The Body Corporate for Mount Whitsunday (respondent)

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)

INTERIM ORDERS - whether interim order should be varied or cancelled.

Act, s 279; Standard Module, s 172

1. The interim order made as Mount Whitsunday [2025] QBCCMCmr 453 is cancelled and has no further effect.
2. The application for interim orders is dismissed.

• [1] The applicant originally sought interim orders about decisions made by the committee relating to the engagement of lawyers and the payment of invoices for legal services.
• [2] On 12 December 2025, I made interim orders in the form and for the reasons found in Mount Whitsunday [2025] QBCCMCmr 453 (Fourth Interim Order). In the circumstances, I did not seek comments from the committee before making the Interim Order. However, in making the Fourth Interim Order ex parte, I purposefully referenced the power of an adjudicator to extend, vary, renew, or cancel an interim order. I expressly noted that, if there were matters which would justify varying or cancelling the interim order, the respondent or an affected party may make a request that I do so.
• [3] The applicant has subsequently written to provide additional information and to request that the Fourth Interim Order be varied. In addition, the body corporate has requested that the Fourth Interim Order be cancelled.
• [4] I have considered the new information and, for the reasons that follow, I have decided to cancel the Fourth Interim Order and dismiss the application for interim orders in its entirety.

• [5] Mount Whitsunday community titles scheme 37885 (Mount Whitsunday) is a scheme consisting of 33 lots and common property. The community management statement (CMS) shows the Standard Module applies.
• [6] The applicant is the owner of Lot 11. It is represented by one of its directors, Stewart Lewis.
• [7] The respondent is the Body Corporate for Mount Whitsunday.
• [8] I incorporate by reference into this order the "Reasons for Decision" contained in Mount Whitsunday [2025] QBCCMCmr 453.

Applicant's request to vary the Fourth Interim Order

• [9] By email dated 13 December 2025, the applicant wrote to provide additional information about the committee spending limit and to request an urgent variation of the Fourth Interim Order.
• [10] The applicant advised he had been provided evidence from the committee, in the form of the minutes from the body corporate's annual general meeting (AGM) held in April 2022, that the body corporate has previously passed a motion by ordinary resolution to increase the relevant limit for committee spending to $60,000. He says this means the committee spending limit is materially higher than the $6,600 he understood it to be at the time he made the application for interim orders.
• [11] The applicant also says the committee recently decided by a vote outside committee meeting (VOCM) to engage lawyers at a cost of up to $15,400 to respond to QCAT Appeal APL478-25.[1] He says, the current wording of the Fourth Interim Order does not prevent the committee from proceeding to implement that decision.
• [12] As a result, he says the current wording of the Fourth Interim Order may not prevent the harm of the committee proceeding to incur further unbudgeted legal expenditure and depletion of the body corporate's administrative fund without first seeking the approval of owners at a general meeting.
• [13] The applicant submits that the body corporate's annual budget for legal expenses is $5,000, with year to date spending at $45,000 not counting the future spending authorised by the committee. He also says as of 4 December 2025, the cash balance in the administrative fund is $11,996.77.
• [14] To the extent the committee is permitted to proceed with the proposed new engagement, the applicant says the expenditure is unbudgeted, exceeds cash available in the administrative fund, and creates a real risk that additional funding steps will be required. He says matters about additional funding should be transparently put to owners at a general meeting. In summary, the applicant argues that, "regardless of spending authority, the key issue remains the scheme's funding capacity for further legal expenditure on this dispute."
• [15] For those reasons, the applicant has made a request that the Fourth Interim Order be varied to provide that the committee must not incur or pay for future legal services in connection with QCAT Appeal APL478-25 and/or the related governance dispute, unless:

(a) the expenditure is expressly authorised by the body corporate at a general meeting (including any necessary budget amendment and/or special levy); and

(b) any proposed use of Sinking Fund monies, or any inter-fund transfer/loan/arrangement to fund that expenditure, is expressly authorised by the body corporate at a general meeting.

• [16] The applicant says the committee has indicated it intends to proceed with the legal engagement and spending and he requests the variation be made urgently.

