Choi v The Body Corporate of Macquarie Place [2025] QCATA 128

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Choi v The Body Corporate of Macquarie Place CTS 10897 [2025] QCATA 128 PARTIES: YUK SUM CHOI (appellant) v THE BODY CORPORATE OF MACQUARIE PLACE CTS 10897 (respondent) APPLICATION NO/S: APL161-25 MATTER TYPE: Appeals DELIVERED ON: 19 December 2025 HEARING DATE: 5 November 2025 and later written submissions HEARD AT: Brisbane DECISION OF: Member Roney KC ORDERS: 1. I set aside the orders made by the Adjudicator and remit the matter to the Commissioner for further adjudication and consideration in relation to the following: (a) Whether section 177 of the Body Corporate and Community Management Act 1997 (Qld) applied because the exclusive area affected by the smoke lock was utility infrastructure, having regard to the submissions the parties have since made on that issue, and any relevant evidence which bears upon that issue. (b) Whether in all the circumstances, it is reasonable that the Body Corporate insist on reinstatement of the smoke lock having regard to its own conduct and any other relevant considerations. (c) What is to the proper construction of by-law 5 and as to whether it applied to the relevant works of and associated with removing the airlock, notwithstanding the approval by the body, corporate of those works. -- 1 of 37 -- 2 (d) What are the implications for a Body Corporate in sanctioning work which arguably contravenes by-law 5? (e) Does it constitute a waiver of any by-law contravention or is the Body Corporate estopped from asserting that the works must be removed because of by-law 5. (f) Must the Body Corporate enforce by-law 5 contravention if it has in practical effect sanctioned and approved the works allegedly contravening it? (g) Is it feasible, possible and appropriate from a proper building and engineering perspective to reinstate the smoke lock and what other modifications would be necessary to be made to the appellant’s lot in order for that to occur? As an associated issue, what methods are appropriate to reinstate the smoke lock and make the other modifications and what costs would be associated with that work? (h) Having regard to the answer and outcomes from these issues, who should bear the cost of doing that reinstatement and/or any other associated rectification work having regard to what is just inequitable and reasonable in the circumstances? 2. I make a direction that the parties act reasonably in all relevant respects in seeking to provide such information, submissions and expert opinion to the adjudicator as may be necessary in order for the adjudication to determine those issues. 3. I direct that the appellant provides such access to the lot as may reasonably be requested and or required by the respondent on reasonable notice from time to time, and permit its representatives, agents, consultants any expert to conduct a proper examination of the features of the lot in order to assist the adjudicator to arrive at a just and equitable outcome. 4. I direct that if the appellant proposes to contend in the further adjudication process that there are oppressive or significant financial consequences for her in reinstating the smoke lock, that she files with the Commissioner’s office evidence as to the cost of reinstating, the smoke lock within 90 days of the -- 2 of 37 -- 3 making of these orders or such further time, as the adjudicator may permit. 5. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where s 289(2) of the Body Corporate and Community Management Act 1997 (Qld) allows a person aggrieved by an Adjudicator’s order to appeal on a question of law to the Queensland Civil and Administrative Tribunal – what is error of law – whether there was an error of law – whether deciding an application on a basis not contended for by the parties and without giving an opportunity to make submissions was an error of law REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BYLAWS – whether Body Corporate in Committee meeting acted reasonably in passing motions requiring a fire safety facility which it approved for removal by a lot holder and in respect of which it gave exclusive use, and involved other associated renovations to the lot ought to be reinstated at the lot holder’s expense – whether Body Corporate estopped from enforcing its By-laws in the circumstances COMMON PROPERTY – GRANT OF EXCLUSIVE USE – IMPROVEMENT TO EXCLUSIVE USE AREA – whether appellant was wrongly granted exclusive use of common property comprising a “smoke lock” containing utility infrastructure in contravention of Building Code of Australia and section 177 Body Corporate and Community Management Act 1997 (Qld) BODY CORPORATE AND COMMUNIUTY MANAGAMENT – Adjudicator’s investigation – extent of obligation to investigate matter or invite submissions on an issue adversely decided against a party – whether failed properly to investigate or invite submissions from a party – scope of duty to accord procedural fairness HUMAN RIGHTS – human right to property – where adjudication of dispute between the lot owner and the Body Corporate – where adjudicator is a public entity – where act or decision of a public entity unlawful if a person’s human right not considered – where adjudicator did not consider the appellant’s right to property – whether the Human Rights Act 2019 (Qld) applied to the adjudication – whether the adjudicator was engaging in a -- 3 of 37 -- 4 function of a public nature – whether error of law not to have regard to the Human Rights Act 2019 (Qld) in the adjudication Body Corporate Community Management Act 1997 (Qld), s 94, s 100(5), s 100(1), s 171(3)(b), s 177, s 184, s 276(3), Schedule 5 Items 10 21 Building Act 1975 (Qld) Building Code of Australia Building Fire Safety Regulation 2008 (Qld) Fire and Emergency Services Act 1990 (Qld) Human Rights Act 2019 (Qld) National Construction Code 2022 National Construction Code 2016 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146 Ainsworth & Ors v Albrecht & Anor (2016) 261 CLR 167 Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 Body Corporate for Grand Pacific Resort v Cox [2012] QCATA 14 Climpson & Anor v Body Corporate for Rolling Surf Resort Celestial Investments Pty Ltd [2013] QCATA 93 den Exter v Magnetic International Resort Hotel CTS 22894 [2011] QCATA 70 Hablethwaite v Andrijevic [2005] QCA 336 Huang v Body Corporate for the Dorchester CTS 10749 [2024] QCATA 64 JM Family Holdings Pty Ltd v Owltown Pty Ltd [2018] QCA 260 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Border Protection v WZARH [2015] HCA 40 Owltown Pty Ltd v Norwinn Commercial CTS38094 [2018] QCATA 2 Owltown Pty Ltd v Norwinn Commercial [2020] QCATA 145 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 The Australian Institute for Progress Ltd v The Electoral Commission of Queensland (2020) 4 QR 31 The Body Corporate for The Grove CTS9356 v Comerford [2019] QCATA 172 Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 -- 4 of 37 -- 5 APPEARANCES & REPRESENTATION: Appellant: Self-represented, assisted by H Chan Respondent: Self-represented by its agent A West Body Corporate Secretary REASONS FOR DECISION Background [1] The appellant is the owner of Lot 20 in the scheme that is Macquarie Place CTS 10897. Macquarie Place is a scheme comprising 21 lots and common property, regulated by the Body Corporate and Community Management Act 1997 (Qld) and Standard Module. Macquarie Place was built in around 1981. [2] Both parties to this very complex appeal were self-represented. The appellant was assisted by her husband, Mr Chan, who is a builder. He gave opinions and made submissions about a number of engineering and building related issues, as well as issues concerning the proper construction of the Building Code of Australia and many other topics. His contentions were often at odds with the evidence before the adjudicator from engineers and other experts. [3] The Appeal Book comprised 476 pages of material and the appellant relied on a detailed written submission of 121 pages setting out the arguments for the 20, or eventually, only 19, grounds of appeal on 21 August 2025. The appellant then filed a further 79-page Reply Submission on 16 October 2025 addressing the Respondent’s submissions. She filed even more lengthy submissions after the hearing on issues that I invited submissions about, but also addressed a wide range of other matters. The respondent filed a written submission of 21 pages in response on 15 September 2025 and further submissions after the hearing on issues that I specifically invited submissions about. [4] At the heart of this matter the dispute concerns the applicant having removed a small triangulated area of less than one square meter of common property which was adjacent to the fire stairs running internally inside the building. That small area was to be found on each of the floors in the building. The area is called a smoke lock in some places and an airlock, or a smoke lobby, in others. When the appellant purchased Lot 20 in 2017 she noticed that the smoke lock was very small and consulted with Mr Norman Bergin of Overall Building Consultancy Services, (who it is said was an experienced building certifier and a fire safety professional) and worked out a solution to fix the perceived safety problems by adopting deemed-to-satisfy provision D1.7(a)(iii) of National Construction Code 2016 (‘NCC’), by converting the smoke lock into what was part of a larger laundry room. Mr Norman Bergin was not used by the appellant as an expert witness in her case. [5] On 1 August 2017, the appellant applied to the Body Corporate for permission to perform substantial renovations to the Lot and which she could not do without formal approval. Part of these renovations involved removal of the smoke lock. Not only was removal of it sought, but the appellant also wanted for it to be taken out of common -- 5 of 37 -- 6 property of the respondent but for exclusive use title to it to be given to her. Extensive plans were provided to the Body Corporate at the time to show what was proposed. [6] That work was eventually done and completed in 2018 and the area where the smoke lock was came to become property for the exclusive use of the appellant instead of general common property. [7] The appeal is from a decision by an adjudicator1 who ordered in respect of an application by the respondent Body Corporate that within six months of the date of the order, the owner of lot 20 was to reinstate the common property smoke lock in the area of common property which they incorporated into their lot. [8] It was ordered that the Owner of lot 20 was to meet the cost of all works to reinstate the smoke lock. No reasons were given for why it was thought that they should meet that cost. It may be inferred that this was seen to follow from other findings on the evidence. [9] It was also ordered that within six months of the date of the order, the Body Corporate was to lodge with Titles Queensland, an amended Community Management Statement (‘CMS’) which records the removal of the by law granting exclusive use of common property to the owner of lot 20. It was ordered that the body corporate was to meet the cost of preparing and lodging the amended Community Management. No reasons were given for why it was thought that it should meet that cost but not the cost of all works to reinstate the smoke lock. [10] The respondent concedes that the decision requires the appellant, at her cost, to remove her laundry facilities and reinstate the smoke lock. In turn, the Respondent is required to prepare and lodge a new CMS in accordance with the Body Corporate and Community Management Act 1997 (Qld) (‘BCCMA’ or ‘the Act’). [11] The appellant appeals all of those orders in a multiplicity of ways. Appeals from Orders of adjudicators [12] The decision of the Adjudicator was given under s 276 of the BCCMA. Section 276 provides as follows: 276 Orders of adjudicators (1) An adjudicator to whom the application is referred may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about— (a) a claimed or anticipated contravention of this Act or the community management statement; or (b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or (c) a claimed or anticipated contractual matter about— (i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or 1 Macquarie Place [2025] QBCCMCmr 80. -- 6 of 37 -- 7 (ii) the authorisation of a person as a letting agent for a community titles scheme. (2) An order may require a person to act, or prohibit a person from acting, in a way stated in the order. (3) Without limiting subsections (1) and (2), the adjudicator may make an order mentioned in schedule 5. (4) An order appointing an administrator— (a) may be the only order the adjudicator makes for an application; or (b) may be made to assist the enforcement of another order made for the application. (5) If the adjudicator makes a consent order, the order— (a) may include only matters that may be dealt with under this Act; and (b) must not include matters that are inconsistent with this Act or another Act. [13] The appeal to this Tribunal is governed by s 289 of the BCCMA, which provides: 289 Right to appeal to appeal tribunal (1) This section applies if— (a) an application is made under this chapter; and (b) an adjudicator makes an order for the application (other than a consent order); and (c) a person (the aggrieved person) is aggrieved by the order; and (d) the aggrieved person is— (i) for an order that is a decision