Choi v Body Corporate for Macquarie Place (No 3) [2026] QCATA 127

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: PARTIES: Choi v The Body Corporate for Macquarie Place CTS 10897 (No 3) [2026] QCATA 127 YUK SUM CHOI (applicant) v THE BODY CORPORATE FOR MACQUARIE PLACE CTS 10897 (respondent) APPLICATION NO/S: APL141-26 MATTER TYPE: Appeals DELIVERED ON: 14 August 2026 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member King-Scott ORDERS: The application to stay a decision filed on 13 July 2026 is refused. APPEAL – BODY CORPORATE AND COMMUNITY MANAGEMENT – PRACTICE AND PROCEDURE – application to stay decision pending application for leave to appeal to the Court of Appeal – where appeal tribunal dismissed appeal against adjudicator’s order permitting conditional entry to a lot to inspect fire safety installations – where body corporate served fresh notice of entry – whether an order dismissing an appeal is amenable to a stay – whether refusal of a stay would render the appeal nugatory – where entry narrowly confined and conditioned – where building-wide fire safety audit outstanding – balance of convenience – application refused Body Corporate and Community Management Act 1997 (Qld), ss 163, 289 Fire Services Act 1990 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 32, 150, 152 Choi v The Body Corporate for Macquarie Place CTS 10897 [2026] QCATA Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 Kioa v West (1985) 159 CLR 550 -- 1 of 6 -- 2 National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) Applicant: Self-represented Respondent: D T Hood of Material Law REASONS FOR DECISION Introduction [1] On 23 June 2026 I delivered reasons for dismissing the appellant’s appeal against the order of an adjudicator made on 27 February 2026 in Macquarie Place [2026] QBCCMCmr 60 (the appeal decision). The adjudicator’s order, which is conditional upon the body corporate giving a fresh notice of at least 14 days under s 163 of the Body Corporate and Community Management Act 1997 (Qld) (the Act), permits Mr James Dunstan of Professional Certification Group to enter and remain on Lot 20 for the limited purposes of auditing and inspecting the smoke and heat venting systems, the stairwell pressurisation system, and penetrations through fire-rated elements. [2] On 7 July 2026 the body corporate served upon the appellant a notice, given pursuant to the adjudicator’s order, proposing entry to Lot 20 between 10.00 am and 11.00 am on Tuesday 21 July 2026. On 10 July 2026 the appellant applied to the Court of Appeal for leave to appeal against the appeal decision, in proceeding number 3230/26 (the Court of Appeal proceeding). [3] By an application to stay a decision filed on 13 July 2026, the appellant seeks an order pursuant to s 152(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) or, alternatively, in what is described as the inherent jurisdiction of the Tribunal, staying the appeal decision until the Court of Appeal proceeding is finally determined. The application was accompanied by a request for urgent interim relief restraining the respondent, its agents, contractors and consultants from entering, attempting to enter, or requiring access to Lot 20 pursuant to the adjudicator’s order pending the determination of the application. [4] On 16 July 2026, directions were made for the exchange of written submissions on the application, and the proposed entry did not proceed pending its determination. [5] The application has been determined on the papers pursuant to s 32 of the QCAT Act. The respondent has not filed submissions opposing the application. [6] For the reasons which follow, the application is refused. Background [7] The background is set out at length in the appeal decision and it is sufficient to summarise it. The scheme is a 21-lot residential building at St Lucia, first occupied in about 1981. From at least April 2024 the Queensland Fire Department (QFD) has issued the body corporate with a series of enforcement notices under the Fire Services Act 1990 (Qld) identifying alleged failures to maintain prescribed fire safety installations, including fire hydrants, penetrations through fire-rated construction, -- 2 of 6 -- 3 smoke and heat venting systems, and the stairwell pressurisation system. The consultants retained by the body corporate advised that a building-wide inspection, including access to each lot, was required to respond to those notices. Inspections of all lots other than Lot 20 proceeded in May 2025. The appellant did not permit access to Lot 20. [8] The adjudicator’s order of 27 February 2026 was the outcome of the body corporate’s application for final orders. The appellant appealed to this Tribunal on 20 March 2026 and applied for a stay of the adjudicator’s order pending the appeal. On 27 March 2026 the Appeal Tribunal granted an interim stay of the adjudicator’s order, and on 28 April 2026 ordered that the order be stayed until further order and directed that the appeal proceed by way of an urgent, expedited oral hearing. [9] The appeal was heard on 17 June 2026. The appellant was represented by counsel, who pressed three of the seven grounds filed. On 23 June 2026 the appeal was dismissed and the adjudicator’s order confirmed. Upon