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

GENERAL MEETING MOTION - Where the applicant is disputing a motion passed at the scheme's 2024 annual general meeting - whether an order invalidating the disputed motion is warranted in the circumstances.

Act, s 270; Accommodation Module, ss 125, 127

• [1] The Body Corporate for Coolum @ The Beach CTS 38562 is a 95-lot scheme situated in Coolum Beach, Queensland. It is governed by the Accommodation Module. The applicant is the owner and occupier of Lot 1 in Coolum @ The Beach.
• [2] The applicant challenged the validity of resolutions passed at the scheme's annual general meeting held on 16 August 2024 (2024 AGM). The motions he was disputing, Motions 11, 12, 13, 14 and 15, all relate to the body corporate's proposal to carry out a solar works project at the scheme.
• [3] The applicant sought interim orders that the body corporate not take any steps to implement the disputed motions. On 19 September 2024, I dismissed the applicant's request for interim orders.[1]
• [4] The applicant subsequently amended his application and now seeks a final order declaring that Motion 14 passed at the 2024 AGM was at all times void. Motion 14 read as follows:

ENGAGEMENT OF SOLAR REVENUE COMPANY - SOLAR CONSULTANCY SERVICES - Ordinary Resolution

THAT the Body Corporate authorises the engagement of Noosian Pty Ltd (trading as The Solar Revenue Company) ACN 128 794 03 (SRC) to provide consultancy services in relation to all stages of the solar works project from tender, installation, and through to monitoring of the system on the terms and conditions as set out in the Fee Proposal and Consultancy Agreement circulated with this notice of meeting (SRC Agreement).

AND THAT any two committee members (including the body corporate manager) be authorised to execute the SRC Agreement on behalf of the Body Corporate and otherwise do anything necessary to give effect to the engagement of SRC.

• [5] Motion 14 was carried with 40 votes in favour, 2 against and 4 abstaining.
• [6] This is my consideration of the applicant's request for a final order that Motion 14 was at all times void. The applicant bears the onus to establish that the final order he seeks is warranted in the circumstances.

• [7] The applicant submitted this application for adjudication on 20 August 2024. The commissioner sought clarification on some aspects of the application, and the application was amended.
• [8] The commissioner invited submissions from the body corporate committee and all other owners in the scheme. The committee and four owners in the scheme made submissions in response.
• [9] The applicant inspected the submissions made in response and submitted a reply.
• [10] A dispute resolution recommendation was made referring the file to department adjudication.[2] I was then tasked with deciding the matter.

• [11] An adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, about (relevant to this dispute): a claimed or anticipated contravention of the Act or the CMS, or about the exercise of rights or powers or performance of duties under the Act or the CMS.[3]
• [12] I am satisfied I have jurisdiction to determine this matter under the legislative dispute resolution provisions.

• [13] This dispute stems from the solar works project at the scheme. In implementing a solar system, the body corporate sought to enter into contracts with Green Peak Energy (GPE) and the Solar Revenue Company (SRC). I understand GPE provides renewable energy solutions via power purchase agreements and SRC provides consultancy services to tailor solar solutions for bodies corporate.[4]
• [14] The applicant does not agree with the body corporate entering into contracts with both GPE and SRC. He submits the signing of a power purchase agreement with GPE means any contract with SRC is superfluous and redundant. He says with GPE engaged and operating, the body corporate will have no role or responsibility in bringing construction of the solar project to fruition or in managing and maintaining the completed system. He says it follows that the body corporate currently has no need for SRC's consultancy services, let alone requires SRC's services for 10 to 20 years.
• [15] Furthermore, the applicant says SRC would have to be treated as a service contractor and engaged according to sections 125 and 127 of the regulations. He says the body corporate must know with reasonable clarity what functions the service contractor will perform as well as the basis for working out payment for the contractor's services. He says in this case, the cost and scope of SRC's services is unclear and the engagement should be void.
• [16] In addition, the applicant says there are significant modifications to SRC's fee proposal compared to the one which was provided at the scheme's 2023 AGM. He says this was not made clear or highlighted in the explanatory notes to Motion 14. He says the body corporate's explanatory material failed to give owners the necessary information to be fully and fairly informed.

