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

EXCLUSIVE USE BY-LAW - whether motion requiring a vote without dissent for a new exclusive use by-law attaching to a lot giving exclusive rights to use an area of common property failed to pass because of opposition that was, in the circumstances, unreasonable.

[1] The applicant would like to have the exclusive right to use and enjoy an area of the ground floor common property that is adjacent to his lot (the Courtyard). For the applicant to have that right, the body corporate must pass his motion for an exclusive use by-law by a resolution without dissent.

[2] The applicant proposed such a motion at the body corporate's annual general meeting (AGM) in 2024. When one owner voted against the applicant's motion, it failed to pass. At the 2025 AGM, the applicant tried again. By Motion 9, he proposed that the body corporate consent to a new exclusive use by-law for the Courtyard on condition that he pay $15,000 into the body corporate sinking fund and cover the costs of updating and lodging the documents to record the new by-law. A single vote was recorded against the motion and it failed to pass.

[3] The applicant is claiming the opposition to Motion 9 at the 2025 AGM was unreasonable in the circumstances. By this application, he is seeking an order giving effect to Motion 9.

[4] If I am satisfied all of the opposition to Motion 9 was unreasonable in the circumstances, I am empowered to give effect to the motion. For the reasons given below, I am not satisfied all of the opposition was unreasonable. Accordingly, I have dismissed the application.

[5] The scheme known as Kings Way Apartments CTS 3226 (Kings Way Apartments) is located in Kings Beach and consists of 14 lots and common property. The scheme is registered as building units plan 12388. It is subject to the Act. Its community management statement (CMS) shows Kings Way Apartments is also regulated by the Accomodation Module.

[6] The applicant is one of the owners, as a tenant in common, of Lot 1.

[7] The respondent is the Body Corporate for Kings Way Apartments.

[8] The owner of Lot 1 makes this application for final orders to resolve his dispute about his motion proposing a new exclusive use by-law for part of common property.

[9] The Commissioner invited the respondent and all owners to make a submission on the application by 13 January 2026. The owner of the lot who voted against the applicant's motion at the 2025 AGM made a submission. The applicant did not elect to inspect the submission and did not provide a reply. A dispute resolution recommendation was made on 16 January 2025 and the application was referred to department adjudication.

[10] After that date, without giving reasons for missing the deadline for submissions, the owners of another lot provided their comments on the application.

[11] An adjudicator has jurisdiction generally to make orders that are just and equitable in the circumstances to resolve a dispute between certain parties about a claimed or anticipated contravention of the Act or CMS, or about the exercise of rights or powers, or the performance of duties, under the Act or CMS.[1] Pursuant to section 276(3) and schedule 5 item 10 of the Act, an adjudicator may make:

If satisfied a motion ... considered by a general meeting of the body corporate and requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable - an order giving effect to the motion as proposed, or a variation of the motion as proposed.

[12] The parties to the dispute are the owner of a lot and the body corporate. This is a combination of parties provided for in the Act.[2] This application concerns a dispute about the exercise of voting rights by an owner and a decision by the body corporate. I am satisfied it falls within the dispute resolution provisions of the Act and within adjudicator jurisdiction.[3]

[13] I investigated the dispute, including by reviewing the application, the submission, the CMS, and the plan of registration.

[14] The applicant is an owner of Lot 1. At each of the scheme's last 2 AGMs, he has proposed a motion that the body corporate approve a new exclusive use by-law attaching to his lot. The Courtyard area is approximately 46sqm of common property at ground level that is adjacent to his lot.[4] He says the area is not accessible by any other owner.

[15] At the 2024 AGM, the owners of Lot 1 proposed by Motion 12 that the body corporate decide by resolution without dissent to grant them exclusive use over the Courtyard on the conditions the owners of Lot 1 pay for the preparation and lodgement of a new CMS and pay the body corporate the market value of the Courtyard (to be determined by a suitably qualified person). The minutes for the 2024 AGM show that there were 10 votes in favour of Motion 12 but that it failed to pass because 1 vote was recorded against the motion.

