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austlii:qld/QBCCMCmr/2026/112
General information, not legal advice.
QBCCMCmr
2026-04-21
Original judgment source is linked above.
Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and 229(3)(a)
Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module)
APPLICATION FOR INTERIM ORDERS - where the applicants seek to challenge an AGM motion which proposes to cut down palm trees on common property at the scheme - where the applicants raise issues with the AGM notice - whether the interim orders sought are warranted in the circumstances.
[1] Astonvilla CTS 32212 is a 57-lot scheme situated in Deception Bay, Queensland. It is governed by the Accommodation Module. The applicants, Tatyana Gegina and David Scelly, are the co-owners of Lot 28 in the scheme.
[2] The applicants say the committee have put forward a motion to be voted on at the scheme's annual general meeting (AGM), scheduled for 22 April 2026, which proposes the removal of 15 healthy palm trees from common property at the scheme. They seek to challenge this motion on various grounds.
[3] In addition, the applicants say the correct notice requirements have not been followed to call the AGM and many owners have not received the required voting papers for the secret ballot. They also say the body corporate previously voted to allow owners to attend general meetings electronically but information on how to do so has not been provided for the AGM. They say the body corporate manager has refused to provide the information when asked.
[4] The applicants seek the following final orders:
[5] The applicants say that if the trees are removed pursuant to the motion before the dispute is adjudicated, the damage will be irreparable as the trees cannot be reinstated at their current level of maturity and aesthetic value. They say an interim order is therefore required to maintain the status quo until the dispute can be formally considered.
[6] In addition, the applicants say that if the AGM proceeds on 22 April, owners will be forced to vote without the statutory 21-day notice period or the mandatory secret ballot materials. They also note that the refusal to provide information on how owners can attend the meeting electronically will prevent owners who are travelling, working or living off-site or those who have mobility constraints from participating in the meeting.
[7] Accordingly, the applicants seek the following interim orders:
[8] This is my consideration of the applicants' request for interim orders. To be successful in their application, the applicants must establish that the interim orders they seek are warranted in the circumstances.
[9] The applicants lodged this application for adjudication on 14 April 2026. The commissioner sought clarification on some aspects of the application and the application was amended.
[10] The commissioner referred the interim order request to department adjudication under section 247(2)(b) of the Act.
[11] There is no statutory requirement to obtain comments from a respondent or affected parties before an interim order is decided. However, in the circumstances of this case, I invited both the body corporate committee and body corporate manager to make submissions and gave them a short period in which to do so. The committee provided a submission in response.
[12] I have reviewed and considered all the submissions and materials submitted on this dispute before coming to my decision on the applicants' request for interim orders.
[13] An adjudicator may make an interim order if satisfied, on reasonable grounds, that the order sought is necessary because of the nature or urgency of the circumstances to which the application relates.[1]
[14] In deciding whether an interim order is warranted in the circumstances, adjudicators often adopt the approach taken by courts to considering interim injunction applications.[2] Accordingly, to determine if it is just and equitable to make the interim orders sought by the applicants, I must consider the substantive issues in dispute, the nature and urgency of the matters, as well as the balance of convenience between the parties. I will explain each consideration in more detail below.
[15] Firstly, I must consider the substantive issues in dispute and be satisfied there is a serious legal question or 'live' issue to be answered. At this stage, the applicant does not need to satisfy me that, on the balance of probabilities, their legal position is the correct one to take in the case. However, I must be satisfied the applicants' case has a sufficient likelihood of success to justify the making of the interim orders sought prior to a full investigation into the matters they have raised being concluded.
[16] Secondly, an adjudicator may make an interim order only if satisfied, on reasonable grounds, that it is necessary because of the nature or urgency of the circumstances.[3] The applicants must therefore establish that the circumstances warrant the interim orders they have sought. This may be where, for example, the order is necessary to prevent serious or irreparable harm from taking place or to stop something that cannot be undone. I must also balance the inconvenience of granting relief if final orders are ultimately refused and weight this against the inconvenience of refusing relief if final orders are ultimately granted.
