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austlii:qld/QBCCMCmr/2026/77
General information, not legal advice.
QBCCMCmr
2026-03-13
Original judgment source is linked above.
[1] The applicants in this matter are Bronwyn Francis and R. Barry Francis (the Applicant). The respondent is The Parks - Noosa Springs
[2] The Parks - Noosa Springs is a subsidiary body corporate consisting of 68 lots and is a member of the Noosa Springs Community Body Corporate (CBC). Noosa Springs was developed under the provisions of the _Mixed-Use Development Act 1993 (_MUD Act).
[3] Section 214A of the MUD Act provides as follows:
214A Dealing with disputes.
Unless otherwise provided in this Act, a dispute about the operation of this Act or the rights and obligations of persons under this Act may be dealt with under the Building Units and Group Titles Act 1980, part 5.
[4] The applicant is seeking both interim and final outcomes pursuant to sections 76 and 77 of BUGTA.
[5] The Applicant seeks the following interim orders pursuant to s 76 of the Building Units and Group Titles Act 1980 (Qld):
An interim order that, pending determination of this application, the Body Corporate for The Palms - Noosa Springs (GTP 107028) must not refuse, defer, treat as discretionary, or otherwise act inconsistently with the implementation of AGM Motions 10-14 passed at the Annual General Meeting held on 18 August 2025, including by maintaining a position that those resolutions will not be implemented, or by substituting committee opinion for the outcomes approved by owners and informed by the independent expert review commissioned by the Body Corporate.
A further interim order that, pending determination of this application, the Body Corporate must not authorise or incur scheme expenditure for garden maintenance works or related services that have been identified by the independent expert review commissioned by the Body Corporate as falling within the caretaker's contractual responsibilities, unless and until either:
(a) the caretaker's contractual obligations are first enforced in accordance with the management agreement; or
(b) the expenditure is expressly authorised by resolution of owners at a general meeting.
[6] The applicant also seeks a number of final orders as summarized below:
The Body Corporate for The Palms - Noosa Springs (GTP 107028) must implement AGM Motions 10-14 passed at the Annual General Meeting held on 18 August 2025
Order 2 - Enforcement of Caretaker Contractual Obligations
The Body Corporate must enforce the caretaker's contractual obligations in accordance with the management agreement and must not authorise or expend scheme funds for garden maintenance works or related services in substitution for caretaker responsibilities unless such expenditure is first approved by resolution of owners at a general meeting.
The Body Corporate must correct the minutes of the Annual General Meeting held on 18 August 2025 to accurately record:
(a) attendance and apologies.
(b) the text, voting outcomes, and effect of AGM Motions 10-14 as passed; and
(c) the substance of matters raised and discussed under General Business, without the inclusion of committee commentary not raised at the meeting; and must circulate the corrected minutes to all owners within 14 days of correction.
Order 4 - Correction of Committee Minutes (July 2025 Meeting)
The Body Corporate must correct or withdraw the minutes of the committee meeting held on 14 July 2025 on the basis that the minutes were not lawfully confirmed and were the subject of unresolved dispute as to accuracy.
The Body Corporate must not rely upon the circulated July 2025 committee minutes for governance, enforcement, or interpretation of contractual or statutory obligations unless and until corrected in accordance with lawful process.
The Body Corporate must act in accordance with the Building Units and Group Titles Act
1980 (Qld) and applicable regulation modules in giving effect to owner resolutions.
Order 6 - Procedural Defect (27 November 2025 Committee Meeting)
Any decisions, resolutions, or recorded outcomes of the Committee meeting held on 27 November 2025, to the extent that they relate to the Applicant's correspondence, submitted motions, or the handling or characterisation of AGM Motions 10-14, are of no effect for want of lawful process.
The Body Corporate must convene a committee meeting at which the Applicant's submitted motions are lawfully tabled, considered, and determined in accordance with the Building Units and Group Titles Act 1980, with proprietors permitted to attend unless lawfully excluded.
