//
austlii:qld/QBCCMCmr/2026/60
General information, not legal advice.
QBCCMCmr
2026-02-27
Original judgment source is linked above.
The Body Corporate for Macquarie Place (applicant)
Body Corporate and Community Management Act 1997 (Qld) (Act), and (3)(a)
ACCESS TO A LOT - where the body corporate has issued a notice of entry seeking access to the respondent's lot and where the respondent has refused access - whether orders are warranted.
[1] This application is about the power of a body corporate to enter a lot in the scheme and when and how that power may be exercised.
[2] As background, the body corporate applicant says the multi-storey building at the scheme was constructed more than 40 years ago. It has not been substantially renovated or retrofitted with modern fire systems. The body corporate explains that the Queensland Fire Department (QFD) has been concerned about the body corporate's fire protection systems since at least 2024. The body corporate says it retained fire protection and building certification experts to provide it with advice. At least one of those experts advised to provide a report he would need to perform a thorough visual inspection of all the units in the building.
[3] In April 2025, the QFD issued the body corporate with an enforcement notice requiring it to take action to remediate issues with fire protection by a certain date or risk a monetary fine.
[4] After deciding to authorise experts to enter each lot to carry out the recommended inspections, in mid-May 2025 the body corporate issued all occupiers with a notice of entry. Except for the respondent, all owners and occupiers agreed to permit the experts to enter their respective lots. The experts conducted their inspections on 26 May 2025. The respondent, however, failed or otherwise refused to permit access to Lot 20. The respondent's lot has still not been inspected.
[5] By this application, the body corporate now seeks an order requiring the respondent to provide entry to Lot 20, upon notice of no less than 14 days, so its named expert can inspect the lot.
[6] In opposing the application, the respondent asserts that the body corporate does not have a proper purpose for entering Lot 20 and is abusing its statutory power of entry. More specifically, the respondent says the body corporate is seeking entry to Lot 20 as a fishing expedition to assist it with the litigation of a separate dispute. Further, she says there is no valid reason for the body corporate to enter the lot where all renovations have been certified and the lot has been inspected and cleared by the QFD.
[7] Among other things, the respondent also says the purported issues involve compliance with other legislation - the Fire Services Act 1990 (FS Act) and the Building Act 1975 - which are matters that are outside the jurisdiction of an adjudicator. In addition, she also says the body corporate has failed to act reasonably and has demonstrated bias.
[8] For the reasons that follow, I am satisfied the body corporate validly exercised its power of entry. Where I am also satisfied entry is still required, I have made the first order sought by the body corporate.
[9] 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.
[10] The applicant is the Body Corporate for Macquarie Place.
[12] The body corporate initially applied for an interim order that the "Respondent provide access to Lot 20 for the [4 named] experts to inspect their unit." For the reasons given in Macquarie Place [2025] QBCCMCmr 195, I dismissed the application for interim orders.
[13] The body corporate now makes this application for:
[A final] order requiring the Respondent to provide access to Mr James Dunstan of Professional Certification Group, being authorised by the Applicant pursuant to section 163 of the Body Corporate and Community Management Act 1997 (Qld) to, upon proper notice of no less than fourteen (14 days), inspect their unit.
Further and alternatively, the Respondent provide photographs and descriptions of building works undertaken in their unit to Mr James Dunstan of Professional Certification Group.
[14] The Commissioner invited the respondent and all owners to provide their comments on the application for final orders. The respondent and the owner of another lot made a submission. The body corporate obtained a copy of the submissions and provided a reply. A dispute resolution recommendation was made to refer the application to department adjudication.
[15] An adjudicator has jurisdiction and power 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 the exercise of rights or powers, or the performance of duties under, the Act or CMS.[1]
[16] 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 is about the body corporate's exercise of its power of entry under the Act. I am thus satisfied that the application, on its face, falls within the dispute resolution provisions of the Act and within the jurisdiction of an adjudicator.[3] The respondent, however, claims the local council or the QFD have jurisdiction for this dispute given the nature of the issues. I will address those claims in the Analysis section below.
[17] I investigated the dispute, including by reviewing the CMS, the application, the submissions, and the reply. I also sought further information from both the applicant and the respondent.