[17] The only issue I am deciding at this stage is whether the interim orders requested by the applicants are warranted in the circumstances. The applicants have sought two interim orders. I will consider the issues they have raised in relation to each of the two orders they have sought in turn.
[18] The applicants say the motion to remove 15 healthy trees based on a vague claim of 'nuisance' is an unreasonable exercise of power. They say the committee is being controlled by one family, (referred to in this decision as the T family), and it is not acting in the best interests of the body corporate. The applicants say removing the trees is a personal preference rather than an objective necessity, and the trees can be managed instead of removed.
[19] The applicants say the motion to remove the trees has been tabled as requiring an ordinary resolution to pass. However, they say that removal of 15 healthy trees constitutes a significant improvement or change to common property. They submit that such a substantial change to the appearance and value of the scheme would require a special resolution. They say classifying the motion incorrectly as requiring only an ordinary resolution will disenfranchising minority owners as they are often outvoted by the T family who are the majority stakeholder in the scheme.
[20] In its response, the committee appears to accept that removing the palm trees would constitute an improvement to common property and not maintenance. However, it says a special resolution is not required as the proposed works are within the scheme's ordinary spending limit for improvements (the cost of the works to remove the trees being approximately $7,370 including GST).[4]
[21] The committee says it identified ongoing issues associated with the palm trees and the matter has been appropriately referred to the body corporate for owners to make the decision about the trees at a general meeting. It emphasises that it acted reasonably in identifying maintenance concerns, obtaining quotations and placing the ultimate decision before owners at a general meeting. It says that so far, it has received 20 votes in favour of removing the palm trees and 2 votes against.
[22] The committee denies it is controlled by the T family. It says the committee comprises 7 voting members and the T family hold 3 of these positions. It says committee decisions are determined by majority vote meaning that the T family can be outvoted by the remaining committee members. Furthermore, the committee says that while the T family own multiple lots in the scheme, they do not own the majority. Accordingly, all owners retain the ability to influence outcomes through voting at general meetings.
[23] Firstly, I will deal with the applicants' argument that the motion to remove the palm trees ought to have been put up as requiring a special resolution to pass.
[24] Section 159 of the Act provides for improvements to common property. Section 159(1) sets out that the regulation module applying to a community titles scheme may provide for making improvements to the common property, including making improvements for the benefit of the owner of a lot included in the scheme. Section 159(2) provides that the regulation module may include provisions about: (a) who may make improvements; (b) the circumstances under which the improvements may be made; and (c) the way the improvements may be made.
[25] Astonvilla is governed by the Accommodation Module. Section 176 of the Accommodation Module provides for improvements to common property by the body corporate and sets out the following:
176 Improvements to common property by body corporate
(1) The body corporate may make improvements to the common property if -
(a) the cost of the improvements, or, if the improvements together with associated improvements form a single project for improvement of the common property, the cost of the entire project, is not more than the basic improvements limit for the community titles scheme; or
(b) the improvements are authorised by ordinary resolution and the cost of the improvements, or, if the improvements together with associated improvements form a single project for improvement of the common property, the cost of the entire project, is within the ordinary resolution improvement range for the scheme; or
(c) the improvements are authorised by special resolution; or
(d) an adjudicator, under an order made under the dispute resolution provisions, decides the improvements are reasonably necessary for the health, safety or security of persons who use the common property and authorises the improvements.
(2) However, a body corporate may not pass more than 1 ordinary resolution mentioned in subsection (1)(b) in a financial year for the body corporate.
