Shanara [2025] QBCCMCmr 112 (31 March 2025)

1. This application for interim orders is hereby dismissed.

• [1] This dispute is about the purported maintenance of the roof of a scheme building and the consequential water ingress into a lot.
• [2] The scheme comprises six lots and common property, and is regulated under the Standard Module.
• [3] The scheme is created under a building format plan of subdivision.[1] It's building contains three levels labelled alphabetically. Level A contains Lot 1 and part of Lots 2, 3, 4, 5 and 6. Level B contains the remainder of Lots 2, 3 and 4, whilst Level C contains the remainder of Lots 5 and 6. The building roof covers parts of Lots 4, 5 and 6 and common property.
• [4] The applicant has been the owner of Lot 4 since August 2024. The respondent is the body corporate.
• [5] The applicant states that around March 2024, the former owner of her Lot raised an issue with the respondent body corporate regarding water ingressing through the building roof. Pursuant to the applicant's purchase of the lot in August 2024, the applicant made the same complaint.
• [6] The evidence indicates that Lots 5 and 6 are impacted by similar water ingress issues.
• [7] The applicant states that around late 2024, the respondent body corporate issued a work order but the contractor it engaged was unable to repair the roof. Evidently, the contractor concluded that the pitch of the roof was non-compliant with the relevant building codes and regulations, meeting less than half of the minimum pitch requirement. He recommended commissioning a builder to rectify the problem.
• [8] The issue remained unresolved and the applicant proceeded to table a motion ('Motion 25') at the Annual General Meeting ('AGM') held on 22 January 2025 for certain repair works (specifically for the installation of parapet capping above Lot 4) in accordance with a submitted quotation at a total cost of $2,044.90. This motion was defeated with one vote in favour and three against.
• [9] The applicant states that there have been over 20 separate incidents of water ingress into her lot, which would have caused flooding had it been left unattended. She states that consequentially, the wet ceiling in multiple areas of her lot is growing mold and may collapse with further rain.
• [10] She adds further that the respondent body corporate did nothing to secure the roof despite ample warnings of the recent Cyclone Alfred. She states that this resulted in further significant water ingress into her lot.
• [11] The applicant seeks the following final orders (which is not the subject of this decision):

(a) Roof inspection report completed by a licensed professional, outlining and quoting all the repairs that need to be completed on Unit 4 roof;

(b) The Body Corporate accept and progress with one of the quotations within 6 months;

(c) The roof rectification works be completed before Summer wet season;

(d) The consequential ceiling damage and mould[sic] within unit 4 be replaced;

(e) The further water damage to the main entrance door be replaced;

(f) The Body Corporate pay the excess of $2,000.00 to the Suncorp Insurance Claim as it is unreasonable for us to pay on the Body Corporate's negligence;

(g) That the Body Corporate reimburse us the application fee $231.90.

• [12] The applicant seeks an interim order (which is the subject of this decision) to require the respondent body corporate to 'make safe on the roof' to prevent further water ingress and damage to her lot.
• [13] The chairperson submits seemingly on behalf of the respondent body corporate that it has been taking steps to rectify the issues concerning the roof over the past few months. He states that several builders have advised that simple repairs to the roof will not remedy the leaks, and that reroofing is required to rectify the pitch. He adds that he has had trouble engaging a builder given most were on holiday during December 2024 and January 2025, with availability further being affected by high demand in the aftermath of Cyclone Alfred during March 2025.
• [14] He submits a copy of one quotation that covers the said reroofing and other associated works for a total sum of $79,325.15. He submits that he is in the process of sourcing further quotations in this regard.
• [15] The chairperson and the owner of Lot 6 submit that it is implausible to repair the ceiling until the roof is replaced. The chairperson adds that the respondent body corporate's insurer is unlikely to approve ceiling repairs until the roof is addressed.
• [16] The chairperson further adds that the works proposed under the quotation submitted by the applicant for consideration by way of Motion 25 at the AGM had already been completed in June 2024 when the previous owner of the applicant's lot submitted the very same quotation. He adds that pursuant to the completion of the quoted repair works, on 9 June 2024 a thorough water test was conducted with no observed leaks into the applicant's lot. He reiterates that accordingly, the water ingress can only be addressed by reroofing the building in the relevant areas. He states that this is the reason why the owners of lots 1, 5 and 6 voted against the applicant's motion at the AGM. He adds that the owners of lots 2 and 3 abstained from voting on all motions at the said AGM.

