REAL PROPERTY – STRATA AND RELATED TITLES – GENERAL MATTERS
– JURISDICTION AND POWERS OF COURTS AND TRIBUNALS –
where the
plaintiff body corporate previously commenced proceedings against the defendants
Source
Original judgment source is linked above.
Catchwords
REAL PROPERTY – STRATA AND RELATED TITLES – GENERAL MATTERS– JURISDICTION AND POWERS OF COURTS AND TRIBUNALS –where theplaintiff body corporate previously commenced proceedings against the defendantsfor damages for trespass and nuisance– where those proceedings wereresolved by the parties entering into a licence agreement and the proceedingswere discontinued– where the plaintiff has commenced new proceedings,alleging breach of the licence agreement and continuing trespass –whetherthe commencement of the proceedings has been authorised by special resolution asrequired by s 312(1)(b) of the Body Corporate and Community Management Act1997 – if not, whether the proceeding should be struck out, or stayedpending ratification of authorisationBody Corporate and CommunityManagement Act 1997 (Qld), ss 106, 227, 228, 238, 276, 243A, 276, 284, 312,schedule 5Body Corporate and Community Management (Accommodation Module)
Regulation 2020 (Qld), ss 78, 81
Uniform Civil Procedure Rules 1999
(Qld), rr 16, 171
Body Corporate for Aleutian at Seaforth v The
Lot Owners for Each of the Applicant Bodies Corporate [2009] QDC 52,
cited
Body Corporate for Quay Terraces CTS v Brisbane City Council
[2016] QPELR 363, cited
Burbank Australia Pty Ltd v Owners Corporation
PS 447493 [2015] VSC 160, cited
Griffiths as trustee for the Griffiths
HWL Practice Trust v Martinez as trustee for the Martinez HWL Practice Trust as
representative
of the partners trading as HWL Ebsworth Lawyers [2019] NSWSC
664, cited
McEvoy v The Body Corporate for No 9 Port Douglas Road
[2013] QCA 168, applied
Moreton Bay Regional Council v White
[2018] QLAC 4, cited
Myer Queenstown Garden Plaza Pty Ltd v Port
Adelaide City Corp (1975) 11 SASR 504, cited
Oceana on Broadbeach
Community Titles Scheme 24163 v Searle [2003] QCA 238, cited
St George
Bank Ltd v The Rangers Club of NSW Inc (1995) 18 ACSR 370, cited
Judgment (63 paragraphs)
[1]
REAL PROPERTY - STRATA AND RELATED TITLES - GENERAL MATTERS - JURISDICTION AND POWERS OF COURTS AND TRIBUNALS - where the plaintiff body corporate previously commenced proceedings against the defendants for damages for trespass and nuisance - where those proceedings were resolved by the parties entering into a licence agreement and the proceedings were discontinued - where the plaintiff has commenced new proceedings, alleging breach of the licence agreement and continuing trespass - whether the commencement of the proceedings has been authorised by special resolution as required by s 312(1)(b) of the Body Corporate and Community Management Act 1997 - if not, whether the proceeding should be struck out, or stayed pending ratification of authorisation
Body Corporate for Aleutian at Seaforth v The Lot Owners for Each of the Applicant Bodies Corporate[2009] QDC 52, cited
[6]
Body Corporate for Quay Terraces CTS v Brisbane City Council[2016] QPELR 363, cited
[7]
Burbank Australia Pty Ltd v Owners Corporation PS 447493[2015] VSC 160, cited
[8]
Griffiths as trustee for the Griffiths HWL Practice Trust v Martinez as trustee for the Martinez HWL Practice Trust as representative of the partners trading as HWL Ebsworth Lawyers[2019] NSWSC 664, cited
[9]
McEvoy v The Body Corporate for No 9 Port Douglas Road[2013] QCA 168, applied
[10]
Moreton Bay Regional Council v White[2018] QLAC 4, cited
[11]
Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide City Corp(1975) 11 SASR 504, cited
[12]
Oceana on Broadbeach Community Titles Scheme 24163 v Searle[2003] QCA 238, cited
[13]
St George Bank Ltd v The Rangers Club of NSW Inc(1995) 18 ACSR 370, cited
[14]
G P Handran KC and B W Wacker for the plaintiff (respondent)
[15]
Frigo James Legal Pty Ltd for the plaintiff (respondent)
[16]
[1] The plaintiff is the body corporate for a community titles scheme comprising 98 lots in a unit complex at Broadbeach. The first defendant owns the adjoining land and the second defendant is a building company which is responsible for building a 20 storey unit complex on that land.
