REALM PROPERTY MANAGEMENT PTY LTD v COMMUNITY CORPORATION NO 42055 INC [2026] SASC 41

First Applicant: REALM PROPERTY MANAGEMENT PTY LTD Counsel: MR R WHITINGTON KC WITH MR T KENTISH - Solicitor: GRIFFIN LAWYERS Second Respondent: COMMUNITY CORPORATION NO 42055 INC Counsel: MR T DUGGAN KC WITH MR E BELPERIO - Solicitor: PIPER ALDERMAN Hearing Date/s: 16/03/2026 File No/s: CIV-22-001951 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. REALM PROPERTY MANAGEMENT PTY LTD & ANOR v COMMUNITY CORPORATION NO 42055 INC (No 2) [2026] SASC 41 Reasons for Decision of the Honourable Justice Kimber 2 April 2026 EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - RELEVANT CONSIDERATIONS - BALANCE OF CONVENIENCE GENERALLY EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - SERIOUS QUESTION TO BE TRIED - GENERALLY These proceedings relate to a building in Austin Street, Adelaide known as the Realm Building (the Realm Building). Following trial, a judgment was handed down which found that the amended by-laws (the amended by-laws) of the high-rise corporation (HRC) within the Realm Building are valid, among other things, prohibit short-term letting and may be enforced without breaching express or implied terms of a contrast between the first applicant at trial (Realm Property Management Pty Ltd or RPM) and the HRC. The judgment is the subject of an appeal and a cross-appeal. This is an interlocutory application by RPM for relief until the appeal is determined. The HRC was the second respondent at trial. RPM seeks an order restraining the HRC from enforcing that part of the amended by-laws against RPM which prohibit short-term letting within the high-rise section of the Realm Building because such enforcement would cause substantial and irreparable harm to RPM in loss of revenue. The HRC opposes the application and submits that it is entitled to the fruits of its success at trial which should only be disturbed if the failure to grant the application may involve serious and arguably irreversible damage to RPM and the loss of valuable rights. Held: -- 1 of 9 -- 1. The second respondent is restrained from taking action to enforce any alterations of its by-laws to prohibit short-term letting of apartments for less than two months for the duration of the letting agreement as against the first applicant, pending the hearing and determination of the first applicant’s appeal. Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; McVicars v South Australian Housing Trust (No 2) [2025] SASCA 56; Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 87; Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110, applied. Network Ten Pty Ltd v Rowe [2006] NSWCA 4, considered. -- 2 of 9 -- REALM PROPERTY MANAGEMENT PTY LTD & ANOR v COMMUNITY CORPORATION NO 42055 INC (No 2) [2026] SASC 41 Civil: Application KIMBER J. 1 This is an application by the first applicant in the proceedings (Realm Property Management Pty Ltd or RPM) for interlocutory relief until an appeal is determined (the application). 2 The proceedings involve a building in the city of Adelaide at 9 to 19 Austin Street which is known as the Realm Building (the Realm Building). There has been a trial. Following that trial, on 21 October 2025, I handed down a judgment (Realm Property Management Pty Ltd & Anor v Community Corporation No 42055 Inc [2025] SASC 172) (the judgment). The judgment is the subject of an appeal and a cross-appeal. RPM was the first applicant at trial, is the applicant in this application and is the appellant in the appeal. What may be referred to as the high-rise corporation (HRC) within the Realm Building was the second respondent at trial, is the respondent in this application and is the cross-appellant in the appeal. 3 The appeal and cross-appeal are listed in the Court of Appeal in September 2026. Background 4 Within the Realm Building are many apartments in what can be referred to as the low-rise section and the high-rise section. Each has its own community corporation and by-laws. In both the low-rise section and the high-rise section, some apartments are occupied by owners, others are owned by investors and are subject to letting agreements. Some of the letting agreements are for long-term rental (i.e. – more than two months) others are for short-term rental (i.e. – less than two months). RPM is the letting agent for several apartments in both the low-rise and high-rise sections. There is a letting agreement between RPM and the HRC. Among other things, that letting agreement confers certain rights to RPM and provides RPM with advantages not enjoyed by other prospective letting agents. For reasons set out in the judgment, RPM has a particular interest in short-term letting appointments as they are more profitable than long-term letting appointments. 