• [17] The body corporate says Motion 14 was accompanied in the 2024 AGM notice by a copy of the SRC agreement which clearly detailed all the terms and conditions of the proposed contract. It says this included the current rates and information about the rates which would apply beyond the first year of the contract. The body corporate says that if owners were confused or had or any concerns about Motion 14, they could have sought clarification or voted against the motion. However, the overwhelming majority of owners voted in favour of Motion 14.
• [18] The body corporate says that most of the applicant's complaints in relation to Motion 14 appear to be based on the applicant's personal commercial views and preferences, which are not a valid basis to invalidate the motion.
• [19] The body corporate says the SRC agreement was executed by SRC and the body corporate on 16 August 2024 in good faith in reliance on Motion 14 being passed. It refers to section 310 of the Act (Protection of persons dealing with body corporate). The body corporate says the validity of Motion 14 is not determinative of whether the SRC agreement is binding on the body corporate or enforceable by SRC.
• [20] The body corporate says accordingly, there is no utility in making the order sought by the applicant. It says the only effect of making the final order would be to create a situation where the body corporate is required to breach or repudiate the contract with SRC to comply with the order and/or peril the actions of the body corporate and create doubt and uncertainty in relation to the body corporate's position under the contract with SRC. The body corporate respectfully submits that such an order would not be 'just and equitable' in the circumstances.
• [21] The body corporate submits the applicant's application is frivolous, vexatious, misconceived and/or without substance. It says the application has no proper legal basis and would carry no utility as the contract with SRC has already been signed. It says that in light of the numerous previous applications made by the applicant, the adjudicator should exercise their discretion under section 270(3) of the Act to dismiss the application and order the applicant to pay the body corporate the sum of $2,000 in costs.

• [22] The four owners who made submissions on this dispute all support the body corporate's position.
• [23] The owner of Lot 217 explains there has been an irretrievable breakdown of the relationship between the applicant and other members of the body corporate. She says it is the applicant's obstruction of the body corporate's processes that led to the first SRC agreement being out of date when the motion to engage SRC was previously considered.[5]
• [24] The owner of Lot 512 says that what had generally been a harmonious community has been disrupted by the applicant's constant complaints and criticism of the voluntary committee. She says the behaviour has impacted friendships and relationships within the community.
• [25] The owner of Lot 120 says she strongly opposes the applicant's application. She says the committee have worked tirelessly to undertake major works to benefit the resort, which she supports. She says the applicant's actions have impacted the previously positive atmosphere at the resort. She says she fully supports the committee.
• [26] The owners of Lot 520 say the applicant has been invited to join the committee but prefers to complain about every project causing stress and financial cost. They say the delay in the solar works project has cost the body corporate money, as have the numerous legal fees being incurred.

• [27] In response to the committee's submissions, the applicant says nothing in the terms of the engagement with SRC outlines any functions for SRC to perform in light of the power purchase agreement the body corporate has signed with GPE. He says the engagement must state the functions SRC is intended to provide under the agreement being signed. He says the body corporate has failed to address this issue.
• [28] The applicant reiterates that the SRC agreement does not provide a basis for working out the payment for SRC's services over the duration of the engagement. He says there is no formula provided and there is no basis given to know which rate would apply and who would determine it. He also says there is no review mechanism provided for the annual review.
• [29] The applicant says the regulations have not been complied with and says his application should not be dismissed. He says the application has a proper basis and is not frivolous, vexatious, misconceived or without substance. He says costs should not be awarded against him.
• [30] The applicant provided a separate reply in response to the submissions made by the owners of other lots in the scheme. He says the committee has misunderstood the legislative requirements a number of times and that is why he has had to challenge certain decisions. He also notes that where the committee did not understand the requirements of the legislation it could have made use of the free information services provided by this office instead of incurring unnecessary legal expenses.

