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

GENERAL MEETING MOTION - whether a motion was validly ruled out of order - whether orders about the ruling and motion are warranted.

Accommodation Module, ss 40, 88

1. Motion 13 was invalidly ruled out of order at the annual general meeting of the Body Corporate for McWhirters Apartments on 21 August 2025.
2. The application is otherwise dismissed.

[1] This application is about the chairperson's ruling on a motion on the agenda of the annual general meeting (AGM) on 21 August 2025.

[2] The applicant submitted Motion 13 about filling committee vacancies. The motion proposed that the committee consider filling casual vacancies by appointing the eligible candidates from the most recent AGM election, in descending order of votes received, if eligible and willing to serve. If there were no eligible or willing election candidates, the committee could then appoint any other eligible candidate in accordance with the regulations.

[3] The chairperson ruled Motion 13 out of order. The AGM minutes state this was because the motion contradicted the committee election provisions in the legislation. They further say the opportunity to overturn the ruling was put to the meeting, but no one proposed reversing it.

[4] The applicant claims the handling of the motion was procedurally defective as the ruling should have been made before voting, and after voting the result should have stood. They also say the ruling was made without any cited legislative provision or substantive reasoning. The applicant then claims several owners opposed the ruling, but no option was provided for owners to overturn the ruling. They say the motion was not lawfully or reasonably dealt with. The applicant further says the minutes do not accurately record the events.

[5] The applicant seeks to invalidate the chairperson's ruling. They want the motion declared a valid and effective resolution of the body corporate or that the body corporate call another meeting to vote again on the motion. The applicant also wants the AGM minutes corrected and the application fees reimbursed.

[6] McWhirters Apartments community titles scheme 30246 (McWhirters Apartments) is a 114-lot scheme in Fortitude Valley. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as survey plan 148002.

1. The Chairperson's ruling that Motion 13 was out of order is declared invalid.
2. (a) Motion 13, as submitted and voted upon at the AGM of THE BODY CORPORATE FOR MCWHIRTERS APARTMENTS CTS 30246 on 21 August 2025, is declared a valid and effective resolution of the Body Corporate.

(b) In the alternative, if the Adjudicator does not consider it appropriate to declare the motion valid directly: The Body Corporate must, within 6 weeks, convene an extraordinary general meeting (EGM) at its expense to allow owners to properly consider and vote on Motion 13.

1. The AGM minutes must be corrected to accurately record the events concerning Motion 13, including that the motion was voted on and subsequently ruled out of order without identification of the relevant legislative basis.
2. The Body Corporate is to reimburse the applicant for the adjudication application fee, on the basis that the Chairperson's ruling was procedurally incorrect and necessitated this application.
3. Any further or other orders the Adjudicator considers appropriate in the circumstances to give effect to the intent of this application and to ensure compliance with the BCCMA.

[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] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[2]

[9] This application was lodged on 5 September 2025. The Commissioner's delegate sought clarification from the applicant about the application,[3] which was subsequently amended.[4]

[10] The Commissioner invited submissions from the committee and all owners.[5] Six submissions were received. The applicant obtained and responded to the submissions.[6]

[11] The application was referred to adjudication.[7] I have investigated the dispute.[8]

[12] The body corporate seeks dismissal of the application. Its submission includes:

1. The committee's explanatory notes for Motion 13 said that under the regulations, when a committee member resigns the remaining members are responsible for appointing a replacement. It said the legislation does not provide a requirement to prioritise candidates based on previous election results and the discretion cannot be overridden. It said this ensures the committee can assess eligibility, willingness, and suitability at the time of the vacancy and make an appropriate appointment.
2. After the motion was read at the AGM, but before a result was declared, an owner asked if the chair considered the motion out of order given the explanatory note. After discussion, the committee reiterated that it believed the motion conflicted with the legislation and the statutory provisions about filling vacancies could not be overridden. The chair proceeded to rule the motion out of order on that basis.
3. No vote result was declared on Motion 13.
4. It disputes that no opportunity was provided to challenge the ruling. After the ruling, the body corporate manager (BCM) asked if any voter present wished to overturn the ruling. No such motion was proposed.
5. The body corporate did not receive any request to correct the AGM minutes.
6. The AGM minutes were confirmed at a general meeting in October 2025. That demonstrates the acceptance of the accuracy of the process recorded.
7. The applicant was not recorded as attending the AGM. If not present, any account of the process is second hand. No statutory declarations, witness statements, or other evidence have been submitted supporting the applicant's version of events.
8. Although Motion 13 uses the term 'consider', it prescribed a structured sequence that would guide or limit the committee's discretion. That is inconsistent with section 40 of the Accommodation Module which gives the committee an unfettered statutory discretion. A general meeting cannot impose a mandatory selection process or fetter the committee's discretion in exercising its statutory function.

