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

INTERIM ORDER - whether interim relief that would stop the body corporate from acting on motions to reimburse lot owners is warranted.

1. The application for interim orders is dismissed.

• [1] This application for interim orders is brought against the body corporate by the owner of Lot 804 in the scheme.
• [2] This dispute has some connection to previous applications for interim and final orders, Parkside Apartments Toombul [2025] QBCCMCmr 68 and Parkside Apartments Toombul [2025] QBCCMCmr 230. Those applications were also lodged by this applicant against the body corporate.
• [3] The body corporate is undertaking maintenance works that allegedly displaces occupiers of some lots. The body corporate's committee passed motions that had the effect of reimbursing lot owners for relocation costs or lost rent for the period of the works.
• [4] The applicant takes issue with those committee decisions because, at an extraordinary general meeting in November 2024, the applicant submitted a motion that proposed the body corporate engage a law firm, Mahoneys (who represents the applicant in this matter, as well as previous applications), to provide legal advice about 'consequential damage liability' related to the body corporate's maintenance works. The motion passed. However, Mahoneys has not been engaged by the body corporate.
• [5] The applicant's position is that it is unreasonable for the committee to decide to reimburse lot owners without obtaining legal advice from Mahoneys, pursuant to the previous general meeting resolution.
• [6] The applicant seeks a final order that would require the body corporate to obtain the legal advice from Mahoneys before making payment to any lot owners for damage or relocation costs.
• [7] In the meantime, the applicant seeks interim orders that would stop the committee from acting on its resolutions to pay lot owners either until the dispute is finally resolved, or the body corporate passed a resolution at a general meeting permitting such payments.
• [8] I have dismissed the application for interim orders as, on my preliminary view:

(a) I am not currently satisfied there is a prima facie case for the final orders that would sufficiently justify interim relief as:

(i) The wording of the motion does not clearly support the interpretation that the body corporate could not resolve to reimburse lot owners without obtaining legal advice prior.

(ii) The body corporate has previously passed an ordinary resolution that permitted the committee to make such reimbursement decisions. This motion was unsuccessfully challenged by the applicant via a previous application to an adjudicator, where the adjudicator made comment that the liability for such costs has arisen from the body corporate's works.

(iii) There is a question as to whether it would be reasonable for the committee to act on the motion to engage Mahoneys, in circumstances where there is now risk of a perceived conflict of interest, and the body corporate would not have had regard to this issue at the time it passed the motion to obtain advice from Mahoneys.

(b) I am also not satisfied the nature, circumstances or balance of convenience justifies the interim relief, or that the orders would be just and equitable, where:

(i) The final orders do not expressly challenge the validity of the committee decisions for reimbursement.

(ii) The interim orders only expressly apply to two decisions of the committee, where at least one other similar decision has been made.

(iii) The interim orders appear to be of little utility, where the orders would stop payment to impacted lot owners unless same was approved by resolution at a general meeting. There is a strong argument these decisions have already been approved via a motion at a subsequent general meeting.

(iv) The works appear to relate to the structural integrity of the building. The interim orders may bring further dispute and delay to the works.

(v) The body corporate has acted on the committee decisions to reimburse lot owners (with payments taking place on a regular basis). Those owners have acted in reliance of these agreements and would be negatively impacted by the interim order.

• [9] The survey plans for the scheme show it is a building format plan subdivision of 83 lots and common property, in a 12 level concrete block building.
• [10] The community management statement shows that the Accommodation Module applies.
• [11] It is not disputed that there are maintenance works taking place at the scheme that the body corporate has an obligation to undertake.
• [12] The applicant acknowledges that some lot owners have been unable to reside in their lots as a result of the works,[1] and does not dispute that those lot owners may have a right to seek compensation from the body corporate in relation to property damage as a result of a failure to maintain by the body corporate.[2]

• [13] The applicant says the idea of the body corporate reimbursing impacted lot owners for losses is controversial, and as a result, an extraordinary general meeting was requisitioned and held on 19 November 2024 (2024 EGM) where the following motion was resolved to pass, which I will refer to as Motion for Lawyer Engagement:

Motion 7 - Independent review of claims for consequential damage - Level 1 building defect > > That the Body Corporate appoint Mahoneys to act, and provide legal advice, on the Body Corporate's consequential damage liability and other issues at the Scheme relating to the level 1 building deficiency up to the value of $5000. A copy of any resulting legal advice is to be fully communicated to all lot owners.