• [31] The applicant has raised two main arguments as to why Motion 14 should be found to be void. I will deal with each of these in turn.

• [32] Section 125 of the Accommodation Module sets out the requirements for authority to make or amend engagements and authorisations. It provides the body corporate may engage a person as a service contractor by passing an ordinary resolution approving the engagement.[6] The legislation further provides that the material forwarded to members of the body corporate for a general meeting that considers the motion approving an engagement or authorisation must have the terms of the engagement or authorisation including when the term begins and ends and the term of any right or option of renewal.[7]
• [33] The form of engagement is further specified by section 127(2) of the Accommodation Module. This section provides that the engagement of a service contractor must be in writing and state:

(i) when the term begins and ends; and > > (ii) any right or option of extension or renewal of the engagement.

1. The functions the service contractor is required or authorised to carry out. 2. The basis for working out payment for the service contractor's services.

• [34] Section 127(1) of the Accommodation Module sets out that the engagement of a person as a service contractor is void if it does not comply with the requirements of subsection (2) as set out above.
• [35] The applicant submits that the terms of engagement circulated with Motion 14 do not clearly set out the functions of SRC. In addition, he says the terms do not provide a proper basis for working out the payment for its services. He argues that accordingly, sections 125 and 127 of the Accommodation Module have not been complied with.
• [36] The body corporate argues that all the legislative requirements were complied with. It says Motion 14 was accompanied by a copy of SRC's fee proposal and consultancy agreement dated 5 July 2024. It says these documents detailed all the current terms and conditions of the proposed contract.
• [37] I have carefully reviewed the SRC agreement circulated with Motion 14 and note firstly that the agreement contains a section headed 'Services Proposed'. This section sets out a list of services provided by SRC at the installation stage and the monitoring stage of the project. The same section notes SRC provides "advice and assistance in monitoring the project to secure the best results". Accordingly, I am satisfied the terms of engagement include the functions SRC is required or authorised to carry out.
• [38] Secondly, I note the agreement circulated with Motion 14 also contains a section on fees. This section provides that $4,000 is payable at the commencement of the stage (once motions are passed), followed by monthly payments of 1.5c per kWh of solar generation in Year 1 (with the 1.5c per kWh being subject to an annual review).
• [39] The applicant says SRC's costs are unknown. He says the fees in the agreement are based on a formula where owners have not been provided with enough information to work out what the costs are. He raises several issues with the details provided in the agreement including what fees will be payable after year 1, what the mechanism for the annual review is and, what the body corporate's total exposure over the term of the contract will be.
• [40] I have carefully considered the concerns raised by the applicant. However, having reviewed the terms of the SRC agreement, I am satisfied it sets out a basis for working out payment for SRC's services.
• [41] For completeness, I note the contract provides the term of SRC's engagement will begin on the date of commissioning the first phase of the solar installations, for a period of 10 years. It further sets out that SRC has an option to extend the term by a further 10 years upon expiry of the initial term by agreement with the body corporate. Accordingly, I am satisfied that the engagement provides when the term begins and ends and any right or option of extension or renewal of the engagement.
• [42] Having carefully considered the terms of the engagement with SRC, the applicant has not satisfied me that either section 125 or section 127 of the Accommodation Module has been contravened.
• [43] I note the applicant has argued the body corporate was not fairly and fully informed before passing Motion 14. However, a full copy of the SRC agreement was circulated with the 2024 AGM notice. The applicant has not persuaded me that the body corporate was not fairly and fully informed.
• [44] The applicant also submits there were significant modifications to SRC's fee proposal compared to the one provided at the scheme's 2023 AGM. He says this was not made clear in the explanatory notes provided for Motion 14. However, the body corporate considered the information before it at the time of passing Motion 14 and, overwhelming voted in favour of passing the motion.

