Arcadia Gardens [2025] QBCCMCmr 193 (9 June 2025)

The Body Corporate for Arcadia Gardens (respondent)

IMPROVEMENT TO COMMON PROPERTY - REASONABLENESS - GENERAL MEETING MOTION - SAME-ISSUE MOTION - whether the committee acted reasonably in proposing and placing a motion on the voting papers of a general meeting without listing it within a group of same-issue motions - whether the committee acted reasonably in its refusal to grant retrospective approval to an air conditioning condenser installed on the common property by a lot owner.

Act, ss 94(2), 100(5); Accommodation Module, ss 79, 177.

(a) for the purposes of section 79 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 ('AM'), Motions 14 and 15 listed on the agenda for the 16 October 2024 annual general meeting were same-issue motions, such that,

(b) the decision and action by the committee for the body corporate for Arcadia Gardens CTS 35724 to place proposed Motion 14 on the agenda, without listing it as a group of same-issue motions with Motion 15 on the same agenda, was unreasonable because:

(i) said section 79(2) AM requires same-issue motions to be listed as a group, and

(ii) by placing Motions 14 and 15 on the agenda in non-compliance with section 79(2) AM, section 79(9) AM would render both motions void, and

(c) therefore, the said committee contravened section 100(5) of the Body Corporate and Community Management Act 1997 ('Act'), and

(d) the inclusion of Motion 14 on the agenda was therefore at all times void and therefore not on the said agenda, and

(e) Motion 15 therefore was not void by reason of said section 79(9) AM.

I further declare that the body corporate did not act reasonably in refusing to pass Motion 15 of the 16 October 2024 annual general meeting, and thereby contravened section 94(2) Act.
I further declare that, by reason of Order 2 hereof, Motion 15 of the 16 October 2024 annual general meeting is deemed to have passed, by ordinary resolution.

[1] This decision is the fourth instalment in a series where the saga centres around the installation of an air conditioner at the scheme.
[2] The application follows a partially successful interim order, Arcadia Gardens [2025] QBCCMCmr 35, and is also connected to two previous decisions Arcadia Gardens [2024] QBCCMCmr 203 and Arcadia Gardens [2024] QBCCMCmr 204.
[3] The applicant has affixed an air conditioning condenser to the outside face of a wall that forms the boundary of the applicant's Lot 8. The outside face of the wall is common property. The applicant requires the body corporate's consent to make such a change to it, which is referred to as an improvement to common property.[1] When considering whether to give its consent, the body corporate must act reasonably.[2]
[4] To date, the body corporate has refused to give its consent. I previously found the body corporate acted reasonably in its refusal as the concern that the body corporate may incur greater costs in removing the air conditioning condenser to access and maintain sewerage pipes below the condenser (which have required repair in the past) was a relevant consideration that the applicant's general meeting motion did not address.[3] The previous decisions allowed the applicant to again try to get approval for the installation.
[5] The applicant has again sought the body corporate's consent and attempted to address the sewerage pipe access issue, most recently by proposing a motion to approve the installation, listed by the committee as agenda item Motion 15 at the 16 October 2024 annual general meeting (AGM). However, the body corporate has continued to refuse to give its consent, by voting to defeat Motion 15.
[6] One of the difficulties for the applicant is that the body corporate added its own motion to the AGM agenda, that would allow the body corporate to remove the condenser itself, which was listed by the committee as Motion 14. When the body corporate proposed Motion 14 and prepared the meeting's agenda and voting papers, it did not list Motions 14 and 15 as a group of same-issue motions, as required by section 79(2) of the Accommodation Module. Consequently, both the applicant's and the body corporate's motion could be void on this basis, by reason of section 79(9).
[7] In summary, I have made orders in the applicant's favour as I have found:
1. The committee's decision and action to propose and list Motion 14 on the agenda without listing it as a group of same issue motions with the applicant's proposed Motion 15 was void, as it acted unreasonably, given the consequences for Motion 15 and non-compliance with section 79.
2. As the committee's decision and action to propose and list its motion in such a way was void, the applicant's motion seeking approval for the installation was clear of any defect that would otherwise arise from the committee not listing it as a group of same-issue motions with the body corporate's motion.
3. Subsequently, and separately, the body corporate acted unreasonably in refusing to pass the applicant's motion seeking approval for the improvement to common property in circumstances where the applicant included terms and conditions that would make them responsible for removing and reinstating the condenser if necessary to access the sewerage pipes below it and there was apparently no other reasonable basis for opposition.