• [14] The body corporate has not acted on the passed Motion for Lawyer Engagement.

• [15] Since the passing of the Motion for Lawyer Engagement, the body corporate held its annual general meeting on 30 January 2025 (2025 AGM), where the following motion was passed, which I will refer to as the Associated Costs Motion:

That, subject to Motion 18 and either 15a or 15b being carried, the Body Corporate authorise the Committee to approve up to $183,680.20 for the Level 1 Associated costs as outlined the attached Project Estimate, subject to sufficient documentation to support the claim being received, with the anticipated costs as follows:

**Note: the above estimates may vary by up to 10%

Further, that the Body Corporate raise a special levy totalling $183,680.20, being $221.30 per contribution entitlement ($2,213.00 per Unit)...

• [16] Despite the Associated Costs Motion being directly relevant to this dispute, this meeting and its motions was not disclosed in the application.

• [17] The applicant, represented by Mahoneys, sought orders of an adjudicator disputing the Associated Costs Motion and other motions, for several reasons including that the body corporate acted unreasonably in passing the motion. The application was ultimately dismissed in Parkside Apartments Toombul [2025] QBCCMCmr 230.
• [18] Despite comments and findings of the adjudicator in that decision being relevant to this current dispute, the previous disputes were not disclosed to me in the application.

• [19] On 22 September 2025, the committee passed the following motions via a vote outside of committee meeting:

Motion 1 - Associated Costs - Additional Rent Lot 104 > > That the Body Corporate resolve to approve the associated costs claim for Lot 104 to for rent for an additional 26 week period commencing 18.09.2025 and expiring 18.03.2026, at a cost of $800 per week plus an additional bond of $200.00 plus a rent adjustment of $214.30. > > Motion 2 Associated Costs Lot 107 Loss of Rent > > That the Body Corporate resolve to approve the associated costs claim for Lot 107 for loss of rent for a 28 week period commencing 22.09.2025 and expiring 07.04.2026 at a cost of $650.00 per week.

• [20] The applicant refers to the above decisions as the Committee Resolutions.
• [21] On or around 7 October 2025, the committee also passed a resolution via a vote outside of committee meeting to reimburse the owner of Lot 108 for loss of rent for a 26 week period. While this motion is disclosed in the application materials, it is not expressly referenced in the interim order sought and does not form part of the applicant's express definition of the disputed Committee Resolutions. It may be captured in the second part of the interim order sought, but it is not entirely clear what the applicant's intentions are.

• [22] The final order the applicant seeks, which is not being determined at this time, reads as follows:

(a) a declaration that the Body Corporate must comply with the [Motion for Lawyer Engagement] prior to considering and voting on motions to make payment to lot owners for consequential damage or associated loss as those terms are used by the Body Corporate

• [23] The interim orders the applicant seeks, which are being determined in this decision, read as follows:

(a) that until: > > (i) further order; > > (ii) the resolution or discontinuance of this proceeding; > > the Body Corporate for Parkside Apartments Toombul Community Titles Scheme 39237, whether by its committee, servants or agents, must not: > > (iii) make the payments contemplated by, or otherwise act upon, the resolutions of the committee purportedly passed outside committee meeting on 22 September 2025 and recorded as motions 1 and 2 in the minutes of cote outside of committee meeting dated 22 September 2025; or > > (iv) otherwise cause payments to be made to lot owners in respect of any claims for consequential loss or damage without first: > > A. obtaining approval for the said payment by ordinary resolution passed in a general meeting; or > > B. complying with the resolution made in respect of [the Motion for Lawyer Engagement] at the extraordinary general meeting of the body corporate held on 19 November 2024.