• [17] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the Community Management Statement ('CMS')[2] or about the exercise of rights or powers or performance of duties under the Act or CMS.[3] Further, an order may require a person to act, or prohibit a person from acting in a manner stated.[4] An order may also contain ancillary and consequential provisions the adjudicator considers necessary or appropriate. [5]
• [18] I am satisfied that I have jurisdiction to determine the dispute in question by virtue of sections 276(1)(a) and (b) of the Act (read together with section 227(1)(b) of the Act).

• [19] This interim order application was lodged on 10 March 2025. However, the Commissioner sought further information from the application in accordance with section 240 of the Act, and the applicant subsequently amended her application.
• [20] On 12 March 2025, the Commissioner referred the interim order application for department adjudication in accordance with section 247 of the Act.
• [21] On 13 March 2025, I through my delegate provided a copy of the application for interim orders and invited all owners and the committee on behalf of the respondent body corporate to make submissions.
• [22] The chairperson (H. Cheung)[6] made a submission seemingly on behalf of the respondent body corporate. Further, the owner of Lot 6 also made a submission.
• [23] I have investigated the dispute by reviewing the application for interim orders and the aforesaid submissions, in accordance with section 271 of the Act.

• [24] An adjudicator may make an interim order only if satisfied it is necessary due to the nature or urgency of the circumstances.[7] Accordingly, an applicant must satisfy the adjudicator that serious or irreparable damage would be caused without the interim order.
• [25] An interim order is usually made in the form of a temporary injunction - an order not to do something, pending a final determination of an application. It has effect for a period stated in the order, not to be longer than one year, and may be extended, varied, renewed or cancelled by the adjudicator until a final order is made, and otherwise lapses when an application is finally determined or withdrawn.[8]
• [26] In deciding whether an interim order is warranted, adjudicators often adopt the approach taken by courts to considering interlocutory injunction applications.[9] The first issue is whether the applicant has made out a 'prima facie case' or raised a 'serious legal question', in the sense that if the evidence remains as it is there is some probability that the applicant will succeed at the final determination stage. The second issue is whether any inconvenience or injury which the applicant would be likely to suffer if an interim order were refused outweighs or is outweighed by any inconvenience or injury which the respondent would suffer if an interim order were granted. Those two issues of serious legal question and balance of convenience are parts of one ultimate question - whether an interim order is warranted - and therefore should not be addressed mechanically or in isolation from one another.
• [27] The questions of law and fact raised by the application do not need to be finally decided at the interim order determination stage, and doing so is not appropriate where the evidence is potentially incomplete, or questions of law require opposing arguments and unhurried consideration. That said, if the answer to a question of fact or law is clear on the evidence and issues as presented in the interim application, it may be appropriate and beneficial to decide such questions at the interlocutory stage.[10]
• [28] Even if the considerations of urgency or balance of convenience favour the applicant, it is not inappropriate for an interim order application to be dismissed if there is little or no prospect of success on the legal arguments and the uncontroversial facts, at the final determination stage.

• [29] Accordingly, the only issue for determination at present is whether an interim order is warranted.

• [30] The applicant has provided sufficient evidence of damage to the ceiling and walls within her lot caused by water ingressing from above the ceiling. I am also satisfied that the applicant has experienced and may further experience hardship caused by the said water ingress. She states that she is unable to leave her lot unattended during the rain for fear of flooding and damage to property including chattels. She adds that mitigating the damage pursuant to a water ingress event requires a considerable effort on her part.

• [31] Section 180(1) of the Standard Module requires the body corporate to maintain common property in good condition, including, to the extent that common property is structural in nature, in structurally sound condition. Moreover, section 180(2)(a)(iii) of the Standard Module states that to the extent lots included in a scheme are created under a building format plan of subdivision, the body corporate must maintain in good condition roofing membranes that are not common property but that provide protection for lots or common property. Further section 180(2)(b) states that the body corporate in such a scenario must also maintain in a structurally sound condition roofing structures that provide protection (which are not common property).
• [32] Accordingly, it is my preliminary view that the respondent body corporate is responsible for the maintenance of the roof over Lot 4. This does not appear to be in dispute at this stage.
• [33] Furthermore, the evidence at this stage suggests prima facie that the subpar pitch of the roof is the cause of the water ingress to the applicant's lot. (I anticipate that the parties or any affected person may claim otherwise if and when the application for final orders is considered.)
• [34] The question thereafter is whether the respondent body corporate has acted unreasonably in failing to rectify the issues associated with the roof and the water ingress to the applicant's lot, or whether it has unreasonably delayed these rectification works, or unreasonably overlooked the temporary securing and safeguarding of the applicant's lot when faced with a delay in the reroofing works or simply failed to maintain common property or other elements it is obligated to maintain under the legislation. I note in this regard the chairperson's claim that the respondent body corporate has been taking steps to remedy the issue over the past several months.
• [35] In these circumstances, I am satisfied that the applicant has established a prima facie case and serious legal question to be determined at the final order stage.

