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

APPLICATION FOR INTERIM ORDER - where the body corporate claims a 15 year old garden on common property was installed in breach of the by-laws and the committee issued a contravention notice requiring its removal within seven days; where the applicant argues that was unreasonable, the body corporate has approved or acquiesced to the garden, and the disposal of a body corporate asset requires general meeting approval; whether to prevent the removal of the garden on an interim basis while the application is decided.

Act, ss 11(1), 94(1)(b), 100(5), 279(1); Standard Module, ss 12(1)(a), 182, 190.

[1] Mr Steuer of lot 2 has a garden on common property that the body corporate has directed him to remove. He says the garden has been there since 2015 and was installed with the permission of the then body corporate manager.

[2] Another owner wrote to the body corporate manager about the garden in October last year, describing it as "unruly and neglected" and suggesting that it be maintained or removed. Mr Steuer says he addressed those concerns over the ensuing months, resolving them by 8 March 2026.

[3] Yet on 10 March Mr Steuer received a by-law contravention notice claiming he had approximately 50 pots and plants on the common property in breach of by-laws 3, 4, 5 and 7. The notice required him to cease the contravention within seven days and was accompanied by a quotation from BD Clark Electrical & Maintenance for $1,639 for the plants' removal and disposal.

1. a seven day ultimatum for a 15 year old garden, issued after the problems had already been rectified, is "inherently unreasonable and punitive"
2. a general meeting resolution is required to authorise the disposal of a body corporate asset, and
3. the body corporate has acquiesced to the garden and cannot now require him to remove it.

1. An order that the Contravention Notice date 10 March, 2026 is invalid and of no effect.
2. An order that the applicant be permitted to maintain the garden located at Leonard Court Coorparoo 21 St Leonards St Coorparoo Qld 4151 in its current state.
3. An order that the Body Corporate be required to hold a General Meeting to allow owners to vote on a motion to formally approve of the garden.

[6] Mr Steuer is concerned that his garden may be removed by the body corporate before his application can be decided, and asks for an interim order:

...that the body corporate of Leonard Court 12889 CTS be restrained from engaging a contractor or BD CLARK contractor to enter the communal garden area to remove any plants or structures or containers until the adjudication application is finalised.

[7] I am only concerned with the interim order at this stage, which may be granted if warranted by the nature or urgency of the circumstances.[1] Central considerations include whether the applicant has raised serious legal questions with prospects of success at final orders (a prima facie case), and whether more inconvenience would be caused by granting or refusing the interim order if the opposite conclusion is ultimately reached when the application is decided.

[8] The body corporate alleges contraventions of the following by-laws:

3. Obstruction

The occupier of a lot must not obstruct the lawful use of the common property by someone else.

4. Damage to Lawn etc:

(1) The occupier of a lot must not, without the body corporate's written approval -

(a) damage a lawn, garden, tree, shrub, plant or flower on the common property; or

(b) use a part of the common property as a garden.

...

5. Damage to Common Property:

(1) An occupier of a lot must not, without the body corporate's written approval, mark, paint, drive nails, screws or other objects into, or otherwise damage or deface a structure that forms part of the common property.

...

7. Leaving of Rubbish etc. on Common Property:

The occupier of a lot must not leave rubbish or other materials on the common property in a way or place likely to interfere with the enjoyment of the common property by someone else.

[9] There is nothing in the application to indicate that anyone's use of the common property is being obstructed by Mr Steuer's plants, any plants or structures on the common property have been damaged by Mr Steuer, or that Mr Steuer is leaving rubbish on the common property (though I did not receive a submission from the body corporate, despite inviting one). The by-law contravention notice describes the contravention only as "housing approx. 50 pots and plants on the common property". Mr Steuer's photographs show the area was previously an open expanse of stones of no obvious purpose, with nothing evident that might have been damaged or obstructed by transforming it into a garden.

