Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(d) and 229(3)(a)

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

INTERIM ORDER - whether an interim order is warranted

1. The application for interim orders is dismissed.

• [1] This application relates to motions proposing the authorisation of a new caretaking service contractor for Magnetic International Resort Hotel_._
• [2] The applicant brings this application as the existing caretaking service contractor and objects to the motions on the grounds that she has an ongoing dispute with the body corporate regarding the renewal of her existing caretaking and letting agreements. Until that dispute has been determined, the applicant argues that the body corporate must not enter into new caretaking and letting agreements as proposed.
• [3] The application seeks that the motions be invalidated and that in the interim, if a motion is passed, it must not be implemented until the outcome of her dispute with the body corporate is determined.
• [4] The only question at this time is whether an interim order is warranted.

• [5] Magnetic International Resort Hotel is a community title scheme comprising 98 lots and common property. The scheme is registered as Group Titles Plan No. 103862 and is regulated by the Accommodation Module.

• [6] The applicant has brought this application against the body corporate, purportedly in her capacity as the caretaking service contractor for the scheme. Prima facie, these are permissible parties to a dispute under section 227(1)(d) of the Act. However, the body corporate claims that the applicant is a former caretaking service contractor which is not a party provided for under section 227(1) and that as the former caretaker, the applicant does not have standing to bring the application.
• [7] I have been provided with a copy of the Deed of Engagement and Authorisation under which the applicant was engaged. I note the parties are in disagreement about whether that agreement has expired. The body corporate asserts it expired on 31 January 2024. The applicant says she validly exercised the option and has continued to perform her functions under the agreement.
• [8] In the absence of a finding or evidence that the agreement has expired, I am prepared to accept that prima facie, the applicant has standing to bring the application as the caretaking service contractor for the scheme.
• [9] As an adjudicator, I may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the community management statement (CMS), or the exercise of rights or powers, or the performance of duties under the Act or the CMS.[1]
• [10] The body corporate argues that even if the applicant has standing to bring the application, the dispute is a "complex dispute" which is beyond the jurisdiction of a department adjudicator.
• [11] The Act provides that if a dispute is a complex dispute, the only remedy available is by order of a specialist adjudicator or the Queensland Civil and Administrative Tribunal (QCAT).[2] A complex dispute includes a dispute mentioned in sections 149A and 149B of the Act. Section 149A relates to the transfer of a letting agent's management rights. Section 149B relates to disputes about contractual matters. A contractual matter is defined as follows:[3]

Contractual matter, about an engagement or authorisation of a body corporate manager, service contractor or letting agent, means -

(a) a contravention of the terms of the engagement or authorisation; or

(b) the termination of the engagement or authorisation; or

(c) the exercise of rights or powers under the terms of the engagement or authorisation; or

(d) the performance of duties under the terms of the engagement or authorisation.

• [12] The application before me has arisen out of an ongoing dispute between the parties about their existing caretaking and letting agreements. Whether the agreements have now expired, or whether the option was validly exercised, are contractual matters that are not within my jurisdiction to resolve. The issue for determination in the current application however is not about a contractual matter. Rather, the application primarily concerns the validity of general meeting motions to engage a new caretaker, and whether the motions are in some way a contravention of the Act. Prima facie, I am of the view that this not a complex dispute and that I have jurisdiction to determine the matter.

• [13] The Commissioner has referred this application to me to decide whether an interim order is warranted. There is no statutory requirement to obtain comment from other parties before an interim order is decided.[4] In the circumstances, I gave the body corporate a limited opportunity to respond to the interim order application.

• [14] An adjudicator may make an interim order if satisfied, on reasonable grounds, that one is necessary because of the nature or urgency of the circumstances.[5]
• [15] To determine whether an interim order is warranted, it is necessary to consider:
  1. whether the application raises a serious legal issue with a likelihood of success at final determination, that is, whether there is any merit to the application; and
  2. whether the balance of convenience favours the interim order being granted. This requires balancing the inconvenience of granting relief now if final orders are ultimately refused against the impact of refusing interim relief if final orders are ultimately granted. Of particular significance is whether an interim order is necessary to prevent serious or irreparable harm.

