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

GENERAL MEETING PROCEDURES; CARETAKER; JURISDICTION - whether a motion to terminate a caretaking service contractor's engagement was incorrectly ruled out of order; whether the body corporate must direct the caretaker to perform certain tasks said to be required under contract; whether the committee must offer an explanation of power tools purchased by the caretaker at the expense of the body corporate; whether these issues relate to contractual matters and therefore are outside the jurisdiction of a departmental adjudicator.

Act, ss 94(2), 149B; Accommodation Module, ss 88, 140(1), 170(1).

• [1] This is one of two applications I have decided concurrently challenging decisions purportedly made at an extraordinary general meeting (EGM) on 7 February 2025. The other is Flinders Village [2025] QBCCMCmr 215.
• [2] In this application, Mr Nasrawi argues that motion 12, which proposed terminating the engagement of the caretaking service contractor, was incorrectly ruled out of order. The minutes indicate it was ruled out of order because the proposed termination did not comply with section 140(1) of the Accommodation Module, which permits termination:
  1. under the Act
  2. by agreement, or
  3. under the engagement or authorisation.
• [3] Mr Nasrawi says it should not have been ruled out of order because:
  1. the ruling was not made by the chairperson
  2. owners were not given the opportunity to reverse the ruling as required,[1] and
  3. the termination would have complied with section 140(1)(c) of the Accommodation Module and clause 8.1(c) of the engagement, which allows the body corporate to terminate where the onsite manager "is guilty of gross misconduct or gross negligence in performing the Manager's Duties".
• [4] Mr Nasrawi also says that motion 13, which failed, should be given effect. The motion proposed having the caretaking service contractor carry out various tasks that Mr Nasrawi claims are mandated under the caretaker's engagement. By failing to insist the caretaker performs them, Mr Nasrawi argues the body corporate is in breach of its obligations to administer the common property for the benefit of lot owners,[2] maintain the common property in good condition,[3] and act reasonably.[4]
• [5] Finally, Mr Nasrawi says the caretaker purchased $3,987.24 worth of tools between 2016 and 2021 and was reimbursed by the body corporate committee without a body corporate resolution to authorise the expenditure and in contravention of clause 3.8 of the caretaker's engagement. Clause 3.8 requires that the caretaker must "at its own expense provide all equipment, machinery and tools necessary to carry out the Manager's Duties".
• [6] Mr Nasrawi seeks orders in the following terms:

(1) That the ruling that Motion 12 of the EGM held on 07 February 2025 is out of order be declared invalid, that the votes for Motion 12 be counted, and that the motion, if passed, be enacted.

(2) That the committee, by resolution, instruct the caretaker to perform the tasks detailed in Motion 13 within 28 days, and that the caretaker be responsible for the cost of any external contractors engaged to perform this work.

(3) That the committee be ordered to engage The Diverse Group to conduct a Caretaking Performance Management Report to ensure these tasks have been satisfactorily completed and distribute the report to all owners.

(4) That the committee be ordered to act on the recommendations in this report including the issuance of a RAN if necessary.

(5) That the committee advise owners the current location of power tools and other tools totalling $3,973.49 in value purchased by the caretaker at body corporate expense and explain why these tools have not been used by the caretaker to perform minor maintenance and repairs.

No jurisdiction with respect to "contractual matters"

• [7] Some aspects of this dispute are beyond my jurisdiction. According to section 149B of the Act, a party to a dispute about a claimed or anticipated contractual matter about the engagement of a caretaking service contractor may only apply to the Queensland Civil and Administrative Tribunal (QCAT) or to a specialist adjudicator (as distinct from a departmental adjudicator).
• [8] Schedule 6 of the Act defines "contractual matter" as follows:

contractual matter, about an engagement or authorisation of a body corporate manager, service contractor or letting agent, means -

(a) a contravention of the terms of the engagement or authorisation; or

(b) the termination of the engagement or authorisation; or

(c) the exercise of rights or powers under the terms of the engagement or authorisation; or

(d) the performance of duties under the terms of the engagement or authorisation.

