SDW2 Pty Ltd v JLF Corporation Pty Ltd

2. That the Body Corporate preserve and provide copies of all records relating to the wall, fence, and gardening contracts to both the applicant and the Commissioner within 14 days. This is urgent because months of refusal risk the loss or alteration of evidence before adjudication.

3. A temporary restriction on new commitments or non-urgent payments to the conflicted gardening contractor pending determination, requiring any genuinely urgent safety works to proceed only via an independent contractor.

• [2] The interim orders sought by the applicant relate to a failing retaining wall and fence behind the Lot 21 private yard. The applicant says it poses a risk of injury or property damage and requests that the Body Corporate immediately engage an independent engineer to assess the structure and implement necessary safety measures, such as temporary stabilization and erosion control.
• [3] Further, the application seeks the preservation and disclosure of all relevant records to prevent the loss or alteration of evidence, and a temporary restriction on payments to a gardening contractor, who she says, is related to the Secretary.
• [4] The applicant explains that the delay in lodging this application was due to the Body Corporate's failure to take action to replace the retaining wall and fence. The applicant also claims that the Body Corporate committee has not provided her with access to engineering reports, and says that as a result it is now necessary to obtain urgent protective orders to safeguard life and property.

• [5] Poinciana Park CTS 26589 was constructed around 26 years ago and consists of a number of buildings including Building K, comprising lots 21 and 22 which each have a private yard at the rear of their lot with a timber fence approximately 1.8M in height. There is further common property beyond the rear fence, which falls down to a small creek and bushland area.
• [6] The private yards are retained by a timber sleeper retaining wall, about 1 metre in height, below the 1.8M timber fence.[1] The land then slopes down for a further 1.8 metres (approx) to a boulder retaining wall which is approximately 3 metres in height.
• [7] The applicant says that both the timber retaining wall and fence behind Lot 21 have deteriorated badly and require replacement. Key concerns raised by the applicant include approximately 600 mm of soil erosion and a collapsing fence now less than 1 metre from a structural post supporting the lot 21 balcony. The applicant believes that if the wall fails, there is a risk to life and major property damage. She says that despite repeated warnings since March 2025, no temporary safety works have been undertaken.
• [8] The committee has sought advice from Booth Engineering regarding replacement of the retaining wall. However the applicant notes that in their correspondence from October 1 2025, they stated that they were unable to comment on the danger within the applicant's lot because the Committee had refused them access, even though the applicant had repeatedly offered entry. Booth had recommended a 1-meter exclusion zone along the top of the retaining wall. The wall is now described as visibly failing and unsafe, especially in heavy rain.
• [9] The applicant stated they decided to lodge this application upon learning that although the engineer had identified a potential wall failure, the Committee had no immediate intention of implementing safety measures.
• [10] The application asserts that the delay in lodging this application was directly caused by the Committee's failure to act or cooperate. The applicant reported the issue on March 4, 2025, and repeatedly followed up and requested formal records (under s205 of the Act). These requests were reportedly met with delays or refusals. The applicant says they delayed escalation, hoping to resolve the matter internally and trusting that the Committee would act if an engineer identified a safety risk.
• [11] The applicant also raises concerns regarding the Body Corporate's gardener, David Henderson, who is the husband of the Secretary (Katie Henderson). The applicant says that:

• Payments to David Henderson have allegedly never been ratified or disclosed.

• The Secretary, Treasurer, and Chairperson are friends and have served together for about seven years.

• EGM paperwork sought to ratify payments to David Henderson for the last four years and included his new tender, but excluded the applicant's previously provided motions.

• The EGM voting papers issued 8 October 2025 seek to ratify payments dating back to 2021 and present David Henderson's quote as the cheapest by excluding the full cost of green-waste disposal, which is included in other tenders.

