QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION: 	Maartens v Body Corporate for Montague Markets South [2025] QCATA 3
	
PARTIES:	JAN-HENDRIK MAARTENS	

(appellant)	

	v	
	BODY CORPORATE FOR MONTAGUE MARKETS SOUTH	

(respondent)	

APPLICATION NO/S:	APL383-23	
ORIGINATING APPLICATION NO/S:	BCCM1199-2022	
MATTER TYPE:	Appeals	
DECISION MADE:	3 January 2025 	
HEARD AT:	Brisbane	
DECISION OF:	A/Senior Member Lember	
ORDERS:	1.	The respondent’s application to strike out filed 30 May 2024 is dismissed. 
2.	The appeal filed 20 November 2023 is allowed. 
3.	The decision of the BCCM made 17 October 2023 is set aside and substituted with a decision that the application for: 
(a)	a declaration that the respondent’s decision made 1 July 2022 was made unreasonably, and
(b)	orders for remedial works, associated approvals and reimbursement of report costs, 
is dismissed. 	
CATCHWORDS: 	
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – body corporate and community management – where adjudicator dismissed appellant’s application for declarations and orders for want of jurisdiction – where appellant no longer a lot owner - whether appellant was a relevant person – whether an application for reimbursement of expenses was a costs application – where error of law as to jurisdiction 
- whether decisions of body corporate reasonable

Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Qld) s 170
Body Corporate and Community Management Act 1997 (Qld) s 94, s 227, s 270, s 276, s 280, s 289, s 294
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 32, s 47, s 146

399 Woolcock Street [2021] QBCCMCmr 498
Agar v Hyde (2000) 201 CLR 552
Anzac Approach [2018] QBCCMCmr 149
Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177
Broadwater Shores [2010] QBCCMCmr 31
Davis & Santelli v The Body Corporate Westminster House Clayfield [2016] QCATA 132
Dey v Victorian Railways Commissioners [1949] 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Klinger & Anor v Body Corporate for Costa D’Ora Apartments [2007] QDC 300
Louden Court [2007] QBCCMCmr 170
Markan v Bar Association of Queensland [2013] QSC 146
Montague Markets South [2023] QBCCMCmr 401 (17 October 2023)
Paradise Palms [2018] QBCCMCmr 154
Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162
Ridis v Strata Plan 10308 [2005] NSWCA 246
River Bend [2018] QBCCMCmr 586
Sailfish Point [2006] QBCCMCmr 326
The Galleria Apartments [2014] QBCCMCmr 6
The Peninsula Airlie Beach [2019] QBCCMCmr 433
Waterview Margate Beach [2022] QBCCMCmr 390
Yeo v Brisbane Polo Club Inc [2013] QCAT 261

APPEARANCES & REPRESENTATION:	
This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).	

Appellant: 
Respondent:	
Mahoneys.
Self-represented.	

REASONS FOR DECISION
What is this application about? 
[1]	Mr Maartens was a lot-owner in the Montague Markets South community title scheme when traffic calming measures (including speedbumps) were introduced to the complex to address concerns about vehicles speeding in the basement carpark. 
[2]	By an application filed 20 November 2023, Mr Maartens appeals the decision of an Adjudicator, Office of the Commissioner for Body Corporate and Community Management (BCCM) dismissing his application for a declaration that the Body Corporate for Montague Markets South (Body Corporate) acted unreasonably, and for orders that the Body Corporate undertake remedial works to the traffic calming measures it introduced, and that it reimburse Mr Maartens for his costs to engage a traffic engineer to audit the common property for compliance and safety issues, which, he says, was then relied upon by the Body Corporate to seek remedies against the complex builder. 
[3]	For its part, by an application filed 30 May 2024, the Body Corporate seeks to strike the appeal out on the basis that, it says, Mr Maartens lacks standing to bring the appeal, and that the application is frivolous, baseless, and vexatious. 
[4]	This decision addresses the strike out, and, if not successful, the appeal, both of which have been directed to be determined on the papers, based on the written submissions of the parties. 