Order 7- Prohibition on Substitution of Owner Funds
The Body Corporate must not authorise or expend scheme funds to perform or remedy obligations that fall within, or are reasonably capable of failing within, the caretaker's contractual responsibilities unless owners in general meeting first resolve to do so.
The Referee may make such further or consequential orders as are necessary to give effect to these Orders.
[7] The applicant states that this application relates to decision-making processes that apply across the scheme and have ongoing implications for how owner resolutions, expenditure, and records are handled.
[8] The application raises questions about whether:
[9] In particular, the applicant says that prior to the Annual General Meeting held on 18 August 2025, owners had been raising concerns regarding the scope, cost, and accountability of caretaking and related works within The Palms precinct.
[10] Those concerns were not confined to a single incident or contractor. They related to broader questions of performance, contractual scope, transparency of works, and the adequacy of information available to owners when expenditure decisions were made.
[11] In response to those concerns, and to obtain an independent and evidence-based assessment, the Body Corporate commissioned Diverse Group Consulting Pty Ltd to:
undertake an independent caretaking performance review. That review was completed in February 2025 and provided owners with an objective analysis of caretaking performance, contractual alignment, and governance implications.
[12] The applicant says that commissioning of that independent review formed an important factual background to matters later raised at the AGM. It provided owners with a common evidentiary foundation, independent of committee opinion, upon which informed decisions could be made.
[13] At the AGM, owners considered that independent material when voting on Motions 10-14, which were directed at governance, enforcement, and implementation issues arising from the review's findings.
[14] Following the AGM, those motions were not implemented, nor were they lawfully amended, deferred, or revoked through any subsequent general meeting process. It is that procedural outcome - rather than the merits of the review itself - that underpins several of the Issues raised in this application.
[15] Section 73 of the BUGT Act provides as follows:
73 Procedure after referee receives application.
(1) After receipt of an application for an order under this part, other than an application that pursuant to section 106(8) accompanied a notice of appeal made pursuant to section 106, a referee
(a) may require the applicant to provide the referee with such further information in relation to the application as, in the referee's opinion, may assist the investigation of the application; and
(b) may refuse to proceed with the application until a requirement made by the referee pursuant to paragraph (a) has been complied with; and
(c) shall give written notice of the application (setting out the grounds specified therein) to the body corporate to which the application relates and to any other person who, in the referee's opinion, would be affected if the order sought were made.
[16] The respondent notes that the scheme was created under the Mixed-Use Development Act 1993 (MUDA). However a dispute about the operation of that Act or the rights and obligations of persons under that Act may be dealt with under the Build. Units and Group Titles Act 1980, part 5.
[17] In order for a Referee to make an interim order under section 76 of BUGTA, it is necessary for the applicant to satisfy the Referee of the following three requirements:
(a) urgent circumstances,
(b) a prima facie case,
(c) balance of convenience.
[18] The respondent argues that the applicant's case meets none of these requirements.
[19] In summary, the final outcomes sought by the applicant are that the applicant:
[20] At this point in time the applicant is seeking interim orders restraining the body corporate from:
[21] The respondent says that as regards the application for interim orders, the applicant has not established that urgent circumstances exist.
[22] Secondly, the respondent says that the applicant does not raise a serious legal question and that the entire application lacks legal merit.
[23] The respondent notes that Motion 10 of the AGM purported to approve the engagement of Diverse to provide an annual performance report in relation to the service contractor's gardening duties, however the motion did not include authority for any expenditure.
[24] Further, it is submitted that the previous report prepared by Diverse was defective, because inter alia:
[25] As regards Motion 11, the respondent says it has acted consistently with the embargo on spending in relation to garden renovations as approved in Motion 11 of the AGM and it has not authorised any expenditure for work that falls within the duties of the management agreement.
[26] As regards Motion 12, the respondent notes the applicant's allegation that the committee of the respondent has authorised owner-funded expenditure on matters that she says Diverse Consulting has identified as falling within the contractual responsibilities of the service contractor.
