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

GENERAL MEETING MOTIONS - where the committee decided to engage lawyers and commence legal proceedings about a 99-year lease of common property, whether body corporate acted unreasonably or made an unreasonable decision when it decided not to pass a motion to ratify and retrospectively authorise the engagement and commencement of the proceedings.

Act, ss 94, 276 and 312; Commercial Module, ss 42, 52, 131, and 152

1. I declare that the body corporate acted unreasonably and made an unreasonable decision when, at an extraordinary general meeting held on or about 12 May 2025 (May 2025 EGM), it decided not to pass Motion 2 which proposed that members resolve by special resolution that:

... the Body Corporate ratifies and retrospectively authorises and approves the commencement of legal proceedings against Scott Street Medical Pty Ltd, Scott Street Parking Pty Ltd and Gary Francis Gardner (the developer and parties related to it) in the Supreme Court of Queensland at Brisbane, being proceeding BS 1047/25 filed on 18 March 2025 (Proceeding), as if the Body Corporate approval by the passing of this resolution had been given prior to the start of the Proceeding and ratifies the engagement of [named lawyers] to act on its behalf and represent it in the Proceeding.

And that the committee is authorised to do all things necessary in order to implement this motion, including but not limited to, incur the necessary legal expense to retain [the named lawyers] to represent the Body Corporate in the conduct of these Proceedings to conclusion

1. I further declare pursuant to Schedule 5, Item 24 of the Act that, Motion 2 proposed (as excerpted above in Order 1) at the May 2025 EGM takes effect as a decision by special resolution of the Body Corporate for Medici on Scott CTS 35992.

• [1] This application is primarily about the body corporate's decision not to ratify its committee's earlier decision to commence court proceedings in the Supreme Court of Queensland in March 2025 (the Proceedings).
• [2] The Proceedings concern a 99-year "peppercorn" lease agreement entered into by the body corporate in 2006 (the Lease), shortly after the scheme was first established. The Lease provides that the body corporate agrees to lease 110 common property parking spaces to a corporate lessee (the Lessee) for 99 years with rent fixed at $1 per year.
• [3] At the time the Lease was entered into, the developer of the scheme (the Original Owner) still owned all of the lots in the scheme and therefore controlled the body corporate. At the time, and at all relevant times since, the Original Owner and the Lessee were related parties, with 4 directors of the Original Owner also acting as the 4 directors of the corporate Lessee.
• [4] In the Proceedings, the body corporate makes several claims relating to the Lease against 3 defendants - the Original Owner, the Lessee, and an individual who is a director of both. The body corporate seeks various forms of relief from the defendants, including equitable compensation or an order that its interest in the common property be restored. It says the commercial value of the remainder of the Lease is at least $12 million.
• [5] A body corporate is required to authorise commencement of some legal proceedings by passing a special resolution at a general meeting. In February 2025, however, the committee made a decision to engage lawyers and decided, without the required authorisation, to initiate the Proceedings. The committee subsequently proposed at a general meeting held on 12 May 2025 (May 2025 EGM) by Motion 2 that the body corporate ratify the committee's decision and retroactively authorise commencement of the Proceedings. It also proposed the body corporate approve the engagement of lawyers to continue the Proceedings.
• [6] The owners of 7 lots voted against Motion 2 (Dissenting Owners). This meant Motion 2 failed to pass by special resolution. Four of the 7 Dissenting Owners are associated with two of the defendants in the Proceedings namely the Lessee and the Original Owner. The applicant asserts the associations mean those 4 owners (the Conflicted Owners) were motivated to vote against Motion 2 to prevent the Proceedings from continuing against the defendants with whom they were associated and to protect the benefits their associates derive from the Lease.
• [7] On 28 May 2025, the defendants filed with the Supreme Court a conditional notice of intention to defend the Proceedings. They also applied to have the claims set aside (with costs) on the grounds that the Proceedings were commenced without the requisite special resolution.
• [8] The applicant then made this application. He claims the Conflicted Owners caused the body corporate to make an unreasonable decision. He also says the body corporate failed to act reasonably when it decided not to pass Motion 2 and is not fulfilling its function of managing the common property for the benefit of owners. The applicant seeks an order of an adjudicator declaring that Motion 2 "passed and take effect as carried by special resolution."
• [9] The 7 Dissenting Owners oppose the application. Among other things, they say the body corporate acted reasonably in deciding not to pass Motion 2 in circumstances where the motion itself was vague, insufficient information was provided about the Proceedings, and where the committee sought unfettered discretion to expend funds on future legal fees.
• [10] For the reasons that follow, I am satisfied the body corporate failed to act reasonably in making a decision about Motion 2 and in doing so it made an unreasonable decision. In addition, and in the alternative, I am satisfied the Conflicted Owners exercised their voting rights in a way that caused the body corporate to make an unreasonable decision. Accordingly, I consider it just and equitable to make the above order declaring that Motion 2 is deemed passed and takes effect as a resolution of the body corporate.

• [11] Medici on Scott CTS 35992 (Medici) is a scheme with 25-lots and common property and is located in Toowoomba. It was established in 2006 by registration of SP194148,[1] a building format plan of subdivision, and a community management statement (CMS). The CMS shows the Commercial Module applies.
• [12] The applicant is the representative of the owner of Lot 210. The applicant is also the chairperson of the Body Corporate for Medici.
• [13] The respondent is the Body Corporate for Medici.
• [14] The 3 defendants in the Proceedings are:
  1. The Original Owner and developer of the scheme, Scott Street Medical Pty Ltd ACN 108 370 065 as Trustee. Pursuant to section 13 of the Act, it is the original owner of the scheme. The Original Owner is the first defendant.
  2. The Lessee, Scott Street Parking Pty Ltd ACN 110 893 573, as Trustee. The Lessee is the second defendant.
  3. Gary Gardner (Director Defendant). He is named personally as the third defendant. He is a director of the Original Owner and a director of the Lessee.

• [15] Adjudicators have jurisdiction and power to make a range of orders to resolve certain disputes about the exercise of rights or powers, performance of duties under, or a claimed contravention of, the Act or the CMS.[2]
• [16] The dispute is about the exercise by lot owners of their right to vote on motions at a general meeting. It is also about decision making by the body corporate and whether that decision making, or the decision, contravened the Act or was an improper exercise of powers or a failure to perform duties. I am satisfied the dispute is within the jurisdiction of an adjudicator.
• [17] Provided reasonable attempts have been made to resolve a dispute by internal dispute resolution, a person may make an application for dispute resolution under Chapter 6 of the Act if they are a party to, and are directly concerned with, a dispute to which the chapter applies.[3]
• [18] Where the committee proposed a motion for consideration by lot owners at a general meeting about the Proceedings, I am satisfied there have been reasonable attempts to resolve the dispute.[4]
• [19] The application was originally made by the applicant in his capacity as chairperson. However, the applicant thereafter confirmed he was the representative of an owner of a lot in the scheme and was also making the application in that capacity. This dispute is thus between a combination of persons described in section 227(1) of the Act. I am satisfied the applicant is a person who, as the representative of a lot owner, is directly concerned with the dispute and has standing to make the application.

• [20] The Commissioner invited the respondent and all owners to make a submission on the application for final orders.[5] The applicant reviewed the submissions and provided a reply. A dispute resolution recommendation was made to refer the application to department adjudication.[6]
• [21] In my opinion, the 3 defendants named in the Proceedings may be directly and materially affected by the outcome of this application and are therefore "affected persons" (collectively, the 3 defendants are Affected Persons).[7]
• [22] Procedurally, because they were not named in the application as such, the Affected Persons were not invited to make a submission.[8] In the interests of procedural fairness,[9] by letter dated 29 July 2025, I invited the Affected Persons to make a submission about the application.

• [23] The applicant is seeking an order declaring:

... that Motion 2 defeated at the extraordinary general meeting of the body corporate on 12 May 2025 passed and take effect as carried by special resolution.

• [24] The applicant's assertions of fact and legal arguments in support of the orders sought are described and discussed in the Analysis section below.

• [25] The Dissenting Owners collectively own 7 lots between them. Through a legal representative, they made a joint submission opposing the application.
• [26] Four other submissions were received. A submission was made by the owners of two lots who did not cast a vote at the May 2025 EGM. A submission opposing the application was received from a lot owner representative who cast a vote that was declared invalid.
• [27] Two submissions were received in support of the application. The secretary for the body corporate submitted that the committee supports the application and is hopeful the adjudicator will make the order sought as the committee members believe the order is in the best interests of all current and future owners. The secretary also made a separate submission in her capacity as the representative of the owner of two lots.

