Aurum Sands [2025] QBCCMCmr 234 | Case summary

Aurum Sands [2025] QBCCMCmr 234 | Case summary | Zoe

[11]

[15] The applicant provides some background to the disputes about the motions purportedly passed by the body corporate at its December 2024 EGM and efforts to resolve those disputes. She says:
1. she is the owner occupier of a lot and joined the committee in March 2023 as the treasurer
2. the developer of the scheme (Macnaib) currently owns the majority of the lots in the scheme
3. the Majority Owner and his partner are not occupiers of the scheme, the Majority Owner has said the building is his investment and his business
4. for the past 2 years, the Majority Owner and his partner have attended committee meetings, inserted themselves into discussions, and attempt to control the narrative and decisions made by the committee. She says they are unwilling to reach amicable solutions with the committee and other owners
5. the caretaker for the scheme (TPD Pty Ltd) is operated by the daughter of the Majority Owner and she is not an occupier of the scheme, and
6. most of the communications between the Majority Owner, the committee, and other owners, are through the caretaker.
[16] Regarding the present dispute, the applicant says in August 2024, the Majority Owner claimed the by-laws were being breached and submitted two Form 1 notices for the committee's consideration. The committee discussed the notices and voted not to proceed. In October 2024, the applicant says she called the Majority Owner and his partner to discuss the impending December 2024 EGM and the motions submitted by the Majority Owner for body corporate consideration. The applicant says she and the committee tried separately to engage with the Majority Owner, and the caretaker, about the proposed motions.
[17] At the 2024 EGM, by voting in favour of the motions, the Majority Owner caused the body corporate to pass those motions. After the meeting, the applicant says the Majority Owner sought to call a new EGM with motions to terminate the committee and appoint an administrator.
[18] In this application, the applicant seeks final orders declaring each of resolutions 2-10 passed by the body corporate at the December 2024 EGM to be invalid and void. She says the grounds for invalidating each of the resolutions was included with the minutes of the meeting. In addition, she says the resolutions should be invalidated because the body corporate failed to act reasonably when it decided to pass each of the motions.

[12]

[19] The committee and the owners of 11 lots made submissions in support of the application.
[20] As background, the committee says:
1. it has been navigating difficult issues relating to budgets, caretaking and maintenance of the building. For example, the original sinking fund from when the scheme was established in 2022 was exhausted by the Majority Owner during the period it had responsibility for the budget and levy contributions. The Majority Owner then used his voting power to cause the body corporate to decide in February 2023 to strike a special levy to cover the sinking fund deficit
2. the Majority Owner attends every committee meeting and expresses strong opinions on which way the committee should vote, with middle ground difficult to find as the Majority Owner has advised the committee on multiple occasions that he will use the applicable processes to get his desired outcome
3. the Majority Owner has continually contested various items in favour of and to support the caretaker (his daughter), including proposals for additional building work at body corporate expense and the committee infers that the Majority Owner wishes to hold all decision-making power over the building in part to directly support the caretaker
4. the committee often votes against approving items raised by the caretaker, with motions on the same issue then proposed at general meetings at which the Majority Owner uses his vote to cause the body corporate to approve the request
5. the reverse is also true, for example, the committee resolved to have an independent defects report completed, but the decision was later overturned by the Majority Owner at a general meeting
6. minority owners often feel powerless and are concerned about the Aurum Sands budgets and the ongoing increase to the levies especially if this continues, and
7. immediately after the December 2024 EGM, the Majority Owner called for another EGM so the body corporate could consider motions that the current committee be terminated and a consultant/administrator be appointed.
[21] Regarding the motions and the December EGM, the committee says the EGM and the motions proposed by the Majority Owner were another attempt to achieve his desired outcomes. It decided it was necessary to seek legal advice about the motions. It says the minutes of the EGM include the reasons why the chairperson ruled each of the motions out of order. The committee supports and adopts those reasons as grounds for invalidating the resolutions. It says the applicant is also the treasurer and has a good understanding of the issues. The committee supports the application.
[22] Some of the owners of the other 11 lots made submissions that were almost identical to the committee's submission. Others say variously that they have concerns about: decisions being effectively made by the Majority Owner because he has voting control, the cost implications and potential for increased levies, the conflict of interest due to the Majority Owner's familial relationship with the caretaker, and the services from the caretaker who concurrently manages the Majority Owner's 16 lots. One owner suggests keys to access the staircase have been changed without consultation.
[23] The 11 owners making submissions say they support the committee which comprises of minority owners, support it seeking legal advice, and that all the minority owners voted against the motions in dispute. Many of the minority owners say they do not want an administrator to replace the committee.
[24] At least one owner says the Majority Owner made no effort to explain the motions he proposed at the December 2024 EGM, the consequences of those motions, or whether the Majority Owner had any business connections or associations with companies mentioned in the motions. Some say they do not think the motions and resolutions are genuinely in the interests of all owners but are proposed by the Majority Owner for his own interests.

