Campbell v Lelek & Anor [2026] QCATA 94

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Campbell v Lelek & Anor [2026] QCATA 94 PARTIES: RACHEL LEIGH CAMPBELL (applicant/appellant) v HANNAH LELEK (first respondent) BENJAMIN LELEK (first respondent) BODY CORPORATE FOR 70 BOWEN STREET COMMUNITY TITLES SCHEME 15330 (second respondent) APPLICATION NO/S: APL093-24 & APL094-24 MATTER TYPE: Appeals DELIVERED ON: 28 May 2026 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member King-Scott ORDERS: The Tribunal orders: Leave to adduce fresh evidence in each appeal is refused. Both appeals are dismissed. The appellant is to pay the first and second respondents’ costs of both appeals, failing agreement within 28 days, assessed on the standard basis on the District Court scale. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – appeal confined to question of law – Body Corporate and Community Management Act 1997 (Qld) s 289 – whether any error of law shown APPEAL AND NEW TRIAL – ADMISSION OF FURTHER EVIDENCE – right to information materials – whether obtainable with reasonable diligence at first instance – whether material would probably have had important influence on result – Clarke v Japan Machines -- 1 of 14 -- 2 (Australia) Pty Ltd; Brisbane City Child Care Pty Ltd v Kadell REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – improvements to common property – lawful authorisation – deemed authorised – body corporate reasonableness – s 94(2) – exclusive use by-law – resolution without dissent – opposition unreasonable – Schedule 5 Item 10 – alienation of common property – authenticity of minutes – Ainsworth v Albrecht; Platt v Ciriello; Katsikalis; Possum Place; Bridgewater Gardens EQUITY – LACHES AND ACQUIESCENCE – relevance to body corporate’s duty to act reasonably – whether equitable acquiescence applied against appellant personally – Orr v Ford; Groves on Gregory; Marina Apartments PLANNING AND ENVIRONMENT – development approval – building approval – enforcement notice – whether adjudicator’s orders under BCCMA constrained by planning and building legislation – ultra vires – Planning Act 2016; Building Act 1975 Body Corporate and Community Management Act 1997 (Qld), s 31, s 35, s 59, s 62, s 94, s 164, s 167, ss 170–177, s 276, s 289, s 290, Schedule 5 Item 10 Body Corporate and Community Management (Standard Module) Regulation 2020 (Qld), s 164, s 173 Building Act 1975 (Qld), s 84 Planning Act 2016 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 27, s 100, s 102, s 146 Ainsworth v Albrecht [2016] HCA 40 Albrecht v Ainsworth [2015] QCA 220 Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 Bridgewater Gardens [2021] QBCCMCmr 261 Brisbane City Child Care Pty Ltd v Kadell [2020] QCA 181 Cairns Central Plaza Pty Ltd v Lloyd and Anor [2013] QCATA 26 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Ericson v Queensland Building Services Authority [2013] QCA 391 Finger v Dickie [2015] QCATA 113 Groves on Gregory [2020] QBCCMCmr 491 Health Ombudsman v du Toit [2024] QCAT 205; [2024] QCA 235 Isle of Palms Resort [2009] QBCCMCmr 485 -- 2 of 14 -- 3 Katsikalis v Body Corporate for “The Centre” [2009] QCA 77 Marina Apartments [2010] QBCCMCmr 306 Marzini v Health Ombudsman (No 4) [2020] QCAT 365 Mirana Investments Pty Ltd & Ors v Coupe [2012] QCATA 187 Orr v Ford (1989) 167 CLR 316 Platt v Ciriello [1998] 2 Qd R 417 Possum Place [2017] QBCCMCmr 557 Powell v Queensland University of Technology [2017] QCA 200 Tamawood Ltd v Paans [2005] 2 Qd R 101 70 Bowen Street [2015] QBCCMCmr 540; [2017] QBCCMCmr 449; [2021] QBCCMCmr 206; [2022] QBCCMCmr 17; [2024] QBCCMCmr 69; [2024] QBCCMCmr 70 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/Appellant: Marc J Mercier, Counsel First and Second Respondents: L E T Henry, Counsel, instructed by Brighton Langley Law REASONS FOR DECISION Introduction [1] These are two appeals under s 289 of the Body Corporate and Community Management Act 1997 (Qld) (“the BCCMA”) against two decisions of an Adjudicator of the Body Corporate and Community Management Commissioner (“the Adjudicator”), both delivered by R Miskinis, Adjudicator on 26 February 2024 (“the Initial Decisions”). The two decisions are 70 Bowen Street [2024] QBCCMCmr 69 (“the QBCCMCmr 69 decision”) and 70 Bowen Street [2024] QBCCMCmr 70 (“the QBCCMCmr 70 decision”). The appeals are heard together. These are my reasons. [2] The QBCCMCmr 69 decision arose from Application 1069-2022 (“the Lelek application”), brought by the first respondents, Hannah and Benjamin Lelek (“the Leleks”). By that decision the Adjudicator: (a) declared that the deck adjoining Lot 2 (“the Deck”) is a lawful improvement to common property authorised