mentioned in section 288A, definition order—an applicant; or (ii) for another order— (A) an applicant; or (B) a respondent to the application; or (C) the body corporate for the community titles scheme; or (D) a person who, on an invitation under section 243 or 271(1)(c), made a submission about the application; or (E) an affected person for an application mentioned in section 243A; or (F) a person not otherwise mentioned in this subparagraph against whom the order is made. (2) The aggrieved person may appeal to the appeal tribunal, but only on a question of law. -- 7 of 37 -- 8 [14] Section 290 of the BCCMA provides: 290 Appeal (1) An appeal to the appeal tribunal must be started within 6 weeks after the aggrieved person receives a copy of the order appealed against. (2) If requested by the principal registrar, the commissioner must send to the principal registrar copies of each of the following— (a) the application for which the adjudicator's order was made; (b) the adjudicator's order; (c) the adjudicator's reasons; (d) other materials in the adjudicator's possession relevant to the order. (3) When the appeal is finished, the principal registrar must send to the commissioner a copy of any decision or order of the appeal tribunal. (4) The commissioner must forward to the adjudicator all material the adjudicator needs to take any further action for the application, having regard to the decision or order of the appeal tribunal. [15] Section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides: 146 Deciding appeal on question of law only In deciding an appeal against a decision on a question of law only, the appeal tribunal may— (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration— (i) with or without the hearing of additional evidence as directed by the appeal tribunal; and (ii) with the other directions the appeal tribunal considers appropriate; or (d) make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c) [16] Hence, pursuant to s 146, in deciding an appeal against a decision on a question of law, the Appeal Tribunal is not engaged in a rehearing of the matter. The 19 grounds of appeal [17] This is a matter where one can appeal only on a question of law. Yet the appeal grounds do not reliably focus on that issue. Many grounds are repetitive and often not self- evident as to their foundation as errors of law or as any form of error. Some are incoherent or based on a fundamental misunderstanding of the law. [18] Comprehending and resolving the complexly interwoven issues which are repetitiously thrown up in the appellant’s case has been no easy task. Despite that I have given full and careful consideration to all of those submissions. Many of them -- 8 of 37 -- 9 cross over between topics and appear to interrelate different heads of appeal with other grounds or arguments in support of the appeal. One’s overall impression is that in large part, this appeal was conducted by the appellant as an attempt to re-argue the multiplicity of issues which were raised at the adjudication at which the appellant lost, both on the evidence and in law, and as to the proper interpretation to be placed upon evidence where it fell into some particular context or other. [19] Although the grounds of appeal are expressed to be grounds of law they are mostly against findings of fact or mixed findings of law and fact for which leave is required, they essentially relate, in one way or another, to challenging to the findings of fact. Some of those said to be errors of law are not obviously so. The grounds of appeal [20] Ground 1 is “Jurisdictional Error: The Adjudicator of BCCM acted Ultra vires exceeding powers of BCCM Act to decide Building Compliance under Building Act 1975. (i.e. The Adjudicator has no jurisdiction and expertise to decide if the work of Lot 20 is in breach of the Building Act 1975)”. [21] The Adjudicator's powers include considering legislation such as the Building Act 1975 (Qld) (‘Building Act’) and referencing standards and codes, including the Building Code of Australia (‘BCA’). Adjudications regularly consider the Building Act and BCA and there is no express provision in the Building Act which limits the Adjudicator's jurisdiction. The Appellant's approval, issued by Mr Bergin, related only to Lot 20. There was no suggestion that Mr Bergin's approval assessed the whole building or superseded the Building Approval. The Adjudicator considered the advice of a certifier Mr Matt Bennett (‘certifier’) who assessed the appellant's renovations against what was in the Building Approval, the By-laws and the BCA, and determined that the smoke lock remained a requirement. An adjudicator can decide such issues as arise for determination in the application. That was one of them. There was no such jurisdictional error. [22] Ground 2 is “Jurisdictional Error: The Adjudicator of BCCM Acted Ultra Vires by Exceeding Powers under the BCCM Act to Enforce Building Compliance under the Building Act 1975. (i.e. BCCM is not empowered and authorized to enforce Breach of Building Acts 1975)”. [23] Again, there is no basis for this ground and there was no order enforcing building compliance under the Building Act. The Adjudicator did not seek to issue enforcement notices or “enforce” noncompliance under the Building Act. There was no such jurisdictional error. [24] Ground 3 is “Jurisdictional Error & Denial of Procedural Fairness: The Adjudicator of BCCM Failed to Comply with the Investigation and Enforcement Procedures Stipulated in the Building Act 1975 Before Issuing a De Facto Enforcement Order”. [25] Again, there is no basis for this ground, and it is nonsensical. There was no such jurisdictional error even if the adjudicator failed to comply with investigation and enforcement procedures in the Building Act. [26] Ground 4 “Error of Law - The Judicator Failed to Implement Section 269(1) and 270(a) BCCM Act to Investigate and Dismiss the Adjudication Application when it appears to the Adjudicator that the Adjudicator does not have jurisdiction to deal with the application”. No error of law occurred because the Adjudicator failed to dismiss -- 9 of 37 -- 10 the adjudication application under 270(1) of the BCCMA. Again, there is no basis for this ground, and it has no intelligent or reasonable meaning. [27] Ground 5 is “Error of Law: The Adjudicator Failed in Performing the Adjudication Function to Address the Second Part of the Matter – Whether the Body Corporate (the Respondent) Acted Reasonably". [28] I will deal with that ground shortly. [29] Ground 6 is “Jurisdictional Error: The Adjudicator Identified the Wrong Issue, Asked the Wrong Question, and Decided a Matter Not Entrusted to It”. There is no basis for this ground, and it is nonsensical. There was no such jurisdictional error. This ground is apparently related to grounds 7 and 15 as well. [30] I will deal with the issue concerning section 177(1) shortly. [31] Ground 7 is “Error of law - The Adjudicator Misinterpreted Section 177 of the BCCM Act (prohibited matter for exclusive use by-law) and Applied It Incorrectly”. [32] Ground 8 is “Error of law - The Adjudicator Further Misinterpreted and Misapplied Sections 177, and 171 of the BCCM Act in Ordering Lot 20 to Surrender the Exclusive Use Area and Pay All Costs for the Amendment of the CMS - The Order is Clearly Incorrect, Unjustified, Unreasonable, and Unlawful”. [33] I will deal with that ground shortly. [34] Ground 10 is “Jurisdictional Error: The Adjudicator of BCCM Acted Ultra Vires - Making a Finding that Lot 20 Compromised the Fire Safety of the Building and Erred in the Interpretation of the Building Fire Safety Regulation 2008 (QLD) and the Fire and Emergency Services Act 1990 (QLD)”. [35] The appellant contends the Adjudicator considered the evidence from experts whom the appellant says were “hired guns”, implying professional bias and partiality. The Appellant was afforded an opportunity to submit expert evidence. The Appellant and her husband are not experts. Their submissions were given appropriate weight. The preference for one party’s evidence over another does not amount to an error of law or fact. Otherwise, there is no basis for this ground, it attacks a finding of fact or it has no intelligent or reasonable meaning. There was no such jurisdictional error. [36] Ground 11 is “Error of Law: The Adjudicator Relied on False and Misleading Information Provided by the Body Corporate's Consultant Without Proper Examination, Justification, or Consideration of the Appellant (Lot 20)'s Overwhelming Submissions and Evidence”. [37] There is no basis for this ground, and it is not an error of law to accept one party’s submissions and expert evidence especially when the appellant led none to contradict it apart from the assertions of the appellant’s husband. Otherwise, it has no intelligent or reasonable meaning. [38] Ground 12 is “Error of Law: The Adjudicator Ignored Critical Evidence Submitted by the Appellant”. [39] It is not an error of law not to accept one party’s evidence. There is no need to reference every asserted bit of “evidence” to arrive at a proper legal conclusion. The Adjudicator did not ignore critical evidence in the way the appellant suggests. -- 10 of 37 -- 11 [40] Ground 13 is “Error of Law: Bias, no evidence, Assumption, Failed to Provide Justification and Adequate Reasons for the Decision, Incorrect Interpretation of Evidence”. [41] Again, there is no basis for this ground, and it is largely nonsensical. There was no bias evident. The appellant asserts that the Adjudicator was biased. The appellant’s position appears to be based on the Adjudicator's preference for the Respondent’s expert and lay evidence and the wording used in the reasons to refer to what the appellant “argues” or denied. The use of such language is conventional and does not reveal bias. Apart from some matters I deal with below there was no failure to provide reasons or set out the evidence which founded some of the findings. [42] Ground 14 is “Error of Law: The Adjudicator Failed to Address the Conflict of Interest of Mr Catchpole”. [43] This refers to an expert witness I mention later. The Adjudicator did not need to address a conflict of interest of Mr Catchpole because it was unnecessary to do so and no conflict was shown. Mr Catchpole had no discernible interest in the Building Approval nor any consequences flowing from the decision of the Adjudicator. The validity or lawfulness of the Building Approval (made by Council in 1980) has no apparent personal significance to Mr Catchpole. Even if there was a conflict, it did not affect the outcome. He was one of three experts who were used by the respondent in support of its case. His evidence was not critical. [44] Ground 15 is “Error of Law, The Adjudicator Denied Natural Justice (Procedure Fairness) by not provide opportunity to the Appellant (Lot 20) to reply new issue raised by the Adjudicator and submission provided by the Respondent”. [45] I will deal with one procedural fairness issue shortly. Otherwise, there is no substance to this ground. [46] Ground 16 is “Error of Law: The Adjudicator Found a Breach of the Building Act 1975 Without Evidence or inadmissible evidence.” [47] The Adjudicator made findings on the evidence put forward by the parties. The rules of evidence do not apply in any event. If they did apply much of what the appellant put forward would have been excluded as unqualified opinion. The appellant asserts that the reasons in paragraphs [41] to [44] and [46] to [47] show that the Adjudicator was considering evidence which was inadmissible pursuant to s 252E(5) of the BCCMA because it was evidence of things said or done about the dispute in a department conciliation session. There was only an observation that the conciliation process had been unsuccessful. [48] Even if the Adjudicator had considered material from the conciliation process, the respondent did not obtain an unfair advantage through that particular evidence. The appellant did not object to any submissions made by owners of lots in Macquarie Place evidencing attempts to reach a resolution with the appellant. Attempts to resolve the matter and in what ways was relevant to the making of just and equitable orders. There is no substance to this ground. [49] Ground 17 is “Error of Law - The Adjudicator Made an Order That Requires Breach of Other Laws”. -- 11 of 37 -- 12 [50] There is no basis for this ground, and it is nonsensical. There was no such error. This ground depends on accepting the appellant’s husband’s assertions as to what the legality of the original construction of the fire protections system was. The effect of the decision, as I shall discuss shortly, was in part something based in part on requiring the appellant to comply with the By-Laws. Mr Bennett’s report concluded that the smoke lock is required under both the By-Laws and the BCA. If there are any conflicts with the Private Approval then it would be a matter between the appellant and her certifier. The appellant’s contention seemingly rejected by the adjudicator is that the smoke lock was part of a non-compliant or illegal construction. There is no substance to this ground because even if it was a non-compliant or illegal construction, that does not mean the orders made could not be made. [51] Ground 18 is “Error of Law - The Adjudicator Ordered Work That imposes a Fire Risk and Potential Negligence, unlawful and unworkable.” [52] The appellant relies in part upon evidence which was not before the Adjudicator including two enforcement