Darrouzet & Pearce v Body Corporate for Noosa Shores [2026] QCATA 122

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Darrouzet & Pearce v Body Corporate for Noosa Shores Community Titles Scheme 11128 [2026] QCATA 122 PARTIES: ANN DARROUZET (first applicant) GEOFF PEARCE (second applicant) v BODY CORPORATE FOR NOOSA SHORES COMMUNITY TITLES SCHEME 11128 (respondent) APPLICATION NO/S: APL030-25 ORIGINATING APPLICATION NO/S: [2023] QBCCMCmr 51 MATTER TYPE: Appeals DELIVERED ON: 7 May 2026 HEARING DATE: 30 March 2026 HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: The application for leave to appeal or appeal is dismissed CATCHWORDS: REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – COMMON PROPERTY– where each lot in the scheme originally were fitted with privacy screens on the balconies/patios – where original screens subsequently replaced with aluminium screen – where lot owners given option to install new screens – where owners of adjacent lot removed the aluminium screen – where applicants contend the absence of the aluminium screen invades their privacy – where applicants submitted a motion to the Body Corporate to reinstall the aluminium screen – where motion voted down – whether Body Corporate had authority to reinstall the aluminium screen – whether the aluminium screen common property – whether the Body Corporate decision to vote down motion 24 unreasonable. Body Corporate and Community Management Act 1997 (Qld), s 94, s 289. Ainsworth v Albrecht [2016] HCA 40 -- 1 of 8 -- 2 Allen v Queensland Building and Construction Commission [2024] QCA 24. Ingram & Anor v Town of Vincent [2006] WASAT 244. Low & Anor v Swan Cove Holdings Pty Ltd & Anor [2003] WASCA 115 Pivovarova v Michelsen [2019] QCA 256 APPEARANCES & REPRESENTATION: Appellant: Mr Strangman of counsel instructed by Stratify Legal Respondents: Ms Moody of counsel instructed by Bugden Group Legal REASONS FOR DECISION [1] The applicants are the owners of lot 1 in the Noosa Shores Community Title Scheme (‘the Scheme’). The Scheme is located on the Noosa River at Noosa. Lot 1 is a ground floor unit at the north-western end of the complex adjacent to the river. As one looks at the plan and photos,1 lot 1 is set back or offset from its neighbouring ground floor lot, lot 2. At the north-western end of the patio of lot 2,2 there is what is described as a nib wall about 1 metre high and the width of the ground floor patio. If one were to stand at the nib wall there is a diagonal line of sight from there into the living space of lot 1, including a full view of lot 1’s balcony and, of course, the reverse applies. [2] In about 2018 an aluminium screen (with horizontal slats) was installed on top of the nib wall, to the underside of the balcony above lot, lot 12. This screen provided privacy to lot 1 from lot 2. However, an occupant of lot 2 simply had to step onto the grass area in front of the lot (it being at ground level) to still see into lot 1. [3] In January 2024 the aluminium screen was removed from atop the nib wall. It is unclear who removed it but it is reasonable to assume it was the owner/s of lot 2. The effect of this is that they now get an unobstructed view of the Noosa River to the north-west from their patio. Photographs showing the layout of the units is contained in an Architect’s report included in the material at page 87 of the hearing book (photo attached). [4] The applicants objected to the respondent about the removal of the screen and required the respondent to reinstall the screens. At an Annual General Meeting (‘AGM’) of the Body Corporate on 7 June 2024, the applicants put forward motion 24 requiring the respondent to reinstall the screen at its expense. The motion was voted down 3 votes in favour and 24 votes against. [5] The applicants then applied to the Body Corporate Commissioner for a resolution of the dispute which led to an adjudication under the Body Corporate and Community Management Act 1997 (‘the Act’). The applicants contend that: (a) the body corporate failed to administer the common property and body corporate assets for the benefit of the owners of the lot as required by s 94(1)(a) of the Act; and 1 Hearing Book p 2 – 9, Report of Hollindale Mainwaring Architecture (‘HMA report’). 