Circa Metro [2025] QBCCMCmr 114 (2 April 2025)

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

INTERIM ORDER - whether the body corporate conducted a general meeting entirely via videoconference - whether the nature or urgency of the circumstances require an order to be made that the body corporate not act on certain resolutions - whether there is a serious question of law and the balance of convince favours the applicant.

Act, s 279; Accommodation Module, ss 82, 89, 96, 97.

1. The application for interim orders is dismissed.

• [1] This application for interim orders is brought by the owner of Lot 2 against the body corporate. The applicant ultimately disputes the validity of an annual general meeting that was conducted electronically (via videoconference), and seeks interim orders that the body corporate not act on motions about the building insurance arrangement, and not engage a contractor to paint the buildings at the scheme, until the matter can be finally determined.
• [2] I have not made the interim orders sought because, on my preliminary view:
  1. While the body corporate has not passed a relevant ordinary resolution about electronic attendance at general meetings, I am not currently satisfied the applicant has raised a prima facie case to invalidate the entirety of the annual general meeting, as on the material currently in front of me it does not appear that voters suffered detriment by the annual general meeting being conducted via videoconference, particularly where:
     1. The planned location for the meeting was impacted by severe weather events.
     2. The body corporate has held previous general meetings in the same manner with no objection.
     3. There appears to have been more voters interact with the meeting via the videoconference than previous meetings conducted in person.
     4. Voters were able to discuss items, either verbally or via the online chat available on the platform.
  2. I am not currently satisfied the applicant has raised a prima facie case that the motion concerning insurance has the effect of altering the current insurance arrangements to remove coverage for improvements. On the material in front of me it appears the insurance policy has been in place since 31 December 2024 and the motion means to notify owners of the policy, not amend it.
  3. While I am satisfied the applicant has raised a prima facie case that the body corporate may not be responsible for painting lot entry doors, which forms part of the scope of works approved at the general meeting, I am not satisfied the balance of convenience justifies the order where the committee does not dispute this, and indicates they are working with the contractor to provide a new scope of works that does not include painting of those doors by the body corporate.

• [3] The scheme is a building format plan (BFP) subdivision, comprised of 88 lots and common property across 6 two-story buildings. The community management statement (CMS) shows the Accommodation Module applies.
• [4] The body corporate called an annual general meeting to be held on 10 March 2025. The notice of the meeting states the location as at the BBQ area at the scheme.
• [5] On the scheduled day of the meeting, the body corporate sent an email to owners advising that the meeting would be conducted by videoconference only.

• [6] The applicant says the meeting is invalid as:
  1. There has been no ordinary resolution passed that allows electronic attendance at general meetings.
  2. The nature of the electronic meeting removed the usual discussions that typically occur at a general meeting.
• [7] The applicant takes particular issue with the resolved Motion 7, relevant to insurance. The applicant argues that the motion alters the insurance policy to remove coverage of owner improvements.
• [8] The applicant also takes particular issue with the resolved Motion 10 and 10.1, relevant to external repainting, which was a group of same issue motions. The motion proposed engaging a contractor to paint the external faces of the building of the scheme. The applicant argues that the contractor's scope of works included the painting for lot entry doors, which is not a body corporate responsibility.

• [9] While I may determine an interim application without receiving submissions from the respondent,[1] I must observe natural justice. In the circumstances I found it appropriate to invite the body corporate to respond to the interim application. Despite being given a short timeframe to respond, the body corporate was able to provide comprehensive submissions and attachments.

• [10] The power for an adjudicator to make an interim order is provided in the legislation.[2] Interim orders are temporary in their effect. An adjudicator may make an interim order where satisfied, on reasonable grounds, that the order is necessary due to the nature or urgency of the circumstances.[3] In determining whether the nature or urgency of the circumstances justify relief, Adjudicators often follow the test applied by courts in interlocutory applications being whether the applicants have shown that it has a prima facie case, and whether the applicants have shown that the balance of convenience favours the granting of the relief claimed.[4]
• [11] Therefore, to be successful in their application for interim orders, the applicant must satisfy me that:
  1. there is a prima facie case to justify relief, and
  2. the balance of convenience justifies the interim relief.

