The Dorchester [2025] QBCCMCmr 108 | Case summary

The Dorchester [2025] QBCCMCmr 108 | Case summary | Zoe

[8]

[1] The Dorchester community titles scheme 10749 (The Dorchester) is a 33-lot scheme in Surfers Paradise. The current community management statement (CMS) shows the Accommodation Module now applies. The scheme is registered as building unit plan 4438.
[2] Lot 32 has exclusive use of an area of common property on the rooftop above Lot 32.[1] When the applicant became the owner of Lot 32 in March 1998 there was a structure on the roof, known as the 'Solarium'. In around 1998 the applicant built a smaller structure attached to the Solarium known as the 'Amenity Annex'. There are ongoing disputes about the approval, maintenance, and safety of these structures, and the rooftop generally.
[3] The body corporate applied for numerous orders relating to the Solarium and Amenity Annex.[2] The applicant also applied to invalidate various body corporate resolutions relating to the structures.[3] I made orders on both those matters on 11 November 2024, after this application was lodged. In addition, an order on an earlier adjudication application relating to the Amenity Annex is the subject of an appeal by the applicant in the Queensland Court of Appeal.[4]
[4] The current dispute relates to the body corporate's exercise of its statutory power of entry to the exclusive use area, works it undertook on the Solarium, and ongoing access to the area.
[5] On 20 August 2024 the body corporate gave the applicant a notice to enter the area. The notice included a 'structural performance assessment' from Structural Diagnostics Pty Ltd (SD) and drawings for bracing the Solarium. The applicant objected to the entry. Despite conflict about the entry, on 28 August contractors entered the rooftop and undertook bracing works. The applicant says the body corporate then declared the Solarium an 'exclusion zone', changed the locks without notice, and refused to provide him keys. When he changed the locks again to gain access, he found steel posts had been installed throughout the Solarium and damage to the interior fit out and rooftop slab. The applicant says the body corporate then changed the locks again and issued by-law contravention notices to him.
[6] The applicant says the body corporate failed to act reasonably in its decisions and actions, including the entry and declaration of the exclusion zone. He says the entry notice was invalid and the bracing has wrongfully damaged his property. He also says the body corporate did not comply with its spending limits and has not established that the works were required.
[7] The applicant seeks orders about the committee decisions and entry notice, wants the bracing removed, and wants an independent expert appointed, and wants to undertake an invasive inspection. I will consider the body corporate's actions and whether orders are warranted.

[16]

The current dispute concerns the lack of structural capacity in the Solarium, as evidenced by the SD report. It denies this is part of a larger or long-standing dispute or that the dispute about the lack of lateral capacity has been going on for years. 2. The bracing was based on the SD report that the Solarium lacks lateral capacity. 3. No contradictory evidence has been offered by the applicant that the Solarium can withstand an ultimate wind or earthquake event without bracing or that the bracing does not require an exclusion zone. The reports offered by the applicant's expert are not detailed structural assessments supported by verifiable calculations. 4. An entry notice gives awareness of scheduled work. The Act does not specify what information must be included in an entry notice. It denies there was insufficient detail. 5. Detail of the proposed work is not required especially when accompanied by a structural engineers' report. 6. It denies it has declared or was required to declare the Solarium as an exclusion zone. The designation of an exclusion zone was reasonably incidental to the bracing work recommended by SD. It is a mandatory requirement under section 298 of the Workplace Health and Safety Regulation 2011. 7. As the exclusion zone was mandatory, there was no purpose in mentioning it or its consequences in the entry notice. The exclusion zone is not work for the purposes of an entry notice. The wording of the entry notice was wide enough to encompass the designation of the area as an exclusion zone. 8. The omission of an express reference to the exclusion zone had no effect on the applicant's understanding that it was required. 9. It denies the bracing is intended as a permanent prohibition on access to the rooftop. It is a temporary make-safe measure. The bracing can be removed or modified if warranted, with the approval of a competent person such as a structural engineer. 10. It would be unjust and inequitable to order the removal of the bracing given the risks identified by SD and the safety for occupants, The Dorchester, and the public. 11. The committee resolution on 15 August predated the SD report because by that date the report was anticipated. The report took months of preparation. The committee were fully aware of the intended works. It disputes any improper or ulterior purpose. 12. The Solarium is not the respondent's property. The applicant has not been wrongfully or arbitrarily deprived of his property. 13. Consideration of the use and enjoyment of the Solarium was not required in the context of the temporary make-safe solution for which no alternative has been suggested. 14. The applicant is not the occupier of Lot 32. The occupiers of Lot 32 have no right to use the rooftop area and have never been given keys. The Solarium is not a separate dwelling and is not insured as a separate dwelling. 15. The entry notice was properly served on the applicant. It denies it could have served the unnamed man of whom it had no knowledge. It disputes the applicant put the respondent on notice of an occupier in the Solarium. 16. The person present in the Solarium on 28 August was not an occupier. He arrived the night before. It submits he was there to obstruct access for the bracing works. 17. It refutes the circumstances of entry. It denies entry was effected at 5am. Tradesmen entered the Solarium at approximately 9.20am having arrived at approximately 7.20am. 18. The lock was changed by the building manager because the site is hazardous. The applicant is not free to live in the exclusion zone as it is designated uninhabitable. The applicant did not make an express request for keys. Keys for the lock were made available to the applicant following the interim order. 19. It admits that spending limits were exceeded. It intends to refer this to owners at the annual general meeting. It has no doubt owners will approve the expenditure. 20. The spending limits are low and not designed to address a danger of this magnitude. It is not feasible or practical to call an EGM every time a cost outside the committee's approval authority is to be incurred. It refutes that the body corporate should have sought approval from owners before the work was carried out. 21. It denies any other approach was available to it when SD required immediate make-safe measures and opposed a delay beyond 7 days.

