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

GENERAL MEETING MOTIONS - where an owner submitted a motion for a general meeting - where the body corporate did not include that motion on the agenda of the next general meeting - whether the body corporate breached its statutory obligations.

Act, ss 94, 100; Accommodation Module, s 76

1. The Body Corporate for Burleigh Surf contravened section 76 of the Accommodation Module and sections 94(2) and 100(5) of the Act by failing to include the motion submitted by the applicant on 27 February 2025 on the agenda of the annual general meeting of 5 June 2025.
2. The Body Corporate for Burleigh Surf must, as soon as practicable but no later than by close of business on 9 December 2025, give a copy of this order and the statement of reasons for the decision to all owners.
3. The application is otherwise dismissed.

• [1] This application is about the consideration of a motion submitted by the applicant.
• [2] The applicant is the caretaking service contractor for the body corporate. On 27 February 2025 the applicant (as owner of Lot 1) submitted a motion for inclusion on the agenda of the 2025 annual general meeting (AGM). The motion proposed to amend the caretaking and letting agreements and seek a further term.
• [3] On 10 April the body corporate advised the applicant that it intended to engage a consultant to assess the motion and would not have time to do so and prepare advice to owners before the 2025 AGM. It sought the applicant's consent to defer consideration of the motion until the 2026 AGM. The applicant responded the next day with a query and said that without a response by 16 April it would proceed on the assumption that the motion would be included on the 2025 AGM agenda. It was not until 8 May that the body corporate responded to the query. But it then said the AGM agenda was about to be circulated and it was not practicable to include the motion. It said the motion was not accompanied by sufficient information and gave rise to additional related motions the committee intended to propose.
• [4] The body corporate issued the 2025 AGM notice on 9 May without the applicant's motion. It indicated it intended to include the motion on the agenda of the next general meeting. The applicant said it would not take further action if the body corporate called an extraordinary general meeting (EGM) to consider the motion by 13 August. Further correspondence ensued, but the body corporate did not confirm when it would call an EGM.
• [5] The applicant says its motion should have been included on the agenda for the 2025 AGM. It submits that the body corporate contravened the regulations and acted unreasonably in failing to do so. It seeks declarations in that regard and an order requiring an EGM to be considered to consider the motion.
• [6] I will consider whether the body corporate breached its statutory obligations regarding the applicant's motion.

• [7] Burleigh Surf community titles scheme 5648 (Burleigh Surf) is a 101-lot scheme in Burleigh. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as building units plan 9683.
• [8] The application seeks the following orders:

(a) a declaration, that: -

(i) the Applicant's Motion ought to have been included on the Agenda; and

(ii) the Committee has erred in failing to include the Applicant's Motion on the Agenda, in contravention of section 76 of the BCCMA;

(b) an order requiring the Committee to convene an EGM, at its own cost, on or before 13 August 2025, to consider the Applicant's Motion; and

(c) any other order that the Adjudicator considers appropriate in the circumstances.

• [9] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions. [2]

• [10] This application was lodged on 13 June 2025.
• [11] The Commissioner's delegate sought clarification from the applicant on some aspects of the application.[3] The application was subsequently amended.[4]
• [12] The Commissioner initially determined that the application was suitable for conciliation. The parties participated in conciliation in July but did not reach an agreement.[5]
• [13] The Commissioner invited submissions from the committee and all owners.[6] Some 8 owner submissions were received. The applicant obtained but did not respond to the submissions.[7]
• [14] The application was then referred to department adjudication.[8]
• [15] I have now investigated the dispute, including reviewing the submitted material and seeking further information from the parties.[9]

• [16] Five submissions from owners support the application. The submissions include:
  1. The motion was valid and submitted in accordance with the legislation.
  2. The applicants are entitled to have their proposal for the extension of the agreements voted on by owners.
  3. By not including the motion on the agenda, the committee is denying owners the opportunity to have their say.
  4. There was sufficient time to obtain any reports or advice before the AGM.
  5. The ongoing refusal of the committee to progress the matter has resulted in unnecessary costs being incurred by both parties, and escalating costs for owners.
  6. There is concern about the approach of the committee to the caretakers.
  7. The committee has contravened the legislation and failed to act reasonably.
• [17] Three submissions from owners oppose the application and support the committee. Their comments include:
  1. The committee has a duty to act reasonably and in the interests of the body corporate.
  2. All matters involving significant expenditure should have accompanying justification and should be judiciously scrutinised.
  3. Consistent with its duty, the committee requested information to permit an assessment of the motion. The applicant has been given numerous opportunities to provide information. The information asked for has not been provided.
  4. The information on the caretaker's remuneration in the application lacks any detail to provide an informed decision and there are concerns with the reports.
  5. They do not understand the urgency or need to consider extending the contract unless there is a requirement for a sale.
  6. The application should be dismissed in the interests of owners and residents.