[18] In essence, the body corporate says there are issues with fire protection at the scheme and QFD is requiring it to take action to rectify those issues. As part of the process, it says fire and certification experts have recommended that all lots be inspected. The body corporate claims it has the power to authorise its agents to enter a lot to do so. It says it properly exercised the power to enter each lot at the scheme. All lots were inspected except for the respondent's lot. The respondent's lot has not been inspected because the respondent denied access to Lot 20. It seeks an order that the respondent be required to grant access to Lot 20 or, alternatively, an order that the respondent provide photographs of specified parts of the lot.
[19] The respondent opposes the orders sought on multiple grounds. She says a body corporate's power is strictly limited to entering a lot only for the purpose of carrying out specific, well-defined works or for inspecting to decide whether such work is necessary. The respondent says the section does not authorise the body corporate to enter for other purposes. She also claims the body corporate has failed to act reasonably when making decisions about exercising its power of entry.
[20] The primary issue in dispute is whether the body corporate had the power to enter the respondent's lot in the circumstances presented and properly exercised that power. Accordingly, I will first describe the extent and exercise of the power of entry given to bodies corporate by section 163 of the Act. I will then review the evidence presented and make some findings of fact before addressing each of the respondent's arguments.
[21] If satisfied the body corporate properly exercised its power of entry, I will decide whether it is appropriate to make either of the orders sought by the body corporate.
[22] 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.[4]
[23] To carry out its functions, the body corporate is given certain powers. One such power is found in section 163 of the Act. That section provides a body corporate with the power 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.[5]
[24] The power to authorise entry may be exercised by the body corporate in an emergency at any time with or without notice. In non-emergency situations, 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.[6] A committee is bound to act reasonably when making decisions, including when deciding whether to exercise the body corporate's power to authorise entry to a lot.[7]
[25] 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.[8]
[26] In other words, 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, issues the required notices to the owner or occupier of the lot, and acts 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] It is not disputed that the building at the 21-lot scheme was first occupied in 1981 and has not been retrofitted with modern fire protection systems.
[28] In addition to the dispute in this application, there is a separate dispute being litigated between body corporate and the respondent. To summarise, the separate dispute involves a small portion of common property originally adjacent to the respondent's lot. The common property in question is described as a "smoke lock" and it was originally located between the rear exit to the lot and the fire escape.
[29] Sometime in late 2017 or early 2018, with body corporate approval, the smoke lock was incorporated into the respondent's lot. Subsequently, the body corporate received advice from experts that the removal of the smoke lock was unlawful and contravened the applicable building legislation. That advice gave rise to a dispute about whether the owner of Lot 20 was required to reinstate the smoke lock.
[30] In early 2024, the body corporate made an application seeking an adjudicator's order that the applicant reinstate the smoke lock as common property at her own expense.[9] For the reasons given in Macquarie Place [2025] QBCCMCmr 80 (Smoke Lock Order), an adjudicator made the requested order. The owner of Lot 20 appealed the adjudicator's Smoke Lock Order to the Queensland Civil and Administrative Tribunal (the QCAT Appeal).
[31] For this application, I make the following findings of fact:
... as I advised during our visit, QFD will not normally dispute the findings of a building certifier, and it is my understanding that your renovations were approved, and comply with, the building certifiers original approval and any conditions imposed by them. I also understand that this may be an ongoing issue within the building, and again request that if dispute resolution is required, you take the original advice provided by QFES, and request BCC intervention as far as resolution is required.
(i) August 2024 - Notice EN127832
(ii) October 2024 - Notice EN128330
(iii) March 2025 - Notice EN130290
(iv) March 2025 - Infringement notice (penalty of $4,032)
(v) April 2025 - Notice EN130910
(vi) June 2025 - Notice EN131475
[32] The body corporate is claiming that it needs to inspect all lots, including Lot 20, to find out whether work it is authorised or required to carry out is necessary. It says this need arises from the QFD notices and is supported by recommendations from its building and fire consultants. It says it properly exercised its statutory power to enter Lot 20 by issuing a notice of entry but access was denied.
[33] The respondent has multiple grounds for refusing to permit persons authorised by the body corporate to enter her lot. Her lengthy submission includes extensive allegations of facts that she says support her arguments. The respondent's grounds of opposition can be grouped into 4 broad categories, namely that: 1) the body corporate has an improper purpose for seeking entry to her lot, 2) any claimed proper purpose is not substantiated and, as a result, the notice of entry was deficient because it failed to adequately identify the purpose, 3) the body corporate failed to act reasonably in making decisions about authorising entry to her lot, and 4) the QFD has exclusive jurisdiction over fire safety.