[19]

[30] The body corporate is charged with administering, managing, and controlling the common property and body corporate assets for the benefit of the owners of the lots included in the scheme, enforcing the CMS (including by-laws), and carrying out other statutory functions.[8]
[31] To fulfil these functions, the body corporate must make decisions. Those decisions can be made by its committee or by members of the body corporate voting at a general meeting.
[32] When the committee is making decisions, the committee and each of its voting members is acting as a representative of the body corporate. In that capacity, like the board of a directors of a company, the committee and its members are viewed as having general duties to act in good faith and in the interests of the body corporate.[9] Some of these duties are specifically expressed in the legislation.[10] For example, the legislation expressly includes provisions relating to conflicts of interest for committee members. Those provisions require committee members to disclose direct and indirect interests that could conflict with the member's duties about the consideration of an issue.[11] The provisions also state that voting committee members are not entitled to vote on motions involving the conflicted issue.[12]
[33] In addition, both the committee and the body corporate have a statutory duty to act reasonably in making decisions.[13] The duty to act reasonably is imposed on the body making the decision, either the committee or the body corporate. To act reasonably, the decision maker must take into account competing concerns. While this does not necessarily mean the body corporate must be even handed, "[i]t is not a simple case of majority rule: the attitude of the majority of other residents is relevant but not decisive."[14]
[34] To act reasonably, the decision maker must evaluate factors that are relevant in the particular circumstances and have a bearing on the motion being considered.[15] The specific factors to be considered will vary depending on the context. The decision maker must also ignore factors that are not relevant. And, after considering the relevant factors, the decision maker must arrive at a legally reasonable decision.
[35] In contrast, the legislation does not require individual lot owners to act reasonably and consider competing interests when voting on motions at general meetings.[16] This means that, subject to some limited exceptions, individuals acting in the capacity as, or on behalf of, lot owners are permitted to propose motions and vote in their own self-interest at general meetings.[17]
[36] Summarising the above, a body corporate must:
1. make decisions to carry out its statutory functions for the benefit of the owners of the lots included in the scheme[18]
2. comply with the procedural and substantive aspects of the legislation, including by acting reasonably when making decisions,[19] and
3. not make a legally unreasonable decision.[20]
[37] This means that, when a resolution passed at a general meeting is challenged, the inquiry is not whether individual owners voted in their own self-interest but whether the body corporate (as a collective) went beyond its functions, failed to act reasonably in making the decision, or made a legally unreasonable decision.[21]

[27]

