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

APPLICATION FOR INTERIM ORDER - where the applicant says the body corporate has reconfigured a boundary fence enclosing an area of common property within the courtyard of Lot 9 - where the applicant argues this was done without the proper authority - whether the interim order sought by the applicant is warranted in the circumstances.

1. The application for an interim order is dismissed.

• [1] South Pacific Lodge CTS 16292 is a 20-lot scheme situated in New Farm, Queensland. It is governed by the Accommodation Module. The applicant, Anita Nolan, is one of four owners of Lot 7. She has lodged this application in her capacity as a committee member.
• [2] The applicant says the body corporate committee have reconfigured a boundary fence enclosing approximately 1.92 square metres of common property inside the courtyard of Lot 9. She says the correct process was not followed to authorise this change. The applicant says Lot 9 has been allowed to benefit from the exclusive use of enclosed area of common property as extra courtyard space.
• [3] The applicant is seeking a final order declaring that the committee's decision to authorise the reconfiguration of the boundary fence and allowing Lot 9 the exclusive use of approximately 1.92 square metres of common property (as shown on BUP 103922) is invalid and of no effect.
• [4] In addition, the applicant seeks the body corporate be ordered to:

(a) Convene an extraordinary general meeting (EGM) to allow all lot owners to vote on a motion proposing to authorise the enclosure and exclusive use of the approximately 1.92 m² of common property adjacent to Lot 9, in accordance with section 169 of the Accommodation Module (resolution without dissent required), ensuring all owners are properly notified under sections 85-88 of the Accommodation Module; and, should the motion pass without dissent, to:

• Lodge a new Community Management Statement (CMS) to register for CTS 16292 under section 173 of the Accommodation Module and section 47B of the Land Title Act 1994 (Qld); and

• Have the Body Corporate to recover funds from the lot owner the respondent is the Body Corporate The Owner of Lot 9 to pay the Body Corporate $31,960, comprising:

  • $16,652 for future land valuation
    • $15,308 for administrative costs associated with updating the CMS, Titles, Body Corporate records, and BUP - See Footnote1: Price calculation
  • Body Corporate to update all records, CMS, titles, and BUP to reflect the valuation and payment including:
    • the registered CMS for CTS 16292;
    • the Building Units Plan (BUP 103922), as boundary realignment is required; and
    • the Body Corporate records and minutes to accurately reflect the change.
    • The total payable amount shall be recorded in the Body Corporate records in accordance with Sections 180 and 182 of the BCCM Standard Module Regulation 2020.

(b) Remove the new fence and reinstate the boundary fence to its original lawful alignment and setback of 1250 mm, as recorded on Building Units Plan BUP 103922 and the current CMS for CTS 16292.

• That the Adjudicator direct that any future approvals involving exclusive use or alteration of common property be decided only by a resolution without dissent at a general meeting, and that a new CMS be lodged with Titles Queensland within three months of such resolution as required under section 173 of the Accommodation Module.
• That the Body Corporate be directed to review and correct its records, including the registered CMS and site plans, to ensure consistency with the lawful configuration of common property and ongoing compliance with the Act and Module.
• Any further order the Adjudicator deems necessary to restore or regularise the common property, and to ensure compliance with the Act and Module, including reimbursement of reasonable application costs to the Applicant.

• [5] The applicant is also concerned that the body corporate committee is in the process of lodging an amended CMS which will record the new fence boundaries. She says she wants to maintain the status quo until a final decision is made on her application. She seeks the following interim order:

That the Body Corporate and members be restrained from modifying structures, preparing, resolving, or lodging any CMS amendments until final adjudication.

• [6] This is my consideration of the applicant's request for an interim order. The applicant bears the onus to establish that the interim order she seeks is warranted in the circumstances.

• [7] The applicant lodged this application for adjudication on 20 October 2025. The commissioner sought clarification on some aspects of the application and the application was amended.
• [8] The commissioner referred the interim order request to department adjudication under section 247(2)(b) of the Act.
• [9] There is no statutory requirement to obtain comments from a respondent or affected parties before an interim order is decided. However, in the circumstances of this case, interim submissions were invited from the body corporate committee and it made interim submissions on the dispute.
• [10] I have reviewed and considered all the submissions and materials submitted on this dispute before coming to my decision on the applicant's request for an interim order.