[27] However the applicant has not submitted any evidence in support of that allegation, and in any event, the determination of that aspect of the dispute would, at least in part, necessitate an assessment of the terms of the management agreement and the contractual responsibilities of the parties, which is beyond the jurisdiction of a Referee.
[28] Motion 13 of the AGM purported to approve the engagement of a qualified horticulturalist to report on soil condition, irrigation and overall garden health. However, the respondent said it neither identified a horticulturalist nor included any authority for any expenditure. They say the committee of the respondent has no obligation to call a general meeting for the purpose of having such expenditure approved by comprehensive resolution and is entitled to, for example, obtain alternative quotes before that matter is considered further.
[29] The respondent says Motion 14 of the AGM purports to approve the engagement of Diverse to prepare a formal garden management plan based on the developer's landscape scope. However, that motion did not include authority for any expenditure. Moreover, the developer's landscape scope was for the purpose of establishing gardens at the scheme following construction. The management of the existing landscaping requires different considerations.
Enforcement of Caretaker Contractual Obligations
[30] The respondent says that requested Order 2 would require the respondent to enforce the contractual obligations of the management agreement, and to not authorise any expenditure for garden maintenance or related services unless first approved at a general meeting. To the extent this aspect of the dispute requires an assessment of contractual obligations, it is beyond the scope of a referee to determine.
[31] The applicant alleges this issue "raises matters of statutory compliance" under BUGTA, without identifying specific provisions or any evidence that such provisions were contravened by the respondent.
[32] Although the MUDA expressly adopts some provisions of BUGTA (for example, in relation to procedures and voting at extraordinary general meetings), the balance of the governance framework regarding conduct of annual general meetings and committee meetings is dealt with directly in MUDA.
[33] The respondent notes that the applicant is seeking an order to compel the respondent to convene a meeting at which the applicant's submitted motions are "lawfully tabled, considered and determined" and in which owners are permitted to attend in accordance with BUGTA. However, BUGTA does not apply to a committee meeting of the respondent and there is no obligation for the respondent to do any of the things sought by the applicant in this order.
[34] Section 76 of the BUGT Act concerns Interim orders and provides as follows:
(1) In this section -
"interim order" means an order made under subsection (2).
(2) Where an applicant for an order under section 77 (1) states in his or her application that the applicant requests an interim order, the referee may, if the referee is satisfied on reasonable grounds that, by reason of the urgent circumstances of the case, the referee should do so -
(a) make, under this subsection, any order that may be made under section 77 (1) with respect to the application; and
(b) before the expiration of 3 months from the date on which it takes effect and upon a further request made by the applicant, renew an interim order that is in force by serving notice in accordance with subsection (6) that the order is renewed.
(3) An interim order may be made or renewed notwithstanding -
(a) that any power or duty of the referee under section 73 (1) has not been exercised or performed with respect to the application; or
(b) where the referee has given written notice of the application under section 73 (1) (c) - that any time specified under section 73 (1) (d) or (e) in that or any further notice has not expired.
(4) An interim order made pursuant to an application for an order under section 77 (1) ceases to have effect -
(a) at the expiration of 3 months from the date on which it takes effect or, where the referee has renewed the interim order, at the expiration of 6 months from that date; or
(b) where the interim order is revoked by a tribunal under section 107 (1) (c) or by the referee under subsection (5) - when it is so revoked; or
(c) where -
(i) the referee makes an order under section 77 (1) with respect to the application; or
(ii) the referee dismisses the application;
before the interim order ceases to have effect under paragraph (a) or (b) , when the order is made under section 77 (1) or the application is dismissed, as the case may be.
(5) The referee may revoke an interim order and, if the referee does so, the referee shall serve notice in accordance with subsection (6) that the order has been revoked.