[2] On 19 September 2024, the plaintiff commenced proceedings against the defendants, seeking damages for trespass and nuisance (proceeding 12520 of 2024). The claim was based on allegations that the defendants had removed a boundary fence, installed temporary fencing and removed vegetation, excavated and removed soil and exposed and damaged utilities on the plaintiff's land, and commenced and continued piling works. An interlocutory injunction was granted on 20 September 2024, preventing the defendants from continuing or conducting any construction work on the plaintiff's land. That dispute was later resolved by the parties entering into a licence agreement on 18 October 2024, and the proceedings were discontinued in December 2024.
[3] The plaintiff says that the defendants have breached the licence agreement in a number of ways, including by failing to rectify and restore damage caused by the conduct which was the subject of the earlier proceeding. The plaintiff has terminated the licence agreement and, by this proceeding, commenced on 13 March 2025, seeks an order permanently restraining the defendants from entering, trespassing upon or substantially interfering with the plaintiff's land, damages for breach of the licence agreement and for trespass. The defendants have also commenced proceedings in this Court, seeking relief under s 180 of the Property Law Act 1974 (Qld) (which contemplates an order for a statutory right of user).
[4] The defendants contend that the proceeding is incompetent, because it was not authorised by a special resolution of the body corporate, as required by s 312(1)(b) of the Body Corporate and Community Management Act 1997 (Qld) (). They have filed a conditional notice of intention to defend and, by application filed on 26 March 2025, seek an order that the proceeding be dismissed, pursuant to r 16 of the UCPR or, alternatively, struck out under r 171 UCPR. The plaintiff says the proceeding is authorised; or, if the court is not satisfied of that, the appropriate remedy is to stay the proceedings to enable a meeting of the body corporate to ratify it, not strike it out.
[17]
(1) This section applies if a motion is to be decided by special resolution at a general meeting of the body corporate for a community titles scheme.
[18]
(2) One vote only may be exercised for each lot included in the scheme, whether personally, by proxy or in writing.
[19]
(3) The motion is passed by special resolution only if -
[20]
(a) at least two-thirds of the votes cast are in favour of the motion; and
(b) the number of votes counted against the motion are not more than 25% of the number of lots included in the scheme; and
(c) the total of the contribution schedule lot entitlements for the lots for which votes are counted against the motion is not more than 25% of the total of the contribution schedule lot entitlements for all lots included in the scheme."
[21]
[7] The annual general meeting of the body corporate was held on 27 November 2024. One of the resolutions passed at that meeting (resolution 9) was recorded in the minutes in the following terms:
[22]
"9. Commencement of Court Proceedings for Developer Trespass Dispute - Motion by Ordinary Resolution
[23]
RESOLVED THAT in order to protect the interests of Oceana's land and Residents, Frigo James Legal Pty Ltd be engaged and instructed to prepare, file and prosecute an urgent application and claim before the Supreme Court of Queensland at Brisbane on behalf of the Body Corporate seeking urgent injunctive relief for orders (including damages) to cease the unlawful trespass and nuisance activities causing interference and damage presently occurring on the Body Corporate's land, as well as any other related necessary court relief and orders that may be required, as may be amended from time to time.
