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

INTERIM ORDERS - whether an interim order is warranted

1. The application for interim orders is dismissed.

• [1] The applicant claims to be the existing caretaking service contractor for Magnetic International Resort Hotel. She has an ongoing dispute with the body corporate about the extension of her caretaking and letting agreement, and about the extension of a lease over part of common property from which she runs a restaurant. According to the body corporate, both the caretaking and letting agreement and lease have now expired.
• [2] At the AGM of 15 October 2025, the body corporate passed Motion 24.2 to enter into a caretaking and letting agreement with a new operator, S & S Properties Pty Ltd (S & S Properties). The applicant objects to that decision. This is the second application brought by the applicant challenging the same motion.[1]
• [3] The applicant says that the agreement authorised under Motion 24.2 grants to S & S Properties occupation rights over the area of common property that is already subject of her existing lease. She seeks an interim order restraining the body corporate from implementing Motion 24.2 pending determination of the application.
• [4] The applicant also says that the committee has instructed her to cease her caretaking and letting services as of 15 November 2025. The applicant says the committee has no authority to do so and seeks an interim order requiring the body corporate to continue with her caretaking and letting agreement pending resolution of the dispute.
• [5] Final orders are sought for:
  1. Motion 24.2 to be invalidated;
  2. the applicant to be granted a reasonable period to negotiate the sale and transfer of business assets, the transfer of caretaking and letting services and the assignment of her lease to a new operator for approval at a general meeting; and
  3. the body corporate to abide by Motions 10 and 11 of the 2025 AGM.
• [6] The only question at this time is whether interim orders are warranted.

• [7] 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.

• [8] 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.[2] In the circumstances, I gave the committee a brief period to respond to the interim order application.

• [9] The committee made a detailed submission that includes the following:
  1. The interim relief sought by this application is substantially the same as what was sought in the applicant's first interim order application which was dismissed by the adjudicator.
  2. The body corporate's position remains unchanged.
  3. In 2018, the parties entered into a lease agreement whereby the applicant was granted a lease over a portion of the common property to operate a restaurant. The term of the lease was for a period of 5 years, to expire on 31 January 2024. The lease contained an option clause for a further 5 year term. The option was not validly exercised. The lease expired on 31 January 2024.
  4. Similarly, the parties had an agreement for the provision of caretaking and letting services, the term of which was for an initial period of 5 years with an option to extend for a further 5 years. The option was not validly exercised and the caretaking and letting agreement also expired on 31 January 2024.
  5. Since the expiry of the lease and the management and caretaking agreement, the applicant has been permitted to continue occupying the leased areas and perform the caretaking and letting functions by consent of the body corporate on a month-by-month basis. The body corporate permitted this arrangement in light of the then-ongoing QCAT proceeding brought by the applicant challenging the lease agreement.
  6. QCAT has since dismissed that application, and as the parties were unable to negotiate new agreements between themselves, the body corporate has sought to move forward by entering into new agreements with different operators.
  7. However, the applicant challenges whether the lease and caretaking and letting agreement have expired and, by extension, the validity of resolution 24.2 passed at the AGM to enter into new agreements with a different operator, S & S Properties.
  8. The applicant does not have standing to bring this dispute because it is a dispute between a body corporate and its former service contractor or lessee under expired agreements which is not provided for under section 227(1) of the Act.
  9. In the alternative, the dispute is a complex dispute about a contractual matter which can only be dealt with by a specialist adjudicator or by an order of QCAT. This application concerns a complex dispute because:
     1. whether the caretaking and letting agreement expired or whether the applicant properly exercised an option to extend the agreement are issues which fall within the definition of contractual matters;
     2. an adjudicator does not have jurisdiction to deal with a dispute involving a lease agreement, including debts owing under the agreement and whether that agreement is expired; and
     3. by the interim and final relief sought, the applicant is, in effect, asking an adjudicator to make a finding that the applicant properly exercised an option clause to extend the caretaking and letting agreement and lease agreement such that the body corporate cannot act upon resolution 24.2.
  10. This dispute is inextricably linked to contractual matters beyond an adjudicator's jurisdiction as the applicant's complaints are founded on her disagreement as to the expiry of the caretaking and letting and lease agreements, and the debts which remain owing to the body corporate under those agreements.
  11. The application ought to be dismissed for want of jurisdiction under section 270 of the Act.
  12. Further and in the alternative to the jurisdictional issues raised above, the applicant has not demonstrated a prima facie case as to why the applicant is entitled to the interim or final relief sought.
  13. The applicant has not demonstrated there were any procedural irregularities with resolution 24.2 or with the meeting material for the AGM generally.
  14. The applicant has not demonstrated that the body corporate acted unreasonably in passing resolution 24.2.