5 In the judgment, among other things, and contrary to the position of RPM at trial, I found that what may be referred to as the amended by-laws of the HRC (the amended by-laws) are valid and prohibit short-term letting. I also found that, contrary to the position of RPM at trial, the amended by-laws could be enforced by the HRC without it being in breach of an express or implied term of the letting agreement between it and RPM. -- 3 of 9 -- [2026] SASC 41 Kimber J 2 6 Until the appeal is decided, RPM seeks an order restraining the HRC from enforcing that part of the amended by-laws against RPM which prohibit short-term letting within the high-rise section of the Realm Building. The amended by-laws were relevantly amended by special resolution of the HRC in December 2022. However, due to orders made in the District Court and this Court following applications by RPM, they could not be enforced by the HRC before the judgment. Further, notwithstanding the relevant findings in the judgment in favour of the HRC, such restraint has remained in place since 21 October 2025 due to further orders made by this Court. On the day of the judgment, with the consent of RPM and the HRC, I suspended all orders set out within the judgment to enable the parties to consider the judgment. Subsequently, the HRC consented to an order that the restraint upon it acting on the amended by-laws remain in place until submissions were made. Those submissions were made on 16 March 2026. A brief outline of the position of RPM 7 RPM has proffered an undertaking as to damages. In support of its application, RPM relies upon affidavits of Ziquan Liu made 14 November 2025 and Tawfiq Mostafa made 23 February 2026. 8 Consistent with the position that it took at trial, RPM will argue on appeal that the HRC should be permanently restrained from acting on the amended by-laws as to do so would breach an express or implied term(s) of the letting agreement between it and the HRC. 9 RPM submits that it has a sufficiently arguable case on appeal such that it is appropriate that I make an order that would maintain the status quo pending determination of the appeal. RPM submits that enforcement by the HRC of any prohibition against RPM of short-term letting in the high-rise section pending appeal would cause substantial and irreparable harm to RPM in loss of revenue. RPM makes materially greater profits from managing its short-term letting appointments in the high-rise section as compared to its long-term letting appointments within that same section. RPM submits that, if the application is not granted and it succeeds on appeal, then RPM will have lost profits; that the calculation of that loss is difficult; and RPM will have shut down and must then restart short-term letting operations within the high-rise section. RPM submits that there is no obvious prejudice to the HRC should enforcement of the amended by-laws continue to be restrained for the period sought. A brief outline of the position of the HRC 10 The HRC opposes the application. It relies upon several affidavits which were tendered at trial and a more recent affidavit of Andrew Robertson made 16 February 2026 for the specific purpose of the application. Very broadly, the affidavits speak to the impact of short-term letting appointments upon residents within the high-rise section. -- 4 of 9 -- [2026] SASC 41 Kimber J 3 11 The HRC recognises that RPM has proffered an undertaking as to damages but submits that will be inadequate to compensate for the impact upon residents within the high-rise section and their inability to live as they wish without short-term letting appointments. 12 Due to the proceedings and past orders, the HRC submits that, since about January 2022, it has been restrained from acting on the amended by-laws which are valid as found in the judgment. The HRC submits that it is entitled to the fruits of its success at trial and the relevant findings and orders made in the judgment. The HRC submits that the fruits of its success should only be disturbed and the application granted if the failure to do so may involve serious and arguably irreversible damage to RPM and the loss of valuable rights.1 The HRC submits that would not be a proper characterisation of any damage asserted by RPM should its application be refused. 13 The HRC submits that it cannot be restrained from enforcing the amended by-laws which have been validly passed. The HRC goes so far as to submit that, even if RPM succeeds in the appeal, the relevant order which will sought by RPM on appeal (i.e. – permanent restraint upon the amended by-laws being enforced) is not an order to which RPM will be entitled. 14 The HRC directs attention to clauses within the amended by-laws which purport to make it an offence to contravene those by-laws and purport to define penalties. The amended by-laws relevantly provide: 33. Offence Any person who contravenes or fails to comply with the provisions contained in these By-Laws or Rules is guilty of an offence. 34. Penalty The maximum penalty for the breach of any of these By-Laws or the Rules is such amount as may from time to time be prescribed by the Act presently: 34.1 used for business, retail or commercial purposes - $2,000.00; and 34.2 any other case - $500.00. 