notices issued by the Queensland Fire Department. There is no basis for this ground. The adjudicator acted on the evidence of the experts called for the respondent. They did not agree that reinstating the smoke lock was going to cause a fire risk. There was no such error. The appellant made no application to adduce further evidence. Should an application be made, the respondent says the evidence would indicate that such defect notices have been resolved and were not related to the issues considered by the adjudicator. It would therefore have no significance for the result of the case. The appellant provided no expert evidence supporting their position on this issue. There is no substance to this ground because even if it was work that imposes a fire risk and potential negligence, is unlawful and unworkable is a non- compliant or illegal construction, that does not mean that as a matter of law the orders made could not be made. [53] Ground 19 is “Error of Law: Unreasonable Disproportionate, and Punitive Order Rendering Lot 20 Uninhabitable and Imposing Excessive Costs and Unjustified Hardship”. [54] I will deal with the reasonableness of the order and the respondent’s conduct in seeking such an order. [55] Ground 20 is “Error of Law: The By-Law 5(b) exceed the limitation under section 180(1) of BCCM Act of being inconsistent with Building Act 1975 and hence is invalid”. [56] There is no basis for this ground, and it is nonsensical. There was no such error. There was no legitimate basis to set aside as invalid the relevant by-law nor did the adjudication throw up for determination whether the by-law was invalid. [57] In my view, although superficially the appellant has attempted to articulate the grounds of appeal to give them the appearance of being grounds of law, most are nothing more than an attempt to re-argue issues of fact or the conclusions that were made about them. [58] There are however issues of law that emerged during argument on the appeal and I will deal with those. -- 12 of 37 -- 13 The works carried out and the circumstances by which it was carried out [59] The building (Macquarie Place) was constructed between 1980 and 1981 pursuant to building approval 3460/80 issued by Brisbane City Council on 28 July 1980. The relevant building by-laws as of the date of the Building Approval is the “Standard Building By-Laws 1975” being the schedule to the Building Act 1975 (Qld), No. 11 of 1975. [60] A certificate of approval was issued by the Metropolitan Fire Brigade in 1981. A certificate of classification was issued by Council as well in 1981. [61] Macquarie Place is 11 storeys above ground with a single basement for carparking. Macquarie Place is a Class 2 Building under the by-laws. The building contains 21 individual lots with three standard floor plans for the units and a single basement floor plan. The lower two storeys (ground and level I) are common area access plus four “townhouse” units 1-4 with private spaces and carpark access. [62] The units on level 2 to 9 consist of two units per floor, each with an access doorway to the unit from the common lift lobby, and a second exit to the fire stairs via a small Smoke Lock. Level 10 contains a single penthouse for the entire storey. [63] Sixteen units of Macquarie Place contain a small room which separates the habitable spaces of the unit with the fire-isolated stairs. Each door is fire rated collectively amounting to a two-hour rating. Each smoke lock includes a smoke alarm linked to the building’s fire safety system. If triggered, it triggers the building’s alarm (audible to all residents) and activates the fire stair pressurisation system which ensures the stairwell remains clear from smoke. The smoke alarm is, by virtue of being within the smoke lock, isolated from the habitable spaces of the units (such as the kitchen), and would activate when someone exited into the fire stairs in an emergency via the smoke lock. [64] Macquarie Place does not utilise a smoke lobby isolating the fire exit routes from the effect of smoke. In lieu of the smoke lobby and to comply with by-law 24.8, the architects of Macquarie Place, Conrad, Gargett & Partners provided each unit on levels 2 to 9 with a “smoke lock” as a sort of compromise. [65] Approval for all the work that I have referred to above was given in due course on the approval of 29 August 2017, as was later acknowledged in minutes of a meeting of 12 September 2017 in circumstances which I shall describe shortly. The Adjudicator held that they sought committee approval and on 12 September 2017 the owner was given approval upon conditions. Eventually, the smoke lock walls were removed and the area now open space was converted into a larger room that was built and comprised the laundry of the lot. [66] The minutes of the committee meeting of 12 September 2017, reflecting the state of mind and intent of the respondent, read as follows in what was described as a “note” by the Committee: The owner of Lot 20 has requested approval to demolish the wall and door creating the Smoke Lock leading into the fire stairs. See attached Building Unit Plan Level L Diagram. The owner has provided written advice from the building certifier and has met all the conditions for Building Compliance required from the approval of 29 -- 13 of 37 -- 14 August 2017. (Note: This approval is still subject to the grant of Exclusive Use of this area at an EGM). [67] The Adjudicator held, erroneously, based on what the Body Corporate application incorrectly said, that on 12 September 2017 the owner was given approval upon conditions. The Adjudicator said the “specified conditions”, presumably referring to what was the subject of the motion of 29 August 2017, were as follows: 1. Provision of a letter from a qualified and registered Building Certifier confirming that removing the smoke lock to Lot 20 does not alter the status of any other Lot and will not have any adverse impact on the existing lots or the body corporate common property AND the overall fire compliance of the building. NOW Provided 2. The existing asbestos fire door to be replaced with a new door and complying hardware. 3. The changes to the floor level (and step down to fire stairs) door swing, door locking to be confirmed as fully complying by a Building Certifier. 4. That the Lot owner seek approval at an EGM for exclusive use of the 1 m2 currently forming the smoke lock. The EGM to be held in early November. [68] The material did not apparently include the minutes of the 29 August 2017 meeting imposing those conditions, but I will proceed on the basis that the note to the 12 September 2017 meeting correctly recorded the position as to the conditions. That minute recorded that the Committee had been provided with a letter from a qualified and registered Building Certifier confirming that removing the smoke lock to Lot 20 did not alter the status of any other Lot and will not have any adverse impact on the existing lots or the body corporate common property and the overall fire compliance of the building. [69] I pause to observe that the condition of approval of all that then was to occur, and did occur, was that there be the provision of a letter from a qualified and registered Building Certifier confirming that removing the smoke lock to Lot 20 does not alter the status of any other lot and will not have any adverse impact on the existing lots or the body corporate common property and the overall fire compliance of the building. That document was provided. [70] The reasons record that: [75] The Body Corporate acknowledges that the owner of lot 20 provided a letter from a qualified Building Certifier stating the above. However, the Body Corporate believes that the removal of the common property smoke lock by Lot 20 caused the building to become non-compliant with the Building Act 1975 (Qld) and the Building Code of Australia, as supported by two expert reports subsequently obtained by the Body Corporate. The applicant body corporate also says that the removal of the smoke lock has serious ramifications on the safety of the building for all occupants, particularly in the event of an emergency. [76] The Body Corporate therefore advised the owner of lot 20 that the removal of the Smoke Lock was in breach of By-Law 5 (b) contained in the Community Management Statement which provides as follows: All alterations to lots shall comply with the Building Act 1975 (QLD), the Queensland Development Code and All other laws and regulations ("laws") relating to such alterations …” -- 14 of 37 -- 15 [71] The condition was not that removing the smoke lock to Lot 20 did not alter the status of any other Lot and will not have any adverse impact on the existing lots or the body corporate common property and the overall fire compliance of the building. It was about the provision of a letter that said that, in my view, at least arguably, there is a substantial difference between a situation where a Body Corporate specifically approves work to be done based on plans and certifications done by professionals which concerns what work is authorised, and a situation where the specific manner in which the work is done is not identified in such detail such that one can say exactly how it was to be done. In my view, there is a plausible argument that by-law 5 (b) contained in the Community Management Statement which provided that all alterations to lots shall comply with the Building Act 1975, the Queensland Development Code and all other laws and regulations relating to such alterations concerns the way work is done, not the approved work itself. Here the approval to the work was premised on the certifications the respondent asked for and got. What was built was what was approved, it is just that after it was all done, indeed years later, the respondent got advice that the removal of the smoke lock was unlawful. [72] The Adjudicator held that: After the owner of lot 20 provided the body corporate with a letter from a building certifier stating that the smoke lock could be removed, the Body Corporate approved the application and at an EGM held on 28 November 2017, granted Exclusive use of a small area of common property to the owner of Lot 20. [73] That was incorrect because the letter or whatever form the document took had been provided before the 12 September 2017 meeting. Attached to the minutes of that meeting was a document in table form that seemed to be intended to identify the steps that needed to be taken. [74] It said: Revised Detail of Alternation(sic) A: Smoke Lock, Fire door and internal public area - For the works - Removal of smoke lock at unit 20-Change existing lock with an approved fire rated keyless operation entry lock for egress [75] A plan was attached. The conditions in this document in table form were that: Owner to provide certification for the removal of smoke lock. Owner to provide Structural engineer's confirmation that the smoke lock is non- structural. Owner to provide certification for alteration of fire door upon completion. Owner to provide a survey with dimensions and markup for exclusive use area. Owner to provide an amendment of the Community Management Statement for the change. Owner pay for all above costs. [76] The comments included: Refer to Building Approval and fire safety specialist's report for the removal of smoke lock Compliance with Dl.7(d) of NCC Vol 1 2016. The exit is pressurised in accordance with AS/NZS1668.l -- 15 of 37 -- 16 [77] The “comments” listed related to the removal of the smoke lock works. They referred to a building approval and fire safety specialist’s report for the removal of the smoke lock, which identified compliance with the NCC and that the current smoke lock was “not structural” and did not comply with the NCC and that there were other units who faced a similar situation who may also apply to remove the lock. [78] It did recite that the approvals which I have referred to above did not alter the status of existing lots and the like, saying there is no need to change the existing smoke detector and that removal of the smoke lock will improve performance at the overall safety of the building. [79] The second aspect of the works identified as apparently approved by the Committee concerned converting the existing smoke lock area into a laundry room and sanitary compartment, and the attached material that went to the committee and was approved described extensive works associated with that, with the conditions including that the owner was to provide certification and that there be an inspection and that the owner pay for those costs. [80] The identified conditions related to the NCC, and specific detailed floor plans and a structural engineer’s certified plan were referenced. There were also other works associated with the fire door in that location, which was also referenced to compliance with the Code. [81] There was otherwise a detailed description of a wide range of other alterations to be made to the internal part of the unit including significant changes to the glazing, and also to the layout of the unit internally. Changes to the plumbing and the like were all approved by the committee. The only respect of which there were conditions was that the works were to be carried out based on advice from an engineer and various other conditions, as to which, there is no suggestion that there was non-compliance. [82] All of this work certification and inspections was expressly to be at the owner’s cost. Again, detailed floor plans recorded what all of this