• [11] An adjudicator may make an interim order if satisfied, on reasonable grounds, that the order sought is necessary because of the nature or urgency of the circumstances to which the application relates.[1]
• [12] In deciding whether an interim order is warranted in the circumstances, adjudicators often adopt the approach taken by courts to considering interim injunction applications.[2] Accordingly, to determine if it is just and equitable to make the interim order sought by the applicant, I must consider the substantive issues in dispute, the nature and urgency of the matter, as well as the balance of convenience between the parties. I will explain each consideration in more detail below.
• [13] Firstly, I must consider the substantive issues in dispute and be satisfied there is a serious legal question to be answered. At this stage, the applicant does not need to satisfy me that, on the balance of probabilities, her legal position is the correct one to take in the case. However, I must be satisfied the applicant's case has a sufficient likelihood of success to justify the making of the interim order sought prior to a full investigation into the matter being concluded.
• [14] Secondly, an adjudicator may make an interim order only if satisfied, on reasonable grounds, that it is necessary because of the nature or urgency of the circumstances.[3] The applicant must therefore establish that the circumstances warrant the interim order she has sought. This may be where, for example, the order is necessary to prevent serious or irreparable harm from taking place or to stop something that cannot be undone. I must also 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.

• [15] I understand the applicant is unhappy with the committee's decision to reconfigure a boundary fence enclosing an area of approximately 1.92 square metres of the common property inside the courtyard of Lot 9. She says this means the owner of Lot 9 now enjoys exclusive use of this fenced in area of common property.
• [16] The applicant says the correct process to follow to grant approval for this action was for all owners to be given an opportunity to vote on whether to approve Lot 9's exclusive use of the area in question. She says a resolution without dissent was required to make the decision.
• [17] The applicant refers to a decision taken by the body corporate at the scheme's recent annual general meeting (AGM) held on 28 July 2025. She says the body corporate may have been misled by the explanatory notes of the AGM. She says these misstated that the committee has legal authority to approve the fence relocation under By-law 9 of the scheme's CMS, ignoring that boundary or exclusive use changes require a general meeting resolution and an amended CMS.
• [18] The applicant says the body corporate committee have also downplayed the legal requirements and minimised the impact saying the area was still 'common property' while it is physically enclosed behind a fence and controlled by one lot owner.
• [19] The applicant also says By-law 9 is inconsistent with the Act as it purports to grant the committee discretion to allow exclusive use of common property which is in conflict with the statutory requirements under the Act and Accommodation Module.
• [20] The applicant says the owner of Lot 9 has directly benefited by the reconfiguration. She provides calculations for how much a courtyard in the suburb of New Farm is worth per square metre. The applicant says all other owners in the scheme are materially affected by the unauthorised reconfiguration of the fence boundaries.

