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

AGM RESOLUTIONS - Validity of various resolutions carried at an AGM

MAINTENANCE UNDER BUILDING FORMAT PLAN - Obligations of the body corporate to maintain, including waterproofing membranes, obligation of body corporate to repair consequential damage

EXCLUSIVE USE BY-LAWS - requirement for approval by resolution without Dissent

COMMITTEE COMPOSITION - Nominations - what is an Associate

Act, ss 97, 174, 263, 309, 318

Accommodation Module, ss 11, 18, 37, 150,170

1. I declare that the resolution purportedly passed pursuant to motion 12 at the AGM on 9 October 2024 is invalid to the extent that it purports to authorise the onsite Manager/Caretaker to spend up to $3000.00 (excluding GST) of body corporate funds per month, without any prior approval from the committee.
2. I order that the Caretaking Services Contractor is not to incur any expenditure of body corporate funds without the approval of the committee.
3. I declare that the resolution pursuant to motion 17 at the AGM on 9 October 2024, that the caretakers be granted exclusive use of two parking spaces, is void and of no effect.
4. The application is otherwise dismissed.

• [1] Flinders Village consists of 51 lots and common property. The Community Management Statement shows the Accommodation Module applies to the scheme.
• [2] The applicant is an owner and former member of the committee at Flinders Village. He has brought this application against the body corporate seeking some 29 Final orders against the respondent body corporate.
• [3] As part of this application I previously considered the applicant's request for several interim orders. On 24 January 2025 I made the following interim orders:
  1. Pending final determination of this application, the body corporate must not implement or otherwise act upon the resolution on motion 15 which was purportedly passed at the last Annual General Meeting on 9 October 2024.
  2. Within 7 days of receiving a written request from the applicant for copies of the identified records and the required fee, the body corporate is to provide copies of the requested records to the applicant, which include the following:

a) Body Corporate Roll. > > b) Video recording of the AGM held on 09 October 2024. > > c) Voting Register in relation to the 09 October 2024 AGM > > d) Vote Tally Sheet in relation to the 09 October 2024 AGM. > > e) Company Nominee and Committee Nomination forms for all committee candidates at the 09 October 2024 AGM > > f) All invoices paid to lawyers since 01 August 2024.

• [4] I am satisfied that this matter falls within the legislative dispute resolution provisions.[1] An adjudicator may make an order to resolve a dispute in the context of a community title scheme between a lot owner and the body corporate about a claimed or anticipated contravention of the Act or the community management statement (CMS); or the exercise of rights or powers, or the performance of duties, under the Act or CMS.[2]

01 - 04: The Budget - Committee motions 5 and 6.

• [5] (1) That the resolution pursuant to motion 5 be declared void and of no effect because this motion is in conflict with section 94(2) of the Act and section 150(3)(a) of the Accommodation Module.
• [6] (2) That the Administrative Fund Budget be reduced by $50,000.00 and the levies and advance issues be reduced accordingly.
• [7] (3) That the resolution pursuant to motion 6 be declared void and of no effect because this motion is in conflict with section 94(2) of the Act and section 150(3)(a) of the Accommodation Module.
• [8] (4) That the Sinking Fund Budget be reduced to $80,000.00 to conform with the Sinking Fund Forecast prepared by Phillips Safety Service Pty Ltd dated 08 May 2024 and the levies and advance issues be reduced accordingly.

05 - 09: Legal Action Against Committee Members. Committee Motions 9, 10 and 11 and Owners Motion 19

• [9] (5) That the body corporate be ordered to immediately cease and desist all legal proceedings, including but not limited to, sending legal letters, issuing notices of demand, or filing lawsuits, against any former committee members, lot owners or former lot owners.
• [10] (6) That the body corporate be ordered not to take any legal action against current, former or future voting committee members, or any other owners, including but not limited to, sending legal letters, issuing notices of demand, or filing lawsuits, without an Adjudicator's order.
• [11] (7) Refrain from initiating any new legal proceedings, including but not limited to, sending legal letters, issuing notices of demand, or filing lawsuits, and further to refrain from seeking legal advice of any kind, without obtaining the prior approval of the body corporate at a general meeting.
• [12] (8) That the body corporate be ordered to immediately revoke the current authorisation granted to the caretaker to liaise with the body corporate lawyers and to pass on the body corporate's instructions, and is prohibited from granting any future such authorisation to the caretaker under any circumstances whatsoever.
• [13] (9) That Marilyn Biggs, current secretary and Tom Chen, current chairperson be removed from the committee and be prohibited from holding any position on the committee in the future and further that Tom Chen be prohibited from nominating any other person to be a member of the committee in the future.

• [14] (10) That the resolution pursuant to motion 12 to increase the caretaker's spending limit be increased from $500 to $3,000 per month be declared void and of no effect.
• [15] (11) That the Caretaking Services Contractor be ordered not to incur any expenditure of body corporate funds of any kind without the specific prior approval of the committee.
• [16] (12) That the major spending limit be set at $10,000.
• [17] (13) That the committee spending limit be set at $10,000.

• [18] (14) That the resolution pursuant to motion 13 be declared void and of no effect.

• [19] (15) That the resolution pursuant to motion 14 be declared void and of no effect.

16 - 17: Exclusive Use Parking Spaces for Caretakers. Expropriation of Parking Spaces by Caretakers

• [20] (16) That the resolution pursuant to motion 17 that the caretakers be granted exclusive use of two parking spaces be declared void and of no effect.
• [21] (17) That the caretakers be ordered to remove the markings "MANAGER" and the bollards on parking spaces 8 and 9 and rectify any damage, at their own expense within 14 days.

• [22] (18) That the resolution pursuant to motion 15 be declared void and of no effect.

• [23] (19) That the nominations of Tom Chen, Anna Zheng, Mike Chen, Grace Huang, Marilyn Biggs, Jie Chen and Chien-Wei Tiao, be declared invalid and that the following individuals be deemed as the only lawfully elected Committee Members:

John Frederick Purdon, Owner, Lot No. 1, self-nominated

• [24] (20) That the positions of Chairperson, Secretary and Treasurer be declared vacant and that the four lawfully elected members of the committee appoint a person who is eligible to each of the aforementioned positions on the committee in accordance with section 40(1)(a)(i) of the Accommodation Module.
• [25] (21) That the following nominations made by Tom Chen (Triple Wood Pty Ltd) be deemed invalid because Tom Chen (Triple Wood Pty Ltd) is an associate of the caretaker:

Anna Zheng - Treasurer (Wife of Tom Chen, Nominated by Lot 29)

Mike Chen - Ordinary Member (Brother of Tom Chen, Nominated by Lot 33)

Grace Huang - Ordinary Member (Mother of Tom Chen, Nominated by Lot 36)

• [26] (22)That the following nominations made by Jim Tiao (QST Developments Pty Ltd) be deemed invalid because Jim Tiao (QST Developments Pty Ltd) is an associate of the caretaker:

(a) Marilyn Biggs - Secretary (Tenant of the Caretaker, Nominated by Lot 13)

(b) Jie Chen - Ordinary Member (Nominated by Lot 46)

(c) Chien-Wei Tiao - Ordinary Member (Nominated by Lot 48)

• [27] (23) That the nomination of Marilyn Biggs made by QST Developments be deemed invalid because Marilyn Biggs is an associate of the caretaker.
• [28] (24) That the following nominations made by Tom Chen (Triple Wood Pty Ltd) be deemed invalid because Tom Chen (Triple Wood Pty Ltd) has nominated more than three individuals in conflict with section 18(2)(b) of the Accommodation Module:

Anna Zheng - Treasurer (Wife of Tom Chen, Nominated by Lot 29)

Mike Chen - Ordinary Member (Brother of Tom Chen, Nominated by Lot 33)

Grace Huang - Ordinary Member (Mother of Tom Chen, Nominated by Lot 36)

• [29] (25) That the body corporate remove the following charges from the body corporate account of Daniel Levick owner of Lot 45:

• [30] (26) That the body corporate apply the payment of $1,098.20 made on 01 November 2024 by Mr Levick against the body corporate levies for the Administration Fund, Sinking Fund and Insurance Levy.
• [31] (27) That the body corporate do not charge any further amounts to a lot owners' body corporate account that do not comply with the definition of a body corporate debt as defined in Schedule 1 Dictionary of the Accommodation Module.
• [32] (28) That the current body corporate managers, SSKB, and all future body corporate managers do not charge any amounts to a lot owners' body corporate account that do not comply with the definition of a body corporate debt as defined in Schedule 1 Dictionary of the Accommodation Module, regardless of any instructions from the committee.

• [33] (29) That the resolution pursuant to motion 3 be declared void and of no effect and that the body corporate be ordered to appoint an auditor to audit the Body Corporate Statement of Accounts for the financial year ending 31 July 2025.

