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austlii:qld/QBCCMCmr/2026/22
General information, not legal advice.
QBCCMCmr
2026-02-02
Original judgment source is linked above.
Twin Waters Garden Villas [2026] QBCCMCmr 22
The Body Corporate for Twin Waters Garden Villas (respondent)
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)
BY-LAWS; IMPROVEMENT TO LOT - whether three lots were modified in contravention of the by-laws; whether the body corporate should enforce the by-laws.
COMMITTEE ELIGIBILITY - whether two owners were ineligible to serve on the committee because their mother was the de facto partner of the caretaking service contractor.
FINANCIAL MANAGEMENT - whether the body corporate is unlawfully spending:
whether the body corporate should attempt to recover the expenditure.
BODY CORPORATE RECORDS - whether the body corporate must obtain various records from the original owner/former caretaking service contractor.
[1] Mr and Ms Wessels of lot 14 seek the following orders against the body corporate:
FINAL ORDER 1:
1.1 Direct the Body Corporate to enforce by-laws to address and rectify unauthorized modifications and violations committed on Lots 60,125, and 126.
1.2 Declare the maintenance of unlawful and unauthorized modifications as the lot owners' responsibility.
FINAL ORDER 2:
2.1 Declare that Andrew Knothe and Nicole Knothe, directors of Sandy-Vee Pty Ltd, were ineligible for committee membership from 2002 until mid-2022 as associates of the Caretaking Contractor, John Volpe of Pacific Paradise Resort Pty Ltd, due to familial relationship - namely, that their mother, Eva Knothe, was the long-term de facto partner of John Volpe until her passing.
2.2 Declare Andrew Knothe as an associate of the Caretaking Contractor, under Section 309(2)(f) of the BCCM Act, due to his habitual conduct in accordance with the contractors wishes.
FINAL ORDER 3:
3.1 Declare private lot gardening services, private lot pest control, maintenance inside the boundaries of lots, and payment for services covered under the caretaking agreement; cannot be levied on owners as they are not part of common property expenses.
3.2 Direct the body corporate to take reasonable steps to recover unlawfully spent funds.
3.3 Direct the Body Corporate to ratify expenditures by formally seeking approval of those deemed lawful and compliant with legislative requirements adhering to the $10,000 Major spending limit and $61,000 Committee spending limit.
3.4 Direct the Body Corporate to Implement a structured maintenance plan to address urgent repairs and ongoing maintenance needs, only using suitably licenced contractors, and adhering to a Sinking Fund Forecast.
FINAL ORDER 4:
Direct the Body Corporate to secure body corporate records pertaining to the development and operation of the scheme, including infrastructure drawings and engineering certifications from the Developer, and building certificates and warranties for work conducted at the scheme.
[2] In 2008, the body corporate resolved to permit then caretaking service contractor, Pacific Paradise Resort, to convert lot 60 from a café to a residence and to subdivide lot 111 into lot 125, to be used as an office, and lot 126, to be used as a café or restaurant. Mr and Ms Wessels say lot 60 was subsequently converted into two apartments, lot 125 was modified to include a two bedroom apartment, and lot 126 was modified to include a roofing structure.
[3] Mr and Ms Wessels are not challenging the 2008 resolutions approving the changes to lots 60 and 111. Instead, they argue there are ongoing breaches of by-laws and local government planning requirements the body corporate should address.
[4] Breaches of planning regulations are not my concern as an adjudicator charged with resolving disputes arising under the present Act.[1] The Sunshine Coast Council issued a show cause notice on 19 June 2024 and will presumably do whatever is appropriate to address any planning irregularities.
[5] The ongoing by-law contraventions are said to relate to by-laws:
[6] Mr and Ms Wessels have not detailed how these by-laws are being contravened. It is not evident how the modifications to these lots have damaged the common property, injured the reputation of the scheme, altered any structural elements beyond what was approved in 2008, or increased the rate of fire insurance.
[7] Mr and Ms Wessels also refer to section 177 of the Accommodation Module, suggesting improvements have been made to the common property without body corporate approval. But they have not set out the nature of any such improvements.