by a valid resolution of the body corporate; (b) declared that the Rear Fence and Front Fence are lawful improvements to common property deemed authorised by the body corporate; (c) declared that Motion 21 at the AGM held 29 July 2022 (“the 2022 AGM”) proposing exclusive use of specified areas of common property by each of Lots 1 and 2 (“the Exclusive Use Resolution”) was not passed because of opposition that was unreasonable in the circumstances; -- 3 of 14 -- 4 (d) ordered that the Exclusive Use Resolution be deemed to have passed in its entirety; and (e) directed the body corporate to prepare and lodge a new community management statement (“CMS”) recording the grant of exclusive use within 120 days. [3] The QBCCMCmr 70 decision arose from Application 0375-2022 (“the Campbell application”), brought by the appellant. By that decision the Adjudicator dismissed the Campbell application and declined to order removal of the Deck or Fences. [4] The appellant, Rachel Campbell, appeals both decisions (APL093-24 and APL094-24 respectively). Ms Campbell filed the appeals on 8 April 2024, together with applications to stay the Initial Decisions. A stay was granted on 11 July 2024. The appeals are confined to questions of law only.1 [5] Ms Campbell has also applied in both appeals for leave to adduce fresh evidence in the form of materials obtained through a Right to Information (“RTI”) application to Brisbane City Council (“BCC”). The first and second respondents oppose that application and seek costs of both appeals. Background [6] Community Titles Scheme 15330 is registered as a building units plan (BUP105486). By operation of law, all land surrounding the duplex building at 70 Bowen Street, Windsor is common property. The scheme is a two-lot scheme comprising two dwellings in a high-set weatherboard Queenslander-style house divided into Lot 1 and Lot 2. It is governed by the Body Corporate and Community Management (Standard Module) Regulation 2020 (Qld) (“the Standard Module”). [7] The registered proprietors of Lot 1 were, from 30 January 2004 to 9 September 2014, Gregory and Allison Reeves. Ms Campbell has been the registered proprietor of Lot 1 since 9 September 2014. The registered proprietors of Lot 2 were: from 29 June 2005 to 7 August 2007, Sonya Klease; from 7 August 2007 to 18 July 2022, Henrik Schouten and Ingrid Bergin (“the Schoutens”); and since 18 July 2022, the Leleks. [8] Three structures on the common property are in dispute: an elevated deck attached to the rear of Lot 2 and accessible through Lot 2’s back door, with a landing and stairs to the common property (“the Deck”); a fence running from approximately the rear of Lot 2 to the northern boundary of the common property, creating two back yards adjacent to Lots 1 and 2 (“the Rear Fence”); and a fence running from approximately the front of Lot 2 to the southern boundary of the common property (“the Front Fence”) (together, “the Improvements”). From satellite and street view imagery examined by the Adjudicator, the Rear Fence appears to have been extant by October 2003, the Deck was constructed in or about April 2007, and the Front Fence was constructed between November 2013 and March 2014. [9] The scheme has been the subject of a lengthy and bitter dispute, including six adjudication applications between 2015 and 2022, two QCAT appeals and two court proceedings. The prior adjudication decisions include 70 Bowen Street [2015] QBCCMCmr 540, [2017] QBCCMCmr 449, [2021] QBCCMCmr 206, and [2022] QBCCMCmr 17. The court proceedings include District Court proceeding 1105/19 and 1 Section 289(2) BCCMA. -- 4 of 14 -- 5 Supreme Court proceeding 7143/22 (the latter being an application to remove a caveat lodged by Ms Campbell over Lot 2). [10] On 19 January 2022, an Adjudicator appointed Mr Iain D’Arcy of Capitol Body Corporate Administration (“Capitol”) as administrator of the scheme. Capitol’s administration concluded upon the Leleks’ purchase of Lot 2 on 18 July 2022. Capitol provided the Leleks with a copy of the scheme records, which included the minutes of an AGM held 13 October 2005 (“the 2005 Minutes”). The 2005 Minutes record that the then owner of Lot 2, Ms Klease, tabled plans for a deck and it was unanimously resolved that the deck be erected as outlined in the plans. [11] The 2022 AGM was held on 29 July 2022. Ms Campbell had proposed resolutions for removal of the Fences and the Deck (“Resolutions 18 and 19”). The Schoutens (as the outgoing owners of Lot 2) had proposed the Exclusive Use Resolution (“Motion 21”). Resolutions 18 and 19 failed, with Ms Campbell in favour and the Leleks opposed. Motion 21 also failed, with the Leleks in favour and Ms Campbell opposed. [12] It