[21]

The applicant does not need order 6. He could have organised this testing some time ago. He needs the body corporate's approval. The committee would be happy to consider this if adequate detail of what is proposed is supplied. It anticipates that the applicant would be required to make good any such invasive testing, to its satisfaction.

[17] The submission includes a statutory declaration from the building manager regarding the events of 28 August 2024. He said he wanted to ensure there was enough time to arrange access before the contractors were due to arrive at 7.30am and so he knocked on the Solarium door at approximately 5am. He indicates he was accompanied by 2 security guards, that he had arranged to keep the peace if required. When there was no answer, he unlocked the door. He says when he opened the door, he saw a person who then came over to the door. He says he did not enter the Solarium. He then says that because the SD report said the braced structure would be an exclusion zone, he changed the Solarium lock while the bracing work was underway. He understood that he had to restrict access to the area.
[18] The submission also includes a statement from EDGE Consulting Engineers dated 17 October 2024 which said it undertook the structural design and inspection of the temporary bracing. It said the exclusion zone set up around the bracing was required to ensure the integrity of the bracing, to avoid vandalism and tampering of the bracing, and to ensure the safety of the public and users of the building. It recommended the exclusion zone be maintained by restricting access to all areas containing the temporary bracing.
[19] Ten submissions from owners (including the building manager and committee members) largely oppose the application. Comments in those submissions include concerns about how long this dispute has been ongoing, the impacts of the rooftop issues on the body corporate and other lots, the impact of the issues on insurance and property values, the costs of the dispute, and the conduct and failures of the applicant. Some submissions expressly oppose the removal of the bracing. One submitter notes that some goodwill from all parties will be required to solve the issues and that a piecemeal approach is not the best path forward.
[20] The applicant says the majority of the body corporate's submissions are discursive and repetitious. He most relevantly says in response:
1. It is difficult to reconcile the claim that the bracing is not permanent with the body corporate's determination to demolish the Solarium and the assertion that the bracing is only to be removed if the applicant proves it is not necessary.
2. In the months since the bracing work was undertaken, no information has been disclosed suggesting any steps have been taken towards restoring the Solarium to a habitable state, despite recommendations on how the Solarium could be made safe.
3. If the body corporate truly intended for the bracing to be temporary, it would have already taken steps towards remedying the deficiencies of the Solarium.
4. He disputes that regulation 298 of the Work Health and Safety Regulation 2017 is a basis to exclude persons from the exclusive use area. It only applies to a person with management or control of a workplace and only requires the workplace to be secured from unauthorised access. The Solarium is not a workplace.
5. Even if the respondent has validly declared an exclusion zone and the bracing is to remain, given the applicant's proprietary interest in the exclusive use area, the body corporate should be required to consider reasonable conditional access and whether the 'workplace' extends outside the Solarium itself.
6. He reiterates that the bracing works were carried out carelessly and without due care. He provides photographs of water damage caused by workers leaving windows and doors open, the unworkmanlike manner in which access holes were cut into the roof, and locations where curtains were ripped from the roof.
7. He infers that workers were either told the Solarium was to be demolished or that they should take no care for the manner in which they undertook works.
8. The respondent argues the SD report stands or the applicant must offer a more compelling report. This ignores that the SD report was the basis for the body corporate's actions. If the SD report is discredited, the respondent does not have a reasonable basis for acting. It carries the burden of proof in respect of the need for the works and cannot shift that to the applicant to prove they were not necessary.
9. He makes further comments on the SD report and its findings.
[21] The body corporate objected to the applicant's reply to the submissions, alleging it contained new issues and new material. In the interests of procedural fairness, it sought that the new issues and new material be excluded or that it be given time to make further submissions on it. The body corporate then detailed assertions in the reply that it alleged were new issues. I do not agree that the applicant's reply raised substantive new issues for determination; rather I consider it merely responded to elements of the body corporate's submission. Given the history and circumstances of this dispute, I do not consider there is justification to enable the body corporate to make a third submission in response to the application.