[10] However, there has likely been a (possibly unwitting) contravention of by-law 4(1)(b). While Mr Steuer claims the former body corporate manager approved the garden, he submitted no evidence of that. There does not appear to have been a written approval as required by the by-law. A body corporate manager is a non-voting member of the committee and lacks the authority to grant approval in any event.[2] Some form of body corporate resolution would have been necessary to authorise the garden.

[11] Mr Steuer argues that even if the correct formalities were not observed, the body corporate has acquiesced to the garden and cannot now require its removal. But he provides little detail of what the body corporate has done to convey the impression that he was entitled to continue to invest in the garden. He refers to things apparently said by a former body corporate manager and various owners and occupiers, but the most the body corporate seems to have done is failed to act to enforce the by-law for a long time. Delay alone is insufficient to establish acquiescence. Something more to encourage the belief that the body corporate did not intend to press the by-law would be required, such that it would be dishonest or unconscionable to resile from that position now.[3]

[12] Mr Steuer also says that it was unreasonable for the body corporate to issue the contravention notice after he had already resolved the concerns with the garden, and to only allow seven days for the removal of a 15 year old garden. The body corporate committee must act reasonably when making its decisions.[4]

[13] On the first point, it is not evident on the materials in the application that the contravention notice was solely motivated by the concerns raised by another owner in October 2025 as Mr Steuer apparently believes. Nor is it evident that those issues have been resolved to the satisfaction of that owner. There is still a garden on common property that lacks the body corporate approval required by by-law 4(1)(b). That is a sufficient basis for the contravention notice. The body corporate must enforce the by-laws,[5] and the committee may issue a contravention notice where it reasonably believes a contravention has occurred.[6]

[14] Seven days is probably an unrealistic timeframe, but the body corporate has not acted on it. More than a month has now elapsed and, as far as I know, the garden is still in situ. Committee members were invited to vote on a motion by 27 March to commence proceedings before the Queensland Civil and Administrative Tribunal (QCAT), 17 days after the contravention notice was issued. Even if that motion was resolved in the affirmative, it will prove ineffective as QCAT is not the correct forum for by-law enforcement in the first instance. The body corporate must lodge an application here or at the Magistrates Court.[7] By the time it passes a resolution to that effect, lodges an application, and the proceeding runs its course, Mr Steuer will have had far more than seven days to address his contravention of by-law 4(1)(b). The timeframe stated in the contravention notice seems unimportant in that context.

[15] Mr Steuer also suggests that the body corporate requires a general meeting resolution to remove his garden, describing it as a body corporate asset.[8] But he told the committee:

...the garden consists of my private property, including containers soils plants valued over $12,000 that was paid by myself.

[16] He pursued that argument in his application too, providing estimates of his expenditure on the garden. By contrast, body corporate assets are "items of real or personal property acquired by the body corporate".[9]

[17] In any event, it is not evident that the body corporate intends to unilaterally remove Mr Steuer's garden. It has issued a contravention notice requiring him to remove it and apparently intends to initiate proceedings to enforce that demand. Mr Steuer has not referred to any resolution to engage a contractor to remove it and he is presently on the committee.

[18] The committee's purpose in attaching the quotation from BD Clark to the contravention notice is unclear. The committee did not say that it intended to engage BD Clark. Unless the body corporate has increased the committee's spending limit, the committee lacks the power to give effect to the quotation.[10] Perhaps the committee intended to suggest that Mr Steuer might engage BD Clark to end the contravention.

[19] I am not satisfied a sufficient prima facie case has been made out with respect to the validity of the contravention notice to warrant the requested interim order. Nor do I see any clear indication that the body corporate intends to engage a contractor to remove Mr Steuer's garden prior to final orders. Consequently, the nature or urgency of the circumstances do not warrant the requested interim order. It is dismissed, and the substantive application can be determined in the usual course after all affected parties have had a proper opportunity to make a submission.

[3] Durward SC DCJ, B.C. Phoenician v Herme Pty Ltd, BD2346/05, 22 December 2006 (unreported) at [56]-[57].

[10] Standard Module, s 172 & schedule, "relevant limit for committee spending".