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

INTERIM ORDER - whether an interim order requiring the body corporate to issue by-law contravention notices and take enforcement action in the Magistrates Court is warranted.

1. The application for interim orders is dismissed.

• [1] This application for an interim order is brought against the body corporate by the occupier of Lot 405 in the scheme.
• [2] The applicant says a neighbour in the scheme is causing cigarette smoke to drift into the lot the applicant occupies. The applicant takes issue with this and argues this is a breach of the scheme's by-laws that concerns nuisances, hazards and impacts to peaceful enjoyment of the scheme by other occupiers. As such, the applicant made a request to the body corporate to take steps to issue a by-law contravention notice against the neighbours. The body corporate did not issue the requested contravention notice.
• [3] The applicant is aggrieved by the body corporate's refusal, and seeks orders to overturn the decision to refuse on the basis the body corporate has acted unreasonably, and has breached various provisions of the Human Rights Act 2019. The applicant also seeks various other orders against their neighbours. The final orders are not being determined at this time.
• [4] In the interim, the applicant seeks orders that the body corporate issue a 'temporary' contravention notice for the alleged breach of the by-laws, and enforce any noncompliance by the neighbours in the Magistrates Court. I have dismissed the application for interim orders as:
  1. I am not satisfied the applicant has raised a prima facie case for two of the three final orders sought, when those sought orders are against persons who are not named respondents.
  2. The balance of convenience does not justify the interim order where its nature would finally determine a substantive issue in the final application which has not yet been proven, and would remove the need for the only remaining final order.

• [5] The applicant and their partner (who is registered on title as the owner of the lot) occupy Lot 405 in the scheme. The applicant says that both of their health is being negatively impacted by cigarette smoke, which they say is drifting into their lot from Lot 205.
• [6] The applicant says that the smoke drift is a hazard, and therefore the occupiers of Lot 205 are breaching section 167 of the Act and the following by-laws:

2.2 Occupiers must not behave in a matter likely to interfere with the peaceful enjoyment of other Occupiers. > > 5.3 Lots must not be used or allowed to be used: > > (a) for any purpose that may cause a nuisance or hazard; > > (b) in any manner likely to interfere with the peaceful enjoyment of other Occupiers...

• [7] The applicant also argues by-law 10.1(b) is relevant, however, has slightly misquoted same.
• [8] The first step for an owner or occupier to pursue by-law enforcement is to issue a prescribed Form 1 to the body corporate, which is a formal request to the body corporate to issue a by-law contravention notice against a person.[1] The body corporate's committee may elect to issue a contravention notice, or it may not. The critical point is that the body corporate has an obligation to enforce by-laws,[2] and the committee should act reasonably in its decision.[3] Where a contravention notice is issued by the body corporate and is not followed by the person, the body corporate may pursue further enforcement action.
• [9] If, within 14 days, the body corporate does not notify the person who gave the Form 1 that a contravention notice has been issued,[4] it may be open to the person who gave the Form 1 to either dispute the body corporate's refusal as unreasonable, or, lodge a relevant application for by-law enforcement directly against the person they believe is breaching the by-laws.[5]
• [10] The applicant says they submitted a Form 1 to the committee (although the applicant has not provided a full copy of the Form 1 in the application). On 13 May 2025, a notice of a vote outside of committee meeting was issued,[6] and the applicant's request was considered as Motion 9. The committee did not pass Motion 9, with 2 votes for, 3 against and 1 abstention. Subsequently, the applicant has chosen to lodge an application against the body corporate disputing its refusal.
• [11] I also note that copies of emails in front of me suggest the body corporate may have previously issued relevant contravention notices against the occupiers of Lot 205 in January and February, but I cannot be certain of this based on the material provided.