[16] At the 2025 AGM, the owners of Lot 1 again proposed a motion relating to the Courtyard. They proposed by Motion 9:

That by resolution without dissent, subject to the owners of lot 1:

1. paying to the body corporate the market value of $15,000 (as determined by the suitably qualified valuer) for the extension to the exclusive use area adjacent to Lot 1, and
2. paying for the updating, preparation and lodgement of the revised community management statement (CMS)

the body corporate consent to record a new CMS by extending the exclusive use courtyard

allocated to lot 1 by replacing the exclusive use sketch plan marked "A" with a new sketch plan

generally as depicted in the plan and that any two members of the committee be authorised to

execute and affix the body corporate's seal to the new CMS and do all things (including signing

any documents and answering any requisitions) required to record the new CMS at the

Queensland Titles Registry.

[17] The minutes for the 2025 AGM show that there were 8 votes in favour of Motion 9 but that it failed to pass because 1 vote was recorded against the motion.

[18] The applicant says on two occasions now, the motion by the owners of Lot 1 for exclusive use over the Courtyard has failed to pass because one owner has voted against. He suggests this is unreasonable in circumstances where:

1. the Courtyard is not accessible to other owners
2. the Courtyard is currently maintained by the applicant and not the body corporate because the body corporate has no way of accessing it to maintain it
3. the owners of Lot 1 have offered a fair and reasonable price for the exclusive use $15,000), which is based on a professional valuation, and which equates to more than $1,000 per owner being contributed to the sinking fund
4. the owners of Lot 1 have offered to pay for the costs of updating the CMS
5. the owners of Lot 1 will bear the cost of maintaining the Courtyard, and
6. a grant of exclusive use of the Courtyard will have no impact on other owners.

[19] The applicant says he understands the owner who voted against the motions did so based on the misconception that his motion for exclusive use is related to or affected by other proposals that would require changes to the CMS. He does not think it fair that his motion "is held up because of reasons that have no impact."

[20] For these reasons, the applicant is seeking a final order that the body corporate's decision not to approve Motion 9 at the AGM held on 25 March 2025 be overturned and the motion deemed approved.

[21] An owner who has voted against the applicant's motion for exclusive use made a submission about the application.

[22] The owner says she was the chairperson of the body corporate in 2023. She says, at that time, the committee received legal advice that Kingsway Apartments had not updated its CMS since 1992 and that "until a unanimous vote was reached in the complex's common property exclusive use CMS for units 11,12,13, 14, and 2 there should be no additional common property for Unit 1 added."

[23] She says she voted against the motion because

1. of the legal advice the committee received prior to the motion for exclusive use that was proposed at the 2024 AGM
2. there has been no new CMS drafted or submitted for a vote
3. only Lot 1 has been surveyed and, in her view, the whole building would need to be re-surveyed and additional valuations would need to be made in order for a new and updated CMS to be accepted
4. on that basis, the owner believes the valuation given and the price for exclusive use of the Courtyard is undervalued, and
5. the previous owner of Lot 1 did up the garden with herbs and flowers for all unit owners to enjoy.

[24] The owners of another lot provided their comments on the application. They say generally that the applicant only purchased Lot 1 a few years ago and the lot already has a large amount of exclusive use area. They say access to the Courtyard needs to remain public and more than one owner objects to the applicant's proposal. They say they personally have voted "NO" and object "on the grounds of equity, fairness, maintenance and safety."

[25] The owners claim the applicant has repeatedly breached by-laws at the scheme, including by constructing a fence over common property to effectively give himself exclusive use over the Courtyard. They say generally it would not be fair to grant the applicant further privileges when other owners respect and adhere to the rules and regulations of owning and using property as part of a body corporate scheme.

[26] Regarding the applicant's claim that the Courtyard is not accessible by other owners, they say this is incorrect. They say further that the Courtyard:

1. contains utility infrastructure, is located close to the mapped fire hydrant, and provides an alternative evacuation route should the main stairwell be compromised
2. was left as common property on the original development plans for access and maintenance purposes for the rear of the entire building
3. is maintained by the body corporate
4. can be accessed by any owner if they wish and contains a sunny area to sit and gardens, and
5. they personally use it to check the waterproofing of external windows.

[27] The primary question for determination in this application is whether I am satisfied all of the opposition to Motion 9 proposed at the 2025 AGM was unreasonable in the circumstances. If I conclude it was, I may make an order giving effect to Motion 9 as proposed, or a variation of Motion 9.

