Kooba Court [2025] QBCCMCmr 146 (7 May 2025)

Act, s 59; Standard Module, s 187

1. Within 7 days of the date of this order the owner of Lot 1, Neisha Cook, must:
   1. remove and keep removed the materials hung at the front of scheme land
   2. remove and keep removed the yellow paint on the exterior brickwork and balustrades of the building, and
   3. remove and keep removed the writing painted on the lawn and take all reasonable steps to remediate the lawn.
2. Within 3 months of the date of this order and at her own expense, the owner of Lot 1, Neisha Cook, must replace the plants she removed from the front of scheme land with something agreed to in writing by the Body Corporate for Kooba Court, such as new plantings or a fence.
3. The owner of Lot 1, Neisha Cook, must not cause further damage to common property or otherwise alter common property without prior approval of the Body Corporate for Kooba Court.

• [1] This scheme is a duplex. The applicant, the owner of Lot 2, says the owner of Lot 1 has intentionally damaged the common property in breach of the legislation and by-laws.
• [2] The applicant says he acquired Lot 2 in July 2023 with the intention of renovating and renting it. He then discovered the owner of Lot 1 wants to terminate the body corporate, demolish the building, and subdivide the land. The applicant says does not wish to do so. He says that while the building is 50 years old and in need of maintenance, it is sound. The applicant asserts the owner of Lot 1 is using malicious actions to try and compel the owners of Lot 2 to agree to redevelop the property. Finding the situation unworkable, the applicant decided to sell Lot 2 but says the actions of the owner of Lot 1 prevented that. Due to the alleged conduct, the applicant withdrew the property from sale and rented it again.
• [3] Most relevantly for the purposes of this application, the applicant says the owner of Lot 1 has:
  • − removed trees on the scheme's boundary without body corporate approval
  • − replaced the trees with unattractive sheets or materials
  • − sprayed 'please demolish' in large letters on the common property grass, and
  • − sprayed yellow paint on the exterior brickwork.
• [4] The applicant seeks orders requiring the owner of Lot 1 to remedy the damage to common property. Although there are many issues in dispute between the owners, the current question is whether the by-laws or regulations have been breached and whether orders are warranted.

• [5] Kooba Court community titles scheme 12558 (Kooba Court) is a 2-lot scheme at Miami. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building units plan 2580.
• [6] This application was lodged on 4 December 2024 seeking the following orders:

1. Repair, remove or make good as appropriate, damages intentionally done to the Body Corporate Common Property, in contravention of the By Laws & BCCM Act, namely:

1.1. Materials hung along fence line, viewable from within and outside of the scheme. _ By Law 8 (2) a _

1.2. Paint on building exterior brickwork & balustrade. _ By Law 5 (1) _

1.3. Painted words on common property lawn. _ By Law 4 (1) a _

1.4. Removal of Common Property Trees. _ By Law 4 (1) a _

• [7] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[2]

• [8] The applicant originally applied for conciliation in November 2024.[3] The parties reached an agreement on some matters, but the issues on which orders are sought were not resolved.
• [9] This application was subsequently lodged. The Commissioner's delegate sought clarification from the applicant on some aspects of the application,[4] which was then amended.[5]
• [10] The Commissioner invited a submission on the dispute from the owner of Lot 1.[6] The owner of Lot 1 made a submission, which the applicant obtained and responded to.[7]
• [11] The application was then referred to department adjudication.[8] I have now investigated the issues raised by the orders sought.[9]

• [12] The submission from the owner of Lot 1 discusses a range of matters including the condition of the scheme and its neglect, works undertaken by the applicant, insurance, and noise. Relevant to the specific orders sought, the respondent says:
  1. The complaint about the trees is vexatious, as they were old, diseased and hazardous and the applicant was selling the lot. They were informed by email in July, 3 months before the trees were removed, and no opposition was received.
  2. The shade cloth is a temporary solution for privacy. She refers to a pending determination on compliance of the perimeter fence is with council.
• [13] The applicant says the owner of Lot 1 failed to respond to the subject of the application and made irrelevant and false statements, but comments on some statements. He says the owner of Lot 1 has admitted neglecting her responsibility to maintain the common property over her 20 years of ownership and has admitted the by-law breaches.
• [14] After reviewing the application, submission and reply, I sought further information from the applicant about the circumstances and current status of the four issues. I will discuss the information provided by the applicant below.
• [15] Shortly after the applicant provided his response to my queries, the owner of Lot 1 made unsolicited further submissions. She says there were new developments and indicted that there was some urgency about them. The further information relates to the condition of the building and does not refer to the issues that are the subject of the orders sought. The owner did not provide the applicant with a copy of those further submissions. In the circumstances, it is not necessary to have regard to that further information in determining this application.