[8] The scheme is a building format plan subdivision and its Community Management Statement (CMS) shows the Accommodation Module applies to it.
[9] The building is a two-story unit block with a car park below. The areas on title to lots include the unit (main residential area), the patio areas for ground-floor units, and the balcony areas for those lots on the story above, as well as storage rooms in the car park.
[10] The CMS also shows lots are granted exclusive use over an area of common property immediately in front of the lots' storage areas for the purposes of car parking and storage.

[11] A previous box-style air-conditioning unit was installed in Lot 8's patio area. The applicant sought to install a split-system air conditioner and change the location of the system. They wanted to attach a condenser to an external wall under their kitchen window, which does not form part of their patio. This is at the back of the building, where some lots' patios open onto a strip of common property grass, bordered by trees and a boundary fence. The kitchen window wall is set slightly back from other external walls in the area. The installed value of the split system air conditioner is $7,177.00.
[12] It is not disputed that this area is common property, and it is not disputed that the applicant requires body corporate consent via an ordinary resolution for the installation.[4]
[13] The applicant sought the body corporate committee's approval in 2021 and again in February 2023. The body corporate refused the requests. Despite this, the applicant proceeded with the installation in March 2023. The body corporate subsequently issued a contravention notice against the applicant.

[14] In November 2023, the applicant submitted a motion to a general meeting of the body corporate seeking retrospective approval for the installation of the air conditioning condenser on the common property. The motion failed to pass.
[15] Following the failure of the motion to pass in 2023, the applicant sought an order that the body corporate's decision be overturned. The applicant raised several arguments, with the most relevant being that the body corporate acted unreasonably in its refusal. I did not make such an order because, while the body corporate considered several irrelevant factors, there was one relevant factor that justified its refusal. That factor was the concern that that it may incur greater costs in removing the air conditioner to access and maintain sewerage pipes below the condenser (which have required repair in the past) was a relevant consideration that the applicant's motion did not address.[5]
[16] Around the same time, the body corporate also lodged an application seeking an order that the applicant remove the condenser. I decided both applications concurrently. I made an order that the applicant must remove the air-conditioning condenser within 9 months, unless consent of the body corporate was obtained.[6]

[17] Since those decisions, the applicant has sought body corporate approval again via submitting a motion to be decided by ordinary resolution in July 2024. On 16 October 2024 the body corporate considered the motion at its annual general meeting, referred to as Motion 15. It read:

That the Body Corporate: > > 1. In accordance with section 177 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Qld) and by-laws 6 and 20 of the scheme's by-laws, retrospectively authorises the owner of Lot 8 to make an improvement to the common property for the benefit of Lot 8, the "improvement" being the installation of a split system air conditioning unit which includes the following works that were completed in March 2023: > > a. Affixing a reverse cycle outdoor unit (the "air conditioning condenser") to the external wall of Lot 8 (the wall being common property); and > > b. Running piping along the same external wall of Lot 8 to connect the air conditioning condenser to the indoor air conditioning unit. > > Provided that the owner of Lot 8: > > a. Will be responsible for the cost of installing and maintaining the improvement, as well as any future repairs or upgrades required to the improvement; > > b. Will be responsible to make good any damage demonstrated to have been caused by, or as a result of, the installation of the improvement; > > c. Will be responsible for the costs of removing and reinstalling the improvement, or any part thereof, to enable access, for whatever reason, to the sewerage pipes or any other utility infrastructure located beneath the improvement; > > d. If at any time, any part of the improvement is removed, for whatever reason, the owner of Lot 8 will be responsible for returning the common property to its original condition.

[18] Motion 15 failed to pass with two votes in favour and nine against.
[19] The body corporate also considered the following motion, proposed by the committee, referred to as Motion 14:

1. That if the owner of Lot 8, Levi Chalmers, does not remove the air-conditioner condenser within the 9 month time frame (exp 28-2-25) the committee seeks body corp approval to remove it and restore the damage done to BC property, on-charging the cost to Chalmers (Estimated as approx. $600). > > Explanatory notes and copy of BCCM Adjudicator's Order attached.