[28] Before proceeding to make determinations for the application, I will briefly describe the applicable legal principles.

Common property - rights, powers, and obligations

[29] Lot owners have a property interest in the common property of the scheme "as tenants in common, in shares proportionate to the interest schedule lot entitlements of their respective lots."[5] This property interest gives rise to other rights.

[30] Lot owners have a right to propose a motion to change the community management statement (CMS).[6] An owner may propose a motion to add a by-law attaching to their lot giving the occupier of the lot exclusive use rights over an identified part of common property.[7]

[31] To succeed, a motion for an exclusive use by-law must be approved by a resolution of the body corporate passed without dissent.[8] By requiring a vote without dissent for an exclusive use by-law, the Act effectively gives each owner the right and power to protect their proprietary interest in the common property. The right is exercised by voting no to a proposal for an exclusive use by-law. In other words, each lot owner effectively has a right of veto for motions proposing new exclusive use by-laws.[9]

[32] Although the right to vote against a proposal might be unlimited, the practical effect of a dissenting vote(s) is not. Where an adjudicator is satisfied that the dissenting voter(s) exercise of their right to vote no was based on grounds of opposition that, in the circumstances, are unreasonable, the adjudicator can deem the motion passed.[10]

[33] In Ainsworth v Albrecht [2016] HCA 40, the High Court was considering a dispute about a motion brought by an owner for an exclusive use by-law. Like Motion 9 at issue here, the motion in Ainsworth required a resolution without dissent and failed to pass. In Ainsworth, the owners of 7 lots opposed and voted against the motion. The High Court found the dispute was primarily about the exercise of rights and powers under the Act.[11] Having determined the primary nature of the dispute, the High Court then considered which legal test was to be applied to resolve the dispute.

[34] The High Court found, for motions requiring a vote without dissent, adjudicators were expressly empowered by the Act to effectively override lot owners' dissenting votes in limited circumstances.[12] Specifically, that schedule 5, item 10 provides if an adjudicator is satisfied a general meeting motion requiring a resolution without dissent "was not passed because of opposition that in the circumstances is unreasonable," then an adjudicator may make "an order giving effect to the motion as proposed, or a variation of the motion as proposed."[13]

[35] Accordingly, the High Court held the test to be applied in a dispute about dissenting votes cast for a motion requiring a resolution without dissent - including a motion proposing a new exclusive use by-law - is whether the adjudicator is satisfied the motion did not pass because of opposition that in the circumstances was unreasonable.[14]

[36] More specifically, when applying the test, the High Court also found:

1. An adjudicator's role is to determine whether it was objectively unreasonable for the dissenting voters to oppose the motion.[15] An adjudicator is not to balance competing interests nor substitute their own subjective view as to what is fair and equitable.[16]
2. The unreasonableness of the opposition is to be determined in the context of the opposing lot owners voting against the motion having regard to their proprietary interest in the scheme.[17]
3. The opposition of a lot owner will not be unreasonable simply because the owner is acting in their own self-interest. Lot owners are not expected to vote to assist another lot owner where the enhancement of the proponent's interest is reasonably viewed as adverse to the interests of the opponent.[18]
4. It is not necessarily unreasonable for a lot owner to vote to conserve their property interest, even if they are presently not using that interest. For example, in some cases, a lot owner may reasonably expect to be offered something in return for transferring the interest to another lot owner.[19]
5. However, "opposition to a proposal that could not, on any rational view, adversely affect the material enjoyment of an opponent's property rights may be seen to be unreasonable."[20]
6. Similarly, opposition that is not bona fide or able to be supported,[21] or is prompted by spite, or ill-will, or a desire for attention, may be seen to be unreasonable in the circumstances of a particular case.[22]

[37] The burden is on the applicant to satisfy the adjudicator the motion failed to pass because of opposition that in the circumstances was unreasonable.[23]

[38] More recently, in considering an appeal of a decision about a motion requiring a resolution without dissent,[24] Member Oliver of the Queensland Civil and Administrative Tribunal (QCAT) confirmed the role of an adjudicator is to "consider the quality of the grounds of opposition of each dissenting lot owner."[25] He suggests that the consideration involves assessing whether a particular ground of opposition is relevant to the substance of the proposal and relates to the change in the dissenting voter's propriety interest.[26]