[34] I will summarise the respondent's arguments for each of those categories, along with the assertions of fact in support, before determining whether orders are warranted.
[35] The respondent says section 163 of the Act does not empower the body corporate to enter a lot for improper purposes. She asserts the body corporate is using the notice of entry as part of a premeditated and improper campaign for "evidence-gathering, fishing exploration and harassment." The respondent says the body corporate's application is an improper collateral use of legal processes.
[36] The respondent claims it appears that the body corporate is using this application to: advance its position in the QCAT Appeal; undermine the respondent's complaints and proceedings against consultants for professional misconduct and misleading conduct; incriminate the respondents; and initiate a new wave of attack. She says courts refuse discovery or inspection where it is oppressive, irrelevant, or for an ulterior purpose.
[38] The respondent says the above is evidence that the body corporate has been using various pretexts to enter Lot 20 to gather evidence for the QCAT Appeal. She also says the body corporate has tried to disguise its motives by requesting access to all of the lots in the building, which she claims is an effort to make it appear that the respondent is not being specifically targeted.
[39] The respondent rejects the body corporate's claim that this adjudication application has nothing to do with the QCAT Appeal. She says in the application for interim orders, the body corporate sought entry to her lot by the same 4 consultants the body corporate is using in the QCAT Appeal.
[40] Further, the respondent claims the body corporate does not need to inspect Lot 20 and determine what work is required (and prepare a preliminary design) to rectify the defect items in the QFD notices. She says this can be done from a plan of Lot 20. Moreover, the body corporate already has the plan for Lot 20 from when it approved her renovations in 2018.
[41] The respondent says the body corporate has not demonstrated it needs to enter Lot 20 to find out whether work it is authorised or required to carry out is necessary. The respondent says to exercise the power of entry under section 163 of the Act, the body corporate needs to establish the entry is needed and inspection of Lot 20 is relevant to the QFD notices. She says it has failed to do so.
(i) QFD has identified multiple defects in compliance with prescribed fire safety at the scheme. Between August 2024 and June 2025 it sent multiple enforcement and infringement notices for the body corporate to rectify those issues, but the body corporate has failed to do so.
(ii) A representative from QFD inspected her lot in July 2024 and was satisfied.
(iii) The August 2024 report into penetrations through fire rated construction at the scheme does not identify any issues in her lot. The body corporate approved rectification of identified issues at an EGM held in July 2025.
(iv) The smoke vent windows - which were neglected by the body corporate - are no longer required under the building code. The body corporate's suggestion that such windows are the air relief of the stairwell pressurisation system is not supported by common sense and has been refuted by experts. Further, the QFD representative who inspected her lot confirmed smoke vent windows have little function. To the extent the body corporate wishes to install a solenoid and smoke detector and connect the system to the Fire Control Panel, the respondent says she will "consider access for the installation when the time comes," and
(v) The other defects listed by QFD - the stairwell pressurisation system and fire hydrant - are all part of the common property and located outside Lot 20.
(i) To design rectification works, the body corporate only needs to inspect a single typical unit with the consent of one owner. It does not need to inspect all units.
(ii) Lot 20 is a typical unit within the building.
(iii) Although there may be issues with stairwell pressurisation issue at the scheme, the relevant area for Lot 20 has already been rectified and certified as compliant, and
(iv) Following the body corporate's inspection on 26 May 2025 of the other lots in the building, in July 2025 one consultant completed a certifier's report[11] and another consultant completed a proposal for 3 options to remediate the fire safety issues at the scheme.
(i) In the past 45 years, many lot owners have undertaken renovation works to their units without body corporate approval. Those units need to be inspected.
(ii) In contrast, the 2018 renovations and building works to Lot 20 were approved by the body corporate. Those works were also assessed, approved, inspected, and certified by an accredited building certifier who is also a fire safety professional under Building Act 1975, and
(iii) Although the body corporate complained to the Queensland Building and Construction Commission (QBCC) that the certifier's approval of the works was incorrect, after a detailed investigation, the QBCC dismissed the complaint.
[43] Where the body corporate has failed to establish entry is necessary and relevant, she also says the notice of entry is deficient.
