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

1. That the Body Corporate for the Edge on Margate Beach CTS 33790 ('respondent body corporate') must not take any further steps to implement the resolutions under motions 2, 3(a), 4 and 5(c) of extraordinary general meeting dated 17 February 2025, until further or final order.
2. For the avoidance of doubt, Order 1 above includes but is not limited to any actions by the respondent body corporate with respect to raising a special levy or funds to implement the said motions.

• [1] This dispute is primarily about a body corporate decision made by ordinary resolution at an extraordinary general meeting ('EGM') to approve a quotation for approximately $2.5 million for works to the common property. The body corporate claims that the works constitute 'maintenance' of common property, whilst the applicant claims it is an 'improvement' to the same. The applicant also provides multiple grounds alleging that the body corporate acted unreasonably in making and implementing this decision. If the said body corporate decision is indeed valid and lawful, nearly each lot owner at the scheme will be levied approximately $120,000.00.
• [2] This decision concerns the interim relief sought by the applicant, as explained in the overview below. The final relief sought for the dispute shall be determined in due course.

• [3] The scheme comprises 21 lots and common property, and is regulated under the Accommodation Module.
• [4] The applicant is the owner of Lots 16 and 18, and the respondent is the body corporate.
• [5] The scheme building was constructed approximately 21 years ago. Over the years, there have been frequent water ingress issues which were addressed as and when they arose. However, in recent years the respondent body corporate had decided to commission various engineers to report on building flaws that result in water ingress and to report on consequential water damage to the building. It did so with a view to rectifying the identified issues and damaged areas in due course.
• [6] Amidst these engineering inspections, the applicant also engaged a builder and engineer to inspect and report on the water ingress sources and damage to his lot.
• [7] Below is a summary of the main building and engineering reports obtained by both parties:[1]
  1. JHA Report: On 17 March 2022 the respondent body corporate commissioned an engineer to report on water ingress issues and construction faults at the scheme. This report comprehensively set out the areas of the scheme building requiring maintenance and remediation, such as missing and degraded roof sheets, rusted surfaces and fixings, compromised waterproofing membranes, efflorescent building surfaces, cracked internal and external walls and ceilings, delaminated and drummy tiles, damaged skirtings, high moisture in walls throughout the building (particularly to window surrounds), degraded sealant compounds to flashings and wall joints, pooling water on parapet cappings, wood rot, concrete cancer, ceiling stalactites and calcifications;
  2. Matai Report: The applicant seemingly commissioned a report on an unknown date regarding the water ingress issues to one of his lots, Lot 16. This report found severe structural damage to the steel walls behind the plasterboard, and damage to the plasterboard linings itself. It recommended engaging a structural engineer for further advice; installation of new head flashing over the window; sealing of cracks in the cement sheeting etc.;
  3. PEER Report: On 13 February 2024 the applicant commissioned an engineer to report on the structural adequacy of one of his lots, Lot 16. This report noted water ingress from the overhanging roof eave above the ceiling; that the steel framing ceiling box near the external window was damaged; and that a portion of a steel column, and a steel bracket were severely rusted. It therefore recommended the replacement of the steel column and ceiling box in Lot 16; and the investigation of other lots for similar issues;
  4. Donnan Report: On 29 February 2024, the respondent body corporate engaged an engineer to report on the bay window design in response to a request for information by it's insurer. This report briefly recommended trialling a proposed solution for one lot, and thereafter to revise the scope of works based on the trial experience, prior to carrying out the works scheme-wide;
  5. Morgan Report: On 6 December 2024, the respondent body corporate engaged an engineer to report on the corrosion of steel beams at the scheme with respect to multiple lots, the gymnasium, the exterior of the building and the roof. This report recommended the replacement of awning roof sheeting; installation of new flashing; removal of corrosion from steel elements and painting with a corrosion inhibiting paint system; cosmetic repairs to the internal and external linings of the scheme building; removal of calcium deposits on balcony slabs; resealing the grout; waterproofing the garden beds and lower-level balconies; installation of extra outlet pipes with respect to the garden beds.
• [8] On 2 April 2024 the respondent body corporate (through a project manager) issued a scope of works with an invitation to tender for three contracts as follows:
  1. Principal Contract A: For the removal and replacement of all windows at the scheme and 'remedial building rectification to the facilitate the same';
  2. Principal Contract B: For the removal and replacement of low balcony doors including balcony re-waterproofing and tiling to facilitate the same; and
  3. Supplementary 1: For the decommissioning and recommissioning of air conditioners (associated with Principal Contract B).
• [9] Subsequently, the respondent body corporate having received offers, proposed two to its members at an EGM held on 17 February 2025. One such proposal was made by Allied Commercial Pty Ltd ('Allied Commercial') for a sum exceeding $2 million, and the other was by BRS Contracting Pty Ltd for a sum exceeding $4 million. The respondent body corporate also decided that it would be prudent to seek to engage a project manager to oversee the works due to its complexity, for a sum of $39,500.00[2].
• [10] In these circumstances, the committee tabled several motions at the EGM to seek authorisation to proceed with the works, its project management, and its funding. An extract of the meeting minutes relevant to these motions are as follows:

That remediation works as detailed in the Scope of Work (Scope of Works - Edge on Margate.pdf) be endorsed to be undertaken to ensure the structural integrity of the building and address current water ingress issues.

That the quotation from Allied Commercial Pty Ltd (QBCC: 152 530 59) (Allied Edge on Margate Tender.pdf) for the completion of the remediation works be accepted

1. That the Body Corporate enter into an execute an agreement with Allied Commercial Pty Ltd for the total sum of $2,483,899.00 (excluding GST).
2. That the Body Corporate's seal be affixed to the loan contract in the presence of any two members of the executive Committee.

That the quotation from BRS Contracting Pty Ltd (QBCC: 1229384) (BRS Edge on Margate Tender.pdf) for the completion of the remediation works be accepted

1. That the Body Corporate enter into and execute an agreement with BRS Contracting Pty Ltd for the total sum of $4,478,980.00 (excluding GST).
2. That the Body Corporate's seal be affixed to the loan contract in the presence of any two members of the executive Committee.

Of the qualifying motions, Motion A received the most 'Yes"[sic] votes and is therefore the decision of the body corporate.

Motion 4. Appointment of Remediation Project Manager

That the Body Corporate enter into and execute an agreement appointing Domak Consulting Pty Ltd ACN 155 676 010 as trustee for The Dolbel Family Trust T/A Integrity Paint and Coatings Inspections and Project Management to perform the Duties of Project Manager (Integrity Final Project Management Agreement - Windows.pdf) pursuant to the operation of the remediation works.

1. That the Body Corporate acknowledge the quotation fee of $39,500.00 (excluding GST) to cover the functions from Contractor appointment and ongoing supervision and control of the project through to practical completion.
2. That two members of the Executive Committee be authorised to sign the Agreement.

That the finance for the cost of the project be arranged through a combination of Strata Loan with Lannock Capital 2 Pty Ltd and Owner lump sum contribution to fund working capital requirements for the remediation works

(a) That the Body Corporate enter into and execute a loan contract with Lannock Capital 2 Pty Limited (ACN 153 391 283) to fund working capital requirements for the remediation works for a maximum amount of credit of $1,250,000.00 or such increased amount as approved by a subsequent General Meeting.

(b) That the Body Corporate issue a one-off Sinking Fund Special Levy to each owner as per the attached sheet (Addendum 2 - Finance Hybrid), to a total combined maximum value of $1,250,000.00 (including GST), or such increased amount as approved by a subsequent General Meeting.

(c) The Body Corporate Committee has the authority to approve the raising of additional levies to ensure the Owners Corporation can perform its obligation in relation to each advance under the Loan Contract.