[39] For the matter before him about a motion proposing the disposition of common property, Member Oliver phrased the question to be answered as whether: "there [was] any reasonable objection as to why the disputed area, over which the appellant had exclusive use, should not now be amalgamated into [the owner's lot]."[27]

[40] To summarise, without being exhaustive or prescriptive, as an adjudicator I consider my tasks are:

1. to first identify the substance of what is proposed by the applicant's motion
2. to consider and make findings of fact about the circumstances of the scheme and the motion
3. then, for each ground of opposition, to separately consider
   1. if and how the ground of objection is relevant to the substance of the motion,[28] and
   2. whether and specifically how the dissenter says the motion would affect the dissenting voter's property interest in common property,[29] and
4. determine, for each relevant ground of opposition that relates to a property interest, whether I am satisfied it is objectively unreasonable in the circumstances.

[41] For the last step, I note that determining whether something is unreasonable may involve considering whether the objection itself is rational and evidence based.[30]

[42] If I am satisfied all of the grounds of opposition are unreasonable in the circumstances, I may deem the motion passed.[31]

[43] However, if I am satisfied there is one (or more) grounds for opposing the motion that is not unreasonable in the circumstances, then I cannot be satisfied the motion failed to pass "because of opposition that in the circumstances is unreasonable." And, if I am not so satisfied, I do not have the power to make an order deeming the motion passed.

The substance of Motion 9 and the circumstances

[44] Motion 9 is proposing in substance that the body corporate adopt a new exclusive use by-law that gives the occupier of Lot 1 the exclusive right to use and enjoy a part of common property (the Courtyard). In other words, the motion is effectively proposing in substance that lot owners agree to give up their right to use and enjoy the Courtyard.

[45] I am satisfied from the materials and my investigations, and make the following findings of fact, about the circumstances of the scheme and the motion:

1. the Courtyard is an area of common property of approximately 46 sqm[32]
2. it is not currently the subject of any exclusive use by-law, in other words, it is unallocated common property
3. the registered plan for the scheme (BUP 12388) and the CMS for the scheme show the Courtyard has three types of boundaries, namely, boundaries that are between:
   1. Lot 1 and the Courtyard
   2. the Courtyard and adjacent non-scheme land (both the neighbouring property and the verge/nature strip), and
   3. the Courtyard and an area of common property allocated to the exclusive use of Lot 1 (Area 1B in Schedule E of the CMS)
4. the Courtyard is adjacent to and easily accessible directly from Lot 1
5. on the balance of probabilities I am satisfied that the Courtyard could be accessed directly from the Warne Terrace verge (nature strip) and could be used by other owners and occupiers because:
   1. the Courtyard shares a boundary with the non-scheme verge, and
   2. the registered valuer who prepared the December 2023 Valuation Report for the Courtyard for the applicant includes at page 13 a photo bearing the caption "Side of front garden where access can be gained to common courtyard"
6. Motion 9 is subject to the owner of Lot 1 covering the costs of changing the CMS and compensating the body corporate in the amount of $15,000 for the loss of the use and enjoyment of the Courtyard, and
7. the minutes of the 2025 AGM show the owner of one lot exercised their right to cast a dissenting vote for Motion 9 which caused the motion to fail to pass by the required resolution for a new exclusive use by-law.

[46] Although it is alleged the applicant was, at least in part, responsible for installing a fence that impedes access to the Courtyard from non-scheme land, there is insufficient information for me to make findings about the fence. In any event, for reasons that will become clear below, I do not need to make findings on that claim to resolve this dispute. Similarly, I find it is unnecessary to make findings about the assertions that the Courtyard contains water and sewerage infrastructure.

[47] The minutes from the 2025 AGM show that only one owner exercised the right to vote against Motion 9.

[48] The applicant understands that the owner of Lot 12 was the sole dissenting voter. The owner of Lot 12 acknowledges voting against the applicant's motion for a new exclusive use by-law.[33] Her reasons for dissenting can be grouped into 3 categories. I will consider each separately.

