Body Corporate and Community Management (Accommodation Module) Regulation 2020

REASONABLENESS - COMPLEX DISPUTE - CONTRACTUAL MATTER - JURISDICTION - The body corporate resolved at its annual general meeting to execute a deed to extend the term of the applicant's caretaking service contractor agreement by a further 5 years. The motion provided for the deed to be executed in substantially the same form as the draft annexed to the meeting papers. The committee executed the deed but struck out words which would warrant that the meeting was held in full compliance with the legislation because it received legal advice that the meeting was not called in full compliance with the legislation. The applicant seeks an order that the body corporate execute the deed without that amendment.

The questions are whether: (a) the committee acted unreasonably by amending the warranty clause in circumstances where the AGM has not been formally invalidated; (b) the committee failed to properly implement the resolution; and (c) on a proper characterisation of the dispute, it is a complex dispute about a contractual matter and therefore beyond an adjudicator's jurisdiction.

Body Corporate and Community Management Act 1997 (Qld): ss 94(2), 100(5), 229(2)

• [1] The applicant is the caretaking service contractor for the scheme Hive The Gap CTS 52462.
• [2] The scheme is governed by the Body Corporate and Community Management Act 1997 (Qld) (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module).
• [3] The body corporate's annual general meeting held 2 July 2025 (AGM) passed a resolution pursuant to motion 10 to amend the Management Engagement & Letting Authorisation agreement between the body corporate and applicant dated 11 March 2019 (Agreement) by inserting an option to extend the period for a further period of 5 years. To effect that, it also resolved to execute a deed of variation (Deed).
• [4] The committee initially delayed executing the Deed, prompting this application for orders in the following terms:

1. That the Body Corporate Committee be required to immediately execute the caretaking top-up agreement, as validly passed at the AGM.

2. That the Committee's refusal to execute the agreement be declared a breach of their statutory duties.

3. That the Body Corporate reimburse the applicant for application fees and reasonable legal costs incurred.

• [5] After some delay, caused by the committee seeking legal advice, and subsequent to this application's lodgement, the committee executed the Deed but struck out certain words from one of its terms, clause 2.4 (amendment), as follows:

2.4 The Body Corporate warrants that it has at general meeting, by secret ballot, without the use of proxies and in compliance in all respects with the requirements of the Act and the applicable Regulation Module, resolved to vary the Agreement in accordance with this Deed and to enter into this Deed.

• [6] The applicant continues to assert that the committee must execute the Deed in the form as annexed to the voting papers, that is, without the amendment.
• [7] The applicant says that obligation arises because the body corporate and the committee are obliged to act reasonably and in good faith, pursuant to section 94(1)[1] and 100(5) of the Act, and further that section 101(2) of the Act requires the committee to put into effect the lawful decisions of the body corporate.
• [8] I have decided to dismiss the application, firstly because I am not satisfied that the committee acted unreasonably in making the amendment, secondly because the committee has put the resolution into effect, and thirdly or alternatively because I consider the proper characterisation of the dispute puts it beyond an adjudicator's jurisdiction.

• [9] The respondent says the committee made the amendment on legal advice that the AGM was not in fact fully compliant with the requirements of the legislation. It says the Body Corporate Manager issued the notice and agenda for the AGM without the authority of the committee, and therefore not in compliance with section 72(1) of the Accommodation Module. The respondent says that, accordingly, the committee cannot warrant that which it has grounds to believe is incorrect. It says that, in the circumstances, and contrary the assertions of the applicant, it was reasonable for the committee, prior to executing the Deed, to seek legal advice on behalf of the respondent and, following that legal advice, to make the amendment to clause 2.4 by striking out the words which it reasonably believed were inaccurate.
• [10] The applicant in reply submissions says that the committee's claim that the AGM was invalid is unfounded. It says that both the Body Corporate Manager and the applicant's lawyer have confirmed that the AGM was validly held, and if the committee believed otherwise, it should have applied to the Commissioner for an adjudication of that issue, but as it has not done so, it cannot declare the AGM invalid to avoid carrying out the resolution.
• [11] As to the test for reasonable committee decision-making, the respondent refers to passages from Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177. It is the leading authority on reasonable decision-making in a committee context. The respondent refers particularly to comments by Carmody J at paras [47] and [99] to the effect that a legally reasonable decision is not a uniquely right one and a committee acts reasonably if a notionally reasonable committee faced with the same issue could have honestly and rationally reached the same conclusion on a proper consideration of all the available material.
• [12] The respondent submits that it was appropriate for the committee to refuse to provide what it was advised to be an inaccurate contractual warranty on behalf of the Body Corporate, and that its actions in striking through the relevant part of clause 2.4 before executing and returning the Deed to the Applicant was entirely reasonable in the circumstances.