• [34] The applicant has set out a chronological order of events starting on 21 August 2023 when Triple Wood Pty Ltd began to purchase lots at Flinders Village. Prices increased steadily and the last lot sold was lot 22 for $200,000 on 29 July 2024.
• [35] On 30 July 2024 - Vote Outside Committee - Tom Chen (Triple Wood Pty Ltd) was appointed Chairperson, Anna Zheng (Tom Chen's wife) was appointed Treasurer and Jim Tao (QST Developments) was appointed ordinary member of the committee. Mike Chen (Tom Chen's brother) and Grace Huang (Tom Chen's mother) were already members of the committee.[3]
• [36] On 16 August 2024 - Vote Outside Committee - The committee passed three resolutions to commence legal action against former committee members and body corporate managers SSKB.[4]
• [37] On 28 August 2024 - Committee Meeting - The committee passed the same three resolutions to commence legal action and proposes increasing the levies from $4,006.95 to $11,084.80 per annum.[5]
• [38] On 09 October 2024 - Annual General Meeting - The budget is passed increasing levies from $4,006.95 to $11,084.80 per annum but the motions to take legal action are defeated.[6]

• [39] The applicant says that the recent actions of the body corporate, including the levy increases and legal actions, have negatively impacted the market value of the lots. They say the substantial rise in levies may force owner occupiers and smaller investors to sell their lots.[7]

Table showing levy increases due as from 01 February 2025:

01.08.2024 $1,098.95 01.08.2025 $2,213.30 $1,114.35

01.11.2024 $1,100.20 01.11.2025 $2,214.65 $1,114.45

• [40] Requested Final Orders 01 and 02
  • 01. That the resolution pursuant to motion 5 be declared void and of no effect.

02. That the Administrative Fund Budget be reduced by $50,000.00 and the levies and advance issues be reduced accordingly.

5. Administrative Fund Budget and Advance Issue - Motion by Ordinary Resolution

i. The Body Corporate adopt the Administrative Fund Budget (copy attached in the meeting papers) totalling $210,000.00, (excluding GST) and $231,000.00 (including GST);

ii. Which equals $410.16 (excluding GST), and $ 451.17 (including GST) per contribution entitlement;

iii. There will be 2 levies issued this financial year to make up the balance of the Budget;

iv. There will be 2 advance issues for next financial year based on an average of the Budget for this financial year.[8]

(1) This resolution is in conflict with section 94(2) of the Act which requires the body corporate to act reasonably in anything it does.

(2) This resolution is in conflict with section 150(3)(a) of the Accommodation Module which requires the body corporate to provide for necessary and reasonable spending from the sinking fund.

• [43] He argues that given the outcomes of the recent Annual General Meeting, where Motions 9, 10, and 11 were defeated and Motion 19 was withdrawn, it would be unreasonable for the Body Corporate to impose a financial burden on owners by levying them for the $50,000 allocated to legal actions related to these motions.

• [44] 03. That the resolution pursuant to motion 6 be declared void and of no effect because this motion is in conflict with section 94(2) of the Act and section 150(3)(a) of the Accommodation Module.
• [45] 04. That the Sinking Fund Budget be reduced to $80,000.00 to conform with the Sinking Fund Forecast prepared by Phillips Safety Service Pty Ltd dated 08 May 2024 and the levies and advance issues be reduced accordingly.[9]

• [46] The Resolution pursuant to Motion 6 read as follows:

6. Sinking Fund Budget and Advance Issue - Motion by Ordinary Resolution

i. The Body Corporate adopt the Sinking Fund Budget (copy attached in the meeting papers) totalling $187,000.00, (excluding GST) and $205,700.00 (including GST);

ii. Which equals $365.23 (excluding GST), and $ 401.76 (including GST) per contribution entitlement;

iii. There will be 2 levies issued this financial year to make up the balance of the Budget; and

iv. There will be 2 advance issues for next financial year based on an average of the Budget for this financial year.

(1) This resolution is in conflict with section 94(2) of the Act which requires the body corporate to act reasonably in anything it does.

(2) This resolution is in conflict with section 150(3)(a) of the Accommodation Module which requires the body corporate to provide for necessary and reasonable spending from the sinking fund.

(a) It is unreasonable in terms of section 94(2) of the Act to impose an oppressive financial burden on owners to fund unexplained and unjustified discretionary "improvements" detailed below which are not included in the Sinking Fund Forecast prepared by Phillips Safety Service Pty Ltd dated 08 May 2024

(b) It is unreasonable in terms of section 94(2) of the Act to impose an oppressive financial burden on owners to fund unexplained and unjustified discretionary "improvements" which he does not believe to be necessary and reasonable in terms of 150(3)(a) of the Accommodation Module.

• [48] The applicant argues that the proposed upgrades are discretionary improvements and not maintenance or repairs. He says the total cost of improvements was $98,000, comprising the following:

a) Caretakers' Balcony Leak - $55,000.00 : The owner of Lot 51 is responsible for repairs to their balcony, making this expenditure unlawful. > > b) Storage Area - $10,000.00 : The applicant says the proposed enclosure is a discretionary improvement, not maintenance or repairs. > > c) Bollard Lighting - $8,000.00 : The applicant says replacing bollard lights with walkway lighting is a discretionary improvement, not maintenance or repairs.

d) Common Room Upgrade - $10,000.00 :

e) Additional CCTV Cameras - $15,000.00 : The applicant says the purchase of additional cameras is a discretionary improvement, not maintenance or repairs.

• [49] The applicant says the Caretakers' Balcony, Bollard Lighting and Common Room Upgrade were proposed as motions at the Annual General Meeting held on 09 October 2024 and these three issues are the subject of separate orders sought (Final Orders Sought 14, 15 and 18) and full details have been provided in the Grounds for these orders.
• [50] The only explanation or mention of the other two issues, the Additional CCTV Cameras and Enclosing of the Storage Area, is in the minutes of the Budget Meeting held on 28 August 2024 :

The Building Manager advised the Committee that there are a few areas on the Complex that are blind spots for the current CCTV equipment. It was suggested that further CCTV equipment be purchased to cover these areas.

• [51] The applicant argues that this project does not involve maintenance or repairs and could only be described as a "discretionary improvement". He says it is not reasonable to impose financial hardship on owners by conducting this work just because "there are a few areas on the complex that are blind spots...".
• [52] The body corporate spent $16,125.26 on CCTV in the 2023 budget, $16,047.73 on CCTV in the 2024 budget and are now proposing to spend another $15,000.00 on CCTV this year. This proposed expenditure will bring the total amount spent on CCTV to $47,172.99 over a three year period.[10]

Enclosure of Storage Area Next to the Kitchen - $10,000.00

• [53] The applicant says there is no explanation or justification has been provided for this expenditure and the only justification or explanation provided for this expenditure from the budget meeting is Item 3.13 from the minutes of the Budget Meeting held on 28 August 2024.

The Committee advised that the storage area behind the kitchen needs to be enclosed. It was opined that the value of this work is roughly $10,000.00 (excluding GST).

i. The Community Manager is instructed to include this figure within the proposed Sinking Fund Budget for the 2024/2025 year; and

ii. The Building Manager source quotes for this purpose.

• [54] He says this storage area has been this way since the Village was built in 2007 and forms part of the Approved Development Plan for Flinders Village. It is argued that this project is not maintenance or repairs and could only be described as a discretionary improvement. The applicant submits that it is not reasonable to impose financial hardship on owners by conducting this work just because - " The Committee advised that the storage area behind the kitchen needs to be enclosed. "
• [55] The applicant states that the majority of Owner Occupiers and tenants are in their 70s, not in the best of health, and their only source of income is the age pension, currently $29,754.40 per annum. This substantial increase in body corporate fees, from $4,006.95 to $11,084.80 per year (or from $77.00 to $213 per week), represents an additional weekly cost of $136.11 out of the pension of $572.20 per week for both owner-occupiers and renters. Landlords will pass on this increased cost to tenants in the form of higher rent. The applicant says these expenses represent a 275% surge in annual costs, which is beyond the rate of inflation and wage growth.
• [56] He says the increase in body corporate fees is due to unnecessary, discretionary improvements rather than essential maintenance and repairs. By prioritising non-essential projects, the body corporate is acting unreasonably by disregarding the basic needs of its vulnerable residents.

• [57] At the outset it should be noted that the approval of a budget does not amount to an approval of expenditure. Each item of expenditure of expenditure must still be approved by the appropriate resolution by the body corporate committee or by a general meeting depending on the level of expenditure.
• [58] I note that the Body Corporate considered Motions 5 and 6 at the Annual General Meeting (AGM) on 9 October 2024. Motions 5 and 6 respectively considered the Administrative Fund Budget and Sinking Fund Budget, as well as levies for period 01/02/2025 to 31/07/2026. Motions 5 and 6 were carried on the basis of the following vote count:

• Motion 6: 24 Yes, 16 No, NIL Abstain [11]

• [59] I also note that in December 2024, 25% of Lot Owners requested that the Body Corporate convene a EGM pursuant to s.74 of the AM 2020.[12] An EGM was held on 7 February 2025 where motion 10 ("Rejection of increased administrative fund budget and advance issue and adoption of reduced administrative fund budget and advance issue by ordinary resolution") and motion 11 ("Rejection of increased sinking fund budget and advance issue and adoption of reduced sinking fund budget and advance issue by ordinary resolution") were included on the EGM voting paper in accordance with s.78(6)(a) of the AM 2020 and Lot Owners voted accordingly.
• [60] The outcome of motions 10 and 11, In relation to the Administrative Fund Budget and Sinking Fund Budget for the 2024-2025 financial year (to reject the outcome in the 2024 AGM motions 5 and 6) were lost on the basis of the following vote count:

• Motion 11: 21 Yes, 24 No, NIL Abstain.[13]

• [61] The applicant notes that one of the major items in the sinking fund budget is proposed repairs to the Caretakers' Balcony Leak "at a cost not to exceed $55,000.00". As the applicant has argued that the owner of Lot 51 is responsible for these repairs, I undertook a review of relevant documentary evidence.
• [62] I note that Prior to the committee meeting on 18 September 2020, the onsite manager reported a water leak issue as water had been pooling within unit 51 balcony causing water seepage via the joint between the balcony and the wall of the building.
• [63] It is evident that the leakage has caused water damage to the Common Area community kitchen and hallway ceiling. The body corporate and their insurer were both of the view that it was a Body Corporate responsibility. However the insurer was of the view that this repair work was not claimable under their insurance policy and therefore the body corporate had to meet the cost of the rectification work.
• [64] It is evident that the waterproofing membrane in lot 51 failed. As the scheme is registered pursuant to a Building Format Plan of subdivision, the Body Corporate is responsible under s.170(2)(a)(iii) AM 2020 for maintaining: "...roofing membranes that are not common property but that provide protection for lots or common property."
• [65] The Body Corporate is also responsible for the structural elements of the Lot 51 balcony structure pursuant to s.170(2)(b) AM 2020, which requires the Body Corporate to:

maintain in a structurally sound condition the following elements of scheme land that are not common property -

(i) foundation structures;

(ii) roofing structures providing protection;

(iii) essential supporting framework, including load-bearing walls.