[27]

[34] A fundamental element of the exercise of the right of entry is that it is for work (or an inspection to ascertain the need for work) the body corporate is required or authorised to undertake. Where entry is sought to conduct work, the body corporate would normally need to have passed a valid resolution resolving to undertake that work. Alternatively, the right may arise if the body corporate has received an order of an adjudicator, court, or tribunal, or another relevant authority (such as a council compliance notice) requiring it to undertake the work.
[35] The body corporate installed bracing as a result of the SD report. SD recommended temporary bracing (amongst other short-term make-safe measures) be implemented 'without delay'. Acting reasonably, including if it did not have contrary evidence or conflicting advice, it was incumbent on the body corporate to heed this recommendation. But the body corporate was not required or authorised to install the bracing by virtue of SD's recommendation. SD has no legal authority make decisions for the body corporate. There is no suggestion that SD has any regulatory authority to compel action. So, the body corporate was obliged to make its own decision whether to act on the SD advice and when and how to do so.
[36] The body corporate was bound by the legislative restrictions on its decision-making. I accept the body corporate could (at least potentially) decide to install the bracing, having regard to its statutory obligation to maintain the structural elements of the Solarium in a structurally sound condition.[17] But there is a question as to whether it has validly decided to do so.
[37] The committee purported to ratify, at its 15 August meeting, several items of expenditure purportedly approved outside of the meeting. Most notably was an item listed simply as "Unit 32 Solarium Bracing - Urban Reach - $53,174 inc GST". The meeting minutes do not indicate the detail of the earlier approval that was purportedly ratified or that advice of the purported decision was circulated as required to owners.[18] No evidence of the ratified decisions, or the quotes on which such decisions were based, have been provided by the parties.
[38] Usually, a committee can only incur spending within the committee spending limit or if the spending has been approved at a general meeting.[19] Where spending above the major spending limit is considered at a general meeting, the meeting notice should include at least 2 quotes for the work and the quotes decided as a group of same issue motions.[20] If for exceptional reasons it is not practical to obtain 2 quotes, then one quote must be circulated.
[39] Unless the body corporate has passed an ordinary resolution to change the relevant limits (and there is no suggestion that it has), the committee spending limit at The Dorchester will be $6,600,[21] and the major spending limit will be $10,000.[22]
[40] The cost of the bracing work significantly exceeded both the committee spending limit and the major spending limit.[23] As such, the committee had no power to approve the bracing works. Prima facie, it was required to obtain 2 quotes for the work and put them to a general meeting.
[41] The body corporate variously argues that the situation was an emergency, that the spending limits are too low, and that it had no alternative but to proceed with the urgent work.
[42] Having regard to the SD report, the body corporate was faced with a serious situation and arguably needed to act promptly. The body corporate says it is not feasible or practical to call a general meeting whenever a cost outside the committee's authority is to be incurred. However, the body corporate cannot ignore the legislation because it is not convenient or even because a situation is urgent. Moreover, there was a clear alternative for the body corporate if this situation constituted a genuine emergency.
[43] The legislation provides for adjudicators to make an order authorising a committee to incur spending above its spending limit if satisfied the spending is required to meet an emergency.[24] Where applications for an order are made in emergency circumstances, the Commissioner may refer them directly to an adjudicator without giving the usual notice of the application or inviting submissions.[25] Orders on applications seeking approval of spending in an emergency are frequently made within days, if supported by adequate evidence including quotes. The capacity for an adjudicator to authorise spending in an emergency deals with exactly the circumstances claimed by the body corporate, but requires a committee to demonstrate a genuine emergency and not just a preference or an inconvenience.
[44] I assume the body corporate was aware of the capacity for orders to be made in an emergency given that it sought orders (albeit ultimately unsubstantiated) on the basis of claimed emergency circumstances in 2023.
[45] It is not necessary for present purposes to determine whether the circumstances in August 2024 constituted a genuine emergency that would have warranted an order to authorise spending on the bracing, if such an application had been made at the time. However, I will make some observations on the matter.
[46] The body corporate denies that issues with the structural capacity of the Solarium had been going on for years. But it also argues the applicant should have been on notice of the issue since at least March 2023. It also says the SD report had been in preparation for many months and it was aware of the need for bracing before it received the report. The 15 August committee minutes indicate that the committee had already approved spending for the bracing work at some unspecified earlier date, and it clearly had obtained a quote before doing so. As such, I have some difficulty with any suggestion that the committee did not have earlier notice of the bracing proposal and could not have sought proper approval for the work.
[47] SD advised in its report that bracing should occur without delay and then said in an email that it was imperative that corrective action was taken 'in the short-term'. But it further said that was to be interpreted as 'immediately and as soon as practicable, given the requirements to mobilise a suitable contractor'. That email refers to the work occurring 'as early as 7 days'. But the body corporate has not substantiated its claim that SD said the work could not wait more than 7 days. While SD was naturally concerned with the practicalities of organising a contractor able to undertake the work, there is no indication that it had regard to (or needed to consider) the practicalities for the body corporate in approving the work and the expenditure.
[48] Regardless of the urgency of the work, the committee simply had no power to approve the work in the absence of either the order of an adjudicator or a general meeting resolution. Accordingly, the bracing was not work that, at the time, the body corporate was authorised to undertake. On that basis, the entry notice for the bracing work was fundamentally flawed.
[49] The body corporate claims it will put the matter to owners. But has provided no evidence of having done so to date, despite the passage of over 6 months after the spending incurred. If the body corporate seeks to pass a general meeting resolution to ratify the committee decision and the expenditure, it should have regard to the requirements identified in relevant case law about effective ratification of defective committee decisions.[26]

[29]