(3) For subsection (1), if a series of associated improvements forms a single project, the cost of any 1 of the improvements is taken to be more than the amount worked out under subsection (1) if the cost of the project, as a whole, is more than the amount.
basic improvements limit, for a community titles scheme, means an amount worked out by multiplying $300 by -
(a) for a principal scheme in a layered arrangement of community titles schemes - the number of layered lots for the scheme; or
(b) for another scheme - the number of lots included in the scheme.
ordinary resolution improvement range, for a community titles scheme, means an amount that is -
(a) more than the basic improvements limit for the scheme; and
(b) not more than the amount worked out by multiplying $2,000 by -
(i) for a principal scheme in a layered arrangement of community titles schemes - the number of layered lots for the scheme; or
(ii) for another scheme - the number of lots included in the scheme.
[26] As set out at paragraph [1] of this decision, Astonvilla has 57 lots in the scheme. Accordingly, the basic improvement limit for the scheme is $17,100 (300 x 57 = $17,100). The proposed works for the palm tree removal is quoted as $7,370, which is well within the basic improvement limit. Based on the materials currently before me, I am not yet satisfied that the motion to remove the palm trees requires a special resolution.
[27] Next, I will deal with the applicants' argument that motion is an unreasonable exercise of the committee's power in breach of its duty to act reasonably.
[28] Section 94(2) of the Act provides that a body corporate must act reasonably in carrying out its general functions, including making or not making a decision. Section 100 of the Act provides that a decision of the committee is a decision of the body corporate, and a committee must act reasonably in making a decision. Numerous judicial decisions have considered the test for reasonableness. The cases emphasise that what is reasonable is a question of fact for the decision-maker to determine, and what is required is a careful weighing up of all the relevant factors while not taking irrelevant factors into account.[5]
[29] The committee says it identified ongoing issues associated with the palm trees growing on common property and accordingly, it wanted the body corporate to vote on whether the trees should be removed. It denies it has acted unreasonably. The explanatory schedule to the motion proposing removal of the trees states that the palm trees in the complex are: (1) now at heights that require tree loppers to attend to tidy up; (2) continually dropping fronds, seeds and fruit that need to be cleaned up; and (3) only going to get taller and harder to maintain. It also notes the council considers palms in the same category as weeds and has no issue with their removal.
[30] The applicants say healthy trees should not be removed from scheme land and consider any proposal to do so to be unreasonable. However, I do not agree that a proposal or decision to remove a healthy tree is automatically unreasonable. There might be a variety of reasons why a decision is taken to remove a healthy tree (for example, the shade it is creating, maintenance issues or root damage to nearby structures). Based on the materials currently before me, I am not yet satisfied the committee have acted unreasonably in putting forward the motion proposing to remove the palm trees.[6] The reasons it has provided for putting forward the proposal are relevant factors to be considered and there is no evidence before me at this stage that the committee have proposed the motion based on irrelevant factors.
[31] Thirdly, I will address the applicants' argument that the committee is being controlled by the T family and is not acting in the best interests of the body corporate.
[32] Section 101B(2) of the Act sets out that each committee voting member is taken to have agreed to comply with the code of conduct in Schedule 1A of the Act. Schedule 1A includes a provision that a committee member must act in the best interests of the body corporate in performing their duties, unless it is unlawful to do so.[7] Section 101B(3) states that if a committee voting member breaches the code of conduct, the member may be removed from office in the way prescribed under the regulation.
[33] The applicants do not explicitly explain how individual members of the committee are purportedly not acting in the best interests of the body corporate. I understand the applicants consider that proposing the removal of healthy trees from the scheme land amounts to conduct which is not in the best interests of the body corporate. However, as I set out above, there may be a variety of reasons why it might be preferable to remove a healthy tree. From the materials before me, I am not yet persuaded that any committee members have failed to act in the best interests of the body corporate.
[34] The applicants say that written notice of a general meeting must be provided to all owners at least 21-days before the meeting is held. They say the scheme's 2026 AGM is scheduled to be held on 22 April and this means notice of the AGM should have been provided to all owners by no later than 1 April. However, the applicants say not every owner has received the AGM pack and notice. In addition, they say the scheme's secretary has failed to distribute the mandatory secret ballot papers and envelopes required for committee elections by secret ballot.