[24]
[8] This motion was put to the meeting in order to ratify the earlier proceeding (12520 of 2024) which had been commenced, urgently, without authorisation from the body corporate as a whole. The decision to commence the previous proceeding had been made by the committee of the body corporate on 18 September 2024, on the basis that it was necessary to act quickly to prevent further damage. At the same time, the committee resolved to convene an extraordinary general meeting at the earliest opportunity to seek retrospective approval from the body corporate for the commencement of the court proceedings in accordance with s 312(1)(b) of the BCCM Act. It appears words to that effect were included in the notice of the meeting.[3]
[9] After the present proceedings were served, the defendants' solicitor requested a copy of the special resolution authorising it. The solicitor for the plaintiff responded by providing a copy of resolution 9 and noting that there was an evident procedural irregularity in the description of resolution 9 as a "motion by ordinary resolution". However, having regard to the voting numbers, and the statutory requirement for a special resolution (s 106), it was said the resolution did pass by special resolution.
[10] The first question is whether resolution 9 was passed by "special resolution of the body corporate" (s 312(1)(b)).
[11] As the author of Horsley's Meetings observes:[4]
[25]
"There is no standard, universal definition of, nor requirement for, a 'special resolution' or an 'extraordinary resolution'. These forms of resolution are created by statute or rules, and their requirements need to be specified in a legislative document ..."
[26]
[12] The requirements for a special resolution, which are specified in s 106, concern the number of votes cast in favour, and against, the motion. It is not a requirement that the resolution be described as a "special" resolution.
[14] In Body Corporate for Aleutian at Seaforth v The Lot Owners for Each of the Applicant Bodies Corporate[2009] QDC 52, Dodds DCJ held that, although the actual voting numbers in favour of a motion met the requirement for a special resolution under s 106, because the legislative requirement for the voting paper to state that the motion required a special resolution was not complied with, the motion could not be said to have been passed by special resolution. In this case, as in the present, the minutes also recorded the motion as having passed by ordinary resolution (even though the voting numbers were sufficient for a special resolution). As his Honour said, at [28]:
[27]
"The apparent purpose of the regulations is so that owners may know prior to a motion coming before the meeting the voting required for the motion to pass or fail. That knowledge may have a bearing on what they may do, for instance, lobbying other owners, voting at the meeting."
[28]
[15] A similar conclusion - as to the mandatory requirement of a provision such as s 78 of the Regulation - was reached by Santow J in St George Bank Ltd v Rangers Club of NSW Inc(1995) 18 ACSR 370 at 382-383 and McDonald J in Burbank Australia Pty Ltd v Owners Corporation[2015] VSC 160 at [38]. It seems that in another case, failure to comply with this obligation may have been held to be a technical irregularity,[6] although in that case it seems the resolution was passed unanimously.
[16] In the circumstances, although there is a practical attraction to the argument that, if the resolution in fact is passed with voting numbers which meet the statutory description of a "special resolution", given the mandatory terms of s 78 of the Regulation, and the fact that it was not complied with, I find that resolution 9 was not passed by special resolution. For completeness, I note that if s 78 had been complied with, I would have found that the description in the minutes of the resolution as an "ordinary" resolution is a mere irregularity in the minutes, not affecting the substance of the resolution as passed.
[17] As discussed below, the body corporate applied to the commissioner for body corporate and community management, for referral of a dispute to an adjudicator, and obtained a declaration that motion 9 "is to take effect as carried by special resolution of the body corporate".
[18] It remains to consider whether it was within the power of the adjudicator to make that declaration, but on the assumption that it was, the next question is whether, by the words used, motion 9 can be taken to have authorised the present proceeding. The defendants say it cannot - and emphasise the words "a proceeding" and "the proceeding" in s 312. The plaintiff says it can, because motion 9 clearly contemplated "other related necessary court relief and orders that may be required". The plaintiff submits that, since the current proceeding is directly connected with the earlier proceeding, in terms of ongoing trespass and nuisance, including in breach of the licence agreement entered into to address the earlier dispute, it is aptly described as "other related necessary court relief and orders".