• [16] The issues raised by the orders sought in this application are whether the owner of Lot 1 breached the legislation and by-laws by removing trees, spraying paint, and hanging materials on common property. I will consider the relevant legislation and by-laws and the submitted evidence in determining whether orders are warranted on those issues.
• [17] It is clear there are other issues in dispute between the parties, many of which the parties have canvassed at length. However, those matters are beyond the scope of this application. My authority to investigate and make orders on this application is limited to whether it would be appropriate to make the particular orders sought by the applicant.
• [18] If the applicant is concerned about matters such as insurance, general meetings, maintenance, or the respondent interfering with the use of common property, he can pursue those matters separately. If the owner of Lot 1 is concerned about the applicant' works, the condition of the building, or seeks the termination of the scheme, she must pursue that separately. Each party would need try to resolve issues of concern to them directly first (including submitting appropriate motions to the body corporate and then attempting conciliation if their motions do not pass). In particular, if the owner of Lot 1 is seeking to terminate the scheme, she should be aware that the legislation sets out specific processes in that regard. [10] Moreover, each party would bear the onus of proof of their claims in any application to this office.

• [19] Kooba Court was registered on 22 July 1977 as a building format plan of subdivision (BFP). It comprises Lot 1 on level A and Lot 2 on level B. Garages which form part of the respective lots are located next to Lot 1 on level A. The lots are surrounded by common property.
• [20] In a BFP, boundaries are defined by the structural elements of a building, including the floors, walls, and ceilings. Where a lot is separated from another lot or common property by a floor, wall or ceiling, the boundary is the centre of the floor, wall, or ceiling.[11] If part of a lot is outside a building structure (such as a balcony), its boundaries are also usually defined by structural elements unless otherwise specified.[12] Where a balustrade or railing is a boundary structure, the boundary will be the outer face of the balustrade or railing.[13]
• [21] For the purposes of this dispute, the exterior brick and balustrade that have allegedly been painted are on common property, as is the lawn. Any trees or plants removed were removed from common property, and the sheets or material are hung on common property.

• [22] All owners and occupiers are bound by their scheme's CMS including the by-laws.[14] The body corporate must enforce the CMS, including the by-laws.[15]
• [23] The legislation sets out processes for a body corporate to enforce the by-laws and for an individual to pursue an alleged by-law breach.[16] In accordance with that process, the applicant gave the body corporate a notice pursuant to those processes in November 2024 alleging breaches of By-laws 4(1), 5(1) and 8 as detailed in the notice.

• [24] Given the history of this scheme, it is necessary to first clarify what by-laws apply.
• [25] When Kooba Court was registered the Building Units Titles Act 1965 (BUT Act), which has since been repealed, applied. Later the Building Units and Group Titles Act 1980 (BUGT Act) was enacted and applied to Kooba Court. It too has been superseded by the current Act.
• [26] Following the commencement of the current Act in 1997, an interim CMS applied for Kooba Court (along with all pre-1997 schemes) and then (because no other CMS was recorded by the body corporate) the current CMS was automatically recorded on 15 July 2000.[17] This CMS states that the by-laws for the scheme are taken to be those in effect as at 13 July 2000.[18]
• [27] There is a common misconception in such circumstances that the by-laws in schedule 4 of the current Act apply. But that is not the case. The recording of a CMS for pre-1997 schemes was automatic but did not change the by-laws. At no time has Kooba Court recorded new by-laws.
• [28] The question then is what by-laws applied when the current Act commenced, and therefore continue to apply now.
• [29] Schedule 3 of the BUGT Act contains default by-laws. But the BUGT Act's transitional provisions provided that the former by-laws of a body corporate established before it commenced (in 1980) continued together with any of the default by-laws in schedule 3 of the BUGT Act that were not inconsistent with the former by-laws.[19]
• [30] In the BUT Act, the by-laws were contained in the first and second schedules.[20] But under section 180(1) of the current Act, a by-law is invalid to the extent that it is inconsistent with the provisions of the Act or the relevant regulation module. Adjudicators have concluded that all of the first schedule by-laws and By-law 1 of the second schedule in BUT Act are inconsistent with the current Act and regulation modules, so those former by-laws no longer have effect.[21] However, By-law 2 in the BUT Act's second schedule (about animals) would continue to apply,[22] along with the other default by-laws in schedule 3 of the BUGT Act.
• [31] This situation is not ideal. It would be preferable for the body corporate to record a new CMS with new by-laws - even if it simply adopted the by-laws in schedule 4 of the current Act - so there is a single, easily identifiable, and unambiguous set of by-laws. The recording of a new CMS would require a resolution without dissent to be passed at a general meeting.[23]