2 I propose to refer to the area as a ‘patio’ rather than a balcony as it is on the ground floor. -- 2 of 8 -- 3 (b) it acted unreasonably when voting down motion 24 contrary to s 94(2) of the Act.3 [6] The application was considered by an adjudicator pursuant to the provisions of the Act. On 17 December 2024 the learned adjudicator dismissed the application and provided comprehensive reasons for the decision. This is an appeal under s 289(2) of the Act from the adjudicator’s decision. [7] An appeal under s 289(2) of the Act can only be on a question of law. This narrows the ambit of the appeal. The Court of Appeal, in Allen v Queensland Building and Construction Commission,4 said in relation to an appeal on a question of law: [19] The distinction between an appeal only on a question of law, on the one hand, and an appeal on a question of fact or on a mixed question of fact and law, on the other hand, is absolutely fundamental in the present context. It goes to the jurisdiction of this Court to entertain an appeal from the Appeal Tribunal. An appeal which must be “only on a question of law” is of a narrower ambit than an appeal in which a question of law is merely “involved”. In order to be an appeal which this Court has jurisdiction to hear, the very subject matter of the appeal must be a question of law. (citations omitted) Background [8] The learned adjudicator provided a useful summary of past events involving the screens in paragraph 2 of the reasons: (a) The scheme was constructed with angled barriers on the balcony ends, higher at the building wall and sloping down to the outer edge of the balcony, though not completely filling in the space between balcony floor and surfeit; (b) During the body corporate renovations in early 2000s, timber screens were installed that completely filled the space between the top of the nib wall at the ends of the balconies and the surfeit; (c) Minutes of the 2014 and 2015 record the body corporate’s intention to replace the then deteriorated timber screens, though ‘not all will be replaced as some owners have indicated that they do not wish to have screens’; and (d) Ms Darrouzet and Mr Pearce and Mr Jones say (and the committee did not dispute) that the aluminium screens were installed in 2018. [9] The original design of the balconies of each of the units is what is referred to as an angled wooden partition at the end of the balcony fixed to the top of the nib wall. The original nib wall was not rectangular but constructed on a ‘rake’ up the external wall of the unit. In other words, it started at the about 1 m high and then raked up to about 30 cm – 40 cm by reference to the drawing on page 3 of the HMA report.5 [10] In a major renovation the nib walls were levelled off so that they were rectangular and the same height as the balance of the balustrading of the lots with balconies.6 The wall 3 Hearing Book page 9 – Reasons [6]. 4 [2024] QCA 24, following Pivovarova v Michelsen [2019] QCA 256. 5 Hearing Book page 89, my estimate. 6 There is no balustrade on the ground floor units. -- 3 of 8 -- 4 itself is solid plaster/blockwork. The wooden panels were still used and sat on top of the nib wall. [11] At an AGM in 2013 it was decided that the wooden panels should be removed because of their deteriorating state. They were replaced with aluminium panels. Lot owners were given the option of whether they wanted to install the aluminium panels. A number chose not to. However, the then owners of lot 2 must have decided to install the panel. [12] When the applicants purchased their unit in 2020 the aluminium screen was in place. Then it was suddenly removed without notice to them. Issues in the appeal [13] In the submissions filed by the applicant’s solicitors in support of the appeal, 12 grounds of appeal are raised. At the hearing of the appeal, it was generally agreed that the appeal came down to two fundamental issues as raised in grounds 4 and 7. Each raises a question of law. [14] Ground 4 raises the issue of whether the screen itself is the body corporate’s common property or whether it forms part of the lot. If it is the latter there is little the body corporate can do about its removal. [15] Ground 7 raises the issue that if it is found to be common property, whether the body corporate acted unreasonably in voting down motion 24 contrary to the requirements of s 94(2) which provides ‘The body corporate must act reasonably in anything it does under subsection (1) including making, or not making, a decision for the subsection’. Common property [16] The learned adjudicator addressed the question of whether the panel was common property this way: [8] However, it is not obvious that the screen was common property. Noosa Shores was created under a building unit, now building format, plan of subdivision, with the boundaries of the lots defined by structural features of the buildings that house them. The precise location of the boundary line within those structural features is at the centre of the feature, “except to the extent permitted under a direction given by the registrar under section 10(1)(b)”. The Registrar of Titles Directions for the Preparation of Plans says at 9.6.1 that acceptable structural elements include “balustrades or railings or parapet wall, outer face”. [9] Photographs submitted by the parties indicate the screen was mounted atop the parapet wall forming the boundary of lot 2’s balcony at its northwestern edge. It appears to have been mounted around the centre of the wall, and was thinner than the wall, with the result that it would have been inside the outer face on the wall and hence within lot 2. If that is correct, then the body corporate’s decision with respect to the screen concerned lot 