• [24] I may make interim orders without seeking submissions from the respondent or ant affected parties.[3] However, where appropriate, I may seek comment from parties the order may negatively impact. In the circumstances, I found it appropriate to give opportunity of response from the body corporate and the owners of Lots 104, 107 and 108. Those lot owners are not listed as affected parties by the applicant, but I consider they may be negatively impacted by the application.

• [25] Interim orders are temporary in their effect. Typically, their purpose is to maintain the status quo, preserving a party's rights or interests until the matter can be finally determined, usually by stopping a party from taking certain actions.
• [26] The ability for an adjudicator to make interim orders is provided for in the legislation. All orders of an adjudicator must be just and equitable.[4] For interim orders, an adjudicator may make the order where satisfied, on reasonable grounds, that the order is necessary due to the nature or urgency of the circumstances.[5] Adjudicators often follow the test applied by courts in interlocutory applications, being whether the applicant has shown that it has a prima facie case, and whether the applicant has shown that the balance of convenience favours the granting of the relief claimed.[6]
• [27] Therefore, to be successful in their application for interim orders, the applicant must satisfy me that:

(a) There is a prima facie case to justify relief.

(b) The balance of convenience justifies the interim relief.

• [28] Ultimately, the order must also be just and equitable.

• [29] While I am not determining the final orders sought, determining whether there is a genuine legal issue at the interim stage requires some level of assessment of the prospects of success in the application's final orders.
• [30] The onus is on the applicant to satisfy the adjudicator that there is a prima facie case to justify the relief they are seeking. The applicant does not necessarily need to show that it is more probable than not that they would succeed. Rather, the applicants need to show a sufficient likelihood of success to justify interim orders.[7] How strong the possibility of success needed to secure the interim relief depends upon the nature of the rights the applicant asserts, and the consequences of the order sought.[8]

• [31] The applicant has framed the final order as a declaration. On my preliminary view, I am not satisfied this is appropriate, nor reflective of the applicant's aim.
• [32] A declaratory order serves to state or clarify legal rights without directing any specific action. It is non-coercive in nature. On the other hand, a mandatory or prohibitory order compels a party to do, or refrain from doing, an act.
• [33] The rest of the application's contents, including the nature of the interim relief sought, indicates the applicant wishes to compel the body corporate to engage Mahoneys before making further decisions. My preliminary view is that the applicant's intention does not align with the nature of a declaratory order.
• [34] My role is to determine whether the orders sought are justified. The wording of the relief sought is pivotal, as it dictates what questions of fact and law I need to determine. If this dispute is to continue, I would encourage the applicant to reconsider the framing of the final orders.
• [35] I will extend some grace to the applicant and proceed on the basis that the applicant seeks mandatory relief.

3.1.2. Compliance with Motion for Lawyer Engagement

• [36] The applicant wishes to see the body corporate obtain legal advice before any decisions are made regarding reimbursement. The applicant argues:

(a) The committee has an obligation to carry out valid resolutions of the body corporate made at a general meeting.

(b) It is unreasonable for the committee to not put into effect the Motion for Lawyer Engagement, as it is not entitled to disregard the wishes of owners.