• [32] The by-laws cited by the applicant appear to be taken from schedule 4 of the Act. As explained, those by-laws do not actually apply to this scheme. However, there are similar by-laws in schedule 3 of the BUGT Act that do apply, as follows:
  1. Damage to lawns etc. on common property

(a) damage any lawn, garden, tree, shrub, plant or flower being part of or situated upon common property; or

(b) except with the consent in writing of the body corporate, use for his or her own purposes as a garden any portion of the common property.

(1) 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, but this by-law does not prevent a proprietor or person authorised by the proprietor from installing -

(a) any locking or other safety device for protection of his or her lot against intruders; or

(b) any screen or other device to prevent entry of animals or insects upon his or her lot.

(2) Provided that the locking or other safety device or, as the case may be, screen or other device is constructed in a competent manner, is maintained in a state of good and serviceable repair by the proprietor and does not detract from the amenity of the building.

In the case of a building units plan, a proprietor or occupier of a lot shall not, except with the consent in writing of the body corporate, hang any washing, towel, bedding, clothing or other article or display any sign, advertisement, placard, banner, pamphlet or like matter on any part of his or her lot in such a way as to be visible from outside the building.

• [33] By-laws 4(1) and 5(1) as cited by the applicant are very similar to the By-laws 4 and 5 that apply. The applicable By-law 8 is very similar to the By-law 8(2) cited by the applicant, but not the remainder of the by-law.
• [34] Given the similarity of the applicable by-laws to the provisions cited by the applicant in his notice to the body corporate, I am satisfied the applicant met his statutory obligation to give notice of the substance of the alleged breaches. However, I will only consider whether the owner of Lot 1 has breached the current by-laws that actually apply to Kooba Court.

• [35] The applicant refers to the disputed conduct being in breach of the Act as well as the by-laws but does not identify the legislative provisions that he asserts the respondent has breached.
• [36] In addition to compliance with the by-laws, owners and occupiers have other statutory obligations in regard to lots and common property. Without detailing those at length, I will note two matters relevant to the current dispute.
• [37] A body corporate can authorise an owner to make an improvement to the common property for the benefit of the lot.[24] The Act defines an 'improvement' as including the erection of a building, structural change, and non-structural change.[25] That definition refers to the Acts Interpretation Act 1954, which defines 'change' as "includes change by addition, exception, omission or substitution." Improvements to the common property require express approval by way of a committee resolution or a general meeting resolution, depending on the nature and value of the change.
• [38] Also, the occupier of a lot must not use or permit the use of a lot or the common property in a way that causes a nuisance or a hazard or interferes unreasonably with the use or enjoyment of another lot or common property.[26]