Legislative framework – bodies corporate
[5]	By s94 of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) a body corporate must: 
(a)	administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme, and
(b)	enforce the community management statement (including enforcing any by-laws for the scheme), and
(c)	carry out the other functions given to the body corporate under the BCCMA and the community management statement, 
and in doing so must act reasonably.
[6]	Section 100 of the BCCMA separately obliges the committee to act reasonably in making its decisions, as they are decisions of the body corporate. 
[7]	The onus is upon the party alleging unreasonableness to demonstrate it, not for the committee to establish reasonableness in its decision making. 
[8]	In assessing reasonableness, it has been said that the question is whether: 
(a)	the relevant decision was a decision which a body corporate, acting reasonably, would come to (per Justice Carmody in Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 (Backshall) at [95], or, put another way,
(b)	a notionally reasonable body corporate faced with the same issue could (not would) have honestly and rationally reached the same conclusion on a proper consideration of all relevant information available (Backshall at [99]). 
[9]	Mr Maartens alleges that the decision of the Body Corporate to adopt the traffic calming measures made 14 December 2021 was not reasonably made. However, for clarity, the current application pertains to the subsequent decision of the Body Corporate made 1 July 2022 not to commission works intended to remediate the traffic calming measures adopted and not to reimburse Mr Maartens his costs of obtaining a safety report.   
Legislative framework - strike-out 
[10]	The objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) include to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal, and quick, and, to that end, s4 of the QCAT Act requires the Tribunal, among other things, to: 
(a)	encourage the early and economical resolution of disputes before the Tribunal; and
(b)	ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice. 
[11]	Section 47 of the QCAT Act empowers the Tribunal to strike out or dismiss a proceeding if the tribunal considers a proceeding is:
(a)	frivolous, vexatious or misconceived; or
(b)	lacking in substance; or
(c)	otherwise an abuse of process. 
[12]	According to Dey v Victorian Railways Commissioners [1949] 78 CLR 62 in considering a strike out application, the evidence should be weighed to reach a conclusion about whether the applicant has an arguable case. A lack of any cause of action must be very clear and the Tribunal ought to be satisfied to a “high degree of certainty about the outcome” to strike the proceeding out. The power to strike out ought only to be exercised “sparingly” and “when a claim is groundless or futile”.
[13]	The Tribunal need only be satisfied that the applicant’s case is arguable and that it has not been lodged as an abuse of process or to delay the decided outcome. 
Legislative framework - appeal
[14]	Section 289(2) of the BCCMA allows a person aggrieved by an Adjudicator’s order to appeal to the Tribunal on a question of law. 
[15]	By s294, in deciding an appeal, in addition to the jurisdiction and powers of the Appeal Tribunal under the QCAT Act, the Tribunal may also exercise all the jurisdiction and powers of an adjudicator under the BCCMA.
[16]	Under s146 of the QCAT Act, the Appeal Tribunal may on an appeal on a question of law only: 
(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.
The first instance decision
[17]	The Montague Markets South community titles scheme 54502 is an 81-lot scheme that shares its basement carpark for residents with the community titles scheme for Montague Markets North (North BC). The sharing of the carpark is governed by a building management statement (BMS) lodged over the title to both schemes.
[18]	The Body Corporate was approached by the committee for Montague Markets North to address safety concerns around speeding by installing speed bumps in the shared carpark area. Subsequently, the committees for each scheme voted on a motion to install the speed bumps which were then installed. 
