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

IMPROVEMENT TO COMMON PROPERTY - where the applicants installed a gazebo on the exclusive use area allocated to their lot - where the body corporate did not pass a motion for retrospective approval of the gazebo - whether the outcome of the motion should be overturned.

Act, ss 94, 100, 270; Standard Module, s 90

• [1] This application is about a gazebo. The applicant's Lot 2 is on the ground floor of the building. An area of common property outside the lot (a courtyard) has been allocated for the exclusive use of Lot 2.[1] In May 2024 the applicants installed a gazebo in the courtyard.
• [2] The applicants initially indicated a wish to install a gazebo in around November 2023. There were discussions about it between the applicants and the committee, and the applicants applied for approval. However, the applicants then installed the gazebo without obtaining consent. The applicants subsequently sought retrospective approval at an annual general meeting (AGM) on 24 September 2024. However, their motion (Motion 9) did not pass.
• [3] The applicants dispute the body corporate's decision not to approve the gazebo. They say they complied with the body corporate's requirements and the requirements for other lots were more straightforward. They allege the committee has contravened the legislation.
• [4] The applicants seek to overturn the outcome of AGM Motion 9. I have considered the application concurrently with another by the body corporate seeking removal of the gazebo.[2]

• [5] The Outlook Currimundi community titles scheme 17047 (The Outlook Currimundi) is a 17-lot scheme at Currimundi. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building units plan 102612.
• [6] This application seeks the following order:

Reversal of vote at AGM 24th September 2024, denying retrospective approval for Gazebo erected in exclusive use area Unit 2 The Outlook Currimundi.

• [7] 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 CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[3] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[4]

• [8] This application was lodged on 13 December 2024. Soon after, the body corporate applied for conciliation of the dispute.[5] However, the conciliation did not proceed and the body corporate lodged the related adjudication application in February 2025.
• [9] In regard to this application, the Commissioner's delegate sought clarification from the applicants about some aspects of the application,[6] which was subsequently amended.[7]
• [10] The Commissioner invited submissions from the committee and all owners.[8] Some 8 submissions were received, which the applicants obtained and responded to.[9]
• [11] The application was referred to department adjudication.[10] I have now investigated the dispute, including reviewing the application and submissions.[11]