the dismissal of the appeal, the stay granted pending the appeal came to an end. The service of the fresh notice of entry, the commencement of the Court of Appeal proceeding and the present application followed in the sequence described above. The application and the grounds relied upon [10] The appellant submits, in substance, that: there is a serious question to be tried in the Court of Appeal proceeding, including whether the decisions below involved jurisdictional error, a denial of procedural fairness, and a misinterpretation or misapplication of s 163 of the Act; the proposed entry has not been shown to be reasonably necessary, particularly where alternative information, including plans and photographs, has been provided or offered; the proposed entry is prejudicial in the context of the continuing disputes between the parties and the pending Court of Appeal proceeding; the threatened prejudice is immediate and cannot be adequately remedied after the entry has occurred; maintaining the status quo will preserve the subject matter and practical utility of the appeal; and the balance of convenience strongly favours a stay because the respondent will suffer no material prejudice from awaiting the determination of the Court of Appeal proceeding. [11] The appellant also relies upon her written submission dated 10 April 2026, filed in support of the continuation of the stay pending the appeal to this Tribunal. That submission developed, among other contentions, that the proposed entry pursues an ulterior or collateral purpose connected with other proceedings between the parties; that Mr Dunstan does not hold a fire safety professional licence; that the QFD enforcement position has narrowed since the adjudication, such that entry is no longer reasonably necessary; and that the proposed entry resembles an impermissible fishing expedition. Reference was made in that regard to Kioa v West1 as to procedural fairness, to Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd2 as to the purpose of a stay pending appeal, and to National Employers’ Mutual General Association Ltd v Waind and Hill3 as to fishing expeditions. [12] Those contentions substantially mirror the grounds argued in, and determined by, the appeal decision. 1 (1985) 159 CLR 550 at 582. 2 [2008] 2 Qd R 453 at [12]–[13]. 3 [1978] 1 NSWLR 372 at 381. -- 3 of 6 -- 4 The power to grant a stay [13] Section 152 of the QCAT Act empowers the Tribunal to stay the operation of a decision which is the subject of an appeal, or of an application for leave to appeal, to the Court of Appeal, until the appeal is finally decided. The Court of Appeal may also make an order staying the operation of the decision. Insofar as the appellant invokes an “inherent” jurisdiction, the Tribunal is a creature of statute and has no inherent jurisdiction; it has the powers conferred upon it by statute, together with such further powers as are necessarily implied. Nothing turns on the point. The power engaged by this application is that conferred by s 152. [14] There is a preliminary difficulty with the application as framed. The decision sought to be stayed is the appeal decision, which dismissed the appeal and confirmed the adjudicator’s order. An order dismissing an appeal does not, of itself, require anything to be done; it is at least doubtful that a stay of such an order would have any operative effect. The respondent’s entitlement to enter Lot 20 derives from the adjudicator’s order of 27 February 2026, which operates according to its terms. What the appellant seeks, in substance, is an order restraining the respondent from acting upon the adjudicator’s order pending the Court of Appeal proceeding. I am prepared to assume, without deciding, that the power conferred by s 152, read with the Tribunal’s incidental powers, extends to an order having that practical effect, because in my view the application must in any event be refused on discretionary grounds. Principles [15] The principles are not in doubt and were common ground on the earlier stay application. A successful party is prima facie entitled to the benefit of the decision in its favour, and a stay pending appeal is the exception rather than the rule. The purpose of a stay is to ensure that the orders which may ultimately be made by the appellate court are fully effective.4 An applicant for a stay must ordinarily demonstrate a good arguable case on appeal; that the refusal of a stay would render the appeal nugatory or occasion irremediable prejudice; and that the balance of convenience favours the grant of a stay. Consideration Prospects of the Court of Appeal proceeding [16] An appeal to the Court of Appeal against a decision of the Appeal Tribunal may be made only on a question of law, and only with the leave of the Court. See s 150 of the QCAT Act. The grounds foreshadowed in the material before me substantially re- agitate the matters argued before, and rejected by, this Tribunal being the construction and application of s 163 of the Act, reasonable necessity, collateral or ulterior purpose, the qualifications of Mr Dunstan, and procedural fairness. [17] It would not be appropriate for me, having delivered the decision under challenge, to attempt any confident assessment of