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

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

BODY CORPORATE RECORDS/ BODY CORPORATE ASSETS - where the applicant alleges the body corporate failed to keep records relating to a marina berth associated with her lot and that it failed to record the marina berth on the body corporate register of assets - whether the orders sought by the applicant are warranted in the circumstances.

Act, ss 11, 94, 276; Standard Module, ss 231, 226

• [1] Mariner Quays CTS 20275 is a 49-lot scheme situated in Runaway Bay, Queensland. It is governed by the Standard Module. The applicant, Dorothea Elizabeth Baker, is the owner of Lot 53 (townhouse 38) in Mariner Quays.
• [2] The applicant is unhappy that the Body Corporate for Mariner Quays failed to keep the chattel lease for marina berth 38, a berth associated with Lot 53 which the applicant has been using since purchasing the lot in 2010. The applicant says that without the lease documentation, she does not have legal certainty about her rights and obligations in relation to the marina berth.
• [3] The applicant says the body corporate was required to keep this documentation and it failed to do so in contravention of the Standard Module. Accordingly, she is seeking the following orders:
  1. That the body corporate failed to retain the Chattel Lease document covering marina berth #38 in contravention of Regulations s231(5) of BCCM Act (Standard Module).
  2. That the body corporate failed to record in the 'Register of Assets' the pontoon/marina berth #38 asset held by the body corporate in contravention of BCCM Regulations s226(1).
  3. That the body corporate was not capable of supplying to the lot owner a copy of such Chattel Lease document when such document is a document of the body corporate requiring retention.
  4. That the current lot owner of #38 is deemed to be the Lessee under the Chattel Lease.
  5. That the body corporate is required to agree to the provided terms & conditions of such Chattel Lease based on similar Chattel Leases at the original date.
  6. That the body corporate is required to sign a Reconstituted Chattel Lease as provided.
• [4] The applicant bears the onus to establish that the orders she seeks are warranted in the circumstances.

• [5] The applicant submitted an application for adjudication on 3 March 2025.
• [6] The commissioner invited submissions from the body corporate committee and all other owners in the scheme. The committee and one owner in the scheme made submissions in response.
• [7] The applicant inspected the submissions made in response and submitted a reply.
• [8] A dispute resolution recommendation was made referring the file to department adjudication.[1] I was then tasked with deciding the matter.

• [9] Mariner Quays is a waterfront residential scheme located at the northern end of the Gold Coast in Runaway Bay. I understand the complex was completed in the early 1990's.
• [10] The scheme is located on a peninsular with canals surrounding it. The lots, standalone townhouses, are located in the middle of the peninsular and a timber boardwalk has been constructed between the lots and the waterfront. Pontoons or marina berths are located around the canal front and are affixed to the boardwalk.
• [11] I understand that ownership of the pontoons and marina berths differs depending on who constructed them. I am told that prior to 2010, almost all of the pontoons were constructed by the body corporate and then each side of the pontoon was leased as a separate marina berth to lot owners in the scheme. After 2010, pontoons were mostly built by individual lot owners and are privately owned.
• [12] I understand the body corporate kept a marina berth register and pontoon maps which were updated over time as the assets changed hands. However, the committee acknowledges these records were not accurate and in October 2024, the committee decided to undertake a comprehensive review and audit of the pontoons and marina berths at the complex. The review was completed in January 2025 and a 'pontoon and marina berth information pack' was created.

1. It seems the committee's review of the pontoons and marina berths brought to the applicant's attention that marina berth 38, the berth associated with her lot, was constructed before mid-2006 and was therefore not a freehold asset of the lot as the applicant had previously believed.[2] Instead, both the applicant and committee acknowledge that marina berth 38 is subject to a chattel lease.

• [14] The applicant did not have a copy of the chattel lease for the marina berth and approached the committee and the body corporate manager to request a copy. Both the committee and body corporate manager responded that the body corporate did not hold a copy of the chattel lease for marina berth 38 and they could not assist further with the issue.
• [15] The applicant says she subsequently undertook an extensive search for the original chattel lease for marina berth 38 including via her conveyancing solicitor, the previous owners of Lot 53 and their conveyancing solicitor, the executors of the previous owner's estate, Maritime Queensland and the previous body corporate managers for the scheme. The applicant says she was unable to locate a copy of the lease.

