REQUESTED EXTRAORDINARY GENERAL MEETING - INTERIM ORDER

The applicant lot owner and other owners petitioned the committee to call a requested EGM to consider a motion to replace the current committee. The committee called an EGM for other motions but did not included the requested motion, allegedly contrary to its obligation to do so. The requested motion was not included on the pretext it was invalid, as it did not specifically name the committee members to be replaced.

The question is whether an interim order to restrain implementation of any other motions passed at the EGM is warranted, in circumstances where those other motions do not relate to the composition of the committee.

Body Corporate and Community Management Act 1997 (Qld), s 279

Body Corporate and Community Management (Standard Module) Regulation 2020, ss 44, 84

[1] The applicant, Andrew Ford, is a lot owner in Kirra Breeze CTS 11626, and its body corporate is the respondent.

[2] Mr Ford and other owners requested an extraordinary general meeting (EGM) be called for owners to consider a motion to remove all of the current voting committee members and to replace them with others specified persons (committee replacement motion).

[3] The committee called an EGM, but decided not to include the committee replacement motion. The EGM, to be held 24 March 2026, the day of this decision, instead will consider a number of other motions.

[4] The applicant says the committee was not empowered to refuse to include the committee replacement motion, and therefore in effect has failed to comply with its obligation to call the requested EGM. He therefore seeks the following interim order, pending a final determination of the dispute:

That any resolutions passed at the EGM scheduled for 24 March 2026 have no force or effect pending the determination of this application.

[5] The applicant says he will also seek the following final orders, in due course:

1. The committee's resolution (by email vote 26 February 2026, confirmed by formal resolution 3 March 2026) to reject the requisitioned motions was beyond power and void.

2. The EGM notice issued on 3 March 2026 is void for failing to include the motions requisitioned under the Standard Module.

3. The body corporate issue a new EGM notice within 14 days of this order including the requisitioned motions exactly as written in the requisition of 12 February 2026.

4. The new EGM be held within 6 weeks of the new notice.

5. Any resolutions passed at the EGM on 24 March 2026 (if it proceeds before this application is determined) have no force or effect until the requisitioned motions have been put to a properly convened general meeting.

6. The reconvened EGM be chaired by an independent person appointed by the Commissioner.

7. The respondent pay the applicant's costs of this application, including the filing fee.

[6] I am satisfied that this dispute is within my jurisdiction to resolve and that the applicant has standing to being the application.[1]

[7] Kirra Breeze CTS 11626 consists of 23 lots and common property. The scheme is governed by the Body Corporate and Community Management Act 1997 (Qld) (Act) and the Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module).

[8] If requested, an adjudicator may make an interim, temporary order pending a final determination of the application for final orders, pursuant to s 279 of the Act. For that power to arise, the adjudicator must be 'satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates'. Adjudicators have consistently taken that to mean that the applicant must satisfy the adjudicator that substantial and irreparable harm would otherwise be caused to the applicant before orders are made at the final determination stage.

[9] The applicant says, by way of background and submission:

• On 12 Feb 2026, he served a valid EGM requisition on the Secretary, Jerald Martin, signed by owners of 7 of 23 lots, exceeding the 25% threshold under s.84(1)(a). No response was received. The mandatory 14 day deadline expired 26 February 2026.
• On 20 Feb 2026, he forwarded the requisition directly to the Body Corporate Manager, Marc Mercier of Mercier BCS, requesting confirmation of receipt, the EGM date, and inclusion of the motions as written. No response was received.
• On 2 Mar 2026, the committee Chairperson, Malcolm Lewis, separately emailed Mercier BCS directing that the EGM be called. That direction was not acted upon.
• On 3 Mar 2026, he attended the committee meeting as an observer. The Secretary, Jerald Martin, stated: "I had no intention whatsoever of assisting people that may want to usurp this new committee." The Body Corporate Manager, Marc Mercier, characterised the statutory requirements as "technicalities." The committee formally resolved to reject the requisitioned motions and call its own EGM instead.
• A committee has no power to reject requisitioned motions. Section 84 of the Standard Module is mandatory: the Secretary "must" call the EGM and include the requisitioned motions. The committee voted by email on 26 Feb 2026 to reject the motions.
• The Secretary, Jerald Martin, failed to call the EGM within the mandatory 14 day period, which expired 26 Feb 2026. At the 3 March meeting he stated: "I had no intention whatsoever of assisting people that may want to usurp this new committee." This was a deliberate personal choice, not a lawful basis.
• Deborah Dunne, of Lot 3, initiated the email vote to reject the very motion that would remove her. She did not declare a conflict of interest or abstain. Jerald Martin, Secretary, had the mandatory s. 84 duty and would be removed by the motion. He refused his statutory duty because it would remove him from office. Four committee members voted by email to reject the motions. Three are the same members whose removal the motions sought.
• The BCM failed to advise the committee and ignored the Chairperson's direction. Marc Mercier of Mercier BCS characterised the statutory requirements as "technicalities" and never advised the committee it had no power to reject. He also failed to act on the Chairperson's email directing the EGM be called.
• His voting rights are blocked by a disputed invoice. On 18 March 2026, Mercier BCS confirmed his voting rights at the 24 March EGM are conditioned on payment of an electricity invoice under AGM Motion 13, which was ruled out of order by the Chair at the AGM. No valid resolution authorises the charge.