• [66] Lot 51 is situated directly above the Common Room which similarly suffered water damage. I note that Quotes were received from NEIS (QU-88045) in the amount of $35,025.10 incl. GST and Goldensands Construction Group Pty Ltd (1703202101) in the amount of $8,800.00 incl. GST for necessary rectification work to the Common Area and associated Lot 51 damage.
• [67] At the interim stage I noted that in addition to the requirement to undertake works to lot 51 and repair damage to Common Property, in proposing the 2024- 2025 budgets the Committee was aware that there were significant rectification works to undertake including repairs to dilapidated boundary fences, foundation issues relating to some Lots, other structural issues throughout the Common Property.
• [68] While the Body Corporate has a current Sinking Fund Forecast (and therefore has expected capital spending in accordance with s.150(3)(a) of the AM 2020), the Body Corporate was also required to raise further amounts to meet necessary capital expenditure for the 2024-2025 financial year, which have not been forecasted in the current Sinking Fund Forecast for the 2024-2025 financial year. I believe it is appropriate for the body corporate to include in its sinking fund budget expenditure that is required in order for the Body Corporate to necessarily discharge its statutory obligation to maintain Common Property under s.170 AM 2020. The requirement that the body corporate act reasonably underpins the body corporate's decision in setting the sinking fund budget in order to provision reasonable funds for necessary expenditure for the current year.
• [69] In my interim decision, Flinders Village [2025] QBCCMCmr 25, I noted that:

[19] The Committee says that it specifically turned its mind to the increased amount

of contributions in the budget Committee meeting held 28 August 2024 and

considered the budgets were reasonable and necessary based on "contractual

expenses and routine outgoings, with funding set aside for legal expenses" and

"landscaping, building remediation works and upgrades to lighting, fencing and

common areas". I note that the sinking fund budget was prepared in accordance with

the sinking fund forecast prepared for the scheme. I also note that the applicant does

not challenge the resolution of the Committee at the budget Committee meeting on

28 August 2024 to propose those budgets or any other aspect about the calling and

holding of the 2024 AGM. Nor is it alleged that the procedural requirement regarding

[20] It is evident that the levies have increased substantially for the current year and

not surprisingly, the applicant is displeased with the outcome of voting on Motions 5

• [70] For the above reasons I am of the view that there is no basis to make Orders 1- 4, requested by the Applicant.

(05) That the body corporate be ordered to immediately cease and desist all legal proceedings, including but not limited to, sending legal letters, issuing notices of demand, or filing lawsuits, against any former committee members, lot owners or former lot owners.

(06) That the body corporate be ordered not to take any legal action against current, former or future voting committee members, or any other owners, including but not limited to, sending legal letters, issuing notices of demand, or filing lawsuits, without an Adjudicator's order.

(07) Refrain from initiating any new legal proceedings, including but not limited to, sending legal letters, issuing notices of demand, or filing lawsuits, and further to refrain from seeking legal advice of any kind, without obtaining the prior approval of the body corporate at a general meeting.

• [72] The applicant notes that at the 2024 AGM, Motions 9, 10 and 11 were defeated and the Chairperson advised the meeting that owners motion 19 had been "withdrawn", but he says the above orders are still required because the committee remains determined to taking legal action as evidenced by:

(a) the EGM held on 08 February 2024,

(b) the VOC held on 16 August 2024,

(c) the committee meeting held on 28 August 2024 and

• (d) motions 9, 10, 11 at the AGM held on 09 October 2024.[14]
• [73] The applicant says the body corporate committee initiated legal proceedings without obtaining the necessary approval from lot owners at a general meeting, as required by Section 312(b) of the Act.
• [74] The applicant says the secretary, Marilyn Biggs and chairperson Tom Chen, signed a Costs Disclosure and Costs Agreement totalling $52,020.00 with CJM Lawyers on 18 August 2024 without proper authorization in breach of section 312(b) and 162 of the BCCM Act. This Costs Disclosure and Costs Agreement includes commencing proceedings in the Magistrates Courts (Stage 2) and to prepare for and attend trial (Stage 4).
• [75] The applicant also argues that signing this Costs Disclosure and Costs Agreement is also a breach of section 162 of the Act because it exceeds the committee's maximum spending limit. At $52,020.00, the Costs Agreement is more than double the committee's spending limit. He does not believe this can be defended as an oversight because the committee sought owners approval at the 09 October 2024 AGM through committee motion 12 to increase the committee spending limit from $20,000 to $50,000. This indicates they were aware of section 162 of the Act and that they knew they were exceeding the maximum spending limit for the committee.
• [76] Further, the applicant says that the body corporate is not acting reasonably by threatening and engaging in legal action which has the effect of:

Deterring owners from nominating for the committee.

Discouraging potential buyers from outside the Village.

• [77] At the last AGM, Committee Motions 9 and 10 and Owners Motion 19 proposed by Chien-Wei Tiao (current committee member) collectively proposed legal action against the following owners and former owners:

Glorine (Fran) Saunders, Former Chairperson (Motion 9)

Greg Levick, Former Treasurer and Ordinary Member. (Motion 9)

Diane McKenna, Former Chairperson/Secretary (Motion 10)

Greg Levick, Former Treasurer and Ordinary Member(Motion 10)

Daniel Levick, nominator of Greg Levick (Motion 19)

• [78] The applicant also states that the Caretaker, Chien-Hao Steven Lin is also taking independent legal action for alleged defamation against the following former committee members:

Darryl Dixon, former Chairperson and Ordinary Member.

Patrick McKenna, former Secretary and Ordinary Member.

Diane McKenna, former Chairperson/Secretary.[15]

• [79] In relation to the Applicant's Order 05, the Respondent submits and relies upon my discussion and determination in the interim decision of Flinders Village [2025] QBCCMCmr 25 at [26] - [32].
• [80] The applicant previously sought interim orders that the body corporate be ordered to:

(a) Immediately cease and desist all legal proceedings, including but not limited to, sending legal letters, issuing notices of demand, or filing lawsuits, against any former committee members, lot owners or former lot owners.

(b) Immediately revoke any authorisation granted to the caretaker to communicate with body corporate lawyers or to convey instructions on behalf of the body corporate.

(c) Refrain from initiating any new legal proceedings, including but not limited to, sending legal letters, issuing notices of demand, or filing lawsuits, without obtaining the prior approval of the body corporate at a general meeting, as required by Section 312 of the BCCM Act.

(d) Refrain from engaging legal representation to provide advice or to respond to this application for interim and final orders.

• [81] As I previously noted, it is evident that at the last AGM the following motions were considered and lost:

9. Commence Legal Proceeding Against Previous Committee Members to Recover Unauthorised Expenditures - Motion by Special Resolution - LOST

10. Commence Legal Proceeding Against Previous Committee Members to Recover Body Corporate Assets - Motion by Special Resolution - LOST

1. Commence Legal Proceedings Against Body Corporate Service SSKB to Subpoena Full Body Corporate Service SSKB to Subpoena Full Body Corporate Records - Motion by Special Resolution - LOST

• [82] I also note that on 16 August 2024, the current committee purportedly resolved pass the following motions:
  1. commence legal proceedings against previous committee members to recover losses suffered by the body corporate due to the previous committee's unauthorised expenditure (Motion 1);
  2. commence legal proceedings against previous committee members to recover losses suffered by the body corporate due to the previous committee's failure to return body corporate assets (Motion 2); and
  3. commence legal proceedings against the body corporate manager, SSKB to subpoena full body corporate records (Motion 3).
• [83] Those Committee resolutions purporting to authorize legal proceedings, were previously the subject of an adjudication application[16] by another lot owner. In an interim decision dated 16 October 2024, an Adjudicator made the following Interim order:

Pending final determination of this application, the body corporate must not implement the motions passed outside of committee meeting dated 16 August 2024 to commence legal proceedings against former committee members and the body corporate manager, SSKB.