• [16] The applicant says her solicitor has indicated to her that having the chattel lease for marina berth 38 is necessary for her to know her responsibilities and obligations under the lease and also to avoid any problems when the time comes to sell Lot 53 in the future.
• [17] The applicant says that on learning marina berth 38 was subject to a chattel lease and being unable to locate that document despite extensive searching, she obtained a copy of a 1995 chattel lease for a similar marina berth from a neighbouring lot. This lease details the terms and conditions of the chattel lease including its 99-year term.
• [18] The applicant says she approached the committee and suggested alternative ways the issue could be resolved including a confirmation letter or a statutory declaration with the terms and conditions of the chattel lease attached. She says the committee said it could not assist with either of these alternatives and referred her back to her solicitor.
• [19] The applicant says she then made a further suggestion about signing an entirely new chattel lease with the body corporate. However, the committee said the original chattel lease would need to be dealt with before a new lease could be contemplated.
• [20] The applicant says that having exhausted all searching, consulting with a solicitor and, canvassing all reasonable alternatives with the body corporate, she is now seeking orders from an adjudicator to resolve the matter. The applicant asserts the body corporate was the 'lessor' on the original chattel lease with the 'lessee' being the owner of Lot 53 (townhouse 38).
• [21] The applicant says the chattel lease for the marina berth still has current relevance to the scheme and the body corporate ought to have kept it pursuant to section 231(5) of the Standard Module. She further alleges that the body corporate is in breach of section 226(1) of the Standard Module as it failed to record the pontoon/marina berth 38 on the body corporate's register of assets.

• [22] The committee explains that prior to November 2005, an application to construct a pontoon was made to the Department of Environment and Science to undertake tidal works. I understand the application to construct the pontoon associated with marina berth 38 was made under these provisions and this accords with the historical tidal works approvals available for the address of the scheme.[3]
• [23] The committee says it spent many hours carrying out an extensive review of the pontoons and marina berths at the scheme. It acknowledges that marina berth 38 is subject to a chattel lease but says unfortunately, some owners - for one reason or another - did not have, or did not receive at the time of purchase, a deed of assignment for the chattel lease of the marina berth associated with their lot. It says the applicant is one such owner.
• [24] The committee says unfortunately, the body corporate did not keep a copy of the chattel lease for marina berth 38. The committee says it has had extensive engagement with the applicant about the issue and has also put forward suggestions for the applicant to discuss with her solicitor. It says it has done everything it can to support the applicant with resolving the matter.
• [25] The committee says the applicant's request for a reconstituted lease to be created and signed off by the body corporate is not the best option and requests that her application for such an order be declined.

• [26] Only the owners of one lot made submissions in response. They say they support the applicant's application in principle. They submit that all owners who have marina berths which are subject to a chattel lease should be offered a reconstituted or replacement lease if their documents cannot be located.
• [27] The lot owners say that responsibility for retaining all the documentation relating to the chattel leases rest with the body corporate. Accordingly, where documentation has gone missing, it is incumbent upon the body corporate to rectify the situation.

• [28] The applicant has sought six orders. I will deal with orders 1, 2 and 3 separately before turning to consider orders 4, 5 and 6 together.

• [29] The first order sought by the applicant is a declaration that the Body Corporate for Mariner Quays failed to keep the chattel lease pertaining to marina berth 38 when it was still relevant to the scheme. She says this is in contravention of section 231(5) of the Standard Module.
• [30] Section 231 of the Standard Module provides for the keeping and disposal of records. It sets out the following:

231 Keeping and disposal of records - Act, s 204

(1) The body corporate must keep the following, subject to the operation of subsections (3) and (4) permitting their disposal -

(a) the body corporate's accounting records and statements of account for each financial year;

(b) notices given in relation to the community titles scheme by a public authority, local government or other authority;

(c) orders made against the body corporate, or in relation to the scheme, by a judicial or administrative authority;

(d) each policy of insurance the body corporate puts in place;

(e) documents evidencing each engagement of a body corporate manager or service contractor, and each authorisation of a letting agent;

(f) each agreement between the body corporate and the owner of a lot included in the scheme about the giving of rights, or the imposing of conditions, under an exclusive use by-law;

(g) documents evidencing each engagement of a service contractor or authorisation of a letting agent to occupy a part of the common property, and each authorisation of access to, or use of, part of the common property by someone else;

(h) correspondence received by the body corporate, and correspondence sent by the body corporate;

(i) all minutes of meetings of the committee and all associated committee meeting material;

(j) all minutes of general meetings of the body corporate, and all associated general meeting material;

(k) reports given to members of the body corporate by a body corporate manager acting under a chapter 3, part 5 engagement;

(l) any reconciliation statement prepared for an account kept for the sinking or administrative fund and the associated financial institution statement and invoices;

(m) notices for resolutions of the committee to be passed other than at a meeting, and the responses of committee members.

(2) The following documents may be kept by the body corporate in their original paper form or in photographic or electronic image form -

(a) minutes of committee meetings and general meetings, including attachments;

(c) registers the body corporate is required to maintain.