[13] A statement from the BCM, provided with the body corporate submission, includes:

1. To the best of their recollection, the minutes correctly record the chairperson's ruling and reasons following a brief discussion with those present.
2. Those present at the AGM were asked if there was any objection to the decision and no attendee raised an objection.
3. Had the vote proceeded, the motion would have failed as the votes received prior to the meeting were 20 in favour and 31 against, with 3 abstentions, and there were only 4 additional votes from the floor of the meeting.
4. No owner raised any concerns with the accuracy of the minutes.

[14] An owner who is recorded in the minutes as having attended the AGM says their recollection is the chairperson ruled Motion 13 out of order before the finalisation of voting. They say that after several discussions, the committee confirmed the motion was out of order as it conflicted with the committee election procedures. They also clearly recall the BCM asked the attendees if anyone wanted to move a motion to overturn the ruling, and that no one did.

[15] Another submission from owners, one of who is recorded in the AGM minutes as being present, says that when Motion 13 was proposed an owner in the audience said it should be ruled out of order. They say discussion ensued and the chairperson confirmed the motion was out of order. The submitters say they recall a question from the committee or BCM as to whether there were any objections to the motion being ruled out of order. They say there were no objections and no further questions or discussions on Motion 13.

[16] Another owner who is recorded as being present at the AGM supports the application and Motion 13. They say owners were invited to vote on Motion 13 and that after voting was conducted and the counting process had effectively occurred, the chairperson ruled the motion out of order. The submitter says this is contrary to fair meeting procedures and if the motion were truly invalid, the chairperson should have ruled it out of order before voting. They say the procedure followed created uncertainty and confusion, denied owners the knowledge of the result, and prevented owners exercising their right to challenge the ruling. The submitter says allowing the committee to appoint any person to fill a vacancy disregards the expressed voting preferences of owners and enables the committee to only appoint individuals who support their views. They say Motion 13 did not remove the committee's ability to fill casual vacancies, but simply established a clear, fair, and logical order of priority.

[17] The co-owner of the applicant's lot (who was recorded as being present at the AGM) also supports the application. They say historically the committee filled casual vacancies with the next highest polling nominee from the recent AGM wherever possible, but over the last 3 years vacancies have been filled by individuals associated with the remaining committee members. They make similar comments about the AGM procedure and the committee's position on vacancies. They say there was insufficient explanation for the ruling at the AGM, and that when they queried the legislative provision the BCM advised them to take their concern to the Commissioner.

[18] Another owner makes a submission in support of the application because of their treatment by the committee on another matter.

[19] In reply, the applicant says the supporting submissions are consistent with and corroborate the procedural defects and the opposing submissions do not identify a legislative conflict as basis for the ruling and contain inconsistencies regarding the timing of the ruling. They say multiple owners confirm there was no meaningful or timely opportunity was given to overturn the ruling and any alleged invitation only occurred after the ruling was made. They say the AGM minutes were confirmed at a meeting where many owners were not present. They dispute that Motion 13 restricted the committee's discretion and says the Act does not prohibit the body corporate from adopting a structured process to guide the exercise of a discretionary power. They say that the assertion that the motion would have been defeated is irrelevant as speculation about the hypothetical outcome cannot cure a procedural defect.

[20] In deciding this application I will first consider the process for ruling a motion out of order at a general meeting and whether that process was followed in this case. I will then consider the substance of Motion 13 and whether it should have been ruled out of order. Finally, I will consider the specifics of the orders sought.

[21] Section 88 of the Accommodation Module provides that the person chairing a general meeting must rule a motion out of order in certain circumstances. One such circumstance is if the motion would, if carried, conflict with the Act or the regulation module.

[22] When ruling a motion out of order, the chairperson must give reasons for the ruling. Also, in most cases (including if the motion is said to conflict with the legislation) the chairperson must state how the ruling may be reversed by the persons present and entitled to vote on the issue. Those persons present can pass an ordinary resolution disagreeing with the ruling. The meeting minutes must also record the reasons given by the chairperson for the ruling.

[23] The application and submissions discuss when the ruling was given, and the applicant asserts it was procedurally defective. I do not accept that on the evidence. The language and context of the legislation necessitates that a chairperson can only rule a motion out of order at a general meeting. A committee or chairperson may have concerns with a motion before a meeting, and could potentially communicate those concerns before the meeting, but the reasons for ruling a motion out of order may not be identified until the meeting. Either way, the ruling is made at the meeting. However, the legislation does not specify that the ruling must occur before voting occurs on the motion, or before voting is completed. As voters may submit votes before the meeting, logically the ruling could not be given before voting starts. And as the legislation mandates that the chairperson must rule a motion out of order in certain circumstances (rather than giving a discretion as to whether to make the ruling), if those circumstances apply, I do not consider the chairperson could choose not to rule the motion out of order simply because some or all votes have already been cast.

