Fauna Lakes [2025] QBCCMCmr 153 (9 May 2025)

• where the applicant seeks four orders related to procedural irregularities he alleges in calling an extraordinary general meeting - whether the orders sought are warranted in the circumstances.

Act, ss 94, 100, 276

• [1] Fauna Lakes CTS 55831 is an 18-lot scheme situated in Urangan, Queensland. It is governed by the Standard Module. The applicant, Mr Bossard, is the joint owner of Lot 3 in the scheme. He currently serves as the committee's chairperson.
• [2] On 26 November 2024, the scheme's body corporate manager (BCM) facilitated a vote outside committing meeting (VOCM) proposing to call an extraordinary general meeting (EGM) for the body corporate to consider motions to remove and replace the applicant as committee chairperson, Mrs Lane-Handley as the committee secretary and Mrs Lush as an ordinary member of the committee.
• [3] The VOCM resolved, with 4 votes in favour of the motion and 3 abstaining, that an EGM would be held at 1pm on 19 December 2024 to consider the motions.
• [4] The applicant submits due process has not been followed in calling the EGM. He says the BCM acted without authority to facilitate the VOCM. He also says that one of the votes counted on the VOCM was invalid and should not have been counted. He says without this vote the motion to call the EGM would not have passed.
• [5] The applicant sought an interim order to stop the EGM from proceeding. I determined there was a live question of whether prescribed procedures mandated by the legislation were not followed in calling the EGM. However, in the circumstances, I considered it appropriate to allow the EGM to go ahead but made an interim order restraining the body corporate from implementing any motions passed at the meeting.[1]
• [6] The applicant seeks the following final orders:
  1. That the declaration of the Treasurer's position as vacant be upheld.
  2. That the Fauna Lakes Body Corporate (and representative Committee) be directed to disregard outcomes emanating from the BCM assuming the powers of the Secretary and Chair in organising the VOCM without the authority to do so (including calling an EGM scheduled for 19/12/2024).
  3. That the Fauna Lakes Body Corporate (and representative Committee) be directed to disregard outcomes emanating from the out-of-committee vote which was facilitated by the BCM as the Treasurer position was already vacant meaning that the vote should not have been carried.
  4. That the outcomes of the VOCM be declared null and void as the BCM failed to provide a copy of the motions to the Secretary for consideration at a committee meeting as required by the legislation.
• [7] This is my consideration of the applicant's request for final orders. The applicant bears the onus to establish that the orders he is seeking are warranted in the circumstances.

• [8] The applicant submitted this application for adjudication on 29 November 2024. The commissioner sought clarification on some aspects of the application, and the application was amended.
• [9] The commissioner invited submissions from the body corporate committee, affected persons named in the application and, all other owners in the scheme. Seven owners and one affected person made submissions in response.
• [10] The applicant chose not to inspect the submissions made in response and submit a reply.
• [11] A dispute resolution recommendation was made referring the file to department adjudication.[2] I was then tasked with deciding the matter.

• [12] 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]
• [13] I am satisfied I have jurisdiction to determine this matter under the legislative dispute resolution provisions.

• [14] The main thrust of the applicant's application is that the correct procedures for calling the EGM were not followed. He explains the committee's former treasurer, Miss Paterson, was absent from two consecutive meetings of the committee without the committee's leave and her position was therefore declared vacant. Accordingly, her vote on the VOCM should not have been counted.
• [15] The applicant says all owners in the body corporate and the BCM were informed that Miss Paterson's tenure as treasurer had been terminated however, the BCM ignored this and went on to call the EGM as he accepted the defunct treasurer's vote on the VOCM. The applicant says that without Miss Paterson's vote the motion to call the EGM would not have passed.
• [16] The applicant says the BCM has provided no evidence of the origin of the motions which were considered at the EGM. He says the BCM has asserted the motions are from the committee but says they were never considered at a committee meeting. The applicant says it appears the motions have come from a sub-group of the committee and were voted on outside a committee meeting before being presented to the BCM. He says he can only presume this was done to avoid the scrutiny of owners.
• [17] The applicant says the BCM does not have the power to call an EGM as this is a power given to the body corporate secretary. The applicant says he has asked the BCM on multiple occasions not to assume the powers of the committee secretary or chairperson but his requests have been ignored.
• [18] The applicant has raised concerns that a new committee would cause irreparable harm to the financial security of the body corporate and impact its future liability.