• [45] The applicant argues that in light of the power purchase agreement the body corporate has signed with GPE, there is no need for SRC's services. He says EPA will be constructing and monitoring the solar system being installed at the scheme and the agreement with SRC is therefore superfluous and redundant. He notes that although the body corporate may have a buy-back option to fully own the system in the future, this may only happen in five years or ten years (or more).
• [46] I have carefully considered the submissions the applicant has made on this point. However, he has failed to satisfy me that the power purchase agreement renders the agreement with SRC entirely superfluous and redundant.
• [47] As set out at paragraph [13] above, I understand GPE provides renewable energy solutions via power purchase agreements and SRC provides consultancy services to tailor solar solutions for bodies corporate. And, while the body corporate may have agreed for EPA to construct, operate and maintain the solar system for the duration of the power purchase agreement, the applicant has not satisfied me that it was not open to the body corporate to engage another consultant to provide expertise and advice on making the most of the solar system being installed.

• [48] I now turn to the issue of the costs sought by the body corporate.
• [49] An adjudicator may make an order dismissing an application if it appears to the adjudicator that the application is frivolous, vexatious, misconceived or without substance.[8] And, where an adjudicator dismisses an application for being frivolous, vexatious, misconceived or without substance, they may order costs against the applicant to compensate the respondent, the body corporate or an affected person.[9] However, any costs awarded must be no more than $2,000.[10]
• [50] The body corporate submits the applicant has failed to provide a proper legal basis for his application to invalidate Motion 14. It says the applicant appears to be disputing the motion simply because it does not accord with his own personal commercial views and preferences. In addition, the body corporate says the applicant is aware the agreement with SRC has already been signed and accordingly, an order invalidating Motion 14 would serve no utility.
• [51] In light of the above, the body corporate requests that the applicant's application be dismissed as frivolous, vexatious, misconceived and/or without substance. It seeks that the body corporate be awarded costs of $2,000.
• [52] The applicant says the challenge he has made to Motion 14 was done in good faith and his application should not be categorised as frivolous, vexatious, misconceived or without substance. He submits he has valid grounds for challenging Motion 14. He says there are serious legal questions to resolve and, there may be significant funds payable under the SRC contract over time.
• [53] The applicant submits that an order for costs against him is not warranted as he is only committed to ensuring all aspects of the solar works project are authorised in compliance with the legislation.
• [54] I have carefully weighed up the arguments made by both parties. While I have ultimately not accepted the applicant's arguments in this dispute, I can appreciate why he may have been concerned about the contracts being entered into. The arrangements between GPE and SRC are not straightforward and the terms of the contract with SRC could have been clearer. On this occasion, I have decided not to make an order dismissing the applicant's application as frivolous, vexatious, misconceived or without substance.
• [55] Notwithstanding the above, I note the applicant has made numerous applications to this office since 2021, with most subsequently being withdrawn and others being dismissed.[11] He has in fact only been successful with having final orders granted on two occasions.[12]
• [56] I want the applicant to be on notice that if an adjudicator dismisses an application in the future for being frivolous, vexatious, misconceived or without substance, they may have regard to previous applications he had lodged when considering whether to make an order for costs.[13]

• [57] For the reasons provided above, I have dismissed the applicant's application for an order that Motion 14 was at all times void. However, I have declined to dismiss the application as frivolous, vexatious, misconceived or without substance.

[1] Coolum @ The Beach [2024] QBCCMCmr 345

[2] Section 248(3)(e) of the Act

[3] Section 276(1)(a) and (b) of the Act

[4] See https://www.gpenergy.com.au/ and https://www.solarrevenue.co/body-corporate-solutions

[5] See Coolum @ The Beach [2024] QBCCMCmr 362

[6] See section 125(2)(a) of the Accommodation Module

[7] Section 125(2)(c)(i) of the Accommodation Module

[11] One in 2021, four in 2022, one in 2023, four in 2024 (not including this one) and one in 2025.

[12] Applications 0701-2022 and 0206-2024.