15 Against the background of the by-laws immediately above, the HRC directs attention to s 75 of the Community Titles Act 1996 (SA) (the CT Act) which provides for the functions and powers of the HRC. The HRC submits that it should not be restrained from exercising powers and functions provided by the CT Act, one of which is a function to enforce the amended by-laws. However, as submitted by RPM, s 75 of the CT Act is not necessarily only to be construed as compelling the HRC to enforce the amended by-laws. 1 Network Ten Pty Ltd v Rowe [2006] NSWCA 4, [11]. -- 5 of 9 -- [2026] SASC 41 Kimber J 4 Some principles 16 To obtain the interlocutory relief it seeks, RPM must show that:2 1. firstly, that there is a serious question to be tried, in the sense that it can show a prima facie case for, or ‘sufficient colour of right’3 to, the final relief, in aid of which interlocutory relief is sought to justify in the circumstances the preservation of the status quo pending a final hearing; and 2. second, that the balance of convenience favours the grant of the injunction sought. 17 The two above criteria are inter-related. In the context of considering an application for an interlocutory injunction pending appeal, Livesey P recently observed in McVicars v South Australian Housing Trust (No 2):4 There is a recognised inter-relationship between the strength of the serious question and the balance of convenience or, as it is sometimes described, “the risk of doing an injustice”. That is to say, an apparently strong prima facie case may warrant an injunction even where there is scant evidence of prejudice or the balance of convenience is finally balanced. By contrast, even if there were room to doubt the strength of the serious question, an injunction may be appropriate where the balance of convenience strongly favours making the order. 18 It is generally necessary to inquire whether the applicant for relief is likely to suffer an injury for which damages will not be an adequate remedy, although that may be an aspect of the balance of convenience inquiry. Special or exceptional circumstances are not generally required to stay the execution of orders where the appeal lies as of right.5 19 In Jesasu Pty Ltd v Minister for Mineral Resources,6 Kirby P held: Each application must be determined on its own merits and on the facts proved. An injunction (which may have drastic consequences) is not relief to be given by a court lightly and simply for the asking for it. Where sought to protect the utility of an appeal, a proper case must be established. But once established, the injunction will issue on the usual or special terms. The position may be different where the appeal is futile or plainly meritless. The position may also be different where what is involved is not a first level appeal (as of right) but a further appeal, particularly one which needs the leave or special leave of an appellate court. Serious question be tried 20 I am satisfied that there is a serious question to be tried. 2 See Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199, 217– 218; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 81–82 [65] (Gummow and Hayne JJ); McVicars v South Australian Housing Trust (No 2) [2025] SASCA 56, [6]–[8]. 3 Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199. 217 [11]. 4 McVicars v South Australian Housing Trust (No 2) [2025] SASCA 56, [8]. 5 Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 87, [13]. 6 (1987) 11 NSWLR 110, 117. -- 6 of 9 -- [2026] SASC 41 Kimber J 5 21 Whether enforcement of the amended by-laws would amount to a breach by the HRC of the letting agreement between it and RPM depends upon the construction of the relevant term within that letting agreement. As I observed in the judgment, at least to my mind, that construction question is not without difficulty. For that reason, I am satisfied there is a serious issue to be tried. It may also be observed that, if RPM succeeds on appeal, there is a serious question to be tried with respect to whether it is entitled to the permanent restraint which it will seek. While the HRC will contend on appeal, at least in part, that such restraint is not available given s 75 of the CT Act, that contention is based, at least in part, upon the terms of s 75 of the CT Act. In my view, it is by no means clear that s 75 of the CT Act is an obstacle to the relief which will be sought by RPM. The balance of convenience 22 With respect to the balance of convenience, RPM submits that it favours the relief sought. 23 RPM submits that if the relief is not granted, it stands to suffer substantial and irreparable harm, including significant commercial disruption to its business. RPM directs attention to me having found in the judgment that, if RPM is prohibited from conducting short-term letting, it would suffer a substantial loss in profits. In this regard, RPM also directs attention to the affidavit of Mr Liu which, while subject to several variables which make potential loss difficult to quantify, is to the effect that, based on the number and breakdown of apartments managed by RPM on a short-term basis as at November 2025, and assuming that all of those apartments could be converted to long-term rentals which were managed by RPM, RPM would nonetheless lose an estimated $14,758 per month, or about $177,000 per year in profits. 