Section 214A(1) of the Mixed Use Development Act 1993 (Qld) (Act)

COMMITTEE COMPOSITION - whether persons nominated for election to the executive committee of the community body corporate must automatically be appointed if the number of nominees does not exceed the number of committee positions; whether a body corporate manager of a subsidiary body corporate is eligible to serve on the community body corporate executive committee.

Act, ss 166A-166C, 169, 185, schedule 1; Building Units and Group Titles Act 1980, ss 7, 41A.

• [1] As set out in the interim order,[1] the applicant is a member of the respondent, entitled to appoint a nominee to represent it at general meetings of the respondent,[2] and to nominate a candidate to serve on the respondent's executive committee.[3]
• [2] The applicant says the respondent disputes the eligibility of its nominee, refusing to allow him to serve on the executive committee or vote at general meetings. It seeks orders in the following terms:

1. Order that the Nominee of the Cathedral Village BUP 106957 (applicant) being a corporation as defined in s166(c) Mixed Use development Act (MUDA), John Gilliland is the nominee for the applicant to represent it at meetings of Cathedral Place MCP 106902 (respondent) pursuant to a notice served on the respondent by Cathedral Village BUP 106957 on 3 July 2024.

2. Order that the respondent body corporate, Cathedral Place MCP 106902 has no power to refuse to recognise, or to remove from that nomination, any nominee of a subsidiary scheme properly nominated by the subsidiary scheme pursuant to s169 of the MUDA.

3. Order that the member nominees of the six (6) subsidiary bodies corporate being less than the maximum number prescribed by the MUDA being seven (7) are elected to the Cathedral Place Community Body Corporate executive committee without the conduct of an election.

4. Order that the applicant's nominee (John Gilliland) is an electable person pursuant to s166C MUDA when the conditions of s169(4)(b) MUDA and the definition in s166(c) MUDA are satisfied.

• [3] However, the respondent does not dispute that Mr Gilliland is the applicant's nominee appointed pursuant to section 169 of the Act, entitled to represent it at general meetings of the respondent. The applicant has submitted nothing that suggests otherwise. The application for the first two orders is dismissed for that reason.
• [4] With respect to the third order, the respondent has six members, so its executive committee consists of:

(b) the number of other members (not more than 4) determined by the body corporate.[4]

• [5] At an extraordinary general meeting held on 30 August 2007, the respondent resolved:

That the number of members of the Executive Committee of the Cathedral Place Community Body Corporate MCP 106902 be six (6) and that each member of the Cathedral Place Community Body Corporate must be represented on the Executive Committee.

• [6] Each member of the respondent may nominate one person to stand for election to the executive committee.[5] If only one person is nominated for each of the executive roles, and the number of nominees does not exceed the number of committee positions, each nominated person automatically becomes a member of the executive committee without requiring a ballot.[6] But that does not necessarily mean "the member nominees...are elected...without the conduct of an election" as the applicant suggests, for several reasons.
• [7] Firstly, more than one person might be nominated for the same executive position, triggering the requirement for a ballot.[7]
• [8] Further, "nominated persons" for the executive committee are not the same as "members' nominees" as described at section 169 of the Act. Members' nominees, such as Mr Gilliland, are appointed by subsidiary bodies corporate to vote on their behalf at general meetings of the respondent. "Nominated persons" at schedule 1 of the Act are nominated by the members of the respondent to stand for election to the respondent's executive committee. While the terminology is confusingly similar, the distinction is evident in the following provisions:
  1. a nomination for the executive committee must be signed by the nominated person and countersigned by a member's nominee under section 169,[8] which would make little sense if they were always the same person, and
  2. where "the candidate is not ... a person appointed by a subsidiary body corporate under section 169 of this Act", the nomination must include the candidate's address and the name of the member who nominated them.[9]
• [9] Finally, and this point is also relevant to the fourth order sought by the applicant, a person nominated for membership of the executive committee must meet additional eligibility criteria. They must be an "electable person",[10] where that is defined in the following terms:

A person is an electable person for a body corporate if -

(ii) a nominee of a corporation that is a member of the body corporate; and

(b) neither the person, the corporation mentioned in paragraph (a)(ii) nor an associate of the person, other than an associate mentioned in section 214E(2)(a) or (b), owes a relevant body corporate debt to the body corporate or an associated body corporate; and

(c) neither the person, the corporation mentioned in paragraph (a)(ii) nor an associate of the person -

(i) is a body corporate manager for the body corporate or an associated body corporate; or

(ii) is a service provider or letting agent for the body corporate or an associated body corporate.[11]

• [10] The respondent argues that Mr Gilliland is not eligible because he is the body corporate manager of the applicant, which it takes to be an "associated body corporate". But the applicant correctly points out that it is not a body corporate as that term is defined in the present Act. Section 166 defines "body corporate" to mean:

(a) community body corporate; or

(b) a precinct body corporate.

• [11] By contrast, the applicant comes within paragraph (c) of the definition of "corporation":

(a) a community body corporate; or

(b) a precinct body corporate; or

(c) a body corporate created by the registration of a building units or group titles plan.

• [12] "Associated body corporate" is defined at section 166B as follows:

associated body corporate, for a body corporate, means another body corporate incorporated or created for the mixed use scheme for which the body corporate was incorporated.