(3) The following documents may be disposed of 6 years after their creation or receipt -

(a) statements of account, including certificates of auditors;

(b) notices of meetings, including agendas and attachments;

(c) documents evidencing or detailing major repairs or installations carried out on the common property;

(d) orders made against the body corporate, or in relation to the scheme, by a judicial or administrative authority, and documents relating to those orders;

(e) notices given in relation to the scheme by a public authority, local government or other authority;

(f) written agreements to which the body corporate is a party;

(g) reports given to members of the body corporate by a body corporate manager acting under a chapter 3, part 5 engagement.

(4) The following documents may be disposed of 2 years after their creation or receipt -

(a) associated committee meeting material and associated general meeting material, other than material mentioned in subsection (3)(b);

(b) correspondence of no significance or continuing interest;

(c) reconciliation statements and associated financial institution statements and invoices.

(5) Despite subsections (3) and (4), a document may not be disposed of if it is a document having current relevance to the scheme, including, for example, the following -

(a) a contract that is in force for longer than 6 years;

(b) a notice required to be given to the body corporate, if the information included in the notice is still current information.

• [31] The applicant says marina berth 38 is subject to a chattel lease with the body corporate being the 'lessor' on the lease. She says marina berth 38 is within a group of marina berths at the scheme which are all subject to chattel leases and these leases have a currency of 99 years. The applicant says it follows that the lease for marina berth 38 is still currently on foot and the body corporate, as 'lessor', has ongoing obligations and responsibilities under the lease. Accordingly, the applicant says the chattel lease has current relevance to the scheme under section 231(5) of the Standard Module and she submits the body corporate ought to have retained the document. The applicant seeks an order that the Body Corporate for Mariner Quays failed to retain the chattel lease document for marina berth 38 in contravention of the requirements of the Standard Module.
• [32] Section 231(1) of the Standard Module sets out what records a body corporate must keep subject to the later subsections allowing for disposal. Subsection (1) does not explicitly set out that a body corporate must keep lease documents, however subsection 3(f), in allowing documents to be disposed of 6 years after their creation or receipt, refers to 'written agreements to which the body corporate is a party'. This suggests that other documents may need to be retained beside those specifically listed in section 231(1).
• [33] In any event, section 94(1) of the Act provides that a body corporate must, amongst other things, administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme. For the reasons set out at paragraph [39] below, I am satisfied marina berth 38 is a body corporate asset. Accordingly, I consider that, in acting reasonably under section 94(1), the body corporate ought to have retained the chattel lease document for the marina berth. It is not in dispute that it was the lessor under this lease agreement and that the lease still has a substantial term left on it.
• [34] While I have accepted that the body corporate was obligated to keep the chattel lease for marina berth 38, this does not mean it follows that I must make order 1 as sought by the applicant. I note section 276 of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute. The applicant has sought an order for a declaration that the body corporate failed to keep the lease document as obligated under the Standard Module. However, it appears to me that in the circumstances of this case, an order to that effect will not advance the applicant's case in terms of the dispute. Accordingly, I do not consider it appropriate to make the order sought.

• [35] The second order sought by the applicant is a declaration that the Body Corporate for Mariner Quays failed to record marina berth 38 on the body corporate 'register of assets'. She says this is in contravention of section 226 of the Standard Module.
• [36] Section 226 of the Standard Module provides:
  1. Register of assets

(1) The body corporate must keep a register of body corporate assets and record in it all body corporate assets of more than $1,000 in value.

(2) The register must show the following details for each asset recorded -

(ii) the name and address of the person from whom the asset was purchased;

• [37] Section 11 of the Act sets out the meaning of body corporate assets and provides the following:
  1. Meaning of body corporate assets

(1) Body corporate assets, for a community titles scheme, are items of real or personal property acquired by the body corporate, other than property that is incorporated into and becomes part of the common property.

1. an airconditioning unit might be bought by a body corporate as a body corporate asset, but become common property when it is installed as a fixture
   1. a lot acquired by the body corporate under section 40

(2) Body corporate assets may consist of any property an individual is capable of acquiring.

freehold land, a lease, a licence to use land for a particular purpose, a billiard table, gardening equipment