[19]	Mr Maartens engaged TTM Consulting Pty Ltd (TTM) to conduct an audit of the resident car parking areas at the scheme, who, at a cost to Mr Maartens of $2,040.00 inspected the site and delivered a report (the TTM Report) recommending remedial works be carried out to fix issues that relevantly included: 
(a)	installing three bollards in front of the bike racks opposite the B2 roller door entrance (item 1 of the TTM Report);
(b)	removing the speed hump at the bottom of the ramp on B3, carry out the painting of a give-way intersection and install a give-way sign (items 2, 3 and 6 of annexure 1 of the TTM Report);
(c)	removing the speed humps on the ramp going down from B1 to B2 (item 3 of the TTM Report); and
(d)	ensuring that the people-with-disabilities space be made compliant (item 4 of the TTM Report) by:
(i)	painting line markings in yellow; and
(ii)	relocating the fire sprinkler pipe to achieve a 2.5m clearance (or to provide proof of non-compliance acceptance by a suitably qualified certifier); and
(iii)	consolidating the speed humps on B2 into a single speed hump allowing a 1m pathway for pedestrians and people with disabilities to access Res A lifts and Res B lifts from the space (item 5 of the TTM Report).
[20]	Mr Maartens tendered the TTM Report to the Body Corporate with a motion for the Body Corporate to obtain two quotations to carry out the remedial works recommended by TTM and to approve one of the quotations to carry out the work, with necessary approvals, and to reimburse his costs of engaging TTM. By a decision made 1 July 2022, the motion was defeated two ‘yes’ votes to four ‘no’ votes, with Mr Maartens, who was a committee member at the time, abstaining.
[21]	Mr Maartens then sought an order by the BCCM: 
(a)	Declaring that the decision of the Body Corporate not to pass the motion submitted to the Body Corporate on 14 June 2022 was unreasonable.
(b)	Requiring the Body Corporate, within three months, to:
(i)	carry out the works recommended in the TTM Report (TTM Works) that affect the Body Corporate's common property; and
(ii)	submit a motion to the building management group seeking approval of the North BC to carry out the TTM Works that affect the North BC's common property.
(iii)	Reimburse Mr Maartens for the cost of the TTM Report ($2,040.50).
[22]	At first instance, the learned BCCM Adjudicator dismissed the application because: 
(a)	Mr Maartens sold his lot on 17 October 2022 and, where no other existing owners in the scheme expressed concerns about the traffic management works implemented, the outcomes sought by Mr Maartens were no longer relevant or required and he therefore lacking standing to bring the application.
(b)	With respect to the TTM Report, which Mr Maartens argued the Body Corporate benefitted from, there were only two limited situations in which an Adjudicator may make an order for costs:
(i)	against an applicant if an application is determined to be frivolous, vexatious, misconceived or without reasonable substance (s270(3) of the BCCMA); and 
(ii)	against a respondent where a preceding conciliation application was ended because the respondent failed, without reasonable excuse, to participate in the department conciliation (s280 of the BCCMA), and 
as the application did not fall within either of those circumstances, the learned Adjudicator did not consider that he had power to make an order for costs.
Consideration of the strike out application 
[23]	The Body Corporate argues for strike out because: 
(a)	The Body Corporate is only one party to the BMS, which governs the shared area by the BMS parties. Decisions relating to those areas are made by the Building Management Committee (BMC). Therefore, the Body Corporate says the decision to install the traffic calming measures was one of the BMC, not the Body Corporate, and, therefore, Mr Maartens’ dispute ought properly to have been brought against the BMC. 
(b)	The Body Corporate has no unilateral power to make decisions on behalf of or that impact the BMC and the orders sought with respect to remedial works on shared common property cannot be carried out by the Body Corporate, and, further, the reimbursement sought cannot be made by the Body Corporate because the accounts for the shared property are controlled by the BMC. 
[24]	I am not with the Body Corporate on the first ground upon which they seek strike out: the Body Corporate by a resolution made 14 December 2021 voted to install the traffic calming measures in the driveway shared with Montague Markets North, at a shared cost in accordance with the BMS. North BC passed a similar motion and the BMC then passed its own to give effect to the shared desire of the two bodies corporate for traffic calming in their common property. 
[25]	Mr Maartens however disputes the two decisions made by the Body Corporate on 1 July 2022 that declined to obtain quotes for remedial traffic calming measures and to reimburse him the cost of the TTM Report. These were decisions of the Body Corporate who is the proper respondent to the dispute. 
