Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and 229(3)(a)

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

INTERIM ORDER - where the respondent body corporate requested the cancellation of an interim order- whether that is warranted.

1. The request by the Body Corporate for Thirty Four Riverwalk to cancel the interim order made on 11 April 2025 is dismissed.

• [1] This dispute is about a glass enclosure on the balcony of the applicants' Lot 13 and the body corporate's proposed entry to the lot to remove glass panels and tracks.
• [2] In October 2016 the committee resolved to retrospectively approve glass balcony enclosures on 4 lots, including Lot 13. On 19 March 2025 the committee rescinded those approvals. In May 2024 the body corporate advised that Axis Building Certifiers (Axis) had raised concerns with the glass enclosures. In September 2024 the Gold Coast City Council (GCCC) issued a show cause notice to the applicants about the enclosure of their balcony. After obtaining advice, the applicants removed 6 of the 14 glass panels in February 2025 and sought a review from the GCCC as to whether that alteration would satisfy the show cause notice.
• [3] However, on 25 March 2025 the body corporate gave the applicants notice of an intended entry to Lot 13 on 14 April to remove and dispose of the glass panels and associated tracks. The applicants disputed the entry while the GCCC was still completing its investigations.
• [4] The applicants sought an interim order to prevent the body corporate entering Lot 13 to remove the panels and tracks pending various final orders. I granted an interim order to that effect. On 3 June the body corporate requested the lifting of the interim order. It said it seeks this to comply, by 11 June, with its insurer's requirements. The issue to be decided at this time is whether an order to cancel the previous interim order is warranted.

• [5] Thirty Four Riverwalk community titles scheme 34520 (Thirty Four Riverwalk) is a 22-lot scheme at Robina. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as survey plan 165606.
• [6] On 11 April 2025 I made the following interim order:[1]
  1. Pending a final determination on this application, the Body Corporate for Thirty Four Riverwalk must not enter Lot 13, or authorise any person to enter Lot 13 on its behalf, for the purpose of removing any glass panels or associated tracks.
  2. This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn or otherwise ended (whichever is earlier).
• [7] The substantive application seeks the following final orders:
  1. That the Body Corporate be restrained from entering Lot 13 to remove the remaining glass panels and aluminium tracks until such time as the GCCC has completed their re-inspection of Lot 13 and have issued their written advice as to whether or not the remaining glass panels and tracks are now compliant and therefore the Show Cause Notice will be withdrawn as suggested in the email from GCCC dated 3 March, 2025 (marked "J") or alternatively, if the GCCC requires further action taken to make the works compliant, that a reasonable time is allowed for such works to be completed.
  2. If required by GCCC that the body corporate obtain at its expense a fire engineer's report as originally recommended by Axis Building Certifiers who were engaged by the body corporate.
  3. Given the negligence of the body corporate in retrospectively approving unanimously the glass panels and tracks at a meeting on 13 October 2016 without ensuring that the works had been properly approved as required by law, and before we became the current registered owners, that the body corporate pay all costs and expenses in relation to any necessary rectification works.
  4. That the purposed recission motion of the body corporate contained at item 7.13 of the committee minutes dated 19 March 2025 (marked "O") and received by email from Archers Body Corporate Management at 7.34am on Friday 4 April 2025 be declared invalid.
• [8] The body corporate seeks the withdrawal of the interim order made on 11 April 2025.

• [9] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[2] I am satisfied I have jurisdiction to decide this matter.[3]
• [10] An adjudicator may make an interim order if satisfied on reasonable grounds it is necessary due to the nature or urgency of the circumstances.[4] Furthermore, an interim order may be extended, varied, renewed or cancelled by the adjudicator before a final order is made.[5]

• [11] The substantive application was lodged on 1 April 2025. The Commissioner referred it to me to decide whether the nature or urgency of the circumstances warrants an interim order[6]. I invited comment on the application from the committee before making the interim order.
• [12] After the interim order was made, the application was referred back to the Commissioner. The Commissioner's delegate sought information about the status of the dispute.
• [13] On 3 June the body corporate chairperson formally requested that the interim order be lifted. The chairperson did not evidence a committee resolution authorising the request and did not provide a copy of the request to the applicants. At my direction, the Commissioner's delegate sought further information from the chairperson about the request.
• [14] Given the matters canvassed below, I did not consider it necessary to invite further comment from the applicants about the request to cancel the interim order.

