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

Whether deck extension onto common property was appropriately authorised; whether unauthorised improvements to common property should be removed.

Act, s 94; Sch 5, Item 10 & 24; Accommodation Module, ss 174, 177,

1. Unless a motion submitted by the owners of Lot 2, Brett and Kerry Wheeler, is passed at the 2025 annual general meeting (or any earlier general meeting), to retrospectively authorise their current use of the common property covered by their deck extension in accordance with section 174 of the Accommodation Module, the owners of Lot 2 must, within 3 months of the general meeting and at their cost, remove all of the unauthorised improvements made to common property and reinstate the common property to the condition and appearance it was in prior to the unauthorised improvements being undertaken_._

• [1] The body corporate brings this application against the owners of lot 2 since July 2009, Brett and Kerry Wheeler, regarding a deck which the body corporate alleges extends onto common property without appropriate body corporate approval.
• [2] The body corporate seeks an order that the respondents, at their expense:
  1. Remove all self-installed balustrade, wires, rails and any obstacles off their self-built timber deck on common property; and
  2. Remove the deck from common property and reinstate the common property to the state it was in prior to the construction.
• [3] The body corporate alleges that the respondents have obtained exclusive use of common property by installing a timber deck themselves, with no certification, and further installed balustrade, rails, wires, and other obstacles without body corporate authorisation despite several body corporate correspondences and a conciliation session where the owners were advised of the correct procedures.
• [4] The body corporate alleges the deck's construction on common property also breaches by-laws 15 (Obstruction) and 19 (Damage to the Common Property or Lot).

• [5] The body corporate provides the following background to the dispute:

Gardener discovered that the owners of lot 2 had removed 5-6m2 of common property garden, which the caretaker reported to the committee liaison, Brad Howlett

No meeting minutes record lot 2's application nor the approval for the deck project

Deck was built by owners of lot 2 without engaging a licensed builder. Deck was completed on 22 April 2022.

Committee member, Brad Howlett, sold his property and left the committee.

Mr Wheeler did not attend any scheduled committee meetings in 2022.

Caretaker raised the issue of lot 2's self-built deck in the caretaker report[1].

Committee meeting did not record lot 2's deck and the caretaker's report was removed from the meeting minutes.

New chairperson, Trish Thomas, looked into the lot 2 deck case. Discovered there was an approval by the previous committee given to lot 2 dated 14/02/2022 but was not recorded in any committee meeting minutes. There is no building certificate for the self-built deck. New chairperson requested the certificate from the owners of lot 2.

Lot 2 owners presented a letter from GCCC officer Vel Nandacumaran stating that no council approval was required because lot 2 misled the officer that the deck was 1m away from the side boundary fence. The timber deck directly joins onto the neighbouring lot 3's boundary fire wall. No building certificate was provided.

Vel Nandacumaran confirmed he was misled by the given information and the timber deck is not allowed within 900mm of the boundary fence and that certification is required. No building certificate was provided.

Lot 2 submitted an application to install a glass balustrade.

The committee rejected the application (See letter dated 24/01/2023)

A meeting was held with owners of lot 2 and BCM from Archers and chairperson to guide Lot 2 on how to submit motion at AGM to obtain common property for exclusive use (resolution without dissent)

Lot 2 ignored the advice given. Installed a glass balustrade, rails, and placed other planter boxes to enclose the common property for exclusive use.

Body corporate sent a by-law breach letter to lot 2 for unapproved works. Lot 2 ignored the breaches.

Body Corporate issued a BCCM Form 10 and Form 11 to formally advise a contravention of by-laws 15(a) and 19 for the unapproved works.

AGM is held and no motions were submitted by lot 2.

Conciliation was held and committee signed an agreement to give lot 2 another opportunity to submit a motion to the 2024 AGM in order to obtain exclusive use of common property. Lot 2 owners signed an agreement to engage a licensed builder to inspect and certify the deck ASAP; submit a motion for approval for the improvement on common property (a resolution without dissent) by 31 May 2024 for the 2024 AGM.

