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

INTERIM ORDER - whether an interim order is warranted.

1. The application for interim orders is dismissed.

• [1] This application arises from conflict within the body corporate committee. It appears a dispute arose about a proxy for a committee meeting on 13 November 2024 and the contents of the resulting minutes of the meeting. Also, a development application for material change of use was lodged with the City of Gold Coast in December 2024, with the body corporate's consent signed by two committee members before that was considered by the committee. The applicant has objected to the conduct of two committee members relating to those matters.
• [2] The body corporate has scheduled an extraordinary general meeting (EGM) for 25 March 2025, apparently requested by the owners of 5 lots (Lots 8, 10, 12, 13 and 16). The substantive EGM motions are to remove the applicant from the position of committee secretary (Motion 2) and to appoint another person to fill the vacancy (Motion 3).
• [3] The explanatory note for Motion 2 indicated the action was brought because of the applicant's conduct. It indicated that the submitters of the motion did not believe the applicant was fit to act on their behalf because she had not adhered to the code of conduct for committee members. The applicant says the explanatory note is defamatory, misleading and prejudicial to her. She says she is a whistleblower who pointed out questionable conduct and the motion is an attempt to tarnish her reputation, to silence her, and to deflect from her concerns.
• [4] The applicant seeks an interim order that the body corporate not act on EGM Motions 2 and 3. She then seeks final orders that the body corporate withdraw the disputed motion, not issue another such motion, halt development works until proper authorisation is given by the body corporate and council, and remove 2 committee members from the committee. At this stage, I will consider whether interim orders are warranted.

• [5] Kapalua Sun Court community titles scheme 11952 (Kapalua Sun Court) is a 17-lot scheme at Moffat Beach. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building unit plan 3205.
• [6] This application was lodged on 24 March 2025 seeking an interim order that: 'That the Body Corporate not give effect to Motion 2 or 3 of the Extraordinary General Meeting scheduled for 25 March 2025 until such time that final orders are determined.'
• [7] The application then seeks the following final orders:

(a) That the Respondent be ordered to withdraw the defamatory motion;

(b) That the Respondent be prohibited from issuing another motion with a similarly misleading and prejudicial explanatory note;

(c) All development works being done to the Scheme are halted until proper authorisation is granted by the Body Corporate and the Gold Coast City Council.

(d) That Richard Butler be removed from his position as Chairman of the Committee for his breaches of the Committee's code of conduct;

(e) That Matthew Graydon be removed from his position on the Committee for his breaches of the Committee's code of conduct; and

(f) Any other orders the Adjudicator considers necessary to resolve the dispute.

• [8] 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.[1] Notably, an adjudicator may make an interim order if satisfied on reasonable grounds it is necessary due to the nature or urgency of the circumstances.[2] I am satisfied I have jurisdiction to decide this matter.[3]
• [9] I note that, in general, allegations of defamation between owners or committee members, and any potential legal action in that regard, are beyond the jurisdiction of an adjudicator determining a dispute under the Act.

• [10] As permitted under the Act, the Commissioner then referred this application to me to decide whether the nature or urgency of the circumstances warrants an interim order,[4] notwithstanding that notice of the application has not yet been given to the respondent or owners.
• [11] There is no statutory requirement to obtain comment before an interim order is decided. Given the circumstances, there was insufficient time to seek comment from the committee.

• [12] The only issue at this time is whether an interim order is warranted. However, it is necessary to consider the substantive issues in dispute to decide whether to make an interim order.

• [13] Any order granted must be just and equitable.[5] An interim order will not be granted unless it is necessary due to the nature or urgency of the circumstances.[6] An adjudicator must be satisfied an application raises serious legal questions and that the balance of convenience between the parties justifies injunctive relief. An adjudicator must balance the inconvenience of granting relief now if final orders are ultimately refused against the inconvenience of refusing relief now if final orders are ultimately granted. Of particular relevance is evidence that an interim order is necessary to prevent serious or irreparable harm.

• [14] Although the applicant seeks an order that EGM Motions 2 and 3 not be implemented, she does not actually seek a final order to invalidate those motions. I will comment in turn on the final orders sought by the applicant and the legal issues the applicant raises regarding them.

• [15] The applicant wants a final order that the body corporate withdraw Motion 2.
• [16] The legislation allows owners to submit general meeting motions at any time.[7] The legislation also provides for owners to give the body corporate a notice requesting an EGM to be called to consider motions in the notice.[8] The applicant has not asserted that Motions 2 and 3 were not validly submitted by the 5 owners, or that the owner's request to call the EGM was not valid.
• [17] The substance of motions submitted by owners or included in a notice requesting an EGM must be included on the agenda of a meeting.[9] The person chairing a general meeting may rule a motion out of order in certain circumstances, including if the motion, if carried, would be unlawful or unenforceable.[10] But the legislation does not provide for a body corporate to withdraw or refuse to include on a general meeting agenda, motions submitted by an owner. Only the submitter of a motion could withdraw a motion.
• [18] Furthermore, while it may be understandable that the applicant objects to the explanatory note, she has not provided evidence or argument that the explanatory note is in fact defamatory, misleading, or prejudicial to her. And, if it were, the applicant has not explained why that would affect the ability of the body corporate to consider the motion or impugn the validity of the substantive motion.
• [19] Accordingly, regardless of the applicant's views on the merit, veracity, or validity of Motion 2 or its explanatory note, at this stage she has not identified any legal basis for an order requiring the body corporate to withdraw the motion.

