Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module)

INTERIM ORDER - whether an interim order is warranted.

1. Until further or final order and otherwise for no longer than 1 year from the date of this order, the Body Corporate for Avalon Apartments is restrained from relying upon, as authorisation to spend body corporate funds, resolution 6 "Engagement of Hynes Legal" passed by a vote outside a committee meeting on or about 27 November 2024.
2. Until further or final order and otherwise for no longer than 1 year from the date of this order, the Body Corporate for Avalon Apartments is restrained from relying upon, as authorisation to spend body corporate funds, the unnumbered resolution "Hynes Legal - RESOLVED that the body corporate engage Hynes Legal to represent the body corporate and Secretary in any action that may be brought by the owner of Lot 1504" passed at a committee meeting on 29 August 2025.
3. The application for interim orders is otherwise dismissed.

• [1] The applicant, Nicholas Hortovanyi, is the owner of lot 1504 in Avalon Apartments CTS 36246, and the body corporate for that scheme is the named respondent.
• [2] The applicant is concerned that the body corporate's committee has unlawfully decided not to include on the agenda certain motions he submitted for the scheme's upcoming annual general meeting, scheduled for 20 October 2025 (AGM).
• [3] Separately, the applicant is concerned that 2 resolutions passed by the committee, on 29 August 2025 and 27 November 2024, to engage lawyers to represent the body corporate in disputes anticipated to be raised by the applicant, are invalid.
• [4] The applicant presently seeks interim orders about those matters, specifically:

1. Order that the body corporate not act on or give effect to its 29 August 2025 resolution to exclude motions submitted by Lot 1504, pending final orders.

2. Order that the AGM scheduled for 20 October 2025 be stayed until a compliant notice including all motions submitted by Lot 1504 is issued, and the AGM is rescheduled to be held no earlier than 21 days after such compliant notice is given. This interim order remains in effect until final orders are made or for 12 months, whichever occurs first.

3. Order that the body corporate not act on or incur costs under the 29 August 2025 resolution or the 27 November 2024 VOCM resolution to engage solicitors (Hynes Legal) pending final orders.

• [5] The applicant also seeks final orders about those same matters, which I will consider in due course.

• [6] I am satisfied that this dispute is within my jurisdiction to resolve and that the applicant has standing to bring the application.[1]
• [7] Avalon Apartments CTS 36246 is governed by the Body Corporate and Community Management Act 1997 (Qld) (Act) and, as specified in its community management statement, the Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module).
• [8] This decision was made 'on the papers', meaning that the application and submissions were made in writing and without oral submissions or evidence. All submissions have been read and considered and, where relevant to legal questions to be considered and factual matters in dispute, those submissions are referred to in my reasons, below.

• [9] An interim order is usually made in the form of a temporary restraining injunction - an order not to do something, pending a final determination of an application.
• [10] An adjudicator may make an interim order only if satisfied it is necessary due to the nature or urgency of the circumstances.[2] Accordingly, an applicant must satisfy the adjudicator that serious and irreparable harm would be caused without the interim order.
• [11] In deciding whether an interim order is warranted, adjudicators often adopt the approach taken by courts to considering interlocutory injunction applications.[3] The first issue is whether the applicant has made out a 'prima facie case' or raised a 'serious legal question', in the sense that if the evidence remains as it is there is some probability that the applicant will succeed at the final determination stage. The second issue is whether any inconvenience or injury which the applicant would be likely to suffer if an interim order were refused outweighs or is outweighed by any inconvenience or injury which the respondent would suffer if an interim order were granted. Those two issues of serious legal question and balance of convenience are parts of one ultimate question - whether an interim order is warranted - and therefore should not be addressed mechanically or in isolation from one another.[4]
• [12] The Commissioner may refer an interim order application for adjudication without the respondent and affected persons having an opportunity to make submissions on it.[5] In the circumstances, I decided to seek submissions from the Body Corporate's committee on the requested interim orders.