[29]
"1. I declare that Motion 9, which was carried at the annual general meeting of the body corporate on 27 November 2024 (AGM), with 30 votes in favour and 2 votes against, is to take effect as carried by special resolution of the body corporate.
[30]
2. I order that notwithstanding the notice requirement in s 81 of the [Regulation] the body corporate is authorised to convene an EGM on 2 April 2025 to consider a motion to ratify and/or retrospectively approve the decision of the body corporate to commence proceeding no. BS954/25 in the Supreme Court of Queensland at Brisbane as if that approval had been given prior to the commencement of that proceeding."
[31]
[23] The defendants submit that the adjudicator had no jurisdiction to make these orders and accordingly they are of no effect.
[24] Section 238(1)(a) of the BCCM Act provides for a person, including a body corporate, to make an application if the person "is a party to, and is directly concerned with, a dispute to which this chapter applies". For the purpose of chapter 6, "dispute" is defined in s 227, first, by s 227(1)(a) to (h) as a dispute between various people in relation to various things; and, second, by s 227(2), as follows:
[32]
"An application by a person mentioned in subsection 1(a) to (h) for a declaratory order about the operation of this Act is also a dispute even if there is no respondent or affected person for the application."[8]
[33]
[25] By force of s 7 of the Acts Interpretation Act 1954, the reference to "this Act" is a reference to the BCCM Act, as well as the Regulations made under it.
[26] The purpose of chapter 6 is set out in s 228. Section 228(1) provides:
[34]
"(1) This chapter establishes arrangements for resolving, in the context of community titles schemes, disputes about -
[35]
(a) contraventions of this Act or community management statements; and
(b) the exercise of rights or powers, or the performance of duties, under this Act or community management statements; and
(c) the adjustment of lot entitlement schedules; and
(d) matters arising under the engagement of persons as body corporate managers, the engagement of certain persons as service contractors, and the authorisation of persons as letting agents."[9]
[36]
[27] An adjudicator has a broad power to make orders. In this regard, s 276 relevantly provides:
[37]
(1) An adjudicator to whom the application is referred may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about -
[38]
(a) a claimed or anticipated contravention of this Act or the community management statement; or
(b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or
(c) a claimed or anticipated contractual matter about -
(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
(ii) the authorisation of a person as a letting agent for a community titles scheme.
[39]
(2) An order may require a person to act, or prohibit a person from acting, in a way stated in the order.
[40]
(3) Without limiting subsections (1) and (2), the adjudicator may make an order mentioned in schedule 5. ..."[10]
[41]
[28] The orders mentioned in schedule 5 include:
[42]
"9 An order declaring that a resolution purportedly passed at a meeting of the committee for the body corporate, or a general meeting of the body corporate, is a valid resolution of the meeting."
[43]
[29] An adjudicator also has power to make an order that their order takes effect as a resolution without dissent, special resolution, ordinary resolution or lot owner agreement (s 284(4)).
[30] The adjudicator was satisfied it was appropriate to make an order that motion 9 take effect as a special resolution, for the following reasons:
[44]
"[39] I am of the view that the misdescription of Motion 9, as requiring an ordinary resolution when in fact a special resolution was required pursuant to s 312(1)(b) of the BCCM Act, amounts to a mere procedural irregularity and/or technical deficiency which is not fatal to its validity. The irregularity is of insubstantial nature as Motion 9 did in fact pass, by reference to the requirements of s 106 of the BCCM Act, as is required for it to be carried by special resolution at the general meeting on 27 November 2024."
[45]
[31] The adjudicator considered there was no material prejudice, detriment or injustice to any of the lot owners, or any other person, by declaring motion 9 take effect as a special resolution, given that it had the votes required to amount to a special resolution and also noting the overwhelming number of votes in favour of it (at [40]). The adjudicator found that, on the other hand, it was likely the body corporate would suffer prejudice if the declaration were not made, and it was required to re-commence the proceedings (including additional costs, delays and a possible lost opportunity to consolidate this proceeding with the other proceeding(s) commenced by the defendants seeking access rights to the plaintiff's land) (at [41]).
