Body Corporate for Villas Mermaid v Mainmark Ground Engineering (Qld) Pty Ltd [2026] QCAT 246

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Body Corporate for Villas Mermaid CTS 9057 v Mainmark Ground Engineering (Qld) Pty Ltd [2026] QCAT 246 PARTIES: BODY CORPORATE FOR VILLAS MERMAID CTS 9057 (applicant) v MAINMARK GROUND ENGINEERING (QLD) PTY LTD (respondent) APPLICATION NO/S: BDL092-25 MATTER TYPE: Building matters DELIVERED ON: 27 May 2026 HEARD AT: Brisbane DECISION OF: Member Taylor ORDERS: The Application for Domestic Building Dispute filed 2 April 2025 is dismissed. CATCHWORDS: REAL PROPERTY – STRATA AND RELATED TITLES – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – POWER TO SUE AND BE SUED – where a body corporate had contracted to have soil stabilisation works done under and/or adjacent to certain titled lots within the body corporate premises – where it is alleged that work failed to remedy the issue and consequential damage was suffered to those lots – where the body corporate then commenced litigation against the contractor seeking payment in damages alleged to have been suffered – where the body corporate commenced the proceeding without having first having a special resolution passed by its members approving commencement of the litigation CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – OTHER MATTERS – where a body corporate had contracted to have soil stabilisation works done under and/or adjacent to certain titled lots within the body corporate premises – where it is alleged that work failed to remedy the issue and consequential damage was suffered to those lots – where the body corporate then commenced litigation against the contractor seeking payment in damages alleged to have been suffered – where the litigation was commenced as a domestic building dispute -- 1 of 10 -- 2 – where on the material filed it was arguable that it was not ‘building work’ within the ambit of the Queensland Building and Construction Commission Act 1991 (Qld) – where, if it was such ‘building work’, on the material filed it was prima-facie work to common property and thus not domestic building work but rather commercial building work – where the contractor which performed that work had not consented to the jurisdiction of the Queensland Civil and Administrative Tribunal in advance of the litigation being commenced – where such consent was a jurisdictional pre- requisite to commencing the proceeding Body Corporate and Community Management Act 1997 (Qld), s 106, s 312 Land Title Act 1994 (Qld), 49B, 49C, 49D Queensland Building and Construction Commission Act 1991 (Qld), Sch 1B s 14 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 52 Marment v Bawden and Associated Pty Ltd t/as NQ Pool Warehouse [2026] QCAT 142 Neil v Nott (1994) 68 ALJR 509 Vietheer v Holstein [2025] QCAT 397 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) Applicant: Self-represented – Bridget Rodham Respondent: Lander & Rogers Solicitors REASONS FOR DECISION Overview [1] By way of an Application for a Domestic Building Dispute, the applicant presses a claim against the respondent seeking payment of $145,750.94 plus interest. As presented, the claim is confused and confusing. It appears to be a claim for damages suffered because of allegedly incomplete or defective work being performed by respondent, including what is said to be consequential physical damages to a building. The respondent defends the claim in its entirety. [2] This action arises under a contract between the parties for soil stabilisation, namely resin injection underneath Lots 33 and 34 within the body corporate community premises. Each of those lots is, as I understand the expression of the client’s case, a home unit owned by individual members of the body corporate, and are the buildings that are allegedly damaged because of the allegedly defective or incomplete work by the respondent. The applicant asserts that, notwithstanding the work was allegedly performed, following its completion there was continued structural movement occurring within those two lots, and on investigation it is said to have identified the absence of any injected resin in that location. -- 2 of 10 -- 3 [3] For the reasons I discuss herein, the applicant’s claim was doomed from the start of this proceeding. The applicant embarked on this litigation without first having obtained the authority of its Members to do so, such being a statutory pre-condition to such litigation. Additionally, it has commenced a proceeding in a forum that does not have jurisdiction to hear and decide the claim. The only outcome in this Tribunal is that the proceeding must be dismissed. An order was made to that effect. The Issues [4] The applicant was faced with fundamental challenges in pressing its claim in this Tribunal. On 18 September 2025, I gave orders in terms of those challenges, namely: (a) Requiring the applicant to provide evidence of the passing of a resolution authorising the commencement of this proceeding, such being a requirement of s 312 of the Body Corporate and Community Management Act 1997 (Qld) (the “BCCM Act”); and (b) For the parties to provide submissions on certain issues, such to be determined as a preliminary issue, namely: (i) Whether the work the subject of the claim was ‘building work’ as that term is used in the Queensland Building and Construction Commission Act 1991 (Qld) (the “QBCC Act”); (ii) If it is ‘building work’, is it ‘domestic building work’ or ‘commercial building work’ as those terms are also used in the QBCC Act; and (iii) If it is ‘commercial building work’ should it proceed as a ‘major commercial dispute’ or a ‘minor commercial dispute’; and (iv) If it is to proceed as a ‘major commercial dispute’ had the respondent