• [12] The body corporate says the grounds are convoluted, nonsensical, and largely irrelevant. It notes some background to the dispute and says the applicants constructed the gazebo while it was considering the request for approval. It says the applicants appear to be seeking an order pursuant to paragraph 24 of schedule 5 of the Act but do not say so or provide any evidence to support it. Its submission includes:
  1. The approval of the shade cloth for Lot 1 in 2019 and a vergola for Lot 15 in 2009 are irrelevant to the decision on AGM Motion 9. It notes the vergola is on the rooftop, cannot be seen from any other lot, and the owners obtained body corporate and council approval in a time-consuming process before it was constructed.
  2. The applicants have failed to demonstrate that the gazebo meets the relevant criteria for the gazebo to be self assessable building works.
  3. There was nothing against the committee lobbying owners to vote against the motion.
  4. The committee had legitimate concerns about the construction of the gazebo that were not addressed by Motion 9. They include whether the person who constructed the gazebo was licenced, how the gazebo is attached, whether the footings encroach onto common property below the exclusive use area, whether it is structurally sound and can withstand strong winds, and whether the gazebo satisfies building requirements and is self-assessable building work.
  5. The committee had legitimate concerns about the appearance of the gazebo and its effect on other owners and occupiers.
  6. The committee remains concerned that the applicants installed the gazebo without approval after agreeing to obtain approval.
  7. The applicants have not expounded the basis on which the order us sought or provided any evidence of that. The application has no prospect of success.
  8. The applicants have been vexatious by constructing the gazebo knowing they required approval but had not obtained it, failing to remove the gazebo when requested, refusing to attend conciliation, and making this application without substance. The application has been made solely to delay the removal of the gazebo.
  9. The application should be dismissed under section 270(1)(c) of the Act and the applicants should pay the body corporate $2,000 as partial compensation for its costs.
• [13] The submissions from the owners of 7 lots oppose the application. In particular:
  1. One submission from owners including the chairperson supports the body corporate's submission. They comment on some background at the scheme and the history of the gazebo dispute. They say the committee made significant efforts to facilitate the request for approval. They note it was disjoined, with numerous versions. They say the applicants have not provided evidence of the structural adequacy of the gazebo or its installation despite repeated requests. They acknowledge the gazebo does not require council approval, but only where it meets a range of criteria for it to be constructed as accepted self assessable works and the applicants have not demonstrated that all criteria have been met. They say the committee's concerns were validated by their engineer but cannot be confirmed without an inspection. The submitters are concerned about the unreasonable risk to the body corporate and owners if the gazebo was approved based on the application presented to the AGM. They say there is no detail of the installation. They say owners impacted need to be considered. They are concerned by the applicants' disregard for the law and disrespect for other owners.
  2. The submission from the owners of a lot that overlooks the gazebo says the gazebo has had a considerable impact on them and the use of their lot. They say it has obstructed and changed the view from their lot, its use affects their privacy and generates noise in their lot, and it has impacted the value of their unit. They say it is significantly larger than they expected. They share the committee's safety concerns and say it would cause significant damage if it was blown onto their balcony.
  3. Two submissions in similar terms say the guidelines for common property approval applications seem reasonable and appropriate. They comment on the guidelines in respect of the gazebo. They say the appearance of the structure raises no concern for them, but they support the concerns of other owners. They express support for the committee and believe they are operating in a way that is transparent and fair.
  4. Another submission says an inspection is required to confirm the gazebo meets the requirements and for safety and structural certification, but entry was denied by the respondents. They say if that continues, the only recourse is to remove the gazebo.
  5. Another owner endorses the body corporate's approach as serving the interests of all owners. They note the applicants' engineering recommendations do not provide certification as to the safety of the structure and the recommendation appear to rely on manual adjustment to avoid wind load which indicates the structure is unsuitable in a high wind environment without intervention. They say the structure partially blocks sightlines from some lots, impacting on the amenity of those lots. They note the gazebo's stated height of 2.3 metres appears to exceed the maximum height referred to in the building certifier's correspondence to be exempt from development approval.
• [14] In response, the applicants say shelter is a right and all units with exclusive use areas have either a gazebo or a shade structure. They say those who have voted no have not stated what is acceptable. They say the submissions to not deal with how comparative applications have been handled, their expert's advice about the suitability of the gazebo, or the council's advice that council approval is not required. They say they installed the gazebo after 4 months of trying to comply with the committee's requirements and it has not moved despite serious weather. They say Lot 15 has an identical gazebo. They also say no one owns a view and the views from each unit have changed over 30 years and the first floor lots never had views. The applicants say they have been treated badly and subjected to stress for over a year. They refer to their original investment in the gazebo and cost to meet the committee's conditions (which they assert has totalled $4,683). They say they cannot afford to waste this money.

• [15] The applicants seek to reverse the outcome of AGM Motion 9. While the applicants would clearly like to retain their gazebo, the legal basis to justify an adjudicator making the order sought is not clear from the somewhat confusing grounds to the application.
• [16] One of the objects of the Act is to "balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes."[12] In light of this objective, a decision of a body corporate should only be overturned if it is unreasonable or otherwise unlawful. To do otherwise would be an "unwarranted interference in the ability of the body corporate to make its own decisions, and to independently manage its affairs as contemplated in the secondary objects of the Act."[13]
• [17] The applicants have not clearly argued or established any procedural defect with the conduct of the AGM or the consideration of Motion 9. They refer to AGM minutes not recording what they said but it is unclear if they claim that as a basis for the order. The statutory requirements for what must be included in 'full and accurate' minutes of a general meeting does not include a verbatim record of discussions.[14] The applicants also refer to the committee's requirements and comments, which I will discuss below. But even if there was some defect with the conduct of the meeting or the minutes (which is not established), the applicants have not demonstrated why that would be a basis to deem their motion passed.
• [18] Although not articulated as such, the applicants may be asserting the body corporate's decision to pass AGM Motion 9 was unreasonable. If that is their contention, and in the absence of any other identifiable legal basis for the order sought, I will consider that question.

