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

1. Motion 18A at the Annual General Meeting for Sun Lagoon CTS 10991, to be held on 18 September 2025, if carried, must not be implemented until further or final order.

• [1] This dispute is about the validity of a motion tabled at a general meeting.
• [2] The corporate lot owner who tabled the motion claims it concerns an improvement to common property requiring authorisation by way of ordinary resolution, whereas another lot owner is of the view that it involves a disposal of common property or conferral of other rights requiring a resolution without dissent.

• [3] The applicant, Grant Hailes is the owner of Lot 29. The respondent is the body corporate. The representatives of the corporate owner of Lot 9 (the 'Streets') who proposed the said motion are named as affected persons under this application.
• [4] Motion 18 tabled at the Annual General Meeting ('AGM') dated 18 September 2025, is a group of same issue motions. Motion 18A was submitted by the corporate owner of Lot 9, whereas Motion 18B was submitted by the committee.
• [5] Motion 18A reads as follows:

IMPROVEMENT TO COMMON PROPERTY (Pavers for Lot 9) - Submitted by Owner of Lot 9 - Option 1 - Ordinary Resolution

1. Approves the proposed improvements to the common property described in the letter of Bugden Allen Group Legal Pty Ltd, solicitors for the owners of Lot 9, dated 10 April 2025, which proposed improvements are primarily comprised of:
   1. The removal of approximately 3x3m of grass outside Lot 9;
   2. The laying of pavers in that area; and
   3. Using the same pavers laid on common property outside Lots 8 and 10, as approved in 2011 by the Committee; and
2. Gives the approval including under both the by-laws, including without limitation by-law 2.1, and also under section 177 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020, as an improvement to the common property for the benefit of Lot 9, subject to the following conditions;
   1. The installation is carried out by a suitably qualified tradesman or the resident manager;
   2. Ongoing care and maintenance of the improvements is the responsibility of the Owners of Lot 9;
   3. Any damage caused to common property as a result of the improvements is the responsibility of the Owners of Lot 9;
   4. Should the Body Corporate wish to make use of the common property in the future it has the right to do so; and
   5. The installation meets any relevant Council requirements and Australian Standards.

The owners of Lots 8 and 10 received committee approval in 2011 to lay pavers outside their lots. The Owner of Lot 9 has sought the same approval, for the same work, from the committee, twice. Originally this was by the owners of Lot 9 requesting approval in December 2024, and then by submitting a motion for the committee to vote upon in April 2025. The Committee could have approved the works, on either of the two earlier occasions, including because the proposed improvements are 'minor improvements' in that they have a value of less than $3,000 (evidence of which was given to the committee). We ask that we be treated the same as our neighbours and allowed to install a small area of pavers on the common property. We are not asking for any exclusive [sic] of other rights to use the area, just to lay the pavers, over which any person can walk, just like our neighbours.

IMPROVEMENT TO COMMON PROPERTY (Pavers for Lot 9) - Submitted by Committee - Option 2 - Ordinary Resolution

In light of the below Explanatory notes, the Body Corporate Committee proposed an alternative motion for members to consider as follows.

1. Will affect the visual amenity of the Sun Lagoon complex;
2. Will affect the visual outlook from units on that side of the complex;
3. It is reasonably likely that it is a disposition of common property that is owned by all members for which no compensation is being paid;
4. It is reasonably likely that the practical effect of the proposed paving is that it will be for the exclusive use of Lot 9 due to the location of the paving;
5. The proposed paving will occupy a large proportion of the common property on that side of the complex.

Body Corporate Committee note on Application made by owners of Lot 9 for the above approval.

The application was submitted by the owners of Lot 9, Sun Lagoon CTS 10991, on 10 April 2025 seeking approval under section 177 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module) for the installation of pavers on common property for the benefit of Lot 9 (Application).

The Application sought to remove approximately 3x3 metres of grassed area outside Lot 9 and to install pavers. The application was supported by a quotation for the installation works in the sum of $2,997, $3 below the $3,000 threshold for minor improvements as referenced in the Accommodation Module.