• [15] The only issue at this time is whether an order to cancel the interim order is warranted.
• [16] As with any order, an adjudicator can only make an order to vary or cancel an interim order if satisfied that it is just and equitable to do so.[7] A person seeking the variation or cancellation of an interim order must establish that the circumstances warrant it. It may be warranted if the circumstances have changed, or a party is able to adduce new evidence that is relevant to the conclusions reached in the original interim order. But it is not sufficient that a person seeking the cancellation or variation simply disagrees with the interim order or wants a different outcome. In that case they can appeal the interim order on a question of law.[8]

• [17] A detailed history of the matter, based on the material submitted, was included in the reasons for the interim order. I will not restate that here. However, the parties have provided numerous further communications to this office since the interim order was issued on 11 April.
• [18] On 28 April the applicants advised the body corporate of communications with the GCCC and said, if they had not received a decision on the show cause notice by 31 May, they would remove the remaining panels before 11 June to comply with the insurer's requirements.
• [19] On 2 May the chairperson said they had asked the applicants to make arrangements to remove the remaining panels before 11 June but had not received a response. They said the body corporate was left with uncertainty about whether it could meet the insurer's deadline.
• [20] The Commissioner's delegate sought an update from the applicants on 26 May. They said they had not yet received a decision from the GCCC but detailed their attempts to do so. They confirmed they had booked a contractor to remove the panels on 3 or 4 June if required.
• [21] The applicants subsequently provided a letter dated 23 May from Stephanie Tai, a Senior Building Compliance Officer with the GCCC. The applicants apparently received it by email late on 26 May. The letter referred to the enclosed balcony on Lot 13 and stated "The noncompliance regarding enclosed balcony has now been rectified." It said an inspection on 4 April revealed that some glass panels had been removed and a private certifier's assessment of the remaining 6 glass panels confirmed compliance with the Building Code of Australia. Accordingly, the letter said the council had "...determined that this matter is now resolved and no further action will be taken in relation to the noncompliance."
• [22] The applicants forwarded this letter to the body corporate on 30 May. They said the reference to 6 panels was incorrect as there were 8 remaining panels. They noted that was made clear to the compliance officer in February. They said they had urgently asked the council to amend the letter. The applicants also provided an email from their building certifier confirming that the removal of 6 panels (leaving 8) was consistent with their advice.
• [23] The chairperson responded that the body corporate needed to wait for the final withdrawal of the show cause notice.
• [24] The GCCC compliance officer then advised the applicants on 30 May of the need for a 'comprehensive review' before they could confirm whether the completion letter was to be revised. Based on that correspondence, on 1 June the chairperson sought confirmation that all non-compliant doors on the balcony would be removed.
• [25] On 2 June the applicants said there was a miscalculation by council as to the number of glass panels present during its inspection. They said it was clear the council would issue a revised letter but there was no certainty that it would occur before 11 June. Acknowledging the requirement for the body corporate to ensure the renewal of its insurance, the applicants proposed removing the 2 further panels that were missed by the council in its inspection so that there were only 6 panels remaining, as per the council letter. They said this would occur within 48 hours and they would return the panels when the revised council letter was received. They asked for confirmation that was acceptable to the body corporate.
• [26] The chairperson responded the same day saying the body corporate did not agree. They said the body corporate had rescinded the original approval for the enclosure and it was up to the applicants to apply for approval of the enclosure. They further said there was no indication as to when the GCCC review would be finalised, and it had to act in the interests of all owners in meeting the deadlines set by the insurer.
• [27] On 9 June the applicants gave the body corporate an email from the GCCC's Stephanie Tai stating "While it will take time for the new completion letter to be issued, this email can serve as a confirmation from the City that the show cause notice is now complied with the 8 panels remaining on the balcony."

