Livingstonia [2025] QBCCMCmr 342 | Case summary

Livingstonia [2025] QBCCMCmr 342 | Case summary | Zoe

[8]

[1] This application is about a 'Florida room' (a sunroom) at the rear of the applicants' Lot 66 (also referred to as unit 5031). The applicants say the room was constructed before they purchased the lot in 2021, but they subsequently attached electrical conduit to the lot exterior.
[2] In August 2023 the Sanctuary Cove Resort Principal Body Corporate (PBC) told the applicants that the room was not compliant. But in October 2023 the applicants were advised the PBC did not intend to pursue the matter. The applicants sought clarification of the status of the matter.
[3] In April 2024 the respondent, a residential body corporate at Sanctuary Cove Resort, said the room did not have the necessary approvals and encroached onto common property. It said the applicants needed to modify the room and obtain the required approvals or remove the room. The applicants requested the relevant standards for Florida rooms to enable compliance, with 'interim guidelines' later provided in June 2024. They applicants say they made modifications to the room to meet the guidelines. The applicants then applied to the committee for approval of the room in July 2024. However, they were advised they needed approval by way of a resolution without dissent for the elements outside the boundary of the lot.
[4] The applicants then submitted general meeting motions. At an extraordinary general meeting (EGM) on 28 August 2024, the applicants' 3 motions were ruled out of order because they did not suitably identify the lot. Two other requests regarding Florida rooms were approved. The applicants submitted a further motion in December 2024. That motion was included on the agenda of the annual general meeting (AGM) of 26 February 2025, but was listed as requiring an ordinary resolution rather than a resolution without dissent. The applicants queried this and were told the matter could be addressed at the meeting. The applicants' motion was then ruled out of order at the AGM on the basis that it would conflict with the legislation or the by-laws. Two other requests for approvals associated with Florida rooms were approved at the AGM.
[5] The applicants accept their Florida room and conduit encroach on the common property, and it is their responsibility. However, they argue the body corporate has unreasonably refused consent to allow them to rectify the matter. They assert the body corporate has behaved unreasonably in the handling of the matter since August 2023. The body corporate has given the applicants by-law breach notices about the conduit.
[6] After this application was lodged, the committee submitted two motions for approval of the applicants' Florida room and the conduit to an EGM on 8 May 2025. Both were defeated.
[7] The applicants seek an order that the body corporate consent to the proposal put to the AGM. The substantive question is whether the body corporate has unreasonably refused consent.

[13]