is also relevant that following the 2022 AGM, Ms Campbell herself submitted to the Leleks a hand-drawn sketch of the duplex and common property (“the Campbell Sketch”) proposing exclusive use arrangements, including exclusive use of common property at the front of the scheme for the benefit of Lot 1. Further, by the time of the Initial Decisions, Ms Campbell had herself constructed a landscaped garden on common property at the front of Lot 1, conferring upon Lot 1 a de facto exclusive use of that area. These matters were noted by the Adjudicator at [70] of QBCCMCmr 69. [13] The appeals are brought on three grounds. Before addressing those grounds, it is necessary to deal with the application for leave to adduce fresh evidence. Relevant legislative framework [14] Under s 94(1) of the BCCMA, the body corporate must administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme. Under s 94(2), the body corporate must act reasonably in anything it does under s 94(1), including in making or not making a decision. Reasonableness under s 94(2) requires an objective assessment of all relevant facts and circumstances: Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177. [15] Section 164 of the Standard Module provides that the body corporate may, if asked by an owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot, by ordinary resolution at a general meeting. [16] Sections 170–177 of the BCCMA govern exclusive use by-laws. An exclusive use by- law gives the occupier of a lot exclusive use to the rights and enjoyment of, or other special rights about, common property or a body corporate asset: s 170. A new CMS incorporating an exclusive use by-law requires a resolution without dissent: s 62(2). An exclusive use by-law identifying specific common property may only attach to a lot if the lot owner agrees in writing before the passing of the resolution or votes personally in the resolution: s 171(2)(a). [17] Section 276(1) of the BCCMA empowers an adjudicator to make orders that are just and equitable in the circumstances to resolve a dispute. Schedule 5 Item 10 of the BCCMA provides that an adjudicator may make an order giving effect to a motion requiring a resolution without dissent, if satisfied the motion was not passed because of opposition that was unreasonable in the circumstances. Section 276 does not authorise an adjudicator -- 5 of 14 -- 6 to validate what the BCCMA makes unlawful, but confers a broad discretion exercised within the confines of the statute and applicable equitable principles: Finger v Dickie [2015] QCATA 113 at [35] – [36]. [18] The right of appeal under s 289(2) of the BCCMA is confined to a question of law. The expression “question of law” includes misapplication of a statutory test, a finding made on no admissible evidence, a finding open only to one view, and failure to apply binding authority: Ericson v Queensland Building Services Authority [2013] QCA 391 at [11]– [13]; Albrecht v Ainsworth [2015] QCA 220 at [93]–[94]. Application for leave to adduce fresh evidence [19] The appellant seeks leave to rely upon a large volume of BCC records obtained through an RTI application (“the BCC RTI material”). The material includes: BCC correspondence and file notes documenting Ms Campbell’s complaints from December 2014 onwards; the Show Cause Notice served on the owners of Lot 2 on 15 July 2015; the Enforcement Notice issued on 13 November 2015; the Development Approval Decision Notice obtained by the then owners of Lot 2 on 21 August 2015 to “finalise” the existing covered rear deck; the BCC desktop assessment of 16 September 2015 (finding the application could not be assessed because it concerned a duplex requiring assessment against QDC MP 1.3); BCC internal notes of 22 December 2022 (confirming that at minimum an amendment to the 1996 development approval would be required due to the change in building footprint); and a BCC note of 2 November 2024 (recording that the BCC would not take enforcement action having regard to the age of the structure, its certification, the changes of ownership and the body corporate’s approval). [20] At a directions hearing on 18 June 2025, Senior Member Fitzpatrick observed that the appeal book contained a large volume of material not before the Adjudicator. The Tribunal directed Ms Campbell to file and serve: (a) An application for leave to rely upon evidence not before the Adjudicator, together with a copy of that evidence; and (b) Submissions in support of that application in the context of this appeal being on a question of law only. [21] Ms Campbell did not file a formal application as directed but, on 31 July 2025, filed further outline submissions (AS2) which are