BCM sent a reminder out to request a builder's certificate from lot 2.

BCM sent a reminder out to request a builder's certificate from lot 2 with no reply.

BCM sent a reminder out to request a builder's certificate from lot 2 and a form to us to submit any motions they wanted considered at the AGM, with no reply.

Lot 2 submitted a motion to be decided by ordinary resolution, in contradiction to what was agreed in conciliation.

Lot 2 submitted a motion to request that the body corporate and future committees cease all contravention action against them regarding their unapproved deck.

• [6] The motion submitted by the Wheeler's to the 2024 AGM was as follows:

15. Ratify Deck Extension Approval - Submitted by Owner Lot 2 Brett Wheeler on 31 May 2024

Moved that the Body Corporate ratify the committee deck extension approval which was given to the owners of Lot 2 on 14 February 2022 and is annexed to this notice; and that the Body Corporate direct the current and future committees to cease contravention action against the current owners of Lot 2 in relation to the same deck extension.

• [7] The motion was defeated, with 2 votes in favour, 32 against and 6 abstentions.

• [8] The Glades - North Hill is a staged development. Lot 2 is part of Stage 1, established in June 2005 with the registration of Survey Plan 172858, a building format plan of subdivision, containing 20 established lots in a 3-storey apartment building. Lot 2 is on the ground floor. Altogether, there are 105 lots in the scheme.
• [9] Submissions in response to the application were sought from all owners, and specifically, from the respondents. 4 submissions were received, including 1 from the respondents. The body corporate did not inspect the submissions or reply to them. By email on 3 March 2025, I requested further information from the body corporate and the respondents, which was provided.

• [10] Judith Baker, owner of lot 17 and committee member (secretary), submits that she objects to the unit 2 patio extension onto the common property and the respondents' failure to respond to committee requests or the conciliation agreement. She says if the by-laws are not upheld, then it sets a precedent for all other unit/villa owners and the by-laws are worthless and should be discarded.
• [11] Gregory Norris, owner of lot 1 and committee member (chairperson/treasurer), submits that approval for the extension was not recorded at any general meeting. A motion for the extension was not submitted at either an EGM or AGM. The owners of lot 2 have not complied with the terms of the conciliation agreement. No building certification has been provided. Mr Wheeler was a committee member from 2010 - 2013 and again, recently. The correct procedure for the application has been deliberately bypassed. The deck should be removed from common property.
• [12] Heather Taylor, owner of lot 4, submits that before she bought her unit she was made aware of the by-laws and was happy with this and so bought her unit. The appearance of the complex was uniform. If one unit discards the by-laws and takes over common property, this affects the use and appearance of common property and the complex and opens the door for others to do whatever they want.
• [13] The Wheeler's make submission through their lawyers, as follows:
• [14] The respondents do not dispute that the deck, which is the subject of the application, is built over both the lot and on a small area of the common property.

• [15] Due a serious stroke several years ago, Mr Wheeler's physical ability has declined significantly, and he is now almost totally reliant on a mobility scooter both outside and inside of lot 2 for personal mobility.
• [16] Prior to the construction of the deck to which the application relates, Mr Wheeler was unable to access the lot as the tiled area, installed at the time of construction, was a step below the interior of lot 2.
• [17] The common lawn and garden area at the rear of lot 2 overlooks the adjoining golf course. Prior to the deck construction, this area was inaccessible for Mr Wheeler as he was unable to move from the inside of the lot to the patio area or to common property, and the entry from the common property walkways are fenced. Mr Wheeler is unable to unlock the gate in the common fence.
• [18] Due to Mr Wheeler's poor mobility, his only path of safe egress was via the front door of lot 2, which opens onto an enclosed common courtyard. The courtyard is secure and in the event of a fire, he felt he would be exposed to a greater risk than able bodied occupants.