Respondent's request to cancel the Fourth Interim Order

• [17] The body corporate says (through its lawyers) that an adjudicator is required to investigate applications, including applications for interim orders. Citing section 269 of the Act, it says when investigating an application the adjudicator is required to observe natural justice and to "act as quickly, and with as little formality and technicality, as is consistent with the fair and proper consideration of the application." The body corporate acknowledges that what is required of an adjudicator to observe natural justice may depend upon the circumstances of the matter.
• [18] In the circumstances, the body corporate says it could have been afforded an opportunity to comment on the application and particularly on the key issue of the current relevant limit for committee spending.

• [19] The questions for determination at this time are whether the new information provided by the applicant has persuaded me that I should exercise my power under section 279 of the Act to vary the Fourth Interim Order as requested by the applicant or whether I should cancel the Fourth Interim Order as requested by the respondent body corporate?
• [20] Before I address those questions, I will first make some comments on the body corporate's arguments about adjudicator's investigations and natural justice when it comes to interim orders.
• [21] To the extent the body corporate is suggesting that to observe natural justice an adjudicator must always afford a respondent an opportunity to comment on an application for interim orders, I disagree. An adjudicator must act as quickly as is consistent with the fair and proper consideration of the application, can only make just and equitable orders if there is a legal basis for doing so, and is given an express power to vary or cancel an interim order. In my view, it is implicit from the power to vary or cancel interim orders that an adjudicator may on occasion make interim orders on an ex parte basis without offending notions of natural justice.
• [22] More specifically, in this particular instance, I turned my mind to whether or not to invite the body corporate to make an interim submission. In the circumstances:
  1. I was of the view that time might be of the essence for a response to the QCAT appeal and committee spending on legal expenses imminent
  2. I considered it was mid-December and there may be issues with the availability of committee members, body corporate managers, and legal advisers, not to mention the resources of this office
  3. In making the Fourth Interim Order I expressly noted that "if there are matters not presently known me which would justify varying or cancelling the interim order, the respondent or an affected party may make a request that I do so", and
  4. I carefully tailored the wording of the interim orders to account for the unresolved factual issue about the amount "currently set as the relevant limit for spending by the Committee for Mount Whitsunday" so that the body corporate would not be unduly restrained by the interim order.
• [23] For the above reasons, even though I did not seek interim submissions, in my view I nevertheless complied with the requirement that adjudicators observe natural justice.

Whether to vary or cancel the Fourth Interim Order?

• [24] In the Fourth Interim Order, I explained at [30] that:

To determine whether I am satisfied an interim order is necessary and that it would be just and equitable to make one, there must be some reason in law to make an interim order. To make those determinations, I must consider the substantive issue in dispute. As an initial matter, the applicant must satisfy me that there are serious legal questions to be answered. At this stage, an applicant does not need to satisfy me on the balance of probabilities that their legal arguments will be successful. However, I must be satisfied there is a sufficient likelihood the applicant will ultimately succeed to justify making an interim order while the application for final orders is pending.

• [25] In the Fourth Interim Order, I also explained I was satisfied at that time (and for preliminary purposes only) that the applicant had raised at least two legal issues about the authorisation of spending by the committee on legal services.[2] The first issue was whether the committee has purported in one or more instances to authorise spending of body corporate funds above its spending limits. For that legal issue, I stated at [43]:

Where it is certainly possible the body corporate has not set a higher limit for committee spending, and it is alleged the committee has approved payment of some of the invoices for legal services in amounts exceeding $6,600, I am satisfied the applicant has raised a serious legal question with sufficient chance of success for me to consider whether making the requested interim order.