• [16] Motions 24.1 and 24.2 were proposed to the annual general meeting of 15 October 2025 (the AGM) as a group of same issue motions. The motions proposed for the body corporate to enter into a new caretaking and letting agreements with either Amaroo Resort Pty Ltd (Motion 24.1) or S & S Properties Pty Ltd (Motion 24.2) for a term of 3 years commencing on 16 November 2025. The explanatory note accompanying the motions provided that due to the non-renewal and subsequent expiration of the previous caretaking and letting agreements, the body corporate is required to enter into new agreements.
• [17] The applicant seeks an interim order that the body corporate must not implement Motions 24.1 and 24.2 (whichever is passed), until the related dispute concerning the validity, continuation or renewal of her caretaking and letting agreements has been determined by the tribunal or by specialist adjudication. She says that acting on these motions would predetermine and interfere with the resolution of a matter that falls within another jurisdiction.
• [18] While the applicant may be 'in dispute' with the body corporate about the continuation of her agreements, there is no indication that legal proceedings have been commenced in QCAT or for specialist adjudication regarding that dispute. That being the case, I do not see how the AGM motions would interfere with the resolution of a matter in another jurisdiction as the applicant claims.
• [19] The applicant also seems to suggest that the body corporate does not have power to make a decision that purports to "determine and pre-empt the outcome of a complex dispute". The body corporate submits that this is misconceived. It says that after the agreement formally expired on 31 January 2024, the body corporate was free to enter into new caretaking and letting agreements with other parties by proposing relevant motions for consideration at a general meeting in accordance with the requirements of the legislation.
• [20] Section 125 of the Accommodation Module empowers the body corporate to engage a person as a service contractor or authorise a person as a letting agent. The motion proposing the engagement or authorisation must be passed by ordinary resolution without the use of proxies, and the motion must be decided by secret ballot.[6] The meeting material must include the terms of the engagement or authorisation, including when the term of the engagement or authorisation begins and ends, and the term of any right or option of extension or renewal.[7]
• [21] The applicant does not suggest there was anything procedurally non-compliant about the AGM motions, or with the meeting material.
• [22] Further, while the body corporate has a duty under section 94(2) of the Act to act reasonably, at this stage, the applicant has not demonstrated how the body corporate has acted unreasonably in the circumstances. There are no legal proceedings on foot regarding the contractual dispute, and even if there were, it is not necessarily unreasonable for the body corporate to enter into new caretaking and letting agreements with another entity.
• [23] I am not satisfied the application raises a serious legal issue.

• [24] The applicant submits that a temporary restraining order is necessary to maintain the status quo and avoid disruption until the contractual dispute is resolved through the appropriate forum. She argues that if implemented, the motion would cause immediate operational and financial harm to owners and guests including a risk to approximately $300,000 in forward bookings, and loss of employment for current staff. She says it would also mean her business cannot be transferred as a going concern.
• [25] I accept that there may be some disruption to the resort's operations if the body corporate engages a new caretaker but it is ultimately found that the AGM motion was invalid. On the other hand, if an interim order is granted but the application fails at final orders, the body corporate would have suffered the inconvenience of not having caretaking and letting arrangements in place during this intervening period. I am not satisfied that the balance of convenience weighs more heavily in favour of granting interim relief, particularly in circumstances where there appears to be very little prospects of success at final orders. Any financial loss that the applicant might sustain may also be recoverable from the body corporate if she is successful in litigating her contractual dispute in the correct jurisdiction.

• [26] I find no basis to grant the interim order sought. The application does not demonstrate a prima facie case, nor has the applicant satisfied me that there will be irreparable damage suffered if the interim order is not granted.
• [27] The application will now be referred back to the Commissioner to progress under the Act. Unless withdrawn, the application for final orders will remain to be determined. However, the applicant should note that based on the current submissions, there appears no basis for the AGM motions to be invalidated.

[3] See definition in Schedule 6 of the Act

[6] Section 125(2)(a)&(b) of the Accommodation Module

[7] Section 125(2)(c) of the Accommodation Module