[10] Owners may require an EGM be called to consider proposed motions pursuant to s 84 of the Standard Module, by at least a quarter of owners petitioning the body corporate. The committee replacement motion proposed for the requested EGM was:

That, pursuant to section 44(2)(f) of the Body Corporate and Community Management (Standard Module) Regulation 2020 (Qld) ("Regulation"), all voting members of the Committee are removed from office with immediate effect; and

That pursuant to section 47(1) of the Regulation, the Body Corporate hereby appoints the following persons to fill the following Committee member vacancies with immediate effect:

Position New Committee Member

Chairperson Malcolm Lewis

Treasurer Lyness Fox

Secretary Rosa Wills

Ordinary Voting Members Gillian Carton, Hollie Fox, Faith Arnold, Sally Partridge

[11] There are 6 motions on the agenda for the EGM today:

• 1. a motion to confirm the minutes of the previous AGM.
• 2 and 3: motions to adopt funds and issue contribution levies for administrative and sinking funds.
• 4 and 5: motions to adopt a new by-law about towing and remove a by-law about correspondence with the committee, and register a new CMS accordingly.
• 6: a motion to take steps directed at electrical compliance.

[12] The materials before me indicate the committee decided not to include the committee replacement motion on the pretext it failed to comply with s 44(2)(f) of the Standard Module. That section specifies a committee member's term of office, subs (1) providing that their term continues until (among other things) their position is vacated pursuant to subs (2). It in turn provides '(2) A member's position becomes vacant if the member - (f) is removed from office by ordinary resolution of the body corporate'.

[13] It seems that the committee's concern with the committee replacement motion is that it does not comply with s 44(2)(f) because it fails to specifically identify the persons are who proposed to be removed. The applicant says the section does not require the removed committee member to be specifically named in the motion. The applicant says, regardless, the committee is not empowered to, in effect, rule a motion out of order prior to the meeting.

[14] Section 98 of the Standard Module requires a general meeting chair to rule a motion out of order if it would conflict with the legislation or the by-laws or a motion already voted on at the meeting, or be unlawful or unenforceable for another reason. The section does not specifically say that the meeting is the only time and place where that can occur, but arguably it does so by implication, because the section also provides a mechanism for the owners present at the meeting to vote to reverse the chair's decision. A committee decision taken prior to the EGM to the same effect cannot be challenged in the same, timely way.

[15] However, the issue in this case is more nuanced than that, because it might be reasonable for a committee to decline to include on an agenda a purported motion which, for practical purposes, could not be described as a motion or which, for some other reason, would be incapable of enactment if passed.[2] Section 44 does not in itself govern how a motion to replace a committee member must be framed, but it does draw attention to a significant question of whether a resolution to remove a committee member is fit for the purpose if the motion did not specifically name them. That is a question best resolved at the final determination stage. At this stage, I am satisfied the applicant has raised an arguable case to say the motion proposed for the requested EGM ought to have been included on the agenda.

[16] However, that does not conclude the matter, because I must be satisfied that that an interim order is necessary in these circumstances. The applicant says that, without an interim order restraining implementation of any motions passed at the EGM, being the committee's motions for budgets amounting to $148,000 in levies, by-law amendments, and compliance powers take immediate effect, would render a subsequent removal vote ineffective, as all of those motions would have been proposed by a committee the owners sought to remove.

[17] It is not clear to me why interim orders are necessary in this case. None of the EGM motions are directly concerned with who actually comprises the committee. Were the committee replacement motion put on the agenda and passed or defeated, the other motions could still lawfully be considered and passed. The fact that they were proposed by the committee comprising members subject to possible removal does not make them inherently unlawful or even inappropriate, as committee members are allowed to act in that capacity until such time as they are removed. Whether the motions then pass is a matter for owners to decide, regardless of the committee's composition.

[18] I will dismiss the application for the requested interim order as I cannot see a need to make it.

[19] The application will now be returned to the Commissioner for further case management.

[20] While I have an open mind on the issue, there is some risk for the applicant that I will decide that the motion he requested for the EGM was not fit for the purpose of removing a committee member who is not named in the motion purporting to do so. Accordingly, I may be disinclined to order the body corporate to call another EGM to consider that motion. The applicant would then be at risk of a costs order against him for making an application which was misconceived or without substance, pursuant to s 270 of the Act.

[21] With that in mind, the possibly safer and almost certainly quicker route may be for the applicant and the other like-minded owners to simply again request an EGM, but with a motion specifically naming the members they wish replaced. In that event, the applicant could withdraw this application for final orders and so avoid a potential costs order against him, and also avoid the cost of getting copies of other parties' submissions for the purpose of a reply submission.

[1] See generally Act ss 227(1), 229(3)(a), 238(1)(b)

[2] See for eg Bower Lodge [2013] QBCCMCmr 337 at [19]- [25]