• [84] Accordingly, it is unnecessary for me to make any orders requiring the respondent to cease the above legal proceedings against former committee members and the body corporate manager, SSKB.
• [85] The applicant is also seeking broad prohibitory interim orders that go beyond prohibiting the commencement of legal proceedings. As the respondent points out, the applicant is seeking orders that are broad enough to prevent the body corporate from finalising existing proceedings, not taking any pre-litigation steps against anyone and commencement of new proceedings.
• [86] However a body corporate can take steps to protect its interests, including commencement of legal proceedings. While there may be concerns that future proceedings may not be brought in good faith, I am unable to impose a blanket prohibition on bringing further proceedings but I remind the respondent that any future legal proceedings may only be commenced in compliance with section 312 of the Act.

_(_8) That the body corporate be ordered to immediately revoke the current authorisation granted to the caretaker to liaise with the body corporate lawyers and to pass on the body corporate's instructions, and is prohibited from granting any future such authorisation to the caretaker under any circumstances whatsoever.

• [88] The applicant notes that Motions 9, 10, 11 and 19, previously considered at the last AGM, included the following wording:

Authorize the Secretary of the Flinders Village Body Corporate Committee and Onsite Manager of Flinders Village to Liaise with competent legal practitioner and pass on the Body Corporate instructions to them from time to time.[17]

• [89] The applicant says it is entirely inappropriate for the Caretaker whose role is limited to caretaking, cleaning, and maintenance duties as specified in the Caretaking Services Agreement, to interact directly with body corporate lawyers and to convey instructions on behalf of the body corporate.

• [90] As I previously noted, it is evident that at the last AGM the following motions were considered and lost:

9. Commence Legal Proceeding Against Previous Committee Members to Recover Unauthorised Expenditures - Motion by Special Resolution - LOST

10. Commence Legal Proceeding Against Previous Committee Members to Recover Body Corporate Assets - Motion by Special Resolution - LOST

1. Commence Legal Proceedings Against Body Corporate Service SSKB to Subpoena Full Body Corporate Service SSKB to Subpoena Full Body Corporate Records - Motion by Special Resolution - LOST

• [91] Consequently, the requested outcome is no longer relevant or required.
• [92] In any event however, the body corporate points out that in that past it has merely provided directions to the Caretaker Manager to pass on instructions to an engaged lawyer. It is submitted that the Caretaker has not purported to make any decisions on behalf of the body corporate and has only acted as a conduit to the conveying of the Committee's instructions from time to time.

(9) That Marilyn Biggs, current secretary and Tom Chen, current chairperson be removed from the committee and be prohibited from holding any position on the committee in the future and further that Tom Chen be prohibited from nominating any other person to be a member of the committee in the future.

• [94] The applicant notes that the secretary, Marilyn Biggs and chairperson Tom Chen signed a Costs Disclosure and Costs Agreement totalling $52,020.00 with CJM Lawyers on 18 August 2024 without proper authorization in breach of section 312(b) and section 162 of the BCCM Act. The applicant believes that their actions constitute a serious breach of their duties as committee members.[18]
• [95] More specifically, the applicant believes they contravened section 312 of the Act by signing a Costs Agreement with CJM Lawyers without obtaining the necessary approval from lot owners by way of a Special Resolution at a general meeting.
• [96] Secondly, the applicant believes they contravened section 162 of the Act by exceeding the committee's spending limit of $20.000.00 when they signed a Costs Agreement with CJM Lawyers, incurring a financial liability of $52,020.00 without obtaining the necessary approval from lot owners at a general meeting.

• [97] The applicant says the body corporate committee initiated legal proceedings without obtaining the necessary approval from lot owners at a general meeting as required by Section 312(b) of the Act.[19] He further states that the secretary, Marilyn Biggs and chairperson, Tom Chen signed a Costs Disclosure and Costs Agreement totalling $52,020.00 with CJM Lawyers on 18 August 2024 without proper authorization in breach of section 312(b) of the BCCM Act. He says this Costs Disclosure and Costs Agreement includes commencing proceedings in the Magistrates Courts (Stage 2) and to prepare for and attend trial (Stage 4).
• [98] The applicant says that signing this Costs Disclosure and Costs Agreement also contravened section 162 of the Act because it exceeded the committee's maximum spending limit. At $52,020.00, the Costs Agreement was more than double the committee's spending limit. He says that given the unauthorised nature of these legal proceedings, the body corporate should be ordered to immediately cease all legal actions and revoke any authority granted to the committee members and the caretaker to engage in such actions.
• [99] However it is evident that the last AGM the following motions were considered and lost:

9. Commence Legal Proceeding Against Previous Committee Members to Recover Unauthorised Expenditures - Motion by Special Resolution - LOST

10. Commence Legal Proceeding Against Previous Committee Members to Recover Body Corporate Assets - Motion by Special Resolution - LOST

1. Commence Legal Proceedings Against Body Corporate Service SSKB to Subpoena Full Body Corporate Service SSKB to Subpoena Full Body Corporate Records - Motion by Special Resolution - LOST

• [100] Nevertheless, it is of concern to me that the elected secretary, Marilyn Biggs and chairperson, Tom Chen signed a Costs Disclosure and Costs Agreement totalling $52,020.00 with CJM Lawyers on 18 August 2024 without proper authorization in breach of section 312(b) and section 162 of the BCCM Act.
• [101] Section 101B of the Act requires committee voting members to comply with a Code of conduct in the following terms:

(1) The code of conduct in schedule 1A applies to each person (a "committee voting member" ) who is -

(a) a committee member for a community titles scheme; and

(b) a voting member of the committee under the regulation module applying to the scheme.

(2) On becoming a committee voting member, the person is taken to have agreed to comply with the code of conduct.

(3) If a committee voting member breaches the code of conduct, the member may be removed from office in the way prescribed under a regulation.

SCHEDULE 1A - Code of conduct for committee voting members

1. Commitment to acquiring understanding of Act, including this code

A committee voting member must have a commitment to acquiring an understanding of this Act, including this code of conduct, relevant to the member's role on the committee.

(1) A committee voting member must act honestly and fairly in performing the member's duties as a committee voting member.

(2) A committee voting member must not unfairly or unreasonably disclose information held by the body corporate, including information about an owner of a lot, unless authorised or required by law to do so.

A committee voting member must act in the best interests of the body corporate in performing the member's duties as a committee voting member, unless it is unlawful to do so.

A committee voting member must take reasonable steps to ensure the member complies with this Act, including this code, in performing the member's duties as a committee voting member.

• [103] The applicant has identified conduct which may have involved a breach of the Code of Conduct for Committee Members which could justify action under 101B(3) of the Act and section 37 of the AM which provides as follows:

37 Removal from office for breaching code of conduct - Act, s 101B

(1) For section 101B (3) of the Act , this section prescribes the way a voting member may be removed from office for breaching the code of conduct.

(2) A body corporate may begin the process to remove a member only by deciding, by ordinary resolution, to give the member a written notice stating each of the following matters -

(a) that the body corporate believes the member has breached a stated provision of the code of conduct;

(b) details sufficient to identify the breach in not more than 600 words;

(c) that the member may give any other member of the body corporate, within the stated period of at least 21 days after the member is given the notice, a written response to the notice in not more than 600 words;

(d) that, if asked by the member, the body corporate will pay the member all postage charges and photocopy expenses reasonably incurred by the member in giving a written response under paragraph (c) to any other member of the body corporate;

(e) that the body corporate is to consider a motion to remove the member from office for the breach at the next general meeting of the body corporate called after the period mentioned in paragraph (c) ends.

(3) If asked by the member, the body corporate must pay the member all postage charges and photocopy expenses reasonably incurred by the member in giving a written response under subsection (2) (c) to any other member of the body corporate.

(4) If a notice under subsection (2) is given to the member and the period mentioned in subsection (2) (c) has ended, the body corporate must -

(a) include on the agenda of the next general meeting of the body corporate, called after the period ends, a motion to remove the member from office for breaching the code of conduct; and

(b) attach to the agenda a copy of the notice given to the member.

(5) At the next general meeting mentioned in subsection (4) (a) , the member may be removed from office by ordinary resolution.

• [104] However it should be noted that it is for the body corporate to take action in accordance with section 37 of the AM. There is no power under the Act for an adjudicator to remove a member of a committee for an alleged breach of the committee code of conduct. Rather, a committee member may be removed from office by owners. In summary, where a body corporate believes a voting member of its committee has breached the code of conduct for the member, the body corporate may decide, by ordinary resolution, to give the member a written notice identifying the alleged breach and to invite them to respond in writing, within a stated period of at least 21 days. In appropriate circumstances, the member may be removed from office, by ordinary resolution of the body corporate, at the next general meeting.
• [105] In my view, the existence of that power to remove a member, being specifically vested in owners and with very prescriptive requirements as to notice, clearly indicates that the general power vested in an adjudicator does not extend to, in effect, overriding or short-cutting the specific process required by the Accommodation Module.
  • [106] In any event, I note that the current Committee Secretary Ms Biggs, and current Chairperson Mr Chen) were duly appointed at the AGM on 9 October 2024. Following a requested EGM, motions to remove them were considered at the EGM held on 7 February 2025, but those motions were defeated.

• [107] Requested Final Orders 10 and 11 are as follows:

(10) That the resolution pursuant to motion 12 to increase the caretaker's spending limit be increased from $500 to $3,000 per month be declared void and of no effect.

(11) That the Caretaking Services Contractor be ordered not to incur any expenditure of body corporate funds of any kind without the specific prior approval of the committee.