work entailed. [83] At no time was it specified that there were conditions associated with these works, which might mean that any approval once given could be revoked if it was later established that any of these conditions had, in fact, not been met or were inaccurately certified or were questionably so or that they were read subject to by-law 5 which required them to be legally compliant. [84] All the renovations were assessed, approved, inspected, and certified by Mr Bergin who it is said is a Building Certifier and Fire Safety Professional under the Building Act, and a Certificate of Classification was issued in 2018. [85] As I have already said by-law 5 (b) contained in the Community Management Statement at the time provided that “All alterations shall comply with the Building Act 1975 (QLD), the Queensland Development Code and All other laws and regulations (‘laws’) relating to such alterations.” The respondent later seized on that by-law as providing a basis to insist on restoration of the smoke lock. It was not a condition of the grant of consent by the committee to do the work, nor of the respondent in general meeting of its lot holders to amend the CMS, that the alterations comply with the Building Act, the Queensland Development Code and all other laws and regulations relating to such alterations failing which the consent was to be treated as not given. It -- 16 of 37 -- 17 was not a condition of the grant of consent by the committee to do the work that by- law 5 (b) be complied with or be shown to have been complied with. [86] The Adjudicator found that in July 2018 a member of the Committee resigned and a new member was appointed. The new member reviewed the approval of the smoke lock that had been removed, and advised the Committee at the time that they believed the removal of the smoke lock did not comply with the Building Code of Australia and should be investigated further. Before action could be taken, the Body Corporate's Annual General Meeting was held in December 2018, at which time an entirely new Committee was elected. The new Committee took no further action on the concerns raised regarding the airlock. [87] The Adjudicator found that in subsequent years the Committee was busy with other items and management of health risks associated with COVID-19. In December 2022 a new Committee was formed, which comprised the member who was concerned about the airlock in 2018, and it was suggested that this matter should be reassessed. The Body Corporate was advised by their fire maintenance contractor that the Fire Doors in the building were defective and contained asbestos. The Committee commissioned a report from an independent building certifier to review this advice. At the same time, the Building Certifier was requested to provide advice on the removal of the smoke lock to lot 20. That is where it all started to go wrong for the appellant. [88] Gundog Building Consultants, who were Building Certifiers, assessed the compliance of the existing doors against relevant building legislation and in its report of 4 April 2023 concluded that the removal of the smoke lock was non-compliant with the Building Code of Australia. The appellant takes issue with the conclusions it reached but did not obtain her own expert report to counter it. [89] The Adjudicator found that: [77] On 17 November 2023, the body corporate issued a By-Law Contravention Notice to the owner of lot 20, advising that they had contravened by-Law 5(b) and requiring them to reinstate the smoke lock. However, the respondent denied that the smoke lock was required by law and argued that the reports obtained by the Body Corporate were incorrect and completed by people without the correct accreditation. [78] On 28 November 2023, the Committee resolved to engage a Fire Engineer to provide advice on the removal of the Smoke Lock. On 4 December 2023, a report was received from the Fire Engineer advising that the removal of the Smoke Lock does not comply with the Building Code. [79] A copy of this report was provided to the respondent but they continued to deny any contravention of the Building Code and argued that the further report by a fire engineer was incorrect. They argue that the smoke lock was "non-functional" airlocks and that it is practically impossible for an average person to enter the smoke lock from the unit and close both doors, due to the confined space and the swing path of the doors. Since both doors must open simultaneously for access, they believe the Smoke Locks are too small to be functional and are ineffective. -- 17 of 37 -- 18 [90] The 4 December 2023 report was from a well credentialled Fire Engineer, Dr Adam Ervine, concluding that the removal of the airlock affects the building’s fire safety system in a manner that is considered not minor, is not permitted and contravenes the requirements of Standard By-Laws of the Building Act and the provisions of current day National Construction Code. On 5 December 2023 the Body Corporate wrote to the appellant providing the Fire Engineering advice and again requested that the airlock be re-instated. She refused. [91] A later report by Mark Catchpole, a Chartered Building Control Surveyor, was obtained and it was described and set out in a letter by the respondent to the adjudicator. It said that on 26 November 2024 they had an onsite meeting with Mark Catchpole of Catchpole Building Services; to walk through the building and assess issues the appellant had raised in some submissions that one may infer were drawn by the appellant’s husband. [92] The appellant was provided notice of the onsite meeting and the Body Corporate requested access to lot 20 and the air lock area. They were refused access. [93] Following his review of the documentation provided and a visual inspection of accessible areas, Mr Catchpole said he was given authority to obtain the building approvals for lot 20 from Brisbane City Council and QFES, which he examined. He concluded that both approvals revealed significant fire and safety errors in the Unit 20 approval. He made various criticisms about people being appropriately licensed. That is not to the point. He concluded that the absence of the required airlock as prescribed in the 1980 approval, “poses an increased threat to the spread of fire to the storey above and compromisation of the exclusion of smoke from the pressurised stair shaft single door which swings into Unit 20 rather than swinging into the fire stair and having the required airlock as prescribed in the 1980 approval. When the stair pressurisation is operating the air force will not readily allow the single door to Unit 20's air lock to close”. [94] The appellant mounts attacks on his professionalism and objectivity. [95] The critical findings of the Adjudicator were as follows: [83] It is evident from both expert reports that the fire stairs for the building are constructed as a scissor- stair connecting all above-ground levels. On level 9, each fire stair serves the two units. One of the fire stairs is accessed via a common lift lobby on the north side of the stair core. The second stair is accessed on the south side of the stair core, with each unit originally constructed with a smoke lock (which is also referred to as an air lock). [84] Part D1 of the Building Code of Australia (BCA) is headed "Provision For Escape" and includes Section D1 .7 provides as follows: Travel via fire-isolated exits (a) A doorway from a room must not open directly into a stairway, passageway or ramp that is required to be fire-isolated unless it is from- (i) a public corridor, public lobby or the like; or (ii) a sole- occupancy unit occupying all of a storey; or (iii) a sanitary compartment, airlock or the like. [85] To assist in understanding the above provision it is useful to refer to the BCA Guide which provides: Access to fire-isolated exits -01 .7(a) requires that a doorway must not open into a fire-isolated exit unless it opens from a public area, a sole-occupancy unit which occupies a whole -- 18 of 37 -- 19 floor, or a toilet. This is to limit the number of entry points into a fire- isolated exit to retain its fire-resisting performance. Note that 01 .7(a)(i) refers to a 'public corridor, public lobby, or the like'. A smoke lobby which serves at least two sole-occupancy units is a 'public lobby', and can open directly into a fire-isolated exit. [86] From the above it can be noted that fire stairs are not permitted to be accessed directly from an apartment unless it is from a public corridor, public lobby or the like (ie a smoke lobby which serves at least two sole occupancy units; or a sole-occupancy unit occupying all of a storey; or a sanitary compartment, airlock (aka a smoke lock) or the like. [87] A sanitary compartment is defined as "A room or space containing a closet pan or urinal". [88] While the NCC does not have a definition for 'airlock', Handbook 50- 2004, "Glossary of Building Terms" published by the National Committee on Rationalised Building (NCRB) and Standards Australia, defines an airlock as "a room or compartment having two doors, situated between two environments with different air conditions, making it possible to pass from one environment to the other without significant disturbance to either". [89] As there are two apartments on level 9, I am of the view that: 1. The northern fire-isolated stair must be accessible from each apartment via the lift lobby, (which may be referred to as a smoke lobby), and 2. The southern fire-isolated stair must be accessed by a sanitary compartment, airlock (smoke lock) or the like. 3. The legislation does not specify a minimum floor area for an airlock (smoke lock). [90] The previously constructed lot 20 smoke lock (airlock) that formed part of the building's fire safety system has now been removed and that area now forms part of the lot 20 laundry room. It cannot now be considered to be a sanitary compartment, airlock or the like. [91] I am in agreement with both of the expert reports which conclude that this modification. affects the building's fire safety system in a manner that is not considered minor; and contravenes the provisions of National Construction Code (NCC) 2022 Volume One, "Building Code of Australia (BCA) Class 2 to Class 9 Buildings". [92] I am of the view that the Smoke Lock was removed by the respondent in breach of Bylaw 5(b) which provides as follows: All alterations to lots shall comply with the Building Act 1975 (QLD), the Queensland Development Code and all other laws and regulations ("laws") relating to such alterations. [93] I am also of the view that the amendment of the by-laws to give the owner of lot 20 exclusive use of a small area of common property, involved a contravention of section 177 of the Act which provides as follows: 177 Prohibited matters for exclusive use by-laws -- 19 of 37 -- 20 (1) An exclusive use by-law must not give exclusive use to the rights and enjoyment of, or other special rights about, utility infrastructure that is common property or a body corporate asset. (2) An exclusive use by-law cannot prohibit allocations under reallocation agreements. [96] This situation has left the respondent in various difficulties actually or potentially including with getting insurance for the building and as to whether there is a safety issue and a risk of asphyxiation for owners and occupiers. [97] The appellant attacks these findings in a multiplicity of ways, but in my view none of the challenges demonstrate any error of law was made in arriving at these factual findings. Can exclusive use rights only be taken away by resolution without dissent [98] The appellant had argued that exclusive use rights can only be granted or taken away by resolution without dissent. She argued that the exclusive use rights can only be taken away if they, as owners of lot 20, agree. [99] In relation to that issue the Adjudicator held that: [99] While section 171(3)(b) Act provides that revocation of an exclusive use by-law requires a resolution without dissent, item 21 of Schedule 5 to the Act provides if satisfied a by-law is invalid, an adjudicator may make an order declaring that the by-law is invalid and requiring the body corporate to lodge a request to record a new community management statement to remove the by-law. [100] Further and in any event, even if a motion was put to a general meeting to revoke the exclusive use by-law and record a new community management statement, I am of the view that it would be unreasonable to oppose such a motion. In such circumstances I would give effect to the motion pursuant to Schedule 5, item 10 of the Act. [100] Hence the finding that the resolution was invalid because of section 177 of the Act, in that since an exclusive use by-law must not give exclusive use to the rights and enjoyment of, or other special rights about, utility infrastructure that is common property, founded the basis for the conclusion that if a “by-law is invalid, an adjudicator may make an order declaring that the by-law is invalid”. There is no analysis of how the subject smoke lock area was utility infrastructure, which seems to be what was being found. [101] Schedule 5 to the Act is just a very broad statement as to the range of orders an adjudicator can make. Item 21 refers to the following: If satisfied a by-law is invalid—an order declaring that the by-law is invalid and requiring the body corporate to lodge a request to record a new community management statement to remove the by-law. [102] There was no analysis in the