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

INTERIM ORDERS - whether interim orders are warranted in the circumstances

1. The application for interim orders is dismissed.

• [1] The applicant is the owner of a lot. The applicant has also previously provided caretaking services to the body corporate pursuant to a contract and is pursuing claims in other forums about that contract.
• [2] The applicant is seeking a variety of final orders, including orders about spending of body corporate funds, an order that the body corporate's finances be audited within 21 days, and an order that the body corporate call an extraordinary general meeting to decide certain motions.
• [3] While the application for final orders is pending, the applicant is seeking 3 interim orders about decisions made by the body corporate at its annual general meeting held on 31 July 2025 (2025 AGM). Among other things, the applicant says the 2025 AGM was called on 14 days' notice, which is less than the 21 days' notice required by the legislation.
• [4] By this application, the applicant is seeking interim orders:
  1. restraining the body corporate from taking any further steps to implement its resolution to engage a facility manager to maintain common property, which was passed as Motion 8 at the 2025 AGM
  2. restraining the committee from making decisions until the committee election has been completed in compliance with the Act, and
  3. restraining the body corporate from making further payments not expressly provided for in the approved budget.
• [5] For the reasons given below, I decline to make the interim orders sought.

• [6] The scheme known as Riverbend Gardens CTS 26822 (Riverbend Gardens) is located in Waterford. The scheme includes 104 lots and common property. The community management statement (CMS) for Riverbend Gardens shows the Accommodation Module applies.
• [7] The applicant is the owner of Lot 1. The applicant is a corporate entity. For this application, it is represented by one of its directors.
• [8] The respondent is the Body Corporate for Riverbend Gardens.

• [9] The Commissioner referred the application for interim orders to department adjudication under section 247(2)(b) of the Act.
• [10] An adjudicator has jurisdiction generally to make orders that are just and equitable in the circumstances to resolve a dispute between certain parties about a claimed or anticipated contravention of the Act or CMS, or about the exercise of rights or powers, or the performance of duties, under the Act or CMS.[1]
• [11] The parties to the dispute are the body corporate and the applicant in its capacity as the owner of a lot. This is a combination of parties provided for in the Act.[2] This dispute concerns decisions made by the respondent body corporate and includes claims of contraventions of the Act. I am thus satisfied this is a dispute within the dispute resolution provisions of the Act and within the jurisdiction of an adjudicator.[3]
• [12] An adjudicator is expressly given the power to make an interim order "if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates."[4]
• [13] There is no statutory requirement to obtain comment from a respondent or affected party before an interim order is decided. In the circumstances, I provided the body corporate with a short time in which to comment on the application for interim orders.

• [14] The applicant says the final relief sought includes declarations that the 2025 AGM was invalid due to non-compliance with the legislation and that motions considered at that meeting are also invalid. The applicant says the election of the committee at the 2025 is also invalid.
• [15] Pending the determination of the application for final orders, the applicant seeks the following interim orders:
  1. That the Body Corporate be restrained from taking any further steps to implement or act upon AGM Motion 8 passed on AGM 31 July 2025, until the adjudicator has made a final determination regarding the validity of those motions.
  2. That the committee refrain from dealing with committee matters until the committee election has been completed, in compliance with the Act.
  3. That the Body Corporate immediately refrain from making any further payments not expressly provided for in the approved budget.
• [16] The applicant says the 3 interim orders sought are necessary to preserve the status quo and to prevent a potentially invalid committee from "causing further financial harm and making unlawful decisions." The applicant suggests the urgency of the circumstances and need for interim orders is demonstrated by the existence of deficits in the body corporate's finances and by the committee's history of unauthorised spending.

• [17] The committee provided its comments on the application. As background, it explains that the applicant is both the owner of Lot 1 and a former caretaker for the scheme. It says as caretaker, the applicant failed to exercise its option to extend the caretaking contract and that contract expired. It says further that the applicant has filed legal claims against the body corporate in multiple jurisdictions. It notes that the applicant's actions have resulted in additional administrative and legal costs for the body corporate. It views this application as an effort by the applicant to stop the body corporate from defending itself.
• [18] Regarding the notice for the 2025 AGM, the committee says it was sent on 10 July and not on 17 July 2025 as claimed by the applicant. As such, it says the notice complies with the legislative requirements and the 2025 AGM was validly called. It says at the AGM, Motion 8 was proposed that the body corporate engage a new facilities manager to undertake maintenance services under contract. It explains that the contract has a 60-day termination clause, providing flexibility and minimal risk to the body corporate while the matter concerning the applicant's contract is before the courts. It says Motion 8 was approved by a majority of voting members at the AGM.
• [19] Regarding the election of the committee, it provides documentation to show that the current committee was validly elected.
• [20] Finally, for the third interim order sought, the committee says the applicant is really seeking to restrain the body corporate from responding to the legal proceedings the applicant has commenced. Where expenditure on legal fees has been duly approved by the body corporate, it says the request is misconceived and inappropriate.