• [108] The applicant says that at the last AGM it was resolved that the onsite manager's spending limit be increased from $500.00 (excluding GST) to $3,000.00 (excluding GST) per month in total that may be spent without any prior approval of the Committee for any expenditure concerned.
• [109] He says this contravenes section 97 of the Act which provides that a body corporate can not delegate its powers. He says that allowing the Onsite Manager/Caretaker to spend up to any amount of body corporate funds per month without any prior approval from the committee is an example of delegating authority. The Onsite Manager/Caretaker has no authority under the Act or Regulation to spend body corporate funds for any purpose and any conflicting terms in a contract are null and void under section of the Act which prohibits contracting out of the provisions of the Act.
• [110] I therefore decline to make requested order 9.

• [111] As mentioned above, the Body Corporate duly passed a resolution at the AGM held on 9 October 2024 (Motion 12) to increase the Caretaker Manager (On-Site Manager) limit.
• [112] Motion 12, considered at the last AGM was carried with 23 YES votes and 17 NO votes. It read as follows:

12. Review of Expenditure Limits - Motion by Ordinary Resolution

RESOLVED THAT the onsite manager/s spending limit be increased from $500.00 (excluding GST) to $3000.00 (excluding GST) per month in total that may be spent without any prior approval of the Committee for any expenditure concerned;

AND RESOLVED THAT Scheme's major spending limit - be increased from $20,000.00 (excluding GST) to $50,000.00 (excluding GST) each transaction;

AND RESOLVED THAT Committee spending limit - be increased from $20,000.00 (excluding GST) to $50,000.00 (excluding GST) each transaction.

• [113] The respondent states that the intent of the above provisions in the Agreement is to facilitate the efficient discharge of the Caretaking duties. It says this is a matter of contract and a wide-spread practice in Queensland under most Caretaking Agreements.
• [114] However I am concerned that the body corporate has purported to give the onsite manager authority to spend up to $3000.00 (excluding GST) per month without any prior approval of the Committee for any expenditure concerned.
• [115] The respondent body corporate points out that the Onsite Manager/Caretaker, is entitled to undertake authorised expenditure under the Caretaking and Letting Agreement which was duly entered into with the Body corporate pursuant to an Ordinary Resolution in 2011.
• [116] I note that clause 3.7 of the Agreement provides a spending authority for the Caretaker in the following terms:

The On-Site Manager may, with the prior approval of the Body Corporate for the expenditure concerned, spend up to the Expenditure Limit, to purchase consumable supplies and materials, to engage tradesmen to carry out Skilled Work and for other purposes reasonably necessary to perform the Manager's Duties. The Body Corporate must promptly reimburse the On-Site Manager for any expenditure authorised by this clause.

• [117] I also note that clause 1.1 of the Agreement defines "Expenditure Limit" in the following terms:

Expenditure Limit means the relevant limit for committee expenditure as defined in the regulation module applying to the Scheme.

• [118] However section 97 of the Act provides that a body corporate can not delegate its powers. This means it cannot give someone else the authority to make decisions on its behalf regarding the spending of body corporate funds.
• [119] As the applicant points out, allowing the Onsite Manager/Caretaker to spend up to $3000.00 (excluding GST) of body corporate funds per month without any prior approval from the committee is an example of delegating authority. The Onsite Manager/Caretaker has no authority under the Act or Regulation to spend body corporate funds for any purpose.
  • [120] I am of the view that the first clause of the motion contravenes section 97 of the Act by purportedly authorising the delegation of body corporate powers to the caretaking service contractor. In this context, I consider that part of the motion to be invalid. Section 97 of the Act provides that the body corporate cannot delegate its powers. There are only two decision making bodies of the body corporate - the body corporate in general meeting and the committee. Accordingly, the Act does not recognise (or grant any powers to) any entity outside of these two bodies and the body corporate cannot delegate its powers to any other body. This conclusion is supported by the matter of Maria Creek Estate[20] where the adjudicator stated:

The Act specifically provides that a body corporate cannot delegate its powers (Act, 97). The legislation establishes two decision making bodies of the body corporate. These are the body corporate committee and the body corporate in general meeting. The committee has the power to decide most day to day issues concerning the body corporate but some issues are restricted for the consideration of owners in general meeting (Act, 100). All decisions of the body corporate should be in the form of a resolution of one of these bodies.

• [121] Further, section 318 of the Act prohibits waiving or limiting the exercise of rights under the Act, or contracting out of the provisions of the Act. The strict statutory limits imposed by the Act and the various limits on expenditure were recognised by the District Court in the appeal of an order of an Adjudicator concerning expenditure by a caretaker without authorisation by the body corporate.[21] In that instance the body corporate was required to pay for various consumables the manager purchased on behalf of the body corporate and various repairs made for the body corporate's benefit. However, the manager was refused recovery of payments for some other work that the body corporate had not approved before the work was performed. The court stated that "usually there can be no recovery where work is done without the approval or consent of the property owner".
  • [122] For the above reasons I have made a final order that the resolution purportedly passed pursuant to motion 12 at the AGM on 9 October 2024 is invalid to the extent that it purports to authorise the onsite Manager/Caretaker to spend up to $3000.00 (excluding GST) of body corporate funds per month, without any prior approval from the committee.

(12) That the major spending limit be set at $10,000.

(13) That the committee spending limit be set at $10,000.

• [124] The applicant argues that increasing the major spending limit from $20,000 to $50,000 without explanation or justification is unreasonable under Section 94(2) for the following reasons:

(a) The absence of any explanation or justification for the increase raises concerns about transparency and accountability.

(b) A higher spending limit without adequate oversight could increase the risk of misuse of funds or financial mismanagement.

(c) A higher spending limit could lead to increased costs for lot owners, as the body corporate may be more likely to undertake larger projects or expenses without seeking competitive bids.

(d) The Accommodation Module prescribes that if no amount has been set, the major spending limit is the lesser of an amount calculated by multiplying $1,100.00 by the number of lots in a scheme or $10,000.00 Therefore the default amount for this scheme is $10,000.00.

(e) Obtaining at least two quotes for significant expenditures (exceeding $10,000) is a sound financial practice that can lead to cost savings, improved quality, and greater transparency. For those situations where exceptional circumstances exist and it is not practicable for the body corporate to obtain two quotes, Section 163(6) of the Module allows the body corporate to obtain one quote.

• [125] As mentioned previously, Motion 12, considered at the last AGM was carried with 23 YES votes and 17 NO votes. It read as follows:

12. Review of Expenditure Limits - Motion by Ordinary Resolution

RESOLVED THAT the onsite manager/s spending limit be increased from $500.00 (excluding GST) to $3000.00 (excluding GST) per month in total that may be spent without any prior approval of the Committee for any expenditure concerned;

AND RESOLVED THAT Scheme's major spending limit - be increased from $20,000.00 (excluding GST) to $50,000.00 (excluding GST) each transaction;

AND RESOLVED THAT Committee spending limit - be increased from $20,000.00 (excluding GST) to $50,000.00 (excluding GST) each transaction.

• [126] As per the definition of "relevant limit for major spending" in Schedule 1 of the Accommodation Module, the Body Corporate may set as the relevant limit for major spending by ordinary resolution of the body corporate at a general meeting;
• [127] As per the definition for "relevant limit for committee spending", the Body Corporate may set as the relevant limit for committee spending by ordinary resolution of the body corporate at a general meeting;
• [128] The Body corporate points out that a similar resolution was passed at the AGM held on 20 October 2022 (Motion 10) which increased the following statutory spending limits [17 Yes, 4 No, NIL Abstain]:

(a) Scheme's major spending limit - be increased from $15,000.00 (excluding GST)

(b) Committee spending limit - be increased from $15,300.00 (excluding GST) to

• [129] The Body corporate also notes that the Applicant was a Committee Member at that time. While the same arguments raised by the Applicant in this application could equally be raised against the actions of the 2022 Committee pertaining the increases in spending limits (of which the Applicant was a standing member), no such dispute was raised for the 2022 increases by any Lot Owner.
• [130] I do not see any inherent issue with a majority of owners increasing the above spending limits and the legislation does not impose any restrictions on what the limit can be changed to. It would appear to me that lot owners were given the opportunity to vote on the respective increases in spending limits and the will of the Body Corporate was realised in a democratic manner by way of a General Meeting vote which ultimately carried.
• [131] Of course these monies may only be spent by the body corporate in performing its obligations to under the Act to:

(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and

(b) carry out the other functions given to the body corporate under this Act and the community management statement.

• [132] The body corporate submits that having regard to the significant required maintenance and rectification work that the Body Corporate faces in order to discharge its statutory duty concerning Common Property, it is entirely reasonable for the Body Corporate to consider and duly determine such an increase.
• [133] It should also be noted that two quotes must be obtained where proposed spending exceeds the relevant limit for major spending.

Expenditure on Exterior lighting and common room upgrade

(14) That the resolution pursuant to motion 13 be declared void and of no effect.

(15) That the resolution pursuant to motion 14 be declared void and of no effect.

• [135] Motion 13 considered at the AGM on 9 October 2024 and carried by 28 votes to 12:

13. Bollard Lighting - Motion by Ordinary Resolution

THAT the Body Corporate for Flinders Village approve for the overhead lights to be installed gradually throughout the scheme, by a suitably qualified contractor, approved by the Committee to replace Scheme Bollard Lighting, at a cost not to exceed $8,000 excluding GST in the financial year of 2024/2025 met by the Scheme's Sinking Fund.