• [28] The applicant obtained a copy of the submissions and provided a reply, also described below.

• [29] I investigated the dispute, including by reviewing the application, the submissions, the reply, the CMS, and the registered plan.[10]
• [30] I also exercised my powers of investigation[11] and required the Dissenting Owners, the Original Owner, the Lessee, the Director Defendant, and the body corporate to provide me with certain information relevant to the issues in dispute. In the course of my investigation, I also invited (but did not require) the applicant and the Dissenting Owners to make further submissions about legal arguments they had made for and against the application.
• [31] Where relevant to the issues in dispute, the allegations of fact and the legal arguments advanced in the submissions, as well as the responses to my investigations and invitations to comment, will be described and discussed in more detail below.

• [32] The committee decided in February 2025 to commence the Proceedings in the Supreme Court.
• [33] The Proceedings filed in March 2025 include claims that the Original Owner, with the knowledge and assistance of the Lessee and the Director Defendant, breached its fiduciary duties to the body corporate by causing the body corporate to enter the Lease which deprives owners of the use of substantial areas of common property without adequate compensation.
• [34] The relief claimed in the Proceedings includes the restitution of the body corporate's rights in the common property and compensation for the use thereof. Although compensation for the use of the common property from 2006 to the present has not yet been quantified, the loss of future income over the remaining term of the Lease is claimed to exceed $12 million.
• [35] It is not disputed that the committee decided to commence the Proceedings without the authorisation of a special resolution of the body corporate.
• [36] At the May 2025 EGM, the committee proposed that the body corporate decide by special resolution that:

... pursuant to section 312(1)(b) of the Body Corporate and Community Management Act 1997 (Qld), by special resolution, the Body Corporate ratifies and retrospectively authorises and approves the commencement of legal proceedings against Scott Street Medical Pty Ltd, Scott Street Parking Pty Ltd and Gary Francis Gardner (the developer and parties related to it) in the Supreme Court of Queensland at Brisbane, being proceeding BS 1047/25 filed on 18 March 2025 (Proceeding), as if the Body Corporate approval by the passing of this resolution had been given prior to the start of the Proceeding and ratifies the engagement of [named lawyers] to act on its behalf and represent it in the Proceeding.

And that the committee is authorised to do all things necessary in order to implement this motion, including but not limited to, incur the necessary legal expense to retain [the named lawyers] to represent the Body Corporate in the conduct of these Proceedings to conclusion.

• [37] At the May 2025 EGM, the body corporate decided not to pass Motion 2. The applicant now seeks an order declaring that Motion 2 be deemed passed and take effect as a special resolution. In summary, as grounds for the order sought, the applicant asserts that:
  1. the Proceedings and Motion 2 relate to a mandatory function of the body corporate - administration and management of common property
  2. the Conflicted Owners had an 'improper' interest in the outcome of Motion 2 and exercised their voting rights in accordance with those interests, which caused the body corporate to act unreasonably and to make an unreasonable decision, and
  3. the body corporate did not act reasonably when making its decision about Motion 2 and made a legally unreasonable decision.[12]
• [38] The Dissenting Owners oppose the application and the orders sought. In summary, they say:
  1. there is no evidence they exercised their votes for an improper purpose
  2. the applicant has not met his burden of demonstrating that the body corporate failed to act reasonably in making a decision about Motion 2
  3. the body corporate considered the relevant factors and acted reasonably in deciding not to pass Motion 2, and
  4. it was objectively reasonable of the body corporate to decide not pass Motion 2 where owners were not provided with sufficient information about the Proceedings and where that the part of the motion proposing the engagement of lawyers to continue the Proceedings was so vague it is unenforceable and it proposes to confer upon the committee an unfettered discretion for spending.
• [39] Although it concerns a single motion, the legal and factual issues raised by the application are quite complex. Accordingly, I have broken my analysis and determination into four parts.
• [40] In Part 1, I provide an overview of some of the applicable legal principles. In Part 2, to provide context for the dispute and the tests to be applied, I describe and make certain findings of fact relating to the history of the scheme, associations, the Lease, and the decision on Motion 2.
• [41] The Act provides an adjudicator with jurisdiction and power to make orders about a claimed contravention of the Act and also about the exercise of rights or powers, or performance of duties under the Act. Accordingly, for completeness, I will consider both.
• [42] In Part 3, I consider and determine whether I am satisfied that the applicant has demonstrated the body corporate contravened the Act - by failing to act reasonably in making a decision in breach of section 94(2) - and whether I should make orders pursuant to section 276(1)(a) and Schedule 5 Item 24 of the Act.
• [43] Finally, in Part 4, I review and determine whether I am satisfied in addition or in the alternative, that the Conflicted Owners' exercise of voting rights led the body corporate to make an unreasonable decision and whether I should make an order pursuant to section 276(1)(b) and Schedule 5 Item 24 of the Act.

• [44] The applicant claims the Conflicted Owners have interests that are in conflict with the body corporate's interests.[13] The applicant suggests the Conflicted Owners' exercise of their votes against Motion 2 caused the body corporate to make an unreasonable decision.[14] He also says the body corporate acted unreasonably by failing to genuinely consider its function of administering the common property for owners and several other important factors.[15]
• [45] There are several overarching legal principles relevant to the issues in dispute. Several of the relevant legal principles can be described as mercurial and nuanced. For this reason, I will first (as briefly as possible) explore some of those principles, including:
  1. the concept of a body corporate as a separate legal person
  2. the statutory functions and duties of a body corporate
  3. how (and by whom) decisions are made by bodies corporate, and specifically, how self-interest and conflicts of interests are treated in body corporate decision-making
  4. the legal tests to be applied by an adjudicator when determining disputes about the exercise of rights and contraventions of the Act
  5. the equitable doctrines - fraud on the minority and fraud on the power - and when they may be applied to set aside an otherwise lawful decision of a body corporate.
• [46] In light of arguments made about the burden of proof and the sufficiency of evidence, I will also briefly review those principles in the context of this forum.

• [47] When a community titles scheme is established by registration,[16] the Act provides that a body corporate is created and is the body corporate for the scheme.[17] Each owner of a lot included in the scheme is automatically a member of the body corporate.[18]
• [48] The Act gives the body corporate the characteristics of a legal person. A body corporate has a seal,[19] it can enter into contracts, and it can acquire, hold, deal with, and dispose of property.[20] Critically, and highly relevantly here, a body corporate can sue and be sued in its own name for rights and liabilities related to the common property as if the body corporate were the owner of the common property.[21]
• [49] These characteristics mean that the body corporate exists as a legal person separate and distinct from its constituent members.[22] What follows is that a body corporate may have interests that are separate and may differ from the varying interests of its individual members.

• [50] Common property can be generally described as the parts of the scheme that are not part of a lot. The common property is owned by lot owners as tenants in common, with a lot owner's interest in a lot inseparable from their ownership interest in the common property.[23]
• [51] The body corporate is charged with administering, managing, and controlling the common property and body corporate assets reasonably and for the benefit of the owners of the lots included in the scheme.[24] One of the secondary objects of the Act is "to ensure that bodies corporate for community titles schemes have control of the common property and body corporate assets they are responsible for managing on behalf of owners of lots included in the schemes."[25]
• [52] A body corporate is also charged with enforcing the CMS (including by-laws) and carrying out other statutory functions.[26] One of the other functions is managing the body corporate's finances by budgeting, levying contributions, and making expenditure decisions.