• [21] The only issue to decide at this time is whether any of the requested interim orders are warranted.
• [22] I am empowered to issue an interim order if I am satisfied "on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates."[5] If I am satisfied an order is necessary, I may make an interim order that is just and equitable. That may include an interim in the form of a temporary injunction (an order not to do something) to preserve the status quo pending a final determination of an application.
• [23] To determine if it is just and equitable to make an interim order, there must be some reason in law to make an order. For this, I must consider the substantive issue in dispute. 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.[6] Rather, I must be satisfied there is a sufficient likelihood of success to justify making an order.
• [24] I must also consider the practical reasons for and the likely effects of an interim order. This is known as assessing the balance of harm between the parties. To do this, I must consider the inconvenience or harm to the applicant if I do not make an interim order but final orders later determine the body corporate has contravened the Act. I must weigh that against the harm to the body corporate if I grant an interim order and the applicant is later unsuccessful in its application for final orders.
• [25] Accordingly, to determine whether I am satisfied an interim order is warranted and appropriate, for each of the 3 interim orders sought I will consider whether a serious legal issue has been presented with sufficient likelihood of success and then weigh the balance of convenience and potential for harm to the respective parties.

• [26] The applicant seeks an interim order that the body corporate be restrained from taking further action to implement its decision to pass Motion 8 at the 2025 AGM to engage a specified facilities manager to maintain the common property at the scheme. The applicant challenges the validity of the notice for the 2025 AGM and the validity of Motion 8.
• [27] For the AGM itself, the applicant says notice of the meeting was issued on 17 July 2025 which was only 14 days before the AGM was held on 31 July 2025.
• [28] For Motion 8, the applicant says the body corporate has not complied with the regulations for decisions about major spending made at a general meeting. As a result, the applicant says Motion 8 is ineffective.

• [29] Section 81 of the Accommodation Module provides that a general meeting of the body corporate must be held at least 21 days after notice of the meeting is given to owners.
• [30] The applicant says the meeting was held on only 14 days' notice. However, documents provided by the body corporate demonstrate the notice was issued on 10 July 2025. I am not satisfied at this preliminary stage that the applicant is likely to succeed on its claim that the notice of the AGM failed to comply with legislative time requirements.
• [31] Regarding the validity of Motion 8, the relevant limit for major spending by a body corporate means the amount set by the body corporate as the limit or, if no amount has been set, the lesser of $1,100 per lot or $10,000.[7]
• [32] Section 163 of the Accommodation Module provides that, where the body corporate is making spending decisions on services in excess of the body corporate's applicable major spending limit, unless there are exceptional reasons, owners must be provided with two quotes for the services which must be presented as a group of same-issue motions, and the quotes must be retained as attachments to the minutes of the general meeting.
• [33] I infer that the applicant is asserting that Motion 8 proposed spending in excess of the Riverbend Gardens limit for major spending and that the committee was required to present 2 quotes for the services as a group of same-issue motions. The committee says 3 quotes were obtained for the maintenance services and, after due diligence, the committee recommended the body corporate approve the quote presented in Motion 8.
• [34] Motion 8 proposes the engagement of a contractor to provide services for one year at a cost exceeding $10,000. Although the supporting materials references multiple quotes, it does not appear at this point that Motion 8 presented 2 quotes as a group of same-issue motions. For these reasons, I am reasonably satisfied that the applicant has raised a serious legal question about whether Motion 8 complied with the regulations and I will proceed to consider whether to make the requested interim order.