[32] The adjudicator also made the order that the notice requirement in s 81 of the Regulation be dispensed with, and the body corporate be authorised to convene an EGM on 2 April 2025, to consider a motion to ratify and/or retrospectively approve the decision of the body corporate to commence this proceeding. The adjudicator was satisfied it was just and equitable in the circumstances to make such an order (s 276) having regard to the impending strike out application, that the body corporate wished to correct "any potential technical irregularity that might exist with respect to the commencement of its proceeding" and because the body corporate proposed to take steps to minimise risks associated with lot owners not having a proper opportunity to vote on the motion due to the shorter notice period by sending the notice by email/fax on the day of the adjudicator's order, where those details were available; or, where they were not, by hand delivering the notice to owner occupied lots and sending the notice by express post to other lot owners (at [50]-[53]).
[33] The body corporate convened an EGM to be held on 2 April 2025. The notice circulated to the lot owners for this meeting is in evidence. It clearly articulates the motions, the purpose of them, and that a special resolution is required (therefore complying with s 78 of the Regulation). At this meeting, the following motions in relation to the previous and current proceedings were passed, by special resolution:
[46]
"2. Ratification of commencement of legal proceedings against 21 Broadbeach Blvd Pty Ltd and GlenQ Pty Ltd for Trespass - Motion by Special Resolution
[47]
RESOLVED THAT by special resolution in accordance with section 312(1)(b) of the Body Corporate and Community Management Act 1997, that the Body Corporate ratifies and retrospectively authorises and approves the commencement of legal proceedings in the Supreme Court of Queensland at Brisbane (being proceeding BS12520/24 filed 19 September 2024) ("BS1250/24") as if the Body Corporate approval by the passing of this resolution had been given prior to the start of proceeding BS12520/24 and ratifies the engagement of Frigo James Legal Pty Ltd to act on behalf of the body corporate.
[48]
4. Ratification of commencement of legal proceedings against 21 Broadbeach Blvd Pty Ltd and GlenQ Pty Ltd for Trespass and Breach of Licence Agreement - Motion by Special Resolution
[49]
RESOLVED THAT by special resolution in accordance with section 312(1)(b) of the Body Corporate and Community Management Act 1997, that the Body Corporate ratifies and retrospectively authorises and approves the commencement of legal proceedings in the Supreme Court of Queensland at Brisbane (being proceeding BS954/25 filed 13 March 2025) ("BS954/25") as if the Body Corporate approval by the passing of this resolution had been given prior to the start of proceeding BS954/25 and ratifies the engagement of Frigo James Legal Pty Ltd to act on behalf of the body corporate.
[50]
[34] It may be observed that the number of votes in favour of these resolutions is higher than at the previous meeting, on 27 November 2024.
[35] The defendants submit the adjudicator lacked jurisdiction to make the decision and orders on 28 March 2025, and had no power to abridge the mandatory notice period for an EGM prescribed by the Regulation, because:
[51]
(a) the "emergency" was not of the kind contemplated by s 243A of the BCCM Act;
(b) there is no "dispute" within the meaning of s 227, such as to enliven the adjudicator's jurisdiction;
(c) the second order was not a declaratory order about the operation of the Act able to be made on an ex parte basis under s 227(2);
(d) section 81 of the Regulation prescribes a minimum period for a general meeting of 21 days, and there is no provision in the BCCM Act or Regulation empowering the abridgement or dispensing with that mandatory notice period; nor was the order within the terms of ss 227, 228 and 276; and
(e) even if the adjudicator had jurisdiction to make it, the adjudicator's first order was irrelevant because that resolution ratified the commencement of the previous proceedings only and did not authorise the commencement of this new proceeding.