• [39] The applicant says the owner of Lot 1 breached By-law 4 by removing trees on the boundary.
• [40] In response to my queries, the applicant says he believes the plants were removed in February 2024. He does not know the species but believes they were similar to the tree that remains. The applicant provides a photograph from the advertising material when he purchased the lot in May 2023 showing significant green vegetation at the corner of the scheme. He further provides photographs showing one remaining tree at the corner and tree stumps.
• [41] In an email to the then body corporate manager in July 2024 the applicant asked that the owner of Lot 1 be requested to restore the damaged garden at her own expense. The body corporate manager asked the owner of Lot 1 what had occurred. The owner of Lot 1 responded that she had discussed with the owners of Lot 2 removing two dead conifers and said that because a tuckeroo had grown and restricted light, they were 'reduced to dry sticks protruding from the ground'. The owner of Lot 1 subsequently provided a photograph of the scheme said to be taken in about 2004 which she said showed two conifers and a tuckeroo and said the owners of Lot 2 did not oppose her offer to remove them when it was discussed. In her submission the owner also said the trees were diseased and hazardous.
• [42] The applicant says there was a verbal discussion about the removal of vegetation and its replacement, but no written or verbal agreement to proceed and no written application to the body corporate to decide on. The applicant says the plants were covered in green leaves and showed no appearance of disease. He says they presented no hazard. However, he says they did not appear to have ever been pruned and had grown in a disorderly fashion.
• [43] The body corporate is certainly entitled to decide to remove trees or shrubs on common property or allow an owner to do so. However, an owner cannot act unilaterally. Even if the plants were unhealthy or hazardous (which is not established), or poorly maintained, or inappropriate in the location, a body corporate decision would be required to remove them. Notably, the absence of a response to a proposal to remove trees is not sufficient to authorise an owner to act. There would need to be a minuted resolution or at the very least (for the purposes of a scheme such as this) explicit written agreement between the owners.
• [44] If the owner of Lot 1 removed plants from the common property without a body corporate resolution or otherwise without the agreement of the owners of Lot 1, that would be damage common property in breach of By-law 4. It would also be an 'improvement' to common property without body corporate approval in breach of the regulations. The owner of Lot 1 does not dispute that she removed the plants. Based on the submitted material, I accept on the balance of probabilities that she did so without body corporate approval. I am satisfied the owner of Lot 1 breached the regulations and by-laws. She should remedy her breach.
• [45] The applicant says he is flexible about the solution to this issue. He says he would accept replanting the area with suitable shrubs or a professionally installed fence or screen. However, he would expect this to be done at the expense of Lot 1 and only with prior written approval.
• [46] I consider in the circumstances that it is appropriate to require the owner of Lot 1 to remedy her conduct by installing a replacement, whether plants or a fence or similar. She will be responsible for the cost of the work and must obtain written body corporate approval for the work. I will allow 3 months for the owner of Lot 1 to negotiate with the owners of Lot 2 about what replacement should be installed and then undertake the work.

• [47] The applicant then says the owner of Lot 1 replaced the trees she removed by hanging sheets or materials along the fence line.
• [48] The applicant says the materials were placed in this location in about April to May 2024. In response to my request by provided photographs confirming that they remain in situ. He confirms that there has been no request for approval of the materials, and they are unsightly.
• [49] The submitted photographs show two large pieces of (what appears to be) black shade cloth and a large piece of fabric strung along a rope tied between two brick fence pillars and a large tree at the front corner of scheme land. In earlier photographs the fabric was floral while in the recent photographs it is white or cream. On some photographs (including the most recent) the words 'demo me' is spraypainted in fluorescent orange on the outer face of one of the shade cloths. The materials are hung approximately the height of the adjacent fence panels.
• [50] The respondent does not dispute hanging the materials. She says they are a temporary solution for privacy. However, they have apparently now been there for more than a year. Moreover, any lack of privacy for Lot 1 would appear to only have arisen because the owner removed (without approval) the plants that had been in that location.
• [51] The owner of Lot 1 refers to a pending council determination on a perimeter fence. The applicant says the owner made vague references of that to him, but he has received no evidence of it and had no communication from the council about it.
• [52] The applicant cites By-law 8 in regard to this issue but that is not relevant to this dispute. By-law 8 relates to hanging or displaying things on a lot in a manner that is visible from outside the building. However, the material in this case is on the common property and not a lot.
• [53] However, I consider that hanging these items for an indefinite time on common property is a change to the common property that would require body corporate approval. There is clearly no such approval. Even if there was an issue to be determined by council about the boundary fence (which is not substantiated), that would not entitle the owner of Lot 1 to unilaterally hang materials such as this on common property. It is also arguable that the conduct is a nuisance.
• [54] I am satisfied the owner of Lot 1 should promptly remove the materials.