• [13] Requested interim orders 1 and 2 relate to the committee's decision not to include on the agenda certain motions the applicant submitted for the scheme's upcoming AGM. The minute for item 5 of the 29 August 2025 committee meeting records the committee's deliberations:

These motions were reviewed on receipt, noting some of them are a repeat of previous motions that have previously cost the body corporate to include on the agenda. It is felt that the majority of the submitted motions are just an opportunity for the owner to circulate propaganda to all the owners and that this owner is abusing the process. They are considered vexatious and, in some instances, vindictive.

The committee considered each and every one of the emails, on receipt of same, containing the proposed "motions" and determined that none of the "motions" is an actionable breach of any by laws or other body corporate protocols. However, the committee filtered out 6 of the motions (which could remotely be genuine motions for a body corporate to consider) to be included in the agenda.

• [14] The minute goes on to record that the committee resolved to include 6 of the applicant's submitted motions, and that is reflected in the agenda subsequently issued for the AGM on or about 12 September 2025.
• [15] The applicant submits:

¾ He submitted more than 50 motions for inclusion in the 2025 AGM agenda, including a motion to issue a Remedial Action Notice against the body corporate manager.

¾ Section 76(5)-(7) of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 requires that all such motions be included, subject only to narrow statutory exceptions.

¾ While the committee may need to vote to include its own resolutions on a general meeting agenda, this does not extend to lawfully submitted motions from an owner, which must be included as of right.

¾ The committee, secretary, and body corporate manager were made aware of these statutory obligations. Despite this, they deliberately excluded the majority of my motions and resolved to "filter" them. This conduct is ultra vires.

¾ In Circle on Cavill [2015] QBCCMCmr 409, the adjudicator confirmed that a committee cannot refuse to include an owner's motion, even if considered repetitive, vexatious, or improper. Only the chairperson at the meeting may rule a motion "out of order."

¾ Even for the few motions the committee included, the explanatory schedule is defective. Section 80(2) requires that the schedule state (a) the number assigned to the motion on the voting paper, (b) the explanatory note in the form I provided, and (c) my name. The issued schedule omits the motion numbers, preventing owners from matching notes to the motions being voted on.

¾ I will be prejudiced because my motions to remove and replace committee members, for fiscal fitness and other governance motions, cannot be considered before committee positions are filled uncontested at the AGM. The prejudice is compounded by the fact that my motions were also excluded at the prior EGM.

¾ This prejudice is immediate and irreparable: once the AGM proceeds on a defective notice, my governance rights as an owner cannot be retrospectively restored.

• [16] The committee on behalf of the body corporate submits, among other things:

¾ The committee remains fully cognisant of its obligation to act reasonably. Accordingly, upon receipt of the applicant's list of motions, these were circulated among committee members and given due consideration.

¾ While the majority of the motions were repetitive - having been previously submitted to owners on multiple occasions - the committee identified six motions that could reasonably be considered relevant to the body corporate. These six motions have been included in the current AGM agenda.

¾ Separately, the breach notices submitted by the applicant contained procedural errors rendering them invalid. Moreover, the substantive content of these notices was largely directed in a vindictive manner toward committee members and contractors. In response to his applications, the secretary formally advised the applicant that the matters would be referred to the committee for review. The body corporate notes that the applicant relies on Circle on Cavill [2015] to support his assertion that his motions must be included. However, that case turned on the fact that the owner's motions were excluded due to defamatory content. It did not establish any precedent for the inclusion of vexatious material, nor does the body corporate find any reference in that decision that would support such an interpretation.

¾ In the present matter, the applicant's motions extend well beyond defamation - although some are arguably defamatory - and include repeated allegations previously raised at AGMs, as well as content that could reasonably be described as discriminatory, offensive, and personally targeted. Several motions question the integrity of committee members and contain language that is discourteous, unreasonable, and disrespectful toward both the caretaker and the committee. For example:

Motion 29; "That the Body Corporate requests that Pei-Chun Chen provide written confirmation she is not (and has never been) a member of the Chinese Communist Party. If she confirms otherwise, she is to be removed from the committee.

Explanatory Schedule: This motion is expected to be ruled out of order on legal grounds, particularly due to likely inconsistency with anti-discrimination legislation. However, submitting this motion should not result in any penalty or liability for the proposer. It is put forward solely to reflect owner concerns about compatibility of decision-making with democratic governance values."