• [53] Generally speaking, a body corporate fulfills most of its functions by making decisions. Some decisions can be made on its behalf by the committee. Other decisions must be made by the members of the body corporate (owners) voting on motions proposed at a general meeting.
• [54] When making decisions, both the committee and the body corporate have certain duties. There are two broad categories of duties:
  1. There are various statutory duties imposed by the legislature. Those duties can be found in the Act and in the regulation modules.
  2. As Carmody J noted in a Queensland Civil and Administrative Tribunal (QCAT) decision on an appeal from an adjudicator's order, bodies corporate and their committees are also subject to mandatory general law duties. These additional duties include "the duty to act good faith, to make fully considered, rational and reasonable decisions that are not conflicted, arbitrary, patently absurd or plainly unjust."[27]
• [55] The statutory duty found in section 94(2) of the Act requires a body corporate to "act reasonably" in making (or not making) decisions in anything it does to discharge its functions. Section 100(5) of the Act similarly imposes a duty on the committee to "act reasonably" in making decisions.
• [56] These statutory duties to "act reasonably" in making decisions are expressed in simple terms. However, precisely who is bound to act reasonably and what must be done to comply with the duty, can be complex.
• [57] Higher courts have made clear that the statutory duties found in sections 94(2) and 100(5) of the Act to act reasonably in making decisions are imposed on the respective body making the decision - either the committee or the body corporate at a general meeting.[28] Judges and tribunal Members have confirmed that the statutory obligation to act reasonably is imposed only upon bodies corporate and their committees and does not apply to individual voters.
• [58] In practice, however, body corporate decisions are typically made by tallying the votes of a group of participating individual voters.[29] Committee decisions are made by adding the votes of individual committee members voting on motions at, or outside, committee meetings. Decisions of the body corporate at a general meeting are made by aggregating the votes of participating individuals exercising a right to vote on motions.
• [59] The logical question that springs to mind, therefore, is what (if any) duties are imposed on individual voters whose votes determine the decisions of the body corporate? The answer depends in large part upon whether an individual is casting a vote in their capacity as a committee member or in their capacity as an owner.

• [60] When the committee is the body making a decision, it is doing so on behalf of the body corporate in a representative capacity and it has a statutory duty to act reasonably.[30] As a body, a committee also has general duties to act in good faith and in the interests of the body corporate.[31]
• [61] When individual committee members are voting on a committee motion, they are acting as a representative of the body corporate. Accordingly, it makes sense that the legislation also separately imposes certain duties on each voting committee member. Specifically, the Act provides that individual committee members must comply with a code of conduct that requires them to act honestly, fairly, and in the best interests of the body corporate when performing their duties and making decisions as voting members of the committee.[32]
• [62] There are additional obligations placed on persons voting as a committee member. The Act requires individual committee members to disclose a direct or indirect interest that could conflict with their duties about the consideration of an issue.[33] Reinforcing the premise that committee members are acting in a representative capacity and must act in the best interests of the body corporate, individual committee members are not entitled to vote on motions involving the conflicted issue.[34]

• [63] For motions proposed at a general meeting, individuals are voting in their capacity as the owner of a lot. As such, the voting process is based upon property interests.[35]
• [64] In many (if not all) cases, this means voters participating in a general meeting are exercising a right to vote as an aspect of their proprietary rights as an owner of a lot in the scheme.[36]
• [65] Rejecting the argument that the legislation was imbued with democratic principles and that decisions at general meetings were intended to reflect a communal voice, District Court Judge Wilson SC, opined:

Nothing could be clearer but that the "ethos" created under the legislation is not always one based upon an individual's right to vote, but upon the property rights which accrue to lot owners. That is a conclusion applying with particular force to schemes operating under the Commercial Module.[37]

• [66] This reconciles with my understanding that there are no statutory duties expressly requiring individual owners to act reasonably when exercising their voting rights at a general meeting.[38] Nor am I aware of any statutory provisions requiring owners (or their associates) to disclose any direct or indirect interests when voting on a motion proposed at a general meeting.[39]
• [67] The absence of specific statutory duties imposed on individual owners voting at general meetings has been interpreted to mean that an owner may vote based on their own proprietary self-interests and preferences, even if those interests conflict with the interests of other owners or the body corporate.[40] As the District Court has observed, this means that:

The legislation plainly contemplates and permits a majority (determined by reference to voting rights granted by the Act) to assert its will by the legitimate exercise of that voting power.[41]

• [68] However, this is not to say the right of individual owners to vote in their own self-proprietary interest means that a group of controlling voters[42] can always cause the body corporate to do as they prefer. There are constraints and limits. A body corporate can only make decisions that:
  1. relate to and comply with its statutory functions[43]
  2. are within and do not exceed its powers[44]
  3. comply with the body corporate's statutory duty to act reasonably in making the decision, which may require consideration of the varying interests of lot owners,[45] and
  4. comply with its general law duties, which include, a duty to make reasonable decisions that are not conflicted, arbitrary, patently absurd, or plainly unjust[46]
• [69] Although adjudicators do not have the power to directly and individually strike out otherwise validly cast votes, the power to make orders to set aside or validate body corporate decisions can have the same effect.
• [70] An adjudicator may also set aside a decision of the body corporate that is shown to be a fraud on the power or the minority.[47]

Specific decisions - commencing legal proceedings

• [71] Section 312(1) of the Act provides that, except for the prescribed proceedings listed in section 312(4), the body corporate may start a proceeding only if authorised by special resolution.
• [72] For a motion to pass by special resolution, three conditions must be satisfied:
  1. at least two-thirds of the votes cast are in favour of the motion
  2. the number of votes counted against the motion are not more than 25% of the number of lots included in the scheme, and
  3. the total of the contribution schedule lot entitlements for the lots for which votes are counted against the motion is not more than 25% of the total of the contribution schedule lot entitlements for all lots.[48]

• [73] A body corporate can decide at a general meeting to set a maximum amount that can be approved by its committee. Spending above that limit must be approved by owners at a general meeting. In the absence of such a resolution, most of the regulation modules set an amount as a default limit for committee spending.[49]
• [74] The Commercial Module, however, is an exception. For schemes regulated by that module, there is no default limit. Where the body corporate has not set a limit, subject to its duty to act reasonably, a committee has broad discretion when it comes to spending decisions.

• [75] It is generally accepted that a body corporate has the power to decide to regularise past irregular conduct in certain circumstances.[50] This includes deciding at a general meeting to ratify decisions made, or actions taken by, its committee.
• [76] For a ratification to be effective, the following conditions must be satisfied:
  1. the agent must have purported to act for the principal
  2. at the time the agent acted, the principal must have been existing and ascertainable
  3. the principal must have been legally capable of doing the act in question
  4. when deciding to ratify, the principal must have knowledge of all the material facts and circumstances pertaining to the agent's acts, and
  5. the ratification must be effected within a reasonable time.[51]

• [77] Section 276(1) of the Act gives an adjudicator a broad power to make an order that is just and equitable in the circumstances to resolve disputes about, among other things:

(a) a claimed or anticipated contravention of this Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement;[52]

• [78] In addition to, and without limiting the broad general power, adjudicators are also given the power to make any of the orders expressly mentioned in Schedule 5 of the Act.[53]
• [79] Relevantly, Schedule 5, Item 24 of the Act provides that an adjudicator may:

[i]f satisfied a decision to pass or not pass a motion at a general meeting was unreasonable - an order declaring that a motion was invalid or giving effect to the motion as proposed, or a variation of the motion as proposed.

