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

INTERIM ORDERS - whether interim orders are warranted in the circumstances

Act, s 163

1. The application for interim orders is dismissed.

• [1] This application is about the body corporate's exercise of its power to enter a lot.
• [2] The building is old and the Queensland Fire Department (Fire Department) has issues with its fire protection systems. The body corporate has been investigating those issues and its options for rectifying them. As part of its investigations, and in order for the body corporate to respond to a notice from the Fire Department, the body corporate says it issued all owners and occupiers including the respondent with a notice authorising entry of the lot for inspection by 4 fire safety and certification experts.
• [3] Where the body corporate could not access the respondent's lot on the date specified on the notice, it made this application for an interim order that its experts be given access to the lot.
• [4] For the reasons given herein, however, I am not satisfied it would be appropriate to make the interim order sought. As a result, I have dismissed the application.

• [5] The scheme known as Macquarie Place CTS 10897 (Macquarie Place) is located in St Lucia. Macquarie Place is registered as a building unit plan of subdivision on BUP4288 and consists of 21 lots and common property. The community management statement (CMS) for Macquarie Place shows the Standard Module applies.
• [6] The applicant is the Body Corporate for Macquarie Place.
• [7] The respondent is the owner of Lot 20.

• [8] An adjudicator has jurisdiction generally to make orders that are just and equitable in the circumstances to resolve a dispute between certain parties about a claimed or anticipated contravention of the Act or CMS, or about the exercise of rights or powers, or the performance of duties, under the Act or CMS.[1] The parties to the dispute are the owner of a lot and the body corporate. This is a combination of parties provided for in the Act.[2] This dispute concerns a disputes about the exercise of a power under the Act. I am thus satisfied it falls within the dispute resolution provisions of the Act and within the jurisdiction of an adjudicator.[3]
• [9] The Commissioner referred the application for interim orders to department adjudication under section 247(2)(b) of the Act. An adjudicator has the power to make an interim order "if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates."[4]
• [10] There is no statutory requirement to obtain comment from a respondent or affected party before an interim order is decided. In the circumstances, where at least on the face of the application time was of the essence, I provided a short time in which the respondent could make a submission about the application for interim orders.

• [11] In summary, the body corporate says:
  1. the building at the scheme was first occupied in 1981 and has not been retrofitted with modern fire protection systems
  2. from April 2024, the Queensland Fire Department (Fire Department) has been investigating fire protection at the scheme, and the body corporate has been in discussion with that department about fire protection issues and defects
  3. during that time, the body corporate has been attempting to progress necessary fire protection works in a methodical and cost-effective manner and in September 2024 engaged certain professionals (First Fire Expert) to investigate its options
  4. the First Fire Expert sought to inspect Lot 20, but access was never granted
  5. it understands that the First Fire Expert's decision to withdraw their services in March 2025 was related to legal threats issued by the partner of the owner of Lot 20
  6. an ongoing dispute with the respondent has caused delays in its ability to rectify the fire protection issues, it notes the dispute was the subject of an adjudication decision, namely Macquarie Place [2025] QBCCMCmr 80, and that the respondent has appealed that decision to the Queensland Civil and Administrative Tribunal (QCAT)
  7. it has engaged 4 new certification and fire safety experts (Fire Safety Experts) to assist it in navigating the issues raised by the Fire Department, one of whom advised on 23 April 2025 that he needed to visually inspect with the Fire Safety engineer all lots "to document the condition of the units and penetrations, fire doors, etc.," in order to complete his review
  8. on 30 April 2025, the Fire Department issued it with a notice (QFD Notice) requiring it to take certain actions on or before 11 June 2025 to comply with referenced fire legislation and advising that failure to comply with the QFD Notice without reasonable excuse was an offence and subject to penalty
  9. on 2 May 2025, it advised all owners of the QFD Notice and that the Fire Safety Experts would need to inspect their lots
  10. at a committee meeting on 8 May 2025, attended by the respondent as an owner, noting that owners of 18 of the 21 lots indicated a preference for inspection on 26 May 2025 and the remaining 3 owners had not responded, the committee voted to authorise inspection of all the lots on that date by the Fire Safety Experts pursuant to Section 163 of the Act
  11. on 14 May 2025 the body corporate issued notices of entry for 26 May 2025 between 9am to 4pm to all owners and occupiers of lots
  12. on 26 May 2025, the Fire Safety Experts inspected all of the lots except for the respondent's lot
  13. the respondent has not provided any reason for failing to grant access to their lot and, where the respondent has installed electronic locks, the body corporate cannot gain access
  14. the inspection of the respondent's lot will not be invasive and is expected to take less than one hour, and
  15. the matter is urgent and interim orders are required because the underlying issue is fire safety, the body corporate is due to respond to the QFD Notice by 11 June 2025, and the Fire Department says it cannot assist in gaining access to lots to undertake fire safety installation, testing and assessment.
• [12] The body corporate seeks final orders that:

The Respondent permits any person(s) duly authorised by the Applicant pursuant to section 163 of the Body Corporate and Community Management Act 1997 (Qld) to, upon proper notice, inspect and undertake any body corporate work necessary to give effect to the works recommended by subject matter experts and/or the Queensland Fire Department

• [13] In the meantime, the body corporate seeks an interim order that:

The Respondent provide access to Lot 20 for the [4 named] experts to inspect their unit.