That the Finance for the entire cost of the project be funded through a Strata Loan with Lannock Capital 2 Pty Ltd

1. That the Body Corporate enter into and execute a loan contract with Lannock Capital 2 Pty Limited (ACN 153 391 283) to fund the Body Corporate's obligations to meet working capital requirements, fund remediation works and to comply with its obligations under law (Loan Contract).
2. That the Body Corporate's seal be affixed to the loan contract in the presence of any two members of the Executive Committee.
3. That the Body Corporate acknowledges the following things:
4. the maximum amount of credit available under the Loan Contract is $2,500,000.00 or such increased amount as approved by a subsequent GeneralMeeting[sic].
5. The Body Corporate Committee has the authority to approve the raising of additional levies to ensure the Owners Corporation can perform its obligations in relation to each advance under the Loan Contract.
6. a Drawdown Instruction may be signed by any two members of the Executive Committee.

That the finance for entire cost of the project be raised wholly through a single Owner lump sum contribution (Special Levy) to fund working capital requirements for the remediation works

1. That the Body Corporate issue a one-off Sinking Fund Special Levy to each owner as per the attached sheet (Addendum 4 - Finance Lump Sum) to fund working capital requirements for the remediation works to a total maximum value of $2,500,000.00 (including GST).
2. If additional funds are required, the Body Corporate will seek approval through an EGM for owners to determine the source and amount of funds.

Of the qualifying motions, Motion C received the most 'Yes"[sic] votes and is therefore the decision of the body corporate.

• [11] Subsequently on 5 March 2025, the respondent body corporate issued notice of its intention to raise a special levy to meet the cost of the works, which it stated was payable by 5 May 2025. It added that failure to pay the special contribution by the said date may be met with legal action for recovery. Thereafter on 10 March 2025, it issued a formal levy notice to the applicant for a special contribution of $117,924.53 with respect to Lot 16, and $129,716.98 with respect to Lot 18.[3]
• [12] The applicant disputes resolutions under motions 2, 3(a), 4 and 5(c) above ('Disputed Motions'). Accordingly, he seeks the following final orders (to be determined at a later stage):
  1. That resolutions under the Disputed Motions at EGM dated 17 February 2025 be invalidated; and
  2. That all special levy notices issued to lot owners pursuant to motion 5(c) at the said EGM be rescinded, and any funds paid by any lot owners in such regard be refunded.
• [13] The applicant seeks the following interim orders (that is the subject of this decision):
  1. That the respondent body corporate must not take any further steps to implement the Disputed Motions until the dispute is finally determined; and
  2. That the due date for special levy notices issued to lot owners pursuant to motion 5(c) of the said EGM be extended until at least 30 days after the dispute is finally determined or any other suitable time period the adjudicator deems fit.

• [14] 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')[4] or about the exercise of rights or powers or performance of duties under the Act or CMS.[5] Further, an order may require a person to act, or prohibit a person from acting in a manner stated.[6] An order may also contain ancillary and consequential provisions the adjudicator considers necessary or appropriate. [7]
• [15] 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).

• [16] This interim order application was lodged on 27 March 2025.
• [17] Subsequently, the Commissioner through her delegate sought further information in accordance with section 240 of the Act.
• [18] On 31 March 2025, the applicant provided the information so sought, immediately pursuant to which the dispute was referred to department adjudication by the Commissioner under section 247 of the Act.
• [19] The Commissioner may refer a matter for adjudication of an interim order application without the respondent and affected persons having an opportunity to make submissions on it. Furthermore, there is no statutory requirement for the department adjudicator to obtain comment from the respondent and any affected persons before such an application is determined.
• [20] On 31 March 2025, I through my delegate provided the committee of the respondent body corporate with an opportunity to make a submission provided it furnished a written undertaking essentially to refrain from taking the actions the applicant is seeking to prevent by way of the interim orders sought in this application, until I decide the same.
• [21] On the same day, the respondent body corporate furnished this undertaking. Accordingly, on the same day, I invited it to make a submission by 14 April 2025.
• [22] Subsequently, the respondent body corporate made a submission.
• [23] I have investigated the dispute in accordance with section 271 of the Act by reviewing the application for interim orders and the submission made.