• [10] The application raises considerable jurisdictional issues.
• [11] The dispute is brought by the applicant purportedly in her capacity as the caretaking service contractor for the scheme. However, the body corporate claims that the applicant is a former caretaking service contractor (and a former lessee) and in these capacities, the applicant does not have standing to bring the application under section 227(1) of the Act.
• [12] I considered this issue of standing in the first interim application. There, I expressed the view that in the absence of a finding or evidence that the caretaking and letting 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.[3] The same applies in the current matter.
• [13] The more problematic question concerns the proper characterisation of the dispute and the limitation of my powers as a department adjudicator. As a department 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.[4]
• [14] However, if the dispute is a 'complex dispute', the only remedy is by order of a specialist adjudicator or QCAT.[5]
• [15] A 'complex dispute' is defined in Schedule 6 of the Act with reference to disputes mentioned in various provisions of the Act, including section 149B. Section 149B applies to a dispute about a 'claimed or anticipated contractual matter' including about the engagement of a person as a caretaking service contractor. It specifically provides that a party to such a dispute may apply under Chapter 6 for an order of a specialist adjudicator or for an order of QCAT.
• [16] A 'contractual matter' is defined in Schedule 6 as follows:

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.

• [17] I will consider each of the final orders sought and whether these are, prima facie, within my jurisdiction as a department adjudicator to determine.

• [18] The applicant seeks a final order that Motion 24.2 of the AGM be deemed invalid on the basis that it purports to grant or authorise occupation over an area already subject to an 'enduring lease' and therefore exceeds the body corporate's lawful statutory authority. However, the applicant does not identify what the body corporate is alleged to have breached under the Act or regulation module. Further, in order for me to determine whether the body corporate did in fact act unlawfully, I would need to make a finding about the status of the lease. As submitted by the committee, the applicant is, in effect, asking an adjudicator to make a finding that the applicant properly exercised an option clause to extend the lease agreement such that the body corporate cannot act upon resolution 24.2. Such is not a matter within my jurisdiction to determine.
• [19] Secondly, the applicant seeks a final order that she be granted a reasonable period of time to negotiate the sale and transfer of business assets, the transfer of caretaking and letting services and the assignment of the lease to a new operator for approval at an EGM. The applicant has provided no apparent basis under the legislation for such an order. Further, as set out above, a department adjudicator does not have jurisdiction to determine disputes about contractual matters. In my view, whether or not the applicant is entitled to transfer her caretaking and letting agreement (and any assets pursuant to that agreement) is a dispute about the exercise of rights or powers under the terms of the agreement. Again, it would require a finding as to whether the option to extend the caretaking and letting agreement was properly exercised such that the applicant is now entitled to transfer that agreement. That is a contractual matter that can only be determined by a specialist adjudicator or by QCAT. Similarly, to determine whether the applicant may propose an assignment of the lease would require findings to be made about the lease agreement which is not within my jurisdiction to consider.
• [20] Thirdly, the applicant seeks a final order that the body corporate abide by Motions 10 and 11 of the 2025 AGM. The motions proposed that the body corporate commence legal action to recover unpaid lease outgoings and rental payments but were defeated. The applicant asserts that the body corporate has acted contrary to these defeated motions by commencing unauthorised legal proceedings. While the issue in dispute appears to be within jurisdiction, the applicant has provided little grounds to substantiate her assertions.
• [21] With the above jurisdictional challenges in mind, I now turn to the interim orders sought.

• [22] 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.[6]
• [23] 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.

• [24] The applicant seeks interim orders that the AGM resolution not be implemented and that the body corporate continue with her caretaking and letting agreement pending determination of this application.

• [25] Firstly, in relation to Motion 24.2, the applicant says it purports to authorise an agreement granting occupation of the same areas already leased (to her) until 31 January 2029. If the body corporate allows occupation under that motion, the applicant argues there will be 2 competing legal rights over the same premises which would create a breach by the body corporate of the existing lease.
• [26] As I have stated, in order to determine whether the body corporate has acted unlawfully, I would need to determine the status of the lease, a matter which is beyond my jurisdiction to consider. Apart from the body corporate's contractual obligations, the applicant has not identified any other basis for invalidating Motion 24.2. She does not allege any procedural irregularities with Motion 24.2 or with the AGM otherwise. Further, while the body corporate has a duty under section 94(2) of the Act to act reasonably, the applicant has not demonstrated how the body corporate acted unreasonably in passing Motion 24.2.
• [27] I am not satisfied the applicant has raised a serious legal issue in relation to the first interim order sought.