[49] The dissenting owner says in 2023, in her role as chairperson of the body corporate at the time, she received legal advice about the CMS. From that advice, she understood a new exclusive use by-law should not be added to the CMS until the body corporate made resolutions by "unanimous vote" about the exclusive use areas for Lots 2 and 11-14. Relying on that advice, she says she voted against Motion 9 because no new CMS has been drafted or submitted for a vote.

[50] The substance of what is being proposed by Motion 9 is a new exclusive use by-law for the Courtyard attaching to Lot 1 with the effect that individual owners are asked to give up their right to use and enjoy the Courtyard. However, this first basis for opposing Motion 9 is related to the process (the "how" and "when") by which changes to the CMS can be made. In my opinion, this basis of opposition is not relevant to the substance of the motion.

[51] In my view, this ground of objection is not relevant to the substance of Motion 9 nor does it relate to the dissenting owner's property rights.

[52] Moreover, even if this basis for voting against Motion 9 was relevant to the substance of what is proposed, as I understand the dissenting voter's comments, they are misconceived. Regardless of any issues with the exclusive use areas for Lots 2 and 11-14, the body corporate could nevertheless decide to adopt a new exclusive use by-law for Lot 1 and consent to only change the CMS to reflect that decision without waiting until it had made decisions about other exclusive use areas.

[53] Further, I cannot see how this basis of opposition to Motion 9 relates to or would have any adverse effects on the dissenting voter's proprietary interests in the Courtyard.

[54] I am thus satisfied this basis of opposition was not relevant to the substance of Motion 9 or to the dissenting voter's proprietary interest in the Courtyard. If this was the only basis for opposition to the motion, I would be satisfied the opposition to Motion 9 was unreasonable in the circumstances. I must, however, also consider the other grounds of opposition.

Price offered for exclusive use undervalues the Courtyard

[55] The dissenting voter also suggests she voted against Motion 9 on the basis that she considered the "valuation given and the price for purchasing unit 1 common property for exclusive use is undervalued." She appears to hold this view because the Valuation Report offered by the applicant only referenced the value of Lot 1 and the Courtyard. She takes the position that a survey of the whole building and "additional valuations" would be required for a new and updated CMS to be accepted.

[56] The amount of compensation offered by the applicant for exclusive use of the Courtyard is relevant to the substance of Motion 9. The next question is whether the opposition of the dissenting lot owner - based on her view that the compensation offered was inadequate - was unreasonable. In my opinion, this was an unreasonable basis of opposition.

[57] Firstly, the dissenting owner does not explain and I cannot understand the logic of the underlying premise that the whole building needed to be surveyed and valued in order to arrive at a valuation for the Courtyard. This view may tie in with the dissenting owner's misconception that all changes to the CMS about exclusive use areas must be considered at the same time.

[58] Secondly, the dissenting voter's views are based on suppositions about valuation methods and are not evidence-based. As noted in Draper at [75], "[s]imply making an assertion which contradicts evidence from an expert as to the adequacy of compensation offered could not be said to be reasonable."

[59] I am thus satisfied this ground of opposition was unreasonable in the circumstances. Again, if this was the only ground of opposition, I would be inclined to deem Motion 9 as passed. However, there is another basis for the dissenting owner's opposition that I must consider.

[60] In the last line of her submission, the dissenting owner says, "the previous owner of Lot 1 did up the garden with herbs and flowers for all unit owners to enjoy."

[61] In the context of the submission - which was to provide the dissenting voter's reasons for opposing Motion 9 - I find this to be a ground of opposition to Motion 9.[34] I consider it to be a reasonable inference that one of the reasons the dissenting owner opposes Motion 9 is because she does not want to give up her right to use and enjoy the Courtyard.

[62] By implication, the dissenting voter must value her right to use the Courtyard more highly than she values the applicant's offer of payment of $15,000 to the body corporate sinking fund.

[63] In my view, that is a personal preference relating to her property rights in the Courtyard with a subjective, but nevertheless rational basis.[35] I am not satisfied this ground for opposing Motion 9 was unreasonable in the circumstances.

[64] Where I am satisfied there is a basis of opposition that is not unreasonable in the circumstances, I do not have the power to make an order deeming Motion 9 passed.

