Lato Baia [2025] QBCCMCmr 289 (25 August 2025)

INTERIM - whether an interim order that the body corporate restrict access to a common property pool area is warranted.

Act, s 167, 279; Accommodation Module, s 170.

1. The application for interim orders is dismissed.

• [1] This is an application for interim orders brought by the owner of Lot 1604 against the body corporate.
• [2] The applicant says that there is significant noise transference from the common property rooftop pool area above their lot, which causes them a nuisance. They say the noise is continuous and impacts their ability to sleep or otherwise enjoy use of their lot. The applicant also alleges various defects in the build of the area, including that there is no 'secondary waterproofing membrane under the rooftop pool slab', which they argue increases risk of structural damage and water ingress.
• [3] The applicant seeks interim relief that would require the body corporate to cease use of the common property pool terrace area above the applicant's lot. An interim order would generally have effect until the matter is finally determined. The applicant says this is necessary to stop the nuisance caused by noise from use of the pool area.
• [4] I have not made the interim orders sought, as, based on the information currently before me:
  1. I am not presently satisfied that the application raises a prima facie case regarding the final orders sought in circumstances where:
     1. The application expressly relies on section 167 of the Act, which does not appear to place obligations on the body corporate, who is the respondent.
     2. The application impliedly raises an argument that the body corporate is failing to meet its statutory maintenance obligations under the Act, however, the evidence provided does not appear to support such a claim.
  2. Even if there was a prima facie case raised, I am not satisfied that the balance of convenience justifies the interim relief in circumstances where:
     1. The interim order sought is in much the same terms as the final order sought, indicating it is not interim in nature.
     2. The interim order would significantly deprive owners and occupiers of their ability to use and enjoy the common property pool area, which is not an order that should be made lightly, even if on a temporary basis.
     3. The applicant does not provide evidence of serious harm or urgent circumstances.

• [5] The survey plans for the scheme show it is a building format plan of subdivision (BFP) of 66 lots, comprised within two towers of 10 levels, with the towers sharing two basement levels, a ground floor level and a first floor level. The scheme is also subject to a building management statement (BMS). The community management statement (CMS) shows the Accommodation Module applies.
• [6] The applicant's lot is located on 'Level I' of 'Tower 1', which is the upper most floor of Tower 1 containing lots. Above Level I, on Level J, is an area of common property marked 'roof deck'. The CMS does not show any grants of exclusive use in this area.

• [7] The applicant ultimately takes issue with the use and construction of the common property rooftop area on Level J of Tower 1, and more specifically the installation and use of the rooftop pool. The applicant says that there is noise transference from the area which impacts the use and enjoyment of their lot, including their ability to sleep.

• [8] The interim orders the applicant seeks, which are being determined at this time, read as follows:

That the Body Corporate be temporarily ordered to restrict access to the rooftop swimming pool and terrace above Lot A604 until an independent acoustic and waterproofing assessment confirms compliance with the NCC, and any necessary rectification works are completed and certified until final orders are determined.

• [9] The final orders the applicant seeks, which are not being determined at this time, read as follows:

I seek an order under Section 167 of the Body Corporate and Community Management Act 1997 (Qld) requiring the Body Corporate to cease the use of the rooftop pool and terrace common area located above Lot A604 until it can be demonstrated that the severe airborne and impact noise generated from this area no longer causes a nuisance or unreasonably interferes with my use and enjoyment of my lot.

• [10] I may make interim orders without seeking submissions from the respondent or any affected parties.[1] However, where appropriate, I may seek comment from parties the order may negatively impact. In the circumstances, I found it appropriate to give opportunity of response from the body corporate.
• [11] The body corporate argues that:
  1. The applicant should have applied for conciliation of this dispute before the matter progressed to adjudication.
  2. The interim order is not interim in nature, and is almost identical to the final order sought.
  3. The application does not raise a serious legal question insofar as:
     1. If the applicant is seeking to have the by-laws enforced, there is no evidence of a by-law contravention by any person and the preliminary procedures for by-law enforcement have not been undertaken by the applicant.
     2. It is not possible for section 167 of the Act to be enforced against the body corporate, as the section regulated the behaviour of 'occupiers'.
     3. The applicant's evidence, being an acoustic report, does not support the applicant's allegations.
     4. The applicant has failed to provide any other evidence to support the claim of nuisance or waterproofing membrane failure.
  4. The circumstances and balance of convenience do not justify interim relief as:
     1. Insofar as the applicant raises any urgency in claiming that the lot is functionally uninhabitable, those claims are not evidenced.
     2. The applicant has occupied the lot for 4 years and has not provided evidence of psychological distress.
     3. Without the interim order, the current status quo is maintained.
     4. With an interim order, the occupiers of the other 65 lots will be significantly impacted by losing access to the common property pool and facilities.
  5. The application is vexatious and misconceived, and should be dismissed pursuant to section 270(1)(c) of the Act with an order made against the applicant for the maximum amount of costs pursuant to section 270(3)(a) of the Act.