[20] Motion 14 passed by ordinary resolution with eight votes in favour, two against and one abstention.
[21] Motion 14 and Motion 15 both considered the issue of the applicant's air conditioning condenser, but were not considered as a group of same issue motions.[7]

[22] Following an interim application made by the applicant, I made interim orders that the body corporate not take any steps to implement Motion 14 until this dispute is finally determined.[8]

[23] The applicant seeks final orders to the effect that:
1. A declaration is made that the non-compliance with section 79(2) of the Accommodation Module be waived in respect of Motion 14 and 15.
2. That the resolution of Motion 14 is invalid and of no effect.
3. That Motion 15 be deemed passed by ordinary resolution.
4. That the Adjudicator's Order 1200-2023 be set aside, or a declaration that it has been complied with, or that the timeframe for the applicant to comply with the order be extended for a further 12 months.

[24] The applicant argues that:
1. Motion 14 and Motion 15 suffered a defect, where they were not listed or delt with as a group of same issue motions pursuant to section 79 of the Accommodation Module.
2. The decisions of Motion 14 and Motion 15 are invalid, as the body corporate acted unreasonably.

[25] The body corporate has not provided submissions in response to this application. One submission in opposition was received from an owner at the scheme, who is also the caretaking service contractor for the scheme.
[26] Despite having limited submissions, the applicant did write to all dissenting lot owners requesting their reasons for refusal. The owner who is the caretaker, as well as one other owner, responded with their reasons.

[27] Much of the application turns on the idea of reasonableness. On this topic, the legislation provides that the body corporate, and its committee, must act reasonably, including when it takes actions and makes decisions.[9] Acting reasonably when making a decision involves considering all relevant factors, and disregarding irrelevant factors.[10] The body corporate also has an obligation under the common law to not make legally unreasonable decisions.[11] A legally unreasonable decision is one that is plainly absurd or unjust in its practical effect.[12]
[28] As an adjudicator, when considering such arguments, I am not to simply supplant the body corporate's decision with my own, preferred decision.[13] My role is to firstly assess the decision making process and identify if there has been any defect, such as relying on irrelevant considerations. Importantly, it is possible for more than one reasonable decision to be made on the same set of facts.[14] If the body corporate has acted reasonably in its decision making process, then the body corporate's decision will stand unless I am satisfied that the outcome is a legally unreasonably decision.