[26]	As to the second argument, whilst it is true that the first motion as worded “to approve one of the quotations to carry out the remedial works” could not have been passed by the Body Corporate as it was properly a matter for the BMC and appears to have lacked utility, the second motion to refuse reimbursement is a matter the Body Corporate could have undertaken on its own behalf, from its own funds, without referring to the BMC, although it is a separate matter as to whether this was properly an expense it should agree to meet wholly if it benefited shared common property. 
[27]	On balance, the contentions put forward by the Body Corporate on strike out do not establish that Mr Maartens’ case was not at least arguable. Further, given the learned BCCM Adjudicator’s following observations, it would be contrary to the evidence to make a finding at an interlocutory stage that the appeal was filed by Mr Maartens as an abuse of process or to delay the decided outcome (given there was nothing to delay): 
[19] The Body Corporate…asserts the application submitted by Mr Maartens is vexatious and frivolous. I do not agree with this categorisation. While making no finding on the merit of his arguments, it appears to me that Mr Maartens has a genuine concern for the safety and wellbeing of those who visit, reside and work at Montague Markets South. And the report he obtained from TTM indicates certain remedial works may be required. 
[28]	For those reasons, the application to strike out is refused. 
Consideration of the appeal
[29]	Mr Maartens says the decision of the learned Adjudicator was flawed on two grounds.  
The first ground of appeal – whether Mr Maartens was a ‘relevant person’
[30]	To make an order dismissing the application, the learned Adjudicator needed to be satisfied pursuant to s270(1)(e) that Mr Maartens was no longer a person mentioned in s227(1) for the dispute, and that the outcome he sought was no longer relevant or required. 
[31]	Whilst it is conceded that Mr Maartens was no longer a person mentioned in s227(1) at the time of his application to the BCCM, he was a lot owner at the time he requested conciliation, which was then scheduled ninety-four days after it was requested. 
[32]	Section 239C(6) of the BCCMA states that if a party to a conciliation stops being a relevant person for the application after it is made, the BCCM may allow an adjudication application for the same dispute to be made as if the party were the relevant person for the adjudication application. 
[33]	Therefore, Mr Maartens says he should be considered a relevant person for the dispute because the dispute resolution process commenced when he was a lot owner and the time taken to schedule the conciliation was a matter outside his control. 
[34]	Rather than rely on the absence of submissions from current lot owners, the learned Adjudicator ought to have, Mr Maartens says, considered the presence of evidence, in the form of the TTM report, when determining relevance. Therefore, the outcomes sought were based on recommendations of a subject matter expert for safety in carparks having direct impact on human safety and therefore could not reasonably be deemed to be irrelevant.  
[35]	Mr Maartens submits he has an ongoing interest in the outcome of the application, such that the outcome sought continued to be relevant and required, because he made a financial contribution to the TTM report which he is seeking reimbursement for; and he has a continuing interest and obligation to the community in ensuring the safety, and good condition, of the common property at Montague Markets South. Although he no longer resides at the scheme himself, Mr Maartens relies upon the close connections he has maintained to people who do continue to reside and visit the scheme and he holds concerns for their safety.
[36]	On receiving the application, the BCCM Commissioner invited submissions from the Body Corporate and all other owners in the scheme. No other owners in Montague Markets South made a submission in response to the safety issues raised by Mr Maartens. 
[37]	In giving his decision, the learned Adjudicator summarised relevant cases on the issue of ongoing interest in the outcome of the dispute, including: 
(a)	In Somerset Park [2017] QBCCMCmr 412, an owner successfully challenged the validity of a motion passed into resolution at an extraordinary general meeting that required owners to contribute to the scheme’s sinking fund for painting and garden edging, and the body corporate was ordered to repay $437,580.00 to owners. The applicant had sold her lot but was permitted to proceed with her application because applying s239C, the orders sought had could have been brought by any owner in the scheme and there was evidence of support from existing owners that the outcomes sought were still relevant (for instance, there was at least one other application on foot).