Nature or urgency of the circumstances and balance of harm

• [35] Even where serious legal issues have been raised, interim orders are only granted if they are necessary due to the nature or urgency of the circumstances. Thus, I must consider the urgency and nature of the circumstances and how an interim order could inconvenience or harm the body corporate if the applicant does not prevail on the application for final orders.
• [36] In addition to owning a lot in the scheme, until recently, the applicant also acted as caretaker and provided maintenance services to the body corporate pursuant to a contract. The body corporate appears to take the position that the caretaking contract with the applicant has expired. The applicant has filed claims in multiple forums about the contract. While the applicant's legal claims are pending, however, I understand that the applicant is not currently providing maintenance services to the body corporate.
• [37] The body corporate has a statutory duty to maintain the common property.[8]
• [38] By passing Motion 8 at the 2025 EGM, the body corporate resolved to engage a facilities manager to perform maintenance services at the scheme for the period of 364 days from 1 July 2025. The contract includes a clause pursuant to which either party is entitled to terminate the contract subject to the party providing the required notice.
• [39] I understand the applicant to be claiming generally that, by not restraining the body corporate from proceeding with the engagement of a new facilities manager, the body corporate may be exposed to the burden of double payments and therefore financial loss if the applicant succeeds on its claims about the caretaking contract. The applicant also suggests that "maintaining the scheme's existing management and maintenance arrangements carries no risk and causes no harm to the Body Corporate."
• [40] In my view, the nature of the circumstances and the balance of harm weigh in favour of the body corporate and against making the interim order sought about Motion 8. The parties are litigating the applicant's claims about the caretaking contract. While those proceedings are pending, the body corporate remains obligated to maintain the common property. If an interim order was made restraining the body corporate from proceeding with a new maintenance services provider, but the applicant fails on the application for final orders about Motion 8, the body corporate would suffer the inconvenience of having to seek alternative arrangements for maintenance and potential harm from lack of common property maintenance in the intervening period. Moreover, it appears the body corporate has tried to mitigate the risk of double payment by negotiating a termination clause in its agreement with the new maintenance services provider.
• [41] Conversely, even if the applicant was to prevail on the application for final orders about Motion 8, I cannot see there would be any harm to the applicant as a lot owner if an interim order was not made.
• [42] For these reasons, I am not satisfied on reasonable grounds that an interim order restraining the body corporate from taking further steps to implement Motion 8 is necessary or that such an order would be just and equitable in the circumstances. I decline to make the first interim order sought.

• [43] The applicant seeks an interim order that the committee be restrained from dealing with committee matters until a new committee election complying with the Act has been completed.

• [44] Apart from asserting that the 2025 AGM was held less than 21 days' after the notice of the meeting was issued, the applicant does not explain why it contends the election of the committee was invalid.
• [45] A body corporate must have a committee.[9] The committee must be composed of a certain number of eligible members and those committee members must be elected (or appointed) in the way provided for in the regulations.[10] As a non-layered scheme with more than 7 lots, Riverbend Gardens is required to have a committee of at least 3 voting members and no more than 7 voting members.[11]
• [46] As noted above at [30], I am not satisfied on reasonable grounds that the legal issue raised by the applicant about the timing of the notice for the AGM has a sufficient likelihood of success to justify an interim order about the validity of the AGM or the motions considered at that meeting.
• [47] I note that the agenda for the 2025 AGM and the minutes of that meeting show that 7 persons nominated for election as voting members of the committee and those nominees were elected and formed the committee. I am not satisfied the applicant has raised any legal question about the validity of the election of the committee at the AGM. Accordingly, I do not consider it necessary or warranted to consider issuing the second interim order requested.

• [48] Where spending and management of the body corporate's finances are concerned, the applicant suggests that the body corporate's administrative and sinking funds are both in a deficit position due to "massive, unbudgeted spending."
• [49] The applicant says the committee and body corporate have clearly contravened the Act by, among other things:
  1. exceeding committee spending limits
  2. spending body corporate funds without proper authorisation, including by spending on things not provided for in either the sinking or administrative fund budgets
  3. mis-categorising administrative expenditures as sinking fund expenditures, and
  4. failing to act reasonably in making spending decisions on "massive, unbudgeted expenses - especially on open-ended services like legal advice - without transparency, prior planning, or owner approval ..."
• [50] The applicant says the above decisions contravene the legislation, have caused significant financial harm and loss to owners, undermine the long-term financial planning for the scheme, and unfairly burden owners. The applicant says allowing further unauthorized expenditures will deepen the deficits, causing immediate and irreparable financial harm to all owners.
• [51] To prevent further harm, the applicant seeks an interim order that the body corporate be restrained from making any further payments not expressly provided for in the approved budget.
• [52] In response, the committee says at the body corporate's 2019 AGM, the committee spending limit was set at $41,600 (general expenditure) and $52,000 for insurance renewals. It says recent spending above this limit, including on legal fees, was authorised at an extraordinary general meeting (EGM) held on 19 August 2025.
• [53] The committee says further that the applicant has not provided any evidence of unapproved expenditure and that the unbudgeted legal expenditure resulted from the applicant's multiple court applications. It says the committee has acted reasonably and in the Body Corporate's best interests at all times.