Lot 9 is situated at the rear of the Sun Lagoon complex on the ground floor, positioned between Lot 8 and Lot 10. The lot enjoys direct access from its verandah onto a grassy area that forms part of the common property. This grassed section extends downwards, overlooking the lagoon, with the grass running all the way to the river's edge. This area, as with other landscaped portions of the scheme, currently contributes to the appearance and character of Sun Lagoon, providing a green natural space between the complex and the riverfront. The introduction of a paved surface in this location, even if using materials similar to those previously approved for other lots, will affect the natural appearance of the complex.

The proposed area of 3 x 3 meters would also occupy a significant part of the Body Corporate property on that side of the complex.

Over 13 years ago, on 3 September 2011, a previous body corporate committee considered unauthorised improvements to common property undertaken by the then owners of Lots 8 and 10. Approvals for paving and steps were granted retrospectively, after the works had already been completed. The fact that prior approvals has been given did not mean that the Committee was able to just approve the Application. The Committee was required to consider the Application before it based on the evidence provided.

The Committee did not consider that it was reasonably able to determine that the Application fit within the exception in the Accommodation Module that would allow Committee approval. Further, because the area is a significant part of valuable common property that is owned by all owners and the proposed paving would impact the appearance of the complex, the Committee considered that it was reasonable that the Application should be made by all owners not just the limited group that sat on the Committee.

• [7] The applicant claims that Motion 18A has the effect of constructively granting exclusive use rights to Lot 9, and constitutes a disposal or alienation of common property, or a license over the area to paved granted indefinitely to Lot 9. Accordingly, he states that the Motion requires authorisation by resolution without dissent.
• [8] On the other hand, the Streets argue that they are simply asking to be treated in the same fairness as the other two lot owners who received approval to have similar paved areas.

• [9] 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')[1] or about the exercise of rights or powers or performance of duties under the Act or CMS.[2] Further, an order may require a person to act, or prohibit a person from acting in a manner stated.[3] An order may also contain ancillary and consequential provisions the adjudicator considers necessary or appropriate. [4]
• [10] 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).

• [11] This interim order application was lodged on 8 August 2025. However, the Commissioner sought further information from the application in accordance with section 240 of the Act, and the applicant subsequently amended the application.
• [12] On 25 August 2025, the Commissioner referred the interim order application for department adjudication in accordance with section 247 of the Act.
• [13] On the same day, I through my delegate provided a copy of the application for interim orders and invited all owners and the Streets to make submissions.
• [14] On 9 August 2025, I granted a request made by the Streets to extend the due date for submissions.
• [15] Subsequently, the Streets and a co-owner of Lot 24 made submissions.
• [16] I have investigated the dispute by reviewing the application for interim orders and the aforesaid submissions, in accordance with section 271 of the Act.

• [17] An adjudicator may make an interim order only if satisfied it is necessary due to the nature or urgency of the circumstances.[5] Accordingly, an applicant must satisfy the adjudicator that serious or irreparable damage would be caused without the interim order.
• [18] 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.[6]
• [19] In deciding whether an interim order is warranted, adjudicators often adopt the approach taken by courts to considering interlocutory injunction applications.[7] 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.
• [20] 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.[8]
• [21] 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.

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

• [23] The applicant states that if Motion 18A is carried and an interim order does not prevent its implementation until final orders, the Streets will cause damage to the common property by installing the pavers and removing the vegetation and grassed areas.
• [24] The Streets on the other hand claim that if the motion is carried they ought to be able to proceed with the works. They state that if it is determined at the final order stage that the decision was incorrect, they will reinstate the paved area at their expense.

• [25] I am satisfied that the applicant has raised a serious legal question, that is whether Motion 18A amounts to the granting of a license, or special rights or a disposal of common property.

• [26] In the circumstances of this case, I am satisfied that the balance of convenience favours the preservation of the status quo.
• [27] I acknowledge that the Streets are to benefit from the installation of the pavers. I also note their ability to remove the same pursuant to any final order to that effect. However, I am not persuaded that an interim order must be precluded on this basis on account of the damage that may be caused to the grassed area and vegetation upon the laying of the pavers.

• [28] Accordingly, I am satisfied that an interim order is warranted.

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

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

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

[7] 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

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