Four Corners at Willow Park [2025] QBCCMCmr 169 (21 May 2025)

Four Corners at Willow Park [2025] QBCCMCmr 169

Body Corporate for Four Corners at Willow Park (applicant)

Janallan Enterprises Pty Ltd, owner of Lot 60 (respondents)

GENERAL MEETING MOTION - where a motion which proposed removing by-laws including an exclusive use by-law failed to achieve a resolution without dissent - where the lot benefiting from the exclusive use by-law supported the motion - whether the opposition of other owners to the motion was unreasonable in the circumstances.

Motion 9 on the agenda of the annual general meeting of the Body Corporate for Four Corners at Willow Park on 28 January 2025 is deemed to have passed.
Within three months of the date of this order, the Body Corporate for Four Corners at Willow Park must lodge a request to record a new community management statement to give effect to Motion 9.

[1] This application is about a motion to remove by-laws.
[2] The current community management statement (CMS) for this body corporate contains exclusive use By-law 42 which says the owners or occupiers of Lot 10 are entitled to use a shed within the pool enclosure. Also, By-law 34 provides for the body corporate to enter into managing and letting agreements with the owner of Lot 10. By-law 35 then says the body corporate must not grant the rights in By-law 34 other than to the owner and occupier of Lot 10.
[3] The body corporate says Lot 10 was previously owned by a caretaking service contractor. It says the pool shed was allocated for the caretaker's exclusive use for purposes associated with the caretaking functions. However, it says the caretaking and letting agreements expired in December 2024. Lot 10 was sold, and the new owners do not hold the management rights.
[4] The annual general meeting (AGM) of the body corporate on 28 January 2025 considered Motion 9 which proposed amending the CMS by deleting By-laws 34, 35 and 42 and a sketch plan of the exclusive use area. The motion said that with the lapse of the caretaking agreement, the exclusive use allocation for Lot 10 was no longer applicable. The explanatory note said the motion sought to return control of the pool shed to the body corporate and correct the error which tied the exclusive use rights to Lot 10 rather than the caretaking agreement.
[5] Motion 9 required a resolution without dissent but failed to pass with 27 votes in favour and 2 against. The owners of Lot 10 supported the motion but the owners of Lot 7 and 60 dissented.[1]
[6] The body corporate says the dissent to AGM Motion 9 was unreasonable in the circumstances. It says giving an owner who is not the caretaker exclusive use over the area that contains all pool related equipment and supplies interferes with the ability of the body corporate to maintain and operate the pool and its equipment. It indicates concern about the approach a subsequent owner of Lot 10 may take if the situation is not remedied. The body corporate also says one of the respondents actively supported the removal of By-law 42 while chairperson, but there was a subsequent breakdown in relationships.
[7] The body corporate wants orders to give effect to AGM Motion 9. I will consider the circumstances and the evidence of the reason for the respondents' opposition.

[8] Four Corners at Willow Park community titles scheme 24394 (Four Corners at Willow Park) is a 64-lot scheme at Beenleigh. The CMS shows the Accommodation Module applies. The scheme is registered as survey plans 106482,118255, 127030, 130346 and 120348.
[9] The application seeks the following order:

Regarding the outcome of motion 9 considered but not carried at the AGM held on 28/01/2025 for the reason of there being two (2) NO votes cast against this motion which required a resolution without dissent, and seeking an order of an adjudicator that the motion was not passed due to opposition that in the circumstances was unreasonable, and that the Adjudicator make an order or orders giving effect to that motion 9

[10] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[2] I am satisfied I have jurisdiction to determine this matter, noting one issue about that below.[3] However, I will note an issue in that regard below.

[11] This application was lodged on 27 February 2025, pursuant to a resolution passed outside a committee meeting on 31 January. The Commissioner's delegate sought clarification from the applicant on some aspects of the application,[4] and the application was amended.[5]
[12] The Commissioner invited submissions from the respondents and all owners.[6] No submissions were received. One of the respondents confirmed in writing that the respondents had received the notice of the application and the invitation to make a submission. Although that confirmation indicated an intension to respond, no further response was made.
[13] The application was referred to adjudication.[7] I have now investigated the dispute, including reviewing the submitted material.[8] While the respondents did not make a submission, I am satisfied they were on notice of the application and had sufficient opportunity to respond to it.

[14] The issue in this dispute is whether the outcome of AGM Motion 9 should be overturned, such that the body corporate can record a new CMS in accordance with the motion.
[15] For the purpose of the following discussion, I note generally that the legislation provides for exclusive use by-laws which attach to a lot and give the occupier of the lot exclusive use of, or other special rights to, common property or a body corporate asset.[9]

[16] A body corporate must usually pass a resolution without dissent to record a new CMS.[10] However, only a special resolution is required if the new CMS would only change a by-law other than an exclusive use by-law or the regulation module applying to the scheme.
[17] To the extent that AGM Motion 9 sought to remove the current By-laws 34 and 35, only a special resolution was required. However, By-law 42 is clearly an exclusive use by-law and so, as Motion 9 also sought to remove that by-law, a resolution without dissent was required.
[18] While the voting on AGM Motion 9 would have been sufficient for a special resolution, a resolution without dissent was clearly not achieved.[11]
[19] I note also that an exclusive use by-law can only attach to a lot, or stop applying to the lot, if the lot owner benefiting from the by-law consents in writing to the new CMS before the passing of the resolution without dissent to record the new CMS or votes personally on the resolution.[12] In this case it is evident from the AGM minutes that the owners of Lot 10 were personally present at the AGM. It is not disputed that they voted in favour of Motion 9.