• [19] On 3 February 2022 the respondents applied to the body corporate to construct a timber deck over the existing concrete and tiled patio at the rear of lot 2. The purpose of the application was to seek approval to raise the patio area floor to be the same as the internal floor level (120mm above the original patio) allowing Mr Wheeler safe egress and ingress to lot 2. The application also included an (unambiguous) request that the respondents be permitted to extend the timber deck area beyond the lot to the end of the adjoining wall between lots 2 and 3 and sought approval to build the deck over a small section of the common property garden that abutted directly up to the original patio in the lot.
• [20] On 14 February 2022, the body corporate manager acting on behalf of the body corporate, issued a letter of approval for the above works with a range of conditions relating to the deck construction, however with no ongoing conditions or restrictions imposed.
• [21] The respondents relied on the letter of approval issued by the body corporate and undertook minor construction works as shown in the application. Since its completion, the deck has provided Mr Wheeler with easy access to the outdoor entertainment area for lot 2 without risk of injury.

• [22] On 5 September 2022, the entire membership of the committee was replaced with new members. This change in committee membership marked the beginning of an ongoing campaign by the committee to reverse the approval given by the applicant on 14 February 2022 and endeavoured to have the respondents alter the construction of the deck and remove the component of the deck which covered common property.
• [23] On 13 September 2022, the committee requested that the respondents provide a certificate from a registered builder for the timber deck as the new committee were not involved in the previous approval.
• [24] The respondents subsequently sent several emails to the GCCC seeking clarification and certification as requested. On 20 September 2022, the GCCC's principal building certifier emailed the respondents and advised them that a building approval certificate was not required. The respondent forwarded this email from the GCCC to the committee. The committee advised the respondents that the GCCC communication was acceptable and that the matter was over.
• [25] On 3 January 2023, the respondents applied to the committee for further approval to erect an aluminium and glass balustrade at the edge of the approved timber deck to prevent Mr Wheeler falling off the decking as he moved from the seating area to the doorway to the lot. The requested balustrade was to be professionally constructed and installed, with minimal fixings into the building.
• [26] On 16 January 2023, the committee held an informal meeting and considered the request from lot 2 to install a balustrade around the decking. The committee issued minutes of the informal meeting state that the 'body corporate not qualified to agree to this fencing at committee level, according to by-law 36. BC require advice from Archers...'
• [27] On 24 January 2023, the body corporate manager wrote to the respondents and advised them that the balustrade application was denied by the committee. The communication also stated that a timber deck is not permitted within 900mm of each side of a boundary wall and that the committee did not have the authority to approve the balustrade application.
• [28] Wanting to avoid a dispute and comply with the wishes of the body corporate, the respondents removed 900mm of decking closest to the boundary of lot 3 and replaced it with concrete and tiled the surface. A photo evidencing this change was provided on 4 March 2025 in response to my 3 March 2025 email.
• [29] On 27 February 2023, the respondents met with the body corporate manager and committee to resolve the issue amicably; however, the meeting failed to resolve the issue.
• [30] On 3 March 2023, the respondents received email communication from the body corporate manager which stated '... the body corporate does not and did not have the authority to approve your original request submitted to install a deck' and referred the respondents to section 177 of the Accommodation Module.
• [31] Due to Mr Wheeler being at risk of a serious fall when moving from the deck (located within the boundaries of lot 2) and the inside of lot 2, the respondents engaged a contractor to install a small, unobtrusive glass and aluminium balustrade and gate, allowing Mr Wheeler safe access to the common lawn and garden area.
• [32] On 20 July 2023, the respondents were issued with a BCCM Form 10 and BCCM Form 11 in relation to the balustrade installation. The contravention notices did not specifically detail what the respondents were required to do, however it is assumed that the intention of the application was to require the respondents to remove both the part of the timber deck in the common garden and the balustrade.
• [33] On 11 November 2023, the respondents attended conciliation and while the respondents did not agree with the outcome of the conciliation, feeling under duress, they signed the conciliation agreement. The terms of the conciliation agreement required the respondents to obtain building certification and present a motion to the body corporate to be included at the next general meeting. The motion was to seek lot owner approval to use the small area of common property for the deck. As the motion related to the use of common property, a resolution without dissent was required.
• [34] After the actions of the committee and given the dispute, the respondents felt that a resolution without dissent would inevitably be unsuccessful as the committee and the resident caretaker were vigorously against the respondents using the small area of common property to assist Mr Wheeler in being able to enjoy the outside of lot 2. Consequently, a motion requiring a resolution without dissent was not submitted.
• [35] On 9 February 2024, the respondents engaged Axis Building Certification (AXIS) to examine the deck and paid their attendance fee. AXIS quoted an additional $1,405.90 to certify the deck.