• [24] An adjudicator may make an interim order only if satisfied it is necessary due to the nature or urgency of the circumstances.[8] Accordingly, an applicant must satisfy the adjudicator that serious or irreparable damage would be caused without the interim order.
• [25] An interim order 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.[9]
• [26] 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.
• [27] In deciding whether an interim order is warranted, adjudicators often adopt the approach taken by courts to considering interlocutory injunction applications.[10] 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.
• [28] 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.[11]
• [29] 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.
• [30] Ordinarily, an interim injunction should do no more than maintain the status quo for a limited time or until the determination of the main application, usually in the form of a restraining injunction. An interim order in the form of a mandatory injunction, i.e., an order requiring a respondent to do something (as opposed to a restraint) which is not needed to preserve an existing interest of the applicant and which imposes a non-compensable burden or loss on the respondent is a special case. It is rarely made by courts and calls for particularly careful consideration, with the effect that the balance of convenience is shifted in the respondent's favour (all other things being equal).[12]

• [31] The applicant states that the respondent body corporate has indicated an intent to imminently enter into contract with Allied Commercial and the project manager, adding that lot owners would consequently have to pay a significant non-refundable deposit.
• [32] The applicant states that in the interim (until the dispute is finally determined) the committee of the respondent body corporate may carry out any necessary maintenance work on an 'as needed' basis.
• [33] He provides various reasons as to why the decisions made under the Disputed Motions are unreasonable, as follows:
  1. False and misleading statements: The applicant states that the respondent body corporate communicated false and misleading information to lot owners to influence their decision making. He states that it falsely stated that the existing windows had not been stamped; were constructed overseas; and are not compliant with Australian Standards. He states that in fact the windows were designed by architects and engineers to a specified wind rating, and built in Brisbane. He adds that the windows are indeed stamped and were approved by local council at the time. The applicant states that the respondent body corporate also conveyed to its members that the developer of the scheme continues to own a lot within the scheme, and therefore has a seat at body corporate meetings. The applicant states that this is also false and misleading;
  2. Tackling the main cause of the water ingress: The applicant states that multiple builder and engineer reports have not identified the window construction as a significant cause of water ingress. He states that instead these reports have identified the causes as being water movement through block work control and movement joints, compromised roof top membranes and the lack of window subsill dams in certain windows at the time of installation. The applicant states that the scheme building has different types of windows, including bay windows, corner windows, sliding flat windows, non-opening flat windows. He adds that the water ingress issues only pertain to less than 50 percent of the windows at the scheme. He states that there is no evidence that the windows themselves are deficient. He however states that there is evidence that the initial installation of some windows is deficient. He is of the view that this can easily be repaired. He states that the replacement of the majority of the windows which are 'water-tight' constitute an 'improvement' to common property and not 'maintenance';
  3. Like for like replacement: The applicant states that the works do not involve like for like replacement of the existing deteriorated windows, which he says further demonstrates that the works constitute an improvement as opposed to maintenance;
  4. Unaffected lots: The applicant states that certain lots are not covered under the works but the owners of these lots are nevertheless required to contribute to the special levy and replace their windows at an additional cost to be borne by them personally, in order to comply with the façade presentation. The applicant states that this serves as further evidence that the works are an improvement to common property;
  5. Alternative proposal: The applicant states that an alternative maintenance proposal was submitted by the original builder and developer to the respondent body corporate, adding that this proposal detailed costings at around 20 percent of the sum quoted by Allied Commercial. The applicant states that this alternative maintenance proposal addressed further and more significant areas of water ingress. He states that this proposal was dismissed by the committee without any discussion with lot owners;
  6. Licensing requirements: The applicant states that the windows that are severely affected which are the southern facing protruding bay windows, have structural damage to the cages that house them. He states that Allied Commercial is not licensed to carry out such structural works. The applicant further states that Allied Commercial is only licensed to work on low rise buildings, and that the scheme is a six-storey residential building with a gross floor area exceeding the license restrictions imposed under a low-rise registration;
  7. Notice period: The applicant states in his correspondence with the respondent body corporate that it held an informal meeting on 1 December 2024 where lot owners were for the first time informed of the scope of works and the costs involved. He adds that a notice of EGM followed with only 17 days' notice (inclusive of Christmas and New Year holidays) falling short of the statutory notice period of a minimum of 21 days being given to all owners;
  8. Scope of works and quotation: The applicant states that the works quoted under motion 3(a) are not identical to those detailed in the scope of works in motion 2. The applicant further states that the scope of works details three contracts to be entered into for the full works, but motion 3(a) only addresses one of the three;
  9. Financial strain: The applicant states that a number of lot owners are also occupiers of their lots and pension-dependant, adding that they have expressed serious concerns about the unreasonableness of the Disputed Motions with respect to the size of the financial contribution required; the requirement to find alternative accommodation while the works are being carried out; and the limited timeframes to furnish the said contribution and find alternative accommodation.
• [34] The applicant states that motion 4 is invalid given its reliance on motions 2(a) and 3. Similarly, he claims that motion 5(c) is invalid given its reliance on motion 3(a).
• [35] The applicant also provides letters in support of this application by the owners or representatives of lots 2, 4, 8, 9, 20 and 21. He also states that he now has the support of the majority at the scheme to oppose the Disputed Motions.