• [55] The applicant says the owner of Lot 1 breached By-law 4 by painting words on the common property lawn below his first-floor balcony.
• [56] The applicant says the owner of Lot 1 sprayed the words 'DEMOLISH PLEASE' in large letters on the grass in mid-July 2024. He says the owner resprayed the lawn recently, presumably because the original was fading. He says it now says 'DEMO REQ'. He provides photographs evidencing the words these words in large letters covering a large area of lawn.
• [57] The owner of Lot 1 did not comment on this issue.
• [58] Based on the submitted material, I am satisfied on the balance of probabilities that the owner of Lot 1 has spray-painted and repainted writing on the common property lawn without body corporate approval. I am satisfied this damaged common property in breach of By-law 4. It is also arguable that the conduct constitutes a nuisance.
• [59] I am satisfied that the owner of Lot 1 should promptly remedy the damage to the lawn.

Issue 4 - Paint on the brickwork and balustrades

• [60] The applicant says the owner of Lot 1 breached By-law 5 by painting exterior brickwork on the building and balustrades. He says the yellow spray paint is an attempt to highlight small cracks in the brickwork and makes the property look unattractive.
• [61] The owner of Lot 1 did not comment on this issue.
• [62] In response to my query, the applicant says the painting occurred in mid July 2024. He says the owner of Lot 1 claimed the paint would fade or wear off, but it has not.
• [63] The applicant provides photographs of yellow spray paint on the brickwork of the upper level of the scheme and yellow spray paint on the base of dark coloured balustrade posts. The applicant then provided a recent photograph showing the paint was still evident.
• [64] Based on the submitted material, I am satisfied on the balance of probabilities that the owner of Lot 1 has sprayed paint on the exterior wall and balustrades, which is common property. I am satisfied this damaged common property in breach of By-law 4.
• [65] I am satisfied that the owner of Lot 1 should promptly remedy the damage.

• [66] As outlined, I am satisfied the owner of Lot 1 has breached the regulations and the by-laws by removing plants from common property, hanging materials of common property, damaging the lawn, and spraying paint on the exterior walls and balustrades, without approval. I will make orders requiring the owner of Lot 1 to remedy these matters.
• [67] I will also make a declaration that the owner of Lot 1 not to engage in such conduct in future. The owner of Lot 1 must understand that regardless of her views about the condition of the scheme, she must comply with the regulations and the by-laws. She must not damage or otherwise alter the common property without prior approval of the body corporate.
• [68] As I noted above, I have only determined the specific issues raised by the orders sought in this application. However, I will make two brief observations to assist the parties in moving forward on the other issues that are clearly in dispute between the parties.
• [69] First, I note that regardless of who historically held positions on the committee, the legislation determines in a 2-lot scheme such as this the required executive positions on the committee (the chairperson, secretary and treasurer) are held jointly by the owners or nominees of the owners of each lot unless there is agreement as to which position each is to hold.[27]
• [70] Furthermore, the body corporate has a statutory obligation to maintain the common property in good and structurally sound condition which will apply regardless of whether individuals consider there is any utility in undertaking maintenance.[28] Unless there is an agreement or a determination to terminate the scheme in accordance with the statutory processes, the body corporate must meet its statutory duty to undertake all required maintenance.

[2] Sections 227, 228, 276 and schedule 5 of the Act

[11] Sections 48C and 49C(4) of the Land Title Act 1994

[12] Registrar of Titles Directions for the Preparation of Plans, Department of Natural Resources, Mines & Energy, 1998-2018, paragraphs 9.6.3 and 4

[13] Registrar of Titles Directions for the Preparation of Plans, Department of Natural Resources, Mines & Energy, 1998-2018, paragraph 9.6.1

[21] For example, The Bay Apartment [2010] QBCCMCmr 41

[22] For example, Surfwood [2011] QBCCMCmr 558; Surfwood [2012] QBCCMCmr 144, Margate Palms [2017] QBCCMCmr 92, and Surfwood Body Corporate v Painter [2012] QCATA 247

[24] Section 187 of the Standard Module

[27] Sections 9(2) and 13(5) of the Standard Module

[28] Section 180 of the Standard Module