• [20] The applicant then seeks an order that the body corporate be prohibited from issuing another motion with a 'similarly misleading and prejudicial' explanatory note.
• [21] I am unclear if the reference to 'issuing' a motion refers to including a motion on a general meeting agenda. If that is the intention, the applicant has not substantiated the legal basis for an order to prevent the body corporate including on the agenda of any future general meeting motions that have been validly submitted by an owner.
• [22] Also, the wording of the order sought is vague as to what future motions might be covered by such an order, if made. And, even if motions of the nature objected to by the applicant might be contrary to the legislation, it has been said that an adjudicator cannot make orders about hypothetical further contraventions of the legislation.[11]

• [23] Next, the body corporate seeks an order that all development works at the scheme be halted until proper authorisation is granted by the body corporate and the Gold Coast City Council.
• [24] It appears that on 10 December 2024 two committee members signed a letter to the City of Gold Coast purportedly on behalf of the body corporate. The letter purported to give the body corporate's consent as a landowner of common property for a material change of use development application. The development application was made in the name a person who is apparently the director of the company owner of Lot 13 and is also the chairperson. It seems the development application relates to the proposed renovation of Lot 13.
• [25] In January 2025 the committee considered a motion to consent to the development application for the proposed renovations. The explanatory note to the motion indicated that the owner would apply for body corporate consent, by ordinary resolution, for the building works. It said he acknowledged he needed body corporate consent under By-law 8 if he receives the development permit. It appears the committee passed the motion. The applicant does not appear to dispute that committee decision.
• [26] The basis for the order sought by the applicant is not explained. The applicant has not evidenced that any development works are currently underway at the scheme, with or without the requisite approvals. She has not evidenced that the owner of Lot 13 intends to proceed with any works on Lot 13 without any required development approval from the City of Gold Coast or any body corporate approval required under the by-laws.
• [27] Furthermore, to the extent that it is the owner of Lot 13 (rather than the body corporate) who has applied for development approval for proposed renovations to Lot 13 and would presumably be undertaking the relevant works, the applicant does not explain the utility in an order being made against the body corporate on this issue.

• [28] Finally, the applicant seeks orders for the removal of two committee members from their committee positions because of their alleged breaches of the code of conduct.
• [29] The applicant asserts that the two committee members have not acted honestly or fairly in performing their duties as members of the committee. She says they lodged the development application without body corporate consent, exercised proxies they were not authorised to exercise, and have attempted to bully and intimidate other members of the committee who disagree with them. She says they have not acted in the best interests of the body corporate and have repeatedly favoured their own interests.
• [30] The Act imposes a code of conduct on committee voting members.[12] If a body corporate considers that a committee member has contravened the code of conduct, the legislation sets out a process for the removal of that person.[13] At this stage, the applicant has not evidenced any attempt to utilise the legislative process for removal of the committee members in question. For example, she has not evidenced that she has proposed a general meeting motion to issue a breach notice to the committee members or their removal from office.
• [31] Also, while the applicant has made allegations about the conduct of the two committee members, at this stage the application does not clearly identify how the alleged conduct of those members constitutes a breach of specific provisions of the code of conduct.
• [32] Furthermore, on its face these orders appear to be sought against the individual committee members, rather than the body corporate. But the individual committee members are not named as respondents to the application and, having regard to the allowable parties to a dispute resolution application,[14] they could not be.

• [33] The applicant says the explanatory note for Motion 2 is defamatory, misleading and prejudicial. She says an interim order is required to ensure that irreparable harm is not caused to her reputation, that the committee remains functional in exercising its duties, and that the process for tabling motions is not abused in future. These grounds are not explained.
• [34] Prima facie, the body corporate can resolve to remove a committee member from office.[15] Fundamentally, owners are entitled to decide who will represent them on the committee.
• [35] While the applicant may feel aggrieved by the comments in the explanatory note for Motion 2, that explanatory note has already been circulated to all owners with the notice of the scheduled EGM. If it is defamatory, it has already been published. On its face, any harm that might arise from that explanatory note has already occurred. The applicant has not explained how passing or implementing Motion 2 will add to any adverse impact on her reputation.
• [36] The applicant also has not explained how her removal from the position of secretary would prevent the body corporate functioning or exercising its duties. Motion 3 proposes replacing her on the committee. While the applicant may consider she adds value to the committee, she has not explained why the committee could not function or meet its statutory obligations if the majority of voters at the EGM resolve to replace her on the committee.
• [37] Further, the applicant does not explain why an interim order is necessary to prevent the abuse of the process for tabling motions. She does not clearly explain how she asserts that the legislative process for the submission of motions has been contravened or abused. If it has, any future concerns about similar conduct could potentially be addressed by a final order. But the applicant has not established that an interim order regarding the implementation of Motions 2 and 3 would have any bearing on the submission of future motions.

• [38] At this stage, the applicant has not identified genuine legal issues that would warrant the particular final orders sought. Moreover, even if she had, the applicant has not established that the circumstances warrant the injunctive relief sought. It follows that I have dismissed the application for interim orders.
• [39] The application for final orders remains. I will refer it back to the Commissioner to progress under the Act. The applicant may wish to review the application in light of the comments above. If the application proceeds, given the substance of any dispute with the body corporate appears to relate to conflict within the committee, it may be amenable to conciliation.

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

[9] Section 93(2)(a)(ii) and (iii) of the Standard Module

[11] Daish v Body Corporate for Birchgrove CTS 100 [2013] QCATA 13

[12] Section 101B and schedule 1A of the Act

[15] Section 44(2)(f) of the Standard Module