[52] The entry notice was emailed to applicant's solicitors at 4.42pm on 20 August. Although it appears the only intention was to enter the exclusive use area on the rooftop, the committee resolution only referred to entry to Lot 32 and the entry notice states that it related to Lot 32 and the Solarium and Amenity Annex located on the exclusive use area.
[53] As explained, to the extent that the body corporate was seeking to enter an exclusive use area, it needed to give notice to the owner or to the occupier of the exclusive use area if the owner does not occupy that area. Any entry to the lot needed notice to the occupier.
[54] The applicant says he does not occupy either Lot 32 or the exclusive use area, but other persons do. He says the body corporate was aware that someone else was in occupation of the rooftop, but it did not serve the entry notice on the occupiers despite that. The body corporate appears to acknowledge the applicant does not occupy the rooftop area but disputes knowing who was in occupation of it. It says it has always given entry notices to the applicant and questions the occupation arrangements for Lot 32 and the exclusive use area. It says the Lot 32 tenants have no right of access to the rooftop.
[55] The Act defines an 'occupier' of a lot as the resident owner or resident lessee of the lot, or someone else who lives on the lot, or a person who occupies the lot for business purposes or works on the lot in carrying on a business from the lot.[27] The definition is not limited to person lawfully occupying a lot. In the case of a residential lot, an occupier is not limited to persons with a lease; all that is required is that the person is residing in the lot. The Act does not separately define an occupier of common property.
[56] Usually the occupier of the lot will be the occupier of the exclusive use area. The exclusive right to use the rooftop area attaches to the occupier of Lot 32 and it could be argued that the exclusive use area cannot be occupied separately (whether by the lot owner or some other person).[28] However, the distinction in section 163 for giving notice of entry to a lot and notice of entry to an exclusive use area appears to recognise that may not always be the case. I consider that a person who is in fact occupying the common property will be the occupier referred to in section 163(2)(b)(ii)(B) regardless of any dispute about their occupation.
[57] As the entry notice said it related to Lot 32 as well as the exclusive use area, the entry notice should have been given to the tenants of Lot 32 that the body corporate was clearly aware of.
[58] As to the exclusive use area, the applicant provides no clear evidence that he had notified the body corporate of who was occupying the rooftop. However, given the history of dispute about the rooftop, I find it implausible that the body corporate was not aware that the exclusive use area was being used by someone other than the applicant or the occupiers of Lot 32.
[59] Particularly given the significance of the proposed works and entry, I consider it was incumbent on the body corporate, acting reasonably, to make all reasonable attempts to ensure any occupier of the rooftop (regardless of the legitimacy of their occupation) was on notice of it. If the body corporate was uncertain, it could have given the entry notice to the occupiers of Lot 32 (being, prima facie, the persons entitled to occupy the rooftop), delivered an entry notice addressed to 'the occupier' to the Solarium, and asked the applicant to deliver the entry notice to any occupier. However, there is no indication that the body corporate attempted anything other than notifying the applicant via his solicitor.

[36]

[78] I note that SD does not say explicitly say that access to the entire rooftop area, including areas other than the Solarium, should be excluded. Also, while the SD report indicates the Solarium should be designated as unhabitable, it does not say access to the area (including by the owner and any occupier) must be completely prohibited.
[79] I find the body corporate's submissions regarding the designation of the exclusion zone to be confusing. It appears to imply the exclusion zone automatically came into being by virtue of the installation of the bracing or the SD recommendation. The body corporate may have been told by appropriately qualified experts that the area should be an exclusion zone. But it has not evidenced that these experts have the statutory authority to mandate an exclusion zone.