treated as an informal application for leave. [22] The applicable principles for admission of fresh evidence on appeal are those stated in Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404 at 408 (“Clarke”), as adopted in Brisbane City Child Care Pty Ltd v Kadell [2020] QCA 181 at [41]. [23] To be admitted, fresh evidence must satisfy three requirements: (a) it could not have been obtained with reasonable diligence for use at first instance; (b) it would probably have had an important (though not necessarily decisive) influence on the result; and (c) it is apparently credible. The material fails on the first and second limbs. [24] As to the first limb: the BCC RTI process was available to the appellant throughout the period of the adjudication proceedings. Application 0375-2022 was lodged in April 2022 -- 6 of 14 -- 7 and Application 1069-2022 in October 2022. The Initial Decisions were not made until February 2024. The RTI process is a standard administrative mechanism readily available to members of the public. Ms Campbell’s submission that the materials “required a lengthy RTI application process” does not provide an adequate explanation for failing to initiate that process during the approximately two years in which the adjudication applications were on foot. The diligence limb is not met. [25] As to the second limb: the BCC RTI material is directed primarily to two matters — (a) Ms Campbell’s history of complaints about the Improvements; and (b) the planning and building compliance history of the Deck. [26] As explained in the analysis of Ground 1 below, the Adjudicator’s acquiescence reasoning was directed at the body corporate’s conduct, not Ms Campbell’s personal conduct. Accordingly, evidence of Ms Campbell’s personal complaint activity, however extensive, would not have had an important influence on that reasoning. As to (b), the Adjudicator acknowledged that the Deck may not have been fully compliant with planning requirements but found that this did not affect the validity of orders made under the BCCMA. The BCC RTI material does not displace that reasoning. The influence limb is also not met. [27] Leave to adduce fresh evidence in each appeal is refused. Ground 1 – Acquiescence The Adjudicator’s reasoning [28] In the Initial Decisions, the Adjudicator acknowledged that the strict principle of acquiescence may not directly apply to disputed improvements to common property in a statutory context, having regard to the Tribunal’s observations in Orknie Pty Ltd v Body Corporate for Paloma CTS 9524 [2010] QCATA 52. The Adjudicator nonetheless held that the principle of acquiescence remains relevant to the body corporate’s duty to act reasonably under s 94(2) of the BCCMA, drawing on the approach in Possum Place [2017] QBCCMCmr 557 and Bridgewater Gardens [2021] QBCCMCmr 261. The Adjudicator stated (at [99] of Application 0375-2022):2 [99] Even if the principle of acquiescence cannot directly apply to disputed improvements to common property, there is a question as to the reasonableness of a body corporate decision to refuse to retrospectively approve, or to seek the removal of, an improvement that has been known and in situ for an extended period of time without challenge. The principle of acquiescence remains relevant to the body corporate’s duty to act reasonably. A body corporate may well act unreasonably where it seeks the removal of, or refuses to retrospectively approve, an improvement that was known and in situ for an extended period without challenge. [29] Applying that reasoning, the Adjudicator was satisfied that: the Rear Fence had been in situ since at least October 2003 (more than 11 years before Ms Campbell purchased Lot 1) and likely earlier; the Deck had been constructed in or about April 2007 and stood for approximately seven years before any challenge was raised; and the body corporate 2 Also at [65] of Application 1069-2022. -- 7 of 14 -- 8 would be acting unreasonably in seeking their removal or refusing retrospective approval in those circumstances. Appellant’s submissions [30] The appellant submits that the Adjudicator erred in law by applying or giving significant weight to the principle of acquiescence. The appellant relies on a substantial body of correspondence demonstrating that she has been unrelenting in challenging the Improvements from the date of her purchase of Lot 1 in September 2014, including: an initial BCC complaint on 3 December 2014; over 25 separate follow-up communications with the BCC between December 2014 and April 2017; the BCC Show Cause Notice of 15 July 2015; the BCC Enforcement Notice of 13 November 2015; and multiple adjudication applications, QCAT appeals and court