[48] The minutes from the EGM show that the chairperson ruled the motion out of order on the grounds that the body corporate had a legislative responsibility to keep proper accounting records and also that the caretaking agreement required the caretaker to provide the body corporate with a tax invoice in exchange for any payment of GST. The Majority Owner voted to reverse the ruling and the motion then proceeded to a vote. By voting in favour of the motion, the Majority Owner caused the body corporate to pass Motion 3 with 16 votes to 15 against.
[49] The applicant says the motion was unlawful and, alternatively, to the extent it was a lawful motion, the body corporate acted unreasonably in deciding to pass the motion. I infer this is because, as stated in the application for interim orders, the applicant considers an autopayment means the body corporate loses the ability to make decisions about whether to authorise the caretaker's monthly remuneration payments.
[50] In response, the Majority Owner says the caretaker receives a fixed monthly remuneration pursuant to the caretaker's agreement. He says this aspect of the contract is not discretionary, implying these amounts are pre-authorised and that the body corporate will thus not lose any ability to authorise the payment if it is automated.
[51] The Majority Owner also says in the event of a default by the caretaker, it would be entitled to the payment until determined otherwise. He says historically the caretaker has not been paid on time which is why the motion was proposed. He submits that the caretaking agreement is a valid contractual undertaking of the body corporate and management of the contract, and its associated obligations, is a legitimate subject matter for the body corporate's consideration. He says further that the autopayment is not unreasonable as it relates only to the payment methodology and is not inconsistent with the caretaking agreement. Moreover, he says the caretaker can still provide a tax invoice for the fixed remuneration to satisfy the agreement. His view is that the GST clause in the caretaker agreement relates only to recovery of additional amounts of GST and does not make payment of GST exclusive amounts conditional on provision of a tax invoice.
[52] The caretaker says there have been multiple instances where payments owed to it were delayed due to insufficient funds or delays in approvals. The caretaker made a request to the committee that payments were made on time to support the financial operation of the caretaking business. It was not intended that payment would be made without invoices and the caretaker's representative says she proposed an amendment to Motion 3 at the EGM, which was refused, to confirm invoices would be submitted.

[31]

[57] The minutes from the EGM show that the chairperson ruled the motion out of order on the basis that it conflicts with section 130 of the Act because the original owner period had not yet ended and, therefore, a review could not occur pursuant to section 130. The minutes show that the 7 of the 8 owners in attendance voted to uphold the chairperson's ruling which meant that Motion 4 did not proceed to a vote. I understand no votes were accepted from the Majority Owner on the question of whether to reverse the chairperson's ruling.
[58] The applicant says Motion 4 was unlawful for the reasons stated by the chairperson and, alternatively, to the extent it was a lawful motion, she says the body corporate acted unreasonably in deciding to pass the motion.
[59] In response, the Majority Owner says the caretaker has previously advised the current remuneration is not in accord with the amount of work currently undertaken. He says 2 quotes for an independent review of the caretaker's remuneration were obtained at the suggestion of the BCM. In his view, it is in the interests of the body corporate to have the caretaker's remuneration assessed to mitigate disputes and ensure the caretaker duties are performed as intended. As such, he says one of those quotes should be accepted.
[60] The Majority Owner says section 130 of the Act, which provides for body corporate review of certain service contracts, is anachronistic and does not contemplate situations in which the original owner retains ownership of the majority of lots for an indefinite period. Moreover, he says section 130 of the Act does not prevent the body corporate and service contractor agreeing to a review the terms of a service contract. Even if the part of Motion 4 that references section 130 is ineffective, he says the second limb of the motion can be supported.
[61] The caretaker's representative says the remuneration under the agreement is generalised, not specific to the site, and was priced during Covid. She says she has been performing the caretaker duties at a loss since inception. She says concerns were first raised about the adequacy of the caretaking remuneration in November 2023. At that time, the committee did not object to a review of the arrangement and the BCM recommended a time and motion study by an independent contractor. Two quotes were obtained. After the EGM, the committee said it was not opposed to the study but it could not proceed with it due to this pending application.

[32]