• [36] The respondents submitted 2 motions to the AGM of 27 August 2024. Motion 14 related to the installation of disability access improvements for common property. Motion 14 was defeated by 21 votes to 16. Motion 15 requested lot owners to ratify the approval of the deck extension, provided to the respondents on 14 February 2022. Motion 15 was defeated with 32 votes against and 2 in favour.

• [37] The respondents submit that the body corporate has, through its committee and through the defeat of Motion 15 in the 2024 AGM, acted unreasonably in refusing to allow the respondents to retain the timber deck on the common property.
• [38] The body corporate says 'the entire body corporate who have lost the use of the common property area'. The respondents submit that it is unreasonable to suggest that the entire body corporate has been adversely affected as the extension is on a small section of the garden within common property and the committee has acted in an unfair and unreasonable and discriminatory manner toward Mr Wheeler.
• [39] The deck extension has no material effect on the use of common property as it is contained within a garden, is low to the ground, does not inhibit the view of the scheme land or the adjoining golf course from any lot and is largely out of view of most other occupants.
• [40] The vigorous pursuit of the respondents by the committee over the past 18 months has caused the respondents considerable stress and anxiety, causing Mr Wheeler's health to deteriorate, and adversely affected Mrs Wheeler's ability to function as Mr Wheeler's full-time carer.
• [41] The respondents have not, and do not dispute that the deck covers a small area of common property. The body corporate has been advised many times by the respondents that the small area of land required to extend the deck beyond lot 2 is needed because Mr Wheeler is unable to safely navigate the decking within the lot when any outdoor furniture is placed on it.
• [42] The respondents submit that if the small balustrade at the edge of the deck is required to be removed, Mr Wheeler cannot independently and safely move from the deck area inside lot 2 as his mobility vehicle may slip off the edge of the deck and injure him. Mr Wheeler is unable to walk and would not be able to right the vehicle or obtain help in this event. If the balustrade were removed, Mr Wheeler would only feel safe gaining access to or from the lot when an able-bodied person is with him. Requiring the respondents to remove the balustrade will adversely affect Mr Wheeler's lifestyle and safety.
• [43] The respondents submit, as motion 15 was almost unanimously defeated, it is reasonable to assume the body corporate would not approve the allocation of the area of common property for the deck by resolution without dissent.
• [44] The respondents submit that the body corporate could enter a lease for up to 10 years with the respondents to provide them use of the extra deck area (while they remain the owners of lot 2). A lease can, pursuant to section 174(2)(b)(iii) of the Accommodation Module be adopted by the body corporate through a special resolution. No such compromise has been suggested by the body corporate at any stage.

• [45] The onus is on the respondents to establish the applicant body corporate has acted or is acting unreasonably.[2] In light of the above submissions, the respondents submit that the applicant has acted unreasonably by:

a) Reversing the 2022 deck approval after the respondents had constructed it in good faith; > > b) Refusing to consider approving a small balustrade (which is within the capacity of the committee to approve); > > c) Refusing to consider any form of compromise with the respondents; > > d) Aggressively pursuing the respondents, causing ongoing distress; > > e) Ignoring Mr Wheeler's permanent disability and increased needs; and > > f) Voting against any improvements to common property that may benefit frail or disabled occupants.

