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

APPLICATION FOR INTERIM ORDERS - where the body corporate plans to remove fences and gates erected on common property by owners in response to the recommendations of a fire safety consultant, but the applicant believes a better solution is available; whether the body corporate should be prevented from carrying out the work while the application is decided.

Act, ss 94(1)(a) & (2), 100(5); Standard Module, ss 84, 172-174, 186.

• [1] Mr Dun of lot 6 objects to the body corporate's intended removal of fences and gates he says were installed on common property by the owners of lots 1-6 with the approval of the body corporate in 2020. They are apparently to be removed on the advice of a fire safety consultant because they obstruct access to a fire hose reel outside lot 3. Mr Dun says another fire safety consultant advised the issue could be resolved by relocating the fire hose reel. He seeks orders in the following terms:

We want the works to remove the fences and gates at the rear of units 1-6 at 105 Christine Ave, Burleigh Waters to be stopped until an extraordinary meeting has been held to vote on the adoption of the Fire Safety Evacuation Plan and to vote on reasonable resolutions to compliance issues, namely the relocation of the fire hose reel at the back of Unit 3 to the front of the units to meet compliance standards.

• [2] To prevent the work from going ahead before his application can be decided, he requests the following interim order:

Works to remove fences and gates due to commence on 30/04/2025 at the rear of Unit 1-6, 105 Christine Ave, Burleigh Waters be stopped until a formal resolution can be sought through an Extraordinary General Meeting.

• [3] I am only concerned with the interim order at this stage. Final orders will be considered in some months' time after affected parties have had the opportunity to make submissions. Interim orders are generally only appropriate where the applicant has made out a prima facie case with prospects of success at final orders.
• [4] That is not the case here. The information submitted by Mr Dun is extremely limited and does not demonstrate that the body corporate is unlikely to be entitled to remove the fences and gates from common property, nor that it is likely to be obliged to hold an extraordinary general meeting (EGM) to consider adopting a fire safety evacuation plan or vote on a proposal to relocate the fire hose reel. Given the application was lodged at 4pm yesterday seeking to stop work due to commence at 8am today - some three-four hours ago at time of writing - the interim application has by necessity been decided solely upon the information submitted by Mr Dun, with no opportunity to seek anything further or invite a response from the body corporate.
• [5] The body corporate is responsible for the administration of common property and is entitled to make improvements to it.[1] In general, then, it is entitled to carry out work of the sort described by Mr Dun. It is subject to spending controls that affect the type of authorisation it requires before commencing certain work,[2] but no information about the cost of the proposed work or the resolutions passed by the body corporate has been submitted.
• [6] The body corporate and its committee must act reasonably in the exercise of their functions.[3] They are apparently acting on the recommendations of a fire safety consultant. At face value, that is a reasonable approach to take. Mr Dun questions those recommendations and claims to have received alternative advice from his own consultant, but he has not submitted copies of either report to substantiate those claims.
• [7] Mr Dun suggests the body corporate should hold an EGM to vote on the adoption of the report commissioned by the body corporate. I am unsure why the body corporate would need to "adopt" a report. He likely means that it should vote on the removal of the fences and gates, but it is unclear why that requires a general meeting resolution.
• [8] He also argues that the body corporate should vote on his alternative proposal to relocate the fire hose reel. Again, it is unclear why it should. Owners can requisition an extraordinary general meeting if at least 25% of them sign a notice proposing motions to be decided and give it to the committee secretary, but there is no evidence that has occurred.[4]
• [9] I am not satisfied that Mr Dun has demonstrated sufficient prospects at final orders to justify interfering with the body corporate's rights in the meantime. Consequently, the application for an interim order must be dismissed.
• [10] That is not a determination that the application is categorically without merit. Perhaps the report received by the body corporate is riddled with errors. Mr Dun may be correct that a better solution is available, and the body corporate may have acted unreasonably by failing to properly consider it. The cost of the work might require authorisation at a general meeting.
• [11] But none of that is evident in the information submitted by Mr Dun to date, and the extremely tight timeframe has allowed no opportunity to investigate further. These questions will have to wait until final orders, assuming the application remains relevant at that stage.

[1] Act, s 94(1)(a); Standard Module, s 186.

[2] E.g. Standard Module, ss 172-174 & 186.

[3] Act, ss 94(2) & 100(5).

[4] Standard Module, s 84.