[62] By its terms, section 130 of the Act applies to service contracts entered into after the section came into effect and the original owner control period has ended.[27] Requests to review such contracts must proceed in accordance with the terms of the section. The definition of "original owner control period" is found in schedule 6 of the Act and includes the period in which the original owner has an interest in the majority of lots in the scheme.
[63] For Motion 4, I am satisfied the scheme is still within the original owner control period. Macnaib is the original owner and continues to own 16 of the 31 lots in the scheme.[28] Therefore, by its terms, section 130 of the Act does not apply to the body corporate's review of its contract with the caretaker.
[64] Although this renders the first part of Motion 4 invalid, in my view, there is nothing in section 130 of the Act precluding a body corporate from otherwise reviewing contracts that are not covered by the section. In other words, I consider that the body corporate can still decide to review the terms of its contract with the caretaker.
[65] However, there is another section of the Act that is relevant to a review of the caretaker's contract in the circumstances presented. Section 135(1) of the Act provides that a member of a body corporate cannot vote "on a motion about a review of a service contract or existing service contract for which the member is the service contractor or an associate of the service contractor" (emphasis added). I consider section 135 applies generally to voting on motions about a body corporate review of any service contract, not just to reviews of service contracts pursuant to section 130 of the Act.
[66] For the purposes of the Act, a person is associated with someone else if they have a relationship of the type described in section 309(2) of the Act or they have a relationship with someone through a series of such relationships. Applying section 309, in my view, Macnaib and the caretaker through their respective directors who are parent and child, are associates for the purpose of section 135 of the Act. Accordingly, I am satisfied that the Majority Owner was not entitled to vote on Motion 4 about the review of the caretaker's service contract.
[67] At the 2024 EGM, Motion 4 was ruled out of order by the chairperson on the grounds it was in conflict with section 130 of the Act. Members of the body corporate were given an opportunity to reverse the ruling. The body corporate decided not to reverse the ruling, with 7 of the 8 owners in attendance voting against the reversal and the votes of the Majority Owner not accepted. I infer this was on the basis of the familial relationship between the Majority Owner and the director of the caretaker. I am satisfied owners entitled to vote on the motion supported the decision to rule the motion out of order.
[68] Regardless of whether it was correct to rule the entire motion out of order on the basis of its first sentence or not, ultimately, the body corporate has not made a decision about Motion 4. Where the body corporate did not, in fact, make a resolution for Motion 4, there is nothing for me to invalidate. I will make a declaration to that effect.
[69] I note that I consider the body corporate is at liberty to consider a new motion about reviewing the caretaker's remuneration.

[41]

[79] The minutes from the EGM show that the chairperson ruled the motion out of order on the grounds that: 1) the caretaker's duties are contained in the agreement with the caretaker, 2) the motion purported to restrict the committee from taking steps to fulfil their statutory duties, and 3) it purported to require the body corporate to delegate its powers to the caretaker in contravention of section 97 of the Act. The Majority Owner voted to reverse the chairperson's ruling and the motion then proceeded to a vote. By voting in favour of the motion, the Majority Owner caused the body corporate to pass Motion 6 with 16 votes to 15 against.
[80] The applicant says the motion was unlawful for the reasons stated by the chairperson and, alternatively, to the extent it was a lawful motion, she says the body corporate acted unreasonably in deciding to pass the motion.
[81] In response, by way of background to the motion, the Majority Owner says by allowing members of the body corporate and members of the committee to facilitate the engagement of and supervise contractors rather than leaving that function to the caretaker has resulted in sub-par results and disruption to occupiers. As examples, the Majority Owner points to the repairs of a damaged bollard and line marking works. The Majority Owner also says the motion and resolution are consistent with and do not conflict or exceed the scope of duties contemplated in the caretaker's agreement and it does not purport to impose limitations on the body corporate or committee. He contends that, properly read, the motion proposes only that, where the caretaker agreement requires the caretaker to perform certain functions, the caretaker should be the only entity to undertake those functions. He suggests this is necessary so that the agreement is not frustrated and so that the caretaker can properly perform its obligations without interference. Finally, he says the motion does not amount to a delegation of powers by the body corporate.