(b)	In 399 Woolcock Street [2021] QBCCMCmr 498 the applicants were at one stage mortgagees in possession of the relevant lot. They brought an action against the body corporate for relief of payment of various amounts of money for items such as unpaid levies, penalty interest and recovery costs for which the body corporate had earlier obtained judgment against the previous owners. Addressing ss239C and 270(1)(e) of the BCCMA and their relevance the learned Adjudicator dismissed the application because the applicants were no longer owners of the relevant lots and the body corporate had indicated that any further action would be taken against the current owners.
(c)	In Anzac Approach [2018] QBCCMCmr 149 the issue was whether the applicant was liable to a statutory transfer fee concerning a proposed transfer of its service contractor and letting agent rights (management rights) to a new services provider where settlement of the contracts was likely to occur before the application was determined. The learned Adjudicator held that:
[15] Section 239C Act, being subject to the rest of the chapter in which it sits, does not necessarily require an adjudicator to continue to consider the application. Section 270(1) Act sets out the bases upon which an adjudicator may dismiss an application, and subsection 270(1)(e) provides that an adjudicator may dismiss the application if the adjudicator is satisfied that a party to the application is no longer a person mentioned in section 227(1) and the outcome sought by the application is no longer relevant or required.
[16] In this application, as the transfer fee must be disbursed to one party or the other depending upon my determination of the matter, the outcome sought is still relevant and required.
(d)	River Bend [2018] QBCCMCmr 586 dealt with a claim by a former owner for reimbursement of costs for some balcony repairs, after they had earlier informed the body corporate that the repairs were required and it was held at paragraph [18] that “as the dispute relates to the applicant’s and the Body Corporate’s liability for costs incurred in maintaining common property, the outcomes sought are still relevant and require a resolution.”
(e)	In Waterview Margate Beach [2022] QBCCMCmr 390 (24 October 2022) the applicants pursued concerns about a lack of parking access space, raised by them in the four months preceding the sale of their unit, after their unit sold, arguing that body corporate committees should not avoid accountability by simply ignoring bona fide obligations until a lot owner moves, or dies. It was decided that the outcome sought by the applicants was not still relevant or required and observed that, at best, it could be said that the applicants continued with the application on principle, which was held not to be an appropriate basis upon which orders should be made.
(f)	In Davis & Santelli v The Body Corporate Westminster House Clayfield [2016] QCATA 132 an appeal was dismissed on the basis that that applicant had sold their lot, and so no longer held standing. The learned Members found that owners may continue to hold standing in an unresolved dispute application before an adjudicator depending on the circumstances, stating that (emphasis added):
[48] Section 239C is an unusual provision, in after all, what is a pseudo form of litigation. I can understand to an extent why it was inserted into the Act. I am not of the view, however, that every applicant has the right to continue with their application, in circumstances where they simply argue they are protecting the interests and rights of others (see paragraph 25 above). This is an all too common argument used by parties in dispute applications that often, in my view, might actually detract from the force of a submission, or an entire case.
…
[50] On the face of it, the applicants’ arguments outlined in paragraph 26 above appear to have some utility, but of course someone might become an ‘ex-owner’ at any stage of the process, whether delay is caused by the party or the processes of adjudication. This is an argument that could always be easily raised in the circumstances. I am not of the view this should be the measure of continued standing.
[51] It is whether the party retains sufficient interest in the outcome. By ‘interest’ I am not referring to a psychological connection or an instinct to continue a battle, but rather a direct, practical nexus or connection. The two concepts are different and distinct. I think there is a theme in the cases, there needs to be a direct interest in the outcome of the proceeding, often financial or proprietary in nature.
[38]	With respect to the declarations and orders sought regarding the remedial works, Mr Maartens has not established a continuing interest in the outcome of the dispute with respect to the traffic calming measures. Rather, his interest is as an associate of or concerned friend to lot owners and other users of the shared carpark: this is not a sufficient nexus. 