[10] The body corporate opposes the application. Its submissions include:
1. The application should be dismissed for want of jurisdiction under section 78(1)(c) of the BUGT Act. When the application was lodged, it had not refused consent to the applicants' motions so jurisdiction under section 79 of the BUGT Act was not enlivened.
2. The chairperson's ruling of the motions out of order was a procedural issue and not a decision of the of the body corporate under sections 37A or 79 if the BUGT Act. The recent EGM decision does not back-date jurisdiction.
3. It wrote to the applicants in April 2025 noting no decision had been made on their motions and inviting them to withdraw the application with a correctly worded motion with the appropriate resolution be placed on the agenda for the next general meeting in May or June 2025. The applicants refused that offer. It called the EGM held on 8 May 2025. After the EGM it invited the applicants to withdraw the application. They refused.
4. The applicants voted against the EGM motions. Therefore, the application is frivolous, vexatious or an abuse of process. It should be dismissed under section 75(4) of the BUGT Act, with a costs order of $2,000 against the applicants under section 94C.
5. The applicants have not discharged their onus of establishing the body corporate unreasonably refused their motions. They rely on the ruling of the motions out of order and conflate that with a decision of the body corporate.
6. The applicants rely on irrelevant information to try and establish bias against them.
7. If not ruled out of order, the motions could have been reasonably refused where the improvements threaten the integrity, safety, or amenity of the common property.
8. The Florida room, if approved, would affect the visual amenity of the building. The electrical conduit on the external wall is visually unappealing and detracts from the aesthetics of the common property and could be routed internally.
9. The referee should not proceed until the applicants have attempted self-resolution with those proprietors who voted against the recent EGM motions.
[11] The proprietors of a lot adjacent to the applicants' lot support the application and believe the applicants have been treated unfairly. They say they were the applicants' proxy at the AGM and tried to speak for the motion but were prevented by the chairperson. They say the conduit has been in place for 3 years without issue. They say they have a direct view of the conduit and have no objection to it. They say there are many other attachments to common property that have been approved at general meetings or for which approval has never been sought.
[12] Another submission from proprietors queries the fuss over an insignificant length of conduit. They say it was installed by a certified electrician at least 3 years ago and poses no danger. They also believe the applicants have been treated unfairly.
[13] In response to the submissions, the applicants say:
1. Section 79 of the BUGT Act does not include the word 'motion'. It is not necessary for their proposal to have been voted on to establish jurisdiction. All that is required is unreasonable refusal to consent to a proposal.
2. Ruling their motion out of order constitutes a refusal to consent to the proposal.
3. The meeting acquiesced with the ruling, which amounts to a decision.
4. The chairperson did not act in good faith in ruling the motion out of order but was motivated to block their proposal in a way that prevented it being reviewed.
5. The ruling was unreasonable. It follows that the refusal to consent was unreasonable.
6. They have not received a rational explanation of how their AGM motion was listed as requiring an ordinary resolution or why the substance was out of order. They were assured directly and via their proxy the misdescription would be rectified at the AGM.
7. The error in the resolution type was the responsibility of the chairperson in his capacity as secretary. The chairperson as a proprietor and proxy voted against the motion.
8. Those who voted against the AGM and May EGM motions would not be disadvantaged by a finding of jurisdiction. They were invited to make submissions but did not do so.
9. They do not see how the voting at the EGM some 6 weeks after their application was lodged could render the making of their application vexatious or frivolous. They did not cause the motions to fail.
10. The 2025 EGM motions were not duly put. They did not request the motions. There was no discussion before the EGM was called. They were concerned that, if passed, the motions would be open to challenge.
11. Had the committee been open to discussion, they may have been prepared to resubmit their proposal to a future EGM to avoid further costs.
12. The issuing of breach notices, when they were devoting considerable time, effort, and expense to becoming compliant, was an attempt to harass and humiliate them.
13. They oppose a costs order. They have raised real issues and have made genuine attempts to resolve the issue.

[16]

[17] Section 37A of the BUGT Act provides that a body corporate may, at the request of a proprietor and on such terms as it considers appropriate, authorise the proprietor to effect improvements in or on the common property for the benefit of that proprietor. The section says improvements include erecting or installing fixtures and fittings. A resolution without dissent is required to give approval for the proposed improvements. Where approval is given, the proprietor is responsible for performing the body corporate's duties about the improvement (such as maintenance) unless excused by the body corporate.[4]
[18] A person is not entitled to submit a motion for inclusion at a general meeting unless they are entitled to vote on that motion.[5] There is no explicit power in the legislation for a committee to submit a motion for consideration at a general meeting.[6]
[19] The legislation sets out requirements for the notice of a general meeting.[7] The notice must specify, for each motion to be considered at the meeting, whether the motion requires a resolution, special resolution, a resolution without dissent, or a unanimous motion.[8] There is no explicit requirement in the legislation on a person submitting a motion to specify the resolution type required on the motion. The implication is that the onus is on the person preparing and giving the notice of the meeting to include that information.[9]
[20] The chairperson at a general meeting may rule that a motion is out of order in certain circumstances. These include if the chairperson considers the motion, if carried, would conflict with the Act or the by-laws or would otherwise be unlawful or unenforceable.[10] There is no express provision in the legislation for that ruling to be challenged by persons at the meeting.
[21] Section 17 of the BUGT Act provides for implied easements for services. It says for each lot there is an implied easement in favour of the proprietor for the passage or provision of services (including electricity) by means of any pipes, poles, wires, cables, or ducts in or over the parcel. There is similarly an implied easement against a lot for services to the common property and other lots. The easements must not be exercised by any proprietor in a way that unreasonably prevent any other proprietor from enjoying the use and occupation of their lot and the common property. Section 18 then says all ancillary rights and obligations reasonably necessary to make easements effective apply to easements created or implied under the BUGT Act.