• [18] The body corporate did not make a submission, despite being given two extensions of time. The correspondence seeking the extensions included:
  1. On 25 August the body corporate said it had been waiting on the receipt of an expert report to assess and verify the financial impact of the motions and that was only received the previous week. It said it was reviewing that report.
  2. On 3 September the body corporate said its position was consistently that it was not practicable to include the applicant's motion on the agenda of the AGM. It wished to obtain certain reports and other information to allow owners to be fully informed and when that information was obtained it would convene an EGM to consider the motion.

It then said it had now obtained the information, the relevant agenda motions had been prepared, and the committee was in the process of setting a meeting date and finalising the agenda papers. It expected that within 7 days it could provide a resolution to call the EGM and a copy of the EGM agenda papers. It said that would resolve the dispute.

• [19] The body corporate did not then provide a submission or further correspondence within the extended timeframe. Some weeks later, on 29 September, it advised that the committee had resolved to call an EGM and that the agenda papers would be issued and provided to this office within 7 to 14 days. But nothing further was received.

• [20] At my request, a member of the Commissioner's office made several attempts to contact the body corporate's solicitors to ascertain whether an EGM had been called. Eventually, the body corporate provided a response. It said the EGM agenda papers had been issued and provided a copy of them. It restated its position. It asserted that there was no longer any substantive dispute and that the relief sought was redundant. It said the applicant should withdraw the application or it should be dismissed.
• [21] The supplied EGM notice was apparently issued on 17 November for a meeting on 10 December. The agenda includes 6 motions, including Motions 5a and 5b as a group of same issue motions about variations to the caretaking and letting agreements. Motion 5b is the motion submitted by the applicant. Motion 5a is an alternative submitted by the body corporate. It proposes amending the caretaking agreements in a different way.
• [22] I provided that information to the applicant and asked if there was a continuing dispute.
• [23] The applicant responded that there was a continuing dispute based on the application and correspondence it sent to the body corporate on 19 November. It asserted the ongoing conduct of the respondent contravened section 100 of the Act, resulted in significant and unnecessary delay, and caused it to incur unnecessary costs. It said the relief sought included a declaration that the motion should have been included on the AGM agenda. It said calling the EGM had no bearing on the past decision of the body corporate and it sought declaratory relief to prevent similar issues arising in future.
• [24] The applicant's cited correspondence to the body corporate objected to the inclusion of Motion 5a on the EGM agenda. It said the body corporate was not entitled and had no legal basis on which to rely to include Motion 5a. It said even if the body corporate could include the motion, it is unclear what option it afforded the committee as it does nothing more than confuse owners and prevent Motion 5b being meaningfully considered. It said the body corporate had acted unreasonably. It foreshadowed its intention to challenge the validity of Motion 5a and any resolution of the committee about it.

• [25] The substantive issue in this application is whether the body corporate breached its statutory obligations by failing to include the applicant's motion on the agenda of the 2025 AGM.
• [26] The legislation provides a right of owners to submit motions for consideration at a general meeting of the body corporate.
• [27] Section 76 of the Accommodation Module provides:

76 Opportunity to submit agenda motions [SM, s 86] > > (1) A motion for consideration at a general meeting of the body corporate may be submitted at any time by -

(a) a member of the body corporate; or

(b) the committee.

(2) Subsection (3) only applies in relation to the first annual general meeting of a body corporate.

(3) If a motion is submitted by a member of the body corporate before the first annual general meeting, it must be included on the general meeting agenda if it is practicable to include the motion.

(4) Subsections (5) to (8) apply in relation to all other general meetings of a body corporate.

(5) If a motion is submitted, including by a member of the body corporate in response to an invitation under subsection (8), it must, subject to subsections (6) and (7), be included on the next general meeting agenda on which it is practicable to include the motion.

(6) A motion submitted by a member of the body corporate may be included on the agenda for an annual general meeting only if the secretary receives the motion before the end of the body corporate's financial year immediately preceding the meeting.

(7) However, a motion of a following type must not be included on the agenda for a general meeting if the motion's inclusion would result in the body corporate considering a motion of that type more than once in a financial year for the body corporate -

(a) a motion proposing that a regulation module be applied to the community titles scheme that is different from the regulation module identified in the scheme's community management statement;

(b) a motion proposing that the remuneration paid to a particular service contractor be changed;

(c) a motion proposing that the engagement of a person as a service contractor, or the authorisation of a person as a letting agent, be amended if, as a result of the amendment, the engagement or authorisation would include a right or option of extension or renewal.

(8) If a notice is forwarded to members of the body corporate inviting nominations for committee member positions to be filled at an annual general meeting of the body corporate, the members must also be invited to submit motions for inclusion on the agenda for the meeting.