• [19] A body corporate must act reasonably in undertaking its general functions, including in making or not making a decision.[15] A committee must similarly act reasonably in making a decision.[16]
• [20] There is considerable case law about the obligation to act reasonably. It has been said that reasonable decision-making "...involves an evaluation of the known facts, circumstances and considerations that tend to have a rational bearing on the issue..." and "...requires that all relevant matters are taken into consideration and irrelevant ones are left out".[17] I note the view that a "...legally reasonable decision is not a uniquely right one. It involves matters of degree about which contrary - even opposite - conclusions can be reasonably reached on the same body of evidence by different lines of reasoning or by reference to other determinants without either being demonstrably right or manifestly wrong."[18]
• [21] But an applicant bears the onus of establishing that a decision or action was unreasonable.
• [22] If a body corporate or its committee acts unreasonably, an adjudicator may intervene to make an order that is just and equitable to resolve the dispute including overturning a decision. However, it is not for an adjudicator to supplant the body corporate's decision-making role or impose their own views on the body corporate. A decision should only be set aside if an adjudicator is satisfied the decision was so unreasonable that no reasonable body corporate could have come to it, or it is 'conflicted, arbitrary, patently absurd or plainly unjust'.[19]

• [23] The applicants discuss the conduct of the committee and the requirements for approval imposed by the committee. However, the applicants do not specifically seek orders about those issues. For example, they do not seek to overturn any committee resolution.
• [24] The applicants only seek an order to reverse the outcome of AGM Motion 9. As acknowledged in the explanatory note to Motion 9, and as I have confirmed in the related application,[20] the installation of the gazebo ultimately required approval at a general meeting. The contents of Motion 9, including the conditions of approval, were a matter for the applicants. In that context, any question about the committee's actions prior to the AGM have limited relevance. The substantive question is the decision of the body corporate at the AGM.
• [25] The applicants refer to the committee's comments on AGM Motion 9 and its recommendation that owners vote no. They say that unfairly influenced owners. They also complain about the length of the committee's comments, given the word limit on their explanatory note.
• [26] If the submitter of a general meeting motion gives the secretary an explanatory note about the motion (of no longer than 300 words), an explanatory schedule including that note must accompany the voting paper.[21] The committee can include other explanatory material in the notice of a general meeting (including information about motions) but only if it is contained in a separate schedule.[22] Notwithstanding that it may seem unfair to the applicants, there is no legislative word limit on committee explanatory material.
• [27] There is no requirement that explanatory material given to voters (by the committee or the proponent of a motion) must be balanced.[23] The explanatory material can express the submitter or the committee's views on the motion. The applicants have not established that the committee's explanatory material was fundamentally misleading or inaccurate. It essentially set out what the committee considered had occurred and its concerns with the gazebo. Moreover, the applicants have not established that any voter was confused or mislead by the material. It is likely voters were influenced by the committee's explanatory material. But that does not mean the influence was unwarranted or unreasonable. Inherently voters were entitled to favour the position taken by the committee over that of the applicants.
• [28] The application refers to the committee code of conduct but does not explain or substantiate any alleged breach of the code by any committee member. There are also references to committee actions and decisions on other improvements at the scheme but the relevance of those to the order currently sought is not clearly explained.