[52]
[36] Section 243A gives an example of the "emergency circumstances" contemplated by the provision - a burst water pipe the repair or replacement cost of which exceeds the body corporate committee's expenditure limit. By reference to this example, but without deciding the point, Rackemann DCJ, in Body Corporate for Quay Terraces CTS v Brisbane City Council[2016] QPELR 363 expressed some doubt about whether an impending strike out application, on the basis of a lack of authorisation to commence a proceeding, qualified as an "emergency circumstance" for the purposes of s 243A. As explained by s 14D of the Acts Interpretation Act 1954, an example included in a legislative provision is not exhaustive; does not limit but may extend the meaning of the provision; and both the provision and the example must be read in the context of each other and the other provisions of the Act.
[37] The defendants' arguments as to a lack of jurisdiction were not flagged to the plaintiff prior to provision of the outline of argument on the morning of the hearing. Accordingly, the court has not had the benefit of detailed submissions on this issue - in particular, the operation of s 243A was not comprehensively addressed. In the circumstances, I am not prepared to conclude that it was not open to the commissioner to deal with this matter under s 243A. The relevant "affected person" to whom notice of the application would otherwise have been given, under s 243 of the BCCM Act, is the defendants. Given the history of the dispute between the plaintiff and the defendants, the resolution which had been passed at the 27 November 2024 meeting, and the impending strike out application - which, if successful in the terms proposed by the defendants would at the very least result in wasted cost and delay for the body corporate - I am not persuaded it was inappropriate for the commissioner to proceed under s 243A (although I acknowledge that, with the benefit of more detailed submissions, it may be that another court concludes that the emergency circumstances contemplated by the provision are more limited).
[53]
(a) although I would be prepared to find that motion 9 passed on 27 November 2024 was passed as a special resolution (having regard to the adjudicator's declaration to this effect), I do not accept that the words used were apt to authorise the commencement of the present proceeding;
(b) I do not consider the adjudicator had power to make an order which had the effect of waiving compliance with the notice requirement of s 81 of the Regulation, and so the motions passed by special resolution at the meeting on 2 April 2025 are ineffective; and
(c) therefore, the present proceeding has not (yet) been authorised in accordance with s 312(1)(b) of the BCCM Act.
[54]
[42] It is well established that the fact that proceedings have been commenced without authority does not render them a nullity. The lack of authority may be cured by subsequent ratification.[11] It is a procedural irregularity which is capable of being cured.
[43] The defendants emphasised the ex tempore decision of the Court of Appeal in Oceana on Broadbeach Community Titles Scheme 24163 v Searle[2003] QCA 238, as authority for the proposition that where a proceeding has been commenced without authorisation, it should be struck out or dismissed, rather than adjourned, unless there is a "pressing reason in the interests of justice demanding an alternative course".[12] However, the more recent decision of the Court of Appeal in McEvoy v The Body Corporate for No 9 Port Douglas Road[2013] QCA 168, which included a more detailed discussion of the authorities in relation to the effect of proceedings commenced without authority, and ratification, provides clear authority for the proposition that it is appropriate to adjourn, or stay the proceeding, to enable ratification, unless to do so would unfairly prejudice a third party. That is consistent with contemporary authorities in other jurisdictions in equivalent contexts.[13]
[44] In the present case, I am persuaded that it is appropriate to stay the proceeding for a time, to allow the necessary vote of the body corporate to be taken, following the requisite period of notice required under s 81 of the Regulation, to formally ratify the commencement of this proceeding.[14] That causes no prejudice to the defendants, who will not be required to file and serve a defence in the proceeding until the stay is lifted. I do not accept that the short delay in the progress of this proceeding causes any prejudice to the defendants. On the other hand, striking out the proceeding would cause prejudice to the plaintiff, at the very least, in terms of the costs of initiating a fresh proceeding. In circumstances where the conclusion of lack of authorisation is the result of compounding procedural and technical irregularities, or failures to comply with the mandatory terms of the legislation, yet there is every indication that there is strong support for the commencement and continuation of the present proceedings, it is appropriate in the circumstances for the proceeding to be stayed, not struck out.