• [28] It has not been suggested that the applicant's motion was not validly submitted. Although a caretaking service contractor is not a member of the body corporate who can submit a motion,[10] the applicant is also the owner of a lot and can submit a motion in that capacity.
• [29] To be included on the agenda of the AGM, the motion had to be submitted before the end of the financial year. It appears from the submitted material that the financial year end date at this scheme is 28 February. The motion was submitted on 27 February and its receipt was acknowledged on that date.
• [30] Under section 76(5) of the Accommodation Module, a motion submitted by an owner must be included on the next general meeting agenda on which it is practicable to include the motion. The key issue is what is 'practicable'.
• [31] Owners have an inherent right to submit general meeting motions. A committee must include validly submitted motions on the agenda of the next meeting regardless of whether they consider the motion itself is valid or they have enough information to decide the motion. If a committee considers a motion is invalid or unenforceable, the motion must be included on the agenda and then the person chairing the meeting can rule it out of order.[11] If the committee considers it would not be appropriate for the body corporate to pass the motion, or that there is insufficient information for owners to vote in favour of the motion, it could advise owners of that and recommend they vote against it. But a committee is not entitled to refuse to include a motion or unilaterally defer consideration of the motion.
• [32] I appreciate that the committee wanted more information about the applicant's motion and that it needed time to seek that information. But I consider the test in section 76(5) of the Accommodation Module is not whether it is practicable for the body corporate to investigate or consider all things about a motion that it would like to before a meeting notice is issued or before the meeting is held. Rather, it is simply whether it is practicable for the body corporate to include the motion on the agenda.
• [33] The process of including a motion on an agenda essentially only requires the administrative steps of confirming the motion was submitted by a person entitled to submit a motion, confirming (for an AGM motion) that the motion was submitted in time, including the motion in the agenda that the committee sets,[12] and preparing the meeting notice documentation (including voting papers and explanatory material) to be issued[13].
• [34] If a motion is submitted before a general meeting notice is issued, but after the committee had already resolved to set the agenda and after the notice documentation has been prepared, it may no longer be practicable to include the motion on the agenda for that meeting. But that was not the case here.
• [35] The body corporate did not issue the AGM notice until 9 May. Accordingly, it had some 10 weeks after the motion was submitted to include it on the AGM agenda. There is no suggestion that the body corporate did not have the time to undertake the administrative steps of including the motion on the AGM agenda. Rather, the issue was that the committee wanted more time to investigate the proposal in the motion.
• [36] It is understandable that a committee may want to consider a significant proposal of this nature further and obtain further advice on it. To that end, I see no reason why a committee might not ask the proponent of a motion if they can withdraw their motion until further investigations can occur. To avoid an adverse recommendation from the committee on the motion, it may be in the interests of the motion proponent to agree to that. But there was no such agreement in this case. Where the applicant did not consent to deferring consideration of the motion, the committee was required by law to include the motion on the AGM agenda.
• [37] The body corporate and its committee have a statutory obligation to act reasonably.[14] It may well be incumbent on a reasonable committee to consider the implications of a significant motion that has been proposed by an owner. But ultimately the onus of providing sufficient information about a motion rests with the proponent of the motion. If owners consider they have insufficient information to support the motion, they can vote against it. In any event, the body corporate and its committee must comply with the legislation. Regardless of the committee's motivation, it is difficult to see how a committee can be said to be acting reasonably if it disregards the legislation.
• [38] I also note that the body corporate told the applicant on 8 May that it did not consider the steps it sought to pursue would take more than 3 months, and it would then call an EGM. Despite that, and despite the repeated advice to this office in September that an EGM was about to be called, the body corporate did not call an EGM until 17 November, nearly 9 months after the applicant's motion was submitted. There is scant basis provided for that lengthy delay. Whether or not the applicant provided the information that the committee sought from it (which is unclear to me), that is not a valid justification in my view.

• [39] I am satisfied the body corporate contravened section 76 of the Accommodation Module by failing to include the applicant's motion on the agenda of the 2025 AGM despite it having more than adequate time to do so. Moreover, given all the circumstances, I am satisfied the body corporate failed to act reasonably by not including the motion.

• [40] I am satisfied that the applicant's second order, for a meeting to be convened to consider the applicant's motion, is no longer necessary now the committee has belatedly called an EGM.
• [41] The body corporate argues all the relief sought by the application is redundant. But the applicant maintains its request for a declaration about the failure to include its motion on the AGM agenda. Where the body corporate has maintained that it was not practicable to include the motion on the AGM agenda, and I consider that position is incorrect, I am satisfied there is a basis to make a declaration to provide clarity for the parties in future.
• [42] The applicant indicates an intention to challenge the validity of Motion 5a that the committee submitted to the forthcoming EGM. I would make the observation that it is unclear how a motion of that nature could be enforceable by the body corporate, if passed, if the applicant did not agree to the substance of the proposed amendments to the agreements. However, questions of the validity of that motion are beyond the scope of this application.
• [43] But I am cognisant that the history of this dispute, coupled with the nature of the EGM motions, have the potential to create confusion for voters when deciding the EGM motions. That is particularly so when this order is being made so soon before the EGM. The Act provides that an adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[15] Given all the circumstances I consider it is appropriate to require the body corporate to give owners a copy of this order and the statement of reasons before the EGM. That will enable them to have this information before they vote or enable them to withdraw and replace any vote already cast, if required.

[2] Sections 227, 228, 276 and schedule 5 of the Act

[5] Conciliation application reference 0635-2025

[11] Section 88 if the Accommodation Module

[12] Section 83(1) of the Accommodation Module

[13] Noting sections 77 and 78 of the Accommodation Module

[14] Sections 94(2) and 100(5) of the Act