2, not the administration of the common property. [17] The applicants contend that the adjudicator’s characterisation of the nib wall as a parapet wall was wrong. If it is a parapet wall then under the boundary definition in the Registrar of Titles Directions for the Preparation of Plans (‘the Directions’), the boundary is the outer face of the wall. The contention is based on the following: -- 4 of 8 -- 5 (a) The adjudicator did not undertake a factual examination of the relevant area of scheme land housing the subject wall, nor provide reasons in support of his legal conclusion that the wall was a parapet wall, as opposed to a wall not full height; (b) ‘Parapet’ is not defined in the Registrar’s Directions, nor in the Land Title Act 1994 (Qld). [18] Dealing with the first point given the discrete inquiry to be made as to the proper description of the nib wall applying the Directions, it was unnecessary for the adjudicator to embark on an examination of the whole scheme. Simply, by reference to the plans and the photographs in the HMA report it is obvious that, save for the ground floor lots, the nib wall forms part of the balustrading in the upper levels. Therefore, assuming the dispute was between, say, the lots immediately above lots 1 and 2, lots 11 and 12, by reference to the photographs on page 88 of the hearing book it would seem obvious that the nib wall on those lots would be characterised as balustrades, if not parapets. Therefore, it follows that the outer edge of the balustrade is the boundary. [19] As to whether the nib wall of lot 2 can be categorised as a parapet, the applicants rely on a number of factors. They turn to the definition of ‘parapet’ in the Macquarie Dictionary. parapet…1. Fortification a. defensive wall or elevation, as of earth or stone, in the fortification. b. an elevation raised above the main wall or rampart of a permanent fortification. 2. Any protective wall or barrier at the edge of a balcony, roof, bridge, or the like. [20] Although the balustrading on a balcony might have some protective qualities as a fortification, these days its main purpose is protective of those using the balcony. Therefore, the parapet is a protective wall at the edge of a balcony providing the same function as a balustrade. [21] It follows, applying the definition in the Macquarie Dictionary that all lots above ground level have a protective glass balustrade and a side solid parapet wall. Both provide a protective barrier. Both satisfy the structural elements described in the Directions at part 6.1. [22] In view of this conclusion, it follows that the same structural elements on the ground floor should also fall within the definition of ‘parapet’ for consistency. This is particularly so if the ground floor lots should choose to install similar balustrading as the upper level lots. [23] The applicants rely on a statement in Low & Anor v Swan Cove Holdings Pty Ltd & Anor [2003] WASCA 115 where Roberts-Smith J said at [15] that a parapet wall projects above the roof line in reliance on expert evidence. That in my view is not controversial because it falls within the definition when used as a fortification. The case was actually about a town planning decision where developers sought to increase the height of a parapet wall on already approved plans. It was not a case about the meaning of ‘parapet’ wall. [24] In another case relied upon Ingram & Anor v Town of Vincent [2006] WASAT 244 the tribunal said at [40]: In the view of the Tribunal the expression “parapet wall” means that part of an external wall that extends above the edge of a roof or more simply a low wall at the edge of a roof. We note that Roberts-Smith J in Low and Swan Cove -- 5 of 8 -- 6 Holdings Pty Ltd [2003] WASCA 115; (2003) 127 LEGRA 36 accepted, at 41, expert evidence that parapet walls “are walls which project above the line of the roof”. [25] Again, I make the same comment that it is not controversial that a parapet wall extending above the roof line falls within the dictionary definition. However, it depends on the wall’s function, or its purpose. Traditionally, common knowledge tells us a parapet was initially used as a fortification but its function, according to the dictionary and general usage, has changed over time. [26] Even though the nib wall does fall within part 9.6.1 of the Directions as a balustrade or parapet for the upper levels, the applicants contend that on the ground floor it performs a different function, that is as a ‘half wall’. The nib wall’s function on ground floor lots is to define the boundary of the lot, provide privacy and perform a structural foundation to support the screens. Even though they do perform all those functions, as they do on the upper levels, this does not change their characterisation from those of the upper levels. [27] It may well be that the original design was for this purpose and the original nib wall on the rake did provide a degree of privacy with or without the wooden screens and later