• [36] The respondent body corporate it its submission set out the history of its actions with respect to addressing the water ingress issue at the scheme.
• [37] It also states that it has been transparent with its members since it commenced investigation into the water ingress issue three years ago, adding that it consistently made available all relevant reports and documents to owners via its electronic platform.
• [38] On 24 January 2025, the respondent body corporate wrote to its members[13] explaining that if these works were not carried out, it would be in breach of its duties under the legislation, and may be directed to undertake them in the event an adjudicator were to find that its failure to undertake the works was unreasonable.
• [39] Further, in the same correspondence, the respondent body corporate also conveyed to its members that upon completion of the works, its insurance premiums are forecasted to reduce by $40,000.00 per annum; that the scheme building will have added value with the newer windows; that there will be increased airflow; and that the new windows are more disability-friendly. On the other hand, it stated that if the works are not completed, there is a risk of insurance companies refusing to insure the scheme building or increasing the premiums to an unmanageable level.
• [40] The respondent body corporate addresses the arguments made by the applicant as follows:
  1. False and misleading statements: It states that the conflicting views about the manufacturer and other details relating to the existing windows are irrelevant in determining whether the replacement constitutes maintenance or an improvement;
  2. Tackling the main cause of the water ingress: It states that the onus lies with the applicant to demonstrate the claims made under this head (such as the claim that only a minority of windows at the scheme are affected by water ingress, and the claim that there is no evidence that the windows itself are deficient) which are contrary to the views of the engineers and consultants it engaged.

With respect to the applicant's claim that the replacement of water-tight windows constitutes an improvement, the respondent body corporate cites the adjudicator's order in Paloma[14] as follows:

This concept does not require something identical to that originally in place but what would currently be appropriate.

In general terms, I would consider that if a window does not require replacement, but is being replaced primarily for uniformity, then its replacement would be an improvement rather than maintenance. However, if a significant portion of windows have defects or have deteriorated, it would be legitimate "preventative" maintenance to replace all other windows of a similar age or design which have not yet shown problems but are reasonably likely to do in the future.

1. Like for like replacement: The respondent body corporate states that the test of whether particular work conducted on common property is considered 'maintenance' or an 'improvement' has been considered in numerous previous decisions and gives the respondent body corporate wide discretion in the means by which it may perform its maintenance obligations. It cites Lord Denning in Morcom and Ors v Campbell-Johnson and Ors[15] who held that the replacement of windows 'which have become dilapidated or worn out, then albeit that it is a replacement by its modern equivalent, it comes within the category of repairs and not improvements'. The respondent body corporate states that accordingly, the replacement of the existing bay windows with new bay windows does not amount to an improvement, given the respondent body corporate is simply proposing to remove the existing defective windows and replace them with windows that meet current standards for the primary purpose of preventing water ingress;

1. Unaffected lots: The respondent body corporate states that all lots are required to contribute towards the cost of maintaining common property in proportion to their contribution schedule lot entitlements, whether or not they use or derive any personal benefit from the common property being maintained;
2. Alternative proposal: The respondent body corporate states that the applicant or any other lot owner could have submitted a motion with any alternative proposals, which they did not do.