[18]

[26] The applicants then submitted Motion 10 which was considered at the 2025 AGM. Although the intent of this motion was undoubtedly the same as the motions submitted to the August 2024 EGM, the wording was different. The motion was expressed in the same terms as the two Florida room motions that were approved at the August 2024 EGM and referred to Lot 66.
[27] This motion was also ruled out of order by the chairperson. The minutes state 'The motion, if carried, would conflict with the legislation or the body corporate by-laws' but do not explain how. No further explanation was given in the minutes for the basis for the ruling.
[28] On further enquiry, the body corporate asserts the chairperson was concerned Motion 10 sought a single approval for both the Florida room and the conduit and considered those were separate matters that required separate consideration.
[29] The applicants dispute this was the reason for Motion 10 being ruled out of order. They say this explanation was not previously raised. They also say it is inconsistent with the Florida room interim guidelines and advice from the committee which referred to a singular motion, and to the previous approvals of Florida rooms with singular motions. They further argue there is nothing in section 37A of the BUGT Act that would require separate motions. The applicants provide an email from another owner sent immediately following the AGM which said the reason given by the chairperson for ruling the motion out of order was the resolution type. The applicants assert this was the reason for the ruling.
[30] I will discuss both purported reasons for Motion 10 being ruled out of order.
[31] If Motion 10 was ruled out of order because of a belief that two motions were required, I do not consider it was a valid basis. While the chairperson might have believed the motion would have been better as two motions, that does not mean there was any legislative basis to require separate motions. There is not. Moreover, I consider the position was unreasonable where it was inconsistent with previous decisions to approve a Florida room and associated utility infrastructure in a single motion (such as 2024 EGM Motions 7 and 8 and 2025 AGM Motion 8).
[32] The motion type is a different matter. Motion 10 was listed on the AGM agenda as requiring an ordinary resolution. But it is not disputed that Motion 10 required a resolution without dissent.
[33] It seems the error originated from those preparing the agenda. The explanatory note submitted by the applicants and contained in the AGM notice requested the body corporate give approval 'without dissent'. When the notice was issued listing the wrong motion type, the applicants expressly queried it. They were told it could be notified at the AGM and considered under the correct resolution type but if there were votes against the motion, it would be lost.
[34] There is case law about the effect of a meeting notice incorrectly listing the resolution type in the context of the BCCM Act. In one, the Queensland District Court did not consider the question in detail but indicated that if motions were required to be special resolutions but shown on the voting paper as requiring an ordinary resolution, they were still capable as passing as special resolutions.[11]
[35] In a later unreported decision, the District Court also considered a motion that was listed as requiring an ordinary resolution but required a special resolution.[12] The Court accepted the voting paper was defective, but said it was a technical irregularity and there was no disadvantage to any voter. It found that the resolution was validly passed.
[36] However, subsequent decisions have taken a stricter approach. In one the District Court said the legislation used the imperative term 'must' regarding the requirement to state the resolution type so owners know before the meeting, as that knowledge may have a bearing on what they do. Accordingly, where a motion required a special resolution but was listed in the minutes as to be stated on the voting paper as requiring a special resolution, the Court said the fact that the motion achieved the majority required by a special resolution was not the point.[13]
[37] The Supreme Court of Queensland recently considered the issue where a special resolution was required for a motion that achieved sufficient votes for a special resolution but was listed as an ordinary resolution.[14] The Court said there was a practical attraction to the argument that the motion passed if it achieved the votes required. But given the mandatory words of the regulations, the Court concluded the motion was not passed by special resolution. However, the Court also accepted that an adjudicator determining an application under the BCCM Act about the motion had the jurisdiction and the capacity to declare the motion passed.
[38] The BUGT Act uses the term 'shall' rather than the word 'must' in the BCCM Act. But the context of the BUGT Act does not suggest the requirement is not similarly mandatory. Accordingly, I do not consider that AGM Motion 10 could have validly passed as listed.
[39] But given all the circumstances, I do not consider the body corporate acted reasonably in regard to AGM Motion 10.
[40] To the extent that the motion was ruled out of order because of a belief that two motions were required, I consider that was an improper ruling.
[41] To the extent that the AGM notice listed the incorrect motion type for Motion 20, I consider the motion had to be ruled out of order. But that should not have been the end of the matter. The error in the listed resolution type clearly originated from the body corporate and not the applicants. The body corporate should have acted promptly to rectify its error.
[42] If there was insufficient time after the error was identified to issue a corrected meeting notice before the AGM, the body corporate could have called a new meeting to reconsider the motion submitted by applicants under the correct resolution type. Alternatively, the body corporate could have advised the applicants that it would list their motion again at the next general meeting, and not take any action on the alleged by-law breach in the intervening time. I consider it was unreasonable for the body corporate to rule the applicants' motion out of order and then fail to take any steps to reconsider the motion as submitted properly.[15]
[43] The body corporate says the motion was ruled out of order, the voting was not tallied at the meeting. However, it says 11 votes were cast against Motion 10 from electronic or paper pre-voting. The applicants comment that of the 11 negative votes, 10 were cast by two committee members and one was cast by a friend of one of those committee members. Notwithstanding that, it is evident that if not ruled out of order, AGM Motion 10 would not have passed.