• [19] Submissions from owners demonstrate the turmoil taking place at this newly established scheme.
• [20] The owner of Lot 16 describes the general meetings she has attended. She says the meeting she attended on 27 October 2024 ended with the applicant shouting and the owner hosting the meeting shutting the garage door to where the meeting was being held and other owners having to scramble to get out. She says the meeting held on 22 January 2025 was no better. She provides examples of why she does not believe the applicant has the qualities to hold the position of chairperson.
• [21] The owner of Lot 6 says the applicant is continuing to divide the committee and other owners at the scheme. She says the applicant will not consider the views of others, advice or come to an amicable decision with the rest of the committee. She says he continues to make things worse for the body corporate. She also says the procedures to call committee meetings are not being followed. She says the committee should be working together.
• [22] The owner of Lot 17 says most of the mistrust and discontent with the applicant and current committee began during the initial period of discussion about the need to sign a deed of agreement regarding the use of the sewage pumping facility for the adjacent development. He says the result of the discussions with the current committee mean the body corporate will now have to bear the entire cost of the operation and maintenance of the sewage system.
• [23] The owner of Lot 17 says over the past couple of months there have been many examples of where certain committee members have made demeaning comments about him, other residents and the BCM.
• [24] The owner of Lot 4 provides examples of how the applicant has interacted negatively with other residents at meetings of the body corporate. She says 13 out of 18 owners in the scheme have indicated their desire to change the committee and remove the applicant as chairperson.
• [25] The owner of Lot 14 explains she was appointed as treasurer. However, she was told she lost the position for failing to attend two committee meetings in a row. She says the first meeting was held when she was out of the country. And, in the second case, there was no quorum so no meeting could be held.
• [26] The owner of Lot 14 says there is no merit to the claim that a new committee would cause irreparable harm to the financial security of the body corporate and impact its future liability. She says 13 of the 18 owners want to remove the applicant as chairperson.
• [27] Three owners provided submissions in support of the application.
• [28] The owner of Lot 2 says she supported the interim order being made as she had concerns with how the EGM had been called. She says she is concerned a new committee could negatively impact the financial security of the other owners in the scheme. She details the incidents of discord between the applicant and other committee members. The owner of Lot 2 says despite the problems she has explained, there is still a functioning committee with motions being voted on regularly.
• [29] The owner of Lot 10 says the applicant and current committee secretary have worked tirelessly trying to get to the bottom of the misleading information about the shared infrastructure with the scheme next door. She says her experiences with trying to communicate with the BCM have been problematic from the beginning. The owner of Lot 10 says that in her opinion, some owners are unsuitable to be committee members. She says the current committee is fully functional and has achieved decisions through voting and participation.
• [30] The joint owner of Lot 3, the applicant's wife, also made a submission in support of his application. She went over many of the same points that were made by the applicant.