• [36] Ordinarily, an interim injunction should do no more than maintain the status quo for a limited time or until the determination of the main application, usually in the form of a restraining injunction. An interim order in the form of a mandatory injunction, i.e., an order requiring a respondent to do something (as opposed to a restraint) which is not needed to preserve an existing interest of the applicant and which imposes a burden or loss on the respondent is a special case. It is rarely made by courts and calls for particularly careful consideration, with the effect that the balance of convenience is shifted in the respondent's favour (all other things being equal).[11]
• [37] It is pertinent to note that the interim order sought by the applicant in the present application is akin to a mandatory injunction, as opposed to a restraining injunction. The order so sought if granted will not have the effect of preserving the status quo, but of altering it at an unknown and unspecified cost to the respondent body corporate.
• [38] Lord Upjohn summarised the requirements for a mandatory injunction in the case of Redland Bricks Ltd v Morris[12] as follows:

1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. As Lord Dunedin said in 1919 it is not sufficient to say "timeo." [Attorney-General for the Dominion of Canada v. Ritchie Contracting and Supply Co. [1919] A.C. 999, 1005, P.C.]. It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.

2. Damages will not be a sufficient or adequate remedy if such damage does happen. This is only the application of a general principle of equity; it has nothing to do with Lord Cairns' Act or Shelfer's case [1985] 1 Ch. 287.

3. Unlike the case where a negative injunction is granted to prevent the continuance of recurrence of a wrongful act the question of the cost to the defendant to do works to prevent or lessen the likelihood of a future apprehended wrong must be an element to be taken into account:

(a) where the defendant has acted without regard to his neighbour's rights, or has tried to steal a march on him or has tried to evade the jurisdiction of the court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff. As illustrative of this see Woodhouse v Newry Navigation Co. [1989] 1 I.R. 161;

(b) but where the defendant has acted reasonably, though in the event wrongly, the cost of remedying by positive action his earlier activities is most important for two reasons. First, because no legal wrong has yet occurred (for which he has not been recompensed at law and in equity) and, in spite of gloomy expert opinion, may never occur or possibly only a much smaller scale than anticipated. Secondly, because if ultimately heavy damage does occur the plaintiff is in no way prejudiced for he has his action at law and all his consequential remedies in equity.

So the amount to be expended under a mandatory order by the defendant must be balanced with these considerations in mind against the anticipated possible damage to the plaintiff and if, on such balance, it seems unreasonable to inflict such expenditure upon one who for this purpose is no more than a potential wrongdoer then the court must exercise its jurisdiction accordingly. Of course, the court does not have to order such works as upon the evidence before it will remedy the wrong but may think it proper to impose upon the defendant the obligation of doing certain works which may upon expert opinion merely lessen the likelihood of any further injury to the plaintiff's land. Sargant J. pointed this out in effect in the celebrated "Moving Mountain" case, Kennard v. Cory Bros. & Co. Ltd. [1922] 1 Ch. 265 at the foot of p. 274 (his judgment was affirmed in the Court of Appeal [1922] 2 Ch. 1).

4.If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions.

... There may be some cases where, to revert to the simple illustration I gave earlier, the defendant can be ordered "to restore the right of way to its former condition." This is so simple as to require no further elucidation in the court order. But in anything more complicated the court must in fairness to the defendant tell him what he has to do, though it may well be by reference to plans prepared by some surveyor, as pointed out by Sargant J., in the passage in the "Moving Mountain" case to which I have already referred. The principle is summed up by Maugham L.J., in Fishenden v. Higgs & Hill Ltd. (1935) 153 L.T. 128, 142;

"I should like to observe, in the first place, that I think a mandatory injunction, except in very exceptional circumstances, ought to be granted in such terms that the person against whom its is granted ought to know exactly what he has to do."

• [39] More recently, the Supreme Court of Western Australia in Miller v Evans[13] summarised the principles relating to a mandatory injunction as follows:

The basis for an application for a mandatory injunction is that if the plaintiff had taken proceedings at an earlier stage she would have obtained an injunction restraining the defendants from committing the acts in question. However, the imposition of a positive requirement may be more likely to give rise to hardship or disproportionate expense on the part of the defendant. Factors of this type may influence the court against exercising the equitable jurisdiction to enforce a restrictive covenant or to confine the plaintiff to equitable damages in lieu of an injunction. The basic concept is that of producing a fair result and this involves the exercise of a judicial discretion. Shepherd Holmes Ltd v Sandham (1970) 3 All ER 402, 412.