reasons as to how a resolution of the Body Corporate amending the CMS and the making of an amendment to it was an “invalid by-law”. The language refers to removal of a by-law, not amendment of the CMS by insertion of a provision that would amend the exclusive use areas identified within it. -- 20 of 37 -- 21 [103] No party addressed the question of whether things in a CMS recording and allocating exclusive use areas are by-laws. Experience suggests that the CMS typically includes a list of the lots included in a body corporate’s scheme; the contribution and interest schedule lot entitlements for each lot, and the totals, the future development of a scheme, by-laws, architectural codes or statutory easement details; and any exclusive use areas. [104] The current CMS which is in the appeal books shows that the by-laws are in Schedule C and the Schedule of Lots allocated exclusive use is not in the by-laws per se but in Schedule E. [105] I express no concluded view about the matter, but it seems to me that it was erroneous to make that finding without indicating that such a finding might be made and permitting the parties to be heard on the issue. In my view, an adjudicator ought to consider that issue based on proper submissions from the parties. The failure to seek submissions on the utility infrastructure point-denial of procedural fairness [106] Neither party, nor any of the other lot owners who made submissions invited the finding that the amendment of the by-laws to give the owner of lot 20 exclusive use of a small area of common property, involved a contravention of section 177 of the Act. No party raised it at all nor addressed the issue. [107] In 2015, in Minister for Immigration and Border Protection v WZARH [2015] HCA 40, [30] (Kiefel, Bell and Keane JJ), the High Court succinctly stated that, in “the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions.” [108] Since the decision in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 courts increasingly construe legislation so as to imply that a duty to afford procedural fairness exists, since procedural fairness is protected by the principle of legality. This has made legislative exclusion very difficult in practice. Neither party addressed the question of whether there is such a duty on an adjudicator. [109] The obligation to accord procedural fairness arises where a statutory power is exercised by a decision-maker which has the ability to affect a person’s rights, interests or legitimate expectations: Kioa v West (1985) 159 CLR 550, 584. The principle applies at common law unless expressly excluded by statute and can also be based in statute. The content of the rule requires that a person be informed of the case against her or him and that she or he be given a right to respond in an appropriate way before a decision is made (known as the Hearing Rule). [110] The respondent relies on statements in The Body Corporate for The Grove CTS9356 v Comerford [2019] QCATA 172 where Senior Member Brown and Member Traves said: [84] The body corporate says that the adjudicator failed to afford the parties natural justice in considering s 281 of the BCCM Act when the application of the section had not been raised by the parties. [85] Section 281 provides that where an Appellant has suffered damage to property because of a contravention of the BCCM Act or the CMS, an adjudicator may order the person who the adjudicator believes to be -- 21 of 37 -- 22 responsible for the contravention to carry out repairs or pay the Appellant an amount as reimbursement for repairs. [86] In considering s 281, the adjudicator correctly observed that the body corporate was not the applicant. Further, the adjudicator found that the damage resulting from Mr Comerford's actions was to other lots and not to the common property. We have found that it was open to the adjudicator on the evidence to make this finding. The adjudicator concluded that the body corporate had not suffered any damage to property. [87] The task of the adjudicator was to make a just and equitable decision. The adjudicator was required to observe procedural fairness in arriving at the decision. The requirements of procedural fairness are flexible and vary according to the circumstances. The fairness of the procedure depends on the nature of the matters in issue, and what would be a reasonable opportunity for parties to present their cases in the relevant circumstances. The complaint by the body corporate is that the adjudicator failed to observe the fair hearing rule in not affording the patties an opportunity to be heard on the application of s 28 I before making his decision. [88] However the adjudicator determined, correctly in our view, that s 281 did not apply in the circumstances of the application before him. As such, the consideration by the adjudicator of the section did not adversely affect the interests of the body corporate. Notwithstanding that neither party had raised s 281 of the BCCM Act, there was no error by the adjudicator in considering the application of the section. (footnotes omitted) [111] I agree that the task of the Adjudicator was to make a just and equitable decision, and that the Adjudicator was required to observe procedural fairness in arriving at the decision. I agree that the requirements of procedural fairness are flexible and vary according to the circumstances. [112] As is well known, applications are normally determined ‘on the papers’ by an adjudicator after reviewing an application, submissions and replies to submissions. Adjudicators have broad powers of investigation which enable them to seek additional information from any party or other person, undertake site inspections or request copies of body corporate records. It has been said extra-curially that to ensure the parties are accorded natural justice, these investigative powers do not extend to meeting or speaking with the parties individually. Parties usually will be invited to make submissions on any critical issue that might be the basis for determining the matter that has not been identified by the parties themselves. [113] The investigative powers of adjudicators are outlined in sections 269 and 271 of the BCCM Act. In Hablethwaite v Andrijevic [2005] QCA 336 the Court of Appeal held that an adjudicator is not obliged to seek clarification or further information from a party once that party has responded to an invitation to make submissions to the adjudicator and it is entirely reasonable for an adjudicator to limit investigations to inviting interested parties to make written submissions. Nor in my view is it the function of an adjudicator to interrogate the records or the parties outside of the material provided to the adjudicator to ascertain whether what parties say is the case, is truly the case. -- 22 of 37 -- 23 [114] A detailed consideration of an adjudicator’s obligation to investigate and invite further submissions was conducted in Body Corporate for Grand Pacific Resort v Cox [2012] QCATA 14 at [36] where Member Barlow SC as he then was held: [36] The body corporate notes that the Adjudicator had a statutory duty to investigate the application pursuant to ss 269 and 271 of the Act. It contended that he was required to take a proactive approach to the dispute and the factual basis for it and that, if he had a concern about some matter, he should have undertaken further investigation in order to properly determine it. The body corporate contends that, as it had told the Adjudicator that it had “irrefutable evidence” from police officers that the respondents had made structural alterations to their lot, the Adjudicator should have asked what that evidence was, or at least given the body corporate an opportunity to provide the evidence it claimed to have, rather than dismissing the application for lack of evidence. [37] The body corporate relies upon three cases for its proposition that the Adjudicator failed to carry out his statutory function of investigating the application before him. [38] In Hablethwaite v Andrijevic, Jerrard JA agreed with the District Court judge that an Adjudicator is not obliged to seek clarification or further information from a party once that party has responded, apparently sensibly, to an invitation to make submissions to the Adjudicator, and it is entirely reasonable for an Adjudicator to limit investigations to inviting interested parties to make written submissions (at [17]). His Honour considered that the Adjudicator had satisfied the duty to investigate the application by relying on the written submissions made to the Commissioner. [39] In the same case, Keane JA noted that there was no suggestion by the applicants that they had sought to make submissions to the Adjudicator but were denied the opportunity to do so. The applicants had been invited to make a written submission that would be considered by the Adjudicator and it was reasonable for the Adjudicator to expect that they would take that opportunity to put forward submissions. In choosing to make no submission beyond that which they made, the applicants themselves determined the extent to which they sought to be heard by the Adjudicator. His Honour noted that it is a rule of natural justice that a person should be afforded the opportunity to be heard before a decision is made against him or her, but such an opportunity was obviously afforded to the applicants in that case when they were invited to make submissions. The Adjudicator was not required to do anything more. [40] In Grut-Mackay v Sherwood Lodge, McGill SC, DCJ said (at [21]) that, where there is some lack of clarity, and perhaps some questions left unanswered, by an expert report tendered in evidence, then rather than simply rejecting the application on the basis that the evidence in support of it was inadequate, the Adjudicator should have drawn the deficiencies to the attention of the applicant so as to give the applicant the opportunity of putting further material before the Adjudicator. His Honour noted that the procedure of adjudication was an inquisitorial one rather than an adversarial one and the Adjudicator’s obligation was to investigate. He said that that involves a proactive approach to the dispute and the factual basis for it, rather than merely a reactive response, and -- 23 of 37 -- 24 therefore the Adjudicator terminated the investigation prematurely in that case. [41] Grut-Mackay was discussed by Mr Dorney QC (as his Honour then was) in Cox v Body Corporate for Grand Pacific Resort. Mr Dorney said it was not his understanding of Grut-Mackay that the principle to be extracted was that, in every case where the Adjudicator has some doubt about the material, the Adjudicator is obliged to investigate further or otherwise there may be an error of law. The principle is much narrower. If the evidence being examined contains some relevant evidence, it is an error for the Adjudicator to treat that evidence as not providing any evidence without also investigating the matter further before rejecting that evidence. It is one thing to reject, improperly, some relevant evidence as being inadequate when there is some evidence showing a basis for adequacy and when the use of investigative powers under a general obligation to investigate might resolve the matter. It is completely different to say that there is some principle that where further investigations could have been made, but were not, there is necessarily an error of law in the approach of the Adjudicator to the resolution of a question of fact. It is more a question of whether there is, or is not, an absence of logically probative evidence (perhaps because of a choice by the Adjudicator to refrain from further investigation). His Honour also noted cases in which it was held that failure to answer a letter (or, I interpolate, a submission) may amount to an admission if there are circumstances which render it more probable that a person who denied the assertion made against him in the letter (or submission) would answer those assertions than that he would not. Mr Dorney noted that what those cases establish is that, circumstances of a civil proceeding, which may well extend to an administrative inquiry, the decision maker can rely upon what might be reasonably expected of persons by way of response to assertions made, particularly were directed against them personally. [42] I agree with Mr Dorney’s summary of the relevant principles. In this case, they raise two questions: first, whether there was some logically probative evidence before the Adjudicator which, if inadequate, should have led him to investigate further; and second, whether the Adjudicator was entitled to expect that, if the body corporate had evidence, it would produce it in the face of assertions that it had no probative evidence. (footnotes omitted) [115] I agree with that summary of principle. [116] I do not accept the respondent’s submission that both parties made technical submissions on relevant codes, standards and the intended purpose of the smoke lock so the facts before the Adjudicator enabled s 177 to be appropriately applied. What facts the Adjudicator adopted have not been identified in the reasons. I also reject the submission that the finding on the effect of s 177(1) “did not directly impact the interests of the Appellant as it merely prohibited the Respondent from allocating the smoke lock as exclusive use”. It did directly affect her interests. [117] After the hearing of the appeal, I ordered the applicant and the respondent Body