• [31] I have read the applicant's submissions in full and note the issue with the developer and the failure to disclose the intention for Fauna Lakes Body Corporate to share infrastructure with the scheme being built next door. It seems this issue has instigated the fall-out between owners at Fauna Lakes however, it is not directly relevant to my consideration of the orders sought by the applicant.
• [32] The applicant has sought four orders under this application. All four of the orders relate to procedural defects the applicant alleges occurred in passing the motion to call the EGM. The applicant says if the VOCM to hold the EGM is allowed to stand, it will facilitate the removal of himself as committee chairperson and Mrs Lane Handley as committee secretary. He says this is something the developer wants as the owners who have been nominated to take over the committee positions are staunch proponents of agreeing to the shared infrastructure proposed by the developer with no legal scrutiny.
• [33] In considering the final orders sought by the applicant, I note the courts have recognised that the very detailed provisions of the body corporate legislation make it almost inevitable there will be non-compliance from time to time and it is not always realistic to expect a body corporate to strictly adhere to every legislative provision. The approach taken by the courts is that non-compliance of an insubstantial nature should not be allowed to imperil the actions of bodies corporate or their committees.[4] This means a decision should not be invalidated merely because of a minor procedural irregularity unless it can be shown that the body corporate acted unreasonably or voters have been disadvantaged.
• [34] As set out above, the applicant had sought an interim order to stop the EGM from taking place. I reached the preliminary view that the applicant had raised a serious legal question about procedural irregularities which warranted granting an interim order however, I did not consider it appropriate in the circumstances to prevent the meeting from proceeding as scheduled. Instead, I made an order restraining the body corporate from implementing any motions passed at the meeting. I also foreshadowed that granting the interim order did not necessarily mean that the issues would warrant final orders invalidating any motions passed at the EGM to remove and replace committee members.[5]
• [35] The EGM took place on 19 December 2024 and the minutes record that 11 out of the 18 owners in the scheme voted on the motions to be considered. I note there is no suggestion that owners were not given adequate notice of the EGM or the motions to be voted on. All the motions removing and replacing committee members were passed with 11 votes in favour and none against.[6]
• [36] An adjudicator is empowered to make orders that are just and equitable in the circumstances to resolve a dispute.[7] Accordingly, to make the final orders sought by the applicant, I must be satisfied that a) the applicant has a legal basis for the order sought, in this case, has demonstrated a contravention of the legislation, and that b) it would be just and equitable in the circumstances to make the requested orders. In this case, even assuming the applicant has demonstrated the requisite legal basis for the orders, having taken all the circumstances into account, I am not satisfied it would be just and equitable to make the requested orders.
• [37] Firstly, and in my view critically, the procedural defects alleged by the applicant relating to the VOCM and the calling of the EGM did not prejudice owners' voting on the motions put forward at the EGM. And, the majority of owners voted at the EGM and expressed that they wanted to remove and replace members of the committee.
• [38] Secondly, although the applicant may consider he was personally prejudiced by the alleged technical deficiencies in the calling of the EGM, it is not an owner's right to be on a committee. The body corporate considers the composition of its committee every year at its annual general meeting (AGM) and, between those AGMs, committee members can be removed and new ones selected if the body corporate wishes to do so. Even if the applicant is correct on any of the technicalities he has raised in this application, there would be little utility in me making the orders sought when it is clear from the vote at the EGM that the body corporate wishes to remove him and other persons from the committee. Doing so would merely result in the body corporate being put to the expense and inconvenience of holding another EGM.
• [39] Thirdly, I note the applicant has expressed specific concerns about the views held by the persons who were voted onto the committee at the EGM on the contentious issue of shared infrastructure with the scheme next door. However, I do not consider the applicant's concerns about how new committee members may approach future decisions justifies adjudicator's orders about the calling of the EGM. The orders sought would have the effect of invalidating the body corporate's decision to choose the members of its committee. I do not consider that would be just and equitable to the respondent in the circumstances of this case.
• [40] In addition, the Act provides that a body corporate must act reasonably when carrying out its general functions, including making, or not making, a decision.[8] A decision of the committee is a decision of the body corporate,[9] and a committee acting on behalf of a body corporate must act reasonably in making a decision.[10] Accordingly, there are protections in place if the applicant considers the new committee has not acted reasonably in making, or not making, a decision on an issue in the future.

• [41] For the reasons stated above, I have dismissed the applicant's application for final orders.
• [42] As the application for final orders has now been decided, the interim order I issued on 18 December 2024 will no longer have effect. Accordingly, the motions passed at the EGM held on 19 December 2024 can now be implemented.

[1] Fauna Lakes [2024] QBCCMCmr 474

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

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

[4] See Carroll and Ors v Body Corporate for Palm Springs Residences CTS 29467 [2013] QCATA 21 and Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001 (Unreported).

[6] Minutes of EGM provided in the applicant's application

[8] Section 94(1) of the Act

[9] Section 100(1) of the Act

[10] Section 100(5) of the Act