[55]
[1] There is no definition of "proceeding" in the BCCM Act - but the word is defined in schedule 1 to the Acts Interpretation Act 1954 (Qld) to mean a legal or other action or proceeding.
[56]
[3] As this is recorded in the decision of the adjudicator made on 28 March 2025, at [9] and [31].
[57]
[4] A D Lang, Horsley's Meetings: Procedure, Law and Practice (7th ed, Lexis Nexis) at [11.5]
[58]
[5] The adjudicator's decision at [10] records that the "AGM notice misdescribed Motion 9 as being a 'motion by Ordinary Resolution'" (see also [35]).
[59]
[6] A decision of White DCJ in Stainlay & Anor v Body Corporate for No. 9 Port Douglas Road (unreported, District Court Appeal No. 177 of 2006), referred to in the adjudicator's decision at [37] and [38]. I have been unable to find a copy of this decision. It is not published on the Supreme Court Library's caselaw database, and was not otherwise able to be located by staff of the Supreme Court Library at my request. It may be held on the actual court file - but I observe that it is problematic to cite an unpublished decision that is not publicly available.
[60]
[7] See A D Lang, A D Lang, Horsley's Meetings: Procedure, Law and Practice, ibid, at [11.3], referring to Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide City Corp(1975) 11 SASR 504 at 520; see also Griffiths v Martinez[2019] NSWSC 664 at [495]- [499]; and Moreton Bay Regional Council v White[2018] QLAC 4 at [11] per Dalton J (as her Honour then was), with Members Cochrane and Stilgoe.
[61]
[11]McEvoy v The Body Corporate for No 9 Port Douglas Road[2013] QCA 168 at [28], [30] and [40] per Holmes JA (as her Honour then was), McMurdo P and Douglas J agreeing. Referred to with approval by the Full Court of the Federal Court in Thompson v Lane (Trustee)[2023] FCAFC 32; (2023) 410 ALR 439 at [152].
[13] See, for example, Ox Operations Pty Ltd v Land Mark Property Developments (Vic) Pty Ltd (In Liq)[2007] FCA 1221 at [2]; 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943[2014] NSWCA 409; (2014) 88 NSWLR 488 at [5], [51]-[52], [58], [61] and [106]; Maylord Equity Management Pty Ltd (as Trustee of the Batterham Retirement Fund) v Nauer[2017] NSWSC 634 at [50] and [56] per Ward CJ in Eq (as her Honour then was); Anglo Australian Resources NL v Bloom Financial Advice Pty Ltd[2019] WASC 480; and Black Hill Residents Group Incorp v Marist Youth Care Ltd[2020] NSWLEC 82 at [124], [154], [159]-[160].
Parties
Applicant/Plaintiff:
Body Corporate for Oceana on Broadbeach CTS 24163
Respondent/Defendant:
21 Broadbeach Blvd Pty Ltd [2025] QSC 68
Legislation Cited (5)
Corporate and Community Management Act 1997
Corporate and Community Management (Accommodation Module) Regulation 2020
Civil Procedure Rules 1999
Law Act 1974
Interpretation Act 1954
Cases Cited (3)
(1975) 11 SASR 504
(2023) 410 ALR 439
(2014) 88 NSWLR 488
BCCM Act
[5] Section 312(1)(b) of the BCCM Act provides, relevantly, that "the body corporate for a community titles scheme may start a proceeding[1] only if the proceeding is authorised by ... special resolution by the body corporate".
