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austlii:qld/QBCCMCmr/2026/109
General information, not legal advice.
QBCCMCmr
2026-04-16
Original judgment source is linked above.
Beris Joan Halsey & The Body Corporate for Wolfdane Place CTS 5300 (respondents)
Body Corporate and Community Management Act 1997 (Qld) (Act), &(b) and (3)(a)
[1] Wolfdane Place is a duplex. Ms Ontiveros owns lot 2 and Ms Halsey owns lot 1.
[2] The scheme appears to be operating informally, with owners meeting body corporate expenses on an ad hoc basis rather than setting budgets and levying owners for financial contributions in advance as required.
[3] Ms Ontiveros seeks orders against the body corporate and Ms Halsey in relation to insurance, maintenance of stairs on common property, and a proposed exclusive use by-law. Specifically:
ORDER 1:
Beris Halsey to reimburse lot owners of 2/13 Waratah Avenue for $1,228.50 for AAMI Strata Title Insurance Policy HAS154904137 for insurance coverage from 14 October 2024 to 14 October 2025.
ORDER 2
Beris Halsey to reimburse lot owners of 2/13 Waratah Avenue for $1,544.42 for AAMI Strata Title Insurance Policy HAS154904137 for insurance coverage from 14 October 2025 to 14 October 2026.
ORDER 3
Beris Halsey agrees to Bucky's concreting and excavation quote. Beris to pay 50% of the total cost of $9,416.00, which would be $4,708.
ORDER 4
Beris Halsey confirms lot owners of 2/13 Waratah Avenue engage and pay for a surveyor to draw up a new building/property plan and amend the community management statement to make it legally binding with a clause to enable both lot owners unrestricted access to water mains/pipes and electricity metres.
[5] The body corporate should adopt an administrative fund budget for each financial year that includes foreseeable expenses such as insurance,[3] then levy owners to raise the necessary funds.[4] Owners must generally contribute to the cost of insurance in accordance with the interest schedule lot entitlements recorded for their lot in the scheme's community management statement, and contribute to other aspects of the budget in accordance with their lot's contribution schedule lot entitlements.[5] That distinction is immaterial at Wolfdane Place where all lots' contribution and interest schedule lot entitlement are the same, meaning all expenses should be shared equally irrespective of whether they relate to insurance or other items.
[6] Both Ms Ontiveros and Ms Halsey purchased insurance for the body corporate for 2024-25 and 2025-26. However, Ms Ontiveros' insured the building for $635,000 at a cost of $2,457.23 in 2024-25, and $666,800 at a cost of $3,088.84 in 2025-26. Ms Halsey insured it for $50,000 at a cost of $629.51 in 2024-25, and $52,500 at a cost of $849.82 in 2025-26. Building reinstatement insurance is required to be for full replacement value. The body corporate ought to have a valuation done at least every five years to determine the amount.[6] While no valuation has been submitted, and I assume one has not been done given the informal operation of this scheme, $50,000 is plainly far short of the cost of rebuilding a two-story brick building on the Gold Coast in 2024-26.
[7] Ms Ontiveros appears to have purchased the insurance the Standard Module requires. Had the body corporate been functioning correctly, Ms Halsey would have paid half. On that basis I will order her to pay the reimbursement sought at orders 1 and 2.
[8] A flight of concrete stairs on common property descending from Waratah Avenue is in poor condition. Ms Halsey claimed in her submission that this area is public land, but Building Units Plan 10039 clearly shows that scheme land extends to Waratah Avenue. The stairs were rebuilt in November 2024, but the work was poor. They are visibly sloping and uneven in Ms Ontiveros' photographs, and a building inspector from the Queensland Building and Construction Commission reported:
The installation of the concrete steps to the entrance of the dwelling is not in accordance with the 2022 National Construction Code - Volume 2 - 11.2 - Stairway and Ramp Construction, in that the steps/landings are not considered level, consisting of excessive steep descents, more than the maximum requirement of 1:50. We measured an average gradient of 377mm fall over 1m and the 8 x steps/landings that have inconsistent goings measuring between 1690mm and 895mm, resulting in a health and safety hazard for the residing occupants and an incomplete and aesthetically displeasing finish not to a standard expected of a competent license holder of the completion of work.[7]
[9] Ms Ontiveros submitted three quotations, which she also gave to Ms Halsey in July 2025. The quotation she hopes to give effect pursuant to order 3 was the cheapest. Ms Halsey says she has also been pursuing quotations though she did not submit copies of any.