• [12] While I am not determining the final orders at this time, determining whether there is a genuine legal issue at the interim stage requires some level of assessment of the final orders sought. The onus is on the applicant prove there is a prima facie case.
• [13] The applicant does not need to show that it is more probable than not that they will succeed. The applicant needs to show a sufficient likelihood of success to justify preservation of the status quo pending a final determination of the matter.[5] How strong the probability of success needed depends upon the nature of the rights the applicant asserts, and the consequences of the order sought.[6]
• [14] The applicant largely takes issue with the Disputed General Meeting being conducted entirely virtually via teleconference, in circumstances where there is no ordinary resolution permitting electronic attendance, and that the applicant was hindered from raising objections or debating motions. I will consider if a prima facie case has been raised on this basis.
• [15] I will also consider if the applicant has raised a prima facie case against Motion 7 (dealing with insurance) and Motion 10 (dealing with external panting).

Prima facie case - holding the meeting electronically

• [16] On my preliminary review, there appears to be two key sections of the legislation that may hinder a committee from deciding to run a meeting via videoconference. Those are that:
  1. An ordinary resolution is needed to permit voters to be considered present personally via teleconference. If not, there can be difficulties regarding voting and quorum requirements.[7]
  2. A general meeting must be held not more than 15km from scheme land, unless processes are followed which allows owners to object to the meeting being held outside of this requirement.[8]
• [17] There may be other sections that might apply, depending on the circumstances. Most importantly, the usual rights of voters should be preserved.

Holding the meeting electronically - place of general meetings

• [18] The applicant does not raise arguments on this point. In any event, on my preliminary view, I am likely to agree with comments in Glenhaven Estate[9] where the Adjudicator did not see this requirement is contravened if a general meeting is held purely electronically. I am not satisfied there is a serious legal question on this basis.

Holding the meeting electronically - ordinary resolution

• [19] The applicant argues that the body corporate has not passed the required ordinary resolution to allow electronic attendance at general meetings.
• [20] The body corporate submits that ordinary resolutions have passed which allows electronic attendance. However, the information in front of me does not evidence this. I will clarify here that voting electronically (where voters submit their vote via an electronic platform),[10] and being present personally via electronic means (such as video conferencing),[11] are treated separately under the legislation. They are raised in separate sections of the legislation, and they are separately listed when it comes to voting at a general meeting at section 97(2) of the Accommodation Module. Both electronic voting and electronic attendance should be permitted by ordinary resolution of the body corporate before being used and relied upon. The information in front of me suggests the body corporate has passed an ordinary resolution allowing electronic voting in 2020, but not electronic attendance.
• [21] Nevertheless, technical deviations from the legislation will not always render a decision of the body corporate invalid. The defective decision should not be upheld, unless exceptional circumstances exist.[12] Exceptional circumstances may be where the irregularity was trivial or has no material impact and caused no prejudice or disadvantage.[13]
• [22] It will be difficult for the applicant to successfully argue that there was a material impact where:
  1. The body corporate decided to not hold the meeting at the scheme's BBQ area, and rather decided to hold the meeting electronically, due to safety concerns about the impacts of Tropical Cyclone Alfred. The body corporate has provided images of fallen trees, debris and flooding at the scheme.
  2. There is a history of holding meetings in the same manner. The body corporate has provided evidence that past general meetings have been held in the same electronic manner with no objections.
  3. Voting appears to not be hindered. The minutes show that all voters who attended electronically had pre-voted, either by electronic vote or voting paper.
  4. Voting, or a change of vote, appears to not be hindered. The body corporate submits one member who did not pre-vote was able to vote at the meeting (via the videoconference). This also suggests that those who previously submitted voting papers or electronic votes may have been able to change their votes at the meeting held via videoconference, if they so wished.[14]
  5. The meeting appears to not have negatively impacted attendance - rather it appears to have enhanced it. The body corporate has provided evidence that there were more voters attending the Disputed General Meeting via videoconference than there had been in person at previous meetings.