• [12] Currently, the applicant seeks the following final orders in their application against the body corporate:

1. an order that Motion 9 "Lot 205 Form 11" of the Vote Outside Committee Meeting by the Members of the Committee which was recently defeated be overturned from "Defeated" to "Approved"... > > 2. an order that the owners/occupiers of Lot 205 permanently cease smoking on or in their Lot 205 at any future time and that they ensure that the guests and invitees of Lot 205 do not smoke on or in Lot 205; and > > 3. an order that the owner/occupiers of Lot 205 to ensure that, if they or their guests or invitees wish to smoke, they use the convenient private entrance stairs of Lot 205 down to Garrick Street footpath (a public place) where they can smoke legally, which would eliminate my complaint against smoking with or with out Lot 205's use of obnoxious cigarette-smoke-masking fragranced product...

• [13] The applicant seeks the following interim orders, to be in place until the matter is finally determined:

1. That the Body Corporate issue a temporary Form 11 to the owners and occupiers of Lot 205 and that, if the owners and occupiers and/or the invitees and guests of Lot 205 breach the Form 11 notice, the Body Corporate immediately commence proceedings against the owners and occupiers of Lot 205 in the Magistrates Court.

• [14] I may make interim orders without seeking submissions from the respondent or any affected parties.[7] However, where appropriate, I should observe natural justice which may require me to seek comment from parties the order may negatively impact. In the circumstances, I have not found it necessary to seek comment from the body corporate or other parties, as I am not satisfied the interim orders are justified for the reasons that follow.

• [15] The legislation provides that an adjudicator may make an interim order where satisfied, on reasonable grounds, that the order is necessary due to the nature or urgency of the circumstances.[8] Adjudicators often follow the test applied by courts in interlocutory applications, being whether the applicant has shown that it has a prima facie case, and whether the applicant has shown that the balance of convenience favours the granting of the relief claimed.[9]
• [16] Interim orders are temporary in their effect. Typically, their purpose is to maintain the status quo, preserving a party's rights or interest until the matter can be finally determined, usually by stopping a party from taking certain actions.
• [17] However, the interim order currently being sought is of a slightly different nature. The applicant seeks an order that would put a positive obligation to take action to issue and enforce contravention notices against another occupier of the scheme. An interim order that puts a positive obligation on a party is known as a mandatory injunction. Such an order which imposes a non-compensable burden or loss on the respondent, is a special case. It is rarely made by the courts and calls for particularly careful consideration, with the effect that the balance if convenience is shifted in the respondent's favour (all other things being equal).[10]
• [18] Therefore, to be successful in their application for interim orders, the applicants must satisfy me that:
  1. there is a prima facie case to justify relief, and
  2. the balance of convenience justifies the interim relief, paying particular mind to this in the context of a mandatory injunction.

• [19] While I am not determining the final orders sought, determining whether there is a genuine legal issue at the interim stage requires some level of assessment of the final orders.
• [20] The onus is on the applicant to prove there is a prima facie case to justify the relief they seek. The applicant does not need to show that it is more probable than not that they will succeed. The applicant needs to show a sufficient likelihood of success to justify the interim orders pending a final determination of the matter.[11] How strong the possibility of success that is needed depends upon the nature of the rights the applicant assets, and the consequences of the order sought.[12]

• [21] The applicant seeks an order that would overturn the committee's refusal to issue a future contravention notice to the owners of Lot 205, for alleged breaches of by-laws 2.2, 5.3(a) and (b), and a misquoted 10.1(b), pursuant to the applicant's request. The applicant argues the body corporate failed to act reasonably, and also breached the Human Rights Act 2019 (HR Act) when it refused to issue the contravention notice.
• [22] I will also note here that while the applicant has made some submissions regarding a breach of section 167 of the Act, which concerns nuisance, the first final order only relates to the body corporate's decision to not issue a contravention notice, which applies to by-laws only.
• [23] On my preliminary review, I am not currently satisfied that the applicant has raised a prima facie case regarding the application of the HR Act. The HR Act applies to decisions of a court or tribunal, Parliament or a public entity (which is a defined term).[13] The applicant does not explain how the HR Act applies to decisions of a body corporate.
• [24] Nevertheless, on my preliminary review, the applicant has raised some level of legal question in relation to reasonableness. Acting reasonably in decision-making involves adequate consideration of all relevant facts and circumstances, and the disregarding of irrelevant ones.[14] The applicant advances the argument that the committee did not give 'sufficient' weight to the evidence they have provided. Namely, an indoor air pollution report, government fact sheets regarding health concerns from passive smoking, and results from 'vape detection technology' devices the applicant has purchased. I therefore find that there is a prima facie case raised for the first final order on this basis.