• [29] By AGM Motion 9 the applicants sought retrospective approval to install a white aluminium louvre gazebo of 3 metres square and 2.23 metres high. The approval was sought subject to 5 conditions, including that the louvres be kept open when not in use, the owners inspect the structure annually to ensure it is anchored and in good working condition, the structure be kept clean and tidy, the owners be liable for any consequence of the gazebo, and the owners be liable for all maintenance and operating costs of the gazebo.
• [30] The owners' explanatory note for the motion says they applied for committee approval in January 2024 and provided the manufacturer's specifications for the gazebo, a report from an engineer confirming the structural soundness of the manufacturer's installation requirements, and a report from a building certifier that the structure does not require any council approval. It said the gazebo was constructed in accordance with the manufacturer's specifications and engineering requirements. The note then explained that as the cost of the installation exceeded $3,000 it could only be approved at a general meeting. The explanatory note further said the gazebo was more than 1.5 metres from the side boundary, did not detract from the appearance of any lot or common property, they would be responsible for maintenance and operating costs, and there are existing gazebo structures on the exclusive use areas for Lots 15, 16 and 17 and a shade cloth structure on Lot 1's exclusive use area.
• [31] A separate committee schedule commented on Motion 9. It said the committee had concerns about the structural adequacy of the gazebo, the method of construction, and how the structure was secured to the ground. It said that, despite requests, the owners had not provided structural information and the statements from the engineer and building certifier did not address that. It said the installation did not appear to have complied with some of the manufacturer's instructions. It said it engaged a structural engineer to provide advice, but the owners said the engineer could not enter the exclusive use area. The schedule said the body corporate had a duty to ensure any structural improvement did not present a safety hazard and it could be liable for damages. It said where the structural adequacy of the gazebo is not known, it would be inappropriate to approve it. It recommended voting against the motion.
• [32] Motion 9 failed to pass with 3 votes in favour and 12 against.

• [33] Undoubtedly the body corporate could have chosen to approve the gazebo. However, it decided not to. The apparent question is whether the applicants have established that the body corporate failed to act reasonably in doing so. The material submitted by the applicants raise a range of matters. The relevance of some of it is unclear. I will endeavour to identify and comment on what appear to be the applicants' objections to the body corporate's decision.

• [34] The applicants reply to the submissions refers generically to a right to shelter. The applicants indicate that other owners have shelters on their exclusive use areas.
• [35] The applicants have not explained or substantiated that the body corporate's grant of the right to the exclusive use of the courtyard comes with an inherent right to install a shelter or any other structure on the courtyard. While the body corporate could decide to approve an improvement of this nature on the exclusive use area, it is not necessarily required to.
• [36] Moreover, there is no suggestion that the body corporate will not permit any structure to be built on the exclusive use area. The committee has clearly tried to work with the applicants about what would be required to enable the structure to be approved. The onus is on the applicants to establish that the particular structure installed should be approved.
• [37] The applicants ask what those voting against their motion propose they install instead. But it is not for other owners or the committee to speculate on what the applicants could or should seek approval for. The body corporate's responsibility was to assess and decide the proposal that the applicants chose to submit. Where that is not approved, it is for the applicants to consider if they want to explore possible alternatives.

• [38] The applicants refer to other structures installed by owners at the scheme.
• [39] The applicants allege contraventions of the legislation regarding approvals of other structures. If the applicants are asserting that other improvements were not validly approved, that is beyond the scope of this application. The applicants could pursue those matters separately, with the body corporate in the first instance, if they can substantiate their concerns.
• [40] The applicants indicate the requirements for approval of other structures were more straightforward. The applicants similarly appear to suggest that others have been allowed to install similar structures such that it is unreasonable that their structure was refused.
• [41] However, the scant details provided by the applicants about other approvals do not evidence that any approved structures at the scheme are the same or involved the same circumstances. For example, applicants did not refute the assertions in the body corporate's submission that a gazebo installed by the owners of Lot 15 had prior body corporate consent and was approved by council. And while they claim the Lot 15 gazebo was 'identical', it appears it is in a very different location (the roof) and the manner of installation was different, with the roof-top gazebo attached to existing structures and the applicants' structure being freestanding on legs.
• [42] Where the nature, location, and manner of installation of structures is different, it is understandable that there may be quite different considerations for the body corporate. The decision to approve one structure and not approve another, particularly where different levels of information have been provided, does not of itself evidence that the body corporate has failed to act reasonably.