[80] Also, while it is not my role to interpret or apply workplace health and safety legislation, it is not immediately clear why the cited regulation is relevant to the current situation. The regulation says a person conducting a business or undertaking must manage risks associated with the carrying out of construction work.[29] It then says a person with management or control of a workplace at which construction work is carried out must ensure, as far is reasonably practicable, that the workplace is secured from unauthorised access.[30] But once the bracing was installed, it does not appear that any construction work is continuing. Moreover, the regulation says a body corporate that is responsible for any common area used only for residential purposes is not a person conducting a business or undertaking.[31] It is also not clear why access by a person with an inherent legal right to the use and enjoyment of the exclusive use area would amount to unauthorised access.
[81] It may well be that the Solarium is not safely habitable while the bracing is in place and that an exclusion zone is appropriate. But the question is who can determine and enforce that.
[82] There is no suggestion the body corporate has a statutory order on this point. And neither the experts providing advice to the body corporate, nor its legal advisor, nor any individual committee member, are decision-makers for the body corporate.[32] I have no evidence that the body corporate or its committee have resolved that the Solarium is an exclusion zone. I similarly have no evidence of any body corporate decision to change the locks to the exclusive use area (or to incur the associated expenditure). But it is clear the committee has purported to implement or enforce an exclusion zone, including by changing the locks twice and objecting to the applicant accessing the area without its approval.
[83] The body corporate has a statutory obligation to administer the common property and body corporate assets for the benefit of all owners. But its obligations are limited where there has been a grant of exclusive use over the common property. If the body corporate is on notice that part of the common property is unsafe and uninhabitable, its obligations could conceivably extend to seeking to restricting access to that common property. But I consider it would need to make an explicit decision to that effect and it must act reasonably in doing so. The body corporate cannot disregard the rights and interests of owners and occupiers even based on advice from qualified professionals. The fact that the applicant was not occupying the Solarium at the time of the works does not mean he does not have a legal interest in the area.
[84] Also, if the body corporate could validly make such decisions at all, any decision purporting to indefinitely prevent an owner or their invitees accessing or using an exclusive use area allocated to their lot would change the rights of that owner. That would be a restricted issue for the committee and require a general meeting resolution.[33]
[85] Where the area in question is allocated for the exclusive use of Lot 32, I consider that at least in the first instance it is the owner or occupiers of Lot 32 who have the right and responsibility for controlling access to that area. As such, I consider they are the ones responsible for considering and acting on the expert advice. As such, the applicant should have regard to the recommendation that the Solarium is uninhabitable while the temporary bracing is in place. He should consider the potential impact from any activities undertaken in the Solarium and any potential liability arising from any access to or use of the Solarium.
[86] The body corporate says it gave the applicant the keys to the Solarium following the interim order. Nothing in the submissions suggests there has been any difficulty regarding the maintenance of an exclusion zone or the safety and integrity of the bracing since then. Accordingly, for as long as the bracing remains on the Solarium, I see no reason why the applicant and any occupiers should not be entitled to retain access. I do not consider the body corporate should be entitled to restrict access to the exclusive use area unless it has a specific order or statutory notice requiring it to do so.
[87] I also consider it objectionable of the body corporate to pursue a by-law breach against the applicant for seeking to reinstate access to his exclusive use area that the body corporate had no apparent authority to deny and remove locks that it had no authority to install.