• [9] The person chairing a general meeting must rule a motion out of order if:

(i) conflict with the Act, this regulation or the by-laws, or a motion already voted on at the meeting; or

(ii) be unlawful or unenforceable for another reason...[5]

• [10] They must give reasons for their ruling and allow the voters present to overturn it by ordinary resolution.
• [11] Mr Nasrawi claims the ruling was made by Mr Mercier of Mercier Body Corporate Services rather than the chairperson, and voters were not given the opportunity to overturn it. Several owners supported those claims.
• [12] The body corporate says:
  1. the chairperson chaired the EGM via videoconference and Mr Mercier, who was physically present at the meeting, only announced the chairperson's ruling
  2. voters were unable to hear the chairperson because many of them were shouting, and
  3. voters were asked several times whether they wished to vote on overturning the ruling.
• [13] There is little evidence to support either version of events.
• [14] I cannot decide whether the proposed termination complied with clause 8.1(c) of the caretaker's engagement and therefore would have been done "under the engagement or authorisation" as permitted by section 140(1) of the Accommodation Module. That is a dispute about a contractual matter, concerning both the exercise of rights under the engagement and the termination of it. The parties may put it to QCAT or a specialist adjudicator.
• [15] I am not satisfied that motion 12 was incorrectly ruled out of order. It is not established that the chairperson did not make the ruling, nor that voters present were not given the opportunity to overturn it. I cannot say whether the basis for the ruling - that the termination would not have complied with section 140(1) of the Accommodation Module - was incorrect, as I have no view on whether the proposed termination was permitted under the terms of the engagement.

• [16] Motion 13 proposed having the committee instruct the caretaker to perform tasks that it said were required under the caretaker's engagement. The minutes record that it failed with 21 votes in favour and 24 against.
• [17] The other applicant challenged that vote count, submitting 25 voting papers that all showed votes in favour of motion 13. Mr Nasrawi submitted the same voting papers with this application. However, I found that only 23 of them should have been counted, meaning the motion still failed.[6]
• [18] Mr Nasrawi argues the body corporate acted unreasonably and in dereliction of its duty to maintain the common property in good condition.[7] He submitted various reports and photographs attesting to the poor state of the common property.
• [19] But even if I accept that the body corporate has a statutory duty to improve the condition of the common property, that does not mean it was compelled to pass a motion directing the committee to instruct the caretaker to perform the stated tasks. That conclusion could only arise from the view that the caretaker's engagement requires it to perform those tasks, and that is not a matter for me to decide.
• [20] As I am not satisfied that the committee should direct the caretaker to carry out the tasks listed in motion 13, I am also not persuaded that the committee should:
  1. "engage The Diverse Group to conduct a Caretaking Performance Management Report to ensure these tasks have been satisfactorily completed", or
  2. "act on the recommendations in this report".

• [21] The only other matter to decide is the committee's obligation to tell owners the location of power tools purchased by the caretaker at body corporate expense, and explain why the caretaker has not used the tools to perform minor maintenance and repairs.
• [22] I have no view on whether the caretaker's contract required it to purchase those tools at the caretaker's expense.
• [23] If reimbursement was paid by the body corporate without a resolution to authorise it, that was irregular. The sum looks to have been within the committee's spending limit,[8] but there needed to be a committee resolution to pay it. That was the committee's only means of making a decision.
• [24] But no orders are sought to address that irregularity. Mr Nasrawi only wants the committee to state the location of the power tools and explain why the caretaker is not using them to carry out minor maintenance at Flinders Village. I do not know if the committee is aware of the tools' present location, but in any event I do not see that it is subject to a legal obligation to provide the requested explanation.

• [25] For these reasons, the application is dismissed.

[1] Accommodation Module, s 88(2)(b) & (3).

[2] Act, s 94(1)(a).

[3] Accommodation Module, s 170(1).

[4] Act, s 94(2).

[5] Accommodation Module, s 88(1)(a).

[6] Flinders Village [2025] QBCCMCmr 215 at [31].

[7] Act, s 94(2); Accommodation Module, s 170(1).

[8] Accommodation Module, schedule 1, "relevant limit for committee spending".