[65] As referenced above, after the application had been referred to departmental adjudication, and without giving any reasons for the delay, the owners of Lot 8 provided their comments on the application.

[66] Where the minutes of the 2025 AGM record only one vote against Motion 9 and I am satisfied the owner of Lot 12 was the dissenting voter, it is not clear that the owners of Lot 8 exercised their right at the 2025 AGM to vote in dissent on Motion 9.

[67] Where I have already determined one basis for opposition by the owner of Lot 12 was not unreasonable in the circumstances, the views of the owners of Lot 8 would not change the outcome of this application. However, for completeness, and for education, I will nevertheless address their grounds of opposition.

[68] The owners of Lot 8 say generally they object to Motion 9 on the grounds "of equity, fairness, maintenance and safety." Their more specific reasons are discussed below.

[69] The owners of Lot 8 say the applicant only purchased Lot 1 a few years ago and that the lot has some of the best views in the complex and already has a considerable amount of exclusive use common property.

[70] In my view, this first ground of opposition is not related or relevant to the substance of the motion. The question of substance for owners is whether they prefer to retain their right to use and enjoy the Courtyard or to give up that right and grant the applicant exclusive rights to do so in return for a payment to the sinking fund of $15,000. Whether or not the applicant has exclusive use rights to other areas of common property does not affect nor is it relevant to that question. Accordingly, I consider this to be an unreasonable basis for opposing Motion 9.

[71] The owners of Lot 8 say the owner of Lot 1 has breached several of the scheme's by-laws including by constructing a fence over common property to effectively give himself exclusive use over the Courtyard and installing bike racks in the common property parking area. They say generally it would not be fair to grant the applicant further privileges when other owners respect and adhere to the rules and regulations of owning and using property as part of a body corporate scheme.

[72] The substance of the motion is whether owners wish to give up their own rights to use and enjoy the Courtyard in return for compensation to the body corporate and relief from maintaining the area. I am not satisfied that a subjective view of whether the applicant "deserves" exclusive use of the Courtyard is relevant to the substance of the motion. Nor does this ground of objection relate to the opposing owners' proprietary interest in the Courtyard.

[73] In the circumstances, I consider this to be an unreasonable basis for opposing Motion 9.

[74] The owners also say more than one owner objects to this proposal and the applicant's motion has been rejected on two occasions. They say the applicant has been afforded due process. I consider this to be an unreasonable basis for opposing Motion 9.

[75] I am not aware of any limits on the number of times an owner can propose a motion that the body corporate grant a new exclusive use by-law for the benefit of the proposer's lot. The composition of bodies corporate changes. Owner preferences also change. In an effort to accommodate the concerns of other owners, a proposing owner may present a revised or updated motion. Indeed, that is what happened here. While the applicant's Motion 12 at the 2024 AGM did not specify the amount of compensation to be offered, Motion 9 proposed at the 2025 AGM offered a specific amount of compensation to the body corporate in return for the exclusive use of the Courtyard.

[76] Another basis for opposing the applicant's proposal is that the Courtyard was left as unallocated common property on the original development plans for access and maintenance purposes for the rear of the entire building. The owners of Lot 8 say the Courtyard contains infrastructure owned by Utility Water, is located close to the mapped fire hydrant, and provides an alternative evacuation route to the main stairwell.

[77] While this objection may be relevant to the substance of Motion 9, I am satisfied it is unreasonable because it fails to take into account that the body corporate has the power to enter on notice an exclusive use area for the purpose of inspecting the common property to determine whether work it is required or authorised to carry out is necessary.[36] The body corporate also retains a right to enter such an area in the case of an emergency.

[78] The owners of Lot 8 dispute the applicant's claim that the Courtyard is not accessible by other owners. They say that the Courtyard:

1. can be accessed by any owner if they wish and contains gardens and a sunny area to sit, and
2. is used by them to check the waterproofing of external windows.

[79] Both of these comments relate to the owners' of Lot 8 interests and rights to use the Courtyard. The first point arguably indicates the owners of Lot 8, like the owner of Lot 12, prefer to keep the option to use the Courtyard over giving away that right to the applicant for a payment to the sinking fund. This is a personal preference and is not irrational. As such, had the owners of Lot 8 exercised their right to vote against Motion 9, I would not be satisfied this was a ground of opposition that is unreasonable in the circumstances.