proceedings. [31] The appellant relies upon the discussion of acquiescence as set out by Deane J in Orr v Ford (1989) 167 CLR 316 at 337–340. In its strict equitable sense, acquiescence requires contemporaneous and informed knowing acceptance or standing by which is treated by equity as assent to what would otherwise be an infringement of rights. The appellant submits that on no view of the evidence could knowing acceptance or assent be inferred. She also relies on the requirements identified in Groves on Gregory [2020] QBCCMCmr 491 and Marina Apartments [2010] QBCCMCmr 306, which require that to establish acquiescence it must be shown that the body corporate did something beyond mere delay to encourage the applicant in the belief that it did not intend to assert its rights, and that the applicant acted to its prejudice in that belief. Respondents’ submissions [32] The respondents submit that the Adjudicator’s reasoning is not directed at any acquiescence by Ms Campbell. It is directed at the reasonableness of the body corporate’s conduct under s 94(2) of the BCCMA — a distinct question. On the Adjudicator’s findings, the body corporate had expressly authorised the Improvements, which explains why the body corporate as an entity took no action to challenge them for many years. The failure to challenge the Improvements at body corporate level is not attributable to Ms Campbell’s personal conduct, but to the fact that the body corporate considered them authorised. Analysis [33] Ground 1 does not disclose an error of law. The Adjudicator’s reasoning at [99] of Application 0375-2022 (and at [65]–[71] of QBCCMCmr 69) is not an application of the equitable doctrine of acquiescence against Ms Campbell personally. It is an application of the s 94(2) reasonableness standard to the question whether the body corporate would act unreasonably in seeking removal of improvements that had been in situ for many years without body corporate challenge. [34] The appellant’s submission conflates two distinct questions: whether Ms Campbell personally acquiesced, and whether the body corporate would act reasonably in seeking removal of the Improvements. The Adjudicator addressed only the second question. Ms Campbell’s personal complaints to the BCC and her adjudication applications are not the same as body corporate action to remove or refuse retrospective approval of the Improvements. In a two-lot scheme, the body corporate is constituted by both lot owners. On the Adjudicator’s findings, the Improvements had been authorised by the body -- 8 of 14 -- 9 corporate, and the body corporate had not subsequently acted to withdraw that authorisation or seek their removal. [35] The authorities on equitable acquiescence — Orr v Ford; Groves on Gregory; Marina Apartments — do not apply because the Adjudicator did not apply that doctrine. The Adjudicator applied the s 94(2) statutory reasonableness standard, which is informed by but not equivalent to equitable acquiescence. The observation that a body corporate may act unreasonably where it seeks removal of, or refuses retrospective approval for, improvements known and in situ for an extended period without challenge is a permissible application of that standard: Possum Place [2017] QBCCMCmr 557; Bridgewater Gardens [2021] QBCCMCmr 261. [36] Ground 1 is not established. Ground 3 – Unlawful alienation and unreasonable retrospective approval The Improvements: lawful authorisation [37] The appellant submits that the Adjudicator erred in treating the 2005 Minutes as establishing a valid authorisation of the Deck, and in deeming the Fences to be authorised improvements. [38] As to the 2005 Minutes: the Adjudicator found (at [82]–[88] of QBCCMCmr 69) that the Minutes were obtained by the Leleks from Capitol as part of the official scheme records (the Capitol Records), that satellite imagery confirmed the Deck was at the very least under construction by July 2006, that the Schoutens provided a statutory declaration attesting to the truth of the body corporate meeting minutes from 2005–2013, and that the Minutes were signed by each of the lot owners at the relevant time. The Adjudicator was satisfied that the Deck was authorised in 2005 by the body corporate as an improvement to common property for the benefit of Lot 2. [39] The appellant contends that the 2005 Minutes are not authentic, relying on: (i) their non- production in any prior adjudication application; and (ii) a letter from the vendor’s conveyancing solicitors, Pan & Partners, which stated that no contemporaneous minutes were made of body corporate meetings, all meetings were informal and conducted on- site or by telephone, and that in late 2014 the owners