[19]

[44] Motions 2 and 3 considered at the May 2025 EGM were listed as having been submitted by the committee and requiring a resolution without dissent. The wording of the motions appears to be largely the same as AGM Motion 10 except that it was split into two motions (one for the Florida room and one for the conduit).
[45] Motion 2 was defeated with 47 votes for and 3 against. Motion 3 was defeated with 31 votes for and 18 votes against.
[46] The applicants voted against these motions. In correspondence with the body corporate after the EGM, they said that as the legislation provided for improvements at the request of the proprietor, but the motions were put by the committee and not at their request, there was uncertainty about the validity of the motions if they passed. Due to the timing, they said they had no way to discuss their concerns with the committee. They said they felt the only safe option was to vote against the motions. The body corporate included a copy of that correspondence in its submission but did not respond to the reasons the applicants gave for voting against EGM Motions 2 and 3.
[47] I consider there are two issues with EGM Motions 2 and 3. First, as flagged by the applicants, section 37A of the BUGT Act provides for the body corporate to authorise improvements 'at the request of a proprietor'. Although the applicants had previously requested the approvals contemplated by Motions 2 and 3, those specific motions were not submitted by the applicants, and they were different from the motions the applicants had previously submitted. Moreover, the applicants did not consent to the motions being put. Accordingly, it is arguable that Motions 2 and 3 did not satisfy the statutory requirement for being a request of a proprietor.
[48] The second issue is that the legislation does not expressly provide for a committee to submit motions to a general meeting. The committee may necessarily be involved in the setting of a general meeting agenda and the inclusion of statutory motions on that agenda. But it is difficult to see how the committee could validly purport to submit a motion ostensibly on behalf of a proprietor without the consent of that proprietor.
[49] It may have been simpler for the applicants to vote in favour of the committee's motions where they proposed something the applicants clearly wanted. But I agree there are genuine questions regarding the validity of EGM Motions 2 and 3. And where others voted against the motions, nothing turned on the applicants' vote.