• [28] As established above, an adjudicator does not have jurisdiction to determine contractual matters about the engagement or authorisation of a caretaking service contractor. The committee submits that the second interim order sought will, in effect, require a determination of a contractual matter, namely, the forced continuation of the caretaking and letting agreement in circumstances where:
  1. the term of the agreement expired on 31 January 2024 and the body corporate gave over 3 months' notice of the month-by-month arrangement ending on 16 November 2025; and
  2. lot owners voted in general meeting to engage a different contractor to provide caretaking services.
• [29] It matters not whether I agree with the body corporate's assertion that the agreement has expired, or whether the month-to-month tenancy has come to an end. The point is that these are contractual matters that I do not have jurisdiction as a department adjudicator to determine.
• [30] The applicant suggests the committee has no power to instruct that she cease her caretaking and letting services as of 15 November 2025. In my view, this argument is inextricably linked to the disputed contractual matter. The applicant provides me with no legislative basis to require the body corporate to continue with her caretaking and letting agreement pending final determination of the matter.
• [31] I am not satisfied the second interim order sought raises a serious legal issue within my jurisdiction to consider.

• [32] The applicant says interim orders are necessary to prevent disruption to the resort operations and financial loss to owners from lost future bookings. She says she will suffer significant financial and reputational harm while there will be no material disadvantage to the body corporate if interim relief is granted. In addition, the applicant says if Motion 24.2 is allowed to proceed, it will expose the body corporate and owners to significant contractual liability for repudiating the existing lease.
• [33] The body corporate says the applicant has not evidenced how the operations of the resort will be disrupted if interim orders are not granted. It says the risk of future bookings being cancelled is unlikely to eventuate unless the applicant cancels those bookings herself, as she does not have to hold the management rights to continue providing letting services to owners. The body corporate is also unaware of what 'essential assets' the applicant claims to own that are necessary for the operation of the resort.
• [34] The applicant has not substantiated what material harm will be suffered if the interim orders are not granted. Any financial losses that the applicant might suffer may be recoverable from the body corporate if she successfully litigates her contractual disputes in the correct jurisdiction. The 'contractual liability' that the applicant argues the body corporate is exposing itself to is hypothetical, given there have been no orders or findings made about the caretaking and lease agreements that the applicant claims are still on foot. To restrain the body corporate from proceeding with a new caretaking and letting agreement that appears to have been validly resolved, and to require that the body corporate continue with the services of the applicant in these circumstances is unjustified.

• [35] The application has not identified any proper legal basis under the Act to warrant an interim order in this jurisdiction. At the heart of the dispute is the applicant's disagreement with the body corporate about her caretaking and letting agreement and lease agreement. While this application appears to challenge the validity of a body corporate resolution, the basis for that challenge does not lie primarily in the body corporate legislation but in those agreements. I am of the view that this is largely a contractual matter, or otherwise a dispute that should be dealt with in a court or tribunal of competent jurisdiction.
• [36] The body corporate has requested that the application be dismissed under section 270(1)(c) of the Act, that is, on the basis that the application is frivolous, vexatious, misconceived or without substance, and that costs be ordered. Where an adjudicator dismisses an application under section 270(1)(c), costs of up to $2,000 may be ordered against the applicant to compensate the respondent for loss resulting from the application.[7]
• [37] The applicant's first interim application was dismissed on 22 October 2025. In dismissing that interim application, I concluded there was no prima facie case and indicated that the application for final orders had little merit. Despite that, the applicant then immediately lodged the current application seeking largely the same outcomes albeit on slightly different grounds. However, the grounds to this application appear similarly misconceived and without substance, at least for this jurisdiction.
• [38] In the circumstances, I would invite the applicant to carefully consider whether she wishes to proceed with the application for final orders, and if so on what basis. Given current submissions, the application for final orders is likely to be dismissed with costs against the applicant.

[1] I dismissed the applicant's first interim application ref no: 1028-2025 on 22 October 2025 - see Magnetic International Resort Hotel [2025] QBCCMCmr 365 (Magnetic)