[44] The respondent also says the body corporate has not acted reasonably in making decisions relating to her and her lot. She says she has been subject to significant defamation, discrimination, bullying, and harassment.
[45] As evidence of discrimination, the respondent says many renovations of other lots were conducted without body corporate approval and the body corporate is failing to enforce the by-laws or to require owners to obtain necessary building approvals. As further support, the respondent points to the "plan of attack" language and "let's start now so they cannot argue that we are unduly picking on them" in the correspondence used.
[46] The respondent says the body corporate is falsely blaming her for whistleblowing. She says she did not initiate the complaint to the QFD, which was made in May 2023 by the committee. She suggests this was done in retaliation for her complaint against Lot 21 for their unauthorised change in flooring from carpet to tiles which resulted in noise nuisance.
[47] She says she is not the cause of the issues with fire safety compliance. Rather, it is the body corporate that has failed its fiduciary duty to rectify the fire issues, keep the building and occupiers safe, and to disclose issues to the insurer.
[48] The respondent says the actions of the body corporate have been stressful and granting the orders sought to require entry to the lot will be prejudicial and escalate the stress. Given the improper purpose and the failure to act reasonably, the respondent ask that the application be dismissed and an order made restraining the body corporate from issuing any further notices of entry until the QCAT Appeal and her formal complaints to the Crime and Corruption Commission (CCC) about misconduct by the Brisbane City Council, the former fire brigade board, and the QFD, as well as complaints about some of the consultants, have been resolved.
[49] The respondent says fire safety comes under the jurisdiction of the QFD. It has a statutory power to investigate and enforce compliance, including to enter a property for inspection. She says fire safety does not come within the jurisdiction of the Office of the Commissioner for Body Corporate and Community Management (BCCM). In addition, the respondent says the QFD has investigated and decided to decline the complaint and not issue an enforcement notice for her lot. She says this is a functus officio decision. An officer from QFD has also inspected Lot 20 and confirmed it is satisfied. Accordingly, she says there is no jurisdiction for a BCCM adjudicator to compel entry pursuant to section 163 of the Act for a fire safety matter.
[50] The respondent also says where the body corporate is seeking entry to supply information to QFD, the request is a de facto entry to the lot by QFD under the FS Act. Pursuant to sections 149ZH and 149ZK of that legislation, she says she legal rights to refuse entry and to refuse to give help if doing so might tend to incriminate.
[51] In the alternative, the respondent says building compliance is under the jurisdiction of the local government and not the body corporate. She says the local council has a statutory procedure and the power to investigate issues of compliance with the Building Act 1975. The respondent says she has complied with that legislation and the works in her lot were certified by an accredited building certifier. If the body corporate has a legitimate complaint about those works it can make it to the Brisbane City Council. She says a BCCM adjudicator has no jurisdiction to compel entry relating to compliance with the Building Act.
[52] In reply to the respondent's submissions, the body corporate says:
(i) The sole purpose of entry is to enable it to comply with the QFD notices and its statutory obligations under the Act and the applicable fire safety regulations.
(ii) Entry is not sought to gather evidence for unrelated proceedings. The consultants were engaged to assist with fire safety compliance and are acting within the scope of that engagement. There is no evidence they have been engaged to misuse inspection outcomes in other proceedings.
(iii) Notices of entry were issued to all owners.
(i) The QFD notices are directed to the whole building and require the body corporate to confirm the state of prescribed fire safety installations - including smoke and heat venting systems - in all lots.
(ii) Even if QFD has previously inspected Lot 20 in July 2024, the body corporate must verify the status of those installations within Lot 20 to issue a confirmation to the QFD. Moreover, that inspection pre-dates the May 2025 QFD notice, which requires verification by the body corporate at the same point in time and cannot rely on a prior inspection.
(iii) The respondent's suggestion that the QFD notice relates only to items on common property is incorrect. Some of the prescribed fire safety installations referenced in the notices are located within lots.
[53] The body corporate concludes by stating it has a statutory obligation to comply with the QFD notice and it has lawfully exercised its power of entry pursuant to section 163 of the Act. Its priority is the safety and wellbeing of all occupiers. Compliance with the QFD notice is essential to ensure the building's fire safety systems are functioning correctly and that all lots, including Lot 20, meet the statutory standards.