It also states that the alternative proposal made by the original builder was based on an inspection of one of the applicant's lots, Lot 16, and recommended trialling solutions to that lot, adjusting the scope of works based on the trial and subsequent findings, and implementing the same scheme-wide. The respondent body corporate states that months prior to this alternative proposal being made, it had already decided at its annual general meeting in 2024 that the sample lot would be Lot 3;[16]

1. Licensing requirements: The respondent body corporate states that the applicant's complaints about Allied Commercial not being appropriately licensed are unsubstantiated and in any event, irrelevant to the consideration of the validity of the motion.
2. Scope of works and quotation: The respondent body corporate states that the applicant's complaints about Allied Commercial not addressing the full scope of works demonstrates a misunderstanding of the respective responsibilities of the parties. It adds that it is only responsible for the maintenance of the common property whilst individual lot owners are responsible for the balance of the scope of works, being the maintenance of their balcony doors and the removal and reinstatement of their air-conditioning units;
3. Financial strain: The respondent body corporate states that it has a statutory obligation to maintain the common property irrespective of the cost. A failure to comply with that obligation attracts strict liability that is owed to all the lot owners at the scheme. It adds that the cost and inconvenience to owners is irrelevant to the question of whether the works constitute maintenance or an improvement;

• [41] In these circumstances, the respondent body corporate states that there is no serious legal question to be determined, especially given it has complied with section 163 of the Accommodation Module. It adds further that given the works constitute maintenance as opposed to an improvement, motion 3(a) did not require authorisation by special resolution.
• [42] The respondent body corporate states that the fact owners are subject to a significant financial burden as a result of these motions being carried, is not relevant in determining whether there is a serious legal question to be determined. It states that it is unnecessary to consider the balance of convenience in circumstances where there is no serious legal question to be determined.

• [43] I have not set out in this decision every element of the interim order application, supporting documents and the submission made but all such material have been considered.
• [44] I have summarised the arguments made by the parties at this stage with respect to the final issues in dispute (above), and my preliminary views on some of them (below), in the hope of assisting affected persons to better understand the impugned decisions and conduct; and to further continued efforts at internal dispute resolution by the parties and affected persons alike.
• [45] The only question before me for determination at this stage is whether an interim order is warranted.

• [46] The respondent body corporate has provided its members (lot owners) a due date of 5 May 2025 to pay the special contribution required to proceed with the works.
• [47] The applicant in particular, owes a total sum of $247,641.51 by the said due date in respect of the two lots he owns. Failure to pay the special contribution is likely to be met with legal action for recovery.
• [48] Furthermore, the evidence indicates that the entering of the contract between the respondent body corporate and Allied Commercial is imminent.