• [136] The accompanying Explanatory Note read as follows;

Explanatory Note: as per the Budget Minutes of 28 August 2024, those present at the meeting discussed that many of the Scheme Bollard lights were old and out of date, with many areas that do not have working lights. It was confirmed that overhead lights throughout walkways would be a preferable option to improve on ongoing future lighting maintenance for the scheme throughout internal pathways.

• [137] The applicant argues that it is unreasonable to increase levies, imposing an unreasonable and oppressive financial burden on owners, to fund unnecessary, discretionary improvements. It is argued that it is not necessary to replace the existing bollard lights with overhead walkway lights for a number of reasons including the following:

(i) The existing bollard lights are all in working order and provide adequate illumination for the walkways.

(ii) The Sinking Fund Forecast prepared by Phillips Safety Services dated 08 May 2024 provided for the bollard lights to be replaced in 2030.

(iii) The bollard lights serve a crucial role in maintaining the security of the village by illuminating potential hiding spots within the shrubbery. Replacing these lights with walkway lights would compromise the overall security of the complex.

• [138] Motion 14 considered at the AGM on 9 October 2024 and carried by 26 votes to 14:

14. Upgrade to Common Areas - Refurbishment of Hall and Library - Motion by Ordinary Resolution

THAT the Body Corporate for Flinders Village approve for new furniture to be purchased for the Hall and Library, including repainting of these Common Areas, and to restore the floors of the Community Hall to be performed by a suitably qualified contractor at cost not to exceed $9,000.00 (excluding GST) in the financial year of 2024/2025 met by the Scheme's Sinking Fund.

• [139] The applicant argues that it is unreasonable to increase levies for the purpose of making improvements to the Community Hall including replacement of existing furniture, replacement of floor coverings and repainting.
• [140] The applicant believes that the internal paintwork, existing furniture and floor coverings are all in serviceable condition and says the Sinking Fund Forecast prepared by Phillips Safety Services dated 08 May 2024 provided for the existing furniture and floor coverings to be replaced in 2028. He does not believe it is It is not reasonable to undertake this work on the basis that the hall and library "are looking outdated and tired " and because the "floor needs upgrading. "

• [141] The Body Corporate is required to administer the Common Property and has a statutory duty to maintain Common Property under s.170(1) AM. The Body Corporate also has a Common Law duty of care to all lot owners. It says the adequate implementation of bollard lighting (the works) is in line with the statutory provisions and provides enhanced safety to all persons on the scheme land.
• [142] In relation to capital expenditure, compliance with a Sinking Fund Forecast Report is not mandatory so long as s.150(3)(a) AM 2020 is complied with. While it is prudent for a body corporate to follow the recommendations outlined in a sinking fund forecast there is no legal obligation to follow the forecast to the letter. In my experience it is not unusual for certain items of expenditure to arise earlier than expected, as it is for some items of expenditure to arise later than anticipated.
• [143] In the present case, the Committee submitted a motion to enhance lighting to the Common Areas and the proposal was clearly and unequivocally supported by Lot owners at the AGM in 2024 where Motion 13 was carried by 28 votes to 12.
• [144] Similarly, the Committee submitted a motion to replace existing furniture and floor coverings and to repaint the common room and the proposal was clearly and unequivocally supported by Lot owners at the AGM in 2024 where Motion 14 was carried by 26 votes to 14.
• [145] I would also point out that works such as replacement of floor coverings and repainting are generally characterised as maintenance work. It could be said that any maintenance or repair incorporates "a change" but such a change does not necessarily amount to an "improvement". Maintenance work will often involve the replacement of something with a new item or a modern equivalent, and may also enhance the appearance of something. However this does not mean that the maintenance or repair work involves making an "improvement" for the purposes of section 176 of the Accommodation Module.[22]

(16) That the resolution pursuant to motion 17 that the caretakers be granted exclusive use of two parking spaces be declared void and of no effect.

• [147] Motion 17 below was considered at the AGM on 9 October 2024. There were 23 votes in favour and 17 votes against:

17. Exclusive Car Parking Spots x 2 (two) be Assigned to the On-Site Manager Proposed by Triple Wood Pty Ltd as trustee for Triple Wood Trust of Lot 11 - Motion by Ordinary Resolution.

THAT 2 (two) car parking spots be assigned to the on-site Manager/s as exclusive use of car parking spots ."

• [148] Explanatory notes provided by the owner proposing motion.

17. Exclusive Car Parking Spots x 2 (two) be Assigned to the On-Site Manager Lot 11.

• [149] The applicant correctly states that this resolution conflicts with section 174 of the Accommodation Module.
• [150] Section 174(1) of the Act provides as follows:

Disposal of interest in and leasing or licensing of common property - Act, s 154 [SM, s 184]

(1) This section sets out the way and the extent that the body corporate is authorised -

(a) to sell or otherwise dispose of common property; and

(b) to grant or amend a lease or licence over common property.

(i) sell or otherwise dispose of part of the common property; or

(ii) grant or amend a lease or licence for more than 3 years over the whole of the common property; or

(iii) grant or amend a lease or licence for more than 10 years over part of the common property; and

(i) grant or amend a lease or licence for 3 years or less over the whole of the common property; or

(ii) grant or amend a lease or licence for 10 years or less over part of the common property.

• [151] I therefore believe it is appropriate to order that the resolution pursuant to motion 17 that the caretakers be granted exclusive use of two parking spaces be declared void and of no effect.

(17) That the caretakers be ordered to remove the markings "MANAGER" and the bollards on parking spaces 8 and 9 and rectify any damage, at their own expense within 14 days.

• [153] The applicant states that on or about June 12, 2024, the Caretaker unilaterally designated parking spaces 8 and 9 for his exclusive use by installing "MANAGER" markings and bollards. This action was taken without any authorization or approval from the body corporate, well in advance of the AGM held on 09 October 2024.
• [154] Attached to the application is a photograph taken on the day new line markings were completed. The applicant says the installation of the "MANAGER" markings and bollards without proper authorization, demonstrates a contempt and disregard for the Act and regulations governing the use of common property and suggests a lack of respect for the rights of other owners to use the car parks.
• [155] He says that therefore, it is crucial that the caretakers be ordered to remove the markings and bollards and rectify any damage caused at their own expense, to serve as a deterrent against future unauthorised actions and ensure that common property is used fairly and equitably for the benefit of all lot owners.

• [156] The applicant correctly states that resolution 17 conflicts with section 174 of the Accommodation Module. I believe that the actions of the caretaking service contractor were a result of the invalid resolution on Motion 17 and that therefore it is appropriate to make the following order:

That the caretakers be ordered to remove the markings "MANAGER" and the bollards on parking spaces 8 and 9 and rectify any damage, at their own expense within 14 days.

• [157] I therefore believe it is appropriate to order that the resolution pursuant to motion 17 that the caretakers be granted exclusive use of two parking spaces be declared void and of no effect.

(16) That the resolution pursuant to motion 15 be declared void and of no effect.

15. Balcony leak Rectification Works Lot 51 Water Leak - Motion by Ordinary Resolution

THAT in the interests of maintaining the Body Corporate Common Property, the Body Corporate authorises the Committee to engage a suitably qualified contractor, to carry out an inspection, provide a report/quotation on the restoration of water damage to the Common Area and Balcony of Lot 51 at a cost not to exceed $55,000.00 (excluding GST) to be paid from the Scheme's Sinking Fund.

• [160] As mentioned above It is evident that the waterproofing membrane on the balcony within lot 51 failed. As the scheme is registered pursuant to a Building Format Plan of subdivision, the Body Corporate is responsible under s.170(2)(a)(iii) AM 2020 for maintaining: "...roofing membranes that are not common property but that provide protection for lots or common property."
• [161] The Body Corporate is also responsible for the structural elements of the Lot 51 balcony structure pursuant to s.170(2)(b) AM 2020, which requires the Body Corporate to:

maintain in a structurally sound condition the following elements of scheme land that are not common property -

(iv) foundation structures;

(v) roofing structures providing protection;

(vi) essential supporting framework, including load-bearing walls.

• [162] Lot 51 is situated directly above the Common Room which similarly suffered water damage. I note that Quotes were received from NEIS (QU-88045) in the amount of $35,025.10 incl. GST and Goldensands Construction Group Pty Ltd (1703202101) in the amount of $8,800.00 incl. GST for necessary rectification work to the Common Area and associated Lot 51 damage.
• [163] For the above reasons I am of the view that there is no basis to make the orders requested by the Applicant.

And that the following individuals be deemed as the only lawfully elected Committee Members:

John Frederick Purdon, Owner, Lot No. 1, self-nominated

(20) That the positions of Chairperson, Secretary and Treasurer be declared vacant and that the four lawfully elected members of the committee appoint a person who is eligible to each of the aforementioned positions on the committee in accordance with section 40(1)(a)(i) of the Accommodation Module.