the prospects of that challenge; a decision-maker will rarely be persuaded that his own reasons are attended by sufficient doubt. I therefore proceed on the assumption most favourable to the appellant, namely that the proposed grounds are arguable. Arguability alone, however, does not warrant a stay. 4 Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at [12]– [13]. -- 4 of 6 -- 5 Regard must be had to what the refusal of a stay would mean for the utility of the Court of Appeal proceeding, and to the balance of convenience. [18] I note only this. Insofar as the appellant complains of a denial of procedural fairness, the appeal was determined after an oral hearing at which the appellant was represented by counsel, who argued the grounds pressed without restriction. Each of the matters now said to raise a serious question of law was considered on its merits in the appeal decision. Whether any of the conclusions reached is attended by error will be a matter for the Court of Appeal, if leave is granted. Whether refusal of a stay would render the appeal nugatory [19] The appellant’s strongest point is irreversibility. Once entry has occurred it cannot be undone, and to that extent the practical utility of grounds directed to restraining entry would be diminished. That consideration deserves, and is given, weight. [20] It is necessary, however, to attend to the character and extent of the intrusion in question. The entry authorised by the adjudicator’s order is narrowly confined. It is by a single named consultant, upon not less than 14 days’ written notice and for the limited purposes of auditing and inspecting identified fire safety installations. It was expected, on the evidence before the adjudicator, to occupy less than an hour and it was found to be non-invasive. The order does not authorise the carrying out of works or the removal of property. The complaint that its terms might permit repeated entries was considered, and rejected, in the appeal decision. [21] Nor would the refusal of a stay deprive the Court of Appeal proceeding of utility altogether. The proposed grounds raise questions as to the construction of s 163 of the Act which are said to have continuing significance for the parties, including in respect of any future exercise of the power of entry. If the appellant were ultimately to succeed, questions as to the consequences of any entry which had occurred, including the use to which any information obtained might be put in other proceedings, would remain amenable to relief. The prejudice relied upon, while real, is limited in character, and it is not of a kind which necessarily outweighs all other considerations. Balance of convenience [22] The inspection which the adjudicator’s order facilitates is a step in the body corporate’s response to QFD enforcement notices concerning fire safety installations serving the building as a whole. Those are matters bearing upon the safety of the occupants of all 21 lots in the scheme, including the appellant. Every other lot was inspected in May 2025. Access to Lot 20 has been outstanding for well over a year. The adjudicator’s order was made more than four months ago and has since been confirmed on appeal. [23] The appellant’s contentions that entry is no longer reasonably necessary – by reason of the narrowing of the QFD enforcement position, the performance solution submitted for the smoke and heat venting, and the prior inspections and certifications relied upon – were before the Tribunal on the appeal, were considered, and were rejected. A stay application is not an occasion to re-litigate them. The same is true of the contentions as to ulterior purpose and as to Mr Dunstan’s qualifications. [24] The respondent has already been restrained from acting upon the adjudicator’s order for a substantial period by the interim stays granted pending the appeal. The appeal has now been heard and determined adversely to the appellant. The respondent is -- 5 of 6 -- 6 prima facie entitled to the benefit of that outcome. Each further period of restraint prolongs the body corporate’s inability to complete the audit which, on the findings made by the adjudicator and confirmed on appeal, it is required to undertake, and prolongs its exposure to enforcement action. That prejudice is not the respondent’s alone; it is shared by the owners and occupiers of the scheme generally. [25] As to the status quo, the state of affairs for which the appellant contends is one in which the body corporate remains unable to complete a building-wide fire safety audit. The preservation of that state of affairs is not a neutral consideration. [26] Weighing these matters – the assumed arguability of the proposed grounds and the irreversibility of entry, against the narrow, brief and conditioned character of the entry authorised, the determination of the merits at two levels, the fire safety context, the continuing prejudice occasioned by further delay, and the residual utility of the Court of Appeal proceeding – the balance of convenience falls decisively against the grant of a stay. Disposition [27] The application to stay a decision filed on 14 July 2026 is refused. It remains open to the appellant to seek a stay from the Court of Appeal. -- 6 of 6 --