[39]	The learned Adjudicator was, in my view, correct to dismiss Mr Maartens’ application relating to the remedial works under s270(1)(e) because he was no longer a person mentioned in s227(1) and the outcome sought by his application was no longer relevant or required. There is no error in the learned Adjudicator’s decision on that point.  
[40]	However, Mr Maartens does have a direct financial interest in the outcome of his application with respect to the reimbursement of the costs he incurred to obtain the TTM Report. In that regard, Mr Maartens remains a relevant person for the purpose of s277(1) and his application as it pertained to the reimbursement was dismissed in error. 
[41]	The decision dismissing Mr Maartens’ application with respect to the reimbursement of his costs of the TTM Report is therefore set aside and substituted with a decision that Mr Maartens has standing to pursue that aspect of his claim, now considered below. 
The second ground of appeal – the refusal to award ‘costs’
[42]	At first instance, the BCCM Adjudicator considered himself limited by jurisdiction to making costs orders where:
(a)	an application is determined to be frivolous, vexatious, misconceived or without reasonable substance (s270(3) of the BCCMA), or
(b)	a preceding conciliation application was ended because the respondent failed, without reasonable excuse, to participate in the department conciliation (s280 of the BCCMA), and 
and found that as the application did not fall within either of those circumstances, he lacked power to make an order for costs.
[43]	Mr Maartens argues, and I agree, that his request for reimbursement by the Body Corporate of the cost of the TTM Report was not sought by Mr Maartens as reimbursement of the costs he incurred in the application but as reimbursement of his costs incurred in undertaking an obligation that ought properly to have been performed by the Body Corporate. His challenge was to the reasonableness of the Body Corporate’s refusal to make that reimbursement. Such an order is not characterised as a costs decision arising out of ss270(3) or 280 but instead arises under a separate power where a right accrues to an applicant to be reimbursed for expenses incurred by them which ought properly to have been borne by a body corporate. 
[44]	Section 276 of the BCCMA empowered the learned Adjudicator to make an order that is just and equitable in the circumstance to resolve a dispute about a claim or anticipated contravention of the BCCMA where it was established that the Body Corporate breached s94(2) of the BCCM Act by reasonably failing to pass the motion for reimbursement. 
[45]	It was an error, in my view, for the learned Adjudicator to dismiss the application for reimbursement of the costs on the basis upon which it was dismissed, and it ought to have been considered on its merits by applying s94(2) considerations. The decision to dismiss for want of jurisdiction is therefore set aside and substituted with the Appeal Tribunal’s decision, which now follows.
Did the Body Corporate act reasonably in refusing to reimburse the cost of the report? 
[46]	Relying on decisions such as those in Louden Court [2007] QBCCMCmr 170, The Galleria Apartments [2014] QBCCMCmr 6 and Paradise Palms [2018] QBCCMCmr 154, the applicant proposes a four-step test for assessing the reasonableness of Mr Maartens’ request that his costs of obtaining the TTM Report be reimbursed:
(a)	Has a defect on common property, or another part of the scheme land which the body corporate is responsible to maintain, been identified in the TTM Report?
(b)	If so, was the TTM Report reasonably necessary to identify that defect and/or ascertain the extent of work required?
(c)	Did the Body Corporate’s obligations under the BCCMA require it to obtain a report, or to conduct investigative work, in the nature of the TTM Report?
(d)	Is it just and equitable in all the circumstances to order reimbursement?
[47]	As a general principle, the democratic process for electing a body corporate committee, where that committee then becomes the decision-maker for the body corporate, should not be readily departed from to reimburse an owner retrospectively for expenses they incur acting unilaterally and outside the statutory decision-making framework for bodies corporate. Owners who take it upon themselves to undertake body corporate responsibilities without an emergent or compelling reason to do so, do so at risk that the costs they incur without approval may well be and remain their own. In that context, I apply the appellant’s proposed four-step test as follows. 
(i) Did the report identify a defect on common property? 