[10] The body corporate must maintain the common property in good condition.[8] That means it must repair or replace the stairs.
[11] To authorise expenditure at this level the body corporate would usually pass an ordinary resolution at a general meeting following consideration of at least two quotations. Any owner could submit quotations and they would be combined as a group of same issue motions. Alternatively, the body corporate committee, which by default consists of the owners of both lots or their representatives at a scheme with only two lots,[9] could carry out the expenditure with the written consent of both owners.
[12] None of that has occurred despite the passage of some nine months. The stairs remain in poor condition and the body corporate remains in breach of its maintenance obligation.
[13] To bring this contravention to an end, I will order the body corporate to have the stairs repaired in accordance with the quotation proposed by Ms Ontiveros. It is the cheapest available and there is nothing obviously wrong with it. Each owner is to contribute 50% of the cost in accordance with their contribution schedule lot entitlements, with at least 30 days notice as usually applies when the body corporate requests payment of contributions.[10]
[14] The common property is owned by all lot owners as tenants in common in shares proportionate to the interest schedule lot entitlements for their lots.[11] In other words, Mses Ontiveros and Halsey each own half of the entirety of the common property. Neither is permitted to exclude the other from any part of the common property unless there has been a disposal of it in their favour in one of the ways contemplated in the Act or Standard Module, such as via an exclusive use by-law, lease, or licence.[12] None of those are in effect at Wolfdane Place.
[15] Nevertheless, Ms Ontiveros says each lot does in fact use part of the common property to the exclusion of the other, and one section is fenced off for the use of Ms Halsey's tenant. Ms Ontiveros wishes to formalise this arrangement by adopting an exclusive use by-law. She hopes to construct an additional room and carport in her new exclusive use area. That is apparently the intention of order 4, though it does not quite say that. It asks only that Ms Ontiveros be permitted to engage a surveyor, which she is entitled to do without an order, and that the community management statement be amended so it is legally binding, which it already is.[13] I gather the proposed clause relating to unrestricted access to water mains and electricity meters is intended to clarify that the new exclusive use by-law would not permit those things to be obstructed.
[16] Ms Halsey is opposed to the proposed exclusive use by-law because she (incorrectly) believes the carport would be on public land, and she says the new room would obstruct views from her lot and access to the meter box.
[17] A decision to record a community management statement incorporating a new exclusive use by-law can only be made by resolution without dissent at a general meeting.[14] If the motion fails, that decision may only be reversed by an adjudicator if satisfied that the opposition to the motion was unreasonable in the circumstances.[15]
[18] But no motion has been put to a general meeting proposing the exclusive use by-law Ms Ontiveros desires. Ms Ontiveros and her partner purported to call an extraordinary general meeting on 28 July 2025, but I am not aware that one was held. A general meeting can only be called by the committee anyway,[16] and it requires at least 21 days notice.[17] The notice of 28 July suggested the meeting might be held as early as 3 August.
[19] Further, the only relevant motion on the notice was the following:
Confirm owners of 2/13 Waratah Ave can engage a registered surveyor to prepare a survey plan for lots 1 & 2. Owners of 2/13 will pay the total cost.
[20] The motion did not propose recording a new community management statement with a new exclusive use by-law, nor provide the terms of the by-law, nor identify the areas of common property that would be subject to the by-law. Had the general meeting been held and the motion resolved in the affirmative, there would still be no authority to record a new community management statement with an exclusive use by-law. There would only be authority for Ms Ontiveros to engage a surveyor at her cost, which she can do without the body corporate's approval.
[21] Until a proper motion is put to a general meeting and fails to pass, there is no role for an adjudicator. Ms Ontiveros must seek exclusive use in accordance with the Act in the first instance. This part of the application is dismissed.
[22] It might be useful for both parties to note that Ms Ontiveros would not automatically be entitled to construct her desired improvements if she gained exclusive use of those areas of common property. An improvement may only be made within an exclusive use area if authorised by the exclusive use by-law, or separately authorised by the body corporate.[18]
[5] Standard Module, ss 162(5), 197(4), 201(1)(a).
[7] Monty Koen, letter to Ms Ontiveros of 7 May 2025.
[12] Platt v Ciriello [1997] QCA 33.
[15] Act, schedule 5, clause 10; Ainsworth v Albrecht [2016] HCA 40 at [18] & [27].