• [49] The applicant has provided numerous grounds as described further above in this decision in support of what I can only understand to be an overarching claim that the respondent body corporate acted unreasonably in making and implementing the decisions under the Disputed Motions (for e.g., by purportedly making false and misleading statements to influence votes, by purportedly failing to tackle the main sources of water ingress; by purportedly providing inadequate notice of the EGM; by purportedly failing to consider a cheaper alternative maintenance proposal; by purportedly providing insufficient time to raise funds for the special contribution etc.).
• [50] There is a general requirement under section 94 of the Act that a body corporate must act reasonably in among other things, carrying out its functions under the Act and CMS and making or not making any related decision. Similarly, under section 100(5) of the Act, the committee is required to act reasonably in making a decision.
• [51] A few of the applicant's arguments have little merit based on the evidence currently before me. This includes the argument regarding unaffected lots. The legislation states that windows on a boundary wall separating a lot from common property at a scheme that is subdivided under a building format plan must be maintained by the body corporate (comprising all lot owners).[17] A lot owner unaffected by the windows concerned cannot therefore refuse to contribute to the cost of the maintenance of the same. In that regard and to that extent I agree with the respondent body corporate on a preliminary basis.
• [52] Similarly, in relation to the applicant's argument regarding the scope of works and quotation by Allied Commercial, based on the evidence currently before me, it appears that the balconies in question (for 'Principal Contract B') are part and parcel of the lots.[18] Hence, the maintenance of the doors in these balconies are not the responsibility of the respondent body corporate but that of individual lot owners. In that regard and to that extent I agree with the respondent body corporate on a preliminary basis.
• [53] However, the remainder of the applicant's arguments in my view raise serious legal questions, for e.g., whether the respondent body corporate acted unreasonably in making and implementing its decisions under the Disputed Motions. It is my preliminary view in this regard, that factors such as the sums quoted by Allied Commercial and in other proposals, and the adequacy of the licensing of the contractors specific to the works to be undertaken, were not irrelevant considerations when making a decision under the group of same issue motions with respect to motion 3.
• [54] Furthermore, if the applicant is able to demonstrate with sufficient evidence that the purported statements made by the committee prior to voting were false and misleading; that they were material to the decisions made under the Disputed Motions; and they were relied upon by voters who voted in favour of the motion; and that had those statements been excluded from consideration the relevant motions would have been defeated, then the applicant may successfully argue that the respondent body corporate acted unreasonably in contravention of section 94(2) and/or 100(5) of the Act.
• [55] Similarly, if the applicant is able to demonstrate with adequate evidence that Allied Commercial is indeed not licensed to carry out the works quoted for, it may successfully support the claim of unreasonable conduct by the respondent body corporate.
• [56] I note that despite the several grounds regarding the unreasonableness of the respondent body corporate's conduct, the applicant's central argument is an irregularity in the relevant motion, with respect to the level of authorisation required. The applicant claims that given the works constitute an 'improvement' to common property as opposed to 'maintenance' work, and given that the cost of the works as a single project exceeds the ordinary resolution improvement range, it requires authorisation by way of special resolution as opposed to ordinary resolution.
• [57] Again, I see merit in the arguments made by both parties in this regard. The applicant claims that a majority of the windows at the scheme are not deficient and do not require replacement, and certainly not with an expensive modern substitute. The respondent body corporate counters that it has wide discretion in these matters, and that the law does not require like for like replacement as part of maintenance work, and that non-deficient windows can be removed as part of preventative maintenance as opposed to removal to maintain uniformity across the scheme. While I make no final determination on this matter at this stage, I am satisfied that there is a serious legal question to be determined with respect to whether (among other things) any portion of the works can be properly classed as 'improvements'; whether it is appropriate to compartmentalise the works under the heads of improvements and maintenance; and determine whether there was any irregularity in the Disputed Motions in such regard.
• [58] In these circumstances, as rightly claimed by the respondent body corporate, it is the applicant who bears the onus to make his case (including proving that the respondent body corporate acted unreasonably). This is a rather heavy onus, and the applicant in my view must be given an adequate opportunity to gather the necessary evidence before the dispute is finally considered.
• [59] In the interim, I need only be satisfied that he has made a prima facie case and raised a serious legal question. In the circumstances described above, I am satisfied of the same.

• [60] If the interim orders as sought are granted and the works are delayed, there is firstly a risk of contractors increasing their rates. I note in this regard that the quote by Allied Commercial was only valid until 31 March 2025, (which happens to be the date this application was referred to department adjudication).
• [61] Secondly, and most importantly, if the interim orders as sought are granted, I would effectively be enjoining the respondent body corporate from taking certain active steps to fulfill its statutory maintenance obligations. I am conscious of the liability that may flow from being so enjoined. The applicant states that the committee of the respondent body corporate may nevertheless continue to maintain the common property and relevant areas as needed. I interpret that argument as meaning that the committee may attend to the more pressing maintenance jobs until the dispute is finally determined. However, I note that the various engineering and building reports demonstrate that the need to rectify a multitude of issues at the scheme arose years ago. Further, it is widely considered that these statutory maintenance obligations are strict. Accordingly, this factor weighs heavy against the preservation of the status quo.
• [62] The respondent body corporate submitted that it is well advanced in its dealings with Allied Commercial. The applicant states that the contract with the same has not yet been entered into although imminent. If that is correct, I do not foresee a risk of the respondent body corporate being held in contractual breach if the interim orders are granted.
• [63] On the other hand, if the interim orders are not granted, and the applicant and the other lot owners who support this application pay the special contribution, it is likely to be expended to proceed with the works and is unlikely to be recoverable. As mentioned above, for most lots this special contribution is in excess of $120,000.00, for some it is approximately $117,000.00.[19] I consider the risk of losing such a sum which is sizeable in this context, to be one of serious harm. If the applicant is correct in stating that some of the lot owners are pension-dependant, there is a risk of this special contribution significantly depleting their financial savings amidst an ongoing cost of living crisis.
• [64] Furthermore, should this special contribution be expended as anticipated, it is likely that the final relief claimed under this dispute will be rendered nugatory.
• [65] In these circumstances, I am of the view that the balance of convenience favours the preservation of the status quo, and that interim orders are warranted.