consented to same by having already filed its response to the claim without raising the jurisdictional challenge. [5] Whilst there were many factual issues that would ordinarily need to be determined should the matter have proceeded to a substantive hearing; these were the fundamental issues upon which the proceeding could be determined. Competing Submissions [6] The parties responded to the directions for submissions. [7] The applicant’s material continued the confused and confusing nature of its application. In essence, its position was that: (a) The Body Corporate Committee had authorised Ms Bridget Rodham to represent the applicant’s interests in all dealings relating to the complaint it raised with the QBCC, which it seemingly sought to expand to include the conduct of this proceeding; (b) The work was building work because the respondent had taken out statutory warranty insurance over the work; and (c) This Tribunal had jurisdiction to hear and decide the claim. [8] In contrast, the respondent’s material addressed the issues in a succinct and direct way. In summary its position was that: -- 3 of 10 -- 4 (a) There was no evidence of compliance with s 312 of the BCCM Act and accordingly this proceeding was not properly commenced, thus the applicant was without standing to prosecute the claim; (b) The work it performed was not building work; but (c) If the Tribunal were to find it was building work, it was not domestic building work but rather it was commercial building work, and due to the quantum of the claim it should be dealt with as a major commercial dispute; (d) Notwithstanding that it had responded to the claim as made without having raised the jurisdictional challenge, such is not it having given consent to the Tribunal’s jurisdiction to hear and determine a major commercial dispute because it is an express condition of s 79 of the QBCC Act that consent has to have been given prior to commencement of the proceeding, evidence of such consent to have been filed with the originating proceeding. Discussion on the Issues [9] The applicant’s efforts to press its claim in this proceeding was doomed from the outset. I discuss why in the paragraphs which follow here. Absence of Authority to Commence Proceeding [10] In the applicant’s submissions, it argues that at no time prior to my orders of 18 September 2025 was the requirement of a special resolution to have been passed raised with it. That submission seemingly is in reference to an Order of this Tribunal given 12 May 2025 requiring the applicant to file “evidence of authority to commence the proceeding” and suggesting that on the enquiries Ms Rodham made of the Tribunal Registry it was understood that what Ms Rodham had in terms of the Committee’s authorisation was sufficient to satisfy that requirement. [11] Whatever Ms Rodham might have been told by a Registry Officer on enquiry by her does not change the fact that the applicant was required to have complied with the law when seeking to litigate its claim against the respondent. As is relevant, that law is found within the BCCM Act. [12] Whilst it was not for this Tribunal to make its case for it, nor to advise it how to go about conducting its case, to give some assistance to the applicant given it was self- represented in this proceeding, on 18 September 2025 I gave precise orders as to what was required with specific reference to that law. Yet, despite me highlighting the specific section of the legislation, Ms Rodham and the other Committee Members seemingly fail to either be aware of, or otherwise to understand, or worse to have simply chosen to ignore, the requirements of the law as it is found in the BCCM Act. Notwithstanding that the Committee may have passed a resolution in a Committee Meeting authorising a specific person to represent the Body Corporate in its dealings in terms of the dispute, even if the ambit of that authority might be read as incorporating the applicant’s dealings with this Tribunal, such is not the requisite approval that must have been given under s 312 of the BCCMA to have commenced this proceeding. That approval is a special resolution passed by the members of the body corporate. [13] To assist Ms Rodham and other Members of the Body Corporate Committee hopefully to now understand and appreciate that fundamental fact, extracted here in full are the -- 4 of 10 -- 5 relevant provisions of the BCCMA, something which as Committee Members it should be expected that they should have been aware of: 312 Proceedings (1) The body corporate for a community titles scheme may start a proceeding only if the proceeding is authorised by— (a) if the scheme is a specified two-lot scheme—a lot owner agreement for the scheme; or (b) otherwise—special resolution by the body corporate. (2) However, an owner of a lot included in a specified two-lot scheme may bring or start a prescribed proceeding on behalf of the body corporate even though the body corporate has not decided, by a lot owner agreement, to bring or start the proceeding. (3) Also, the body corporate for a community titles scheme other than a specified two-lot scheme does not need a special resolution to bring or start a prescribed proceeding. (4) In this section— prescribed proceeding, for a community titles scheme, means— (a) a proceeding for the recovery of a liquidated debt against the owner of a lot included in the scheme; or (b) a counterclaim, third-party proceeding or other proceeding, in a proceeding to which the body corporate is already a party; or (c) a proceeding for an offence under chapter 3, part 5, division 4; or (d) a proceeding, including a proceeding for the enforcement of an adjudicator’s order or an appeal against an adjudicator’s order, under chapter 6. Schedule 6 special