[54] In its application for interim orders, the body corporate suggested it would seek final orders to both inspect Lot 20 and to undertake any work necessary to give effect to recommendations by its consultants. However, by its amended application, the body corporate now only seeks a final order compelling the respondent to permit entry to Lot 20 by one consultant on proper notice of at least 14 days to inspect the lot.
[55] Section 163(1) of the Act gives the body corporate the power to enter a lot for the purpose of inspecting it to "find out whether work the body corporate is authorised or required to carry out is necessary" or to "carry out work the body corporate is authorised or required to carry out." Therefore, the main question to be answered is whether the body corporate is authorised or required to carry out work in Lot 20 or has a legitimate reason for entering Lot 20 to find out if there is work to be done in the lot that is authorised or required.
[56] In Annexure A to the QFD notice to the body corporate dated 30 April 2025, the QFD identifies 4 types of prescribed safety installations for which it asserts the body corporate has:
... failed to maintain to a standard of safety and reliability prescribed fire safety installations namely the Fire Hydrants (including hydrant boosters), Penetrations through Fire Rated Construction, Smoke and Heat Venting Systems, and Stairwell Pressurisation System in accordance with the Fire Services Act 1990, Section 146M, specifically, but not limited to, the points listed below, preventing the installation from operating as designed and approved.
[57] Pursuant to Annexure B of the QFD notice, the body corporate is required to undertake and complete 5 designated actions to reinstate each of the 4 prescribed safety installations to a standard of safety and reliability. Those actions include engaging the services of an appropriately qualified and licensed person to conduct an "audit" of the 4 identified categories of systems to determine all faults "within the building" and conducting and completing all remedial works indicated in the report. Once the remediation is completed, the body corporate is required to provide the QFD with a certification that all identified faults have been rectified.
[58] In this case, I am satisfied that the body corporate is seeking to exercise its power of entry to carry out work - in the form of an audit of the building - that it is required by QFD to do. I am satisfied the QFD notice requires the body corporate to undertake an audit of the entire building. Although some of the categories of fire protection issues are located wholly on common property (e.g., the fire hydrants), I am satisfied some may be found within lot boundaries or relate to lots.
[59] In addition, the 8 May 2025 letter from a fire consultant retained by the body corporate confirms the purpose of a building-wide inspection is to "assess the condition and adequacy of the fire protection measures throughout the building." He specifically notes that:
... the inspection will focus on service penetrations and construction joints within bounding construction (such as walls and floors between units and common areas), the condition and accessibility of smoke-locks from on the unit side of the fire stairs, and the identification of any relief air paths that may influence the performance of the existing stair pressurisation system.
These elements are essential to evaluating the building's current level of compliance and informing any future remedial works or fire safety upgrade strategies. Due to the concealed nature of many of these features, access to each unit is necessary to gain sufficient visibility and assure a comprehensive review
[60] The respondent says the August 2024 report identifying unsealed penetrations through fire-rated construction at the scheme does not list any such penetrations within her lot. I do not find this dispositive. Where her lot has not been inspected, I do not consider the mere fact her lot does not appear on the list of known locations for unsealed penetrations to be evidence there are no such penetrations within her lot.
[61] I must also reject the respondent's argument that no inspection of her lot is required because she has evidence confirming her lot is fully compliant and that there is no issue with fire safety within her unit. As evidence, she submits that all her 2018 renovations were certified as compliant, a 2024 stairwell pressurisation simulation test confirms Lot 20 is the only unit with a rear escape that passed, a 25 July 2025 letter from her building certifier confirms the smoke vent windows do not act as the air relief for the stairwell pressurisation system, and QFD has inspected her lot and declined to proceed.
[62] Notwithstanding the respondent's position and the evidence submitted in support, her argument overlooks the fact that the QFD notice requires the body corporate to engage a qualified person to audit the "building." In my view, an audit of the building includes the respondent's lot and is work the body corporate is required by the QFD notice to carry out. It therefore enlivens the body corporate's power to enter a lot pursuant to section 163(1)(b).
[63] I am also satisfied the body corporate has a genuine reason for exercising its power of entry to inspect pursuant to section 163(1)(a) of the Act. In addition to the audit, the QFD notice requires the body corporate to certify it has carried out remediation works for the "building." Where the body corporate is the body that needs to provide the certification, in my opinion it has a genuine reason to exercise its power to enter Lot 20 and find out - to its own satisfaction - whether or not work it may be required to carry out (to comply with the QFD notice and provide the certification) is necessary.
