austlii:qld/QBCCMCmr/2025/413
General information, not legal advice.
QBCCMCmr
2025-11-18
Original judgment source is linked above.
Body Corporate for Chevron Riviera (respondent)
Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and (3)(a)
ADMINISTRATOR - whether the body corporate is dysfunctional - whether an administrator should be appointed - RECORDS - whether the body corporate has failed to provide access to records.
1a. That Andrew Baker be appointed as an independent Administrator to the Body Corporate for Chevron Riviera CTS 31139 pursuant to section 276 of the Body Corporate and Community Management Act 1997 (Qld), with the Administrator's reasonable fees and expenses to be met from the funds of the Body Corporate.
1b. That Andrew Baker be appointed as an Administrator to the Body Corporate for Chevron Riviera CTS 31139 for a period of three (3) months, or such other limited period as the Adjudicator considers appropriate, with powers and functions directed specifically to:
(a) convening and conducting a valid annual general meeting in compliance with the Act and the Standard Module Regulation;
(b) ensuring that proper financial records, budgets and statements are prepared and circulated to all lot owners;
(c) regularising and directing the performance of statutory maintenance and insurance responsibilities; and
(d) taking such further steps as are necessary to restore lawful governance and administration of the scheme.
1c. That Andrew Baker be appointed as an Administrator for such period, with such powers, and upon such terms as the Adjudicator considers just and equitable to restore proper governance and administration of the scheme, including but not limited to:
(a) working alongside the existing committee to provide independent oversight, support, and direction;
(b) ensuring that statutory obligations for governance, meetings, financial transparency, and maintenance are met; and
(c) guiding the Body Corporate back to self-governance in an orderly and compliant manner.
The Administrator's reasonable fees and expenses are to be met from the funds of the Body Corporate.
The BCCMA is a lengthy, technical and complex instrument, with no fewer than six sets of subordinate and similarly complex "module regulations". It cannot be the case that the legislature expected all, or even most committee members of a body corporate, small, large or very large, to be experts in corporate law, or masters of community management. Indeed, the BCCMA implicitly recognises that, if this legislation were at all times, and in all circumstances applied with the utmost rigour and most precious attention to detail, its objects and policies would be retarded by endemic disputation, rather than advanced.
The direction that a "body corporate must act reasonably" in the performance of its "general functions" does not suggest that every minor irregularity should be pounced on to impede or paralyse the normal conduct of business. The Code of Conduct for committee members does not demand administrative perfection, but simply directs them to "take reasonable steps" to comply with the BCCMA.
Appointment of an administrator is within the power of an adjudicator (section 276(3) and Schedule 5 of the BCCM Act), no criteria are prescribed for doing so, but it is a significant step since it takes responsibility for the conduct of the affairs of the body corporate out of the hands of the committee and vests it in the administrator. An applicant must therefore demonstrate to the required standard that such a step is appropriate. Typically, without attempting to be exhaustive, there will be evidence that the body corporate is so dysfunctional that it cannot operate properly within the statutory framework that governs it, or that there is a well founded suspicion, on the part of an applicant for appointment of an administrator of financial malpractice within the body corporate, or that there is conduct that amounts to undue oppression in the conduct of its affairs. Without more, mere disagreements between the members, especially when the disputes are due to reasonably held differences of view and there are means available to resolve them by reference to external processes.
... s 205(2) of the BCCM Act is quite specific in its terms in that the records must be provided 'within 7 days after receiving a written request from an interested person accompanied by the fee prescribed under the regulation'. It is accepted that no fee was accompanied with the request, therefore the second provides that there was no obligation on the BCM to comply with the request within the seven day time frame. This seems to me to be correct. The section is clear in its terms and the undertaking proffered by the applicant does not satisfy the section. In addition, the section provides for a penalty for non-compliance therefore its application must be applied strictly. Clearly, the non-payment of the prescribed fee would raise a valid defence to any enforcement of a penalty.
[2] Sections 227, 228, 276 and schedule 5 of the Act
[10] Sections 82 and 84 of the Standard Module
[11] Sections 81-93 and 97-118 of the Standard Module
[13] Section 87 of the Standard Module; BCCM Forms 4 and 5 are useful templates.
[14] See section 86 of the Standard Module regarding submitting motions and section 93 of the Standard Module about setting the agenda.
[15] The approved form, BCCM Form 6, must be used.
[17] See section 93(3) and the definition of 'statutory motion' in the schedule to the Standard Module
[18] Section 93(2)(a)(v) of the Standard Module
[19] Section 175(6) of the Standard Module
[20] Section 176 of the Standard Module
[21] Section 161 of the Standard Module
[22] Section 162 of the Standard Module
[23] Section 196 of the Standard Module
[24] Section 117 of the Standard Module
[25] Sections 74-78 of the Standard Module
[27] Sections 54-73 of the Standard Module
[29] Sections 16 and 17 of the Standard Module
[30] See sections 13-39 of the Standard Module
[31] Section 231 of the Standard Module, but noting also sections 224-230 of the Standard Module
[33] Sections 195 -205 of the Standard Module
[34] Sections 48C and 49C(4) of the Land Title Act 1994
[35] Section 211 of the Standard Module
[36] Section 180 of the Standard Module
[37] Section 180(2)(a) of the Standard Module
[38] Section 180(2)(b) of the Standard Module
[39] Sections 94(2) and 100(5) of the Act
[40] Carroll and Ors v Body Corporate for Palm Springs Residences CTS 29467 [2013] QCATA 21, at 22-23
[41] Section 4(a) of the Act
[42] Noting Item 23 of schedule 5 to the Act
[44] Surace v Commisso [2009] QCCTBCCM 42, paragraph 44
[46] Section 231 of the Standard Module
[47] The prescribed fees are set out in section 233 of the Standard Module
[48] Ainsworth v Body Corporate for Viridian Noosa Residences CTS 34034 [2014] QCATA 176 at 54
[49] Body Corporate for the Rocks Resort CTS 9435 v East [2014] QCATA 308 at 13