[38]

[88] The applicant argues the bracing works were not required. He says the body corporate relied on the August 2024 SD report, but there is nothing in that report that was not in previous reports. He disputes findings in the SD report and says the underlying assumptions are incorrect. The applicant refers to his own reports from Booth Engineers & Associates in August 2023 and January 2024, which he says the body corporate has disregarded. He says the body corporate has not discharged its onus of demonstrating the bracing was necessary.
[89] The applicant also says the bracing work was not performed with due care and skill and went beyond what was reasonably necessary. He says steel posts were installed throughout the Solarium which obstruct and prevent its use. He then says there has been damage to the interior fit out of the Solarium. He further says at least 3 holes have been drilled through the roof slab which have not been sealed, which means the roof is no longer waterproof and needs urgent repair. He says the body corporate has not sought to remedy these things.
[90] The applicant seeks an order that the body corporate remove the bracing and make good the damage to his property, at its cost, pursuant to section 281(1)(a) of the Act.
[91] As outlined, I am satisfied that to date the body corporate has not validly approved the bracing work. Unless it does so, I consider it should remove the currently unapproved bracing.
[92] However, that does not mean the body corporate could not ratify, at a general meeting, the committee's ultra vires decision to install the bracing. I accept the body corporate could potentially resolve to install bracing (at its cost), pursuant to its statutory obligation to maintain the structural elements of the Solarium in a structurally sound condition.[34] The body corporate must act reasonably in making such a decision. If the body corporate acts in reliance on cogent advice from an appropriately qualified expert, it may be difficult to argue that the decision was unreasonable even if there are different professional opinions.
[93] I consider that it would be for the applicant, if he sought to challenge the validity of any general meeting decision to ratify committee decision and approve the bracing work, to establish (if it was contended) that the decision was unreasonable because the work or the extent of the work was not necessary. To date, the applicant has not provided an opinion from an expert that the bracing is not required or will not materially assist in in managing any risks posed by the Solarium until the substantive issues with the structure can be properly resolved.
[94] I would also stress that if the body corporate resolves to ratify the decision to install the bracing, that does not mean it can leave the bracing there indefinitely. The body corporate has clearly stated (and the SD report stated) that the bracing is temporary. The bracing does not obviate the need for the parties to rectify the structural issues that gave rise to the installation of the bracing. The parties must act promptly in addressing the substantive issues.
[95] I acknowledge the impact of the bracing on the inherent rights of the owner and occupiers of Lot 32 in regard to the exclusive use area. However, the best way of enabling the bracing to be removed (if its installation is validly approved by the body corporate) will be to work constructively with the body corporate on resolving the substantive issue with the Solarium.
[96] Just as it must be a decision of the body corporate (and not SD) to install the bracing, it will be a decision of the body corporate, and not SD or any other expert, when to remove the bracing. The body corporate should have regard to professional advice when making such a decision (except if the bracing must be removed, as a consequence of this order, because its installation is not validly authorised by the body corporate). But it cannot purport to delegate its responsibility for making decisions about the common property to any other person.[35]
[97] The applicant has not provided evidence from an appropriately qualified person as to the cause or effect of the claimed damage to the Solarium or what is required to rectify it. The applicant also has not substantiated its claims that the bracing work was not undertaken with due care or skill. However, it is evident from the photographs provided that the installation of steel posts in the Solarium structure has inherently and necessarily damaged the structure. The body corporate does not dispute that holes were drilled in the roof slab.
[98] Accordingly, I accept that when the temporary bracing is removed, whenever that occurs, the body corporate will be responsible for the cost of removing the bracing as well as the consequences of the bracing work. That will include rectifying all damage to the rooftop and the Solarium caused by the installation of the bracing. I will make an order to that effect.