[64] I also reject the respondent's argument that there is no longer any need for an inspection of Lot 20 because the body corporate's expert has been able to design a "whole building" solution despite the lack of entry to Lot 20. It is clear from the materials supplied that any design is preliminary. Moreover, the respondent acknowledges that part of a design solution may involve installing a solenoid and smoke detector within her lot and connecting the system to the Fire Control Panel.[12]
[65] The respondent also claims an inspection of her lot is no longer necessary because there is evidence that, in July 2025, one of the body corporate's consultants issued a certification about fire protection. However, I am satisfied from other 2 July 2025 correspondence that the consultant continued to require additional information about the respondent's lot:
I have been asked to comment wholistically on the compliance matters raised with regards to the fire safety of the building by QFD. In doing this, to be wholistic, I require access to all units to complete the review, otherwise I am unable to document in detail compliance matters and extent of compliance.[13]
[66] I am not persuaded by the respondent's suggestion that the body corporate can adequately respond to the QFD notice by inspecting a single "typical" unit. As the respondent herself notes, different units have had different renovations. In my view, this means issues with fire protection measures may be particular to specific units.
[67] For the above reasons, the respondent has not persuaded the need to inspect Lot 20 has been obviated.
[68] Accordingly, I am satisfied by the following that the body corporate is required to carry out work (the building audit) and has a genuine basis for inspecting Lot 20 to find out whether it is required to carry out other works.[14]
[69] For completeness, I consider it is unnecessary for me to consider the respondent's arguments about the qualifications of the consultant authorised by the body corporate to enter Lot 20. Whether or not the consultant is an appropriately qualified and licensed person (or is acting under, or collecting information for, another suitably qualified consultant) for the purposes of complying with the requirements of Annexure B of the QFD notice is a determination to be made by the Commissioner of the QFD.
Did the body corporate fail to act reasonably in making decisions?
[70] I am not satisfied the respondent has demonstrated the body corporate is acting unreasonably in deciding to authorise a consultant to enter her lot for purposes of complying with the QFD notice.
[71] The respondent's lot has not been singled out for an inspection. Although there is discord between the parties, the respondent acknowledges that the body corporate sent notices of entry to all lots in the scheme and concedes that all units except Lot 20 were inspected. In my view, these facts run counter to her argument that the notice of entry to her lot was retaliatory.
[72] Further, the body corporate took steps to choose a date and time for the inspection that was suitable for as many owners as possible. Moreover, the inspection itself is estimated to take less than one hour.
[73] Where I am satisfied the body corporate has a genuine purpose for exercising its power to enter Lot 20, the next questions are whether I am satisfied the body corporate has an improper purpose for entry and, if so, whether that purpose affects or invalidates a valid exercise of its power of entry.
[74] The body corporate claims the sole purpose for the notice of entry is to enable it to comply with the QFD notice, its statutory obligations under the Act, and the applicable fire safety regulations. The respondent claims the opposite is true, namely, that the notice of entry is purely for one or more collateral or improper purposes. Specifically, that the purpose of the entry is to gather evidence in support of the body corporate's position in other proceedings or as a retaliatory measure against the respondent.
[75] I can certainly understand in the circumstances, and in view of the proceedings involving the smoke-lock, why the respondent has interpreted the body corporate's somewhat unfortunate use of the phrase "plan of attack" as evidence of a collateral or improper purpose. However, where I am satisfied the QFD notice requires the body corporate to audit the building and provide a post-remediation certification, and there is evidence the consultants retained for the audit/certification were requiring access to all lots, I am satisfied it is more probable that the body corporate was using that phrase to describe its strategy for ensuring it could inspect all of the lots.
[76] Moreover, where the QFD notice and the dispute about the smoke-lock both raise fire protection issues, it seems possible that there may be some overlap between the two disputes. In my view, however, the possibility that, in the course of its inspection of Lot 20 for the genuine purpose of complying with the QFD notice the body corporate may also obtain information relevant to the smoke-lock proceeding, is not a sufficient reason to negate an otherwise valid exercise of the body corporate's power of entry.
[77] To the extent the body corporate does obtain information potentially relevant to the smoke-lock litigation, ultimately it will be a matter for the decision-maker considering that dispute to determine whether the information is relevant, admissible, or persuasive.