Motion 38: That a new by-law be proposed to restrict the number of Baby Boomers or older persons on the committee to no more than three at any one time.

Explanatory Schedule: The current committee makeup suggests a form of gerontocracy, with overrepresentation of Baby Boomers or older persons. This may amount to reverse discrimination against younger generations and fails to reflect the demographic diversity of owners and occupiers. Limiting the number of older members on the committee is intended to restore generational balance, improve responsiveness,

¾ Those example motions are variously racist, discriminatory and contrary to Federal Law.

¾ In the committee's view - an opinion shared by the overwhelming majority of owners, as evidenced by voting outcomes at previous AGMs - the applicant is misusing the motion process. The mechanism was established to facilitate genuine governance participation, not to advance repetitive, inappropriate, or improperly framed proposals. What the applicant seeks to present cannot reasonably be described as motions in any conventional or statutory sense.

¾ The applicant's claim that he will be prejudiced by the continuation of the AGM in its current form is unfounded. The only consequence is that he will not be afforded an opportunity to disseminate material that the body corporate considers irrelevant or inappropriate - at the collective expense of all owners.

¾ The body corporate refers the Adjudicator to Surfers Beachside [2013] QBCCMCmr 121, in which the Adjudicator confirmed that a body corporate may omit proposed motions that bear no relevance to its functions or operations.

¾ It is incorrect for the applicant to suggest that issuing a stop order on the AGM and reissuing notices would involve minimal inconvenience or cost to the body corporate. This assertion disregards the significant administrative and financial burden incurred in 2024, when fewer motions were submitted than those currently proposed.

¾ The committee takes its fiduciary responsibility seriously, particularly in relation to cost management. Reissuing AGM notices and notifying all owners would represent a substantial and unnecessary waste of time and resources. Moreover, under the legislation, a general meeting must be held within three months of the financial year end - 31 October in this case - and any delay would compromise the body corporate's ability to issue levy notices with the certainty of owner approval.

¾ Should the Commissioner determine that the applicant's motions must be considered, the body corporate submits that convening a separate extraordinary general meeting (EGM) would be a more appropriate and proportionate response. While this would still be costly and disruptive, it is preferable to aborting the properly convened AGM.

¾ The application is misconceived and entirely without merit. There is no justification for issuing a stay order on the AGM simply because the applicant's full suite of motions has not been included. The application lacks urgency, and no material prejudice will be suffered by the applicant if the AGM proceeds with only six of his motions listed.

¾ In Circle on Cavill [2015], the Adjudicator declined to issue a stay order on an AGM that had been properly convened. Instead, the Adjudicator directed that a subsequent meeting be held to consider any omitted motions, noting that no harm would result from such a short delay. The body corporate submits that the same principle applies in this case: no harm will be caused to the applicant by proceeding with the AGM as scheduled.

• [17] The applicant is correct that section 76 of the Accommodation Module in effect requires a committee to include properly-submitted motions on the next available general meeting agenda, with limited exceptions which do not apply in this case. I agree with the respondent that there is authority for the view that the mere submission of a purported motion for inclusion on an agenda is not enough to require its inclusion, for example if the purported motion could not be properly characterised as a motion.[6] However, the authorities are also with the applicant to the extent that a committee's discretion to exclude a purported motion is quite limited.[7] While a meeting chair may (and must) rule a motion out of order at the meeting if the motion would conflict with the Act, the regulation module or the by-laws, or a motion already voted on at the meeting, or be unlawful or unenforceable for another reason,[8] a committee is not empowered to in effect pre-emptively rule a motion out of order by excluding it from the agenda. While I acknowledge the committee's submission that a large number of seemingly pointless motions may unfairly add substantially to the cost of conducting a general meeting, that is not in itself a valid reason to exclude motions.
• [18] I do not propose at this stage to decide whether any of the excluded motions complied with the requirements for a motion such that they ought to have been included on the agenda, as I do not propose to make an order halting the AGM and requiring it to be run at a later date with a revised agenda. That is because I agree with the respondent that the preferable approach is to allow the AGM to proceed, as proposed, and to consider at the final determination stage whether to order an extraordinary general meeting to be called to consider some or all of the applicant's excluded motions. As to the harm to the applicant if the AGM proceeds as-is, the applicant says:

I will be prejudiced because my motions to remove and replace committee members, for fiscal fitness and other governance motions, cannot be considered before committee positions are filled uncontested at the AGM. The prejudice is compounded by the fact that my motions were also excluded at the prior EGM.