• [46] The respondents request an order be made dismissing the application.
• [47] In the event that the application is not dismissed, the respondents request that the applicant be ordered to enter into a lease with the respondents of the common property area covered by the deck, for a period of 10 years and that the lease not be transferable, should the respondents sell or otherwise transfer Lot 2 during the lease period.

• [48] It is not disputed that the deck, which is the subject of the application, is built over both part of lot 2 and on a small area of the common property adjacent to the lot.
• [49] It is the extension of the deck over common property that is the crux of the dispute.
• [50] Section 35 of the Act provides that owners own the common property as tenants in common. Sections 94 and 152 of the Act require the body corporate to administer, manage and control the common property reasonably and for the benefit of lot owners. Each owner's right to use the common property is governed by the Act, the applicable regulation module and the by-laws applicable to the scheme.

• [51] The community management statement (CMS) for a community titles scheme is binding on the body corporate and each member of the body corporate, as if it included mutual covenants to observe its provisions and as if each person bound by it has signed the CMS under seal.[3] By-laws, which (among other things) may regulate the use and enjoyment of lots and common property, appear in a scheme's CMS and therefore bind bodies corporate and all members. Section 94(1)(b) of the Act specifically requires a body corporate to enforce the CMS (including the by-laws).
• [52] The body corporate alleges a breach of by-laws 15 and 19. By-law 15 (Obstruction) is recorded, relevantly, as follows in the scheme's current CMS[4]:

a) An Owner or Occupier of a Lot must not obstruct the lawful use of the Common Property by any person. The pathways and driveways on the Common Property and any easement giving access to the Common Property must not be obstructed by any such Owner or Occupier or used by them for any other purpose than the reasonable ingress and egress to and from their particular lot.

• [53] By-law 19 (Damage to the Common Property or Lot) is recorded as follows in the current CMS:

An Owner or Occupier of a Lot must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the Common Property or any common Property asset except with the consent in writing of the Body Corporate.

• [54] Not mentioned by the body corporate, by-law 4(b) (Appearance of Lots) states 'Subject to By-Law 29 (Construction/Sale of Lots) an Owner or Occupier of a Lot must not do anything to vary the external appearance of the Lot or vary the common Property without the prior written consent of the Committee'.
• [55] By-law 36 (Alterations to the Exterior of Lots) cited by the committee as the reason it was unable to decide lot 2's request for approval to install an aluminium and glass balustrade at the edge of the timber deck, provides:

Where an Owner proposes to carry out work which will alter the exterior of any Lot, he must follow the procedure set out below:

a) Apply in writing to the Committee, outlining the proposed work and provide plans and specifications. Such plans and specifications must be of the same architectural standard as the development.

b) The Committee, on behalf of the Owner, shall submit to the architect nominated by the Committee from time to time the plans and specifications for his consent in writing. The Committee will use its best endeavours to ensure that the architect gives a decision with reasonable expedition.

c) The decision of the architect to consent or not to any plans and specifications will be final, provided that the architect will be entitled to consent to such plans with appropriate variations and/or conditions. If the architect refuses to give such consent or consents subject to variations to the plans and/or conditions, the Owner will not be entitled to make the alterations proposed or shall only be able to make them if the variations are incorporated or the conditions complied with (as the case may be).

d) If the architect consents to such plans with or without variations or conditions then, at the request of the relevant Owner, the proposal will be submitted to a general meeting of the Committee for permission to proceed with the works as approved by the architect.

e) Any reasonable costs associated with the procedure outlined above, including any fee from the architect must be paid by the Owner seeking to make the alterations. If requested by the Committee, an estimate of the fee must be paid in advance by the Owner to the Committee before it submits the plans and specifications to the architect for approval.