• [14] As noted above, I provided the respondent with a limited opportunity to provide comments on the application for interim orders. In the circumstances, I declined the respondent's request for an extension of 3 weeks to make a submission.
• [15] In the submission, the respondent says:

1. the body corporate has ulterior motives and is acting unreasonably in seeking entry to Lot 20, specifically:

(i) it is seeking to gather information and evidence for use against the respondent in pending litigation > > (ii) this is part of a campaign to harass and intimidate the respondent, and > > (iii) the body corporate is attempting to disguise its motives by suggesting entry is required to all lots to suggest the respondent is not being targeted;

1. Section 163 of the Act does not give the body corporate power to enter where:

(i) the body corporate has improper motives and a notice of entry is an abuse of power > > (ii) the items of concern referenced in the QFD Notice - the stairwell pressurisation system, fire hydrant, and penetrations - are all on common property and not related to Lot 20, and QFES has confirmed the smoke vent window issue is not related to the pressurisation > > (iii) there is no work currently to be done by the body corporate in Lot 20 because all the work in Lot 20 is approved, is legal building work, has been certified, and does not require further inspection, and > > (iv) if the body corporate wishes in future to install a solenoid and smoke detector connected to the Fire Control Panel, Lot 20 will consider access at that time;

1. Section 163 of the Act does not give the body corporate power to enter for fire safety or building compliance/certification issues where:

(i) fire safety is under the jurisdiction of the Fire Department, not the body corporate, and that body has the statutory power to investigate, enter, inspect, and enforce compliance > > (ii) the body corporate has previously complained to the Fire Department about Lot 20 and the complaint was investigated, Lot 20 was inspected, and the department confirmed in July 2024 it was satisfied > > (iii) building compliance is under local government jurisdiction and the Act does not give the body corporate any jurisdiction for the Building Act nor the power to entry to confirm compliance > > (iv) if the body corporate has legitimate concerns about building approvals and compliance, it can make a complaint to council, and > > (v) the respondent is willing to co-operate with the Fire Department and council should they require further inspection of Lot 20 under their respective statutory powers;

1. interim orders are designed for temporary measures and is procedurally inappropriate in this case where:

(i) the body corporate is using the process and notice of entry strategically to authorise broad investigative access to Lot 20 > > (ii) the body corporate is seeking to avoid scrutiny and undermine procedural fairness, including by circumventing the requirement for proper evidentiary consideration, and > > (iii) such an order would prejudice the respondent, including by increasing the respondent's mental stress;

1. there is no urgency for an interim order because:

(i) any purported urgency relating to the QFD Notice is manufactured by the body corporate because the Fire Department first issued a notice in August 2024 and has continued to issue new notices extending the date for compliance (e.g., QFD Notices EN127832, EN128330; EN130290; and EN130910) > > (ii) even if there was a need to enter Lot 20, which is disputed, the urgency is manufactured where the body corporate cannot comply with the notice - which requires rectification works in the building - by 11 June 2025, and > > (iii) QFES has already cleared Lot 20.

• [16] Finally, the respondent says the balance of harm favours not granting the interim order sought because such an order would cause irreversible harm to the property, expose her to liability and reputational damage, all without procedural safeguards of procedural fairness, independent review, or judicial supervision. Moreover, two of the persons purportedly authorised by the body corporate to enter her lot are currently the subject of formal complaints for professional misconduct and are not neutral or independent inspectors.