[48]	Section 170 of the Body Corporate and Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Qld) (Accommodation Module) requires a body corporate to maintain common property in good condition. Mr Maartens says this extends to ensuring that structures meet the compliance requirements of relevant authorities. 
[49]	In Sailfish Point [2006] QBCCMCmr 326 (21 June 2006) several owners had constructed decks and pergolas without first obtaining body corporate or local council approval where no details of the improvements were recorded in the minutes of a body corporate meeting. Many were poorly constructed, not in keeping with the overall appearance of the scheme, encroached onto common property, and obscured the water views of other lots, thus contravening the by-laws, the requirement for authorisation to make improvements to common property, and creating a nuisance or hazard contrary to the legislation. 
[50]	The issues in Sailfish were varied and complicated, as, necessarily, were the learned Adjudicator’s findings, but, relevantly, Mr Maartens argues that observations made by the learned Adjudicator that “structures do, of course, have to satisfy any applicable local council requirements in addition to satisfying requirements imposed by legislation governing the operations of the body corporate” and that “it would be a reasonable expectation and appropriate condition of a body corporate approval that any approved structures must meet with local council requirements” means that an improvement that creates a number of compliance issues and concerns (as identified in the TTM Report) will not meet the standard of “good condition” within the meaning of s170 of the Accommodation Module. 
[51]	I am not with Mr Maartens on this submission, at least as strictly as he asks the Appeal Tribunal to apply it. 
[52]	In The Peninsula Airlie Beach [2019] QBCCMCmr 433 it was said (emphasis added): 
[69] It has been held in Broadwater Shores [2010] QBCCMCmr 31 that in Queensland, the Act provides that the body corporate must "administer, manage and control the common property ... reasonably and for the benefit of lot owners" and the body corporate must act "reasonably" in carrying out its functions (Act 152(1), 94(2), 100(5)). In this context, it appears that the obligation in section 159 of the Standard Module that the body corporate "maintain common property in good condition" should not be interpreted as imposing a strict liability that is contravened as soon as something stops operating properly. Rather, it appears that a body corporate, acting reasonably, should have a system in place for monitoring the maintenance and state of repair of the common property. The body corporate would only be in breach of its duty to maintain if it fails to remedy deterioration or defects within a reasonable time of when it became aware of the problem or should reasonably have become aware of the problem. 
[53]	Whilst the TTM Report indicated “potential issues in the carpark, including compliance issues and undesirable situations”, this was after its overall conclusion that “the existing carpark is well constructed, signed and delineated” and that “the layout appears to meet the general design standards and guidelines”. 
[54]	Holistically, the TTM Report does not support an overall conclusion that the carpark is defective or not in good condition. Nor does it when considered in parts: 
(a)	The bike racks recommended in item 1 of the TTM Report are described as “not strictly a compliance issue” but, rather, “an undesirable situation that can be improved”,
(b)	The speed bumps at B1, B2 and B3 are not identified as compliance issues: B2 (item 3) is a “potential” issue due to vehicle scraping based on plan measurements with a qualification that the “as built ramp grades may be shallower” and with no supporting evidence that vehicles scrape. Contrarily there is evidence of committee inquiries of the driver of a low-set vehicle that frequented the carpark who said their vehicle does not scrape – otherwise, the speed bumps are merely described in the “undesirable” and/or “unnecessary”, and
(c)	The people-with-disabilities space is described as “potentially” non-compliant subject to whether it had been certified as such as meeting acceptable performance solutions as part of the building approval process.  
[55]	At best, the concerns raised regarding the people-with-disabilities parking space warranted further inquiry by the Body Corporate. In this regard, only, a potential defect in common property was identified in the TTM Report. 
(ii) Was the report reasonably required to identify the defect? 
[56]	According to the minutes of a Body Corporate meeting that took place on 16 February 2022, the Body Corporate, including Mr Maartens, approved the building manager’s activity of arranging quotes for a defects building inspection and considered that these costs ought be shared with the Montague Markets North scheme in due course. They also authorised the building manager to source a quote for a safety report for the consideration of the committee.  