[20] Exclusive use by-laws are not an appropriate means of giving a service contractor or letting agent rights to use common property for purposes related to their business. Rather, a body corporate can resolve to give a service contractor or letting agent an occupation authority, authorising them to occupy part of the common property for a purpose that is necessary to perform their obligations as service contractor or operate as a letting agent.[13] Notably, the regulations say a service contractor or letting agent may only acquire rights to occupy part of common property for the purpose of their engagement or authorisation under that section.[14]
[21] Before the legislation was amended to provide for occupation authorities (and inappropriately since), exclusive use by-laws were used to give service contractors and letting agents use of common property. The legislation provides a specific dispute resolution process to review exclusive use by-laws in such cases. The process applies where the owner of a lot benefiting from an exclusive use by-law stops being a body corporate manager, service contractor or letting agent, and the by-law is not for the continuing engagement or authorisation of the lot owner as a body corporate manager, service contractor or letting agent, and there is a dispute about whether the exclusive use by-law should continue to be in force. In that case, the body corporate can apply for the order of a specialist adjudicator or the Queensland Civil and Administrative Tribunal for a review of the exclusive use by-law.[15]
[22] I do not consider the body corporate was obliged to apply for an order under that process, or that my jurisdiction to determine this application is limited by that process.[16] In this case the owners of Lot 10 who benefit from By-law 42 were not previously the service contractor or letting agent and they are not in dispute with the body corporate about whether the exclusive use by-law should continue to be in force. Indeed, it is not evident that there is a genuine dispute with any owner about whether By-law 42 should continue to be in force.
[23] I consider this dispute raises a broader question of the basis for the decision on AGM Motion 9. Without limitation, schedule 5 of the Act sets out orders that can be made. Item 10 contemplates an adjudicator giving effect to a motion, or a variation of a motion proposed, if a motion requiring a resolution without dissent was not passed because of "opposition that in the circumstances is unreasonable". I will consider this application on that basis.
[24] An adjudicator may only make an order that is just and equitable in the circumstances to resolve a dispute.[17] In regard to the test of whether the opposition to a proposal was unreasonable, the High Court has said the task for an adjudicator is to identify a ground of opposition and inquire as to whether that ground was a rational basis for opposition. This is to be considered in the context of the right to vote as a proprietary right of lot owners.[18] An applicant bears the onus of substantiating that a dissenting voters' opposition was unreasonable in the circumstances or otherwise that an order sought is warranted.

[25] It is evident that By-laws 34, 35 and 42 are redundant and no longer reflect the current circumstances of the body corporate.
[26] On its face, the removal of By-laws 34 and 35 benefits the body corporate and all owners by removing the constraint on the capacity of the body corporate to choose who it will enter into caretaking and letting agreements with. It appears the removal of By-law 42 would benefit the body corporate and all owners by returning control over the pool shed to the body corporate. If the body corporate chose to enter into a service contract relating to the operation and management of the pool in future, it could grant an occupation authority in regard to the pool shed if required, as long as the area was no longer subject to an exclusive use by-law.
[27] Prima facie, the owners of Lot 10 are the only persons who could be adversely affected by the removal of these by-laws. The body corporate says the owners of Lot 10 voted in favour AGM Motion 9 and spoke in support of the motion at the AGM.
[28] In the absence of a submission from the respondents, it is not apparent that the owners of Lots 7 and 60 would be adversely affected by Motion 9 or the removal of the three by-laws.
[29] It appears at least one of the respondents previously supported the removal of By-law 42 at least. The application includes correspondence from one of the respondents (in their capacity as chairperson) in May and June 2024 referring to return of exclusive use rights to the body corporate as an element of negotiations with the former caretaker. Of course, that support did not mean the respondents could not rationally decide to later oppose AGM Motion 9.
[30] The question then is the reason for the respondents voting no at the AGM. Without a submission from the respondents, I can only rely on the material submitted by the applicant. The application includes correspondence between one of the respondents and a committee member querying the respondents' vote on Motion 9. The respondent indicates the vote was not a mistake. The email refers to conflict regarding other matters and says "...I am sorry this may seem petty to all of you that we are voting the way we are but you were all complicit in making life difficult for Allan and I." and "...we are giving you all and the complex the same treatment. We are open to discuss this but there needs to be some apologies."
[31] In the absence of any evidence to the contrary, I am satisfied the respondents voted no to AGM Motion 9 because of interpersonal conflict and in retaliation for other grievances, rather than any objection to the substance of the proposal. I consider that was an unreasonable basis for opposing Motion 9. It is unfortunate that the respondents have put the body corporate to the time and inconvenience of needing to pursue this application to enable it to remedy the redundancies in the CMS if they did not have a genuine basis for opposing the motion.

[32] For the reasons outlined, I am satisfied the respondents' opposition to AGM Motion 9 was unreasonable in the circumstances. It is appropriate to deem Motion 9 to have passed. The body corporate will have 3 months from the date of this order to record a new CMS to give effect to the motion.

[1] The applicant says the owners of Lot 7 are the principals of the company owner of Lot 60.

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

[4] Section 241 of the Act

[5] Section 245 of the Act

[6] Section 243 of the Act

[7] Section 248 of the Act

[9] Section 170 of the Act

[10] Section 62 of the Act

[11] Sections 105 and 106 of the Act

[12] Section 171(2) of the Act

[13] Section 147 of the Accommodation Module

[14] Section 147(7) of the Accommodation Module