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

INTERIM ORDER - whether interim orders are warranted.

1. The application for interim orders is dismissed.

[1] Drift Palm Cove community titles scheme 36253 (Drift Palm Cove) is a 129-lot scheme at Palm Cove. The CMS shows the Accommodation Module applies. The scheme is registered as Survey Plan 196229.

[2] The applicant seeks the following interim order:

To put a stay on a yes vote for the rectification motion 2, parts 1 & 2, page 8 at the proposed EGM of 16th March 2026

[3] The application then seeks the following final orders:

1. An order declaring that a resolution passed at the EGM dated 16th March 2026 motion 2 for the Drift Palm Cove body corporate is void.

1. That the VOCM meeting dated 6th April 2021 that was passed by the committee for the Drift Palm Cove body corporate was at all times deemed invalid.

[4] The applicant says the Body Corporate committee have submitted motions for the EGM which are invalid, being in breach of section 44 of the Accommodation Module. He says the motions listed for voting therefore have no valid authority from the body corporate and being in breach of section 44, as the issues raised within the motion falls within the definition of a restricted issue.

[5] He says that therefore the committee cannot authorise the related legal expenditure as it has breached their spending limit of $25,800 and the failure since 2021 of producing 2 quotes for consideration prior to approval.

[6] He says that ratification, if permitted, will bypass the statutory protections of all lot owners and believes it is unreasonable under Section 94 of the Act.

[7] Motion 2, parts 1 & 2, page 8 at the proposed EGM of 16th March 2026, reads as follows:

Ratification and Authorisation of spending - Ordinary Resolution

Submitted by Committee

THAT the Body corporate for Drift Palm Cove CTS 36253 CTS (Body Corporate), resolves to authorise, ratify and approve:

1. the legal costs incurred with Mahoneys in the amount of $61,443.44 for the period April 2021 to July 2024 relating to the Queensland Civil and Administrative Tribunal proceedings with reference APL298-20; and
2. the making of its application to seek costs relating to the Queensland Civil and Administrative Tribunal proceedings with reference APL298-20 for which submissions were filed in the Tribunal on 20 August 2024

[8] 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]

[9] In particular, an adjudicator may make an interim order if satisfied, on reasonable grounds, that one is necessary because of the nature or urgency of the circumstances.[2] I am satisfied I have jurisdiction to decide this matter under the dispute resolution provisions.[3]

[10] The Commissioner referred this application to me under section 247 of the Act to decide if the nature or urgency of the circumstances warrant an interim order. As provided for under the Act, the Commissioner made this referral despite not giving notice of the application to other parties.

[11] I was unable to provided the committee with an opportunity to comment on the interim order application given the very limited amount of time available to deal with this matter. However there is no obligation on me to obtain comment from a respondent or affected party before an interim order is decided.

[12] The only issue to decide at this time is whether interim orders are warranted. However, to determine it is just and equitable to make an interim order, it is necessary to consider the substantive issue in dispute.

[13] Any order granted must be just and equitable.[4] An adjudicator must be satisfied there are serious legal questions to be answered, and that the balance of convenience between the parties justifies an interim order. As such, an adjudicator must balance the inconvenience of granting relief now if final orders are ultimately refused, against the inconvenience of refusing relief now if final orders are ultimately granted. Of particular significance is whether an interim order is necessary to prevent serious or irreparable harm.

[14] Interim orders are only granted if they are necessary due to the nature or urgency of the circumstances.[5] An applicant must establish that the circumstances warrant an interim order. An interim order will not be made if the only urgency is a desire to expedite the dispute.

[15] It is evident that the above motion refers to a decision made by the Queensland Civil and Administrative Tribunal on 23 July 2024, when it dismissed an Application for Leave to Appeal the decision of an adjudicator in the Office of the Commissioner for Body Corporate and Community Management, pursued by David Gladigau, Narcisio lnguanti and Barry Collins against the Body Corporate.

[16] The Application for Leave to Appeal concerned two motions about a supply agreement and electricity metering, which relate back to the Body Corporate's Annual General Meetings in 2018 and 2019.