[29] One of the difficulties for the applicant in justifying their entitlement to the relief sought is due to a decision the committee made prior to the general meeting. Namely, that the committee did not list Motion 14 and Motion 15 as a group of same-issue motions on the voting papers.
[30] Section 79 of the Accommodation Module provides that, where there are two or more motions that propose alternative ways of dealing with the same issue, the committee (which is responsible for preparing an AGM agenda[15] and voting papers) must list those motions as a group of same-issue motions on the voting paper for the general meeting. I am satisfied that Motion 14 and Motion 15 fall within section 79's ambit, because they deal with the installation being approved to remain in place or alternatively removing it.
[31] The practical effect of section 79 is that only one of the motions in the group may be passed, and section 79 prescribes particular ways this is determined.
[32] The key issue for the applicant is that the legislation states that if there is more than one motion on a general meeting's voting paper about the same issue, and those motions are not part of a group of same-issue motions, all of those motions are void.[16] Arguably, both Motion 14 and Motion 15 are invalid on this basis, and therefore void. It necessarily then follows that, if Motion 15 is void, I cannot grant the applicant's sought order to deem their Motion 15 passed.
[33] The applicant argues that this issue should not disadvantage them or their relief regarding Motion 15, as this is nothing more than a technical defect. It is true that technical deviations from the legislation will not necessarily render a decision of the body corporate invalid.[17] However, defective motions should not stand unless exceptional circumstances exist.[18] Exceptional circumstances may be where the irregularity was trivial and has no material impact, and the irregularity caused no prejudice or disadvantage to other parties.[19]
[34] I cannot accept the applicant's argument because, even when the elements of exceptional circumstances are established, where the legislative text indicates an intention that the error would invalidate the motions, I am bound to find those motions are void.[20] The wording of section 79(9) of the Accommodation Module could not be clearer in that respect - the necessary consequence of not properly grouping same-issue motions is that all of them are void. Nonetheless, this does not conclude the matter for the applicant.
[35] The applicant also says that it was 'not necessary' for the body corporate to propose Motion 14. The applicant's position may be better articulated as an argument that the body corporate acted unreasonably in its decision and action to propose Motion 14 and not list it on the agenda as grouped with Motion 15. I do not suggest the committee could not have reasonably proposed Motion 14, but rather, the act of proposing and not listing it as a group of same issue motions could not be a reasonable action where it does not comply with the legislation. I also note that, before taking that action, the body corporate would have to make a conscious or inadvertent decision to do that act. It is with this decision process and action that the issue arises.
[36] Section 79 of the Accommodation Module was introduced, along with other amendments, for the purpose of enhancing lot owner protections and stopping 'gaming' of the outcomes where there are multiple motions dealing with the same issue.[21] I do not mean to say that the committee actively turned its mind to the issue and purposefully failed to comply with section 79, rendering the applicant's Motion 15 invalid - in that regard, I note the outcome of the committee's action is that the body corporate's Motion 14 would also be invalid. Rather, the circumstances suggest committee failed to pay heed to the extremely relevant factor of section 79 of the Accommodation Module when it decided to place Motion 14 on the agenda and voting papers in the way it did, thereby unfairly disadvantaging the applicant in their legitimate attempt to have the installation approved.
[37] In my view, the circumstances indicate that the committee failed to have proper regard to a highly relevant requirement - namely, section 79 of the Accommodation Module - when resolving to list Motion 14 on the agenda and voting papers. I am therefore satisfied that the committee acted unreasonably in proposing and placing Motion 14 on the agenda and voting papers in the manner that it did. I will make an order that invalidates the body corporate's decision and action in this regard.
[38] It then follows that the only valid motion proposed dealing with the air conditioning condenser is Motion 15,[22] and section 79 of the Accommodation Module does not impact the validity of Motion 15.

[39] The body corporate decided not to pass Motion 15. The applicant argues the body corporate has acted unreasonably in that decision. I am provided with insight to the reasons for refusal via submissions and communications between dissenting lot owners and the applicant. I will consider whether those factors are relevant or irrelevant.

[40] One of the reasons for refusal is premised upon my prior order that the applicant should remove the condenser within a certain timeframe, unless body corporate approval is granted.[23]
[41] While I acknowledge that the body corporate enjoyed a certain level of success in their previous application, the outcome turned on the particular circumstances then prevailing. Most relevantly, I put the parties on notice that if the applicant was able to adequately address the body corporate's concerns regarding sewerage pipe access, there may be no reasonable basis for the body corporate to refuse its consent.[24] Reasonable decision-making requires that each application be assessed on its own individual merits. In the present situation, there are modest changes to the applicant's request from the previous. Accordingly, the previous decision ought not to be treated as determinative or a sufficient basis for the refusal now.

[42] Cognate to the previous reason discussed, the owner who is the caretaker also says the applicant has not addressed the 'previously stipulated concerns', which appears to be a reference to the reasons for refusal provided and discussed in Arcadia Gardens [2024] QBCCMCmr 203.
[43] As earlier stated, in that decision I considered all communicated reasons for refusal, and found all but one were irrelevant considerations. The sole relevant factor was the concern that the body corporate may incur greater costs in removing the air conditioner to access and maintain sewerage pipes below it, which have required maintenance works in the past. I also noted that it may be possible for the applicant to address this concern through appropriate terms and conditions in a further general meeting motion. The applicant argues they have addressed that concern via the conditions stipulated in Motion 15.
[44] Motion 15 contains the following term:

Provided that the owner of Lot 8: > > ... > > c. Will be responsible for the costs of removing and reinstalling the improvement, or any part thereof, to enable access, for whatever reason, to the sewerage pipes or any other utility infrastructure located beneath the improvement;

[45] I am satisfied the above term adequately addresses the concern.
[46] Having considered the matter afresh, I also I find that the circumstances and other reasonings underpinning my previous decisions remain materially unchanged. Aside from the issues I expressly cover in this current decision, I discern no new evidence or altered context sufficient to warrant a departure from the earlier findings. Accordingly, my conclusions on those matters remain as previously determined.