• [43] The applicants say the 'bar was set extremely high' by the committee and they did everything possible to comply with the 'ever-changing standards' required for approval. They say they incurred costs in doing so, including obtaining a certifier's report, an engineer's report and legal advice. They indicate the committee questioned the information they provided. They refer to the body corporate's 'Common Property Improvement Applications Guideline'.
• [44] It is not necessary to discuss all the communications with the committee prior to the installation of the gazebo or prior to the AGM, or the specifics of the information and clarification sought from the applicants. Fundamentally, the applicants have not established that the body corporate sought information that was not relevant to its consideration of the applicants' request for approval. They have not established that the process or the considerations in the body corporate's assessment guidelines were not appropriate or relevant.
• [45] It is evident from the committee's explanatory note for AGM Motion 9 and from the submissions that at least some committee members and AGM voters remained unclear about some aspects of the installation of the gazebo, its structural integrity, and its impacts. Prima facie the responsibility was on the applicants, as the proponents of AGM Motion 9, to provide voters with sufficient information to address any genuine concerns. The applicants have not established that the concerns that led voters to vote against Motion 9 were not genuine or rational. They have not established that they gave the body corporate all information that voters reasonably needed to address those concerns.

• [46] The body corporate has detailed a range of concerns about the construction of the gazebo. It particularly sought assurances in that regard. The applicants appear to disagree with the need for further evidence but have not established that those concerns are irrelevant or irrational.
• [47] The applicants have not clearly evidenced that the gazebo was installed by an appropriately qualified person, that it was installed in accordance with the manufacturer's instructions or their own engineer's recommendations, or that the installed gazebo is structurally sound.
• [48] While the applicants provided the opinion of an engineer in March 2024 about the installation of the gazebo based on the installation kit and manual, there is no indication that the engineer viewed the site or conditions where the gazebo was to be installed or has inspected the gazebo to confirm it was installed in accordance with her recommendations. If the applicants are confident that the structure is safe, they have not explained why they refused to allow an engineer engaged by the body corporate at its own to inspect the structure and provide assurances to the committee and all owners.

• [49] The applicants refer to the condition in AGM Motion 9 that they indemnify the body corporate for any possible damage caused by the gazebo. The offer of indemnity may be appropriate, but the applicants have not established that the indemnity of itself alleviates the body corporate's concerns. It is arguably not unreasonable for the body corporate and owners to seek to avoid or minimise the risk of harm or damage in the first place, rather than having to rely on trying to pursue liability and recover compensation after harm or damage has occurred.

• [50] The gazebo is clearly visible from other lots and there is concern that it does not conform to the design of the building. Other impacts on other lots are noted in the submissions. The applicants may believe the gazebo has no impact or no adverse impact. However, the applicants have not established that the concerns of others about such impacts are unsubstantiated or were not relevant considerations for voters.

• [51] The Act provides that an adjudicator may dismiss an application if satisfied the application is frivolous, vexatious, misconceived or without substance.[24] If an application is dismissed on that basis, the adjudicator can award costs (up to a maximum of $2,000) incurred by the respondent, the body corporate, and or an affected party for loss arising from the application.[25]
• [52] The body corporate asserts that the application had no prospect of success and its motive, to delay the removal of the gazebo, was vexatious. It has sought the maximum costs.
• [53] The application was not clearly articulated and was essentially unsubstantiated. However, the body corporate has not established that it was necessarily vexatious. On this occasion I have decided not to award costs against the applicants. However, I would certainly consider doing so in future if the applicants were to pursue further unsubstantiated applications.

• [54] The applicants have not articulated or substantiated any proper basis to overturn the result of Motion 9 at the AGM in September 2024. They have not established that the body corporate's decision not to pass Motion 9 was unreasonable or otherwise invalid. It follows that I have dismissed the application.

[1] Pursuant to By-law 21 and schedule E of the community management statement recorded on 25 October 2023, Titles dealing number 715389351.

[2] Application 0125-2025, The Outlook Currimundi [2025] QBCCMCmr 149

[4] Sections 227, 228, 276 and schedule 5 of the Act

[13] Adjudicator K Ryan in Massey Lodge [2004] QBCCMCmr 356, paras 13- 14

[14] Section 117 of the Standard Module

[17] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 43, citing McKinnon v Department of Treasury [2006] HCA 45; (2006) 228 CLR 423

[18] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 47

[19] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 34, 74 and 98

[20] The Outlook Currimundi [2025] QBCCMCmr 149, para 27

[21] Section 90(1)(a) of the Standard Module

[22] Section 90(7) of the Standard Module

[23] Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300, at paras 31-32, 64

[25] Sections 270(3) and (4) of the Act