• [12] Interim orders are temporary in their effect. Typically, their purpose is to maintain the status quo, preserving a party's rights or interest until the matter can be finally determined, usually by stopping a party from taking certain actions.
• [13] The ability for an adjudicator to make an interim order is provided for in the legislation. An adjudicator may make an interim order where satisfied, on reasonable grounds, that the order is necessary due to the nature or urgency of the circumstances.[2] Adjudicators often follow the test applied by courts in interlocutory applications, being whether the applicant has shown that it has a prima facie case, and whether the applicant has shown that the balance of convenience favours the granting of the relief claimed.[3]
• [14] Therefore, to be successful in their application for interim orders, the applicant must satisfy me that:
  1. there is a prima facie case to justify relief, and
  2. the balance of convenience justifies the interim relief.

• [15] The body corporate submits that the commissioner should reject the application pursuant to section 241(1)(c)(ii) of the Act as conciliation has not been attempted, and further, that the applicant has not provided good reason as to why the application should be excused from attempting conciliation.
• [16] While the body corporate may already be cognisant of the following, for the avoidance of any doubt, I confirm that the power to reject an application under that section rests with the commissioner and not an adjudicator. Further, it is not a prerequisite that conciliation be attempted before the commissioner may refer an application for interim orders to an adjudicator.[4] However, once the interim application has been determined, the commissioner retains the discretion to refer the matter to conciliation should the dispute remain unresolved.

• [17] While I am not determining the final orders sought, determining whether there is a genuine legal issue at the interim stage requires some level of assessment of the final orders.
• [18] The onus is on the applicants to prove there is a prima facie case to justify the relief they seek. The applicants do not need to show that it is more probable than not that they will succeed. The applicants need to show a sufficient likelihood of success to justify the interim orders pending a final determination of the matter.[5] How strong the possibility of success that is needed depends upon the nature of the rights the applicants assert, and the consequences of the order sought.[6]

• [19] The application does briefly mention that the applicant wants to enforce by-laws. However, the final orders sought do not refer to any by-laws and, as the body corporate has pointed out, the preliminary procedure for enforcement of by-laws appears to have not been complied with. I do not believe the applicant is attempting to have the by-laws enforced. However, in case that is the intention, I confirm that I am not currently satisfied there is a prima facie case for doing so based on the current application.

• [20] The final orders do refer to section 167 of the Act, which provides that:

(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. [emphasis added]

• [21] The body corporate, however, is not an occupier,[7] and the language of the section does not appear to place obligation on the body corporate. Based on the material in front of me, I am not currently satisfied that section 167 of the Act can be enforced against the body corporate.

• [22] The applicant argues that the construction of the pool does not comply with the National Construction Code (NCC), in relation to waterproofing and noise transference.
• [23] It is not for an adjudicator to determine and enforce the NCC. However, while the applicant has framed their argument with express reference to the NCC, it is open to understand their argument as an allegation that the body corporate has failed to discharge its duty to maintain the common property in good condition, pursuant to section 170 of the Accommodation Module. This argument frames the dispute as one about the performance of duties under the Act.[8]
• [24] Nevertheless, there are several difficulties for the applicant in relation to this line of argument.
• [25] The application proceeds on the premise that the body corporate bears the onus of investigating and addressing matters of maintenance or defects in construction. This proposition may be somewhat correct in a broader sense, as the meaning of 'good condition' arguably includes remedying defects in the original construction.[9] However, it is not immediately clear as to whether noise transference issues, even if due to not meeting relevant building regulations, would fall within the type of defect the body corporate would need to remedy in order to meet its statutory obligation to maintain common property in good condition. Nor the need for a second membrane when one is in place.
• [26] Further, in the context of a dispute application the burden rests on the applicant to show that the relief they seek is justified. Practically, this means it is not incumbent on the body corporate, as a respondent, to demonstrate the common property is maintained in good condition (although it may choose to do so). Rather, the onus is on the applicant to evidence that it is not, or at least provide enough evidence to satisfy an adjudicator that, on the balance of probabilities, there is a maintenance issue the body corporate should investigate.
• [27] The evidence that the applicant provides includes:
  1. Video recorded inside the applicant's lot, where a person known to the applicant goes onto the rooftop and into the pool area, to demonstrate the noise transference issue (Video).
  2. Floor impact & noise impact tests and reports conducted by Acoustic Works dated 10 July 2025 (Acoustic Report).
  3. A certificate of occupancy for the scheme signed by a building certifier (Form 11).
  4. Inspection certificates for supply and installation of 'thermal acoustic performance' at the scheme (Form 16).
  5. The specification sheet regarding plasterboard and walls at the scheme (Wall Specification Document).
  6. A datasheet from a brand that provides noise isolation for swimming pools.
  7. Structural and hydraulic design document for the construction of the pool within the common property rooftop (Pool Design Document).
  8. Some photos of what I assume is of part of the common property rooftop area but no explanation or description is given.
• [28] The applicant, who does not appear to be a relevant expert, cites the above and makes claims that these evidence defects in the construction via non-compliance with the National Construction Code.
• [29] At this preliminary stage I am largely unconvinced by the applicant's evidence and arguments. As the applicant is not an expert, I presently give little weight to their claims that there are defects in the construction. Further, the documents the applicant relies upon appear to suggest the opposite. Those documents seem to state that the building is compliant. The documents include engineering designs and compliance certificates, signed and approved by relevant experts. In particular, and as noted by the body corporate, the Acoustic Report shows that the floor impact test results exceed the minimum requirements of the NCC.
• [30] In relation to noise transference from the pool itself, the report states that at the time of construction, there were no requirements under the NCC from noise impacts arising from the use of pools. It notes that there is noise transference from the pool which exceeds the background noise by 6dB. However, says this could be considered reasonable.
• [31] Most notably, the applicant's final order seeks for the area to be closed down until it can be proven that the area complies with the NCC - but the applicant's own evidence appears to already demonstrate compliance.
• [32] I am therefore, on my preliminary review, not currently satisfied that there is a prima facie case for the final orders sought.