• [56] By-law 44 grants exclusive use of certain areas of common property as courtyards to certain lot owners as set out in Schedule E. However, lot 2 is not included in Schedule E for courtyards; only a car park, pursuant to exclusive use by-law 45. It appears to me from my perusal of survey plan (SP 172858) for lot 2 (which is on the ground level) that lot 2 includes 2 courtyards within the lot boundaries: one 9m2 in size in the Western corner and one 11m2 in size at the rear of the lot (the subject of this application). The courtyard in question is not common property over which exclusive use rights have been granted pursuant to by-law 44, contrary to the belief of both the respondents (as evidenced in their 14 March 2023 application for installation of a glass balustrade 'on our exclusive use patio at the rear of out lot') and body corporate (as outlined in the letter dated 24 January 2023 to the respondents from Archers 'The courtyard area of your lot is common property which you have been granted exclusive use over as per by-law 44' and again in the letter dated 7 June 2023 'the original patio area of your lot (excluding the extension which is common property) is exclusive use only.'). The courtyard in question is (or at least was before the 2022 extension), within the boundaries of the lot. The body corporate alleges that the new deck extends beyond the boundaries depicted on the survey plan, into common property as far as lot 3's western boundary. The photos provided evidence that this is, in fact, the case. The respondents do not dispute that the deck, which is the subject of the application, is built over both the lot and on a small area of the common property.

• [57] Owners are permitted to make improvements to their lots subject to any applicable by-laws.
• [58] Section 177 of the Accommodation Module allows a body corporate to authorise an owner to make improvements to the common property for the benefit of the owner's lot.
• [59] For an improvement with an installed value of $3,000 or less, that does not detract from the appearance of any lot included in, or common property for, the scheme, the committee may grant approval, otherwise, an ordinary resolution of the body corporate is required. Approval can be given on such conditions as the body corporate considers appropriate. A person who is given approval must comply with any conditions and must maintain the improvement in good condition unless excused by the body corporate.[5] However, depending on the nature of the improvement, mere approval to make the improvement to common property may not be sufficient.
• [60] The capacity of a body corporate to authorise an improvement to common property was considered by the Queensland Court of Appeal in a dispute in which the body corporate authorised an owner to extend the bulkhead of his shop such that it occupied common property. The Court said that where an improvement had the effect of granting the use of part of the common property to a lot owner exclusively and for an unlimited period, it could not be treated separately from the provisions regarding the disposition of common property. The Court found the common property in question would be enjoyed exclusively and indefinitely by the lot owner. It concluded the resolution was invalid because it amounted to a disposition of common property but was not authorised by a resolution without dissent.[6] The High Court has also noted the disposition of common property airspace is a significant matter.[7] It is irrelevant that the common property is of no use to anyone but the person seeking it. The High Court held that a person with a property interest may reasonably insist on conserving that interest even if it is not presently being employed to that person's material advantage. That is so, if for no other reason than that they may reasonably expect to be offered something in return for agreement to part with it to another lot owner.[8]
• [61] The ability to dispose of common property, including to allocate it exclusively and permanently or for an extended time, usually requires a resolution without dissent whether it is under an exclusive use by-law,[9] or by grant of a lease or licence over the common property (for over 10 years).[10] Although, as the respondents point out, a lease of 10 years or less can be authorised by special resolution.[11]
• [62] The Katsikalis decision has been followed by adjudicators in requiring the removal of improvements that alienate common property but were not authorised by resolution without dissent.[12] In some cases, adjudicators have found the improvements made to common property in the form of decks and patios encroached on common property and required their removal.[13] An appeal of one of those was upheld on the basis of a procedural fairness issue, but found there was no error of law in regard to the adjudicator's reliance on the Katsikalis and Ainsworth decisions.[14]

• [63] The respondents' application for body corporate approval of an external, non-structural improvement, made on 3 February 2022 via Archers Body Corporate Managers' web-based forms stated:

We request approval to raise the level of the rear verandah to the level of the internal floor and to extend the verandah area to the end of the adjoining wall between units 2 and 3.