• [13] I agree with the respondent that it was not unreasonable for the committee to strike out that part of clause 2.4 which it believed to be untrue, based on legal advice. The fact that the applicant's lawyers and the Body Corporate Manager consider the meeting was valid does not change the fact that the committee had legal advice that it was not. As Carmody J noted in the paragraphs referred to above, a different committee, acting reasonably, may have decided to act differently, but that in itself does not render this committee's decision unreasonable.
• [14] As to the applicant's contention that the respondent should have applied for an adjudication order if it wished to put the validity of the AGM in doubt, the respondent rightly points out that such an order would render the AGM and hence the resolution pursuant to motion 10 void, thereby leaving it unauthorised to execute the Deed. It seems likely that all parties, including the individual owners, wish the AGM and its resolutions to stand, given more than 3 months have passed without an application to invalidate the AGM. I do not consider it incongruous or unreasonable for the committee to say it has reasonably-held doubts about the AGM's validity without bringing such an application. Indeed, I doubt that the committee would have standing to bring such an application, given that there would be no corresponding subsection in section 227(1) of the Act for such a 'dispute' to be adjudicated. That subsection defines a dispute with reference to nominated pairs of disputants, and there is no category allowing for a dispute between a committee and its body corporate.

• [15] Also in reply submissions, the applicant says the alteration was not authorised by the applicant nor approved at a general meeting, and that it contradicts the resolution validly passed at the AGM, and therefore any amendment would require a further general meeting resolution. It says the deletion was therefore contrary to section 101(2) of the Act.
• [16] This argument was not raised in the initial application and accordingly the respondent has not had an opportunity to deal with it. Nonetheless, I will address it.
• [17] It seems the applicant has not noticed that after the part detailing the extension, the motion 10 went on to provide:

AND THAT the body corporate enter into a deed of variation of such management and letting agreement on substantially the same terms and conditions as those in the deed of variation circulated with this motion and that the common seal of the body corporate be affixed to the said deed of variation by the secretary and any member of the committee or any two members of the committee or the secretary acting alone. A BCCM form 20 is attached to this motion as required by the Body Corporate and Community Management Act 1997.

AND THAT the body corporate enter into a deed of variation of such management and letting agreement on substantially the same terms and conditions as those in the deed of variation circulated with this motion and that any two members of the body corporate committee execute the said deed of variation on behalf of the body corporate.

• [18] There seems to be some repetition in those paragraphs (perhaps one was meant to be deleted), but in any event the underlined parts indicate that the body corporate resolved to execute a deed on substantially the same terms as the draft attached to the papers. In other words, it did not resolve to execute a Deed in exactly the same terms, as contended by the applicant. The committee has therefore arguably executed the Deed on 'substantially' the same terms and conditions as those annexed to the papers, thereby implementing the resolution.
• [19] A question then arises as to whether the amended Deed is substantially in the same terms as the annexed version. Clause 2.4 in its original form in substance provided that the Body Corporate warrants that its decision to vary the Agreement was effective at law. Presumably, the clause is designed to give comfort to the applicant, as the other party to the Deed, that the applicant is entitled to act as if the original Agreement was in fact varied by the Deed. It seems to me the amended clause 2.4 has the same effect as it would have had without the amendment, because it still warrants that the Body Corporate passed the resolution.
• [20] However, if the applicant contends that the amended Deed does not in fact operate to that effect - and in my view, that is the proper characterisation of this dispute - the resolution of that dispute is beyond an adjudicator's jurisdiction, for the reasons following.

• [21] Section 229 of the Act deals with jurisdiction to resolve body corporate-related disputes, vesting it mostly in department adjudicators (of which I am one) but with an exception provided by subsection 229(2). The exception is that the only remedy for a 'complex dispute' is a resolution of the dispute by a specialist adjudicator or the Queensland Civil and Administrative Tribunal (QCAT). The necessary implication of the phrase 'only remedy' is that only a specialist adjudicator or QCAT has jurisdiction to decide a complex dispute.[2]
• [22] As to the meaning of 'complex dispute', schedule 6 of the Act defines it with reference to disputes mentioned in one of various provisions of the Act, including section 149B. Section 149B provides that it applies to a dispute about a 'claimed or anticipated contractual matter' including about the engagement of a caretaking service contractor, and confirms that a party to such a dispute may apply to a specialist adjudicator or QCAT for an order to resolve the matter. The applicant is, by its own admission, a caretaking service contractor. Schedule 6 defines a 'contractual matter' as follows:

contractual matter, about an engagement or authorisation of a body corporate manager, service contractor or letting agent, means - > > (a) a contravention of the terms of the engagement or authorisation; or > > (b) the termination of the engagement or authorisation; or > > (c) the exercise of rights or powers under the terms of the engagement or authorisation; or

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

• [23] In my view, a current or anticipated dispute about whether the Agreement has been varied is a dispute about rights under the terms of the Agreement, ie as contemplated by subparagraph (c) in the definition of a contractual matter.
• [24] It is therefore a dispute beyond my jurisdiction.

• [25] In light of the above, I will dismiss the application.
• [26] If the applicant considers I am wrong in my views that the committee did not act unreasonably and that this is otherwise a dispute about a contractual matter, it may appeal my decision to QCAT for the Tribunal to exercise its appeal jurisdiction.
• [27] If the applicant instead accepts my views on those matters but is still concerned that the Agreement has not in fact been properly extended by the Deed as executed, then it may apply to have that question decided by a special adjudicator or by QCAT exercising its original jurisdiction over complex disputes pursuant to section 229(2) of the Act.

[1] I have proceeded on the basis the applicant intended to say section 94(2), which requires a body corporate to act reasonably.

[2] James & Anor v The Body Corporate Aarons Community Title Scheme 11476 [2003] QCA 329 at [12] per Davies JA