[78] I also reject the respondent's arguments that a BCCM adjudicator does not have jurisdiction over a body corporate's exercise of its power of entry where the purpose of the entry is related to, or required by, another piece of legislation. The respondent is effectively contending that the QFD has sole and exclusive jurisdiction over all matters fire safety related and the local council has sole and exclusive jurisdiction for matters involving compliance with the relevant building legislation.
[79] The Act gives the body corporate a power to enter a lot in certain circumstances. This application concerns an exercise of that power and whether the body corporate's exercise of the power was valid and reasonable in the circumstances. In my view, the dispute is squarely within one of the purposes of Chapter 6 of the Act, namely, to resolve disputes about the exercise of rights or powers under the Act.[15] The order sought is also well within the ambit of orders that can be made by an adjudicator.[16]
[80] The respondent also claims the body corporate notice of entry should be viewed as a de facto entry request by the QFD and that the adjudication application conflicts with rights that are afforded to her under the FS Act, specifically sections 149ZH, 149ZK, and 149ZL.
[81] I do not consider the body corporate's notice of entry can be viewed as a de facto notice from the QFD. There is no suggestion the body corporate is using its power of entry to authorise a QFD investigation officer to inspect Lot 20.
[82] Nor I am persuaded entry to the lot by an independent consultant authorised by the body corporate implicates or infringes any rights the respondent may have under the FS Act. The FS Act provisions cited by the respondent concern the powers of a QFD investigation officer. I cannot see how those powers, or any related rights afforded to the respondent, are implicated or infringed by the body corporate's exercise of its own power to authorise entry by someone who is not a QFD investigation officer.
[83] Having formed the view that the body corporate's exercise of its power of entry was valid, and where the respondent does not otherwise dispute the validity of the notice itself, I must now consider whether it would be just and equitable to make either of the 2 orders sought by the body corporate.
[84] The body corporate seeks a final order requiring the respondent to permit, upon proper notice of no less than fourteen (14 days), a person authorised by the body corporate (the named consultant), to access and inspect Lot 20. In the alternative, the body corporate seeks an order requiring the respondent to provide it with photographs and descriptions of building works undertaken in their lot.
[85] The respondent says the first order should not be made for all the reasons described above. To the extent an order is made for this application, she says it should not be the first order sought. In lieu of the second order sought - photos and information - she proposes a third option, namely, that provide a detailed floor plan.
[86] I have considered that the authorised person has indicated in correspondence that he considers an inspection is necessary but photos "may be sufficient" to prepare a preliminary design and that the QFD is requiring an audit of the building. In the circumstances, which include that all units bar Lot 20 have been inspected, no invasive or destructive works are proposed, the inspection time is likely an hour or less, and where the issue is one of fire safety - which is significant and something that may impact all occupiers - I consider it just and equitable to make the first order sought by the body corporate. I am also satisfied that the 14 days' notice proposed by the body corporate is a reasonable time frame.
[87] I have made an order for the reasons given above.
[88] The lot owner who made a submission in support of the application requested that the adjudicator make and enforce the "ruling." Although an adjudicator is empowered to make orders, adjudicators do not have powers of enforcement. Sections 286 and 287 of the Act provide that adjudicator's orders may be enforced by the Magistrates Court. Section 288 of the Act describes the possible consequences and processes for cases where a person fails to comply with an adjudicator's order.
[3] Sections 226, 228 and 276 of the Act
[6] 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
[8] The maximum penalty for doing so is 20 penalty units.
[10] See Choi v The Body Corporate of Macquarie Place CTS 10897 [2025] QCATA 128 (QCAT Decision)
[11] The respondent claims one of the body corporate's consultants cannot lawfully provided fire safety advice under his current QBCC licence.
[12] Respondent's submission at page 63
[14] Both the committee and a lot owner who made a submission commented that the insurer for the scheme require Lot 20 to be inspected. They say the respondent's refusal to permit access to Lot 20 is putting the insurance for the scheme at risk. Where I have found the QFD notice is sufficient for the purposes of an exercise of the power of entry under section 163 of the Act, I do not need to determine whether a requirement from an insurer would also suffice.
[15] See Section 228(1)(b) of the Act
[16] See Section 276(1)(b) of the Act