[80] I am somewhat less persuaded by the second point. Looking at the registered plan, the windows for Lot 8 are not above the Courtyard so it is unclear how the owners of Lot 8 could use the Courtyard to facilitate the checking of the waterproofing of their windows. In any event, it is unnecessary to reach a final conclusion on this point.

[81] I have dismissed the application for the reasons given above.

[82] I have no doubt that the applicant will be very disappointed by the outcome of this application. He has spent a considerable sum obtaining a valuation report, has twice proposed motions at AGMs, has offered the body corporate compensation, and he appears to have the support of almost all of the owners at the scheme.

[83] The applicant (and others at the scheme) may feel it is unfair for a single owner to be able to cause the body corporate to reject an offer of compensation (supported by a professional valuation) for the exclusive use of the Courtyard solely on the basis that she prefers to retain her right to use and enjoy the Courtyard. As explained above, however, even though I was satisfied most of the grounds of opposition were unreasonable, I was not satisfied the dissenting owner's preference for retaining her right to use the Courtyard was irrational, unreasonable, or motivated by ill-will. In the words of the High Court,

Nothing in the BCCM Act suggests that a lot owner may be required by an adjudicator to assist another lot owner to enhance that lot owner's interest, or be regarded as acting unreasonably in declining to do so, at least where the enhancement of the proponent's interest is reasonably viewed as adverse to the interests of the opponent[37]

[84] In these circumstances, I have no power to make the order sought. The applicant is at liberty to propose a new motion for an exclusive use by-law at the next general meeting in the hope that preferences have changed.

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

[4] There is already an exclusive use by-law over part of common property attaching to Lot 1 on the other side of the building. This application does not concern the pre-existing allocation.

[7] See Sections 170(1)(a) and 171(2)(a) of the Act

[9] See Ainsworth v Albrecht [2016] HCA 40 at [58]- [59] and [101]

[11] See Ainsworth at [47] and [71]

[13] Schedule 5, Item 10 of the Act; see also Section 276(3) of the Act

[14] See Ainsworth at [71] and [97]

[18] See Ainsworth at [60]-[61]

[23] See Harmony Broadwater [2018] QBCCMCmr 90 at [47]

[24] The motion at issue proposed a disposal of common property.

[25] See Draper v Body Corporate for Winchcombe Place CTS 15441 & Ors [2025] QCATA 66 (Draper) at [22]

[28] Id. at [43] and Draper at [43]

[29] Ainsworth at [58] and [60]-[61]

[30] See e.g., Draper at [11]-[12] citing Re Body Corporate for Viridian; Kjerulf Ainsworth & Ors v Martin Albrecht & Anor [2014] QCATA 294 at [85]

[31] See e.g., Draper at [75] and Ainsworth at [63]

[32] See December 2023 Valuation Report for the Courtyard prepared by a registered valuer in support of Motion 9.

[33] I note there is some inconsistency in the dates referred to in the Lot 12 owner's submission. She refers to the applicant's motion for exclusive use being ruled out of order at the 2023 AGM and that she voted no to the applicant's exclusive use motion at the 2024 AGM. However, the applicant was not the owner of Lot 1 at the time of the 2023 AGM and has described twice (and not thrice) proposing a motion for exclusive use, in 2024 and 2025 respectively. Where the application is for an order about Motion 9 at the 2025 AGM, I consider it a reasonable inference that it was the owner of Lot 12 who was the dissenting voter for Motion 9 at the 2025 AGM.

[34] I consider this situation to be more like Ainsworth (a new exclusive use by-law) than Draper (at [34]), which involved a disposal of part of common property that was in a pre-existing exclusive use area.

[35] In Tamarind Lodge [2025] QBCCMCmr 294 at [34], an adjudicator found opposition to a new exclusive use by-law based on the potential negative impact of the loss of available green space was not unreasonable in the circumstances.

[36] See Section 163 of the Act. See also Waves Redcliffe [2025] QBCCMCmr 65 at [42] noting while exclusive use cannot be granted over common property utility infrastructure, this does not necessarily preclude the grant of exclusive use over an area that contains utility infrastructure.