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

APPLICATION FOR INTERIM ORDERS - where the applicant says a recent committee election was invalid because a single owner nominated more than three committee candidates; where the applicant is concerned that the invalid committee may act to terminate the scheme or deplete the sinking fund prior to final orders; whether to make an interim order limiting the amount the committee may spend prior to final orders.

Act, ss 81D(4), 81E(2), 279(1); Standard Module, ss 9(4), 17(2)(b), 52(1)(d), 172(1).

• [1] The applicant says a body corporate committee election held at an annual general meeting on 21 May 2025 was invalid because:
  1. Ms Menso, the representative of the owner of 18 of the 22 lots at Highpoint Units, nominated five people to serve on the committee, exceeding the statutory maximum of three,[1]
  2. the committee election was held by voting on motions rather than by holding a ballot, and
  3. the committee should have had two more ordinary members.
• [2] The applicant seeks final orders declaring the committee election void and requiring a new election to be held. Until the application can be decided, the applicant seeks an interim order:

...preventing the current committee from authorising any unbudgeted works exceeding $5,000 without approval from BCCM or engaging contractors related to committee members, unless independently reviewed and approved by a majority of nonconflicted lot owners.

• [3] I am only concerned with the interim order at this stage, which will be made if warranted by the nature or urgency of the circumstances.[2] The purpose of an interim order is generally to ensure that the relief sought by an applicant is not frustrated before it can be decided. The Act gives the following examples:
  1. The adjudicator may stop the body corporate from carrying out work on common property until a dispute about the irregularity of proceedings has been investigated and resolved.
  2. The adjudicator may stop a general meeting deciding or acting on a particular issue until it has been investigated and resolved.
• [4] On the information presently available, there does seem to be a legal question to resolve with respect to the committee nominations. A lot owner who owns more than two lots at a scheme with seven or more lots in total may nominate up to three people to serve on the committee.[3] Nominations were made by the owners of lots 2, 6, 7 and 14. Titles Registry records indicate that lots 2, 6 and 7 are co-owned by JLP 1 PTY LTD A.C.N. 656 090 550 and MJP 1 PTY LTD A.C.N. 656 090 505, while lot 14 is owned by JLP 1 PTY LTD A.C.N. 656 090 550 alone. These companies all have the same Australian Company Number, suggesting the same entity may own all four lots. If that is the case, it was not entitled to nominate more than three people. That may mean one of the four nominees should not be serving on the committee.
• [5] The applicant has submitted no evidence to support the claim that the committee election was conducted by voting on motions rather than by holding a ballot. The scheme's body corporate manager denied it in an email of 24 June 2025.
• [6] The applicant also suggests that the committee should have two more ordinary members, but I do not understand why. I gather that it presently has five members. A committee must have at least three but not more than seven voting members.[4]
• [7] The applicant claims there is urgency for an interim order because otherwise the present committee may:
  1. attempt to terminate the scheme, or
  2. deplete the sinking fund to make the scheme appear financially unsustainable.
• [8] The applicant refers to a motion Ms Menso submitted to the AGM proposing some $225,000 worth of work at the scheme. Ms Menso withdrew the motion before the meeting, but the applicant worries "the intention is to proceed with this or similar proposal now that Ms. Menso has gained control of the committee".
• [9] These arguments do not persuade me that there is any urgency for the requested interim order for several reasons:
  1. no evidence was submitted to establish that the present committee wishes to terminate the scheme or deplete the sinking fund
  2. the fact that Ms Menso (almost) proposed that a general meeting authorise expensive works at the scheme is not evidence that she will now seek to have the committee give effect to a similar proposal
  3. termination for economic reasons requires authorisation by majority resolution,[5] which is beyond the committee's powers[6]
  4. while I have no information on this committee's spending limit, at a scheme with 22 lots it would be $4,400 by default,[7] which is not enough to significantly deplete the sinking fund and is below the limit the applicant hopes to impose via an interim order.
• [10] I see no reason that the question about the correct composition of the committee cannot wait to be decided at final orders, with the benefit of submissions from all affected parties. The orders sought by the applicant will still be available at that time. I have no reason to believe that anyone presently serving on the committee is inherently unsuitable or poses some serious risk to the scheme. Accordingly, the application for an interim order is dismissed.

[4] Standard Module, s 9(4) & schedule 1, "maximum number, of voting members for a committee".

[7] Standard Module, s 172(1) & schedule 1, "relevant limit for committee spending".