(6) A notice of the renewal or revocation of an interim order shall be served -
(a) except as provided in paragraph (b) , on the body corporate for the plan to which the order relates; or
(b) where the order requires a person to do or refrain from doing a specified act - on that person.
(7) A person shall not in, or in connection with, a request for an interim order or for the renewal of any such order, make a statement that the person knows is false or misleading in a material respect.
[35] The Applicant seeks the following interim orders pursuant to s 76 of the Building Units and Group Titles Act 1980 (Qld):
(a) the caretaker's contractual obligations are first enforced in accordance with the management agreement; or
(b) the expenditure is expressly authorised by resolution of owners at a general meeting.
[36] The final outcomes sought by the applicant are to require the respondent to implement motions 10 - 14 that the applicant says were resolved in favour at the annual general meeting of the respondent held on 18 August 2025 (the AGM).
(1) A referee may, pursuant to an application of a body corporate, a body corporate manager, a proprietor, a person having an estate or interest in a lot or an occupier of a lot in respect of a parcel, make an order on any person entitled to make an application under this subsection or on the chairperson, secretary or treasurer of the body corporate for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act in connection with that parcel.
(2) Where a body corporate has a discretion as to whether or not it exercises or performs a power, authority, duty or function conferred or imposed on it by this Act, it shall be deemed to have refused or failed to exercise or perform that power, authority, duty or function only if it has decided not to exercise or perform that power, authority, duty or function.
(3) Nothing in this part authorises the referee to make an order of the kind that may be made by the Court under section 25 or 26 .
(4) Nothing in this part affects the generality of subsection (1), but an order in respect of any matter dealt with in any other section of this part shall not be made under this section.
[40] Section 76 of the BUGT Act concerns Interim orders and provides as follows:
(1) In this section -
"interim order" means an order made under subsection (2).
(2) Where an applicant for an order under section 77 (1) states in his or her application that the applicant requests an interim order, the referee may, if the referee is satisfied on reasonable grounds that, by reason of the urgent circumstances of the case, the referee should do so -
(a) make, under this subsection, any order that may be made under section 77 (1) with respect to the application; and
(b) before the expiration of 3 months from the date on which it takes effect and upon a further request made by the applicant, renew an interim order that is in force by serving notice in accordance with subsection (6) that the order is renewed.
[41] The only issue at this time is whether an interim order is warranted. Any order granted must be just and equitable.[1] An interim order will not be granted unless it is necessary due to the nature or urgency of the circumstances.[2] 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.
[42] In order to make an interim order, an adjudicator must be satisfied an applicant has established that it has a prima facie case[3] and the balance of convenience between the parties justifies injunctive relief.[4] 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.
[43] 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 [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.
(a) there are urgent circumstances.
(b) there is a prima facie case of sufficient merit to justify relief; and
(c) the balance of convenience between the parties justifies the order.
[45] I am in agreement with the respondent that the applicant has not established that urgent circumstances exist. This is because:
Does the balance of convenience between the parties justify the requested relief?
[46] In order to make an interim order, an adjudicator must be satisfied an applicant has established that the balance of convenience between the parties justifies injunctive relief.[5] 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. Therefore, the usual purpose of an interim order is to maintain the status quo.
[47] To maintain the status quo in the context of an interim injunction, means to preserve the "existing state of affairs" or the last actual state of things that existed before the dispute arose. The primary goal is to ensure that the situation remains unchanged until the matter can be fully considered, and a final decision made.
[48] The applicant's primary complaint is that the respondent has not implemented motions 10-14 of the AGM and the first requested interim order would require the respondent body corporate to implement those resolutions. This would effectively finalise that part of the dispute before the application is properly determined, and thereby disturb, not preserve, the status quo.
[49] I am also of the view that the second requested interim order is problematical and likely to interfere with the ability of the respondent to properly maintain and administer the common property. The respondent body corporate poses the example of circumstances where there is a dispute between the respondent and the service contractor regarding the contractual obligation to perform a particular duty that requires urgent remedial works (such as a burst irrigation pipe, a fallen tree or a landslide). As the respondent points out, it would be inequitably restrained by such an order.