• [19] I do not accept that argument. Even if the applicant succeeded in having current committee members removed from office through his motion at the AGM, they would be entitled to be re-elected by ballot at the same AGM, and that could be effected after their removal because the committee election must be the last agenda item.[9] Otherwise, if they did not stand for re-election, or failed to be re-elected in the course of the usual ballot, there would be no point in voting to remove them on their last day of office - certainly, the applicant is not entitled to have them voted out of office just to vindicate his views on their performance. The applicant does not identify which other excluded motions cannot reasonably wait until a later EGM (if indeed I so order).
• [20] At the final determination stage I will likely address the question whether I ought to make an order compelling a general meeting to be called to consider some or all of the excluded motions, on the basis they were wrongly excluded. I do not propose to take that issue further at this stage, but I put the applicant on notice that he should be prepared to justify the inclusion of the excluded motions, at least the more controversial ones such as proposed motions 29 and 38, with reference to their real substance and not just their form. I will not make such an order if it would ultimately be futile, inappropriate or unjust. I am also open to deciding that it is vexatious or frivolous to apply for an adjudicator's order to include vexatious, frivolous or pointless motions on a meeting agenda.

• [21] Requested interim order 3 concerns committee motions to engage solicitors.
• [22] The 27 November 2024 resolution, by vote outside a committee meeting (VOCM), passed unanimously with 5 votes, was:

THAT the Body Corporate approve to engage Hynes Legal to defend the Body Corporate in any action resulting from Nicholas Hortovanyi's refusal to accept the decision of the Committee on the above Motions 4 and 5. Cost to be drawn from the Body Corporate Administration Fund.

• [23] The 29 August 2025 committee meeting resolution, passed unanimously with 7 votes, was:

Hynes Legal - RESOLVED that the body corporate engage Hynes Legal to represent the body corporate and Secretary in any action that may be brought by the owner of Lot 1504.

• [24] I will refer to these 2 resolutions as the legal representation resolutions.
• [25] The applicant notes that the application in relation to the 27 November 2024 resolution is made more than 3 months after that date and therefore is potentially out of the time limit imposed by section 242 of the Act. The applicant submits in that regard:

I lodged Conciliation Application No.1175-2024 concerning the same dispute within the s 242(2) period; accordingly, s 242(3) deems compliance with the time limit.

In the alternative, if the adjudicator considers any aspect technically out of time, I seek a waiver under s 242(4)(b) for good reason, given: (i) continuous pursuit through conciliation and correspondence, (ii) ongoing and compounding prejudice if relief is delayed, and (iii) prompt action once the current AGM defects became known.

• [26] Conciliation application 1175-2024 was lodged on 2 December 2024 and among other things sought an outcome about the 27 November 2024 resolution. Accordingly I am satisfied this adjudication application is deemed to be made within time, by reason of section 242(3) of the Act.
• [27] The applicant submits in relation to the legal representation resolutions, among other things:

This resolution was not rational or reasonable: no adjudication or proceeding had been filed, no costs agreement was in place, and no budget authority was identified.

The resolution was ultra vires and exposes owners, including me, to legal costs without proper authority.

Prejudice is financial: owners, including me, are exposed to unnecessary legal costs in anticipation of disputes that do not exist. This prejudice is aggravated by the committee's exclusion of my motions, which would have allowed proper scrutiny and restraint of such spending.

The prejudice is continuing: legal costs may be incurred at any time under these invalid resolutions, exposing owners to financial loss that cannot be remedied by later orders.

• [28] The respondent submits in relation to the legal representation resolutions:

We note that the motion was duly considered and passed at a properly convened committee meeting in accordance with the requirements of the Body Corporate and Community Management Act 1997 (BCCM Act) and the applicable regulation module.