[24] The legislation does not I am satisfied on the evidence that the chairperson gave a reason for the ruling at the AGM and that the reason was discussed at the meeting. While the applicant and others disagree with the reason, that does not of itself make the ruling invalid. Although it may be desirable, I do not consider reasons for a ruling are inherently invalid because a provision of the legislation is not cited or because a more fulsome explanation was not given. The applicant has not satisfied me that the reason given for the ruling at the meeting was so deficient or inadequate as to fail to satisfy the statutory requirement to give reasons for the ruling.

[25] There are competing views on whether those present at the AGM were adequately notified of their ability to pass a resolution to disagree with the chairperson's ruling. Logically, that notification could only occur after the ruling was given. Some persons present confirm the meeting was, at least, asked if there was any objection to the ruling. It may be the information given was not as specific about the process as might be desirable. But while the co-owner of the applicant's lot says they queried the legislative basis for the ruling, the applicant has not evidenced that any person present at the meeting publicly stated that they opposed the ruling itself or sought to challenge it. And the applicant has provided no evidence that any person present would have proposed a motion to challenge the ruling if they had been given more detailed information about the ability to do so, or that any such motion would have been passed by the owners present if proposed.

[26] Next is the question of whether the ruling itself was valid. I do not consider it was.

[27] Section 40 of the Accommodation Module provides for filling a casual vacancy on the committee other than in circumstances where the committee member is removed from office for breaching the code of conduct. The provision requires that within 1 month after the position becomes vacant, if there are still enough members to form a quorum, the committee must either appoint a person who is eligible to fill the vacancy or call a general meeting to choose a person to fill the vacancy.

[28] The legislation does not specific how the committee must choose someone to fill the vacancy, other than the person being eligible. And nothing in the section indicates that the committee must have unfettered discretion if it decides to fill the vacancy itself.

[29] While a committee can make decisions for a body corporate,[9] it is always subject to the oversight, direction, or guidance of the body corporate by way of a general meeting resolution,[10] providing that resolution is reasonable and in accordance with the legislation.

[30] Motion 13 was not proposing that the committee is not permitted to fill vacancies at all or requiring it to fill vacancies with persons who were ineligible or no longer willing to be on the committee. It was simply requiring the committee to consider previously nominated candidates first. That is consistent with the inherent framework of the legislation by which owners usually decide at a general meeting who will be on the committee based on those persons who have been nominated. The fact that the legislation does not require the committee to consider previous candidates when filling a vacancy does not mean the body corporate could not reasonably decide to prefer that approach.

[31] On balance, I am not satisfied the body corporate could not decide that the committee, when deciding to fill a vacancy under section 40(1)(a)(i) of the Accommodation Module, should first consider any persons who were nominated for committee membership at the previous AGM election and ascertain if they were still eligible and willing to fill the vacancy. While I accept there may be different perspectives on the manner, in my view the grounds espoused by the body corporate do not evidence a conflict with the process in section 40.

[32] As I am not satisfied that AGM Motion 13 conflicted with the legislation, I do not consider the chairperson was entitled to rule it out of order on that basis.

[33] The applicant seeks an order to invalidate the chairperson's ruling on AGM Motion 13. For the reasons outlined, I am not satisfied that Motion 13 conflicted with the legislation and so I do not consider it should have been ruled out of order on that basis. While the chairperson's ruling may have been made in good faith, I will make an order invalidating the ruling.

[34] The applicant then seeks to either declare Motion 13 to be a valid and effective resolution of the body corporate or require the body corporate to call a new meeting to consider it. I am not satisfied either is warranted. The finding that Motion 13 should not have been ruled out of order for the reasons given does not mean the body corporate was required to pass the motion or that it would have passed if not ruled out of order. The submitted evidence indicates the motion would not have passed. The applicant has not refuted that. As such, the applicant has not substantiated any need to require the body corporate to pass or reconsider the motion. It would be up to an owner to submit a similar motion in future.

[35] Next, the applicant seeks a correction of the AGM minutes. The applicant has not evidenced that they asked the body corporate to correct the minutes relevant to this issue. The minutes were subsequently confirmed by an owner vote. While there may be different views or recollections of what occurred at the AGM, the applicant has not substantiated their version or that the minutes are manifestly incorrect. I am not satisfied this order is warranted.

[36] Finally, the applicant seeks reimbursement of the application fee. An adjudicator has no inherent authority to award costs.[11] The only legislative capacity to award costs to an applicant is when a respondent fails to participate in conciliation.[12] As that is not the case here, I have no power to require the reimbursement of the application fee even if warranted.

[37] I am satisfied it is appropriate to declare that the Motion 13 was not validly ruled out of order at the AGM on 21 August 2025. But that does not mean the motion would or should have passed. For the reasons given, I have dismissed the balance of the application.

[2] Sections 227, 228, 276 and schedule 5 of the Act

[10] Noting section 101(2) of the Act and section 44 of the Accommodation Module

[11] See for example: Spicer v Carmody; Robinson v Carmody [1948] NSWStRp 25; Queensland Fish Board v Bunney, Ex parte Queensland Fish Board [1979] QSCFC 11