[22]

[59] The question for a referee to decide under section 79 of the BUGT Act is whether the referee considers that the body corporate has unreasonably refused to consent to the proposal.
[60] In responding to my request for further information, the body corporate appears to rely on a test for overturning the outcome of motion requiring a resolution without dissent under the BCCM Act. It asserts that in such cases, the test is whether the dissenting votes from individual proprietors caused the body corporate to make a decision that was unreasonable. It argues that if opposition was based on a proprietor's reasonable apprehension that the proposal would adversely affect their property rights, it would not be unreasonable. It says the High Court has confirmed owners are entitled to act in their own self-interest to protect their property rights and are not required to be altruistic at the expense of those rights.[17] Accordingly, it asserts the proprietors who dissented to the motions should have the opportunity to make submissions. It also refers to a superseded practice direction issued by the Commissioner under the BCCM Act as basis for the approach it asserts the applicants should have taken to this application.
[61] I do not agree. The High Court case cited by the body corporate specifically considered section 94(2), 276 and item 10 of schedule 5 of the BCCM Act. Notably, it relied on item 10 of schedule 5 which provides for an adjudicator under the BCCM Act to make an order to give effect to a motion requiring a resolution without dissent if satisfied the motion was not passed because of opposition that in the circumstances was unreasonable. The High Court said the question in that regard was a separate question to that of whether the body corporate had met its obligation to act reasonably under section 94(2) of the BCCM Act.
[62] The general obligation on a body corporate to act reasonably, pursuant to section 27(4) of the BUGT Act, is similar to section 94(2) of the BCCM Act. But there is no BUGT Act provision that is similar to item 10 of schedule 5 of the BCCM Act (or section 276). Section 79 of the BUGT Act more closely reflects item 17 of schedule 5 of the BCCM Act, which provides for orders if satisfied a body corporate's decision about an owner's proposal to make improvements to common property is unreasonable. Importantly, section 79 of the BUGT Act specifically refers the body corporate's refusal and not the opposition of dissenting voters.
[63] The BUGT Act gives no guidance on how reasonableness should be considered, and there is little direct case law on it, but the consideration of the similar obligation under section 94(2) of the BCCM Act can be instructive.[18]
[64] The High Court referred to the question of whether the body corporate had failed to comply with its obligation to act reasonably by achieving a reasonable balance of the competing interests affected by the proposal.[19] The Queensland Civil and Administrative Tribunal has said reasonable decision-making "...involves an evaluation of the known facts, circumstances and considerations that tend to have a rational bearing on the issue..." and "...requires that all relevant matters are taken into consideration and irrelevant ones are left out". [20]
[65] While I disagree with the body corporate on the approach to section 79 of the BUGT Act, I accept that the reasons for any voter opposition to a proposal are relevant in determining whether the body corporate acted reasonably in refusing consent. The impact of a proposal on the proprietary rights of others, for example, may be a relevant consideration.
[66] But, noting my statutory obligations in determining this application,[21] I do not consider further inquiry is required from voters before deciding this application. All proprietors had the opportunity to respond to an application that clearly questioned the reasonableness of the refusal to give consent. No proprietor used that opportunity to identify any objections to the applicants' proposal. No actual adverse impact on any proprietary rights has been identified. Accordingly, I will proceed to consider the matters discussed by the body corporate.

[23]