resolution means a resolution under section 106 106 Counting of votes for special resolution (1) This section applies if a motion is to be decided by special resolution at a general meeting of the body corporate for a community titles scheme. (2) One vote only may be exercised for each lot included in the scheme, whether personally, by proxy or in writing. (3) The motion is passed by special resolution only if— (a) at least two-thirds of the votes cast are in favour of the motion; and (b) the number of votes counted against the motion are not more than 25% of the number of lots included in the scheme; and (c) the total of the contribution schedule lot entitlements for the lots for which votes are counted against the motion is not more than 25% of the total of the contribution schedule lot entitlements for all lots included in the scheme. -- 5 of 10 -- 6 [14] On any reading of these provisions, it should readily be seen that what the applicant was required to have had, before it could commence any action against the respondent, whether it be in this Tribunal or a Court, is a ‘special resolution’ having been passed by the Body Corporate Members. It was not a matter for the Committee to pass some resolution or otherwise authorise Ms Rodham to speak on the applicant’s behalf. The authority to commence a proceeding, other than a ‘prescribed proceeding’ of which this proceeding is not one, is not power the Committee is seized of. It rests solely with the Body Corporate Members, and one which must be authorised by special resolution. [15] Despite a clear provision of the legislation, and my equally clear directions having been given as to what was required in terms of that legislation, there is no evidence before this Tribunal that shows the requisite special resolution having been passed. I thus infer it has not been passed. Thus, it must follow that this proceeding has been commenced without the requisite authority and accordingly the jurisdiction of this Tribunal, if it otherwise existed, has not been engaged. For this reason alone, the proceeding must be dismissed. The questions on building work etc. [16] Given what I have just said about the absence of the requisite authority, it was not necessary for me to engage in any discussion on the preliminary issues. They are effectively irrelevant in terms of the appropriate orders to be made. However, given the extent to which the parties have addressed the Tribunal on them, and again for the assistance of Ms Rodham and the Body Corporate Committee Members, and hopefully members of the body corporate to the extent they have some interest in the matter, I offer these comments. [17] On the material as it is before the Tribunal, it is apparent that the contract between the parties was limited to solely soil stabilisation work. It was not part of any larger contracting arrangement involving the respondent to carry out remedial work to a building. That being so, whilst I do not make any definitive finding on the point given the limited material before me, it appears to me that the respondent’s submission is correct. It is, of itself, not building work as that term is defined in the QBCC Act. For that reason, the Tribunal’s jurisdiction has not been engaged. [18] But there is some contradiction within the respondent’s own material. On its submissions the work it performed is not building work. However its ‘General Conditions of Engagement’, which the applicant included within its material as being the relevant conditions of contract, curiously includes a page entitled ‘Queensland Building and Construction Commission Act 1991 (Qld)’ which appears to be a set of Special Conditions given the references therein to specific clauses of the general conditions, which expressly incorporates the statutory warranties as they are found within Schedule 1B of the QBCC Act, such being that part of the Act which governs domestic building contract, and also expressly raises the cooling off period under s 35 of that Schedule 1B. This might have been a basis upon which the applicant proceeded with its claim as a domestic building dispute. [19] One of the problems however in adopting these conditions of contract as being evidence of a contract for building work, and in particular domestic building work, is that the applicant is, at least as best I can make out on the limited material before me, not the owner of Lots 33 and 34, and accordingly these provisions would not afford -- 6 of 10 -- 7 the applicant any benefit if the contract was considered to be for building work and more particularly domestic building work. [20] However, if it were building work, the applicant would also run into barriers in being able to prosecute the claim it makes in this proceeding. This is for two reasons. [21] Firstly, there is the threshold question of whether it is, under the law, domestic building work, an issue I have already touched on briefly. The fact that the respondent took out a Home Warranty Scheme insurance policy or made references to Schedule 1B in its contract conditions, does not make it so. Whilst the Home Warranty Scheme is applicable to residential building work, not all residential building work is domestic building work. But regardless, the mere fact of the QBCC having accepted payment of an insurance premium does not make it building work. The creation of the insurance policy could readily have been made in error. Similarly references to Schedule 1B in the contract document might also have been an error. [22] But moreover, whilst again I do not make any definitive finding about it, on the material before me it is doubtful that it fits within the definition of domestic building work under the QBCC Act. This is because arguably it is not work being performed with the