the aluminium screens, but this still does not render them, at least on the upper floors, anything other than at the very least a balustrade if not a parapet. [28] The difficulty with the applicants’ submission is that to designate the nib wall on the ground floor levels as half walls is entirely inconsistent with the designation on the nib walls on the upper levels which are clearly not half walls. [29] The other difficulty as I see it, and as the respondents have submitted, armed with all of the information filed in the adjudication, and by reference to the Directions the learned adjudicator embarked on a fact finding process. The conclusion of fact from all of this material was that the nib wall fell within the phrase ‘balustrades or railings or parapet wall’. That being the case and the conclusion was open on all of the evidence before the adjudicator, which clearly it was, I am constrained from interfering with it. [30] Even if the conclusion involved a question of law, as to the legal meaning of ‘parapet’, I would come to the same conclusion as the learned adjudicator. Reasonableness [31] In view of the conclusion reached above which disposes of the appeal, it is unnecessary to determine if the body corporate acted unreasonably in voting down motion 24. However, I will deal with it briefly. [32] The applicants contend that the adjudicator, although addressing the question of reasonableness, did not articulate the relevant test in the reasons. In the submission filed by the applicants at [53] the following test is set out by reference to the authorities: (a) reasonableness is a question of fact. The objective test requires a balancing of factors in all the circumstances according to the ordinary meaning of the term reasonable; (b) the question is not whether the decision was the correct one, but whether it is objectively reasonable; and -- 6 of 8 -- 7 (c) the standard of reasonableness is objective, and it is to be applied at the time of the annual general meeting, taking into account all relevant factors, including factors which were extant but which the parties may not have identified or appreciated at the time, but not irrelevant factors. [33] The adjudicator did not descend to this particularity in addressing reasonableness but did refer to a statement of Justice Carmody7 of the committee’s obligation to act reasonably, in an uncited case, and said ‘normally, the significance or weight of any consideration is for the committee, not an external reviewer’. [34] Following on from that statement the adjudicator then had regard to the relevant factors put before the committee by lot owners and the applicants at the AGM.8 These include: (a) The benefits in amenity for lot 2 with the aluminium screen no longer in place; (b) The impact on privacy for lot 1 with the lack of the aluminium screen; (c) The privacy of lot 1 with the aluminium screen in place, given its existing proximity and exposure to the common property; (d) The previous decision of the respondent at its AGM in 2014 that not all screens needed to be retained; (e) The duration that the screen had previously been in place on the subject wall; (f) The alleged increase in noise from short-term guests staying in lot 2 without the screen in place; and (g) Whether the screen was required to be in place due to the scheme’s building or other town planning regulations. [35] The adjudicator also considered the contention that the removal of the screen was contrary to the approved plans. Whether there was sufficient information before the adjudicator concerning the development approval, by reference to the HMA report, is a factual issue and not a question of law. [36] There really was not much more the adjudicator could have had regard to when considering the decision of the committee. I am satisfied that he did consider whether the decision was objectively reasonable.9 I am also satisfied that when read as a whole the learned adjudicator was aware of the relevant test to be applied being that the standard of reasonableness was objective and to be applied at the time of the AGM.10 All relevant factors were taken into account as is evident from the reasons. Summary [37] The applicants have not established that the aluminium screen when fixed to the nib wall forms part of the common property. Therefore, the body corporate had no authority to require its reinstatement. On the basis of this finding there is no error of law. 7 Former President of QCAT. 8 Adjudicator’s reasons HB, page 10 & 11 [13] – [25], 9 Ainsworth v Albrecht [2016] HCA 40, [101]. 10 Ibid. -- 7 of 8 -- 8 [38] The applicants also have not established that the learned adjudicator erred in law by not holding that the body corporate acted in a way that was unreasonable pursuant to s 94(2) of the Act at the AGM on 7 June 2024 by voting down resolution 24. [39] As the applicants have not been able to establish any error of law the appeal must be dismissed. There will be an order accordingly. -- 8 of 8 --