[17] Minutes of a vote outside a committee meeting record that the following resolution was made on 6 April 2021:

Resolution to Approve Engagement of Lawyers

THAT the Body Corporate for the Drift Palm Cove Community Titles Scheme 36253, by its duly elected committee of lot owners (Committee), resolves to engage Mahoneys (a law firm), in response to the appeal application brought by Barbara Glatz in relation to proceedings 0247-2020 and the subsequent Appeal Tribunal Directions dated 17 December 2020 (Directions), in accordance with the terms of Mahoneys client agreement dated 22 March 2021.

Motion CARRIED. Yes 4 No 0 Abstain 0 Invalid 0

[18] That application was dismissed and on 11 December 2025, the Tribunal made the following Decision to an Application made by the Body Corporate to recover its legal costs incurred as a result of the appeal:

1. For the period 19 July 2022 to 3 May 2023 David Gladigau, Narcisio lnguanti and Barry Collins are jointly and severally liable for payment of costs of The Body Corporate of Drift Palm Cove - Scheme: CTS 36253 fixed at $24,488.06.

1. For the period 4 May 2023 to 23 July 2024 David Gladigau and Narcisio lnguanti are jointly and severally liable for payment of the costs of The Body Corporate of Drift Palm Cove - Scheme: CTS 36253 fixed at $2,294.85.

1. The costs are payable 21 days after a resolution is passed by the lot owners ratifying its application to seek costs and ratifying the legal expenditure by The Body Corporate of Drift Palm Cove - Scheme: CTS 36253 in defending the appeal proceeding in an amount of $61,443.44.

[19] Unless amended by a general meeting resolution, the committee spending limit in this scheme is $25,800 and the major spending limit is $10,000.[6] Therefore motions to approve expenditure exceeding the major and committee spending limits must be passed by ordinary resolution at a general meeting. As the purpose of Motion 2 is to ratify the committee's engagement of Lawyers, and spending that exceeds both the major and committee spending limit, it was required to be passed by ordinary resolution at a general meeting.

[20] As a general proposition, the potential for a body corporate or its committee to ratify past irregular conduct has been accepted. In the matter of Warren v Body Corporate for Buon Vista Community Titles Scheme, his Honour Justice McGill stated the following:[7]

When an act has been done by one person assuming to act on behalf of another, though without authority, and the other subsequently ratifies what has been done on his behalf, this operates retrospectively to give the first person authority to do what has been done as agent.[8]

Two relevant restrictions arise in relation to ratification. The first is that the principal at the time of the ratification must have full knowledge of all the material facts and circumstances pertaining to the agent's unauthorised act. It is also said that ratification must be effected within a reasonable time, although no rigid rule is laid down as to what is a reasonable time... What matters is whether there has been sufficient delay to result in prejudice to some third party.

[21] The case law suggests the requirements for an effective ratification are:[9]

1. the agent (ie. the person or entity whose act is being ratified) must have purported to act for the principal (ie. the body corporate or committee)
2. at the time the agent acted, the principal must have been existing and ascertainable
3. the principal must have been legally capable of doing the act in question
4. at the time of the ratification the principal must have full knowledge of all the material facts and circumstances pertaining to the agent's acts, and
5. ratification must be effected within a reasonable time.

[22] In this case, the committee was clearly purporting to act for the body corporate, which existed at the time the committee acted. The body corporate could decide to defend an appeal against an adjudication application. Without finally deciding the matter, my preliminary view is that in the context of such litigation, which tends to extend over a number of years, an EGM could probably ratify such expenditure and that the delay would not be unreasonable. It would appear that the learned QCAT Senior Member was not concerned about the length of time between the committee decision when making the above orders on 11 December 2025.

[23] For the above reasons the application for an interim order is dismissed.

[24] The application for final orders remains outstanding. This application will now be administered in accordance with the Act and the normal processes of this office. Submissions will be sought from the Respondent and affected parties before final orders are made.

[3] See sections 227, 228, 276 and Schedule 5 of the Act

[6] See the definitions in schedule 1 of the Accommodation Module

[7] 14325 (No 2) [2006] QDC 398 at [32].

[8] Warren v Body Corporate for Buon Vista CTS 14325 (No 2) [2006] QCA 398, para 31 (see also 29-38)

[9] See Carroll and Ors v Body Corporate for Palm Springs Residences CTS 29467 [2013] QCATA 21 and Warren v Buon Vista Community Titles Scheme 14325 [2007] QCA 160