Parking Bay Security Footage (1) (1)'
[133] Bearing the file name '2025.08.13 Susan Kovac Parking Bay Security Footage (2) (1)'
[134] Application submissions at [54](b)
[135] Application submissions at [11]
[136] Application submissions at [9] and [10]
[137] Application submissions at [23]
[138] Application submissions at [19]
[139] Application submissions at [8]
[140] (1997) QCA 33; [1998] 2 Qd R 417 at 436
[141] Application submission at para 48(a)
[142] Application submissions at 48(b)
[145] Application submissions paragraph 26
[146] See for eg ACCC v Chaste Corporation Pty Ltd (in liquidation) [2005] FCA 1212 at [146]- [147]
[147] Dejanovic v Sheppard [2025] VSC 588 at [57]; United Utilities Water Ltd v Manchester Ship Canal Co Ltd [2024] UKSC 22; [2025] AC 761, 771 [7]. That is not to confuse a continuing nuisance with the concept of 'continuing a nuisance', where the defendant did not create the circumstance causing the nuisance but they had actual or constructive knowledge of it and failed to take reasonable steps to prevent it.
[148] See generally Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd [1997] FCA 9; (1997) 72 FCR 261 at 269-271 and CSL Ltd v Glaxosmithkline [2006] FCA 1301; (2006) 70 IPR 128 at 143-144; Hurst V State Of Queensland (No 2) [2006] FCAFC 151 at [20]- [24]
(1985) 159 CLR 550
(1979) 36 FLR 482
(1938) 60 CLR 336
(1984) 156 CLR 152
(2012) 42 WAR 287
(2015) 49 WAR 1
(1962) 108 CLR 12
(1982) 149 CLR 480
(1937) 58 CLR 479
(2022) 110 NSWLR 265
(1963) 110 CLR 40
(1969) 122 CLR 249
(1908) 7 CLR 133
(1997) 72 FCR 261
(2006) 70 IPR 128