[42]

[82] Firstly, I do not agree with the Majority Owner that Motion 6 is consistent with and does not exceed the scope of the caretaker agreement. The caretaker's duties regarding common property are described in Clause 2.1 of the caretaker agreement. Clause 2.1(a) provides that the caretaker shall attend to certain cleaning and maintenance duties, as "reasonably required." Those duties include minor repairs and maintenance not requiring skilled tradespersons, and to arrange quotes "at the request of the Committee" for more specialised works. I consider this means the duties reasonably required by the body corporate. By implication, this means the body corporate can decide not to require the caretaker to complete such duties. And, where more specialised works are concerned, the committee may decide not to ask the caretaker to arrange quotes. Moreover, Clause 2.1(c) provides that, "where requested by the Body Corporate", the caretaker may arrange and supervise contracts to be entered into by the body corporate for work to the common property of a specialist nature. In my view, this means the body corporate retains the discretion to decide to self-arrange and supervise contracts for specialist works.
- [83] Motion 6 is worded in absolute terms. That is, it purports to require the body corporate to have the caretaker undertake the engagement of "all" contractors for body corporate works at the scheme and to give the caretaker sole responsibility for all administrative and management aspects of those engagements, including instructions, facilitation, and supervision of such contractors. The motion also purports to capture and take into account any future amendments to the caretaker agreement, which are currently unknown. In addition, it purports to preclude the body corporate from providing alternate instructions to contractors or arranging maintenance "of any nature" except in accordance with the caretaker agreement.
- [84] In my opinion, by its wording in absolute terms that the caretaker undertakes all contractor engagement and related functions, Motion 6 removes the body corporate's discretion - which is preserved in the caretaker agreement - to decide whether to ask the caretaker or another party to arrange quotes and supervise contracts.
- [85] I also reject the Majority Owner's position that Motion 6 does not conflict with the legislation. In my opinion, at a minimum, the motion conflicts with the legislation by purporting to vest in the caretaker the responsibility for "all" contractor engagements. I consider Motion 6 thereby proposes to completely remove the body corporate's discretion to instruct contractors or arrange maintenance of "any nature" at the scheme. In my view, the motion is thus in conflict with the secondary purposes of the Act. Further, by proposing that all contractor engagements and related administration be undertaken by the caretaker, the motion also arguably rises to the level of a delegation of the body corporate's power prohibited by section 97 of the Act.[30]
- [86] Even if the motion itself was not in conflict with the Act and is not an improper delegation of power, in my view, the body corporate did not act reasonably when deciding to pass the motion. Although the Majority Owner has advanced several cogent reasons for preferring that the caretaker be the one to engage and supervise all works to common property, the body corporate failed to consider several other relevant factors. For example, it failed to consider that in some circumstances, it may be more appropriate or economical for the body corporate to have a person other than the caretaker (including its own committee or a specialist project manager) seek a quote or facilitate or supervise works to common property.
- [87] I have made an order that Motion 6 was invalid, the body corporate did not act reasonably when it decided to pass the motion, and the body corporate's resolution was at all times void.

[46]

[89] The minutes from the EGM show that the chairperson ruled the motion out of order on the basis that the proposal was incomplete and too vague to be enforceable, it sought to prevent the committee from meeting its statutory duties, and it contravenes section 97 of the Act. The Majority Owner voted to reverse the chairperson's ruling, and the motion proceeded to a vote. By voting in favour of the motion, the Majority Owner then caused the body corporate to pass Motion 7 with 16 votes to 15 against.
[90] In the application for interim orders, the applicant stated Motion 7 proposes that the same consultant engaged by the original owner to supervise construction of the scheme now be engaged by the body corporate to conduct a defects assessment. The applicant says the proposed consultant cannot be impartial. In the application for final orders, the applicant also says generally that the motion was unlawful for the reasons stated by the chairperson and, alternatively, to the extent it was a lawful motion, she says the body corporate acted unreasonably in deciding to pass the motion.
[91] In response, the Majority Owner contends that this is not a motion that the caretaker engage the consultant for the body corporate but "requires the Caretaker to engage in its own right and at its own cost" to perform the caretaking duties. The Majority Owner also says:
1. the purpose of the motion is to facilitate the early detection of defects both to rectify them before they worsen and to identify them during the new building warranty period
2. the caretaker is in the best position to supervise and instruct the consultant
3. the body corporate had a statutory duty to include a defects motion on the agenda for the second AGM to establish a voluntary defect assessment plan but it did not do so
4. the only way to now identify and remedy defects is to engage the consultant, and
5. the building is reportedly in administration which makes it even more important that the defects assessment is properly managed and the opportunity to consider and identify defects is seized.
[92] The Majority Owner says Motion 7 does not prevent the committee from meeting its statutory duties, is not a contravention of section 97, and in the circumstances, the motion should be given effect.
[93] The caretaker says the body corporate is currently dealing with several significant building defects and warranty issues that require expert support. She says those issues include problems with access to air conditioning units, non-compliant fire doors, issues with the fire panel, a leak in the basement affecting the exhaust system, pump defects, and rust on the façade. She says the proposed consultant is familiar with the building and has background knowledge of many of the existing issues. The caretaker believes it would be in the best interests of the building to engage Rede Consulting. She understands that the committee has multiple unsuccessful attempts to engage another contractor to assist with the defects.