• [38] The applicant says marina berth 38 is an asset of the body corporate under section 11(2) of the Act. She points to the body corporate paying for power and water to be supplied to the marina berths. Furthermore, she notes the body corporate's insurance policy covers the marina berths. She says that although no valuation has been undertaken of the berth, it cannot reasonably be argued that the value of this asset is under $1,000. She concludes that marina berth 38 is a body corporate asset which ought to have been included on the body corporate's register of assets. She seeks an order that the Body Corporate for Mariner Quays failed to record marina berth 38 on the register of assets in contravention of the requirements set out in the Standard Module.
• [39] Although the original lease document has gone missing, the body corporate does not dispute that marina berth 38 is subject to a chattel lease with the body corporate being the lessor on that lease. Section 11 of the Act provides that a body corporate asset may consist of any property an individual can acquire, including a lease. Accordingly, it seems uncontentious that marina berth 38 is a body corporate asset.
• [40] Section 226 of the Standard Module provides that the body corporate must keep a register of body corporate assets which are more than $1,000 in value. I note the committee made no submissions in relation to the value of marina berth 38. In the circumstances, I agree with the applicant it is unlikely the value is less than $1,000. I am therefore satisfied marina berth 38 should have been included on the register of body corporate assets as required by section 226 of the Standard Module.
• [41] Notwithstanding the above, like for order 1, the finding that marina berth 38 should have been included on the register of assets does not automatically mean it is appropriate for me to make the order sought by the applicant. In the circumstances, I do not consider an order that the body corporate failed to record the marina berth on the register of assets will advance the applicant's case in terms of resolving the dispute. Accordingly, I am not prepared to make the order sought.

• [42] The third order sought by the applicant is a declaration that the body corporate is not capable of supplying a copy of the chattel lease for marina berth 38 despite it being a document the body corporate was required to keep.
• [43] The applicant says that in a meeting on 4 February 2025, the body corporate committee confirmed that the body corporate held no documents in relation to marina berth 38 outside of what the body corporate manager had retained. The body corporate manager subsequently confirmed it had retained no records in relation to marina berths at the complex. The applicant therefore submits the body corporate is not capable of supplying the applicable document despite the legislation requiring the retention of such documents. She seeks an order to that effect.
• [44] The applicant appears to accept that the body corporate has not retained the chattel lease for marina berth 38. If a requested record was not retained by the body corporate - even if it should have been - the body corporate cannot provide access to it. While it may be frustrating for the applicant that the body corporate has failed to retain the lease when it ought to have done so, there is no utility in making an order that the body corporate was not capable of supplying the document when it had not retained it. As I found for orders 1 and 2, I do not consider that making order 3 as sought by the applicant would advance her case in terms of resolving the dispute. Accordingly, I am not prepared to make the order sought.

• [45] The fourth, fifth and sixth orders sought by the applicant relate to the applicant wanting to 'create' a new lease for marina berth 38. She seeks the following: (1) that she be deemed to be the lessee under a new chattel lease for marina berth 38 (order 4), (2) that the body corporate is required to agree to provide the terms and conditions of such a chattel lease based on similar chattel leases at the original date (order 5) and, (3) that the body corporate be required to sign a reconstituted chattel lease as provided (order 6).
• [46] The applicant argues that to correct the current deficiency in the chattel lease documentation for marina berth 38, the adjudicator should make orders 4, 5 and 6 as sought. She says this will provide legal certainty regarding the obligations of both parties under the chattel lease and allow the interest in marina berth 38 to be transferred in the case of a future sale.
• [47] I note an adjudicator has broad powers to resolve disputes in the context of a community titles scheme about, as relevant to this dispute, the claimed contravention of the Act or the performance of duties under the Act.[4] However, even where I have accepted that the body corporate has breached the applicable legislation in relation to failing to keep a copy of the chattel lease for marina berth 38 and failing to record the berth as an asset on the register of assets, I am not satisfied the remedies sought by the applicant in orders 4, 5 and 6 follow from those breaches.
• [48] In any event, the applicant's application reveals no legal basis on which I could make orders 4, 5 and 6. Although the chattel lease for marina berth 38 has gone missing, it does not appear in dispute that the lease is currently still on foot having been, I understand, a 99-year lease which commenced sometime between 1995 and 2005.
• [49] The applicant acknowledges that at the time of purchasing Lot 53 (townhouse 38), she erroneously thought marina berth 38 was a freehold chattel of the lot. Accordingly, I understand she did not have the chattel lease for marina berth 38 assigned to her as part of the sale. This means the rights under the lease are still held by an unknown person or entity.
• [50] In light of there having been no assignment of the lease to the applicant, I cannot see on what basis I could make an order to deem the applicant to be the lessee under a chattel lease for marina berth 38 and compel the body corporate to enter into a new lease with her as the lessee, thus removing the rights of the current lessee.
• [51] I can understand the applicant's frustration with this issue and wanting to have legal certainty about the basis on which she is entitled to use marina berth 38, however, I do not consider I have the power to make orders 4, 5 or 6 as sought by the applicant.

• [52] For the reasons provided above, I have dismissed the applicant's application.

1. [2] The applicant says that when she purchased Lot 53 in early 2010, her interest in marina berth 38 was misrepresented to her as a 'freehold chattel' in the purchase contract. She has provided a copy of the contract of sale for Lot 53 which lists 'pontoon' as part of the chattels included in the sale.

[3] See: https://qldglobe.information.qld.gov.au/?topic=historical-tidal-works-approvals

[4] Section 276(1)(a) and (b) of the Act