of Lot 2 prepared minutes based on their recollection of events. Pan & Partners also stated that the minutes “do not purport to grant any exclusive use areas. They simply record that Lot 2 was permitted to do works at their expense.” [40] These contentions raise no question of law. The weight to be given to the 2005 Minutes — including in light of the Pan & Partners letter — was a matter for the Adjudicator. The Adjudicator addressed the authenticity challenge and reached a factual conclusion that was reasonably open on the evidence. A submission that a factual finding was wrong does not, without more, raise a question of law. [41] The Pan & Partners observation that the minutes do not purport to grant exclusive use does not assist the appellant. The authorisation of an improvement to common property under s 164 of the Standard Module is distinct from the grant of exclusive use under ss 170–177 of the BCCMA. In a two-lot scheme, documented consent between the two owners may suffice to establish body corporate authorisation of an improvement: Possum Place [2017] QBCCMCmr 557. -- 9 of 14 -- 10 [42] As to the Fences: the Adjudicator found that the Rear Fence had been in situ since at least October 2003 and the Front Fence since between November 2013 and March 2014, before Ms Campbell purchased Lot 1 in September 2014. The respondent had accepted a reduction in the sale price for Lot 1 on the basis that she was acquiring it with full knowledge that the Improvements were on common property. Given the extended period over which the Fences had stood without formal body corporate challenge, the Adjudicator was satisfied at [71] of QBCCMCmr 69 that it would be unreasonable for the body corporate to seek their removal. No error of law is shown. The Exclusive Use Resolution: alienation of common property [43] The appellant submits that the Adjudicator’s orders deeming Motion 21 to have passed amount to an unlawful alienation of common property contrary to Platt v Ciriello [1998] 2 Qd R 417 and Katsikalis v Body Corporate for “The Centre” [2009] QCA 77 (“Katsikalis”). [44] The power to give effect to a deemed-passed motion is expressly conferred by Schedule 5 Item 10 of the BCCMA. The Adjudicator applied the test in Ainsworth v Albrecht [2016] HCA 40 at [57]–[59] (“Ainsworth”) — identifying the reasons for opposition, enquiring whether there was a rational basis, and determining whether the grounds of opposition were reasonable in all the circumstances — and found each of the four grounds of opposition unreasonable: (a) Diminution of value: there was no evidence that shared access to a larger common property parcel would be more valuable on a market basis than exclusive use of a private yard. The way Lot 2 was advertised for sale suggested a market premium was afforded to exclusive use. (b) Compensation and inequity: the Exclusive Use Resolution proposed an allocation of approximately 173 m² to Lot 1 (48.2%) and 186 m² to Lot 2 (51.8%). Lot 1 enjoys superior street frontage to both Bowen and Maurice Streets, while Lot 2 has access only from Bowen Street. There was no basis on which the Leleks, who were not responsible for constructing the Improvements, should be required to compensate Ms Campbell for the conduct of their predecessors in title. (c) Utility infrastructure: the BCCMA does not provide an unfettered right of access to utility infrastructure on common property. The Leleks had previously proposed that utility infrastructure be separated to allow for control by each lot owner. (d) Vehicular access: notwithstanding the access limitation strip (Lot 69 on RP18424) on the Maurice Street frontage, the Adjudicator found that Ms Campbell had continued to access the common property from Maurice Street without practical impediment, and that nothing precluded her from creating a carpark at the front of Lot 1 on the Bowen Street frontage. Those findings were open on the evidence. [45] The Adjudicator’s conclusion that the opposition was unreasonable was an evaluative judgment on the facts, disclosing no error of law. The Schedule 5 Item 10 power is the statutory mechanism by which the legislature has provided for the resolution of unreasonable opposition to resolutions without dissent. Its exercise is consistent with, not contrary to, Platt v Ciriello: Order 4 of QBCCMCmr 69 directs the body corporate to lodge a new CMS incorporating the exclusive use by-laws — precisely the pathway that Platt v Ciriello requires. Katsikalis is distinguishable: that case concerned retrospective approval by ordinary resolution of a permanent exclusion, without any attempt to comply -- 10 of 14 -- 11 with the legislative requirements for exclusive use. Here the