• [80] The High Court of Australia has considered Queensland body corporate legislation and how the tests to be applied by adjudicators to resolve disputes may depend on the nature of the body corporate decision being reviewed and the relief sought by an applicant. At issue in the seminal case of Ainsworth was whether the applicant had demonstrated his motion for a by-law giving exclusive use rights over part of common property airspace, which required a resolution without dissent, failed to pass because of opposition that in the circumstances was unreasonable.
• [81] In approaching the question, the High Court emphasised that the framing of the dispute would inform which legal tests were to be applied to resolve the dispute.[54] It considered whether the dispute was primarily one involving the exercise of rights or powers (a dispute under section 276(1)(b) of the Act) or one about a claimed failure of the body corporate to act reasonably in making a decision and thereby involving a contravention of the Act (a dispute under section 276(1)(a) of the Act).
• [82] The High Court found the dispute in Ainsworth was primarily concerned with the exercise by owners of their right to vote as an aspect of their propriety rights and was therefore a dispute under section 276(1)(b) of the Act. In terms of the test to be applied to determine such a dispute, the High Court looked to the wording of the adjudicator's power to make an order found in Item 10 of Schedule 5. The High Court found the applicable test for disputes about the exercise of voting rights for a motion requiring a resolution without dissent was whether the opposition of dissentient voters was unreasonable in the circumstances.
• [83] In Ainsworth, however, the High Court was only concerned with the test for a motion requiring a resolution without dissent. It did not need to consider what test is to be applied to resolve a dispute about the exercise of voting rights in the context of a motion requiring a special resolution to authorise legal proceedings concerning common property.
• [84] When it comes to disputes about claimed contraventions of the Act (or the CMS) that fall under section 276(1)(a), the applicable legal test will be informed by the particular section allegedly being contravened. For example, the test for a contravention of the body corporate's duty to maintain common property may be different from the test to be applied to a dispute about whether an occupier is contravening the nuisance provision of the Act.
• [85] Applications commonly involve a dispute claiming a body corporate has contravened the Act by breaching its section 94(2) duty to act reasonably in making decisions. However, in terms of the test for such disputes, section 94 simply provides that the body corporate must act reasonably; it contains no guidance as to which test an adjudicator is to apply to determine whether a body corporate has done so in any given context.[55]
• [86] So, what does it mean for a body corporate to "act reasonably" and what tests are to be applied to determine whether a body corporate failed to meet its statutory duty?
• [87] Courts and Tribunals interpreting sections 94(2) and 100(5) of the Act have found that to act reasonably is not the same as making a reasonable decision. The term "act reasonably" is used in the ordinary sense of the words to mean that the actions - the process of considering a proposal and weighing the factors for and against - must be genuine, evidence-based, and rational.[56]
• [88] To be rational in making a decision means that a body corporate is required to evaluate relevant factors that have a bearing on the issue and to ignore irrelevant factors.[57] The specific factors to be considered will vary depending on the context of the decision and the scheme. To act reasonably in forming views about a proposal and the specific factors, a body corporate will need to consider the factors in a genuine (bona fide) way. The views formed must be supported by evidence, i.e., those views must have a sufficient factual basis.
• [89] Whether a decision maker has failed to act reasonably is a finding or inference of fact.[58] It is not the role of an adjudicator to subjectively weigh the factors, substitute their own views or to conclude that a different decision would have been more reasonable.[59] Rather, an adjudicator must assess whether the body corporate has acted rationally by considering - properly and realistically - all of the factors that are relevant to the decision.[60] An adjudicator may also assess the bona fides and evidentiary basis of the concerns that informed the decision,[61] and whether a body corporate has acted on irrelevant collateral factors that have no logical role to play in deciding the issue.[62]
• [90] Where the challenged decision was made by owners at a general meeting, assessing whether the body corporate has met the section 94 requirement to "act reasonably" is somewhat of an abstract concept requiring the reconciliation of competing notions. On the one hand, an adjudicator must assess whether the decision-making (and the decision) of the body corporate as a separate entity complies with its statutory and other duties. Yet in reality, the decision-making is effected by individual owners voting in their own self-interest and the body corporate's decision reflects the collective preferences of the owners participating in the vote. As Member Roney KC in QCAT observed, this presents a conundrum.[63]
• [91] Guided by superior courts, one approach taken by adjudicators is to firstly identify the factors, with a rational bearing on a decision about the motion, which would be considered by a notionally reasonable body corporate faced with the motion in the same circumstances.[64]
• [92] Once the relevant factors have been identified, an adjudicator can make findings from the submissions or draw inferences about the factors considered by voters who collectively caused the body corporate to make its decision.
• [93] The adjudicator can assess whether there was a failure to genuinely and properly consider any of the relevant factors.[65] The adjudicator may also assess whether the body corporate considered factors or facts that were irrelevant, not bona fide, or had no evidentiary basis.[66]
• [94] If the adjudicator is affirmatively satisfied the duty to act reasonably imposed by section 94(2) has been contravened and the result is an unreasonable decision, the adjudicator may declare the decision invalid or give effect to the motion as proposed, or as varied. If satisfied a body corporate has otherwise made an unreasonable decision - including by breaching a general duty - an adjudicator may make also make a declaration about the motion.[67]

• [95] In certain limited circumstances, an adjudicator has the power to set aside an otherwise lawful decision of the body corporate on equitable grounds. The equitable doctrine of fraud on the minority (and its close relation, fraud on the power) is more commonly raised in the context of corporations and minority shareholders. However, where the majority votes of an owner led a body corporate to transfer part of common property to the owner for $1, the NSW Court of Appeal found the equitable doctrines could be applied to the decisions of bodies corporate.[68]
• [96] Queensland courts have also accepted that an adjudicator has the power to apply this equitable doctrine to set aside an otherwise lawful body corporate decision.[69]
• [97] An adjudicator cannot apply this doctrine simply on the basis that the majority has exercised its voting power in a way that appears to the adjudicator to have an unfair effect or that the outcome appears to be unfair to the minority.[70] Rather, to enliven an adjudicator's power to apply this equitable doctrine, the applicant must demonstrate, and an adjudicator must be satisfied, that there is sufficient evidence of fraud or actual oppression in the sense that the motivation for the decision "does not fairly arise out of the subjects dealt with by the power and is outside and even inconsistent with the contemplated objects of the power."[71]

• [98] An adjudicator must investigate an application to decide whether it is appropriate to make an order to resolve the dispute.[72] To do so, in addition to reviewing the application and submissions, adjudicators are given certain discretionary investigative powers to enable them to obtain information that may be relevant to the issues in dispute.[73]
• [99] When investigating an application, an adjudicator must observe natural justice, act as quickly, and with as little formality and technicality as is consistent with a fair and proper consideration of the application. Moreover, the Act makes clear that adjudicators are not bound by the rules of evidence.[74] That said, when making determinations, adjudicators remain bound by principles of natural justice. In my view, this means information and materials must have rational probative force if they are to be relied upon.[75]
• [100] Where an applicant challenges the decision making or a decision of a body corporate, the adjudicator must be affirmatively satisfied that the body corporate has breached its duty to act reasonably or that it made an unreasonable decision. It is accepted that an adjudicator must be satisfied of these matters to the civil law standard of the balance of probabilities. Adjudicators primarily, but not exclusively, rely on the applicant to persuade them to the required standard.[76]
• [101] The strength of the probative evidence required to reach the required level of 'reasonable satisfaction' may vary depending on the issue in dispute and the consequences flowing from a particular finding.[77] Reasonable satisfaction may also be affected by considerations such as "the inherent unlikelihood of an occurrence of a given description."[78]
• [102] Ultimately, the question is whether there is sufficient logically probative evidence, including base facts, circumstantial evidence, or inferences, for an adjudicator to reach the required standard of satisfaction.[79]

• [103] On the basis of the documents provided, my investigations, and the responses to my requests for information, I am satisfied on the balance of probabilities of the following facts.

• [104] The scheme land was developed by the Original Owner, with the scheme known as Medici on Scott CTS 35992 established in October 2006. The scheme comprises 25 Lots, common property, and the CMS. It was and continues to be subject to the Act and the Commercial Module. The scheme land is improved by a five-level building. The common property includes car parking areas and storage rooms located on the first two levels of the building.
• [105] The Original Owner of the scheme, Scott Street Medical Pty Ltd ACN 108 370 065 as Trustee, was incorporated on 16 March 2004. At the time of its incorporation and at the time of the May 2025 EGM it had 4 directors.[80] Those directors are the Director Defendant and Dr AC, Dr RG, Dr RM (together, the Three Doctors).[81]
• [106] The body corporate held its first general meeting on 6 November 2006 (First EGM). At the time of the First EGM, the Original Owner was the owner of all the lots in the scheme. The body corporate held the First EGM before it held its first annual general meeting (AGM).
• [107] The First EGM was attended by two persons, the Director Defendant, as the corporate nominee of the Original Owner, and a body corporate manager. The Director Defendant chaired the First EGM. The only person entitled to vote at the First EGM was the Director Defendant in his capacity as the corporate nominee for the Original Owner.