• [12] Pursuant to my investigative powers under section 271 of the Act, the body corporate committee was invited to make submissions regarding the interim outcomes sought by the applicant.
• [13] The committee acknowledges that the deterioration and movement of the retaining wall and fence is a major issue is for the body corporate. However the Committee says it is attending to the matter and outlines a timeline of engaging engineers and seeking funding approval for preparatory work. It also says that no immediate structural risk has been identified.
• [14] The committee also addresses other concerns raised by the applicant, including access to records, gardening services, the Lot owner's unapproved installation of a gate and retrospective approval of a deck. Ultimately, the Committee asserts that its actions have been reasonable, transparent, and consistent with its statutory obligations, despite the complexity of the ongoing issues.
• [15] The core structural issue involves deterioration and movement of the retaining wall and fence between the Lot 21 private yard and the common property creek-side area, first reported by the owner on 4 March 4, 2025.
• [16] The Committee says it promptly took action, including consulting a building contractor, obtaining legal advice from Hynes Legal, and commissioning Booth Engineers. Following preliminary soil testing, Booth Engineers advised that soil-stability testing was required. Due to the projected cost, approval for this testing was submitted to an Extraordinary General Meeting (EGM) on 3 November 2025 .
• [17] The Committee says no engineer or contractor has identified any immediate structural risk requiring emergency works. However, following advice from Booth Engineers on 30 September 2025, the Committee restricted access behind the wall for a distance equal to its height and requested Lot 21 remove items attached to the fence (like plants, shade sails, and pipes).
• [18] The Committee believes the applicant had prior knowledge of retaining-wall movement and soil instability as early as 2020. Correspondence from August 2025 indicates that the applicant constructed a small Besser-block retaining wall within their lot to protect their property from ongoing subsidence. The Committee suggests that any observed deterioration may have been influenced by the delay in reporting and these unapproved private works.
• [19] The Committee also detailed its position on two specific installations made by the applicant (owner of Lot 21):

• Deck (2020): The owner sought retrospective approval for a timber deck, claiming it was self-assessable under Brisbane City Council guidelines. The Committee granted conditional approval, placing full responsibility for all costs, future repairs, maintenance, liability, and compliance on the Lot Owner.

• Gate (2025): In August 2025, the owner installed a gate in the shared dividing fence without prior approval. The Committee issued a formal direction requiring the owner to either remove the gate and reinstate the fence or provide proof of qualified installation, insurance, and accept ongoing responsibility for maintenance and liability, citing non-compliance with by-laws and safety requirements.

• [20] The Committee noted that structural changes, such as the installation of the deck adjacent to the retaining-wall zone, may impact local soil and drainage conditions.

• [21] The committee says the applicant was advised multiple times that access to records is available under section 205 of the Act, either through inspection at the Body Corporate Manager's office or by requesting copies of specific documents and payment of the statutory fee. The Committee states it has not refused access.

• [22] The committee says Gardening services are performed by the Secretary's spouse month-to-month, at rates below the market average. The arrangement was approved by majority vote, and the Secretary has abstained from all related decisions. Competitive quotes were obtained for the 2025 EGM to market-test the pricing.
• [23] The Committee addressed an exhibit[2] containing previously unprovided information, confirming an arrangement involving the gardener and the owner of Unit 11 was independent of BC invoicing.

• [24] The committee says the motions submitted by Lot 21 on September 24, 2025, were treated as Committee motions and will be responded to within the statutory six week period.

• [25] The Committee maintains that the retaining-wall issue is being managed professionally and transparently, subject to required funding approval, and asserts that its responses to the owner's complaints regarding record access and alleged conflict of interest are consistent with its statutory obligations.

• [26] At this point in time I am considering the application for three interim orders which can be summarised as follows:

1. That the Body Corporate engage an engineer within 14 days to inspect the retaining wall and fence behind Lot 21 and implement safety measures including temporary safety fencing, stabilization, and erosion-control.

2. That the Body Corporate preserve and provide copies of all records relating to the wall, fence, and gardening contracts to both the applicant and the Commissioner within 14 days.