(21) That the following nominations made by Tom Chen (Triple Wood Pty Ltd) be deemed invalid because Tom Chen (Triple Wood Pty Ltd) is an associate of the caretaker:

Anna Zheng - Treasurer (Wife of Tom Chen, Nominated by Lot 29)

Mike Chen - Ordinary Member (Brother of Tom Chen, Nominated by Lot 33)

Grace Huang - Ordinary Member (Mother of Tom Chen, Nominated by Lot 36)

(22)That the following nominations made by Jim Tiao (QST Developments Pty Ltd) be deemed invalid because Jim Tiao (QST Developments Pty Ltd) is an associate of the caretaker:

Marilyn Biggs - Secretary (Tenant of the Caretaker, Nominated by Lot 13)

Chien-Wei Tiao - Ordinary Member (Nominated by Lot 48)

(23) That the nomination of Marilyn Biggs made by QST Developments be deemed invalid because Marilyn Biggs is an associate of the caretaker.

(24) That the following nominations made by Tom Chen (Triple Wood Pty Ltd) be deemed invalid because Tom Chen (Triple Wood Pty Ltd) has nominated more than three individuals in conflict with section 18(2)(b) of the Accommodation Module:

Anna Zheng - Treasurer (Wife of Tom Chen, Nominated by Lot 29)

Mike Chen - Ordinary Member (Brother of Tom Chen, Nominated by Lot 33)

Grace Huang - Ordinary Member (Mother of Tom Chen, Nominated by Lot 36)

• [170] The applicant argues that all seven members of the committee elected at the AGM held on 09 October 2024 are ineligible to be on the committee for the reasons set out below.
• [171] Firstly, the applicant believes that the following nominations are invalid because Tom Chen (Triple Wood Pty Ltd) is an associate of the Caretaker, which makes Tom Chen (Triple Wood Pty Ltd) and his nominees ineligible under section 11(2)(b) of the Accommodation Module.

Grace Huang - Ordinary Member (Nominated by Lot 36)

• [172] Section 11(2)(b) of the Accommodation module provides that a person is not eligible to be a voting member of the committee if that person is an associate of the caretaker.
• [173] The applicant believes that Mr Tom Chen is an "associate" of the caretaker because the caretaker acts as a letting agent for the lots owned by Tom Chen (Triple Wood Pty Ltd) and as such meets the definition of an associate under section 309(f) of the Act.
• [174] The applicant notes that section 309(3) of the Act exempts a "letting agent for the scheme" from the definition of "associate". However, he says the exemption does not apply because he does not believe the caretaker has the authorisation of the body corporate. Similarly he does not believe the caretaker meets the definition of a "scheme letting agent" under Section 16(2) of the BCCM Act, as they are not conducting a letting agent business subject to the Property Occupations Act 2014, which requires a resident letting agent licence under Section 27(1), which the caretaker does not have.
• [175] Next, the applicant says that the following nominations made by Jim Tiao (QST Developments Pty Ltd) should be deemed invalid because Jim Tiao (QST Developments Pty Ltd) is an associate of the caretaker:

Marilyn Biggs - Secretary (Tenant of the Caretaker, Nominated by Lot 13)

Chien-Wei Tiao - Ordinary Member (Nominated by Lot 48)

• [176] The applicant believes that Jim Tiao (QST Developments Pty Ltd) is an associate of the Caretaker because the address shown on the Roll List for Flinders Village CTS37247 for lots 13, 46 and 48, owned by Jim Tiao (QST Developments Pty Ltd) is 32 Portulaca St MacGregor. A Titles Office search shows the owners of this property are the caretakers, Chien-Hao Steven Lin and Chi-Yun Kuo. A Current Company Extract from ASIC confirms the registered address for QST Developments is 32 Portulaca St MacGregor.
• [177] Jim Tiao, known to the residents as "Jimmy" has been observed on a weekly basis performing the caretaker's duties including cleaning the Community Hall, blowing leaves off the walkways, pruning trees and shrubs and taking out the wheelie bins. This indicates Jim Tiao is either an employee of the caretakers or has some kind of association with the caretakers.
• [178] The applicant also says that it is common knowledge at the Village that the caretaker has been acting as a letting agent for the lots owned by QST Developments Pty Ltd The caretaker's involvement appears to be restricted to properties owned by Triple Wood Pty Ltd, QST Developments Pty Ltd, and the Etos Family Trust.
• [179] As regards requested order 23, the applicant says Marilyn Biggs is an associate of the caretaker because Ms Biggs is a tenant of the caretaker and as such meets the definition of an associate under section 309(f) of the BCCM Act. While the landlord- tenant relationship is not explicitly defined as a relationship in section 309 of the BCCM Act, the applicant believes that Ms Biggs could become accustomed or fall under an obligation to act in accordance with the directions, instructions or wishes of the Caretaking Contractor under section 309(f) of the BCCM Act, in addition to the power imbalance inherent in the landlord-tenant relationship.
• [180] As regards requested order 23, the applicant says the following nominations made by Tom Chen (Triple Wood Pty Ltd) be deemed invalid because Tom Chen (Triple Wood Pty Ltd) has nominated more than three individuals in conflict with section 18(2)(b) of the Accommodation Module:

Grace Huang - Ordinary Member (Nominated by Lot 36)

• [181] Section 18 (2)(b) of the Accommodation Module explicitly prevents a single lot owner from gaining majority control by limiting nominations to three out of the maximum of seven committee members. If a single entity can nominate more than three committee members, it could lead to situations where decisions are made in the best interests of that entity, rather than the best interests of the body corporate.
• [182] The specific wording of section 18(2)(b) limits the number of nominations per lot owner , and the intent is clearly to prevent any single entity from dominating the committee.
• [183] section (18)(2)(b) provides as follows:

(b) if the owner owns more than 2 lots and there are 7 or more lots included in the scheme - the owner may nominate 3 persons.

Mr and Mrs Brown own 5 lots in a scheme that includes 12 lots. Mr and Mrs Brown may nominate 3 persons for election."

• [184] The applicant says that nominating four individuals and their subsequent election has resulted in Triple Wood Pty Ltd gaining a majority on the committee and the ability to exercise significant control over its decisions.

• [185] It is evident that the last EGM on 7 February 2025 considered the following motions:

3. Removal of committee member Tom Chen (chairperson) & appointment of replacement by ordinary resolution.

4. Removal of committee member Marilyn Biggs (secretary) & appointment of replacement by ordinary resolution.

5. Removal of committee member Anna Zheng (treasurer) & appointment of replacement by ordinary resolution.

6. Removal of committee member Chien-Wei Tiao (ordinary) & appointment of replacement by ordinary resolution.

7. Removal of committee member Jie Chen (ordinary) & appointment of replacement by ordinary resolution.

8. Removal of committee member Mike Chen (ordinary) & appointment of replacement by ordinary resolution.

9. Removal of committee member Grace Huang (secretary) & appointment of replacement by ordinary resolution.

• [186] Each of the above motions were defeated with 21 Yes votes, 24 No votes, NIL Abstentions.[23]
• [187] The applicant argues that following nominations are invalid because Tom Chen (Triple Wood Pty Ltd) is an associate of the Caretaker, which makes Tom Chen (Triple Wood Pty Ltd) and his nominees ineligible under section 11(2)(b) of the Accommodation Module.

Grace Huang - Ordinary Member (Nominated by Lot 36)

• [188] Section 11(2)(b) of the Accommodation module provides that a person is not eligible to be a voting member of the committee if that person is an associate of the caretaker. The applicant believes that Tom Chen is an associate of the caretaker because the caretaker acts as a letting agent for the 10 lots owned by Tom Chen (Triple Wood Pty Ltd) and as such meets the definition of an associate under section 309(f) of the BCCM Act.
• [189] Under section 11(2)(b) a person is not eligible to be a voting member of the committee if that person is an associate of the caretaker. The term "associate" is governed by section 309 of the Act which provides:

(1) For this Act, a person is associated with someone else if -

(a) a relationship of a type to which this section applies exists between

(b) a series of relationships of a type to which this section applies can

be traced between them through another person or other persons.

(2) This section applies to relationships of the following types -

(a) marriage, de facto relationship or civil partnership;

(b) the relationship of ascendant and descendant (including the

relationship of parent and child) or the relationship of persons who

(f) the relationship of persons, 1 of whom is accustomed, or under an

obligation (whether formal or informal), to act in accordance with the

(g) the relationship of a corporation and executive officer of the

(h) the relationship of a corporation and a person who is in a position

to control or substantially influence the corporation's conduct.

(3) Despite subsection (2)(e) and (f), the owner of a lot in a community titles

scheme and a letting agent for the scheme are not associated merely because

executive officer, of a corporation, means a person who is concerned with, or

takes part in, the corporation's management, whether or not the person is a

director or the person's position is given the name of executive officer.

• [190] I note that Mr Tom Chen was in fact nominated as Chairperson at the 2024 AGM pursuant to a duly submitted nomination form. The Nomination form was submitted prior to the financial year end date for the scheme and it was advanced that Tom Chen be nominated pursuant to Lot 34 (owner by Triple Wood 24 Pty Ltd, a different company to Triple Wood Pty Ltd) dated and submitted on 27 July 2024.[24] However it would appear that the Minutes of the 2024 AGM as drafted and distributed by the then Body Corporate Managers, contained an error in the Chairperson Nomination, in that Tom Chen was incorrectly listed as nominating for Lot 11 (Triple Wood Pty Ltd).
• [191] The Minutes of the EGM held on 7 February 2025 record that the 2024 AGM minutes required correction in the following terms:

It was noted at the meeting that the AGM Minutes produced by the prior engaged Body Corporate Manager (SSKB) contained an error in relation to the nomination for Chairperson by Tom Chen.