[47] The owners who advanced reasons for refusal suggest that it is the body corporate's internal rule that prohibits the installation of air conditioners in this manner. This argument was similarly raised in a prior application. In that decision, I determined that the by-laws cited did not, in fact, prohibit such installations. [25] Furthermore, I observed that fettering discretion by reference to an unwritten policy is inconsistent with the principles of reasonable decision-making, which require that each application be considered on its individual merits. [26] Accordingly, I find this argument to be an irrelevant consideration in the present case.

[48] One lot owner has raised a concern regarding the grassed area at the rear of the building, adjacent to the air conditioning unit, which borders a stream potentially susceptible to the effects of cyclones. However, no further elaboration has been provided. I find no plausible or direct connection between this point and the installation. Moreover, as the applicant contends, the air conditioning condenser is expressly designed for outdoor installation and has remained in place throughout prior storm events without incident. Accordingly, I find that this matter is not relevant.

[49] The owner who is the caretaker submits it is reasonable to refuse Motion 15 as they hold concerns the applicant is going to enclose their patio area (the applicant has moved their air conditioner away from the patio). They say they hold this concern because the applicant has said that the 'patio space is important'. The applicant says they do not have plans to enclose the patio area.
[50] I find this is an irrelevant consideration. There appears to be nothing in front of the body corporate evidencing this is going to take place. Further, whether or not the applicant does proceed to make changes to their patio area is a distinct and separate issue.

[51] The owner who is the caretaker submits it is reasonable to refuse Motion 15 as the applicant might then be encouraged to move other items onto the common property, such as a hot water system. The applicant says they have no plans to move any other infrastructure.
[52] This argument was also raised in the previous applications, where I found it was an irrelevant consideration.[27] I again find this is an irrelevant consideration. There appears to be nothing in front of the body corporate suggesting the applicant will do such a thing. Further, and again, whether or not the applicant does move their hot water system is a distinct and separate issue.

[53] The owner who is the caretaker submits that they believe the applicant will sell their lot without notifying the purchaser of the 'on going issues'. I assume the ongoing issues means this application, which I am now determining. I fail to see the connection between this specific concern and the decision to not approve the installation.

[54] The applicant seeks various other orders in an effort to address enforcement of one of the connected previous orders.[28] Issues of jurisdiction and power aside, I do not see any utility in making such orders, given the effect of the orders I am going to make regarding Motion 15.

[55] I am satisfied that the committee failed to act reasonably in proposing and listing Motion 14 on the voting papers for the general meeting, as it failed to consider and comply with section 79 of the Accommodation Module. I am also satisfied the body corporate failed to act reasonably in refusing to pass Motion 15. The application succeeds, and I will make orders in line with my findings.

[3] Arcadia Gardens [2024] QBCCMCmr 204 at [4].

[5] Arcadia Gardens [2024] QBCCMCmr 204 at [4].

[6] Arcadia Gardens [2024] QBCCMCmr 203.

[8] Arcadia Gardens [2025] QBCCMCmr 35.

[10] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [42] citing McKinnon v Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 at 430.

[11] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [34], [47].

[12] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [34], [38].

[13] Ainsworth v Albrecht [2016] HCA 40 at [101].

[14] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [47] citing Woden Valley Glass v Psaila (1993) 122 ALR 378, 391.

[17] Carroll & Ors v Body Corporate for Palm Springs Residences CTS 29467 [2013] QCATA 21, at [22-23]; Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482 (QDC, unreported, Bolton, 4080-2000, 29 May 2001) at [27].

[18] Finger v Dickie [2015] QCATA 113 at [9].

[19] Finger v Dickie [2015] QCATA 113 at [10] citing Carroll & Ors v Body Corporate for Palm Springs Residences CTS 29467 [2013] QCATA 21.

[20] Finger v Dickie [2015] QCATA 113 at [11].