24 Further, RPM submits that the calculation of the relevant potential loss is significantly complicated by the fact that, as I found in the judgment, the relevant letting agreement is just one of a suite of agreements entered into by RPM as part of a single overall transaction. Other agreements in that suite are an equivalent letting agreement with the low-rise corporation and caretaking agreements with both the HRC and the low-rise corporation. 25 For its part, the HRC submits that the balance of convenience question does not favour the position of RPM. The HRC relies upon the affidavits earlier mentioned which, among other things, outline the behaviour of persons whom the HRC believes are connected to short-term letting appointments within the Realm Building. It is submitted that the behaviour of such persons is having a detrimental impact upon the amenity of residents within the high-rise section. 26 For the purposes of the application, it may be accepted that several long-term residents in the high-rise section feel very strongly that their amenity is being adversely impacted by those connected with apartments used for short-term letting within the Realm Building. Nevertheless, several observations may be made which limit the significance of the relevant matters within the affidavits relied upon -- 7 of 9 -- [2026] SASC 41 Kimber J 6 by the HRC. Short-term letting is permitted in the low-rise section of the building and will continue regardless of the outcome of this application. That is significant as some of the conduct referred to in the affidavits relied upon by the HRC in the application is connected to an apartment(s) within the low-rise section. Such conduct is irrelevant on this application. In so far as there is conduct referred to which has taken place in common areas, those areas are accessible to those connected to both the high-rise and low-rise sections. It follows that the weight of that evidence must be considered bearing in mind that it is only conduct by persons connected to apartments in the high-rise section which can weigh in favour of the position of the HRC. While some of the conduct referred to in the affidavits relied upon by the HRC may be accepted as being the conduct of persons connected to apartments being used for short-term letting in the high-rise section and is therefore of weight in the application, the significance of that evidence must be considered keeping in mind that there is a serious question to be tried about whether short-term letting appointments will continue in the high-rise section after the appeal. 27 Further, I am satisfied that, if the application is not granted but RPM succeeds on appeal, there is substantial evidence that the likely financial impact upon RPM may be significant. In addition, if RPM succeeded on appeal, that impact is unlikely to cease immediately. Even after a successful appeal, there may be apartments currently let on a short-term basis by RPM which had been let long-term between any refusal of the application and determination of the appeal. Any such long-term appointments, which are substantially less profitable, would have to be honoured. Conclusion 28 The merits of the application are relatively finely balanced. 29 That there is a serious question to be tried weighs significantly in favour of the relief sought being appropriate. 30 The question of the balance of convenience is more finely balanced than the above consideration. If RPM succeeds on appeal, RPM is likely to have suffered a significant loss, the extent of which is difficult to quantify. However, I cannot find that RPM could not sustain that loss. This is not a matter in which the failure to grant the relief sought would remove the utility of the relevant aspect of RPM’s appeal. It is important to attach weight to the fact that the HRC relevantly succeeded before me and that those persons who voted, by considerable majority, in support of the special resolution have been frustrated for over four years by applications made by RPM and consequent orders in this Court and the District Court. Notwithstanding the observations made about the affidavit material relied upon by the HRC in this application, several residents within the HRC feel very strongly that their amenity is adversely impacted by persons connected to short-term letting appointments in the high-rise section. At least some of the conduct referred to in the affidavits is in the high-rise section and is likely connected to apartments available to short-term letting. -- 8 of 9 -- [2026] SASC 41 Kimber J 7 31 Notwithstanding the matters in favour of the position of the HRC, on balance, I find that the balance of convenience favours the grant of the relief sought. RPM does not need to show special or exceptional circumstances; there is a serious question to be tried; RPM has given an undertaking as to damages; and RPM will suffer a loss if the application is not granted but it succeeds on appeal. 32 In the circumstances, I find that the relief sought should be granted. Order 33 I make the following orders: 1. The second respondent is restrained from taking action to enforce any alterations of its by-laws to prohibit short-term letting of apartments for less than two months for the duration of the letting agreement as against the first applicant, pending the hearing and determination of the first applicant’s appeal (CIV-25-013740). 2. Costs reserved. -- 9 of 9 --