titled area of the lot, which is a home unit, such becoming domestic building work only upon the title being registered, its original construction being commercial building work prior to creation of the tile. Rather, it is work to the subterranean foundation material which in the absence of anything to indicate to the contrary such is common property. For that reason, it would remain commercial building work. But to be certain about that a thorough consideration of the facts would be necessary to ascertain the nature of the relevant subdivision as it may be governed under sections 49B, or 49C, or 49D of the Land Title Act 1994 (Qld). The material as it is before this Tribunal presently is inadequate to ascertain with any degree of clarity this issue, as well as there being a further aspect to this argument which I discuss later in these reasons in terms of what work was said to have been performed in what location relative to the boundaries of the two lots in issue. [23] But if it was domestic building work as the applicant contends, the applicant faces another challenge. Due to the monetary value of the contract, it would be a Level 2 Regulated Contract as that term is used in Schedule 1B of the QBCC Act. Under s 14 therein it is a contract that must be reduced to writing, dated, and signed by the parties to it. [24] The document the applicant provided to the Tribunal said to be that evidencing the contract in issue is a ‘Revised Quotation’ document dated 23 June 2020 addressed to ‘Villas Mermaid’ dated 23 June 2020 (Ref Q20BT255), and what purports to be an acceptance of that quotation by way of a document signed by Collette Dunn, she being described thereon as the ‘Body Corporate Manager’, dated 12 August 2020. [25] This is accompanied by a document also shown as having been signed by Collette Dunn on that same date described thereon as an ‘Acknowledgment and Release’. As is relevant to the question to which I referred earlier as to whether the work in issue is within the lot or within common property, that second document references work being “undertaken along, about and beneath (as the case may be) the boundary of the Property to the adjoining property”, the “Property” being defined therein as being Lots 33 and 34. [26] But there are two problems with accepting the first document, read together with or separate from the second document, as the relevant domestic building contract. -- 7 of 10 -- 8 [27] Even though formation of a contract at law might be able to be shown by reference to the Quotation and Acceptance document(s), neither document is signed on behalf of the respondent. At best there is a name of a person embedded in the document where ordinarily a signature should appear, but there is no signature, physical or digital. In the absence of this, because of the provisions of s 14 of Schedule 1B that contract would be of no effect. [28] Moreover, when the documents are read together, thus reading what is said to evidence the contract read as a whole, it is apparent that the work in question went outside the limits of Lots 33 and/or 34. That being so, notwithstanding what I said earlier about the foundation material beneath the home unit being common property, even if I am wrong about that and that material formed part of the Lot, the work included performance of soil injection outside the boundary of the Lot such that it would be to common property. That then returns to the point I made earlier about it being, at best, commercial building work, a point to which I return later in these reasons. [29] Nor could the applicant press its claim in negligence or otherwise under the Australian Consumer Law as a domestic building dispute for the same reasons I discussed at length in Vietheer v Holstein [2025] QCAT 397. Given the extent to which I discussed the reasons therein, I need not repeat that here save only to say, for ease of reference, that the reason for this is the absence of an effective contract. Due to the applicant’s failure to have complied with the law in that regard, to the extent it asserts its dispute with the respondent is a domestic building dispute the applicant is left without a remedy either in contract or reliant on the tort of negligence. [30] Secondly, even if it was not domestic building work, but rather commercial building work, such not subject to the draconian conditions of s 14 of Schedule 1B in terms of the contract being of no effect, the applicant could still not press its claim in this Tribunal against the respondent be it either as breach of contract or negligence. This is because of the absence of consent for same having been given by the respondent. [31] As the respondent has correctly identified in its submissions, the effect of s 79(1) of the QBCC Act is that the giving of consent is a pre-condition to the commencement of a proceeding. The applicant has not identified any such consent, and the mere fact that the respondent might be said to have consented by filing its response absent having raised the jurisdictional argument does not amount to the giving of the requisite consent. [32] That then leaves the applicant only with a possible claim under the Australian Consumer Law against the respondent if it was commercial building work, but that given the monetary jurisdiction of this Tribunal for such a claim, namely $25,000, the detail about which I discussed in Vietheer, the claim as presently pressed is beyond that limit. The applicant could have elected to cap its claim at that limit, but even if it were to do so, the threshold barrier it faced in the absence of proper authorisation to commence the proceeding having been given prevents it from doing so. What is the appropriate order ? [33] In all respects, the applicant has commenced