3.3. Nature, urgency and balance of convenience

• [33] I am not satisfied that the applicant has raised a prima facie case for the final orders, which is necessary to justify interim relief. However, for completeness, I will also consider whether the nature or urgency of the circumstances, and balance of convenience, would have favoured interim relief.
• [34] My first concern is that the interim relief sought is in much the same terms as the final order sought - suggesting it is not interim in nature.
• [35] Further, the interim relief would mean denying owners and occupiers of their ability to access an enjoy common property. Access to use common property facilities is arguably a right arising by virtue of ownership of the common property as tenants in common,[10] and taking away proprietary interests is not something that should be done lightly.[11] This is not an order I would be readily persuaded to make, even if on a temporary basis.
• [36] The applicant makes complaint that their sleep is impacted, and makes mention of emotional distress which may indicate some urgency to the application. However, the applicant has resided in the lot for 4 years with the alleged noise transference issue, and has not provided expert and independent evidence of such distress. I certainly acknowledge the applicant's struggle, particularly where sleep may be impacted. Yet, in these circumstances and based on the material currently in front of me, the balance can not favour the making of an order that would so substantially interfere with the rights of others to use and enjoy the common property pool.[12]

4. Frivolous, vexatious, misconceived or without substance

• [37] The body corporate has argued that the application is vexatious and misconceived. If I find that an application is frivolous, vexatious or misconceived, I may order costs of up to $2,000 against the applicant to compensate the respondent for its losses in having to respond.[13] The body corporate seeks an order to the maximum of $2,000 reimbursement for its legal costs in preparing its submissions.
• [38] It is arguable that any unsuccessful application is misconceived to some extent. While, based on my preliminary review of the current evidence and arguments, I do not believe there is a prima facie case for the final orders, I am not minded to dismiss the interim order under section 270(1)(c) of the Act. This is because the applicant is not legally represented, and has not had opportunity to respond to the allegation that the application is vexatious and misconceived. I also do not believe this is an application that has been made with intent to frustrate.
• [39] While I will not dismiss the interim application under section 270(1)(c), I would invite the applicant to consider the comments I have made here and revaluate their application, if this dispute is to continue. I would also invite the applicant to reflect on whether the current approach and communication style with the respondent and its members is helping or hindering their request for the body corporate to act.

• [40] While I understand the applicant's frustrations regarding alleged noise transference, based on my preliminary review of the application in its current form, I am not satisfied a serious legal argument has been raised.
• [41] Section 167 does not place obligations on the body corporate. There may be some argument regarding the noise transference issue from the perspective of the body corporate failing to meet its maintenance obligations under the Act. However, this is a difficult argument to make and the applicant's evidence does not currently appear conducive to such a finding.
• [42] Even if there was a prima facie argument raised, the balance of convenience does not support the drastic step of restricting occupiers' rights to use of the common property pool area, particularly where the applicant has been occupying the lot in these circumstances for several years.
• [43] Ultimately, at this time, I am not satisfied there is a prima facie case for the final orders, nor that the nature, circumstances or balance of convenience would favour the interim relief sought.

[3] SDW2 Pty. Ltd. V JLF Corporation Pty Ltd [2017] QSC 1 at [21].

[5] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at [622-623].

[6] Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57, at [65], [19].

[7] See definition of occupier, Act, Sch 6.

[9] MAGOG (NO. 15) Pty Ltd v The Body Corporate for the Moroccan [2010] QDC 70 at [83] citing Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 at [4].

[10] Act, s 35; Enclave (River) [2025] QBCCMCmr 78 at [19].

[11] See, for example, Katsikalis v Body Corporate for "The Centre" [2009] QCA 77 at [32].

[12] Act, s 35, and in particular (4) in relation to occupiers.