We make this request as Brett is unable to access the verandah without help due to his disability issues. This approval will allow easy wheelchair accessibility and enlarging the area will allow easy manoeuvrability around the outside furniture.

We have an approximate cost of $1800.00 to carry out the changes required but felt it would be better to obtain Body Corporate approval before firming up the quotes.

• [64] The Wheeler's application for approval, accompanied by a hand-drawn plan, makes it clear that the new deck would extend beyond the then-existing patio, into the common property garden area adjoining the existing patio.

The purported approval - committee approval insufficient

• [65] The letter to the respondents from Archers, dated 14 February 2022, stated:

We wish to advise that the Body Corporate Committee has approved your request to extend the rear veranda of the abovementioned Lot, subject to the information you have provided on your application and adherence to the relevant Body Corporate By-laws and the following conditions:

• Any tradespeople engaged by the proprietor must be appropriately licensed;
• Any tradespeople engaged by the proprietor must have adequate Public Liability Insurance and Workcover Insurance;
• Any tradespeople engaged by the proprietor must comply with Workplace Health & Safety Regulations;
• The proprietor must have, where relevant, appropriate, documented Gold Coast City Council approvals and a copy of the same must be forwarded to Archers Body Corporate Management for the Body Corporate files;
• The proprietor shall be responsible for any damage to common property or another lot that may result from work performed whilst installing the veranda;
• All future insurance, repairs and maintenance of the veranda are at the owner's expense;
• No building tools etc are to be stored on the common property.
• The works are to start no earlier than 7.30am each morning, giving consideration to other properties that are in close proximity.

• [66] It is clear from the letter that committee approval, subject to conditions, was purportedly granted for the deck extension (for which I note there is no evidence of any supporting resolution at, or outside of, a committee meeting).
• [67] For reasons detailed below, committee approval was insufficient.

The required approval - resolution without dissent

• [68] As discussed above, an indefinite disposal of common property requires authorisation by resolution without dissent.[15]
• [69] The Wheelers' construction of a permanent deck extension on common property cannot be viewed other than an ongoing disposition of that common property. The committee purported to grant approval for the improvement to common property, as evidenced by the letter to the respondents from Archers, dated 14 February 2022. But because the improvement would result in an ongoing and exclusive disposition of an area of common property, and the owners had not been granted exclusive rights to the use of that common property, committee approval was insufficient. As such, I am of the view that the committee approval is invalid.
• [70] Whilst I sympathise with the respondents, as the persons wanting the benefit, the onus rested with them to make a proper request to the body corporate and obtain the requisite approval. That necessitated a general meeting resolution. Being unaware of the requirement to obtain formal approval is no excuse.[16] The respondents have demonstrated an ability to access legal advice.
• [71] However, if the owners of lot 2 were granted exclusive rights in respect of the area of common property over which the deck has been extended, the body corporate could then authorise an improvement to that exclusive use area, pursuant to section 177 of the Accommodation Module.
• [72] An adjudicator may make an order that has the effect of granting exclusive use, but only where a motion proposing exclusive use has been proposed, and an adjudicator believes the opposition to the motion was unreasonable.[17] In this case, despite numerous promptings to do so, the respondents have failed to submit a motion proposing that they be granted exclusive use over the disputed area of common property for the body corporate to consider in general meeting. However futile the respondents believe the prospects of such a motion passing by resolution without dissent to be, without even attempting it, there is no basis for me make such an order[18]. For the same reason, I cannot order, as requested by the respondents' lawyers, that the body corporate enter a lease with the respondents of the common property area covered by the deck, for a period of 10 years and that the lease not be transferable, should the respondents sell or otherwise transfer lot 2 during the lease period. That request has never been put to the body corporate. In fact, the only request put by the respondents to the body corporate in general meeting was for owners, by ordinary resolution, to ratify the deck extension without any exclusive use or other rights being given to the respondents over the area of common property covered by the deck. That failed decisively and, for the reasons discussed above, would have been invalid even if it had passed by ordinary resolution.