[67] As it was apparent that Florida rooms with encroachments onto common property have been constructed on other lots, I asked the body corporate for details of all lots at Livingstonia on which a Florida room or similar had been constructed. For each, I then asked whether any part of the room or associated infrastructure is on common property, and whether body corporate approval for the room had been given, refused, or not considered.
[68] The body corporate responded saying that when development is to occur on a lot, PBC approval is sought via the PBC's architectural review committee under its development control by-laws. It says the historical practice was that proprietors just sought PBC approval without also seeking approval from the residential body corporate. It says it has recently considered its need to also authorise improvements to common property and since 2024 some Florida rooms have been approved at committee or general meetings. It says it is undertaking an audit to regularise all improvements to common property and so its records are incomplete.
[69] The body corporate provided a list which indicates 57 lots have a Florida room. Although the list is not entirely clear, it appears 47 of those rooms involve an encroachment on common property. Many are described as an 'overhang', while some (also or instead) refer to downpipes, spreaders, and conduits. The list indicates most Florida rooms are approved by the PBC. It indicates 11 have been approved by Livingstonia, and that 5 with an overhang were approved by the committee meeting in August 2024.[22] Four rooms are listed as not having been considered. The status of its consideration of the other rooms is not explained.
[70] The body corporate's submission said consent for the Lot 66 Florida room could be reasonably refused because it affects the visual amenity of the building. So, I asked it to explain how the room affects the visual amenity and how that impact compares with the visual impact of Florida rooms and similar structures installed on other lots.
[71] The body corporate responded that any change to the building's external appearance influences the visual amenity of the building and may be a valid basis for reasonable opposition. It says it is not for the applicants or the referee to substitute their aesthetic judgement for that of individual proprietors. It asserts the reasonable opposition of even one proprietor, if not prompted by malice or ill-will, is sufficient to defeat a resolution without dissent and is not unreasonable simply because others may hold a different view.
[72] The applicants respond that the body corporate does not answer the question. It says while their Florida room does alter the visual appearance of the building, it has no greater impact than the 56 other Florida rooms and less impact than the 24 Florida rooms with downpipes.
[73] I accept the visual impact of an improvement or alteration to common property would be a relevant consideration for the body corporate in deciding whether to give consent to a proposal under section 37A of the BUGT Act. If a proposal would have an adverse visual impact that could be a reasonable basis to refuse consent. However, where it is only the overhang and the conduit on common property in this case, it would arguably only be the visual impact of the overhang and the conduit (rather than those parts of the room contained within the boundary of Lot 66) that would be relevant for the body corporate to consider in regard to a consent.
[74] In this case, no indication has been given that the body corporate or any proprietor is actually concerned about the visual impact of the Florida room on Lot 66. Although I have no information on when it was installed, the room has clearly been in situ for several years now and so other proprietors and occupiers have had the opportunity to consider its visual impact.
[75] Moreover, if there was a concern about the visual impact of the Lot 66 Florida room, there is a question of whether that would be a reasonable objection in the circumstances. The body corporate's list indicates that a Florida room has been constructed on over half the lots at Livingstonia and that most (including Lot 66's) were approved by the PBC's architectural review committee. No information has been provided to suggest any significant visual difference between the room on Lot 66 that the others. And it would seem surprising for the architectural review committee to have supported its approval if it was visually offensive or discordant.
[76] In a previous dispute about the refusal to consent to the installation of an awning at Livingstonia by one proprietor when others had already been installed, the referee said:[23]

[26]

[79] It is also apparent from the submitted material that utility infrastructure has been installed on the common property exterior of other lots at Livingstonia, either associated with Florida rooms or independently. I asked the body corporate for details of such installations and whether approval for the installation has been given, refused, or not considered.
[80] The body corporate provided a list indicating that 38 lots had some sort of installation of this nature, mostly ducting or conduit. It is not clear if this list includes the downpipes, spreaders and conduits referred to in respect of the Florida rooms. The body corporate says it has no records of any approvals being given or considered for these improvements. It says that may reflect inadequate records or that no approvals have been sought. But it says the fact that it has not considered an improvement does not necessarily mean it takes no issue with it.
[81] The body corporate's submission said consent for the electrical conduit on the exterior of Lot 66 could be reasonably refused because it is visually unappealing and detracts from the aesthetics of the common property. I asked it to explain how the conduit affects the aesthetics of the common property and how that impact compares with the visual impact of utility infrastructure installed on the exterior of other lots.
[82] The body corporate responded that the installation of an external, surface-mounted electrical conduit detracts from the intended 'clean skin' aesthetic of the building's architecture. But it says the primary opposition to the conduit is that it was not necessary when a non-intrusive alternative was available whereby the conduit could have been housed within Lot 66. It says that is the position it has taken with other Florida rooms.
[83] The applicants again assert that body corporate did not respond to the question. They say the conduit has minimal impact on the aesthetics of the building because it is largely hidden from view by shrubbery. It further says the body corporate's reference to the intended aesthetic of the building is inconsistent with its own interim guidelines for Florida room approvals which specifically provide for electrical services to Florida rooms. They also dispute that the body corporate has taken the approach that conduits should be housed within a lot when it has not considered any other Florida room with a conduit.
[84] I am somewhat unclear from the body corporate's submissions as to whether it is asserting that consent to the applicants' proposal was refused because of the visual impact of the conduit and that it could have been routed internally, or simply that those could have been reasonable grounds for refusal. No proprietor has submitted any concern with the visual appearance of the conduit. The only submissions from proprietors, including from the neighbours likely to be most affected by the conduit, have no objection to it.
[85] From the photographs included in the submitted material the conduit appears to be barely perceptible. And I do not accept the body corporate's 'clean skin' argument where it is clear there are a multitude of other utility infrastructure items installed on the exterior of the buildings either as part of the original construction or subsequently, without apparent objection (even if not actively approved) throughout the scheme. It is also clear the body corporate contemplated approving plumbing and electrical infrastructure associated with Florida rooms in setting its guidelines for approvals and has in fact approved other infrastructure on common property in the form of downpipes. Furthermore, whether the conduit could originally have been installed differently, does not mean it would be reasonable to refuse to allow it now when it has been in situ for some years without any evident adverse impact.
[86] On the submitted evidence, I consider it was objectively unreasonable for the body corporate to refuse consent for the electrical conduit associated with the Lot 66 Florida room.