[39]

[99] The applicant wants an independent qualified structural engineer appointed to investigate and report on the structural adequacy of the rooftop structures. He proposes the expert be given all reports to date and given access to the building with a representative present from each side, with the parties and adjudicator formulating questions for the expert. He proposes that the expert's costs be shared equally by the parties. The applicant notes the numerous competing expert reports. He says the adjudicator would be assisted by independent opinions.
[100] The applicant nominated a panel of 2 independent structural engineering consultant firms. He indicated he would provide a schedule of rates for these firms but did not then do so. The applicant asserts that if the body corporate fails to agree on the joint appointment of an independent expert, its refusal can be treated as a relevant discretionary consideration favouring the grant of final relief to the applicant. The body corporate opposes the order.
[101] There have been many expert reports obtained regarding various issues with the rooftop. If an independent expert could synthesise the expert evidence to date and advise on the current condition of the Solarium and what work is required in respect of it, that may assist the parties. Accordingly, it may be desirable if the parties could agree to engage an independent expert and agree on who would be engaged and who would meet the cost.
[102] But the applicant has not established the basis for an order requiring an expert to be appointed, despite that issue being flagged in the reasons for the interim order. The legislation gives adjudicators broad powers to investigate an application,[36] which could include inviting or requiring parties to provide an expert report. However, the applicant has not demonstrated that an expert report is required to determine the issues in dispute or the orders sought in this application. Moreover, the applicant does not establish the legal basis to require the parties to share the likely significant costs of an expert.
[103] Also, the order sought seeks the engagement of an engineer to investigate and report on the structural adequacy of the Solarium and the Amenity Annex. However, pursuant to previous orders, the Amenity Annex is not currently an approved addition to the rooftop and the body corporate is entitled to insist on its removal. Accordingly, the structural adequacy of the Amenity Annex appears to be immaterial at this time.
[104] Furthermore, if the body corporate was to incur expenditure on the engagement of an independent expert, it would need to approve that.[37] The applicant has not evidenced that he has submitted a motion to a committee or general meeting proposing the engagement of an expert and seeking approval for the body corporate's contribution to the cost.
[105] In the circumstances, the applicant has not satisfied me the 5th order is currently warranted.

[40]

[106] In his amended application, the applicant seeks authority to carry out (at his cost) an invasive inspection of the Solarium slab by drilling a small penetration (described as the size of a thick pen) in the slab. The proposal was outlined by Booth Engineers on 1 October 2024.
[107] The applicant says there are rival positions as to the current structural condition of the rooftop structures and what is required. He says the invasive inspection is required for both parties to determine with objective certainty the existence of a mechanical connection between the Solarium slab and the sheer core wall. He says Booth Engineers has already provided advice on the physical connections between the slab and the wall and if the body corporate continues to deny the existence of a mechanical connection, an invasive inspection is necessary to arrive at a substantiated and concluded opinion on the issue.
[108] The body corporate's response is somewhat confusing, indicating that the applicant could have done this without an order but also saying body corporate approval is required. However, it indicates that it would consider a request for approval if asked.
[109] It may be desirable for the applicant to undertake these further investigations. However, that is not sufficient justification for an adjudicator to intervene to make an order. The applicant has not explained why an order is necessary or the legal basis for the order. The applicant also gives no information about the cost, impact or remediation of the proposed inspection.
[110] I assume the applicant seeks an order because he accepts he has no authority to drill into the slab. The body corporate could authorise such an alteration to common property, and a committee resolution may be sufficient to do so.[38] The applicant does not evidence that he has specifically asked for any body corporate approval that would be required or that the body corporate has unreasonably failed to decide or approve the request.
[111] In that circumstance, the applicant has not identified that there is a dispute between the parties on this point that warrants the intervention of an adjudicator. I decline to make the 6th order.