• [28] On 1 June chairperson asked this office whether the body corporate could enter Lot 13 and remove the doors to meet the 11 June deadline imposed by its insurer, given the GCCC had not issued a final document removing the show cause notice. The Commissioner's delegate advised that the body corporate could request a variation or withdrawal of the interim order but would need to do so explicitly and establish why that was required. The delegate canvassed information that the body corporate may need to provide to substantiate its request.
• [29] The chairperson then made a written request to lift the interim order on 3 June. The request said the notice of entry to Lot 13 was to remove non-compliant glass doors to satisfy the building insurer's requirement for building compliance. It referred to an attachment of the insurer's requirement. However, no such attachment was included in the request.
• [30] The request said the body corporate had reviewed the information provided by the GCCC, the applicants, and their certifier. It said it had formed the view that the descriptions of the glass sliding doors and the shutters relating to the compliance were not accurate. It also referred to the discrepancy of the number of panels removed. It said it had asked for all panels to be removed, but the applicants had only advised that 2 further panels would be removed.
• [31] The request concluded that because the GCCC advised that a comprehensive review would be undertaken, it was faced with the prospect of not meeting the 11 June deadline. It asked that the interim order be lifted, allowing it to proceed with removing the remaining glass panels.
• [32] At my request, on 3 June the Commissioner's delegate contacted the chairperson for more information. Specifically, I sought clarification that the body corporate had provided a copy of the GCCC letter and subsequent correspondence to the insurer and written confirmation that the insurer was not satisfied notwithstanding the recent events.
• [33] The chairperson provided some further information on 10 June. This said the body corporate had written to the insurer providing an email thread from the applicants and the GCCC. It included the text of correspondence apparently from an insurance broker which said the information provided did not provide clear clarification of the outcome of the GCCC inspection or the subsequent requirements for the lot owners. It asked for:
  1. a copy of the formal determination provided by the council following their inspection
  2. details of the council's additional comprehensive review
  3. confirmation of what actions the owner had taken or would be taking to achieve compliance, and
  4. where the council indicated that glass sliding doors were compliant and could be retained, confirmation that a requirement in an Axis statement dated 20 May 2025 had been completed.
• [34] The insurer's response also said the terms and conditions were required to be met within 8 weeks of the policy expiry date and that as the policy was due to expire on 30 September 2025, the due date for completion was 6 August.
• [35] A copy of the body corporate's correspondence to the insurer was not supplied and so it is not clear exactly what information was given to the insurer. Given the terms of the insurer's response, it is not clear that the GCCC letter of 23 May or the email of 9 June were actually provided. Also, the chairperson provided only an undated extract of the insurer's response and not a complete copy of the correspondence.

• [36] I will not restate in full the legal issues raised by the substantive application or my reasons for granting the interim order. However, I will note some matters relevant to the current request.

• [37] In my reasons for the interim order, I discussed the right of entry to a lot under section 163 of the Act. I noted that a body corporate can only enter a lot to undertake work that it is 'required or authorised to undertake'. I explained that I considered there was a genuine question as to whether the body corporate is actually required or authorised to remove the remaining panels and tracks. The body corporate provided no further evidence to change that preliminary view.
• [38] I previously noted there was no statutory notice from any relevant authority requiring the removal of the glass panels or tracks from the balcony of Lot 13. The GCCC show cause notice was not a determination that the panels were not compliant, nor a direction that they must be removed. Moreover, I consider it is evident from the GCCC letter of 23 May and the follow up GCCC email of 9 June that the GCCC is satisfied there is no longer any non-compliance with the remaining 8 panels. It is now clear the show cause notice has been resolved. Accordingly, any previous compliance concern from the GCCC is not a basis for the body corporate to seek the removal of the remaining panels.
• [39] The May 2024 advice from Axis, which says the balcony enclosure should be removed if other options could not be achieved, is also not a statutory notice or order. As I previously explained, that advice does not of itself authorise the body corporate to remove the enclosure. Moreover, subsequent communications from Axis seem to indicate that the partial removal of panels may address the concerns that it raised. The body corporate does not provide evidence that Axis or any other expert continues to hold concerns with the panels.
• [40] I previously noted that potentially the body corporate could resolve undertake work to remove the panels and tracks if the applicants had failed to remove the panels and tracks in accordance with an obligation they have to do so under the Act, the regulations, or the CMS. But the body corporate does not clearly explain the applicants' obligation to remove the panels.
• [41] If the body corporate has validly rescinded the approval for the balcony enclosure, it could seek the removal of the remaining panels on the basis that they are now unapproved. But the obligation rests with the owner in the first instance to remove any unapproved improvements. If the lack of approval is the basis for the body corporate's current desire to remove the panels, given all the circumstances, I do not consider the body corporate has given the applicants an adequate opportunity to apply for approval of the remaining panels. The body corporate only rescinded its approval on 19 March and notified the applicants of that on 4 April, and the outcome of the GCCC investigation has only just been received. Moreover, if the basis for removing the remaining panels is that they are not approved, the body corporate has not established any urgency to remove them before the final orders are determined.
• [42] Accordingly, despite the matters raised in the reasons for the interim order, the body corporate has not yet addressed the question of whether it is genuinely required or authorised to remove the remaining panels and tracks such that it has a right to enter Lot 13 to undertake that work.