3. A temporary restriction on new commitments or non-urgent payments to the body corporate gardener pending determination, requiring any urgent safety works to proceed only via an independent contractor.

• [27] As I am now considering an application for interim outcomes, the only issue to decide at this time is whether an interim order is warranted.
• [28] Section 276(1) of the Act provides that:

An adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about-

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(c) a claimed or anticipated contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

• [29] An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).
• [30] Further, section 279 provides that:

(1) The adjudicator may 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.

Examples

1. The adjudicator may stop the body corporate from carrying out work on common property until a dispute about the irregularity of proceedings has been investigated and resolved.

2. The adjudicator may stop a general meeting deciding or acting on a particular issue until it has been investigated and resolved.

(2) An interim order

(a) has effect for a period (not longer than 1 year) stated in the order; and

(b) may be extended, varied, renewed or cancelled by the adjudicator until a final order is made; (c) may be cancelled by a later order made by the adjudicator; and

(d) if it does not lapse or is not cancelled earlier, lapses when

(i) the application is withdrawn; or

(ii) the commissioner gives the person who made the application a written notice under section 241 rejecting the application; or

(iii) a final order is made by an adjudicator to whom the application is referred. ...

• [31] As outlined above, the applicant is seeking both interim and final orders. The only issue at this time is whether an interim order is warranted. Any order granted must be just and equitable.[3] An interim order will not be granted unless it is necessary due to the nature or urgency of the circumstances.[4] The examples in the Act indicate the usual circumstances where an interim order might be made are in the nature of injunctive relief. An applicant must establish that the circumstances warrant an interim order. An interim order will not be made if the only urgency is a desire to expedite the dispute.
• [32] In order to make an interim order an adjudicator must be satisfied an applicant has established that it has a prima facie case[5] and the balance of convenience between the parties justifies injunctive relief.[6] That is, an adjudicator must balance the inconvenience of granting relief now if final orders are ultimately refused, against the inconvenience of refusing relief now if final orders are ultimately granted. Of particular relevance is evidence an interim order is necessary to prevent serious or irreparable harm.
• [33] The case of SDW2 Pty. Ltd. V JLF Corporation Pty Ltd [2017] QSC 1 provides some guidance as to when it would be appropriate to make an interlocutory injunction at paragraph [21]:

The legal principles governing the disposition of an application for interlocutory injunction were discussed by me in Stacks Managed Investments Ltd v Tolteca Pty Ltd [2015] QSC 234 at 3 to 5 and again in Tribal Health Pty Ltd v Flush Fitness Pty Ltd [2016] QSC 103. In the latter case I summarised relevant principle in these terms (at [23]):

(a) The law in Australia has long regarded it to be necessary to make two main inquiries: (i) whether the applicant has shown that it has a prima facie case; and (ii) whether the applicant has shown that the balance of convenience favours the granting of the relief claimed.

(b) The significance of the requirement that a prima facie case be shown is elaborated upon in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 572 and Live Earth Resource Management Pty Ltd v Live Earth LLC [2007] FCA 1034 at [11] to [13].

(c) The considerations brought to bear on the balance of convenience requirement were the subject of discussion in Australian Broadcasting Corporation v O'Neill and Bowen Central Coal Pty Ltd v Aquila Coal Pty Ltd [2011] QCA 334, the latter case clarifying that the adequacy of an award of damages and the question of the sufficiency of the usual undertaking were to be considered as part of the totality of the balance of convenience question.

(d) The progression of the two main inquiries is not a mechanical exercise. Whether the relief sought is prohibitory or mandatory, the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been "wrong" in the sense of granting an injunction to a party who fails to establish his right at an ultimate trial, or in failing to grant an injunction to a party who succeeds at trial. In making that decision, the Court should weigh in the balance all relevant factors, including matters pertaining to the strength of the case to be tried and the balance of convenience.