• [17] The only issue for determination here is whether interim orders are warranted.
• [18] Adjudicators are empowered to issue an interim order if satisfied "on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates."[5] If satisfied an order is necessary, adjudicators may make an interim order that is just and equitable. Adjudicators often make interim orders in the form of a temporary injunction (an order not to do something) to preserve the status quo pending a final determination of an application.
• [19] To determine if it is just and equitable to make an interim order, there must be some reason in law to make an order. For this, I must consider the substantive issues in dispute. The applicant must satisfy me that there are serious legal questions to be answered. At this stage, an applicant does not need to satisfy me on the balance of probabilities that their arguments will be ultimately successful.[6] Rather, I must be satisfied there is a sufficient likelihood of success on the legal issues presented to warrant making an interim order.
• [20] I must also consider the nature of the circumstances, and the practical reasons for and likely effects of an interim order. This is known as assessing the balance of convenience between the parties. To do this, I must consider the inconvenience or harm to the applicant if I do not make an interim order but it is later determined that the body corporate has contravened the Act. I must weigh that against the harm to the body corporate if I make an interim order and the applicant is later unsuccessful in its application for final orders.
• [21] Accordingly, to determine whether I am satisfied an interim order is warranted and appropriate, I will proceed to consider whether serious legal issues have been raised with sufficient likelihood of success. If so, I will consider the interim orders sought in the context of the circumstances presented and weigh the balance of convenience and potential for harm to the respective parties.
• [22] The substantive legal issue presented by the application is whether the body corporate has the statutory power to enter Lot 20 and whether it validly exercised that power. If I am satisfied it did, I then need to consider whether the interim order sought is warranted in the circumstances.

Legal issue - Power to authorise entry to a lot

• [23] The general functions of a body corporate are to administer the common property, enforce the community management statement, and to carry out other functions described in the legislation.[7] When making decisions to carry out these functions, the body corporate must act reasonably.[8]
• [24] To carry out its functions, the body corporate is given certain powers. One such power is the power found in section 163 of the Act to authorise persons to enter a lot or part of common property affected by an exclusive use by-law. However, the body corporate is only given the power to authorise a person to enter (and remain there while reasonably necessary), either:

(a) to inspect the lot or common property and find out whether work the body corporate is authorised or required to carry out is necessary; or

(b) to carry out work the body corporate is authorised or required to carry out.[9]

• [25] The power to authorise entry may be exercised by the body corporate in an emergency at any time with or without notice. In other cases, the power may only be exercised a reasonable time at least 7 days after the requisite written notice is given to the owner of the lot or, if the owner is not in occupation of the lot, the notice is given to the occupier of the lot.[10]
  • [26] Thus, to exercise its power to authorise entry, the body corporate does not need the consent of the owner or occupier, nor does it require an adjudicator's order. Provided the body corporate is exercising its power for one of the stated purposes and issues the required notice to the owner or, where relevant, the occupier of the lot, and is acting reasonably in deciding when and how to exercise the power, there is no legal basis on which an owner or occupier can refuse access to the lot.
  • [27] Section 163(5) of the Act provides that a person must not obstruct an authorised person who is exercising or attempting to exercise powers under the section.[11]
• [28] At this preliminary stage, I am satisfied on the face of the application that the body corporate was purporting to exercise its power of entry for the purpose of inspecting the lot to determine whether work it was authorised or required to carry out was necessary. This was ostensibly within one of the stated purposes of section 163 and potentially enlivened the body corporate's power of entry.
• [29] The respondent disputes that the body corporate was genuinely seeking to inspect the lot to find out whether "work the body corporate was authorised or required to carry out is necessary." She also argues that its actions in issuing a section 163 notice were ultra vires where that section does not empower the body corporate to authorise persons to enter for fire safety or building compliance purposes. Finally, she suggests the body corporate did not act reasonably in issuing the notice in the circumstances.
• [30] Notwithstanding the respondent's arguments, at this stage, the body corporate need not prove its case on the balance of probabilities. For preliminary purposes, I am satisfied the body corporate has raised a serious question with a sufficient likelihood of success that it had the power to enter Lot 20 for me to proceed to consider whether an interim order is warranted.
• [31] I note that to validly exercise the power of entry, a body corporate must issue a notice of entry in the way and to the person required by the Act. Where an owner is not the occupier of the lot in question, the Act requires a notice of entry be given to the occupier of the lot. And, reasonable notice (at least 7 days) must be given for the entry.
• [32] In this regard, I note that the respondent did not claim there were any procedural deficiencies with the notice of entry. Further, although I expressly inquired of the respondent whether the lot was tenanted, no response was given. I infer the answer would not have assisted the respondent in this regard.