Holding the meeting electronically - discussion and debate

• [23] The applicant raises arguments that they were not able to call the meeting out of order from the floor, and that the minutes of the meeting be amended to record their attempt. There is no provision under the legislation for a voter to call a meeting out of order. The legislation also does not require discussions to form part of minutes.[15] I am not currently satisfied there is any basis for this argument.
• [24] The applicant also raises arguments that the meeting format did not allow discussion or debate ahead of voting. Again, the legislation does not expressly state that discussion may take place at general meetings. In Pacific Mansions,[16] the adjudicator expressed the view that the general principles of meeting procedure establish debate should be allowed. However this is not to say that persons present at the meeting get to talk as and when they like.[17] Even if I were to adopt this same view, again it will be difficult for the applicant to successfully argue that there was a material impact where:
  1. There were other attendees who did not have trouble 'unmuting' themselves and could address the meeting.
  2. There was a live chat that was available on the videoconference platform which was encouraged to be used by those voters who did not know how to 'unmute' themselves. While the applicant says being forced to type their comments was not suitable, it is not the case attendees are able to speak as and when they like at all times at a meeting in person, either.
  3. The body corporate has acknowledged concerns raised with some motions, and it submits it is addressing same (which I will discuss further below).
• [25] On my preliminary review of the material currently in front of me, I am not currently satisfied the applicant has raised a prima facie case in the circumstances, as it appears any technical deviation from the legislation has not had a material impact on attendees' ability to vote or the decisions made at the Disputed General Meeting.

• [26] The applicant has concerns about Motion 7 that dealt with insurance. Motion 7 stated 'That the insurances set out below be confirmed' and then set out a table with various insurance policy details. It was followed by the following note:

The policy information above is a summary only. A copy of the insurance certificate of currency is attached to this agenda. The most recent insurance valuation was carried out on 09 Aug 2024 and the full replacement value stated in the valuation report was $48,670,000.00.

• [27] The motion then went on to say 'And further that the committee of the body corporate be authorised to obtain quotations and renew the insurances upon their expiry with the most suitable insurance quotation'.
• [28] The motion resolved with 30 votes in favour, 3 against, 2 abstentions and 3 invalid votes.
• [29] Motion 7 includes a table that lists the risk type that is insured under the policy. The applicant takes issue with this motion as one of the risk types states 'lot owner fixtures'. However, the attached certificate of currency refers to this item as 'lot owner fixtures and improvements'. The applicant holds concerns that Motion 7 has the effect of altering the current insurance to exclude lot owner improvements.
• [30] On my preliminary review, I do not hold the same concerns as the applicant. First, it appears the words were simply reduced in the motion's table for ease and aesthetic reasons. The note accompanying the motion states this is a summary only and refers to the certificate of currency circulated with the meeting agenda. Second, I do not believe this motion proposes to alter any current insurance arrangement.
• [31] I appreciate why the applicant may be under the impression that Motion 7 proposes to change arrangements, as motions usually propose some kind of change or action. However, that does not appear to be the case here, based on the material currently in front of me. The body corporate has an obligation to obtain building insurance[18] (which includes improvements).[19] Despite any usual relevant limit for committee spending,[20] the committee may put in place a relevant policy of insurance without the need for an ordinary resolution,[21] so the insurance may not necessarily be renewed at a general meeting. However, the legislation provides that details of the relevant policy of insurance that is in force should be disclosed in the annual general meeting notice.[22] Further, the agenda for an annual general meeting should include the substance of any statutory motions to be considered at the meeting.[23] Statutory motions can include reviewing insurance policies.[24] The certificate of currency indicates the current policy has been in place since 31 December 2024. Motion 7 appears to simply be disclosing and reviewing the policy that is currently in place, and the wording does not appear to be amending that policy.