• [34] The issue of most concern is the condition of the retaining wall and fence behind Lot 21. As stated above, the private yard for lot 21 is retained by a timber sleeper retaining wall, about 1 metre in height. There is a 1.8M timber fence immediately above the timber retaining wall.[7] The land then slopes down from the timber retaining wall for about a further 1.8 metres to a boulder retaining wall which is approximately 3 metres in height.
• [35] The Committee says that after the applicant contacted them on 4 March 2025 regarding the collapsing retaining wall, it promptly took action, including consulting a building contractor on 19 March 2025. The building contractor recommended that they obtain engineering advice, and on 20 March 2025, they consulted Booth Engineers.
• [36] From a perusal of provided documentation, it is evident that Booth Engineers advised that soil-stability testing was required. On 30 May 2025, Booth Engineers engaged Geotest Engineering to undertake a site classification of the soil.[8] Geotest Engineering undertook testing using hand tools to a maximum depth of 3.6 m and their report[9] outlines that the timber retaining wall was constructed on non-engineered fill soil. They therefore classified the site of the retaining wall as Class " P " site in accordance with Australian Standard 2870-2011 " Residential Slabs and Footings. "
• [37] Based on the Geotest findings, Booth Engineers recommended that specialist Geotechnical Engineers be engaged to undertake a detailed geotechnical investigation including drilling, laboratory testing and assessment of landslide susceptibility. The Committee then sourced the following three quotations for the soil stability testing:

3. PTG - $3,333.00 plus the following:[10]

• a provisional amount of $2,000.00 for extra works,
• a variation provision of $1,908.50 for Test Holes and a variation provision for $5,000.00 for a special drilling rig
  • a variation provision for $3,500.00 for retention design and drawings.

• [38] In my view the body corporate committee has acted promptly to obtain advice from construction and engineering professionals regarding replacement of the retaining wall.
• [39] Classification of a site as Class " P " under AS 2870 indicates that the site is problematic and has abnormal or unstable foundation conditions that are unsuitable for standard footing design.[11] It is evident that the presence of fill and slope instability mean that additional engineering investigation and design is required to ensure the footing system will perform satisfactorily for many years to come.
• [40] The final design will depend on recommendations of a qualified Geotechnical Engineer but it is evident from preliminary investigations that the footing design will most probably require specific structural engineering design and certification.[12] This necessarily involves delays and additional cost, but it is important that the work is done properly to produce a structurally sound, lasting solution.
• [41] While the applicant complains that no temporary safety works have been undertaken, they do not indicate what type of safety works are required. The Committee says no engineer or contractor has identified any immediate structural risk requiring emergency works. In any event, I note that following advice from Booth Engineers on 30 September 2025, the Committee restricted access behind the wall for a distance equal to its height and requested Lot 21 remove items attached to the fence (like plants, shade sails, and pipes). Given that the area retained is the applicant's private yard it is difficult to see what additional precautions could be undertaken.
• [42] I also note that in an email dated 30 September 2025, Booth Engineers advised the applicant as follows:

Given the retaining wall is failing this is always a risk of damage / failure occurring to anything within the zone of influence above the wall as a result. As a matter of general advice we usually recommend in these instances that if failure has been identified that access should be limited to the area directly above the retaining wall for a distance at least equal to the height of the wall (i.e for a 1m high wall do not access within 1m horizontal behind the top of the wall) until such time as rectification / replacement of the retaining wall has occurred.