• [73] To the extent that improvements have been made to common property, they have not been authorised in accordance with the legislation.
• [74] In circumstances where the respondents sought prior body corporate approval for their deck modification and extension, and where that approval was purportedly given by the committee (although invalidly) and acted upon by the respondents, then challenged by a subsequent committee, I do not consider it just and equitable to order the respondents to remove the unauthorised improvements without giving them a final opportunity to seek approval in accordance with the legislation.
• [75] I have made an order that requires the respondents to remove the unauthorised improvements from common property unless the body corporate passes a motion in general meeting to retrospectively authorise their current use of the common property in accordance with section 174 of the Accommodation Module. That requires a special resolution for a lease or license for 10 years or less, or a resolution without dissent for a lease or license for more than 10 years, or acquisition, or exclusive use, of the area concerned.
• [76] The onus is on the respondents to submit appropriate motions for the body corporate to consider in general meeting. The body corporate's end of financial year is 31 May and its AGM is due to be held by the end of August 2025. The respondents will have to submit any motions they want considered at the 2025 AGM by 31 May 2025. Failure to do so will require them to remove the unauthorised improvements.
• [77] The body corporate must act reasonably in deciding any motion/s submitted by the respondents.[19]
• [78] Item 24 of Schedule 5 of the Act provides that if an adjudicator is satisfied a decision not to pass a motion at a general meeting of the body corporate was unreasonable, they may make an order giving effect to the motion as proposed, or a variation of it. Item 10 of Schedule 5 of the Act provides that if an adjudicator is satisfied a motion considered by a general meeting of the body corporate and requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable, they may make an order giving effect to the motion as proposed, or a variation of the motion as proposed.
• [79] If the respondents do submit motions to be considered at the AGM that are not passed, and a dispute arises as to the outcome of those motions, it may then be referred to this office for resolution.

[1] The Caretaker's Report for the committee meeting of 12 July 2022 states under "By Law Monitor - By-law breach" Common property damaged outside apartment unit 2. Notified committee on 15/03/2022

[2] Ainsworth v. Albrecht [2016] HCA 40 - [97] - [99]

[5] Section 177 of the Accommodation Module and the definition of 'improvement' in schedule 6 of the Act

[6] Katsikalis v Body Corporate for "The Centre" [2009] QCA 77 (Katsikalis)

[7] Ainsworth & Ors v Albrecht & Anor [2016] HCA 40 (Ainsworth)

[9] Under sections 62 and 170-177 of the Act

[10] Under section 174 of the Accommodation Module

[11] Section 174(2)(b)(ii), Accommodation Module

[12] See for example: Number 42 Brown Street [2015] QBCCMCmr 313, Julia Court [2017] QBCCMCmr 80, The Sands [2010] QBCCMCmr 424

[13] Malibu [2019] QBCCMCmr 425, Malibu [2019] QBCCMCmr 307, Malibu [2021] QBCCMCmr 276

[14] Tume & anor v Body Corporate for Malibu CTS 22174 [2023] QCATA 101

[15] Accommodaiton Module, s 174(2)(a); Katsikalis v Body Corporate for "The Centre" [2009] QCA 77

[16] Ocean's 11 [2022] QBCCMCmr 386 @ [106]

[17] Act, Item 10, Schedule 5; Ainsworth & Ors v Albrecht & Anor [2016] HCA 40 @ [51].

[18] Lakeview Manor [2024] QBCCMCmr 250 @ [94]