[35] The applicants say that despite sending a formal written request to both the committee secretary and the scheme's body corporate manager on 13 April 2026 explaining the procedural defects, the committee failed to confirm an adjournment of the AGM or provide the missing materials. The applicants say they were left with no recourse other than to file this application.
[36] In addition, the applicants say the body corporate previously passed an ordinary resolution to allow owners to attend general meetings electronically. They say the committee and body corporate manager are legally bound to give effect to that resolution and cannot unilaterally withdraw this option. However, they say electronic attendance instructions have been omitted from the AGM notice. The applicants say that in omitting this information the committee and body corporate manager have failed to provide an AGM notice which accurately reflects how owners may participate in the meeting.
[37] The applicants allege that given the committee is controlled by the T family, the refusal to allow electronic attendance appears to be a deliberate attempt to limit participation in the meeting and disenfranchise owners who are unable to attend the physical location.
[38] The committee says the AGM notice was issued on 26 March 2026 and the full AGM pack, including voting materials was: (a) emailed to all owners with a recorded email on the body corporate roll on 27 March 2026; and (b) posted the same day to all owners whose recorded preference is to receive correspondence via post. It says this satisfies the minimum 21-day notice period requirement.
[39] The committee says that as of 20 April, 22 votes have been received, demonstrating that owners have received the AGM material and are actively participating in the voting process. It says that notably, at least one owner identified by the applicants as not having received the AGM pack have submitted a vote.
[40] The committee says no owners, other than the applicants, have notified the committee or body corporate manager that they have not received the AGM notice of voting materials. It further notes that email addresses used to distribute the AGM papers are the same as those used for distributing levy notices. It says that no levies are outstanding which indicates that lot owners' email addresses are correct for the distribution of AGM materials.
[41] Firstly, I will address the applicants' argument that the body corporate has failed to provide written notice of the AGM to all owners at least 21-days before the meeting is scheduled to be held. The 21-day notice is a requirement set out at section 81 of the Accommodation Module. The committee says the AGM pack was sent out to all owners on 27 March 2026. This would satisfy the 21-day notice requirement.
[42] I note it is difficult for the applicants to prove a negative that owners have not received the notice however, the onus is on the applicants to establish their case.
[43] The applicants have provided a few emails from owners who had purportedly not yet received the AGM notice. However, from the submissions made by the body corporate, it seems many owners have received the AGM notice and have already cast their votes for the AGM (the committee says 22 votes have already been received).
[44] From the materials before me, it appears the applicant (and other owners) received their AGM pack and voting papers via email. I note one email from another owner the applicants were in contact with confirms they received their AGM notice on 27 March 2026, which is the date the committee say the notice was sent via email. On balance, I am satisfied - at this stage ‑- that the AGM notice was sent out to all owners either by post or email on 27 March 2026. While a few owners may not have received the notice, it does not seem they are unaware of the meeting and could have taken steps to request the AGM pack.
[45] At this stage, I do not consider there is enough evidence of non-compliance with the notice requirement to justify making an order to restrain the body corporate from proceeding with the AGM scheduled for 22 April 2026. However, if it transpires that multiple owners did not receive adequate notice of the meeting and this caused widespread prejudice to owners, I may make an order invalidating the AGM if that is appropriate in the circumstances.
[46] Next, I will address the applicants' argument that the committee secretary failed to provide the mandatory secret ballot papers and envelopes required for committee elections by secret ballot. The applicant says these were not provided and has included in their application statements from various owners which indicate those owners did not receive secret ballot papers either. On the other hand, the committee submits that the full AGM pack, including voting materials, were sent to all owners either via email or post.
[47] As I set out at paragraph [44] above, the applicants appear to have received their AGM pack and voting materials via email. However, it seems the applicants were also expecting to receive the AGM pack by post with the envelopes for the secret ballot. However, it is clear that not all owners were posted the materials, and it seems those that did not receive the pack by post were not provided with physical secret ballot papers or envelopes for the secret ballot.