Exclusive Use Resolution was formally proposed at the 2022 AGM, voted upon by both lot owners, and the only obstacle to its passage was unreasonable opposition. [46] There is a further consideration that reinforces the unreasonableness of the appellant’s opposition to the Exclusive Use Resolution. The Adjudicator found (at [70] of QBCCMCmr 69) that Ms Campbell had herself submitted the Campbell Sketch proposing exclusive use arrangements that would confer upon Lot 1 exclusive use of common property at the front of the scheme. The Adjudicator also noted that Ms Campbell had herself constructed a landscaped garden on common property at the front of Lot 1, conferring upon Lot 1 de facto exclusive use of that area. Ms Campbell therefore came to the 2022 AGM having already enjoyed de facto exclusive use of common property and having herself proposed exclusive use arrangements for her own benefit. Her opposition to an equivalent arrangement for Lot 2 was, in those circumstances, plainly unreasonable. It is difficult to conceive of a clearer illustration of opposition that fails the Ainsworth test. [47] Ground 3 is not established. Ground 6 – Ultra vires determination / planning illegality Planning and building approval history [48] The appellant submits that the Adjudicator’s orders are ultra vires because they perpetuate a state of planning and building non-compliance in relation to the Deck and because the formalisation of exclusive use areas would preclude lawful vehicular access to Lot 1. [49] The relevant planning and building history is as follows: (a) On 30 June 2005, the then owner of Lot 2 lodged a development application with the BCC for the erection of a deck and front/rear fencing to Lot 2. On 20 September 2005, a building application for the Deck was lodged. On 4 February 2008, the building approval was cancelled due to outstanding issues causing it to lapse. (b) On 15 July 2015, following Ms Campbell’s complaints, the BCC served a Show Cause Notice on the owners of Lot 2 stating that the construction of the Deck was not self-assessable or exempt development and that an effective development permit from a private certifier was required. (c) On 21 August 2015, the then owners of Lot 2 provided the BCC with a Development Approval Decision Notice from a private certifier for the purpose of “finalising” the existing covered rear deck. A Final Inspection Certificate was provided on 28 August 2015. (d) On 16 September 2015, the BCC conducted a desktop assessment and concluded that the application could not be assessed as it concerned a duplex requiring assessment against the planning scheme for QDC MP 1.3. (e) On 13 November 2015, the BCC issued an Enforcement Notice to the owners of Lot 2 reiterating that an effective development permit from a private certifier was required. (f) On 22 December 2022, an internal BCC note confirmed that at minimum an amendment to the 1996 development approval would be required due to the change -- 11 of 14 -- 12 in building footprint, and that a General Property Notice (GPN) would be placed on the property record. (g) On 2 November 2024, the BCC advised that it would not take enforcement action in relation to the Deck, having regard to the age of the building, the fact that it had been certified, that the property had exchanged hands twice since the building works occurred, and the body corporate’s approval of the Deck. Analysis [50] The submission that the Adjudicator’s orders are ultra vires because they perpetuate planning and building non-compliance does not disclose an error of law. [51] An adjudicator exercising the power under s 276(1) of the BCCMA makes orders about rights as between lot owners and the body corporate under the BCCMA. That jurisdiction is distinct from, and not constrained by, the planning and building approval jurisdiction of the BCC under the Planning Act 2016 (Qld) and Building Act 1975 (Qld). The Adjudicator’s orders do not purport to grant planning or building approval or to override those statutes. The orders declare the Deck to be a lawful improvement for the purposes of the BCCMA and direct the body corporate to record the exclusive use grant in a new CMS. Whether additional planning or building approvals are required is a matter between the owners of Lot 2 and the BCC; it does not affect the validity of the Adjudicator’s orders under the BCCMA. [52] The appellant’s argument under s 84 of the Building Act 1975 (Qld) — that the building approval is inconsistent with the 1996 development approval due to the change in building footprint — was not raised before the Adjudicator and is not, in any event, a matter within the Commissioner’s jurisdiction. It is a planning law