Factors relevant to the exercise of the court's discretion include the extent of the defendants' knowledge of the wrongful nature of his or her acts. In Jaggard v Sawyer (1995) 2 All ER 189, 209 Millet LJ said:

At one extreme the defendant may have acted openly and in good faith and in ignorance of the plaintiff's rights and thereby inadvertently placed himself in a position where the grant of an injunction would either force him to yield to the plaintiff's extortion and demands or expose him to substantial loss. At the other extreme the defendant may have acted with his eyes open and in full knowledge that he was invading the plaintiff's rights and hurried on his work in the hope that by presenting the court with a fait accompli he could compel the plaintiff to accept monetary compensation. Most cases like the present fall somewhere in between.

The hardship that will be caused to the plaintiff by the refusal of an injunction has to be weighed against the hardship that would be caused to the defendant by the grant of an injunction. In this regard, the court must consider the extent to which the injuries suffered by the plaintiff are compensable by an award of damages. Wood v Conway Corporation [1914] UKLawRpCh 36; (1914) 2 Ch 47, 60. However, the normal remedy for a threatened or actual breach of a restrictive covenant is an injunction and the court's power to award damages in lieu of an injunction is discretionary and should be exercised with caution. Leeds International Co-operative Society Ltd v Slack [1924] AC 851, 861. Damages may be a sufficient remedy only if the injury to the plaintiff's legal rights is small, is capable of being estimated in money terms, can be adequately compensated by a small money payment and it would be otherwise oppressive to the defendant to grant an injunction: Shelfer v City of London Electrical Lighting Co [1894] UKLawRpCh 212; [1895] 1 Ch 287, 322; Kelsman v Imperial Tobacco Company of Great Britain and Ireland Ltd (1957) 2 QB 334; Owen v O'Connor (1964) NSWR 1312; Wooloton & Wilson Ltd v Richard Coston Ltd (1917) All ER 483.

Whilst the occasioning of hardship to the defendant is a relevant consideration in the exercise of the discretion to grant an injunction, the mere fact of hardship is not itself sufficient. Hardship will usually only justify refusal of a mandatory injunction if the hardship that would be inflicted on the defendant is disproportionate to the benefit to the plaintiff: Jessica Estates v Lennard [2007] NSWSC 1434 and Sharp v Harrison [1922] 1 Ch 502.

In Wakeham v Wood (1982) 43 P&CR 40, 43 - 45 consideration was given to the difficulties in quantifying the damage where the restrictive covenant breached is one that protects views. In that case Waller LJ said:

The authorities show that in the case of express negative covenants, that is where an agreement has been made and a particular thing is not to be done, an injunction will be granted to restrain a breach. And where a defendant commits a breach of a negative covenant with his eyes open and after notice the court will grant a mandatory order, although there must be some limitation to this practice: eg see per Astbury J and Sharp v Harrison and in that case the Judge found reasons for awarding damages.

The present case does not in my view qualify in any particular with paragraphs 1 to 4 mentioned by AL Smith LJ. Here is a man who has been living in his house for 33 years with a view of the sea protected by restrictive covenant. The defendant purchased the land subject to the restriction with knowledge of it at the time of purchase. He did not make any enquiry of the plaintiff either directly or indirectly, he did not inform his architect of the restriction, he took no notice of his builder telling him of the plaintiff's objection and he put the roof trusses up in spite of letters from the plaintiff's solicitor. A more flagrant disregard of the plaintiff's rights is difficult to imagine. As I have already indicated the Judge concluded that there was a serious interference with the plaintiff's legal right to a view of the sea. I find It difficult to say that where one has a view protected by covenant the denial of that view is capable of being estimated in money terms and therefore it seems to me it cannot be adequately compensated by a small money payment. It no doubt would be oppressive to the defendant if a mandatory injunction is granted against him but that is entirely his own fault for proceeding with the construction in breach of the covenant after warning. (emphasis added)

This is another consideration which will constrain the award of damages in lieu of an injunction. If a court grants damages it in effect licenses the defendant's unlawful act for the future, subject to the payment of compensation to the plaintiff. In Shelfer v City of London Electrical Lighting Co Linley LJ said at 315:

The court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict... Without denying the jurisdiction to award damages instead of an injunction even in cases of continuing actionable nuisances such jurisdiction ought not to be exercised in such cases except under very exceptional circumstances. I will not attempt to specify them or to lay down rules for the exercise of judicial discretion.