• [32] The applicant disputes Motion 10 and 10.1 that proposed engaging a contractor to paint the external faces of the building of the scheme. The motion 10.1 was part of a group of same issue motions, and resolved with 30 votes in favour, 5 against, 1 abstentions and 3 invalid votes.
• [33] Again, the applicant says they intended to rule the motion out of order, but could not unmute themselves to do so. The legislation does not provide for voters to rule a motion out of order - that is the role of the chairperson.[25]
• [34] The applicant takes issue with the motion as the paining quotes include scope for painting lot entry doors, which the applicant says form part of the lots, and therefore the body corporate should not be incurring the costs of painting them.
• [35] Lot owners are responsible for maintenance of their lots,[26] and the body corporate only becomes responsible for maintaining doors in good condition that are situated in a boundary wall separating a lot from common property or another lot.[27] Looking at the scheme's survey plans, it appears (and this is just a very preliminary observation) that the entry doors do not sit on the boundary between the lot and the common property, as there are patios or courtyards immediately in front of the lot doors that seem to form part of the lot.
• [36] The body corporate does not dispute that it is not responsible for the painting of the lot entry doors. It submits that it listened to the applicant's concerns prior to the meeting. It says that the committee advised those voters at the meeting that painting of lot entry doors would not be paid for by the body corporate. Instead, the committee is arranging with the contractor for an opt-in arrangement for lot owners to have their lot doors painted, at the lot owner's cost.
• [37] While I accept that the committee does not intend to incur costs for painting the lot doors, unfortunately the current scope of works that has been approved by ordinary resolution includes those works. The committee has an obligation to put into effect decisions of the body corporate (if they are lawful),[28] and ordinary resolutions may only be amended and revoked by another ordinary resolution.[29] It may be prudent for further ordinary resolutions to be passed if the scope of works are to be changed.
• [38] On my preliminary review of the material in front of me, which includes agreement from the body corporate that it is not responsible for the painting of the doors, I am satisfied the applicant has raised a prima facie case.

• [39] Where I am not satisfied that the applicant has raised a prima facie case, I do not have an obligation to consider whether the balance of convenience justifies relief.[30] I will therefore only consider whether the balance of convenience favours interim relief regarding Motion 10.
• [40] When considering the balance of convenience, I should weigh the inconvenience or injury the applicant would suffer if relief was refused, against the injury which the respondent would suffer if the relief was granted.[31]
• [41] While I am satisfied the applicant has raised a serious legal question regarding Motion 10 at the Disputed General Meeting, I cannot say that the balance of convenience justifies relief where the body corporate agrees with the applicant's concerns, and submits it has no intention on acting on the motion in so far as engaging contractors to paint doors that form part of lots. It seems the order would have little utility.

• [42] In the circumstances, the applicant has not satisfied me that there is a prima facie case for the final orders sought on the basis that the body corporate should not have conducted the annual general meeting via videoconference. Nor has the applicant satisfied me that there is a prima facie case against Motion 7, as I am not convinced that the motion has the effect of altering the insurance.
• [43] In circumstances where the body corporate does not dispute that the body corporate is not responsible for painting the lot entry doors, I am satisfied the applicant has raised a prima facie case against Motion 10 which proposed the body corporate engage contractors for the external painting at the scheme, including lot entry doors. However, the committee has indicated that it is working with the contractor to amend the scope of works. In those circumstances, I am not satisfied the balance of convenience justifies interim relief. The application for interim orders must fail.
• [44] To minimise risk of further dispute, the committee may like to consider my comments at paragraph [37].

[4] SDW2 Pty. Ltd. V JLF Corporation Pty Ltd [2017] QSC 1 at [21].

[5] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at [622-623]

[6] Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57, at [65], [19].

[9] Glenhaven Estate [2024] QBCCMCmr 177 at [23].

[10] For example see Accommodation Module ss 96, 101.

[12] Finger v Dickie [2015] QCATA 113 at [10].

[13] Finger v Dickie [2015] QCATA 113 at [10] citing Carroll & Ors v Body Corporate for Palm Springs Residences CTS 29467 [2013] QCATA 21.

[16] Pacific Mansions [2012] QBCCMCmr 167 at [44-45].

[17] Pacific Mansions [2012] QBCCMCmr 167 at [46].

[20] Accommodation Module, s 162; Schedule 1, Dictionary.

[21] Accommodation Module, s 162(1)(e).

[24] Accommodation Module, Sch 1, Dictionary.

[27] Accommodation Module, s 170(2)(a)(ii).

[30] American Cyanamid Co v. Ethicon Ltd [1975] 1 All ER 504.

[31] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-3.