• [13] But that definition uses the term "body corporate", which has just been defined to mean a community or precinct body corporate. The applicant is not a community or precinct body corporate incorporated or created for the mixed use scheme.
• [14] Both sides referred to the explanatory note for the Building Units and Group Titles and Other Legislation Amendment Act 2022 that introduced sections 166A-166C, but it is not free from ambiguity. The relevant passage states:

Amendments will also make persons who are service contractors, body corporate managers, or letting agents (under the MUD Act), or parties to 'prescribed arrangements' that are the effective equivalents of those roles (under the BUGT Act), and their associates, ineligible to be elected as a member of an executive committee or committee.

Caretaking service contractors (who provide a combination of letting agency and caretaking services, also known as 'resident managers'), and body corporate managers, and their equivalents in terms of parties to 'prescribed arrangements' will however be deemed to be non-voting members of committees. This will provide them with access to committee processes and decisions commensurate with their role in assisting with body corporate administration.

The tightening of eligibility criteria, largely in line with the approach taken under the BCCM Act, acknowledges that it is not appropriate for persons engaged by the body corporate, and with a vested interest in significant decisions that may be made by committees in regard to dealings with authorisations and engagements (relevant to letting agents, service contractors and body corporate managers) to be voting members of a committee.

This is intended as an effective means of avoiding substantial conflicts of interest that may otherwise impact on body corporate governance to the detriment of proprietors. Comparable restrictions have been effective for this purpose in schemes under the BCCM Act (including former BUGT Act developments that transitioned to the BCCM Act) since its commencement.

The restriction extends to persons performing such roles within other bodies corporate in the development, and their associates, acknowledging that unlike the great majority of community titles schemes under the BCCM Act that have a single body corporate, MUD Act and other specified Act developments are complex with multiple interrelated bodies corporate. Persons engaged as service contractors, letting agents or body corporate managers for one body corporate, may have a direct or indirect interest in, or stand to benefit from, decisions made by other bodies corporate in the relevant development.[12]

• [15] The passage uses the term "body corporate" without saying anything to extend that term beyond its meaning in the present Act; namely, a community or precinct body corporate. It says body corporate managers "under the MUD Act" are ineligible to be elected to the executive committee, where the MUD Act only deals with body corporate managers appointed to community or precinct bodies corporate.[13] It refers to the "vested interest in significant decisions that may be made by committees in regard to dealings with authorisations and engagements", but it is difficult to see how that could arise with respect to a body corporate manager engaged by a subsidiary body corporate. The executive committee of the community body corporate would have little interest or influence with respect to that body corporate manager's engagement by its subsidiary.
• [16] However, new section 166A(a) tips the scales in favour of an interpretation that would exclude Mr Gilliland from the respondent's executive committee. It says:

In this part, a reference to the following terms in relation to a body corporate created by the registration of a building units or group titles plan, has the meaning the term has under the Building Units and Group Titles Act 1980 -

(a) body corporate manager of the body corporate;

• [17] Interpreted strictly, it is meaningless. Body corporate is defined in the preceding section to mean a community or precinct body corporate, but neither of those are created by the registration of a building units or group titles plan. The only sensible meaning that can be given to this section is that it is referring to an entity like the applicant, which is a body corporate created by the registration of a building units plan (though not a body corporate as defined in this p/art of the present Act).
• [18] Applying that to the construction of section 166C, Mr Gilliland is ostensibly eligible to serve on the executive committee because he is "a nominee of a corporation that is a member of the body corporate". Specifically, he is the nominee of "a body corporate created by the registration of a building units or group titles plan" per paragraph (c) of the definition of "corporation". But subsection 166C(c) says that such a person is not eligible if they are a "body corporate manager for the body corporate". In Mr Gilliland's case, that phrase is being used "in relation to a body corporate created by the registration of a building units or group titles plan", so it must be given its meaning under the Building Units and Group Titles Act 1980 (BUGT Act).
• [19] The BUGT Act says a body corporate manager:

(a) generally, means a person appointed under section 50 or 94 as a body corporate manager of a body corporate; and

(b) for a body corporate incorporated under a specified Act, for part 4, division 2 - see section 41A.[14]

• [20] Mr Gilliland seems to satisfy paragraph (a) of the definition, though perhaps he should satisfy paragraph (b) given the applicant was created under a specified Act. Section 41A of the BUGT Act says:

body corporate manager, for a body corporate incorporated under a specified Act, means a body corporate manager for the body corporate under that Act.

• [21] Unhelpfully, the present specified Act has nothing to say about body corporate managers for building unit plans created under that Act. It only deals with body corporate managers for community and precinct bodies corporate.
• [22] The only sensible construction available is that section 166A(a) intended to capture body corporate managers appointed under the BUGT Act by subsidiary bodies corporate created by the registration of a building units plan, such as the applicant. On that interpretation, I conclude that Mr Gilliland is a "body corporate manager for the body corporate" as described at section 166C(c)(i) of the Act and therefore is ineligible to be a member of the executive committee of the respondent. It follows that the application is dismissed in its entirety, though I acknowledge that the drafting of the relevant sections is far from clear and there is ample scope for reasonable minds to differ as to their proper interpretation.

[1] Cathedral Place [2025] QBCCMCmr 22.

[5] Act, s 185(7); schedule 1, item 4(1).