• [21] The committee says the scheme's fences, including the section of fence behind the letterboxes adjacent to Lot 9, were all replaced in 2023. It says these have been the 'existing structures' for more than two years and the committee has no plans to modify them.
• [22] The committee says that at the time the fences were replaced, the section of fence behind the letterboxes was moved from the boundary of Lot 9's exclusive use area to up against the back of the new letterboxes. It explains this was done for two reasons:
  1. Neither the body corporate nor any individual was able to access the common property area between the letter boxes and the boundary of Lot 9's exclusive use area. It says this area was not maintained at all between 2013 and 2023. The committee says it collected rubbish and harboured vermin.
  2. Between 2018 and 2023, the area provided a path for tree roots to enter Lot 9's courtyard and cause damage to pavers and plants. It says this issue was the subject of two conciliation applications between Lot 9 and the body corporate.
• [23] The committee says its decision to move the fence boundary to make the area accessible was not only reasonable, but necessary. The committee says this action was originally proposed by Denis Nolan, another owner of Lot 7, who was the chairperson of the committee in 2023.
• [24] The committee says it granted approval to the owner of Lot 9 to use the common property area between the letterboxes and the boundary of Lot 9's exclusive use area to house potted plants. It says, in return, the owner of Lot 9 agreed to pave and maintain the area. The committee says it has authority to give this approval under the scheme's by-laws.[4] It says BUP 103922 is not changed by this grant and the by-laws permits the committee to withdraw permission to use this area giving 7 days' notice. It also clarifies that the approval does not pass to a new owner.
• [25] The committee says the applicant objected to this approval and submitted a motion to the scheme's AGM to overturn the committee's decision to grant approval (Motion 14a). It explains it submitted an alternative motion for the body corporate to ratify the committee's decision to grant the owner of Lot 9 permission to house potted plants in the area between the letterboxes and the boundary of Lot 9's exclusive use area in return for paving and maintaining this area (Motion 14b).
• [26] The committee says the applicant's motion did not pass and had only 1 vote in favour and 3 against (4 abstaining), while its motion to ratify the committee's approval passed with 6 votes in favour and only 1 against (1 abstaining).
• [27] The committee says the applicant's communications since the AGM have consisted solely of written requests to delay registration of a new CMS. It says the applicant has made false assertions including: (a) that the committee does not have authority under the by-laws to permit the owner of Lot 9 to use common property; (b) that Lot 9 made an application to the committee to have the area between the letterboxes and the boundary of Lot 9's exclusive use area included in her entitlement when the letter boxes were replaced but this was foiled by the vigilance of the owners of Lot 7; and (c) that the committee is conspiring to illegally register new boundaries on BUP103922 in the CMS.
• [28] The committee says the applicant has not made good faith attempts to discuss her concerns with it. It says she has no substantive grounds for her unfounded beliefs and has provided no reasonable explanation for her opposition to the owner of Lot 9 using the former waste ground between the letter boxes and the boundary of Lot 9's exclusive use area.
• [29] The committee notes that because the area in dispute is only accessible to Lot 9, and because the owner of Lot 9 has improved the area at her owner expense pursuant to a conciliation agreement, permission to use this area would not be withdrawn without good cause. The committee further explains that should permission be withdrawn, the fence boundary would not be relocated as this would make the area once again inaccessible to maintenance and create an ongoing expense for the body corporate and a persistent nuisance for Lot 9.
• [30] The committee notes there are some issues with the accuracy of BUP 103922. It says the errors may require a resurvey of the property and a motion without dissent to resolve these in the future.

• [31] The only issue I am deciding at this stage is whether the interim order requested by the applicant is warranted in the circumstances. She has sought an interim order that the body corporate be restrained from modifying structures, preparing, resolving, or lodging any CMS amendments until final adjudication.

Consideration of legal issues and likelihood of success

• [32] The applicant has raised several issues in her application including, challenging the body corporate's decision on Motion 14 of the 2025 AGM. Motion 14 was a group of same-issue motions and read as follows:

Ordinary Resolution - Proposed by Owner, Anita Nolan, Lot: 7

That the Body Corporate reinstate the boundary fence section on the front border of Lot 9; as it was prior to the fence replacement and in accordance with the current Community Title Scheme CTS 16292. - See Attachment B - Image 5 - Set back 1250mm.

That the Body Corporate ratify the approvals given by the Committee to the Owner of Lot 9 to:

1. Use the area to house potted (moveable) plants

2. Maintain the area in good order and condition, at her own expense

3. Concrete and epoxy the surface of the area at her own expense.

• [33] Motion 14b passed with 6 votes in favour and 1 against (1 abstaining).
• [34] While the applicant is seeking to challenge the body corporate's decision to pass Motion 14b, having reviewed all the materials submitted by both parties, my preliminary view is that the heart of the issue in this dispute is the decision to reconfigure the boundary fence adjacent to Lot 9. Having reviewed the photographs of the way the new boundary fence has been placed; it appears to have entirely enclosed an area of the scheme's common property within the courtyard of Lot 9.
• [35] Adjudicators have previously held that where an improvement has alienated a piece of the scheme's common property in favour of one lot owner, this requires a grant of exclusive use.[5] Sections 170 to 177 of the Act provide for exclusive use by-laws, which attach to a lot and give the occupier of the lot the exclusive use of, or other special rights about, the common property that is identified in the by-law. By-laws, including exclusive use by-laws, are recorded in the scheme's CMS. To record an exclusive use by-law, a body corporate must consent to a new CMS by passing a resolution without dissent.[6]
• [36] Accordingly, it is arguable that the way the new fencing has been installed required authorisation by way of a resolution without dissent for Lot 9 to be granted exclusive use of the newly fenced in area and for this grant of exclusive use to be recorded in the scheme's CMS.
• [37] While I note the committee has argued it has granted permission for the owner of Lot 9 to use this area of common property, due to the way the area has been fenced in precluding any other lot owners from using it, my preliminary view is that the owner of Lot 9 has not obtained the correct authorisation for the relocated fence and use of the common property now incorporated into Lot 9's courtyard.
• [38] In light of the above, I am satisfied the applicant has raised a serious legal question to be answered.