[47]

[94] In support of Motion 7, the notice for the 2024 EGM included what can loosely be described as a letter from the consulting firm addressed to the attention of the body corporate. The letter simply set forth a table with the different hourly rates (based on seniority) of its staff for "adhoc Project Management and Advisory services." The letter did not describe a scope of works, when works were to commence, which staff would be working on the project, the qualifications of the staff, estimated duration, or an estimate of the overall cost of the works. Although several pages of boilerplate conditions of engagement were also included, the schedule of services pages was entirely blank.
- [95] Firstly, given the letter was addressed to the body corporate, I reject any suggestion by the Majority Owner that Motion 7 proposed to authorise the caretaker to engage the consultant at its own expense.
- [96] Secondly, in my opinion, the proposal was impermissibly vague. For example, by failing to include even an approximation of the time to be spent on the defects assessment and report and therefore the estimated costs of the engagement, it could not be determined whether the cost would exceed the relevant limit for major spending by the body corporate and therefore require a second quote.[31] For this reason, I am thus satisfied the motion was invalid.
- [97] Even if the motion had been sufficiently detailed, the applicant suggests the body corporate failed to act reasonably by deciding to retain a consultant that was not sufficiently independent.
- [98] In my opinion, the proposed consultant's prior knowledge of the scheme and its construction and the independence and objectivity of the proposed consultant are certainly factors that were relevant in the circumstances. The body corporate was entitled to weigh those factors to reach its decision. However, simply because the proposed consultant was previously involved with the construction of the scheme is not sufficient standing alone for me to form a view on the balance of probabilities that the body corporate failed to act reasonably. As such, had the motion been valid, I would not be satisfied that the applicant had demonstrated that the body corporate failed to adequately consider these factors or made a legally unreasonable decision.
- [99] That said, even assuming the motion was valid, I am satisfied the body corporate did fail to consider another highly relevant factor, namely, the estimated cost of the proposed defects assessment. Where there was no such estimate provided in the motion or in the explanatory notes, and no way of calculating the proposed expenditure, I am satisfied the body corporate acted unreasonably by effectively endorsing a blank check approach to the defects assessment. For this reason, I am satisfied that the body corporate did not act reasonably in deciding to pass the motion.
- [100] For these reasons, I have made an order declaring that Motion 7 was invalid, the body corporate did not act reasonably in deciding to pass it, and the body corporate's resolution was at all times void.

[50]