[27]

[87] Although not raised by the parties, I invited the body corporate to comment on the relevance of section 17 of the BUGT Act about implied easements in regard to the conduit.
[88] The body corporate says the installation of the electrical conduit constitutes an improvement for the benefit of Lot 66 and so is governed by section 37A of the BUGT Act. It says section 17, which ensures lots have access to essential services, does not bypass the approval process for improvements. It says section 17 governs the passage of services, which is an intangible right that is implied and subject to not unreasonably preventing the use and occupation of other lots and common property. It says that contrasts with physical improvements for the benefit of a lot. It says section 17 does not grant an unfettered right to install tangible infrastructure on common property. It says many proprietors have installed hardware on common property and if that is protected by section 17, the body corporate will have no control over work done on common property. It disputes that as the correct interpretation. It also refers to the complementary role of By-law 12 which requires prior written consent for works on common property and enables the body corporate to assess whether the manner of the installation is reasonable.
[89] The body corporate further says the electrical conduit could have been, and still can be, installed within the boundaries of Lot 66, either on an internal wall or within a wall cavity. It says the use of the common property was for convenience or cost and not necessity. It says 52 of the 57 Florida rooms have electrical services routed within the confines of the lots. It says the general principles of easement law and modern strata legislation establish that an easement right cannot be exercised in a manner that is merely convenient at the expense of the servient owner particularly where less burdensome alternatives exist.
[90] The applicants would like to claim any right to an implied easement available to them. They note the use of electricity in their Florida room. They submit the conduit is so insignificant that it could not unreasonably interfere with any other proprietor's enjoyment of their own lot or the common property. They say it cannot be seen from other lots and can only be seen from common property if standing very close to the Florida room or their bedroom window.
[91] I agree the statutory provision for implied easements does not displace the statutory obligation to obtain body corporate approval for an alteration to common property.[24] However, I consider that implied easement rights must be a consideration for the body corporate in deciding whether to approve an improvement to common property that seeks to install pipes, poles, wires, cables or ducts to enable the passage or provision of services to a lot. Where relevant, the body corporate could also have regard to any procedure or considerations in any by-law relating to works and improvements on common property, providing that by-law does not operate to destroy or modify any easement implied or created under the BUGT Act.[25]
[92] Where a proprietor benefits from an implied easement, prima facie, it would be unreasonable for the body corporate to refuse consent for the improvement to common property if the improvement would not amount to the easement being exercised in a manner that would unreasonably to prevent any other proprietor from enjoying their lot and the common property.
[93] The body corporate refers to necessity and feasible alternatives, citing case law relating to statutory easements under different legislation.[26] The BCCM Act and Land Titles Act 1994 provide for statutory easements in community titles schemes established under the BCCM Act.[27] Under those provisions, easement rights only arise to establish and maintain utility infrastructure that is 'reasonably necessary' to supply utility services.[28] A Victorian Court of Appeal case cited related to legislation about easements and rights 'necessary' to provide certain things.[29] In Queensland, the courts can make an order giving a person with an interest in land a statutory right of use over other land if that statutory right of use is 'reasonably necessary' for the effective use and development of the benefited land.[30]
[94] But unlike those provisions, the wording of section 17 of the BUGT Act does not raise necessity or reasonable necessity as a requirement for easement rights to arise. I am unable to identify any judicial consideration of section 17, but I am not convinced that concepts of necessity in other legislation or the common law can be inferred.
[95] I also note that easements for utility infrastructure to provide a utility service under the BCCM Act, for example, could cover the installation of plant and equipment on common property. It has been relied on, for example, in respect of air conditioning units, hot water systems, solar panels, and satellite dishes. But section 17 of the BUGT Act is much narrower. It only covers the installation of pipes, poles, wires, cables, and ducts. Any plant or equipment that a proprietor sought to install on common property to service their lot would only be governed by the requirement for approval under section 37A of the BUGT Act.
[96] I am satisfied the installation of the electrical conduit on the common property exterior of Lot 66 was an improvement to the common property for the benefit of the proprietors that required body corporate approval under section 37A of the BUGT Act. However, I am also satisfied the conduit is a pipe or duct installed on the common property for the purposes of providing electricity services to part of Lot 66. Prima facie, the applicants have an implied easement to install that conduit.
[97] The only statutory constraint on the exercise of that implied easement is that it does not unreasonably prevent any other proprietor from enjoying the use and occupation of their lot and the common property. There is no evidence before me that the 1 metre of conduit in its current location adversely affects anyone else's use of their lot or the common property. It is difficult to see how it could. In the circumstances, I consider it was unreasonable for the body corporate not to consent to the installation of the conduit having regard to the implied easement.