• [108] At the First EGM, the Original Owner's votes caused the body corporate to resolve to enter the Lease as lessor, with the Lessee.
• [109] The Lessee was incorporated in 2004. At the time of its incorporation and at the time of the May 2025 EGM it had 4 directors.[82] Those directors are the Director Defendant and the Three Doctors. Thus, at all relevant times, the Director Defendant and the Three Doctors were each acting concurrently as a director of the Original Owner and as a director of the Lessee.
• [110] The Lease is the primary subject of the Proceedings. It is dated 6 November 2006 and it was registered with the Queensland Land Registry on 22 November 2006.[83] The Lease is for a term of 99 years, with a commencement date of 7 November 2006 and an expiration date of 6 November 2105. The Lease provides for an annual base rent payable to the body corporate of $1.00 per annum and has no index review dates.
• [111] The Lease is over 13 areas of common property (as identified on a marked plan), which are sufficient for the parking of 110 cars and some storage. The Lease includes the licensing of certain parking equipment - 2 barrier gates and a pay station - from the body corporate.
• [112] The Lease was signed for and on behalf of the body corporate as lessor by two persons. Those persons were the Director Defendant, as director and secretary of the Original Owner, and another director of the Original Owner, one of the Three Doctors namely, Dr AC.
• [113] The Lease was signed for and on behalf of the Lessee by two of the directors of that entity, namely the other two doctors, Dr RG and Dr RM. The 2 directors that signed the Lease on behalf of the Lessee were at the time also directors of the Original Owner.
• [114] The Lessee operates the business of a car park on the parts of scheme land described in the Lease and using the licensed body corporate assets.

• [115] In terms of associations and relationships, I am satisfied that for the purposes of the Act[84] at all material times the owners of the following 4 lots were associated with both the Original Owner and with the Lessee:
  1. Lot 209
  2. Lot 301, and
  3. Lots 302 and 303.
• [116] Specifically, I am satisfied that there is sufficient evidence to support a finding that persons associated with the above 4 lots owe duties to, and/or have a beneficial interest in, at least one of the defendant entities.[85] Those duties and interests have also been acknowledged:
  1. In a 2 April 2024 letter to the body corporate, the Lessee stated its directors - who were closely associated with the Conflicted Owners - "have a duty to act in the best interests of all beneficiaries" of the Lessee.
  2. In a 16 May 2024 letter to the body corporate, the Lessee stated that its directors and beneficiaries "are members of the body corporate" and that "our directors have a fiduciary duty to the beneficiaries of the [Lessee] to act in their best interests.[86]
  3. The solicitor for the defendants stated in a 10 April 2025 letter to the body corporate's lawyers that "directors of my corporate clients maintain an interest in lots in the scheme; and, as such, have access to the books and records of the body corporate."
• [117] Without evidence to the contrary, I accept the representation of the remaining Dissenting Owner, the owner of 3 lots (Lots 102, 106, and 201), that at the time of voting at the May 2025 EGM it was not associated with any of the defendants named in the Proceedings.

• [118] The committee sought legal advice about the Lease from at least November 2021. The body corporate made an application for adjudication in August 2023 about the Lease but withdrew that application soon after.
• [119] The communications between the body corporate and the Lessee about the Lease include the following:
  1. In August 2023, the Lessee wrote to express concerns about committee decisions to spend funds on lawyers and steps to challenge the Lease. It asserted that those actions were "not in the best interests of the body corporate" and were wasteful spending of owner contributions. It also suggested the body corporate was not acting reasonably and it preferred that the committee stop further efforts to dispute the Lease.
  2. At the body corporate's AGM in December 2023, the representative of an owner proposed that the August 2023 letter from the Lessee be tabled for discussion.
  3. In March 2024, the secretary of the body corporate wrote to the Lessee inviting it to meet to discuss a renegotiation of the Lease on commercially reasonable terms.
  4. In April 2024, the Lessee responded that its position was there was "no legal basis" to dispute the Lease and to renegotiate its terms without legal or commercial justification would contravene its directors' duties to act in the best interests of the trust beneficiaries. It requested that the committee cease spending further contributions on this matter (including expenditure on a valuation of the Lease).
  5. In its April 2024 communication, the Lessee also stated that:

... some of our directors and shareholders, who are also committee members and members of the body corporate, feel they are being coerced into amending this lease by the committee's decisions to keep spending their contributions on ineffective legal advice.

1. In declining to meet on the committee's proposed date in May 2024 to discuss the Lease, the Lessee wrote further that the committee was acting unreasonably in continuing to spend member contributions on legal advice about the Lease and that owners should have been aware of the Lease when purchasing their lots.
2. In September 2024, lawyers for the body corporate wrote to the Lessee proposing new terms for the Lease. The Lessee did not respond to the September 2024 letter.
3. On the basis of legal advice received in December 2024, the committee resolved in February 2025 to engage lawyers and to commence the Proceedings.

• [120] The committee decided in February 2025, ostensibly on behalf of the body corporate, to engage lawyers and commence the Proceedings.
• [121] The Proceedings were commenced on 18 March 2025 in the Supreme Court of Queensland as BS1047/25 and were brought in the name of the Body Corporate for Medici on Scott CTS 35992 as plaintiff. The Proceedings name the Original Owner, the Lessee, and the Director Defendant as the defendants to various claims.
• [122] At the time the Proceedings were filed, the body corporate had not passed a special resolution at a general meeting authorising initiation of the Proceedings.

1. At its May 2025 EGM, the committee proposed by Motion 2 that the body corporate decide by special resolution to ratify the committee's decisions and retrospectively authorise and approve the commencement of the Proceedings and the engagement of specific lawyers for that purpose.[87] Among other things, the explanatory notes to Motion 2 expressly invited owners to request a copy of the Proceedings filed as BS1047/25.

• [124] Motion 2 also proposed that the body corporate prospectively authorise the committee to do all things necessary to implement the motion, including expending the necessary funds to have lawyers represent the body corporate in the conduct and to the conclusion of the Proceedings. The explanatory notes included an estimate of the legal fees to prepare up to the point of a trial if the issue was not resolved commercially.

1. Of the 25 lot owners in the scheme, the minutes of the May 2025 EGM record that 19 votes were received for Motion 2, with 11 votes for the motion, 7 against, and 1 vote declared invalid because required documentation was not provided.[88]

• [126] To pass by special resolution, this meant that at least 12 of those votes (two-thirds of the 18 valid votes cast) had to be in favour of Motion 2, no more than 6 votes could be cast against the motion, and that those owners voting against the motion did not hold more than 25% of the total contribution schedule entitlements.
• [127] The minutes show that, of the 18 valid votes, 11 votes were in favour of the motion and 7 votes were against. This was one vote too few in favour (11 and not the requisite 12), and one vote too many against (7 rather than the maximum 6) for Motion 2 to pass as a special resolution.
• [128] Where the total contribution schedule lot entitlements for the 7 lots voting against Motion 2, was 31.22% of the total contribution schedule lot entitlements for the scheme, the motion also failed to pass because it exceeded the maximum of 25% of contribution entitlements voting against the motion.
• [129] The voting for Motion 2 thus failed to meet each of the 3 conditions necessary for a motion to pass by special resolution.
• [130] On 28 May 2025, the defendants filed with the Supreme Court a conditional notice of intention to defend. The defendants applied to have the body corporate's claims set aside (with costs) on the grounds that the body corporate had commenced the Proceedings without the special resolution required by section 312 of the Act.
• [131] Those proceedings have been stayed pending the outcome of this application.

• [132] The applicant presents the dispute as a contravention of the Act, specifically, that the body corporate failed to act reasonably in making a decision about Motion 2 because it did not properly and genuinely consider all the relevant factors. He also claims that, by failing to pass Motion 2, the body corporate failed to manage the common property for the benefit of owners, rendering the decision itself unreasonable. The applicant also presents the dispute as being about the Conflicted Owners' exercise of voting rights in a way that caused the body corporate to make an unreasonable decision.
• [133] The applicant is seeking an order pursuant to section 276 and Schedule 5, Item 24 of the Act declaring that Motion 2 takes effect as proposed.[89]
• [134] Following the High Court in Ainsworth, to determine the applicable test to be applied to resolve the dispute, I have firstly considered whether this dispute is primarily concerned with the exercise of rights or a claimed contravention of the Act.
• [135] Where the dispute can be fairly characterised as both, it is difficult to determine which should be the primary focus. In the circumstances presented here I have concluded that, regardless of which characterisation is at the fore, the test to be applied is the same. To determine whether it is appropriate to make an order pursuant to my power under Schedule 5, Item 24, the applicable test is whether I am satisfied the body corporate made an unreasonable decision - either because it failed to act reasonably or for another reason - when it decided not to pass Motion 2.
• [136] The applicant has claimed the body corporate contravened the Act by failing to administer the common property for the benefit of owners and by acting unreasonably and against its own interests when deciding not to pass Motion 2.[90] He says this was due in large part to owners with interests that were in conflict with the body corporate's interests voting against Motion 2 which caused the body corporate to act unreasonably by failing to consider relevant factors and by making an unreasonable decision.[91]
• [137] The Dissenting Owners, who cast the 7 votes against the motion, say generally that:

1. the commencement of legal action by a body corporate can be contentious and expensive, with a risk that litigation becomes drawn out with escalating legal expenses, making a decision to commence court proceedings a significant step not to be undertaken lightly or without proper consideration of relevant facts and advice 2. parliament's decision to require a special resolution for commencement of legal proceedings reflects the seriousness of this type of decision 3. the applicant has not met his burden of establishing that the body corporate acted unreasonably in deciding not to ratify the committee's decision where:

(i) the application consists of bare assertions, without evidence, and relies on inferences about relationships and conflicts of interest which are insufficient to disregard their votes and do not support a conclusion that the body corporate acted unreasonably, and > > (ii) the applicant's approach "runs sharply contrary to the weight of authority, is plainly wrong and should be rejected"

1. to determine whether the body corporate acted reasonably, it is necessary to consider the terms of Motion 2, its effect, and the information (or lack thereof) available to lot owners at the time they cast their votes and, where the necessary information is not provided, it will always be reasonable for a lot owner to vote against a motion 2. the body corporate considered the factors relevant in the circumstances and made a reasonable decision, and 3. there can be no fraud on the minority where the Dissenting Owners do not constitute a majority and the relationships between some of the Dissenting Owners and the defendants is not sufficient evidence of a fraud on the minority.

• [138] To answer this question, I will identify the relevant factors for a notionally reasonable body corporate faced with the motion in the same circumstances and then make findings about the consideration of factors by the Body Corporate for Medici on Scott.

• [139] The circumstances involve a committee's earlier decision, on behalf of the body corporate in a commercial scheme, to obtain legal advice and commence legal proceedings relating to a lease of a significant portion of its common property for a lengthy time period for negligible rent.
• [140] In my opinion, in those circumstances, in deciding whether to ratify its committee's decision to commence legal proceedings and authorise those proceedings to continue, a notional body corporate acting reasonably should consider:
  1. its functions and the details of the affected common property
  2. the potential benefits of the Proceedings
  3. the prospects of success
  4. the risks and consequences of an unfavourable outcome
  5. legal representation and potential legal costs, and
  6. the consequences (short and long term) of not continuing with the Proceedings.[92]

Function of the body corporate and subject of the claims

• [141] The applicant says that the body corporate failed to properly consider its functions and its responsibility for managing the common property for the benefit of owners.
• [142] Managing the common property for the benefit of its members is a core function of a body corporate. This function is a raison d'être of a body corporate. One of the secondary objects of the Act is to ensure that bodies corporate have control of the common property they are responsible for managing.[93] A body corporate has the power to sue and be sued for rights and liabilities relating to the common property as if it was the owner of the common property.[94]
• [143] Certainly, whether legal proceedings concern a little or a lot of common property, the commercial value of the property, whether owners are interested in using that property, and whether the area is affected for a short or an extended time period, are clearly relevant to a decision about whether to continue legal proceedings relating to the resumption of use or compensation for use of the common property.
• [144] In my view, the various factors and circumstances relevant to the body corporate's decision included its general functions and its obligation to manage the common property and the details of the particular common property and the Lease. To properly consider this factor in the circumstances, in my opinion the body corporate should have at a minimum accounted for the extent of the common property at issue, how the Lease affected owners' rights in that property, and for how long.
• [145] I must be affirmatively satisfied that the body corporate failed to consider this factor properly and genuinely. The High Court has said that, even the assertion by a decision maker that it has given proper and realistic consideration to a matter does not necessarily conclude the matter. Rather, "the question will remain whether the merits have been given consideration in any real sense."[95] Where it is not always possible to prove a negative by direct evidence, it is my opinion that facts may be fairly inferred from indirect evidence and the circumstances.
• [146] In this case, the Proceedings concern a 99-year Lease over a significant amount of common property to a non-owner lessee for "peppercorn" rent. The Lease is not for one carpark, or even two. The Lease covers an area of common property equivalent to more than 110 car spaces, almost an entire floor and part of another floor. Moreover, the Lease has deprived owners of the use of that common property for almost 20 years and will continue to do so for the balance of a century. The body corporate will only receive a total of $99 under the Lease.
• [147] In listing relevant factors, the Dissenting Owners do not identify the function of the body corporate as a factor to be considered. Although they do identify the "nature of the claim" as relevant, they focus on the grounds and the prospects of success. In deciding not to ratify Motion 2, there is no indication that any consideration (much less genuine or adequate consideration) was given to the amount of the common property at issue, the proprietary interests of lot owners in that common property, for how long those interests were affected by the Lease, and the value of the rights to use the common property.
• [148] I consider it to be a fair inference from the submissions, and I am satisfied on the balance of probabilities that, in making the decision not to pass Motion 2 the body corporate failed to give proper, genuine and realistic consideration in any real sense to its function or to the details of the common property and the long-term effect of the Lease on owners' rights in that property.

• [149] The potential benefits to the body corporate (and owners) of commencing and continuing legal proceedings is also clearly relevant to a decision whether or not to do so.
• [150] The Dissenting Owners assert that they did not receive sufficient information about the commercial utility of the Proceedings to the body corporate, but instead received only vague, unsupported statements. The Dissenting Owners claim owners were only told that the body corporate would regain control over the leased area or receive compensation - with the loss of income over the next 81 years valued at over $12 million - if it was to prevail. They say the valuations to support the compensation claim have not been made available to owners. In the circumstances, they say it was reasonable for owners to vote against Motion 2 where it was "impossible" for lot owners to assess the commercial utility of the Proceedings.[96]
• [151] In response, the applicant says the explanatory notes for Motion 2 are not the only source of information about the Proceedings. Rather, the Lease and the Proceedings have been the subject of various communications to owners in the preceding years, including through committee minutes.
• [152] The applicant says a copy of the valuation referenced in the explanatory notes for Motion 2 was discussed at a committee meeting in July 2024 and was distributed to all owners. The applicant also says the explanatory notes to Motion 2 expressly invited owners to request a copy of the Proceedings filed as BS1047/25 but no owner did so.
• [153] Although the potential benefit of the Proceedings is indisputably a factor that is relevant to a decision about Motion 2, consideration of that factor must be genuine and evidence based.
• [154] I reject as specious and lacking in support the arguments of the Dissenting Owners that the potential benefits of continuing the Proceedings were not made sufficiently clear. To the contrary, the potential for court-ordered benefits from the Proceedings are self-evident and were amply disclosed in the explanatory notes to Motion 2, namely restitution of the interest and rights to use a large and well-defined area of common property, and/or equitable compensation for past or future use of that common property.
• [155] I also reject the Dissenting Owners exaggerated claim that it was "impossible" for lot owners to assess the commercial utility of the Proceedings. I accept as true the applicant's representation that a valuation of the remaining term of the Lease obtained by the body corporate has previously been made available to owners. Further, the figures from the valuation were available to all owners had they taken up the invitation to be provided with a copy of the papers filed for the Proceedings.
• [156] In addition, I consider it stretches credulity that the Conflicted Owners with their direct associations with the Lessee, plead ignorance of the value of the Lease. The Lease is an asset of the Lessee (likely recorded on its balance sheet) and generates revenue for that entity. Indeed, I consider it highly likely that the Conflicted Owners have a better idea of the commercial value of the Lease than most.
• [157] Further, the potential benefits of commencing the Proceedings are not limited to the Supreme Court ultimately granting some or all of the relief sought. There are other possible benefits.
• [158] It is quite common for the commencement of legal proceedings to trigger settlement discussions and self-resolution of claims by the parties prior to trial. As was noted in the explanatory notes for Motion 2, the defendants have thus far resisted the committee's efforts to negotiate a commercial outcome regarding the terms of the Lease. One possible benefit for the body corporate is that the continuation of the Proceedings may lead the directors of the Lessee to engage in negotiations or that the parties may otherwise decide to reach an agreed settlement of the claims. I am satisfied these potential benefits were extant but were not identified nor considered in any real sense by the Dissenting Owners who caused the body corporate to decide not to pass Motion 2.
• [159] For the above reasons, I am thus satisfied that the body corporate failed to give proper and genuine consideration to the potential benefits of the Proceedings.