• [54] The applicant asserts the body corporate has engaged in expenditure that was not budgeted for and/or was not properly authorised. It says the body corporate's administrative and sinking funds are in deficit as a result.
• [55] At each AGM, the body corporate must:
  1. Adopt by way of an ordinary resolution, an administrative fund and a sinking fund budget for each financial year.[12]
  2. The administrative fund budget 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.[13]
  3. 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.[14]
  4. 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.[15] It must also decide the number of instalments in which those contributions are to be paid, and set the date by which instalments are required.[16]
• [56] The administrative and sinking budgets are, as their names suggest, budgets. Budgets are designed to help plan for future spending. The legislation expressly states that the budgets must be based on estimates of necessary and reasonable spending. What follows is that the budget may not include provisions for unanticipated spending and that actual expenditure that is necessary and reasonable may deviate from the estimate.
• [57] Expenditure by the body corporate of its funds - whether budgeted or not - must be approved in the way provided for in the legislation. Some expenditure may be approved by the committee whereas other expenditure must be approved by the body corporate at a general meeting. I am not aware of any provision in the Act that limits a body corporate to authorising spending only on budgeted items.
• [58] Although the applicant alleges the committee has expended funds in excess of its limits, as an initial matter, at this preliminary stage, the only expenditure that appears to potentially exceed the committee spending limit of $41,600 is expenditure on legal advice and fees. The committee says that spending was recently authorised by the body corporate at an EGM. Moreover, it says the unbudgeted spending on legal fees was a consequence of the legal proceedings brought by the applicant.
• [59] The applicant also fails to explain on what basis it claims expenditure on other unbudgeted items was unauthorised or otherwise contravened the legislation.
• [60] In terms of the applicant's claims that the body corporate's administrative and sinking funds are in deficit, in July 2025 it appears that in advance of the 2025 AGM the committee explained in a memorandum to all owners that:

... [the admin fund] may appear to be in deficit at times, even though funds are available. This is usually just before levies fall due, and is normal because things are often paid before the next levy income is received, but there is cash at bank.

• [61] At this stage, based on the above, I am not satisfied on reasonable grounds that the applicant has raised legal issues about expenditure that have sufficient likelihood of success to justify any interim orders.

Nature or urgency of the circumstances and balance of harm

• [62] Even if I was satisfied that the applicant had raised serious legal issues about unauthorised expenditure by the body corporate, I would decline to make the third interim order sought. In my view, even if the applicant succeeds in the application for final orders in showing that the body corporate has previously expended some funds without the proper authorisation, the third interim order sought is overly broad/onerous, unnecessary, and is unwarranted.
• [63] When authorising spending, the committee and body corporate must authorise spending in the way required by the Act. Those bodies must also act reasonably in making spending decisions. Providing it complies with the legislative requirements, the body corporate is given the autonomy and is entitled to self-manage and make its own spending decisions as it sees fit.
• [64] In my opinion, the third interim order sought would remove the flexibility and responsibility of the body corporate to make its own spending decisions. I consider in the circumstances that the potential harm to the body corporate from such an interim order significantly outweighs any harm to the applicant. Such an order would not be just nor equitable. For all the above reasons, I decline to make the third interim order sought.

• [65] For the reasons given above, I have dismissed the application for interim orders in its entirety.
• [66] If the dispute is not resolved and the applicant does not withdraw the application for final orders, that application will remain to be determined. The application will be referred back to the Commissioner to progress under the Act. Once that process is complete, the legal questions raised by the applicant may then be addressed by an adjudicator with the benefit of submissions from all affected parties.
• [67] Finally, I remind the applicant that an adjudicator may dismiss an application if satisfied that the application is frivolous, vexatious, misconceived or without substance. I note 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, I also note that an adjudicator may have regard to previous applications by the applicant.[17]

[3] Sections 226, 228 and 276 of the Act

[6] Although an applicant must identify a genuine legal issue to be decided, the granting of an interim order by itself does not indicate whether or not an applicant will ultimately be successful on their application for final orders.

[8] See Section 170(1) of the Accommodation Module

[9] See Section 8 of the Accommodation Module

[10] See Section 98 of the Act and Chapter 3, Parts 1 and 2 of the Accommodation Module

[11] See Section 10(4) of the Act and Schedule 1 - Dictionary

[12] Section 150(1) of the Accommodation Module

[13] Section 150(2) of the Accommodation Module

[14] Section 150(3) of the Accommodation Module

[15] Sections 150(2)(b), 150(3)(b) and 152(1) of the Accommodation Module

[16] Sections 152(1) of the Accommodation Module

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