Under the legislation, the committee is empowered to make decisions on behalf of the body corporate, including the engagement of legal representation where it considers such action necessary to protect the interests of the body corporate and its office bearers. This resolution was passed in response to the motions/breach notices submitted by the owner of Lot 1504 and reflects the committee's duty to act prudently and in accordance with its obligations.

• [29] I do not agree with the applicant that the legal representation resolutions are defective insofar as they relate to hypothetical future proceedings or are not preceded by a costs agreement; presumably the body corporate will have no cause to incur costs until the applicant instigates such action, and the costs agreement can be made at that time. I also do not agree that legal or any other type of spending must have been be specifically accounted for in an annual budget or be identified as corresponding to a particular budget line item.
• [30] I do agree with the applicant that a resolution authorising a body corporate to spend money, to be effective, necessarily must specify the amount of proposed expenditure, or at least an upper limit, including because the proposed amount determines whether and how a committee or a body corporate can be empowered to authorised the expenditure.[10] That is so even in circumstances where it may be difficult to anticipate the eventual expenditure at the time the spending decision is made, as is often the case when executing an agreement to acquire legal services - in such a case it may be appropriate to proceed by legal costs estimates and approvals for discrete stages.[11] The respondent's submission does not address this problem with the legal representation resolutions. At best the resolutions are effective to engage those lawyers on a provisional basis and to receive services at no cost. Therefore, I am satisfied that a prima facie case exists for requested interim order 3.
• [31] Of course, it is open to the committee or body corporate to separately pass proper spending resolutions and to rely on any other properly passed resolutions. If it does so, or has done so, it should keep in mind that, depending on the circumstances, it may be a conflict of interest for a committee member to vote on a committee motion to authorise spending in defence of action against that committee member.[12] Further, such a decision may be a restricted issue for a committee insofar as it constitutes reimbursement or payment of a committee member's legal or other expense, and that is so even if the action arises from conduct in the course of the person's committee duties, therefore requiring such spending to be authorised by owners in general meeting.[13] It is perhaps unfortunate that committee members do not receive such assistance as of right, unlike parliamentarians.[14]
• [32] I am satisfied that the balance of convenience favours the applicant because, once spent, the money likely cannot be recovered. Accordingly, I am prepared to restrain the body corporate from relying on the legal representation resolutions as authorisation to spend money.
• [33] For completeness, I also note that a lot owner is not able to bring an action in this jurisdiction against a committee or a committee member, because that is not a recognised category of 'dispute' for the purposes of section 270(1) of the Act, and accordingly the owner would not have standing[15] and an adjudicator would not power to make an order.[16]

• [34] For the reasons above, I decline to restrain the body corporate from proceeding with the scheduled AGM, but I will restrain the body corporate from relying on the legal representation resolutions as purported authority to spend body corporate funds.
• [35] The application will now be returned to the Commissioner for further case management.
• [36] In the meantime the applicant should reconsider which motions he insist ought to be included on an EGM agenda, noting that he is at risk of a costs order if I decide the application is vexatious or frivolous.[17]

[1] See generally Act ss 227(1), 229(3)(a), 238(1)(b)

[3] For general principles see for eg Australian Broadcasting Corporation v O'Neill [2006] HCA 46 and SDW2 Pty Ltd v JLF Corporation Pty Ltd & Ors [2017] QSC 1

[4] SDW2 Pty Ltd v JLF Corporation Pty Ltd & Ors [2017] QSC 1 at [21]

[6] See for eg Shafston University Mansions [2017] QBCCMCmr 544; Avalon Apartments [2016] QBCCMCmr 183

[7] See for eg Bower Lodge [2013] QBCCMCmr 337 at [19]- [25]

[10] See generally Accommodation Module, Ch 7, Part 7

[11] See for eg Warren v Body Corporate for Buon Vista Community Titles Scheme 14325 (No 2) [2006] QDC 398 at [16]- [22]

[13] See Accommodation Module ss 44(1)(f) and 45; Pead v Chambers and Anor (No.2) [2021] QCATA 3 at [100]

[14] See for eg Parliamentary Business Resources Act 2017 (Cth), s 42