Nature or urgency of circumstances and the balance of harm

• [39] In her application, the applicant acknowledges that the area in dispute has already been fenced in, effectively changing the boundaries and use of common property without the correct approval. However, she says she is seeking an interim order to prevent the committee from progressing with amendments to the scheme's CMS which, if registered, would formalise the unauthorised boundary alteration and irreversibly affect the property rights of all other owners in the scheme.
• [40] However, the committee says it is not attempting to alter the boundaries of Lot 9 on the CMS. It says all matters affecting the CMS are related to amendments/additions to the by-laws which were authorised at the AGM. It refers to motions 9, 10 and 11 of the AGM. The committee says that none of the proposed changes to the CMS approved at the AGM affect BUP 103922 or Schedule E of the CMS.
• [41] The applicant provided the minutes of the 2025 AGM and the three motions referred to by the committee include: (1) Motion 9, which proposed a special resolution to amend By-law 2 (noise and behaviour), (2) Motion 10, which proposed a special resolution to amend By-law 5 (motor vehicles, bicycles and parking), and (3) Motion 11, which proposed a special resolution to include By-law 23 (rechargeable lithium-ion vehicles, conveyances and batteries).
• [42] Motions 9, 10 and 11 were all passed by the body corporate and the committee says it has taken action to lodge a new CMS to include the amendments/additions to the by-laws which have been authorised. I note the applicant is not seeking to challenge any of these motions.

1. I have carefully reviewed the correspondence the applicant has provided between herself and the scheme's body corporate manager in relation to the motions passed at the AGM. I note the applicant requested that no action be taken in relation to Motions 13b and 14b until the adjudication process is finalised.[7] It appears that in September, the committee voted for a legal firm to prepare, execute and lodge a new CMS to implement the motions approved at the 2025 AGM.

• [44] The applicant objected to this and reiterated she wanted no action to be taken in relation to Motions 13b or 14b of the AGM. The body corporate manager responded to the applicant and clarified that the decision to lodge a new CMS was solely to update the scheme's by-laws with the amendments/additions authorised pursuant to Motions 9, 10 and 11 of the AGM. He reiterated the amendments were not connected to Motions 13b or 14b.
• [45] Firstly, having carefully considered all the materials submitted in this dispute, I am not yet satisfied that the body corporate is intending to modify any structures at the scheme. It seems the scheme's fences were replaced a couple of years ago and, at this stage, there is no indication the body corporate intends to make any further changes to the fences. I note the applicant herself acknowledges the area in dispute has already been fenced in.
• [46] Secondly, I note there is no indication that the body corporate intends to amend the boundaries on BUP 103922 to grant Lot 9 exclusive use of the disputed area. It appears the only amendments the body corporate is intending to make to the CMS is to insert the amendments to the scheme's by-laws which were authorised at the 2025 AGM. The applicant is not seeking to challenge those motions or the by-law amendments.
• [47] In light of the above, I am not yet satisfied that the interim order sought by the applicant is necessary because of the nature or urgency of the circumstances to which the application relates. I consider it would serve no purpose to make an order restraining the body corporate from modifying structures or from preparing, resolving, or lodging any CMS amendments until final adjudication in the circumstances of this case. At this stage, I can see no indication there will be any harm to the applicant's case to consider the issues she has raised in the context of final orders.

• [48] I have dismissed the applicant's request for an interim order. The dispute will now be referred back to the commissioner to progress under the Act.[8]

[2] For general principles see: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 and SDW2 Pty Ltd v JLF Corporation Pty Ltd & Ors [2017] QSC 1

[4] The committee refers to By-laws 6 and 9.

[5] See City Views [2023] QBCCMCmr 379

1. [7] Motion 13b relates to a shade sail and the applicant has submitted a separate dispute in relation to this matter. Accordingly, the applicant's objections to Motion 13b is not relevant to this dispute.