[57]	Mr Maartens had by that time voiced objections to the traffic calming measures and it was resolved that he should take that dispute to the BCCM. In that context, Mr Maartens then appears to have engaged TTM and their onsite inspection took place on 13 April 2022.
[58]	Therefore: 
(a)	When Mr Maartens commissioned the TTM Report in April 2022, he was aware, because he was on the Body Corporate committee, that a defects report and a safety report were being commissioned per the resolutions made on 16 February 2022, and 
(b)	The TTM Report, in context, appears to have been commissioned to aid Mr Maartens in his dispute with the Body Corporate rather than to identify relevant safety concerns per se, as he was aware that at least one other report was to be obtained for safety purposes. 
[59]	In those circumstances, Mr Maartens has not established that the TTM Report was reasonably required to identify the potential defect with the persons-with-disabilities parking space, or indeed any other concerns raised in the report. 
(iii) An obligation to obtain the report
[60]	For the reasons given above, Mr Maartens has not established that the Body Corporate required the TTM Report to comply with its obligations under the BCCMA, or the Accommodation Module specifically. Further, the Body Corporate had already, by resolutions passed 16 February 2022 supporting the building manager to obtain quotes for a defects report and a safety report and these matters were in train. The minutes reflect that Mr Maartens was a ‘yes’ vote to these resolutions.  
[61]	The Body Corporate had an alternate and pre-existing system in placed to detect, report on and address defects on common property and shared common property, if they existed: they need not require the TTM report for that purpose.  
(iv) Justice and equity
[62]	Mr Maartens says that where the Body Corporate: 
(a)	ought to have obtained the report in the first place,
(b)	has received the benefit of the report, and
(c)	has acted unfairly in cherry picking elements of the report to use in further a separate dispute with the builder and benefited from the report, 
the Body Corporate acting reasonably would have resolved to reimburse the expense of the report to Mr Maartens and by failing to do so, acted unreasonably.   
[63]	Mr Maartens refers to a 12 July 2022 communique from the Body Corporate wherein the Body Corporate relevantly refer to the TTM report as follows: 
In reviewing the report, the majority of the committee members noted that none of the speed humps installed were considered by TTM Consulting to be non-compliant with the relevant Australian Standards. That said, there was a “potential compliance issue” raised relating to a speed hump installed on the exit ramp whereby a low vehicle could potentially scrape due to the proximity of the speed bump to the “gradient zone”. In addressing this concern the owner of a low sports vehicle who parked his vehicle within the scheme for a period post flood 2022 has confirmed to a committee member that the speedbump has not caused any issues whatsoever. 
The compliance notes that there were an additional two issues raised in the Report however these are entirely unrelated to the speed hump installation approved by the committee. These two issues have subsequently been referred the schemes builder (RCC) for review and comment. 
[64]	There is no other evidence tendered in the proceeding as to the alleged benefit to the Body Corporate gained from the TTM Report other than this reference to some of the observations, unrelated to the traffic calming measures, being referred to the builder and subsequently implemented.
[65]	On balance, Mr Maartens has not established that the Body Corporate breached s94(2) of the BCCM Act by unreasonably failing to pass the motion for reimbursement.  Put another way he has not established that a reasonable committee faced with the issue could not have honestly and rationally reached the decision not to reimburse on a proper consideration of all the relevant information available. 
[66]	The Appeal Tribunal therefore substitutes the decision of the BCCM with a decision that Mr Maartens’ application for a declaration that the refusal to reimburse was unreasonable, and for an order for reimbursement is therefore dismissed.
Decision
[67]	For the reasons given, the decision of the Appeal Tribunal is: 
(a)	The respondent’s application to strike out filed 30 May 2024 is dismissed. 
(b)	The appeal filed by the applicant on 20 November 2023 is allowed. 
(c)	The decision of the BCCM made 17 October 2023 is set aside and substituted with a decision that the appellant’s application for a declaration and for orders for remedial works, associated approvals and reimbursement of report costs is dismissed.