• [160] The Dissenting Owners identify the prospects of success of the body corporate's claims as relevant to a decision about Motion 2. They argue that owners required access to legal advice about those prospects so that owners could assess whether the expenditure of body corporate funds and the risk of an adverse costs order were warranted.
• [161] In terms of the prospects of success, the Dissenting Owners say the only information provided by the committee was that lawyers had advised that the body corporate was entitled to the relief sought. The Dissenting Owners submit that being entitled to relief and successfully obtaining that relief are not necessarily synonymous. In this regard, they say no information was provided to owners about whether the prospects of success in the Proceedings were strong, moderate, or poor.
• [162] Moreover, they say lot owners were not given an opportunity to view the nature, content, or basis for the lawyers' advice. They say further that owners were not offered the opportunity to view the advice nor given an explanation why it was not shared.
• [163] The applicant says in response that owners were on notice that the committee had been legally advised and that the advice was sensitive. He also says providing a copy of the legal advice to owners would inevitably reach the Conflicted Owners and thereby prejudice the body corporate in the Proceedings.
• [164] I agree that the prospect of success for legal proceedings is generally relevant to a decision whether to pursue such proceedings.
• [165] The Dissenting Owners say in the absence of information about the prospects for success, it was reasonable on this factor alone for owners to vote against Motion 2. I disagree for two reasons. Firstly, to act reasonably, it was incumbent on the body corporate to properly consider all the relevant factors. Secondly, to act reasonably requires genuine consideration of relevant factors.
• [166] Adjudicators have previously opined that owners "may" need access to legal advice about the prospects of success to make an informed decision about whether to commence legal proceedings.[97] When reviewing the decision making of a body corporate, however, I must review the actions in the context of the motion at issue and in view of the particular circumstances presented.[98] In this case, there are several extant facts that I consider relevant and would require consideration by a notionally reasonable body corporate acting rationally.
• [167] The first fact relates to the timing of the motion and the information available to the body corporate (and its members) about the prospects of success for the Proceedings. At the time the notice for the May 2025 EGM was distributed on 16 April 2025, the Proceedings and a detailed statement of claim, had already been filed with the Supreme Court. In the notice of the EGM, owners were invited to request a copy of the documents. Before voting on Motion 2, owners had an opportunity to review the body corporate's claims in the Proceedings.
• [168] Secondly, as was noted by more than one submitter, views on the prospects of litigation can vary. The Dissenting Owners themselves acknowledge that litigation is inherently uncertain and risky. Another owner acknowledges that outcomes cannot be guaranteed.[99]
• [169] Thirdly, it is questionable whether the advice could be shared with those Dissenting Owners that are associated with the defendants without waiving privilege. Contrary to the Dissenting Owners assertion that owners were not given an explanation why the legal advice was not shared, the explanatory materials for Motion 2 stated at point 5 that the [legal] advice was "sensitive having regard to the ongoing interest the Defendants have (whether in person or through related parties) in the Body Corporate and the [Proceedings]." This was a salient and extant fact for the body corporate to consider when weighing the sharing of legal advice.
• [170] Fourthly, it is apparent that the Proceedings should not have been commenced by the committee without a special resolution of the body corporate. While not condoning that action, it is an extant fact that the committee, acting in its representative capacity, consulted lawyers and received an opinion on the body corporate's prospects of success. The committee, with the benefit of a legal opinion and under an obligation to act in the body corporate's best interests, decided to initiate the Proceedings. In my view, those facts were also relevant to the body corporate's decision whether to pass Motion 2 and ratify the committee's decision.
• [171] I am satisfied in these particular circumstances that the body corporate failed to properly or genuinely account for the above facts about the sharing of legal advice and the added bearing (if any) of that advice on the question of the prospects of success.
• [172] In addition, the applicant says that, regardless of the amount of information provided, the Dissenting Owners would have always and in any event voted against Motion 2. He says no amount of information would have made a difference to them, because "[a] turkey does not vote for Christmas, ever."
• [173] I understand the applicant to be arguing that the Conflicted Owners voted against Motion 2 because of their associations with the defendants and that the "alleged deficiencies" in the motion - the lack of information provided about legal advice, defences, potential benefits, adverse costs orders, and litigation costs - played no part in the way the Conflicted Owners voted. In other words, he suggests the stated concerns were not genuine.
• [174] I am persuaded (see below at [223]-[226]) that it is more likely than not that the Conflicted Owners voted against Motion 2 primarily due to their associations with, duties to, and interests in, the Lessee and Original Owner rather than because of any genuine concerns about the deficiencies in the information provided to "lot owners" about the Proceedings.
• [175] For completeness, I note two comments about the legal advice given to the committee were received from owners who did not cast a valid vote on Motion 2. However, those owners did not in fact participate in the decision-making of the body corporate about Motion 2.
• [176] One lot owner stated at the time of purchasing their lot, their own legal advisers clearly indicated that there were no grounds to dispute the Lease. As a result, that owner says she "cannot be convinced that the further legal fees and action are justified." Even if I was to have regard to the comments of an owner who did not cast a valid vote, the comments are based on legal advice given at the time of purchase and therefore before, and without specific consideration of, the claims made in the Proceedings. An owner who did not vote on Motion 2 at the May 2025 EGM, later sought the views of their own solicitor about this application. Where I must evaluate the decision-making at the time a decision was made about Motion 2,[100] post-hoc contemplation of the application has no bearing on my determination.

• [177] The Dissenting Owners say at no time were lot owners informed that the Proceedings were commenced 13 years after they became time-barred and that to succeed, the body corporate "faces the substantial difficulty of overcoming the expiry of the limitations period." As a result, the Dissenting Owners claim it was reasonable for owners to vote against Motion 2 when not informed of these matters. They also say it was reasonable to vote against attempts to pursue a cause of action that is "on its face", statute barred.
• [178] More specifically, the Dissenting Owners say each of the causes of actions in the Proceedings had expired and became statute barred by the Limitations of Actions Act (1974). They say the time limitations placed on legal actions apply by analogy to actions based in equity, which means the body corporate's claims had to be filed before November 2012.
• [179] In response, the applicant acknowledges that the defendants to the Proceedings will seek to rely on a limitation defence. However, he argues that the Dissenting Owners' views on the law are misdirected and wrong. Among other things, he notes that there is no prescribed limitation period for equitable actions in Queensland and any such limitation would need to be applied by analogy, which is at the discretion of the court. In any event, the applicant says the limitation period is a matter for the judge in the Proceedings.
• [180] The prospect of success - which are affected by defences to the claims - are relevant to the decision of whether to commence legal proceedings. That said, I cannot credit the Dissenting Owners' argument that it was reasonable for lot owners to vote against Motion 2 on the basis they were not informed that the defendants might raise a limitations defence. I cannot see how an owner can decide to vote against a motion based on something they do not know exists.
• [181] Moreover, not being informed about a possible defence and it being not "knowable" without affirmative disclosure by the committee are not synonymous. Indeed, the argument that owners were not adequately informed strikes me as inherently inconsistent with the Dissenting Owners' argument that the claims were "on their face" defeated by a limitations defence.
• [182] As to the second point, in deciding whether to commence proceedings, I agree in principle that, if it knows a claim might be time barred, a body corporate acting reasonably may consider that fact. However, it must do so in a bona fide and evidence-based manner.
• [183] The Dissenting Owners are incorrect to say definitively that the body corporate's claims have expired or are time barred. That is yet to be determined. A court has discretion to apply a limitation period by analogy to equitable claims and can decline to do so where it would be unjust or unconscionable to do so.[101] Its decision whether to do so will turn on the particular facts.
• [184] For the above reasons, I am persuaded on the balance of probabilities that the Dissenting Owners (and the body corporate) failed to properly and genuinely consider this factor when making its decision on Motion 2.