• [25] The applicant seeks an order that the owners and occupiers of Lot 205 cease smoking on their lot, and that they ensure guests and invitees do not smoke on the lot as well. They also seek an order that the owners and occupiers of Lot 205 smoke out on a particular public street.
• [26] The owners and/or occupiers of Lot 205 are not respondents to this application. In the interests of natural justice, I do not find it appropriate to seek orders against persons who are not named respondents. There is also argument that where a person whose interests would be impacted by the order sought is not named as a respondent, then the applicant has no dispute within jurisdiction as the adjudication process is premised on the applicant naming appropriate respondents.[15]
• [27] On my preliminary review, there is no prima facie case for the second and final order sought based on the current application and named respondents.

• [28] The applicant has only raised a prima facie case in relation to their first final order. However, this does not necessarily mean they are entitled to interim relief.
• [29] Before granting interim relief, I must balance the inconvenience to the respondent body corporate by granting relief now, in the knowledge that final orders might ultimately be refused, against the inconvenience to the applicant lot owners by not granting relief now, in the knowledge that final orders might ultimately be granted.
• [30] The interim orders the applicant seeks are for the body corporate to issue a 'temporary' contravention notice, and that the body corporate must enforce the contravention notice against the owners or occupiers of Lot 205 if they smoke.
• [31] It appears the notion of a 'temporary' contravention notice relates to the legislated timeframe around compliance with a future contravention notice. Where a person has breached a provision of the scheme's by-laws, and the circumstances make it likely that the contravention will be repeated, a 'future contravention notice' may be issued by the body corproate pursuant to section 183 of the Act. A future contravention notice then has an effect for 3 months,[16] and non-compliance with the notice during that time can carry a maximum penalty of 20 penalty units.
• [32] I cannot say that the balance of convenience favours making the interim order. I acknowledge the applicant argues there are health concerns that require immediate redress, however, the interim order is not interim in nature. An order that would compel the body corporate to take steps to enforce legal action against another party is final in nature. It mandates specific enforcement measures that are intended to ensure and compel immediate compliance with existing obligations, which the applicant has not yet proven. Further, the order would finally determine a substantive issue in the final application and would completely resolve the need for the first final order, which is for the body corporate to issue a future contravention notice. Arguably, the interim order goes further than the final order sought, as it also mandates enforcement action. Interim orders are not a mechanism for parties to expedite final order outcomes. On this basis, I am not satisfied that the circumstances of the dispute enable the interim order to be made, or that the balance favours the orders.

• [33] On my preliminary review, I have not been satisfied that the applicant has raised a prima facie case for two of their final orders sought where the orders are against persons who are not named respondents. I have however been satisfied that applicant has raised a prima facie case in relation to one final order, based on my preliminary review of the material in front of me, although this does not necessarily mean the applicant will ultimately be successful.
• [34] I have not been satisfied that the sought interim order is justified as it is final in nature. The balance of convenience cannot support an order that requires mandatory enforcement of legal requirements that are not yet proven.

[4] Act, ss 182(3), 182A(4), 183(3), 183AA(4).

[5] An applicant may need to be able to show their attempts at internal dispute resolution with the other person directly, before lodging an application, pursuant to Act, s 238(1)(b).

[9] SDW2 Pty. Ltd. V JLF Corporation Pty Ltd [2017] QSC 1 at [21].

[10] 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].

[11] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at [622-623].

[12] Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57, at [65], [19].

[13] Human Rights Act 2019 ss 5, 9.

[14] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [42] citing McKinnon v Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 at 430.

[15] For further discussion on this point, see The Wellington Boutique Apartments [2025] QBCCMCmr 105 at [20].

[16] Or a shorter period mentioned in the notice.