The AGM minutes incorrectly noted "CHEN, Tom Lot 11 Self Nominated". The Company Nomination Form and Committee Nomination clearly stipulates that Tom Chen was nominating pursuant to Lot 34. Accordingly, the Minutes are to be rectified to reflect Lot 34 as the Chairperson's nominating Lot."

• [192] It should also be noted that subsection 309(3) of the Act specifically provides as follows:

The owner of a lot in a community titles scheme and a letting agent for the scheme are not associated merely because of their relationship as owner and letting agent.

• [193] I am of the view that the nomination by Tom Chen is not invalid merely because the Caretaker undertakes the letting of Lot 11 and Lot 34. The Caretaker is, by virtue of the valid Caretaking and Letting Agreement also a letting manager.[25] Clause 5 of the Caretaking and Letting Agreement permits the Caretaker Manager to also operate an exclusive Letting Business at the scheme. As the Caretaker is also a Letting Manager, the exclusion under s.309 BCCMA applies such that there is no offending associate relationship as alleged.
• [194] In relation to the nominations by Jim Tiao (QST Developments Pty Ltd), I note that the Caretaker Manager acts as the letting agent for QST Developments Pty Ltd. However for the above reasons this does not of itself make them associates under s.309 of the Act.
• [195] Similarly the fact that the nominated address on the Body Corporate Roll and on ASIC records is the same address as the Caretaker Manager (32 Portulaca Street, Macgregor Qld) does not make them associates.
• [196] The applicant states that Mr Jim Tiao has been observed performing duties such as cleaning the Community Hall, blowing leaves off the walkways, pruning trees and shrubs and taking out the wheelie bins. However I have no other evidence to establish that there is an Employer/ Employee relationship between Mr Tiao and the caretaker. I do not believe the applicant has provided sufficient evidence to discharge their onus to prove of proof on the balance of probabilities that there is a relationship of employer and employee. However I am not excluding this possibility and if the applicant is able to obtain further evidence of an Employer/ Employee relationship between Mr Tiao and the caretaker he would be entitled to make a further application in this regard.
• [197] In relation to nomination of Marilyn Biggs by QST Developments Pty Ltd I do not believe that a standard landlord-tenant relationship renders a person an "associate" under section 309 of the Act. Such a relationship is based on the lease agreement rather than a fiduciary duty.

(25) That the body corporate remove the following charges from the body corporate account of Daniel Levick owner of Lot 45:

(26) That the body corporate apply the payment of $1,098.20 made on 01 November 2024 by Mr Levick against the body corporate levies for the Administration Fund, Sinking Fund and Insurance Levy.

(27) That the body corporate do not charge any further amounts to a lot owners' body corporate account that do not comply with the definition of a body corporate debt as defined in Schedule 1 Dictionary of the Accommodation Module.

(28) That the current body corporate managers, SSKB, and all future body corporate managers do not charge any amounts to a lot owners' body corporate account that do not comply with the definition of a body corporate debt as defined in Schedule 1 Dictionary of the Accommodation Module, regardless of any instructions from the committee.

• [202] The applicant says that the body corporate has acted unreasonably and unlawfully by adding the following charges to the body corporate account of Daniel Levick, owner of Lot 45 and by crediting Mr Levick's levy payments against these unlawful charges:

$624.00 - Purchased Assets - 01 October 2024[26]

• [203] The applicant says the body corporate has not provided any legal basis for these charges to be added to Mr Levick's body corporate account.
• [204] Rather, the basis for these charges is essentially a potential, albeit improbable, claim for damages, which can only become a debt upon determination by a Court. And there has been no such determination to date. Therefore, the charges placed on Ms McKenna and Mr Levick's body corporate account are unlawful.
• [205] Section 238 of the Act provides as follows:

(1) A person, including the body corporate for a community titles scheme, may make an application if the person

(a) is a party to, and is directly concerned with, a dispute to which this chapter applies; and

(b) other than a body corporate who makes an adjudication application for an alternative insurance order has made reasonable attempts to resolve the dispute by internal dispute resolution.

(2) This section is subject to sections 183A and 184 to 186.

• [206] I do not disagree with the above arguments raised by the applicant. However as I pointed out in my interim decision in Flinders Village [2025] QBCCMCmr, I do not believe I am able to make an order regarding Mr Levick because this is a dispute between Mr Levick, the owner of Lot 45, and the body corporate.

(29) That the resolution pursuant to motion 3 be declared void and of no effect and that the body corporate be ordered to appoint an auditor to audit the Body Corporate Statement of Accounts for the financial year ending 31 July 2025.

3. Non-Audit of Accounts for Ensuing Financial Year - Motion by Special Resolution

RESOLVED THAT the Body Corporate Statement of Accounts for the year ending 31 July 2025 not be audited.

• [209] The applicant believes it is unreasonable of the body corporate not to have an audit conducted on the body corporate accounts for the financial year ending 31 July 2025 for the following reasons:

(a) A lay committee, and a body corporate manager that is not registered, licensed, or required to hold any formal qualifications, are responsible for maintaining the body corporate's financial records.

(b) The body corporate has increased the total budget expenditure from $233,888 in the 2024 financial year to $409,153 for the 2025 financial year. This increase is the subject of Final Orders

• [210] Clearly, the Body Corporate has overwhelmingly decided by a special resolution not to engage an auditor to undertake an audit of the financial statements for the year ending 31 July 2025. There is no doubt that there has been a significant increase in spending but approval of such spending is recorded in the minutes of committee/ body corporate meetings. An increases in spending for a financial year is not sufficient justification for requiring a mandatory audit with the attendant fees.

• [211] For the above reasons I have made the following final orders:
  1. I declare that the resolution purportedly passed pursuant to motion 12 at the AGM on 9 October 2024 is invalid to the extent that it purports to authorise the onsite Manager/Caretaker to spend up to $3000.00 (excluding GST) of body corporate funds per month, without any prior approval from the committee.
  2. I order that the Caretaking Services Contractor is not to incur any expenditure of body corporate funds without the approval of the committee.
  3. I declare that that the resolution pursuant to motion 17, that the caretakers be granted exclusive use of two parking spaces is void and of no effect.
  4. The application is otherwise dismissed.

[3] Attachment 011 - Minutes of VOC 30 July 2024.pdf

[4] Attachment 008 - Minutes of VOC 16 August 2024.pdf

[5] Attachment 009 - Minutes of Committee Meeting 28 August 2024.pdf

[6] Attachment 001 - Minutes of AGM 09 October 2024.pdf

[7] 2024 figures - [ Attachment 012 - Minutes of AGM 26 October 2023 ]

2025 figures - [ Attachment 001 - Minutes of AGM 09 October 2024.pdf ]

[8] Attachment 001 - Minutes of AGM 09 October 2024.pdf

Attachment 013 - Agenda and Notice AGM 09 October 2024.pdf

[9] Attachment 014 - Sinking Fund Forecast PSS 08 May 2024.pdf

[10] Attachment 009 - Minutes of Committee Meeting 28 August 2024.pdf

[11] Annexure 1 to Respondent's submissions - Minutes of AGM on 9 October 2024.

[12] Annexure 2 to Respondent's submissions - Requested EGM (December 2024).

[13] Annexure 3 to Respondent's submissions - Minutes of the EGM on 7 February 2025.

[14] Attachment 007 - Minutes of EGM 08 February 2024.pdf

Attachment 009 - Minutes of Committee Meeting 28 August 2024.pdf

Attachment 001 - Minutes of AGM 09 October 2024.pdf

[15] Attachment 015 - Statement of Claim S Lin vs D Dixon 15 May 2024.pdf ]

Attachment 016 - Statement of Claim S Lin vs P McKenna 30 January 2024 ]

Attachment 017 - Statement of Claim S Lin vs D McKenna ]

[16] Flinders Village [2024] QBCCMCmr 374 (Application 0870-2024)

[17] Attachment 001 - Minutes of AGM 09 October 2024.pdf

[18] Attachment 005 - Costs Agreement CJM Lawyers 18 August 2024.pdf ]

[19] Legal proceedings must be authorised by special resolution

[20] [2005] QBCCMCmr 272 (24 May 2005). This decision was confirmed by the District Court in the appeal decision Hablethwaite v Farrington & Ors, 3 of 2005 Innisfail, 219 of 2005 Cairns, Bradley DCJ, 17 February 2006.

[21] Ellimont Pty Ltd v The Proprietors Ti-Tree Building Units Plan No 70782, District Court (Brisbane), D1293/2000, Brabazon DCJ, 15 September 2000 at 23,24.

[22] The Presidents Lodge [2018] QBCCMCmr 226

Morcom and Ors v Campbell-Johnson and Ors [1955] 3 All ER 264 per Denning LJ

No 9 Port Douglas Road [2006] QBCCMCmr 674

[23] Annexure 3 to Respondent's submissions - Minutes of EGM 7 February 2025

[24] Annexure 11 to Respondent's submissions - Committee Nomination for Tom Chen (Lot 34, Triplewood 24 Pty Ltd ATF Triplewood 24 Trust) dated and submitted on 27 July 2024.

[25] Annexure 9 to Respondent's submissions

[26] Attachment 045 - Daniel Levick - Owner Information Levy Statement 05 November 2024. f

[27] Attachment 001 - Minutes of AGM 09 October 2024