this proceeding devoid of the effective procedural bases for doing so. That is not to say that the complaints it makes against the respondent do not have any validity. They may very well have substance, but such is not something I need consider nor have done so, and accordingly not something on which I make any finding. The singular issue is the absence of that procedural bases. -- 8 of 10 -- 9 [34] In the absence of the Tribunal having jurisdiction to hear and determine the claim before it, this Tribunal has power under s 52 the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the “QCAT Act”) to either dismiss the proceeding, or to transfer it to a Court of competent jurisdiction. Ordinarily, the latter should be the preferred course in circumstances where the parties are in dispute and the litigation road has been taken, such which for expediency and efficiency should be continued with. But such is not an option here given the absence of the requisite authority to have commenced the proceeding. Transferring it out of the Tribunal to the Court does not remedy that defect. [35] The only appropriate order is for the proceeding to be dismissed. Concluding Remarks [36] It is apposite that I express here that which I recently said in Marment v Bawden and Associated Pty Ltd t/as NQ Pool Warehouse [2026] QCAT 142 because it is relative to the way Ms Rodham expressed what is said to be the applicant’s submissions to the Tribunal in response to my directions for same. She seems to want to fall on the good graces of the Tribunal to assist her. [37] It cannot be overlooked that one of the objects of the QCAT Act is to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal, and quick; and that one of the functions of this Tribunal mandated to achieve that object is to ensure proceedings are conducted in an informal way that minimises costs to the parties, and is as quick as it consistent with achieving justice. Such being so, as it is expressed in the Act in terms of representation, it is to have parties represent themselves unless the interests of justice require otherwise. [38] However, as also expressed in the Act; in exercising the discretion afforded to the Tribunal under the Act to permit a party to be represented in a proceeding, one factor is in circumstances where the proceeding is likely to involve complex questions of fact or law. Where a party presents a case to this Tribunal which is complicated in terms of the relevant and applicable law, it is such a case that should call for legal representation. [39] But it remains a decision to be made by a party whether they seek the leave of this Tribunal to be granted such representation. When a party chooses to conduct its case as a self-represented litigant it can be to their peril. This is particularly so in circumstances where they embark on their case and/or present it without having an adequate understanding of the relevant law and legal principles that arise within it, and at least have taken some legal advice about it and act in accordance with that advice, or at the very least obtaining assistance from a lawyer knowledgeable in the relevant field of the law in compilation of their case. Had the applicant done that here it should be expected that the threshold requirement for a special resolution being passed by the Members of the Body Corporate would have been addressed. [40] In Neil v Nott (1994) 68 ALJR 509, the High Court observed that a frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy. Whilst expressed in reference to a Court, it applies equally to this Tribunal and this proceeding. This is one of those cases. -- 9 of 10 -- 10 [41] As I have discussed it herein, I referred to the rights to the relief sought that the applicant might have had. But due to the manner it approached the presentation of its case it has not even opened the door to accessing those rights of relief. [42] Whilst its lack of knowledge in the law and litigation procedure was undoubtedly a misfortune for it in attempting to conduct its own case, it should not be considered by it, nor otherwise seen nor treated, as a privilege which afforded it some benefit. Here, the applicant embarked on this action without seemingly having any understanding of the legal principles its claim entails. Its own advocacy obfuscated the rights it might have been able to prosecute if presented in a coherent manner consistent with the law. [43] But it was made even more complicated by the absence of any proper understanding the Body Corporate Committee had of the law as it is laid out in the BCCM Act in terms of the requisite special resolution having first been passed. It is surprising, and concerning, that persons who take on the role of Body Corporate Committee Members do not make themselves aware of such a basic and fundamental requirement of the law. It is even more concerning that, having been alerted to the fact by me in the Directions Hearing on 18 September 2025 as to what was required, the applicant did not take the necessary steps to address the point properly. Nor did it seemingly make any effort to carefully consider the preliminary issue points as I laid them out. [44] Had it done so it in either circumstance, the applicant should have then realised the case was doomed as it was presented, such that its proper course of action would have been to have filed a Notice of Withdrawal. Such would have avoided the unnecessary use of the limited and stretched resources of this Tribunal as well as possibly preserving it some ability to press its claim in a future proceeding. Having however elected to push on, it left itself exposed to only one outcome, such being a dismissal of this proceeding and the consequences which flow from that outcome. -- 10 of 10 --