question for the relevant statutory authority. [53] In any event, the BCC itself determined on 2 November 2024 that it will not take enforcement action in relation to the Deck. That decision reflects a considered assessment by the relevant authority of the planning and building compliance position. There is accordingly no ongoing state of active planning non-compliance that the Adjudicator’s orders could be said to perpetuate. [54] As to vehicular access: the Adjudicator addressed the access limitation strip at [120]– [121] of QBCCMCmr 69 and found that, notwithstanding its existence, Ms Campbell had continued to access the property from Maurice Street without practical impediment, and that nothing precluded her from creating a carpark at the front of Lot 1 on the Bowen Street frontage. Those were findings of fact on the evidence before the Adjudicator and disclose no error of law. [55] Ground 6 is not established. Disposition [56] None of the grounds of appeal is established in either appeal. Both appeals are dismissed. The orders of the Adjudicator in each of the Initial Decisions — QBCCMCmr 69 and QBCCMCmr 70 — stand. Costs [57] The first and second respondents seek costs of both appeals. The starting point is s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the “QCAT Act”): -- 12 of 14 -- 13 each party usually bears its own costs. Under s 102(1) the Tribunal may order costs in the interests of justice, having regard to the matters in s 102(3). The relevant principles are stated in Tamawood Ltd v Paans [2005] 2 Qd R 101 at [30] and [33]; Marzini v Health Ombudsman (No 4) [2020] QCAT 365 at [36]–[37]; Health Ombudsman v du Toit [2024] QCAT 205; [2024] QCA 235. The default position of no costs order should not be too readily departed from, but the Tribunal retains a genuine discretion where the interests of justice require. [58] Three factors, taken together, satisfy me that the interests of justice require an order for costs in favour of the first and second respondents in both appeals. [59] First, the application for leave to adduce fresh evidence was plainly misconceived as a matter of procedure and substance. Ms Campbell failed to file a formal application as directed by the Tribunal on 18 June 2025, instead filing outline submissions, forcing the respondents to engage counsel to respond to an informal application. The application failed on both the diligence and influence limbs of the Clarke test. This interlocutory step added significantly to the complexity and cost of the appeals. [60] Second, the appeals were conducted in a manner that placed an unreasonable burden on the respondents and the Tribunal. Ms Campbell failed to comply with interlocutory directions made by the Tribunal on 25 June 2024 and required further directions on 18 October 2024, 29 January 2025, and 11 March 2025. The appeal book filed contained a very large volume of material not before the Adjudicator, without any effort to distinguish between material that was and was not before the Adjudicator. This compelled the Senior Member at the directions hearing on 18 June 2025 to make specific orders requiring that distinction to be made. [61] Third, both parties were legally represented before the Tribunal, by reason of Ms Campbell’s own application for leave to that effect. The respondents were justified in engaging counsel, having regard to the complexity of the dispute, its lengthy history across multiple fora, and the conduct of the proceedings. This is not a simple minor civil dispute of the kind to which the no-costs default under s 100 of the QCAT Act is principally directed. [62] The appellant is to pay the first and second respondents’ costs of both appeals, failing agreement within 28 days, assessed on the standard basis on the District Court scale. [63] Fourth, there is a further aspect of Ms Campbell’s conduct relevant to the costs discretion. As noted above, Ms Campbell herself proposed exclusive use arrangements via the Campbell Sketch and had herself constructed improvements on common property conferring de facto exclusive use upon Lot 1. Her pursuit of these appeals, challenging exclusive use orders of the very kind she had herself sought and enjoyed, reflects a degree of forensic inconsistency that is a further consideration weighing against her in the costs discretion. [64] I make the following orders. Orders [65] The Tribunal orders: (a) Leave to adduce fresh evidence in each appeal is refused. (b) Both appeals are dismissed. -- 13 of 14 -- 14 (c) The appellant is to pay the first and second respondents’ costs of both appeals, failing agreement within 28 days, assessed on the standard basis on the District Court scale. -- 14 of 14 --