[102] The minutes from the EGM show that the chairperson ruled the motion out of order on the basis that: 1) the caretaker's duties are contained in the caretaker agreement and the caretaker is not required to carry out additional duties not contained in that agreement, 2) the motion sought to prevent the committee from meeting its statutory duties, and 3) it contravened section 97 of the Act.
[103] The Majority Owner voted to reverse the chairperson's ruling, and the motion then proceeded to a vote. By voting in favour of the motion, the Majority Owner then caused the body corporate to pass Motion 8 with 16 votes to 15 against.
[104] The applicant says the motion was unlawful for the reasons stated by the chairperson and, alternatively, to the extent it was a lawful motion, she says the body corporate acted unreasonably in deciding to pass the motion.
[105] In response, the Majority Owner says the body corporate has not been keeping the caretaker informed and gives examples where this has caused issues at the scheme, including where the body corporate paid an invoice for repairs for an item that was under warranty, and organised line marking without coordinating with the caretaker or notifying occupiers. He says the body corporate has an obligation to keep the caretaker informed as to matters that fall within the caretaker agreement.
[106] The Majority Owner says Motion 8 was introduced to improve the lack of communication from the body corporate. In his view, this motion serves to affirm the materiality of the caretaker's duties. The Majority Owner contends that the wording of the motion does not exceed the boundaries of the caretaker agreement or require delegation by the body corporate of its functions. He says further that the caretaker will only communicate with the residents regarding the matters that are the subject of the caretaker agreement. For these reasons, he says the motion cannot be proposing that the caretaker act beyond its authorisation.
[107] The caretaker adds that the committee had previously preferred all communication to be through the chairperson. More recently, she says she was advised that the caretaker's report was removed from a committee meeting agenda, which she says limits relevant information being formally included. She also understands there are communication channels and forums for residents from which the caretaker and Majority Owner are excluded. In 2024, she says the chairperson at the time advised that an owners' newsletter would be circulated to all owners except for the Majority Owner. In her view, the means of communication proposed by the motion would be beneficial and would enhance transparency, improve clarity, and support more efficient and accountable day-to-day management of the scheme.

[58]

[121] Motion 10 proposed that the body corporate authorises termination of its agreement with its current BCM effective from the 11 November 2024 and agrees to pay the termination fees of $9,189.83 (excl. GST).
[122] The motion also proposed that the body corporate authorises entry into a new administration agreement with another BCM (New BCM):
1. pursuant to the terms of the proposed agreement
2. for an initial period of 1 Year
3. to commence on 1 December 2024
4. including a secretarial fee of $125.00 per lot p.a. (plus GST) for included services; and
5. that an executive member of the committee was authorised to sign the agreement.
[123] Motion 10 also proposed that the New BCM be authorised to open a bank account in the name of the body corporate. It also proposed the current BCM to take specified steps to facilitate the transition to the New BCM.
[124] Motion 10 was not ruled out of order at the 2024 EGM by the chairperson and it proceeded to a vote. The body corporate decided, with a vote of 16 in favour and 15 votes against, to resolve to pass the motion.
[125] The applicant says the other owners do not support the motion and the body corporate acted unreasonably when it decided to pass the motion. She says there is only one year left on the contract with current BCM. In addition, she says no appropriate procurement process has been conducted by the committee to determine the suitability of the proposed company.
[126] In response, the Majority Owner says the role of a BCM is to assist the body corporate in complying with its administrative and financial responsibilities in accordance with the legislation. In his view, the body corporate has experienced some issues of concern with the current BCM including that the portal of records is not kept up to date, delays in holding the AGM, and issues with the scheme's budget.
[127] The Majority Owner says the current BCM has agreed to the termination of its engagement subject to the payment of the applicable termination fee. He rejects the applicant's claim that the body corporate has not followed an appropriate procurement process for the New BCM. The Majority Owner points to the notice of the 2024 EGM which attached for owners' consideration the terms of the proposed contract with the New BCM, including the duties, length of engagement, costs and payment arrangements. The Majority Owner also notes that the cost of the proposed New BCM was below the relevant spending limit and did not require 2 quotes.
[128] The caretaker also made comments about Motion 10 and understands the committee's hesitation to change BCM was due to termination fees. She comments that, with the passage of time since the adjudication application was made, the termination fees will be reduced and changing BCM's may help resolve some of the operational issues raised.
[129] In commenting generally on the application, the current BCM is of the view that the owners of the 15 lots that are not owned by Macnaib act thoughtfully and responsibly, "engaging in dialogue and collective reflection, and have reached positions they believe to be in the best interest of the Body Corporate as a whole." The current BCM expresses concern that the decisions of those owners are overridden by the voting power of the Majority Owner. In the BCM's view, this is not compatible with the democratic principles and cooperative spirit on which a body corporate is intended to operate because it disregards the legitimate contributions of nearly half the ownership base. Further, that decisions must give genuine consideration to the voices of all members.

Aurum Sands [2025] QBCCMCmr 234 (7 July 2025)

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