Corporate to file further written submissions, if any, in relation to the issues concerning section 177 of the BCCMA and specifically what is utility infrastructure. Many pages of submissions were provided in response. -- 24 of 37 -- 25 [118] The appellant points to the fact that under Schedule 6 Dictionary of the BCCMA, utility infrastructure is defined to mean— (a) cables, wires, pipes, sewers, drains, ducts, plant and equipment by which lots or common property are supplied with utility services; and (b) a device for measuring the reticulation or supply of a utility service. [119] Under Schedule 6 Dictionary of the BCCMA, utility service means— (a) water, gas, electricity, sewerage, telephone, data, television, garbage collection, and (b) another system or service designed to improve the amenity, or enhance the enjoyment, of lots or common property.” [120] “Utility Infrastructure” is expressly referenced in the following sections of BCCMA with the application of the above definition: (a) Section 20 (Utility Infrastructure as common property). (b) Section 114(3)(2) (Limitation on benefit to body corporate under service contractor engagement). (c) Section 166 (Interference with utility services). (d) Section 169 (Content and extent of by-laws). (e) Section 177 (Prohibited matters for exclusive use by-laws). (f) Section 196(14) (Utility services not separately charged for). (g) The definition of “Service Easement”. [121] She submits that it is consistently used to refer to cables, wires, pipes, sewers, drains, ducts, plant, and equipment through which lots or common property are supplied with utility services such as water, gas, electricity, sewerage, telephone, data, television, or garbage collection. It does not refer to or include fire-safety installations. [122] She submits that systems such as smoke alarms, fire-detection panels, pressurisation fans, and fire-egress paths are not utility services—they are building-safety systems, forming part of the common property and maintained under the Building Act 1975, NCC, and Fire and Emergency Services Act 1990 (Qld), not under the BCCMA’s framework of “utility infrastructure.” [123] She submits that for the purpose of interpreting the definition of “utility infrastructure,” reference can be made to den Exter v Magnetic International Resort Hotel CTS 22894 [2011] QCATA 70 where this Tribunal concluded that roofing components are not utility infrastructure. At [33], Justice Alan Wilson, President and Member Kenneth Barlow SC stated: “Had Parliament intended otherwise it could be expected to have included, in the list of items in paragraph (a) of the definition of ‘utility infrastructure’, the word ‘roofs. Alternatively, if it meant ‘drains’ to mean (or include) roofs, one would expect it to have said so by an express definition”. This it is submitted shows a narrow approach. [124] She also refers to Climpson & Anor v Body Corporate for Rolling Surf Resort Celestial Investments Pty Ltd [2013] QCATA 93 where it was held that that roofing components -- 25 of 37 -- 26 are not utility infrastructure. I do not think it assists. She also referred to other decisions but I have not found them to be of assistance here. [125] She refers to Owltown Pty Ltd v Norwinn Commercial CTS38094 [2018] QCATA 2, Owltown Pty Ltd v Norwinn Commercial [2020] QCATA 145 and JM Family Holdings Pty Ltd v Owltown Pty Ltd [2018] QCA 260 and submits that the parties there treated an elevator as a utility infrastructure to argue that such utility infrastructure is only suppling utility services for a lot that led to that lot need to pay for all cost of maintenance of that elevator. Arguably the Tribunal and the Court of Appeal have not decided whether an elevator is utility infrastructure or why. [126] She submits that six crucial questions are to be asked: (1) What is ‘utility infrastructure’ in the context of BCCMA? Is the airlock and fire safety installation a utility infrastructure? (2) What is the purpose of the smoke lock? Is the alleged confined space labelled as a “smoke lock” in fact an airlock, or is it a safety hazard? What is the relationship between the smoke lock and the stairwell pressurisation system? (3) What is the purpose of section 177 of the BCCMA (Prohibited matters for exclusive use by-law)? (4) Does section 177 mean that an exclusive-use right cannot be granted if any utility infrastructure is located within the area entirely, or merely that the utility infrastructure itself cannot be granted for exclusive use? (5) If an exclusive-use area contains utility infrastructure, what would constitute a reasonable and lawful remedy? (6) Given that the exclusive-use right was granted by a resolution without dissent in 2017, can the matter be determined by adjudication when the resolution was made more than seven years ago to reinstate the non- functional, non-compliant smoke lock? [127] She submits that a smoke lock/air lock is a passive element of the building which does not involve a “service”. Nor could it be said it to be a “system” or part thereof designed to improve amenity or enhance enjoyment. Consequently, the second limb of the definition of “utility services” is not satisfied. [128] The issues raised at points (2) and (6) of the six crucial questions she says are to be asked in part or in whole are an attempt at making a collateral attack on the findings of fact which the Adjudicator made concerning the qualities of the smoke lock and as to whether it complied with safety standards or was a safety hazard. The relationship between the smoke and the stairwell pressurisation point is a collateral attack on the findings as to whether it is a nonfunctional non-compliant smoke lock. I do not agree that these issues should be re-examined or that any error of law in relation to the findings has been established. [129] The appellant submits that the purpose of section 177 is: (1) To protect shared utility infrastructure and body corporate assets from being inadvertently or improperly captured by exclusive use by-laws. (2) To ensure that no lot owner gains private control or rights over infrastructure that serves other lots or common property — for example, -- 26 of 37 -- 27 by turning off valves, altering pipes, or denying access to the body corporate or other owners; and (3) To preserve flexibility in exclusive-use allocations so that owners may later agree (with body corporate approval) to swap or reallocate exclusive-use areas. [130] The Respondent submits that the smoke lock/airlock functions as part of a “fire safety system” for the purpose of the Fire Safety Act 1990 (Qld). The appellant submits that the Fire Safety Act 1990 (Qld) makes no reference to “utility infrastructure”, or to “utilities” at all. [131] A fire safety system is defined in section 147C of that Act: Fire safety system, for a building, means the building’s features, and procedures established for the building, providing for all or any of the following— (a) warning the building’s occupants about a fire emergency; (b) safe evacuation of the building’s occupants; (c) extinguishing or restricting the spread of fire in the building. [132] She submits that a fire safety system is a system; it is not concerned with the provision of a service. Second, she says, a fire safety system is not concerned with amenity or enjoyment, it is concerned with safety. Third, the definition of a fire safety system incorporates things such as building features and procedures, which cannot sensibly fall within the definition of “utility infrastructure” for the purposes of the BCCMA. [133] She submits that fire-safety installations such as sprinklers, fire doors, and smoke alarms are often located within private lots, common areas and exclusive-use areas, wherever it requires, yet they have never been regarded as “prohibited matters” under section 177. [134] The appellant submits that section 177 of the BCCMA does not prohibit the grant of an exclusive-use area where utility infrastructure exists; it simply provides that any utility infrastructure within that area remains common property and cannot be exclusively used by the lot owner. [135] In my view, it is appropriate that the matter be sent back to the commissioner for an adjudicator to make appropriate findings both on the facts which are relevant to this issue but also as to whether it is, as a matter of law applying those facts, the airlock was utility infrastructure and I will so order Reasonableness and enforcement of the by-law [136] There is a general requirement under section 94 of the Act that a body corporate must act reasonably in among other things, enforcing its CMS (including the by-laws), carrying out its functions under the Act and CMS and making or not making any related decisions. [137] By section 100(5) of the Act, the committee is required to act reasonably in making a decision. Section 100(1) of the Act states that a decision of the committee is a decision of the body corporate. [138] Section 94 of the BCCMA requires the body corporate to act reasonably in carrying out the functions of the body corporate. The question of law raised in the appeal is -- 27 of 37 -- 28 whether the committee, and thereby the body corporate by revoking the resolution, and requiring reinstatement of the smoke lock acted arbitrarily without regard to the appellant’s property interest in relation to the affected area. The reasonableness of the conduct might arguably be required to be construed having regard to the appellant’s human rights. [139] The s 94 obligations were not considered by the Adjudicator. [140] The appellant had in her submissions below requested the Adjudicator to make an order declaring “that specific actions taken by the Body Corporate and its representatives against Lot 20, as outlined in the complaint, were unreasonable under Section 100(5) of the BCCM Act”. That issue was not dealt with in the reasons of the Adjudicator except to identify at [48] and [49] that such orders had been sought. [141] The appellant had also said in her submissions below: The demand of Body Corporate to lot 20 to reinstate the Tiny Smoke Lock means reintroducing the safety hazard to Lot 20. which would, allow smoke and fire to enter the isolated fire stair in the event of a fire, compromising the safety of the occupiers of the building, expose the occupant of lot 20 to the risk of being trapped by the Tiny Smoke Lock, impede the fire egress path of the occupant of Lot 20, compromising their safety. The demand of Body Corporate to lot 20 to reinstate the Tiny Smoke Lock also means demanding Lot 20 to demolish the laundry room and plumbing connection, compromising the amenity of Lot 20. The demand is grossly malicious, causing significant financial damage and unjustified hardship to lot 20. [142] She asked that it be declared that the resolutions of the body corporate on motions 2.5 purportedly passed at the committee meeting held on 21 November 2023 were at all times void and an order dismissing the contravention notices issued against Lot 20. [143] In my view, it was relevant to decide whether an order to reinstate the smoke lock also meant one had to demolish the laundry room and plumbing connection, compromising the amenity of Lot 20. [144] The respondent submits, in relation to whether ordering the area to be returned to the respondent was incorrect, that it was justified and reasonable and that there was no error because handing over the area was unlawful under s 177. It submitted that the appellant provided no submissions which identify an alternative arrangement was possible or offered, for example, a solution involving the whole building, but instead repeated voluminous submissions, allegations of bullying, corruption, and such matters. [145] It was also submitted that the appellant provided no evidence as to the costs of the works, which had been undertaken or would need to be undertaken, and no evidence was put which showed that such an order would be unreasonable given the seriousness of the issues considered. [146] This appears to be correct insofar as it refers to offering no alternative and not providing evidence of cost. In my view, it may reasonably be inferred that there may well be significant cost and inconvenience to the appellant because the removal of the smoke lock structure occurred as part of a much larger renovation and refurbishment -- 28 of 37 -- 29 of the unit and the creation of a laundry room which incorporated that space, and altered the services to that space. [147] The Adjudicator accepted that the Body Corporate previously offered the respondent an amount of money with a matching contribution from the Lot Owner to have a consultant to advise on an alternative solution to this problem but this offer was rejected by the respondent. The Adjudicator noted correctly in my view that if there is a solution other than removal of the laundry, and reinstatement of the Air Lock, it needs to be actioned expeditiously but the respondent has not identified such a solution to date. [148] In submissions before me the appellant said this was seeking to: Blame the Appellant (lot 20) for not offering an "alternative arrangement" and "evidence of cost" are misconceived and untenable. a) The issue is not the Appellant's alleged failure to suggest alternatives, but the Respondent (BC)'s oppressive, punitive, and unreasonable demand to ask the Appellant (lot 20) to demolish an approved and certified part of their home, rendering it uninhabitable. b) The Adjudicator's order, adopted from the Respondent (BC)'s submissions, imposed a destructive and disproportionate remedy wholly inconsistent with section 276 of the BCCMA, which permits only "just and equitable" orders, demonstrates a clear error of law. c) The Respondent (BC)'s conduct demonstrates bad faith and improper purpose, weaponizing the adjudication process to punish and silence the Appellant (lot 20) rather than to rectify any genuine compliance concern. [149] None of those issues appeared to have been considered by the Adjudicator in the context of whether the respondent was acting reasonably, or as to whether the orders made were appropriate, including the order that the appellant pay for the cost to reinstate the smoke lock. [150] The implications of this appear to have been unexamined. Neither party put evidence before the Adjudicator as to whether this was even possible having regard to the substantial alterations which were made to the appellant’s unit and which in every relevant respect, was known would occur by the body corporate and approved to proceed. [151] It is not difficult to imagine that to reinstate the airlock involves far more than putting something back into place where it was. It may involve a partial, if not significant, refurbishment of the appellant’s unit in ways which have not been priced, nor have they been the subject of any engineering or construction expertise as to whether it is possible, feasible, and as to the cost of it. It might well be very significant when everything is taken into consideration, however, neither at the body corporate nor the applicant put any evidence before the Adjudicator on this issue. [152] It is of concern that an order has been made that the cost of something be borne without there being evidence of what that cost might be. That is partly the fault of the appellant but since the respondent was asking that the cost of it, as well as rectifying the CMS, be borne by the appellant, it was incumbent on it to show that such an outcome was reasonable and achievable. -- 29 of 37 -- 30 [153] The second aspect of the duty to act reasonably, which in my opinion, is left unresolved, is whether in the circumstances, in which the body corporate approved this refurbishment and the removal of the fire lock, that merely because of events that have transpired since, it should be entitled to insist on the reinstatement of that space. The appellant would be within her rights to contend that in effect she has irreparably altered her position to her detriment in consequence of the conduct of the respondent, or has suffered detriment or will do so if required to reinstate the space and that the respondent is estopped from insisting on enforcement of the by-law relied on to force her to reinstate the space. [154] The respondent submits that: The conduct and the declarations sought by the Appellant do not materially affect the Breach Notice and enforcement thereof. The Respondent has a statutory duty to enforce its by-laws.27 Whilst the Respondent denies any unreasonableness or any breach of ss 94(2) and 100(5) of the BCCMA, the Respondent would not be estopped from enforcing the CMS By-Laws as estoppel cannot defeat a statutory mandate. No error of law is disclosed by the Adjudicator's failure to provide further reasons as to why the allegations raised by the Appellant were not further considered. [155] The respondent seems to want to submit that it is compelled by law to enforce the by- law so it is excused from not doing otherwise. The Adjudicator did not decide this issue from what I can tell. I am not persuaded that it is the case that it is compelled by law to enforce the by-law particularly if it would be unreasonable to do so having regard to its own conduct and other circumstances, but if it is the case, there remains the issue of whether it is reasonable to order that she bear the cost of all these works when it is the respondent’s change in position that has led to its insistence on restoring the status quo ante. [156] Section 94 of the BCCMA sets out two specific obligations that a body corporate must follow in respect to by-laws. First, they must enforce the by-laws, and second, they must act reasonably when doing so. There is a statutory obligation on the body corporate to enforce the by-laws for the Scheme unless it would be unreasonable to do so. [157] The doctrine of promissory estoppel is well known. It was in the context of representations relating to the enforcement of rights under a pre-existing contract between the parties that the doctrine of equitable promissory estoppel was originally formulated in the United Kingdom. The scope of the doctrine has since expanded beyond pre-existing contractual relations, and in Australia has been authoritatively described by Brennan J, in Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387 at 428: In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether -- 30 of 37 -- 31 by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant’s property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff’s reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs. [158] In equitable promissory estoppel, it is necessary for a plaintiff to establish: (1) that it has adopted an assumption as to the terms of a legal relationship with the defendant; (2) that the defendant has induced or acquiesced in the plaintiff’s adoption of that assumption; (3) that the plaintiff has acted in reliance on its assumption; (4) that the defendant knew or intended that the plaintiff so act; and (5) that it will occasion detriment to the plaintiff if the assumption is not fulfilled. [159] In common law conventional estoppel, it is necessary for a plaintiff to establish: (1) that it has adopted an assumption as to the terms of its legal relationship with the defendant; (2) that the defendant has adopted the same assumption; (3) that both parties have conducted their relationship on the basis of that mutual assumption; (4) that each party knew or intended that the other act on that basis; and (5) (arguably) that departure from the assumption will occasion detriment to the plaintiff. [160] Conventional estoppel, a creature of the common law, is focussed on the consensual basis of the parties’ relationship: it operates when both parties have adopted the same assumption as the basis of their relationship, often without appreciating that any departure from the strict legal position is involved, so as to hold both parties to their common understanding. [161] Promissory estoppel, a creature of equity, is, typically, focussed on the conscience of the defendant: it operates when the defendant has induced or acquiesced in the adoption by the plaintiff of an assumption that the defendant will not assert its strict legal rights, so to prevent unconscientious insistence by the defendant on them. [162] On the face of it there is nothing which would prevent these doctrines applying to estop a body corporate from insisting on compliance with a by-law it says has been contravened when it has adopted the same assumption as the applicant that the performance of these works was authorised and not in contravention of the by-laws. [163] Again, if it could be said that the respondent here changed its position and if held to be able to enforce the by-law without having any evidence as to whether it was possible to restore the status quo ante, of the cost to do so, or any of the other implications of it apart from the implications of it for the respondent, there is an arguable case at least that it is estopped from doing so or is acting unreasonably. [164] A third aspect, the question of reasonableness, which has not been considered and should be sent back for the Adjudicator to consider, is whether the body corporate was acting reasonably in having induced one of its lot holders to believe it had become the proprietor of space formally body corporate property and altered its position to its detriment in reliance upon that in ways which on the face of it and not obviously reversible or a prejudice that flows from it capable of being ameliorated -- 31 of 37 -- 32 [165] In my view, those were proper matters to be considered in those contexts but they were not. In my view, the failure to do so was an error of law. Duty to act reasonably [166] It is clear that a body corporate must act reasonably in fulfilling its functions under section 94(1) of the BCCMA. [167] Some of the decisions on this issue make reference to the decision in Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 (‘Beaches Surfers Paradise’). In my view that decision does not assist here or add anything to what the High Court said in Ainsworth & Ors v Albrecht & Anor (2016) 261 CLR 167 (‘Ainsworth’). [168] Indeed, the decision in Beaches Surfers Paradise at [47]–[52] appears to involve an analysis and adoption of principles derived from administrative review of decisions and the legal standard of reasonableness for a statutory discretion in Australia. As the High Court made clear in Ainsworth at [51]–[53] set out below, those tests do not apply in this context. The reasons in Beaches Surfers Paradise do discuss other tests for reasonableness but in that case in the context of committee decisions, not decisions of the Body Corporate in general meetings, which is what the High Court in Ainsworth was concerned with and what we are concerned with in the present case. [169] Reference can be made to the judgement of the majority in the High Court in Ainsworth, where what was said on this topic at [51]–[53] was as follows: The reliance by the Court of Appeal and by the first respondent in this Court upon the judgments in Waters v Public Transport Corporation was misplaced. That case was concerned with the duty of a decision-making body to reach a reasonable decision taking into account competing considerations. A lot owner voting his or her opposition to a motion is not a decision-maker of this kind. The adjudicator's task under Item 10 of Sched 5 is not to determine whether the outcome of the vote of the general meeting of the Body Corporate was a reasonable balancing of competing considerations, but whether the opposition of lot owners to the proposal was unreasonable. Given that the adjudicator’s concern with s 94(2) led her to address the wrong question, namely whether the Body Corporate’s decision was reasonable, her ultimate conclusion was inevitably affected by an error of law. The same error infected the approach of the Court of Appeal. Once the Court of Appeal accepted, as it did, that the grounds of opposition to the proposal considered by the adjudicator raised questions in respect of which reasonable minds may differ as to the answer, it is impossible to see how opposition to the first respondent’s proposal based on those grounds could be found to be unreasonable. [170] That conclusion by the High Court serves to emphasise that the test for unreasonableness is not whether someone objectively considered all relevant circumstances, except perhaps in the context of there being a duty on a decision- making body to reach a reasonable decision taking into account competing considerations. Moreover, bodies corporate generally have their own interests to consider and that informs the way in which their decisions are to be viewed in terms of their reasonableness. It is timely to note that as the High Court has said, the question -- 32 of 37 -- 33 is whether conduct of a body corporate is objectively unreasonable, not whether an Adjudicator is satisfied it is reasonable. [171] Applying what Nettle J said in Ainsworth at [101]: Nor is reasonableness something about which informed views are likely to, or should, differ. Reasonableness does not mean whatever the adjudicator considers to be just an equitable and it does not involve the application of discretionary considerations of the kind that were essayed in Norbis v Norbis. The standard of reasonableness is objective and it is to be applied in this case at the time of rejection of (the defeated) motion taking into account all relevant factors including factors which were extant but which the parties may not have identified or appreciated at the time, as is implied by the words in the circumstances… (footnotes omitted) Human Rights Act issues [172] In Huang v Body Corporate for the Dorchester CTS 10749 [2024] QCATA 64 the appellant submitted that the adjudicator there, as a public entity, failed to have regard to the application of the Human Rights Act 2019 (Qld) (‘HR Act’) in coming to the decision to uphold the challenged resolution. That was because the decision involved the appellant’s human right to his property, HR Act s 24, being the former exclusive use area, and the resolution had the effect of arbitrarily depriving him of that property. [173] Member Oliver held: [60] That then raises the question as to whether, despite the findings about property, the HR Act applied to the dispute before the adjudicator in any event. [61] This dispute about the validity of the 2022 resolution is between a lot owner and the body corporate for the scheme. Therefore, that dispute is one of a private nature and insofar as the members of the scheme passed the resolution, it was in reliance on the engineering reports about the methodology of addressing the waterproofing of the rooftop. There was no obligation on the body corporate committee or other lot owners at the meeting, when supporting the resolution, to consider the appellant’s human right to property. … [70] That is relevant here because in respect of dispute