• [43] Having regard to the foregoing, I do not believe it is appropriate to make an interim order requiring the that the Body Corporate engage an engineer within 14 days to inspect the full length of the retaining wall and fence behind Lot 21 and immediately implement all necessary safety recommendations.
• [44] Secondly, the applicant seeks an interim order that the Body Corporate preserve and provide copies of all records relating to the wall, fence, and gardening contracts to both the applicant and the Commissioner within 14 days.
• [45] I note that on 24 September 2025 the applicant wrote to the body corporate manager in the following terms:

"Pursuant to section 205 of the BCCM Act, I formally require, within 7 days of this notice, copies of all Body Corporate records (including but not limited to committee and general meeting minutes, motions, correspondence, quotes, invoices, contracts, and conflict-of-interest declarations) that:

-relate to the retaining wall and fence, including any engineering, inspection or repair proposals, and

-relate to the gardening contract, including any tenders, approvals, payments, and any actual or perceived conflicts of interest.

In addition, I specifically request all historical records from the date the current gardening contractor was first engaged to the present that concern:

-the initial appointment, tendering or approval of the gardening contract,

-any extensions, renewals or amendments of that contract, and

-all conflict-of-interest declarations, abstentions from voting, or related correspondence at any time since the gardener was first engaged.

For the avoidance of doubt, this is a request for the committee or its manager to identify and provide the relevant records directly to me. It is not a request to merely grant access for me to inspect or search through the entire record set myself."

• [46] The Committee says it has not refused the applicant access to records of the body corporate. It says the applicant was advised multiple times that access to records is available under section 205 of the Act, either through inspection at the Body Corporate Manager's office or by requesting copies and payment of the statutory fee.
• [47] Having reviewed the correspondence between the applicant and the body corporate, my preliminary view is that the applicant has not been denied access to body corporate records.
• [48] A body corporate is not expected to trawl through voluminous records to identify information which may satisfy a vague request for information. A person seeking copies of records should clearly identify the documents or classes of documents they seek (for example, correspondence sent on behalf of the body corporate between specified dates, or invoices paid in particular financial years for specified services). If a person is not able to adequately specify a request, they would need to inspect the records themselves to locate documents of relevance.[13]
• [49] Therefore I do not propose to make the second requested interim order.
• [50] The third requested interim order is a temporary restriction on new commitments or non-urgent payments to the body corporate gardener pending determination, requiring any urgent safety works to proceed only via an independent contractor.
• [51] The applicant says the Body Corporate's gardener, David Henderson, is the husband of the Secretary, Katie Henderson and that payments to David Henderson have allegedly never been ratified or disclosed.
• [52] In response, the body corporate says the Secretary abstained from any decisions relating to gardening, which were decided by majority vote of the committee. In their view the gardening arrangements are transparent and cost-effective. Further, they say that four competitive quotes were obtained for consideration at the 2025 EGM to market-test pricing and allow owners to decide which contractor they wish to engage to undertake the gardening work.
• [53] I am not satisfied that Mr Henderson is disqualified from contracting with the body corporate to provide gardening services, provided that the arrangement is at arms length. I also accept the committee's advice that Mrs Henderson has abstained from any committee decision relating to engagement of Mr Henderson to undertake gardening work.
• [54] In any event, at this point in time I am considering an application for interim orders and I have not been provided with any persuasive evidence to indicate that there is good reason for urgent intervention to stop Mr Henderson from undertaking gardening work, pending the outcome of the application for final orders.
• [55] I have therefore dismissed the application for interim orders. The application for final orders remains outstanding. This application will now be administered in accordance with the Act and the normal processes of this office. Submissions will be sought from the Respondent and affected parties before final orders are made.

[1] From provided photographs it would appear that these were part of the original build

[5] Also described as a serious question to be tried.

[6] SDW2 Pty Ltd v JLF Corporation Pty Ltd [2017] QSC 001

Australian Broadcasting Corporation v Lenah Game Meats [2001] HCA 63

[7] From provided photographs it would appear that these were part of the original build

[8] See page 99 of interim submissions from body corporate.

[10] Potentially adding up to $15,741.50.

[11] For example uncompacted filled sites and sites subject to land slippage.

[12] As opposed to a standard "deemed to satisfy" footing design

[13] The Groves No. Four Minyama [2017] QBCCMCmr 371 at [27]