• [66] I am satisfied in the circumstances described above that interim orders are warranted. This however does not preclude the respondent body corporate from carrying out other maintenance work for the duration of the interim orders.
• [67] I must encourage the parties to continue its efforts at internal dispute resolution for obvious reasons but also out of deference to the autonomy of the respondent body corporate. The decisions in dispute involve important questions, considerable sums of money and potentially significant consequences for breach of statutory maintenance obligations (if maintenance is left unattended). The applicant acknowledges that the scheme requires significant maintenance work, and as correctly pointed out by the respondent body corporate, it cannot ignore its statutory maintenance obligations. Accordingly, it would be prudent for all members of the respondent body corporate to apprise themselves well of the issues in dispute, engage in harmonious discussions with each other and work together to resolve these issues.
• [68] I note the applicant's statement that he now has the support of the majority of members of the body corporate. If this is true, it is open to these members to requisition an extraordinary general meeting and reconsider the Disputed Motions, along with any alternative proposals by for e.g., the original builder or any other contractor.
• [69] Should efforts at internal dispute resolution fail, and the application for final orders progress to department adjudication, I urge the parties and all lot owners (as affected persons) to make submissions (if they choose to) expediently, given the quick resolution of the matter is clearly in the interests of all lot owners and the respondent body corporate. In this regard, I would like to put the parties and affected persons on notice that if they were to seek an extension of time to make submissions or in the applicant's case, make changes to the application, the Commissioner and her delegates will have due regard to the reasons requiring expediency as stated above in this decision.

[1] The respondent body corporate states that on 28 February 2020 it engaged an engineer to provide a report ('Bells Report') which found that the flashing to the windows was defective and draining towards the window frame; that there did not appear to be any penetration or water ingress through the slab element; and that the window weepholes were unusually small with detached subsill flashings and gaps (See page 63 of the application).

[3] As per the contribution schedule lot entitlement for Lots 16 and 18

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

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

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

[10] 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

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

[12] 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]

[14] [2009] QBCCMCmr 236

[16] The respondent body corporate states that on 17 March 2024, an engineer it engaged (Donnan) prepared a remedial scope of works for the bay windows in the building and outlined a detailed description of trial to be undertaken on a sample lot to more accurately identify the extent of the remedial work required throughout the scheme building. It is also worth noting that the scope of works as set out in the invitation to tender states that the successful contractor will be required to undertake works for one lot to the south eastern elevation 'prior to the delivery of the greater project'. (It also states that the details of the sample lot will be provided at tender.

Subsequently, at the annual general meeting held on 23 May 2024, the respondent body corporate decided that Lot 3 would serve as the sample lot since it is in poor condition, partially deconstructed and would not require any scaffolding.

The respondent body corporate submits that thereafter on 1 December 2024, it held a question-and-answer meeting for all lot owners regarding the works. It adds that at this meeting, the applicant and two other lot owners recommended that the original builder be approached to provide an alternative scope of work. Subsequently, the original builder provided a report of an inspection of Lot 16 conducted on 28 November 2024 along with the developer of the building and the applicant. This report recommended the further deconstruction of one of the applicant's lots, Lot 16 to determine the full extent of the work required. The respondent body corporate states that it contravened its decision at the previous annual general meeting that Lot 3 would serve as the sample lot.

[17] See section 170(2) of the Accommodation Module

[19] It would be lower for Lot 21 which has the smallest contribution schedule lot entitlement