[28]

[98] If a referee dismisses an application under section 75(4) of the BUGT Act on the basis that it appears the application is frivolous, vexatious, misconceived or without substance, the referee may order costs against the applicant.[31] Costs not exceeding $2,000 are to compensate the respondent, the body corporate or affected persons for loss arising from the application.
[99] The body corporate claims it has incurred costs exceeding $2,000 in responding to the application. It says the application was frivolous, vexatious, and premature. It says it identified the defects with the application and invited the applicants to withdraw it. As such, it says an award of costs is warranted. The applicants oppose the claim.
[100] It seems to me the applicants have made genuine attempts to understand and rectify the matters raised by the body corporate with their Florida room, notwithstanding deficiencies in the communication and conduct of the body corporate. The applicants twice submitted general meeting motions seeking the approval that they were advised they required. Twice those motions were handled inappropriately by the body corporate. There is no indication that the body corporate intended any action to rectify its error with the AGM notice or otherwise resolve the dispute until after the applicants brought this application. While the body corporate suggests this application was premature, it is not clear what alternative course of action was rationally open to the applicants after the AGM other than submitting motions for a third time with little prospect of them passing even if they were properly handled by the body corporate.
[101] The applicants voted against the committee's EGM motions, which were only put to a general meeting after the application was lodged, but their votes did not cause those motions to fail. The applicants gave the body corporate their reasons for voting against the motions, and those were genuine concerns. They also expressly sought to resolve the matter with the committee and avoid additional costs for the body corporate.
[102] Given the history and context of this matter, I do not accept there is any basis to suggest this application was frivolous or vexatious, or an abuse of process. Moreover, for the reasons outlined above, I do not consider it was misconceived or without substance. Accordingly, even if I had found that consent was not unreasonably refused (and I have not), I do not consider there would have been any basis to award costs.

Livingstonia [2025] QBCCMCmr 342 (10 October 2025)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (56 paragraphs)

Livingstonia [2025] QBCCMCmr 342 (10 October 2025)

Legislation Cited (5)

Cases Cited (1)