• [37] The body corporate argues that whether the body corporate has an obligation to implement the Motion for Lawyer engagement has no bearing on whether the Committee Decisions, made in accordance with the Associated Costs Motion, should be implemented.
• [38] I am not currently satisfied there is a sufficient prima facie case for the final order sought that would justify interim relief, based on this argument.
• [39] The final order is not simply that the committee should engage Mahoneys for legal advice. It goes further than that. The final order sought would restrain the committee from paying lot owners for any loss associated with the works, until the legal advice has been obtained.
• [40] On my preliminary view, the Motion for Lawyer Engagement does not clearly state such an intention, and that view is given further weight in the context of the general meeting resolutions. The Motion for Lawyer Engagement certainly does state that Mahoneys be engaged for legal advice, but it is not clearly framed as a prerequisite for any other decision. The passing of the Associated Costs Motion at a later general meeting where legal advice had not been obtained, muddies the water further. Arguably, the Associted Costs Motion arguably revokes the Motion for Lawyer Engagement, by necessary implication, because it authorises the body corproate to spend money without the advice from Mahoneys.
• [41] Insofar as there is any argument that the committee should act on the Motion for Lawyer Engagement, without the question of whether it may act on the Committee Resolutions, I still hold concerns.
• [42] The legislation does state the committee must put into effect the lawful decisions of the body corporate.[9] The legislation also states the committee must act reasonably.[10] There is a question around whether it would be reasonable for the committee to act on the engagement in the current circumstances.
• [43] Since the passing of the Motion for Lawyer Engagement, Mahoneys have acted against the body corporate in several applications related to the issue it was going to give advice on, including this application.
• [44] On my preliminary review, which is only based on a brief overview of the materials currently in front of me, there is the possibility that Mahoneys have now acted on related matters where the body corporate's and the applicant's interests may oppose. Therefore, it is not inconceivable that there is the potential for conflict of interest with the engagement. While this potential may not have existed at the time of the Motion for Lawyer Engagement passing, it may now be a significant factor. The body corporate has not given informed consent to Mahoneys to act and give it advice in these new circumstances. I think it is certainly questionable as to whether it would be reasonable for the committee to now act on the Motion for Lawyer Engagement, despite the decision being made at a general meeting.

3.1.3. Reasonableness of Committee Resolutions

• [45] The applicant also argues that it would be unreasonable for the committee to pass resolutions that would reimburse lot owners for losses associated with the works as:

(a) The Motion for Lawyer Engagement shows lot owners were not in favour of the committee making payments without first obtaining legal advice.

(b) Legal advice would give guidance the appropriateness of reimbursement.

(c) The payments relate to future payments that the owners could not yet seek to recover.

(a) The Motion for Lawyer Engagement was not intended to be a pre-condition to payment decisions.

(b) Subsequent general meeting resolutions on the subject have been passed without legal advice, including the Associated Costs Motion.

(c) The committee is authorised via a general meeting resolution to make such decisions, via the Associated Costs Motion.

(d) Reimbursement for loss of rent is specifically contemplated in the Associated Costs Motion.

• [47] At this preliminary stage, I am not currently satisfied there is a sufficient prima facie case for the final order sought that would justify interim relief, based on reasonableness arguments.
• [48] The legislation requires the body corporate and its committee to act reasonably in decision making.[11] This involves considering the facts and circumstances that tend to have a rational bearing on the issue and disregarding irrelevant ones.[12] Where it is argued that the body corporate has failed to act reasonably in a decision, an adjudicator's role is to firstly assess the decision-making process and whether the body corporate has failed to consider any relevant factors or relied on irrelevant factors. If there is no defect in that decision making process, the decision of the body corporate will stand unless an adjudicator is satisfied that the outcome of the decision is legally unreasonable. A decision is legally unreasonable if it is conflicted, arbitrary, absurd or plainly unjust.[13]
• [49] I have already commented that I am currently sceptical of the argument that the Motion for Lawyer Engagement had the intention of stopping the committee from making any decisions about reimbursement to lot owners without first obtaining advice. I have already commented that the passing of the Associated Costs Motion, which was not disclosed by the applicant, does not align with the applicant's argument.
• [50] It is also difficult to argue that it would be an unreasonable act for the committee to resolve to reimburse lot owners without legal advice when Adjudicator Hendry made the following comments where the Associated Costs Motion was challenged, which was not disclosed to me in the application:

[65] I remain of the view I expressed in the interim order that the liability for the relocation expenses has arisen as the rectification works have been authorised by the body corporate and this necessitates that the relocation expenses be incurred.[14]

• [51] The applicant has also not provided any evidence that the committee has otherwise relied on irrelevant documentation to support the claims when making the Committee Resolutions. It does not appear the applicant made any attempt to obtain those documents before submitting the application.[15]

3.2. Nature, urgency and balance of convenience

• [52] I am not currently satisfied there is a satisfactory prima facie case to justify interim relief. However, for completeness and if I am wrong, I will continue to consider whether the circumstances would otherwise justify the interim orders sought.

• [53] My first preliminary concern is that the final order is not framed in a way that adequately correlates with the interim relief sought. The final order does not expressly seek to void the Committee Resolutions. Therefore, the application is not drafted in a way that is conducive to my direct assessment as to whether the Committee Resolutions suffer deficiency. I will continue to afford leniency to the applicant on this issue.
• [54] My next concern is regarding the framing of the interim order itself. The application contains evidence of 3 resolutions of the committee regarding reimbursement to lot owners, but only expressly argues against 2 of those 3 within the interim order. The third would possibly be captured by the latter part of the interim order sought, but it is unclear. Ultimately, based on the materials currently in front of me, justice and equity cannot favour interim orders that would impact some lot owners receiving reimbursement and not others.
• [55] The interim relief also appears to be of little utility. The sought interim orders would stop the body corporate from making payment, unless the payment has already been approved by ordinary resolution. There is a strong argument that payments have already been approved by ordinary resolution, pursuant to the Associated Costs Motion, so long as the committee has 'sufficient documentation to support the claim being received'.

• [56] Before granting an interim order, I must balance the inconvenience to the respondent lot owners if I were to grant the interim relief now, in the knowledge that final orders might ultimately be refused, against the inconvenience to the applicant body corporate if I were to not grant relief now, in the knowledge that final orders might ultimately be granted.[16]
• [57] The applicant argues the balance of convenience favours interim relief as:

(a) If the body corporate makes payments when it does not have a liability to do so, it may not be recoverable.

(b) Once the payments are made there is no reason for the body corporate to comply with the Motion for Lawyer Engagement.

(c) The only negative consequence to the interim orders being made is that payments to lot owners that may be justified will be delayed.

• [58] I am not satisfied the balance of convenience justifies interim relief. I disagree that there is limited negative consequences to the interim orders as:

(a) The works, that require the lots be unoccupied, relate to structural integrity of the building. Discontinuance of the relocation or lost rent payment agreements with those lot owners might arise in further dispute and could impact the works proceeding.

(b) The owners of lots receiving payments would clearly be impacted. The agreements are currently on foot and the lot owners subject to the Committee Resolutions are receiving ongoing payments that they are relying on. It does not appear that the applicant sought to clarify this before lodging the application. The owner of Lot 107 has provided comprehensive submissions that confirm they have relied on the agreements for reimbursement and evicted their tenants.

• [59] The applicant has not satisfied me that there is a sufficient prima facie case to justify interim relief. Even where this was so, I am also not satisfied that the nature, circumstances or balance of convenience justifies the interim orders sought. The application for interim orders must fail.

[1] Paragraph 40(c) of the interim application.

[2] Paragraph 40(d) of the interim application.

[6] SDW2 Pty. Ltd. V JLF Corporation Pty Ltd [2017] QSC 1 at [21].

[7] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at [622-623].

[8] Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57, at [65], [19].

[12] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [42].

[13] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [34].

[14] Parkside Apartments Toombul [2025] QBCCMCmr 230 at [65].

[15] The applicant may request copies of, or to inspect, body corporate records pursuant to Act, 205.

[16] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65] citing Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at [5].