[41]

[112] While the body corporate has genuine concerns about the rooftop and its structures, I do not consider that justifies its persistent disregard of the legislation. I am satisfied on the evidence that the body corporate did not validly authorise the bracing that was installed on the Solarium. The persons who entered the exclusive use rooftop area to undertake and facilitate that work were not validly authorised to do so. The contents and exercise of the notice of entry was defective in so many respects that the committee resolution purporting to authorise that notice cannot be sustained as a valid decision and the notice itself was invalid.
[113] Where the installation of the bracing was not validly authorised by the body corporate it should be removed. However, the body corporate could potentially retrospectively resolve to install the bracing and ratify the purported committee approval of the bracing works. If it has already done so, or does in future, the bracing could stay unless that approval or ratification is invalidated. Accordingly, to enable give the body corporate time to consider approving the bracing, if that has not already occurred, I will give it 3 months to remove the bracing.
[114] Where the body corporate has not expressly made a decision or declaration about an exclusion zone, there is nothing specific in that regard to invalidate. However, as the body corporate has purported to enforce an exclusion zone, I consider it appropriate to declare that the body corporate cannot seek to restrict access to the exclusive use area by the owner and occupiers of Lot 32 without express authority. However, the right of access to the rooftop by the owner and occupiers of Lot 32 does not entitle them to remove, modify, interfere with, or otherwise deal with the bracing.
[115] When the temporary bracing is removed (whether within 3 months of this order or at some later time if its installation is approved), it should be removed by persons properly authorised by the body corporate. Moreover, for as long as the rooftop remains an exclusive use area allocated to Lot 32, the body corporate must give a valid notice whenever it seeks to exercise a right of entry to the rooftop for any purpose, including to inspect or remove the bracing. From innumerable comments in the body corporate's submissions, it seems the body corporate does not adequately understand the meaning or effect of the grant of exclusive use to Lot 32 or the constraints on its rights to access the exclusive use area.
[116] For the reasons outlined I am not satisfied the applicant has substantiated the basis for orders requiring the appointment of an independent expert or authorising an invasive inspection of the Solarium slab. Those matters can be pursued between the parties if required.
[117] I have some concern that the submitted material does not indicate either party has yet pursued any active steps to rectify the substantive issues with the rooftop, despite the information outlined about their respective obligations in the orders made in November 2024. I encourage both parties to make constructive efforts to meet their statutory obligations and rectify the rooftop promptly. Continuing to debate matters through correspondence, legal proceedings, and expert reports does not appear to be achieving much progress. I note that most work that might need to be taken will likely require a general meeting resolution. Either party can submit relevant motions (with appropriate quotes) for such works to be approved.
[118] Finally, I encouraged the body corporate to circulate the reasons for the 2 orders I made in November 2024 to all owners so they could be better informed about the issues relating to the rooftop, particularly before the body corporate considers any further action. Given owner comments in the submissions on this application, it seems that may not have occurred. While other owners are understandably concerned with the conduct of the applicant in regard to the rooftop, those owners do not appear to be aware of or acknowledge the failures of the body corporate to comply with its own obligations. I again encourage the body corporate to circulate the reasons for this decision along with the previous decisions.

The Dorchester [2025] QBCCMCmr 108 (28 March 2025)

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Judgment (75 paragraphs)

The Dorchester [2025] QBCCMCmr 108 (28 March 2025)

Legislation Cited (4)