[6] "Special resolution" is defined in schedule 6 to the BCCM Act to mean a resolution under s 106. That section provides:
[19] The approach to interpretation of a resolution of this kind is similar to other documents, albeit adapted to recognise the relative informality and brevity of resolutions, in contrast with statutes, contracts and other legal documents. Context is relevant; but the focus remains on the actual words which have been used.[7] The court's consideration of this issue is limited by the absence, in the evidence, of the actual notice sent to the lot owners - as opposed to second hand references to it in the adjudicator's decision.
[20] The issue is finely balanced, but ultimately I conclude that the words used in resolution 9 are not apt to authorise the commencement of the present proceeding. The resolution is directed at a particular "urgent application and claim ... seeking urgent injunctive relief for orders ... to cease the unlawful trespass and nuisance activities causing interference and damage presently occurring". In context, although the words "retrospective" and "ratify" do not appear in the motion, it is clear that is what motion 9 was directed to - retrospectively ratifying the commencement of proceeding 12520 of 2024. As at 27 November 2024, the present proceeding was not in contemplation - the licence agreement had been entered into a month before, and it may be inferred things were going well at this time, since the earlier proceeding was discontinued in December 2024. On a plain reading of the words used, the reference to "any other related necessary court relief and orders" is a reference to court relief and orders related to that earlier proceeding. Whilst it is apparent that the factual foundations of the present proceeding are related (in the sense that the alleged breaches of the licence agreement include failure to rectify and repair damage previously caused, and which was the subject of the earlier proceeding), on balance I do not accept that the words used in resolution 9 are apt to extend to the commencement of a new proceeding.
[21] Although maintaining that it was authorised to bring the present proceeding, the committee of the body corporate tried to put this beyond doubt, prior to the hearing of the strike out application, by making an application to the commissioner for body corporate and community management, for an adjudication. The application was referred to a dispute resolution officer under s 243A of the BCCM Act (which provides for a referral to be made, without the giving of notice as mentioned in s 243, in emergency circumstances). The adjudicator's decision was made on 28 March 2025. The emergency circumstances relied upon were the filing of the strike out application on 26 March 2025, and the listing for it to be heard on 4 April 2025.
[22] The orders made by the adjudicator were:
[38] Putting that to one side, in my view the adjudicator did have jurisdiction to determine the application made, in so far as it concerns the first order, on the basis that it falls within the meaning of "dispute" in s 227(2) - as the body corporate applied for a declaratory order about the operation of the Act (including the Regulation). The order made by the adjudicator in respect of motion 9 is within the type of order contemplated by item 9 in schedule 5.
[39] However, again noting the limited submissions made to the court about the proper construction of the provisions (and therefore the possibility of a different conclusion being reached in a case where there are more fulsome submissions), for the purposes of deciding this application I am not persuaded that the application for the second order falls within s 227(2). It is difficult to see how an order dispensing with the notice requirement under s 81 of the Regulation is " a declaratory order about the operation of" the BCCM Act or Regulation. The language of s 81 is cast in mandatory terms - "a general meeting must be held at least 21 days after notice of the meeting is given to the owners of lots". There is no power otherwise conferred by the Act or Regulation to dispense with, or truncate, the period of notice required for a meeting. And the description of the orders able to be made by an adjudicator - as broad as they undoubtedly are - do not include dispensing with, or truncating, the period of notice. For example, item 6 of schedule 5, contemplates an adjudicator making an order requiring the body corporate to call a general meeting or to change the date of an annual general meeting - but does not go on to contemplate that the adjudicator could shorten the notice required.
[40] There is an understandable sense of frustration in such a conclusion, because it seems quite apparent that there is overwhelming support from the body corporate for the action taken against the defendants, both in September 2024 and now. However, that practical consideration cannot overshadow the operation of the legislation.
[41] It follows that:
[45] It remains to consider the costs of the application. The defendants submitted that, if a stay were granted, that would reflect their success on the application and costs should follow that event. I note, however, that the application sought orders striking out the proceedings, which will be refused. The plaintiff submitted that, if a stay were granted, costs should be reserved. The parties sought to be heard further about this, following delivery of judgment, and that will be done.