resolution, the adjudicator’s function is governed by the provisions of the BCCM Act, even though it is accepted that the adjudicator is a public entity. [71] Because under the BCCM Act the ambit of dispute resolution is in the context of the Act and the community titles schemes, the effect of the appellant’s contention would mean that all adjudications of private disputes would necessarily include the obligations under s 58(1) of the HR Act. Therefore, disputes of a private nature between lot owners and body corporates would become disputes of a public nature under s 10 of the HR Act. Dispute resolution is not then confined only to the context of the BCCM Act and the scheme, but another layer is added, that being a statutory imposition of a consideration of a party’s human right under the HR Act. -- 33 of 37 -- 34 [72] To address this question, the parties were invited to file further submissions. The appellant submitted, similar to what is set out at [49] above, that the adjudicator’s task can be more than just considering the arguments of the parties. The adjudicator can also “investigate the application and decide whether it would be appropriate to make an order on the application”. Also “make an order that is just and equitable in the circumstances…to resolve a dispute”. It follows that the adjudicator, in coming to a decision, will not only have regard to what the parties say about the dispute but also rely on the adjudicator’s own independent inquiry, if necessary. Therefore, in doing so, the adjudicator must act or make a decision that is compatible with human rights, and s 58(4) does not apply because then the adjudicator’s function must then be one of a public nature. [73] There is no guidance in the HR Act as to what might be an act or decision of a private nature but the purpose of sub-s (4) is to limit the scope of the application of the HR Act to the public sector. This is consistent with the objects of the Act which are aimed at building “a culture in the Queensland public sector that respects and promotes human rights”. This case has nothing to do with human rights in the public sector. It is a dispute of a private nature between a lot owner and the body corporate that has been referred to adjudication for resolution. [74] The respondent submits the adjudicator, although a public entity: (a) Was not performing functions of a public nature; (b) Was acting in a judicial capacity (as a tribunal) in making the adjudication orders; (c) The act or decision was “of a private nature”; and (d) The adjudicator could not reasonably have made a different decision “because of a statutory provision”. [75] In considering whether the adjudicator is engaging in a function of a public nature under the BCCM Act, it is relevant to have regard to the substance of the dispute the public entity/adjudicator is required to make a decision about. Unlike Johnston, this is not a decision by a public entity about an issue occurring in the public sector. Bearing in mind the factual issues under consideration in Johnston was the imposition of requirements on police officers to be vaccinated. With respect to the meaning of “private”, Justice Martin said: The meaning of “private” is not defined in the HRA. It is used as a means of distinguishing between acts of a public service employee in the employee’s private capacity and those acts which are a part of, or connected with, the work done by that person as a “public entity”. How public service employees decide what to do in their personal time are decisions of a private nature. A decision by a public service employee to engage someone to paint that employee’s private residence would not come within s 58. A decision by the same person to engage someone to paint a government school building would. [76] Both parties relied on this statement to contend for different outcomes. The appellant submitted that the decision of the adjudicator was made in his capacity as a public entity and was not made in the adjudicator’s -- 34 of 37 -- 35 personal time nor was it a decision of a personal nature, therefore he is performing a function of a public nature. Clearly, in that sense the adjudicator’s decision was not of a personal nature, nor could any decision that was made in an adjudication under the BCCM Act be of a personal or private nature. [77] The respondent submits, having regard to the underlying issue before the adjudicator, he was not “performing functions of a public nature” even though a public entity. Section 10 of the HR Act sets out the matters that might be considered when deciding whether “a function of an entity is of a public nature”. Although the function of the adjudicator may satisfy one or more of that criteria is ss 1, ((a) and (d)), it is also necessary in my view, to consider the actual functions to be performed. Some guidance can be gained from ss (3) which sets out the various services which are of a public nature and include: emergency services; public health services; public disability services; public education, including public tertiary education and public vocational education; public transport; and a housing service by a funded provider or the State under the Housing Act 2003 (Qld). It is evident from this list that dispute resolution between private parties under the BCCM Act does not fall within any of these characterisations. [78] Although the circumstances here may engage ss (4) because the dispute the subject of the adjudication is of a private nature, which may mean the HR Act does not apply, it is still necessary to establish the adjudicator’s function was of a public nature. He was performing a specific role under the BCCM Act that required him to make a decision in the context of that Act and the community titles scheme, unrelated to the public sector. As the substance of the adjudication was in relation to a private dispute, it did not involve him performing a function of a public nature, that is, whether the passing of the 2022 resolution was valid. [79] In short, I find that the adjudication is not a function of a public nature under s 10 of the HR Act and the Act does not apply to the adjudication. (footnotes omitted) [174] Neither party made submissions in relation to this issue so it would not be appropriate to comment on it except to say that clearly the conduct of the Body Corporate and the findings of the Adjudicator do affect significantly the proprietary rights of the appellant. If the decision in Huang v Body Corporate for the Dorchester CTS 10749 is correct then there was no error of law in failing to consider that issue by the Adjudicator. The correctness of that conclusion will need to await another day. [175] It is of course the case that regardless of whether the party to a proceeding relies upon the HR Act, s 48 applies to construction of a Queensland statute, whenever enacted, which impacts upon human rights.2 Section 48(1) HR Act provides: All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights. 2 The Australian Institute for Progress Ltd v The Electoral Commission of Queensland (2020) 4 QR 31. -- 35 of 37 -- 36 [176] It is moot as to whether any construction issue arises here, but conceptually one may arise in the context of whether the respondent acted reasonably in the way it has dealt with the appellant. Conclusions as to what should now happen [177] I have power to set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration with or without the hearing of additional evidence as directed by the appeal tribunal, and with the other directions the appeal tribunal considers appropriate or make any other order it considers appropriate, whether or not in combination with other orders. [178] I should not leave this matter without recording how unsatisfactory the conduct of this matter has been both before the Adjudicator and before me. In particular, the appellant’s conduct of the matter, mainly because of the conduct of her husband who has had a large role in the presentation of the appellant’s case both here and below, has been unnecessarily confrontational and adversarial. There are references to some of that conduct in the Adjudicator’s reasons, and it includes the refusal by the appellant to allow access to the affected area by experts for the respondent. That raises concerns that she does not actually want there to be an informed and just outcome to this dispute but is acting solely to protect her interests. There has been a considerable amount of ill will demonstrated by the appellant’s side, with material which has been filed in which there are numerous personal attacks on the integrity of members of the body corporate, its committee, its expert advisers and the Adjudicator as well. When I invited submissions from the parties on specific issues after the hearing, the appellant’s response in part was to misstate things I had said in the context of inviting submissions, as if I had made some kind of tentative finding in her favour on some issues, when I had not. [179] The appellant is encouraged to keep her focus on the fact that the removal of this smoke lock occurred at her instigation, on the basis of advice received a long time ago but which has now been contradicted by other experts who are concerned with many things, not the least of which is fire safety of the residents of this building. One criticism that has been levied is that whomever the builder was who did this work was not licenced to perform it. These matters are not part of some joust. And at least in no small way, she and her husband should accept that her conduct has brought about the current predicament of the body corporate, and she should genuinely seek a solution to it. She is a lot owner and member of the Body Corporate after all. [180] The filing of prolix, unnecessary scandalous submissions, which are repetitive, disorganised and fail to grasp legal concepts, is distracting, and is an improper use of the resources of this State, both of its adjudicators and this Tribunal. There are potential costs consequences in this Tribunal for such conduct. It should not occur in the further material if any, filed to enable the further adjudication of the matter. [181] I set aside the orders made by the Adjudicator and remit the matter to the Commissioner for further adjudication and consideration in relation to the following: (a) Whether section 177 of the Body Corporate and Community Management Act 1997 (Qld) applied because the exclusive area affected by the smoke lock was utility infrastructure, having regard to the submissions the parties have since made on that issue, and any relevant evidence which bears upon that issue. This is the issue I have identified in the section of these reasons headed “the failure -- 36 of 37 -- 37 to seek submissions on the utility infrastructure point-denial of procedural fairness”. (b) Whether in all the circumstances, it is reasonable that the Body Corporate insist on reinstatement of the smoke lock having regard to its own conduct and any other relevant considerations. This is the issue I have identified in the section of these reasons headed “Reasonableness and enforcement of the By-law” and “Duty to act reasonably”. (c) What is to the proper construction of by-law 5 and as to whether it applied to the relevant works of and associated with removing the airlock, notwithstanding the approval by the body, corporate of those works. (d) What are the implications for a Body Corporate in sanctioning work which arguably contravenes by-law 5.? (e) Does it constitute a waiver of any by-law contravention or is the Body Corporate estopped from asserting that the works must be removed because of by-law 5? (f) Must the Body Corporate enforce by-law 5 contravention if it has in practical effect sanctioned and approved the works allegedly contravening it? (g) Is it feasible, possible and appropriate from a proper building and engineering perspective to reinstate the smoke lock and what other modifications would be necessary to be made to the appellant’s lot in order for that to occur? As an associated issue, what methods are appropriate to reinstate the smoke lock and make the other modifications and what costs would be associated with that work? (h) Having regard to the answer and outcomes from these issues, who should bear the cost of doing that reinstatement and/or any other associated rectification work having regard to what is just inequitable and reasonable in the circumstances? [182] I make a direction that the parties act reasonably in all relevant respects in seeking to provide such information, submissions and expert opinion to the Adjudicator as may be necessary in order for the adjudication to determine those issues. [183] I direct that the appellant provides such access to the lot as may reasonably be requested and or required by the respondent on reasonable notice from time to time, and permit its representatives, agents, consultants any expert to conduct a proper examination of the features of the lot in order to assist the Adjudicator to arrive at a just and equitable outcome. [184] I direct that if the appellant proposes to contend in the further adjudication process that there are oppressive or significant financial consequences for her in reinstating the smoke lock, that she files with the Commissioner’s office evidence as to the cost of reinstating the smoke lock within 90 days of the making of these orders or such further time, as the Adjudicator may permit. [185] I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made. -- 37 of 37 --