• [26] The new information provided by the applicant - that the body corporate decided by ordinary resolution at its April 2022 AGM to increase the relevant limit for committee spending to $60,000 - has changed my preliminary view. In view of that information, where the committee has been pre-authorised by the body corporate to approve spending up to $60,000, an amount significantly higher than the default limit, I am no longer satisfied there is a sufficient likelihood the applicant will succeed on the first legal issue raised. As a result, I am no longer satisfied there is a sufficient legal basis on which to ground an interim order.
• [27] In other words, the new information provided by the applicant has persuaded me that the applicant's chances of success on the legal issues in dispute are now so slim that an interim order is not warranted and the Fourth Interim Order should be cancelled.
• [28] In concluding that the Fourth Interim Order should be cancelled, I have also considered the applicant's argument that "regardless of spending authority, the key issue remains the scheme's funding capacity for further legal expenditure on this dispute." In this regard, the applicant makes 3 arguments:
  1. the spending on legal fees to date (and the additional $15,400 approved by the recent committee VOCM) is significantly over the amount budgeted ($5,000) for such expenses by the body corporate at its most recent AGM
  2. the proposed spending exceeds available cash in the administrative fund cash, and
  3. as a result, there is a real risk that additional funds will need to be raised, which should be approved by owners at a general meeting.
• [29] In my preliminary view, these arguments appear to be premised on misconceptions. With respect to budgets, at each AGM, a body corporate must adopt administrative and sinking fund budgets for each financial year.[3] Both budgets are set based on estimates.
• [30] The administrative fund must be based on estimates of necessary and reasonable spending in the financial year to cover costs of maintaining common property and body corporate assets, insurance, and other recurring expenditure.[4] The sinking fund budget must provide for a 'reasonable capital amount' to provide for necessary and reasonable spending for the financial year, and to accumulate a proportionate amount of the anticipated spending on capital or non-recurrent expenditure for at least the next 9 years.[5] Based on the adopted budgets, the body corporate must also, by ordinary resolution, set the total contributions to be levied and the per lot contributions.[6]
• [31] In terms of the relationship between budgets and expenditure, the legislation expressly provides that "the inclusion of an item of expenditure in a budget adopted by the body corporate is not, of itself, authority for the expenditure."[7]
• [32] The reverse is also true. Budgets are based on estimates and do not lock a body corporate in to only spending budgeted amounts. Provided it does so in the way required by the legislation, a body corporate may approve expenditure on non-budgeted items.[8] To the extent it does so, and where that decision causes a liability to arise for which there is no provision or inadequate provision in the budget, the body corporate can then pass an ordinary resolution to raise a special levy to fund the expenditure.[9]
• [33] As a result of the above, my preliminary view is that the applicant is unlikely to succeed on his challenges to the committee's exercise of its spending authority. In my view, what he describes as "the key issue", namely "the scheme's funding capacity for further legal expenditure on this dispute" is not a legal basis for the interim order. Nor do his arguments justify a variation of the Fourth Interim Order. Rather, to the extent the body corporate does not have sufficient funds to cover liabilities for legal expenses, it can decide to pass an ordinary resolution at a general meeting to raise a special levy to cover those expenses.

• [34] I have cancelled the Fourth Interim Order for the reasons given above.
• [35] The application will now be referred back to the Commissioner. If the applicant decides to proceed with the application for final orders, the application will progress under the Act.
• [36] The applicant now has additional information about committee spending limits. I have also made comments above concerning what appear to be misconceptions about provisions that may be relevant to the final orders sought. In deciding whether to proceed with the application for final orders, the applicant may wish to first review the grounds and legal bases for the final orders sought. The applicant may also wish to have regard to an adjudicator's power to dismiss an application if satisfied that the application is frivolous, vexatious, misconceived or without substance. And, that where an application is dismissed on that basis, section 270(3) empowers an adjudicator to award costs of up to $2,000 incurred by the respondent in defending the application. In making a decision whether to award costs, an adjudicator may have regard to previous applications by the applicant.[10]

[1] This is the applicant's appeal from Mount Whitsunday [2025] QBCCMCmr 407.

[2] Fourth Interim Order at [40]-[44]

[3] See Section 160(1) of the Standard Module

[4] See Section 160(2) of the Standard Module

[5] See Section 160(3) of the Standard Module

[6] See Section 162 of the Standard Module

[7] See Section 160(7) of the Standard Module

[8] See e.g., Islander [2022] QBCCMCmr 60 at [68]

[9] See Section 163 of the Standard Module

[10] See Section 270(3)(b) of the Act