• [43] Furthermore, while the body corporate resolved to issue an entry notice, I noted in the previous decision that I had not been given evidence that the body corporate had specifically resolved to engage the contractors named in the entry notice, or the associated cost of those contractors, or resolved to undertake work on Lot 13 to remove the panels and tracks. No further evidence of that has been provided by the body corporate.
• [44] There is now another issue in that regard. The body corporate resolved to issue, and then issued, a notice to enter Lot 13 on 14 April 2025. That notice lapsed once that date passed. Any proposed entry to Lot 13 in future (if valid) would require the body corporate to resolve and issue a new notice giving at least 7 days' notice before the date of entry.

• [45] The stated basis for the body corporate to seek the cancellation of the interim order and to enable it to enter the lot to remove the remaining panels, is to comply with the requirements of its insurer. As I said previously, it is of course understandable and appropriate that the body corporate is concerned about complying with the requirements of its insurer.
• [46] However, while the body corporate previously said it had a deadline of 11 June to notify its insurer that the Lot 13 balcony has been rectified, it appears the deadline is now 6 August. That alters the urgency for the applicants or the body corporate to remove the remaining panels and tracks, if in fact they need to be removed.
• [47] As noted above, it is not clear that the body corporate has provided the insurer with the GCCC letter of 23 May and email of 9 June. While an amended completion letter has not yet been provided, it seems difficult to envisage that the insurer would not accept those two items of correspondence, when read together, as evidence that the GCCC no longer has any compliance concerns with the Lot 13 balcony. Moreover, it seems likely that a revised letter from the GCCC will be provided well before 6 August.
• [48] The insurer also says there is a need to confirm that an Axis requirement has been completed. Although the supplied text of the insurer's response refers to the date 20 May 2025, it appears the reference is to the Axis report of 20 May 2024 which said the balconies drainage system should be reviewed by a hydraulic engineer to confirm the existing stormwater drainage system is not comprised by the location of door tracks over the outlets. I have been given no information from the parties as to whether either have obtained advice from a hydraulic engineer on this issue. If they have not, presumably that should be obtained and given to the insurer by 6 August. But any need to obtain that advice to satisfy the insurer does not of itself form a basis for the body corporate to remove the panels and tracks.

• [49] The onus is on the body corporate to provide evidence and relevant argument to substantiate its request to cancel the interim order. I do not consider it has presented sufficient basis to warrant the cancellation of the interim order. It has not demonstrated that the circumstances have significantly altered since the interim order was made, except in respect of matters that actually favour the retention of the interim order. While the body corporate may want the panels to be removed, it has not yet established that it has a right to enter the lot to remove them. Accordingly, I decline to exercise my power under section 279(2)(b) of the Act to cancel the interim order made on 11 April 2025.
• [50] The application will now be referred back to the Commissioner.[9] I previously recommended to the Commissioner that the dispute be referred to conciliation to see if the parties could reach an agreement on how to progress any ongoing concerns, including any application for approval of the remaining panels and any other information reasonably required. I understand that process was pending confirmation of the GCCC decision. In the current circumstances, I see no reason that could not proceed promptly.

[1] Thirty Four Riverwalk [2025] QBCCMCmr 124

[3] See sections 227, 228, 276 and schedule 5 of the Act