• [40] It is pertinent to note that the onus is on the applicant to make her case and not on the respondent body corporate. It is an onerous task to demonstrate that the respondent body corporate has acted unreasonably. However, this is made even more burdensome when seeking an interim order that is mandatory in nature. The applicant is accordingly required to provide sufficient evidence in support of the interim order so sought at this stage itself. I am not satisfied that the applicant has at this stage discharged this burden of proof.
• [41] The applicant has not set out precisely what 'make-safe' measures she is seeking required. I note in this regard that the applicant has not made any substantive efforts at internal dispute resolution concerning those make-safe measures. Had this been done, with evidence of the same being provided, I may have been able to gain some understanding of the precise measures sought from the respondent body corporate.
• [42] Furthermore, at this stage, there is insufficient evidence clearly identifying the precise source of the water ingress, for e.g., whether it is any compromised parapet capping or the flaw in the roof pitch. This worsens the difficulty in ascertaining precisely what works the applicant wants the respondent body corporate to undertake as part of the interim order.
• [43] Accordingly, if I were to order the respondent body corporate to put in place safety measures to prevent water ingress to the applicant's lot, I am unsure as to precisely what work I must order it to carry out, and in turn what work it must commission a contractor to carry out. A lack of such crucial specificity in an order is also an irregularity, and is therefore prone to challenge (as described in the precedent above).
• [44] Moreover, a determination on the question as to whether the respondent body corporate acted unreasonably in the circumstances of this matter would have the effect of finally determining this dispute. This question requires unhurried consideration with an adequate opportunity for all affected persons and the parties to make submissions on.
• [45] Further, the applicant has not provided any details as to the likely cost of such make-safe measures. This precludes my analysing an element of the legal test of whether a mandatory injunction is warranted, i.e., regarding disparate costs. This is also to ascertain whether the hardship caused to the respondent body corporate in potentially having to put in place such make-safe measures is disproportionate to the benefit received by the applicant. The applicant has also made no arguments or provided any evidence to demonstrate that an award of damages is insufficient or an inadequate remedy in the event of further water ingress to her lot.
• [46] In these circumstances, the applicant has not demonstrated with sufficient evidence that the balance of convenience favours the granting of the interim order.
• [47] Accordingly, I am not satisfied that the interim order sought is warranted.

• [48] The applicant has not provided sufficient evidence to demonstrate that an interim order in the nature of a mandatory injunction is warranted.
• [49] However, I note that the applicant has made a prima facie case for final orders.
• [50] I encourage both parties to work amicably to resolve this dispute. In this regard, the respondent body corporate must note that it has a statutory obligation to act reasonably in performing its functions under the act, including when making or not making decisions.
• [51] The applicant has made various requests for the water ingress issue to be rectified. An unreasonable delay by the respondent body corporate in addressing these issues may result in it having to incur considerable expenses to rectify the damages caused to the applicant's lot and her property. In this regard I refer to section 281 of the Act which provides for an adjudicator to order payment of up to $10,000.00 as reimbursement for repairs carried out or order the responsible party to carry out repairs at a cost of up to $75,000.00.
• [52] Accordingly, I urge the members of the respondent body corporate i.e., the lot owners to consider this dispute and the effect any final order made in favour of the applicant may have on the levies raised by the respondent body corporate.

[1] See registered survey plan bearing reference BUP6229

[2] The CMS includes the scheme's by-laws

[3] Sections 276)(1)(a) and (b) of the Act

[5] See Brighton on Broadwater Breezes [2018] QBCCMCmr 243 at [8]

[6] 'H. Cheung' is not a lot owner at the scheme registered under that name

[9] For general principles see for e.g., Australian Broadcasting Corporation v O'Neill [2006] HCA 46 and SDW2 Pty Ltd v JLF Corporation Pty Ltd & Ors [2017] QSC 1

[10] Cohen v Peko-Wallsend Ltd [1986] HCA 70 at [6]

[11] Meagher, Gummow and Lehane's Equity: Doctrines & Remedies (J.D. Heydon, M.J. Leeming, P.G. Turner) (Fourth Edition) (Sydney: LexisNexis Butterworths, 2002) at [21-395]; Bingham & Anor v 7-Eleven Stores P/L [2003] QCA 402 at [106]-[108]

[12] [1970] AC 652 at pp. 665, 666, 667. This case was cited by the Supreme Court of Queensland in Coral Sea Properties Pty Ltd & Batagamma 41 Pty Ltd v Macfadyen [1993] QSC 69

[13] [2010] WASC 127 at [24] to [29]. This case was cited by the Supreme Court of Queensland in BGM Projects Pty Ltd v Durmaz Corporation Pty Ltd [2020] QSC 87