[48] Notwithstanding the above, I note the AGM notice provides 3 options for voting in the secret ballot: (1) completing the secret ballot paper and posting it in the attached envelope to the returning officer; (2) completing the secret ballot paper and handing it to the returning officer at the meeting; or (3) placing a vote with the returning officer electronically. Accordingly, there is an option to cast a vote by secret ballot electronically.
[49] I note that only the vote on the election of ordinary committee members for the scheme is being conducted by secret ballot. At this stage, I do not consider the failure to provide physical secret ballot papers and envelopes to all owners would be a proper basis to stop the body corporate from proceeding with the AGM scheduled for 22 April.
[50] However, I want to note that I will consider this issue during my consideration of final orders in this dispute and I may determine it is appropriate to make orders in relation to any resolutions passed by secret ballot if I find there were procedural defects which warrant such orders being made.
[51] Finally, I will address the applicants' allegation that the committee is being controlled by the T family and that the refusal to allow electronic attendance appears to be a deliberate attempt to limit participation in the AGM and disenfranchise owners who are unable to attend the physical location.
[52] The applicants provide no evidence for this allegation. From the materials before me, it appears it is the body corporate manager who is wanting individual owners to make their own requests to attend the meeting electronically. It seems this option will require time and effort for the body corporate manager to set up and manage.[8]
[53] The applicants have provided an email train between themselves and the body corporate manager which discusses the option to attend the AGM electronically.[9] In this correspondence the body corporate manger indicates that owners may request to attend the meeting electronically and a "general meeting resolution" - which is required to authorise this[10] - "has been carried already".
[54] However, when the applicants requested the record of the minute to evidence the decision for electronic attendance, the body corporate manager advised the applicants they have access to all body corporate minutes via the owners' portal. Unfortunately, no evidence of the motion to approve electronic attendance was provided in the applicants' application.
[55] Based on the materials currently before me, I am unable to determine whether the body corporate have authorised electronic attendance for general meetings. Accordingly, at this stage, I do not consider the failure to provide a link and instructions on how to join the meeting electronically in the AGM notice is a proper basis to stop the body corporate from proceeding with the AGM scheduled for 22 April.
[56] However, as with the other issues dealt with under this heading, I will review this issue during my consideration of final orders for this dispute and I may make an order invalidating the AGM if it is established to be appropriate in the circumstances.
[57] For completeness, I note that in the decision of 7-9 Gibson Road Noosaville,[11] the adjudicator found that in the circumstances of that case, it was not unreasonable for the committee to have issued owners with details about how to join the meeting electronically less than 3 hours before the meeting was due to start.[12]
[58] If the body corporate has passed a motion to allow owners to attend general meetings electronically, I strongly encourage the body corprate to provide all owners with a link and instructions on how to join the AGM electronically as soon as possible before the meeting.
[59] At this preliminary stage, I am not satisfied that an interim order restraining the body corporate from proceeding with its 2026 AGM is warranted in the circumstances. However, the body corporate should note this does not mean I cannot void the meeting and/or specific motions if further material is brought to my attention which persuades me that final orders to that effect are appropriate.
[60] In terms of the specific motion about the removal of the palm trees, the applicants have not yet persuaded me that an interim order in this regard is warranted in the circumstances.
[2] For general principles see: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 and SDW2 Pty Ltd v JLF Corporation Pty Ltd & Ors [2017] QSC 1
[4] As per the quote provided with the AGM notice.
[5] Luadaka v Body Corporate for The Cover of Emerald Lakes [2013] QCATA 183 applying Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission [1997] FCA 1311; Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342
[6] I note I have some reservations about whether a committee must act reasonably in putting up a motion to a general meeting and whether this point is premature in the circumstances.
[8] Email from body corporate manager dated 3 March 2026.
[9] I note this is different from being able to cast a vote electronically.
[10] See section 89(2) of the Accommodation Module
[12] See paragraphs [75] to [78] of above decision.