Nature of the circumstances and balance of convenience

• [33] The body corporate seeks an interim order that the respondent provide access to Lot 20 for inspection by the body corporate's Fire Safety Experts. For the following reasons, I am not persuaded an interim order would be an appropriate order given the nature of the circumstances presented.
• [34] Firstly, such an order would simply restate the power to authorise entry already given to the body corporate pursuant to section 163 of the Act.
• [35] Secondly, interim orders are more commonly issued in the form of injunctive relief to preserve the status quo. Those types of interim orders restrain a respondent from taking certain action while final orders are pending. In contrast, the interim order sought by this application is in the form of a mandatory order. That is, the body corporate seeks an order requiring the respondent to do something (permit access to her lot) even before a final order is made. In this way, I consider the interim order sought is final and not interim in nature.
• [36] Moreover, although I am satisfied there is some pressure on the body corporate to deal with its fire protection issues expeditiously, I am not persuaded these are the type of urgent or emergency circumstances warranting an interim order. Even if the interim order was made, it does not appear that the body corporate would be able to comply with the QFD Notice by 11 June 2025. On its face, the QFD Notice requires more than just a report from Fire Safety Experts. It requires completion of all works listed in the notice by 11 June 2025. At this preliminary stage it seems unlikely that any such works could be completed by that date even if Lot 20 was accessed and inspected in the next few days. Moreover, as the respondent has pointed out, the Fire Department has been repeatedly issuing QFD Notices since August 2024. As such, in my view, I am not satisfied the body corporate has adequately demonstrated an urgent need for an interim order.
• [37] Thirdly, and in the same vein, I consider the interim order requested would require a finding (implicitly or explicitly) that the 26 May 2025 notice of entry issued by the body corporate complied with the statutory requirements and was a valid notice of entry. I do not consider it appropriate to make such a finding - which is final in nature - on this application for interim orders that are mandatory in nature and in circumstances where the body corporate is urging an expedited decision on its application for interim orders and the respondent has only had a limited opportunity to make submissions about the application. In that regard, the balance of convenience and harm weighs in favour of the respondent.
• [38] Finally, the previous notice was for entry on 26 May 2025. That notice has, by its own terms, expired and the body corporate proffers no new date or even suggested time period for entry and inspection.
• [39] For these reasons, even though the body corporate has raised a serious legal issue whether the respondent has failed to comply with a valid notice of entry to the lot (and effectively obstructed entry by authorised persons), I am not satisfied by the nature of the circumstances or the balance of convenience that an interim order is warranted.

• [40] For the reasons given above, I have dismissed the application.
• [41] The respondent should not interpret this decision to mean I necessarily agree that she was entitled to refuse or obstruct entry to her lot on 26 May 2025 by persons authorised by the body corporate to inspect the lot or that I consider she should do so going forward.
• [42] At this point, my only finding is that I am not satisfied interim orders are warranted at this time.
• [43] In this case, the body corporate can decide to issue a new notice of entry to the owner setting a new date and time for entry. The respondent is reminded that where a body corporate issues a valid notice of entry and the respondent obstructs entry by authorised persons, the body corporate may decide to file an action with the Magistrates Court seeking a monetary penalty.[12] To the extent the respondent wishes to challenge the validity of a body corporate notice of entry, in my view, the onus is on the respondent to do so and preferably before the date noticed for entry.
• [44] In my view, the power given to the body corporate to authorise a person to enter and inspect a lot is broad and there are very limited grounds on which to challenge a notice of entry for inspection of a lot. The respondent's appeal of the adjudicator's order in Macquarie Place [2025] QBCCMCmr 80 and arguments about Fire Department and council jurisdiction notwithstanding, in light of:
  1. the QFD Notices
  2. the broader importance of fire protection to the body corporate and occupiers
  3. that the body corporate is only seeking entry to the lot for the purposes of inspection and no works are proposed at this time[13]
  4. where it appears that all the other lots have been entered and inspected, and
  5. where the inspection of the respondent's lot is estimated to only take an hour,

at this preliminary stage it is difficult to see how the respondent could prevail on an argument opposing final orders that the body corporate's power of entry was not properly enlivened.

• [45] If the dispute is not resolved and the body corporate does not withdraw the application, the application for final orders will remain to be determined. The application for final orders will be referred back to the Commissioner to progress under the Act.[14] The dispute may then be finally resolved by an adjudicator with the benefit of submissions from all affected parties.
• [46] Alternatively, the parties may choose to resolve the dispute about entry and inspection of Lot 20 themselves. In the circumstances, they are encouraged to do so.

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

[6] Although an applicant must identify a genuine legal issue to be decided, the granting of an interim order by itself does not indicate that an applicant will ultimately be successful on their application for final orders.

[10] See Section 163(2)(b) of the Act. The power of entry must also comply with the security or other arrangements ordinarily applying for persons entering the lot or common property. See Section 163(2)(b)(iii) of the Act

[11] The maximum penalty for doing so is 20 penalty units.

[13] In contrast, the three adjudicator decisions cited by the respondent all involve circumstances where the body corporate's notice of entry was purporting to authorise persons to complete works and not merely inspect the lot. See The Dorchester [2025] QBCCMCmr 108; llanah Aqua [2016] QBCCMCmr 221; and Kirra Surf Apartments [2017] QBCCMCmr 464