[50] In any event the provisions of the MUDA would apply to protect any legitimate concerns raised by the applicant. For example, section 190 of the MUDA prevents the committee of the respondent from expending funds unless the expenditure is approved at a general meeting.
Is there a Serious Question to be Determined?
[51] Having decided that the first two criteria have not been satisfied, it is not strictly necessary for me to determine that there is a serious legal question to be determined. However, I will briefly point out what I believe to be deficiencies in the applicant's arguments.
[52] Several of the requested final orders are beyond the powers of a referee to determine because they require consideration of a claimed or anticipated contractual matter concerning the engagement of a person as a caretaking service contractor, pursuant to section 201ZL of the MUDA.
[53] A referee appointed under the Building Units and Group Titles Act 1980, has the authority to deal with disputes that relate to the exercise or performance of powers and duties conferred by that Act. However, the Mixed-Use Development Act provides that disputes concerning a contractual matter are to be heard by QCAT. It provides as follows:
201ZL QCAT jurisdiction
(1) This section applies to a dispute about a claimed or anticipated contractual matter about -
(a) the appointment or engagement of a person as a body corporate manager or caretaking service contractor for a site or precinct; or
(b) the authorisation of a person as a letting agent for a site or precinct.
(2) A party to the dispute may apply, as provided under the QCAT Act, for an order of QCAT exercising QCAT's original jurisdiction to resolve the dispute.
(3) In this section -
contractual matter, about the appointment, engagement or authorisation of a body corporate manager, service contractor or letting agent, means -
(a) a contravention of the terms of the appointment, engagement or authorisation; or
(b) the termination of the appointment, engagement or authorisation; or
(c) the exercise of rights or powers under the terms of the appointment, engagement or authorisation; or
(d) the performance of duties under the terms of the appointment, engagement or authorisation.
[54] Several of the requested final orders relate to "matters of statutory compliance" under BUGTA and the applicant seeks final orders requiring the respondent body corporate to:
[55] The regulatory framework for schemes created under the MUDA is not straightforward. Although the MUDA expressly adopts some provisions of BUGTA (for example, in relation to procedures and voting at extraordinary general meetings), the balance of the governance framework regarding conduct of annual general meetings and committee meetings is dealt with directly in MUDA.
[56] For example the respondent notes that BUGTA does not apply to annual general meetings of the respondent. Rather, they say duties of the respondent are regulated by Section 177 of MUDA. Section 177(1)(e)(i)(A) of MUDA requires the respondent to keep full and accurate minutes of its meetings, including particulars of motions passed at meetings. However, the term "full and accurate minutes" is not defined in the MUDA and in any event the respondent says that the applicant has submitted no evidence to support their allegation that the relevant minutes fail to meet that requirement.
[57] The respondent also says that Section 188(4) of the MUDA requires the committee to keep a record of its decisions and full and accurate minutes of its meetings. However, the term "full and accurate minutes" is not defined in the MUDA and in any event the applicant has submitted no evidence to support her allegation that the relevant minutes fail to meet that requirement.
[58] For the above reasons the application for interim orders is dismissed.
[26] 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.
[3] Also described as a serious question to be tried.
[4] SDW2 Pty Ltd v JLF Corporation Pty Ltd [2017] QSC 001
Australian Broadcasting Corporation v Lenah Game Meats [2001] HCA 63
[5] SDW2 Pty Ltd v JLF Corporation Pty Ltd [2017] QSC 001
Australian Broadcasting Corporation v Lenah Game Meats [2001] HCA 63
SDW2 Pty Ltd
JLF Corporation Pty Ltd
SDW2 Pty Ltd v JLF Corporation Pty Ltd [2017] QSC 001
Australian Broadcasting Corporation v O'Neill [2006] HCA 46
(2006) 227 CLR 572