[8] As for the request for a declaration that the owner of the lots is responsible for the maintenance of the "unlawful and unauthorised modifications", I am not persuaded that is warranted. It is not evident that any modifications are "unlawful or unauthorised", nor that the body corporate has been maintaining anything it should not. Mr and Ms Wessels compiled a list of repairs to lot 60 carried out by the body corporate, but with insufficient detail or context to demonstrate that they did not relate to body corporate maintenance obligations. Some of them concerned the roof, which is common property under a building format plan. Some concerned utility infrastructure, which may or may not have been common property depending upon its precise location and function.[2] Some repairs may have been necessary because the body corporate failed to meet its statutory maintenance obligations. For instance, if the roof was defective and allowed water into the lot, the body corporate could have been liable for any consequent water damage.[3]
[9] Mr and Ms Wessels seek a declaration that Mr and Ms Knothe were ineligible to serve on the body corporate committee between 2002 and 2022 because their mother was the de facto partner of the caretaking service contractor. An associate of a service contractor or letting agent is ineligible to be a voting member of the committee.[4] "Associate" includes a de facto partner, an ascendant or descendant, or a series of those relationships.[5]
[10] There is no utility to an order in those terms. That period has passed. The caretaking service contractor has sold the management and letting rights. Mr and Ms Knothe's mother has passed away. Mr and Ms Wessels do not seek any substantive orders contingent upon first establishing that some members of the committee were ineligible between 2002 and 2022. The majority of the High Court said in Ainsworth v Criminal Justice Commission:
... declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have a 'real interest' and relief will not be granted if the question is 'purely hypothetical'...[6]
[11] Mr and Ms Wessels also seek a declaration that Mr Knothe continues to be an associate of the caretaking service contractor because he is "accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes" of the caretaker.[7] They refer to various decisions Mr Knothe has made over the years that they regard as favourable to the caretaker's interests.
[12] But there is no evidence that Mr Knothe made those decisions because he felt any compulsion to act in accordance with the caretaker's wishes. There is no evidence that the caretaker directed him to vote as he did. Mr Knothe may simply have felt those were the best decisions. The decisions were often supported by other committee members too, yet Mr and Ms Wessels do not suggest those committee members were acting under the direction of the caretaker.
[13] The caretaker has changed anyway. Any association Mr Knothe may have had with the former caretaker is irrelevant to his present eligibility to serve on the committee.
[14] Mr and Ms Wessels claim a range of irregularities with body corporate spending:
The body corporate is continuing to approve spending on known unlawful items, including private lot gardening services, private lot pest control while ignoring the private lot termite risk, maintenance items that should be the owners responsibility or falls under the caretaking agreement, payments in excess of $200,000 to a contractor completing building works without adhering to QBCC requirements, and discretionary spending while ignoring owner maintenance requests and the established Sinking Fund forecast. The funds are spent without obtaining competitive quotations, without appropriate voting approvals, and without confirmation that services have been received or works completed.
[15] There seems to be an ongoing controversy about the body corporate paying the caretaking service contractor to mow private yards within the lots at Twin Waters Garden Villas. Generally speaking, owners should maintain their lots in good condition, while the body corporate takes care of the common property.[8]
[16] However, the body corporate may supply or engage someone to supply maintenance services to owners.[9] In doing so it must ensure "to the greatest practicable extent" that the cost is borne by the users of the service,[10] but it may supply the service irrespective of whether it has cost recovery arrangements in place with users.[11]
[17] There may be room for debate about whether the body corporate is recovering the cost of the service from users "to the greatest practicable extent". But the specific relief sought by Mr and Ms Wessels is a declaration that "private lot gardening services...cannot be levied on owners as they are not part of common property expenses". That is too broad. Once the body corporate has recovered the "greatest practicable" portion of the cost of a service from users, anything remaining will need to be met by the body corporate. The body corporate funds its general expenses by levying owners.
[18] The body corporate may also carry out work required of owners if they fail to carry it out.[12] Committee minutes of 13 August 2024 following the temporary cessation of the mowing service noted "the decision to not maintain the lawns and gardens is making the complex look run down". While the body corporate may seek to recover the cost of such work from the relevant owner,[13] if it does not exercise that prerogative or is unsuccessful, it will need to cover the cost from funds raised by levying owners.
[19] Similar considerations arise with respect to pest control within lots. It is ordinarily undertaken by the lot owner to ensure the lot remains in good condition, though it is also a service that may be supplied by the body corporate or that the body corporate may carry out if the owner fails to. Committee minutes of 4 June 2025 mention (while resolving to carry out pest control in all lots for $6,655) that "some owners are not performing pest control and there is a pest issue". Accordingly, I cannot make the general declaration that owners must not be levied for private lot pest control. They may be so levied in some circumstances.
[20] For the same reasons, I will not make the even broader declaration that owners may not be levied for "maintenance inside the boundaries of lots". That declaration would also be contrary to the body corporate's maintenance responsibilities as set out at section 170(2) of the Accommodation Module, some of which apply to building elements within lot boundaries.
[21] The final part of the requested declaration relates to "payment for services covered under the caretaking agreement". A March 2025 financial audit identified three payments for services that should have been performed by the caretaker under the terms of its engagement.
[22] The body corporate is under no specific legal obligation not to make duplicative payments, though it must act reasonably in the exercise of its functions, including its administration of the common property and body corporate assets for the benefit of owners.[14] I expect that means not paying for the same thing twice in most circumstances. But I hesitate to say that should never occur. There may be a need to have something done more quickly than the caretaker alone could do it. Or another service provider might be able to do it to a higher standard. It would not necessarily always be unreasonable, so I cannot make this declaration either.
[23] Mr and Ms Wessels ask that I direct the body corporate to "take reasonable steps to recover unlawfully spent funds". They do not elaborate on what the reasonable steps might be, nor detail the funds that ought to be recovered. An order in these terms would be too vague to comply with and could not be enforced.
[24] They presumably mean the money spent on work within lots and work that should have been done by the caretaker under the terms of its engagement. But it is not evident that the body corporate was not entitled to carry out any work within lots or engage others to provide services that might have been provided by the caretaker. It is also far from clear that the body corporate could recover any money spent in this way. The caretaker has changed, and any transactions with third parties are likely covered by section 310 of the Act:
Protection of persons dealing with body corporate
If a person, honestly and without notice of an irregularity, enters into a transaction with a member of the committee for the body corporate for a community titles scheme or a person who has apparent authority to bind the body corporate, the transaction is valid and binding on the body corporate.
[25] Mr and Ms Wessels also ask that I direct the body corporate to ratify unspecified expenditures "adhering to the $10,000 major spending limit and $61,000 committee spending limit". Little evidence has been tendered concerning breaches of the committee and major spending limits.
[26] Mr and Ms Wessels refer to several resolutions of a committee meeting on 4 June 2025 they say involved expenditure above the default "relevant limit for major spending" of $10,000 but were passed without considering two quotations.
[27] Motion 3.2 was an update on the waterproofing of lot balconies and did not seek authority for expenditure. It did not activate the obligation to "obtain and consider at least 2 quotations".[15]
[28] Motions 3.1, 10.2 and 10.3 all proposed expenditure exceeding $10,000 for different purposes without referring to any quotations. They all took the form "that the committee approve expenditure to the value of $X to" install a toilet/repair the tennis court lights/resurface the tennis court/purchase a mower. They did not give effect to any specific proposal, such as to accept the quotation for $8,500 to buy mower Y from supplier Z. They read more as a statement of intent before someone went to the trouble of investigating further.
[29] Of themselves, the motions are largely ineffective. They do nothing more than express the committee's agreement to spend "up to" a particular sum addressing each issue. They are not authority to engage any particular person or give effect to any specific quotation. Before doing that, the body corporate will need to vote on a further motion. If the specific proposed expenditure will exceed the major spending limit, the committee must first consider at least two quotations. If that does not occur, there will be an irregularity requiring correction or ratification.
[30] No clear rationale for the final part of order 3 - that the body corporate "implement a structured maintenance plan to address urgent repairs and ongoing maintenance needs, only using suitably licenced contractors, and adhering to a Sinking Fund Forecast" - was given in the application. They are sensible suggestions, but not specific legal obligations. The body corporate must maintain certain elements of scheme land in good, or structurally sound, condition.[16] Each body corporate can decide for itself how best to achieve those ends. I am not satisfied there is any basis for an order in these terms.
"SECURE BODY CORPORATE RECORDS PERTAINING TO THE DEVELOPMENT AND OPERATION OF THE SCHEME"
[31] Mr and Ms Wessels believe the former caretaker, who they say was also the developer of the scheme, "failed to hand over essential body corporate records despite repeated requests". They say "the body corporate has a duty to maintain comprehensive records related to the development and ongoing operation of the scheme."
[32] Mr and Ms Wessels refer to section 86 of the Accommodation Module, which requires the original owner to give certain records to the body corporate at the scheme's first annual general meeting. It imposes an obligation upon the original owner, not the body corporate.
[33] The body corporate is required to keep certain records,[17] but there is nothing to compel it to acquire records it does not possess.
[34] For these reasons, the application is dismissed in its entirety.
[35] The committee says the application is "wholly misconceived and without substance", and vexatious because:
All the allegations in the application relate to the original owner, in one capacity or another, and attempt to procure the respondent to take action against the original owner, without valid grounds.
[36] It seeks $2,000 from Mr and Ms Wessels to compensate it for loss resulting from the application.[18]
[37] The application is more insufficiently explained than lacking substance. Some of the irregularities argued by Mr and Ms Wessels may exist but are not adequately substantiated and/or do not justify the orders sought.
[38] The fact that many of the issues concerned the former caretaking service contractor does not necessarily make the application vexatious. They were issues of body corporate administration - by-law enforcement, committee eligibility, inefficient or irregular financial practices - capable of provoking the concern of owners without resort to interpersonal malice.
[39] I also note that Mr and Ms Wessels have made no other applications against the body corporate since buying at Twin Waters Garden Villas in 2022.
[40] In these circumstances, I am not satisfied costs are warranted.
[6] [1992] HCA 10 at [38].
[8] Accommodation Module, ss 170(1) & 201(3).
[11] Henderson & Anor v The Body Corporate for Merrimac Heights [2011] QSC 336 at [26].
[16] Accommodation Module, s 170(1)-(2).