Risks of continuing the Proceedings - adverse costs award

• [185] The Dissenting Owners also point to the possibility of an adverse costs order as a relevant factor for body corporate consideration. They note that the Proceedings were commenced in the Supreme Court of Queensland, a court in which costs typically "follow the event." In other words, they say there is a risk the body corporate will have to pay some (or all) of the defendants' costs if the body corporate is not successful in the Proceedings.
• [186] The Dissenting Owners say the explanatory notes for Motion 2 did not disclose this risk nor provide any estimate of the defendants' total costs or the body corporate's potential liability to contribute to those costs. Where it was "impossible" for lot owners to know or understand the consequences of an adverse decision, they say it was reasonable for lot owners to vote against the motion.
• [187] In terms of information about an adverse cost order, I am satisfied this was not a genuine basis on which the body corporate decided not to pass Motion 2. The Conflicted Owners are associated with the defendants in some way. Where they are aware an adverse costs award is possible, I am satisfied a purported non-disclosure to the body corporate of the possibility of such an award was not a bona fide concern.
• [188] Regarding the risk itself of an adverse costs order, for this factor, I hold the view that acting rationally may sometimes require some consideration of proportionality. The High Court has opined that:

... a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves.[102]

• [189] I consider the reverse to also hold true. In other words, it may be irrational to decide not to take action where the subject of the claims is of relative significance to the body corporate or the potential benefits of an action substantially outweigh the potential costs. At a minimum, I think in the circumstances presented, a notional body corporate acting rationally would not have considered the potential costs in isolation but would have considered costs and risks relative to the potential benefits of the Proceedings.
• [190] In other words, to properly consider this factor it is my view that a body corporate had to assess the risk and size of an adverse costs order as compared to the value of the benefits of a successful outcome. Thus, to rationally evaluate this factor, the body corporate should have weighed the costs and risks of commencing litigation with the potential benefits to be gained.
• [191] Where it is claimed that it was "impossible" for lot owners to assess the commercial utility of the Proceedings,[103] I am satisfied that the body corporate cannot have properly considered the risks of an adverse costs order relative to the potential benefits to the body corporate. As a result, I am satisfied on the balance of probabilities it did not properly assess this factor.

Legal representation and Costs of the Proceedings

• [192] The Dissenting Owners say it was also reasonable for owners to vote against Motion 2 where owners were not provided with any of the pertinent information about the terms of the body corporate's engagement of lawyers for the Proceedings. For example, they say owners were not informed of the identity of individual lawyers who would be working on the matter and their hourly rates. They also say owners were not given a copy of the lawyers' costs agreement.
• [193] The Dissenting Owners also take issue with the clarity and sufficiency of information about the estimated costs of continuing with the Proceedings and the discretion purportedly afforded to the committee to incur such costs.
• [194] They say Motion 2 and the accompanying explanatory materials were deficient because they should have included an estimate of anticipated future legal costs, were vague and open-ended about costs and only provided an estimate of the costs up to the first day of trial. They also say the motion sought authorisation for the committee to do "all things necessary" to implement the motion, which was vague and insufficiently clear, and would give the committee an unfettered discretion to incur and pay whatever legal costs it deemed necessary to conduct the Proceedings to an undefined "conclusion."
• [195] For these reasons, the Dissenting Owners argue it was reasonable for the body corporate to decide not to pass Motion 2.
• [196] The applicant denies these claims. He says that the pertinent information was provided to owners and the alleged deficiencies in information about the engagement of lawyers played no part in the way in which the Dissenting Owners exercised their votes against Motion 2.
• [197] He also says some of the allegedly deficient information about future costs is simply unknown or is contingent on future events. For example, the total costs and duration of the litigation will depend in part upon the defendants' responses to the claims. The applicant points out that these constraints were expressly mentioned in the explanatory notes to Motion 2.
• [198] I must determine whether the body corporate genuinely held evidence-based concerns about the terms of the engagement of lawyers and information about potential costs of the Proceedings.
• [199] The Proceedings were filed on 18 March 2025. By Motion 3, the body corporate decided to ratify the committee's decisions to incur legal fees and costs to prepare and file the Proceedings. Through their associations with the defendants, at the time of the May 2025 EGM, the Conflicted Owners had information about the identity of some of the lawyers representing the body corporate in the Proceedings.
• [200] In terms of future costs of the Proceedings, costs of litigation can vary and may be partly dependent on things that are outside a party's control. It is inherently difficult to estimate the future costs of a litigation with precision. In this case, the explanatory notes for Motion 2 did in fact include an estimate of the costs of the Proceedings, specifically that "it may cost between $25,000 and $40,000 (ex GST) to prepare it for trial up until the first day of trial." The notes also referenced the difficulties at this early stage of the Proceedings in providing a more particularised estimate of costs.
• [201] I am satisfied that a costs estimate was in fact provided to owners and that the Conflicted Owners (and therefore the body corporate) did not properly or genuinely consider the difficulties inherent in estimating future legal fees. They also failed to consider the potential benefits of continuing the Proceedings relative to the estimated costs. In addition, the Conflicted Owners failed to consider that the spending portion of the motion required only an ordinary resolution and that, unless previously limited by a body corporate decision and subject to the duty to act reasonably, committees in a commercial scheme already have a wide discretion when it comes to spending.
• [202] For the same reasons I was satisfied the body corporate failed to rationally evaluate the risk of an adverse costs order, I am also satisfied that the body corporate failed to properly account for this factor.

• [203] I also find the body corporate failed to adequately account for another relevant factor. Namely, the possible consequences of deciding not to ratify the committee's decision to commence the Proceedings.
• [204] One possible consequence of not passing Motion 2 was that the defendants could file a notice to defend seeking to have the body corporate's claims set aside and an order made against it for costs. Indeed, this is exactly what transpired on 28 May 2025.
• [205] The applicant identifies a second potentially significant longer-term consequence for both current and future owners. He says, by deciding not to pass Motion 2 and effectively deciding not to continue with the Proceedings:

... the opportunity to hold the Developer and Parking accountable for their past actions would be forever lost and so would be the use and benefit of the common property contained in the Car Parking Areas.

• [206] The Dissenting Owners reject this argument. They say if Motion 2 is not deemed carried and the Proceedings are dismissed, the body corporate "is in no worse position."
• [207] In my opinion, a body corporate acting reasonably would consider the consequences of its decision about Motion 2. I cannot agree with the Dissenting Owners' position. By suggesting that a discontinuation of the Proceedings leaves the body corporate in no worse position they ignore the fact that further delays may have an effect on a statute of limitations or laches defence and also the possibility that the Proceedings may be dismissed with prejudice. In my view, this is another factor that was not adequately considered by the body corporate.

• [208] As the High Court has cogently explained through an example, where multiple factors are relevant to a decision, all factors must be taken into account. In other words, a failure to consider one relevant factor may be dispositive:

Where a claim, or an argument, or a conclusion or some other state of mind (such as suspicion, or belief, or satisfaction) involves an interplay of observation (of objective facts and circumstances), opinion and judgment (which may involve an evaluation of matters such as reasonableness of

conduct, or of the public interest), the question whether there are reasonable grounds for such a claim, or argument, or state of mind requires a consideration of all relevant matters and an assessment of the reasonableness of the claim, or argument, or state of mind having regard to

all relevant considerations. Suppose the question is whether there are reasonable grounds for suspecting that A killed B. Suppose that A is a person of violent propensity, who had a motive to kill B, and had declared an intention to do so. Let it be assumed that those three facts are incontestable. In the absence of any other facts they may lead to a conclusion that there are reasonable grounds for suspecting that A killed B. Suppose, however, that A has an undisputed alibi. The first three facts then cease to constitute reasonable grounds for the suspicion. The question cannot be answered without considering all four facts. It is not a hypothetical question. It is a question to be answered in the light of all the known circumstances. This applies to all relevant considerations whether they be matters of objective fact (as in the example given), or of opinion, or of argument. Until all relevant considerations, that is, all (known) considerations that could have a rational bearing upon the claim, or state of mind, or decision under review, are taken into account, it is impossible to form a just and fair judgment whether, objectively considered, there are reasonable grounds for the claim .... It is not enough for the tribunal to ask whether there are facts, or opinions, or arguments that rationally bear upon that topic. All relevant matters must be taken into account; not for the purpose of deciding whether the tribunal agrees with the minister, but for the more limited purpose of deciding whether there are reasonable grounds for the claim which the minister accepted.[104]

• [209] Although the above observations were made in a different context, in my opinion, similar considerations apply when evaluating whether a body corporate has acted reasonably in making a decision.
• [210] I have assessed whether the body corporate took into account all relevant factors when it made its decision about Motion 2. This was not for the purpose of deciding whether I agreed with the body corporate's decision about Motion 2 but for the more limited purpose of deciding whether I was satisfied it acted rationally (and reasonably) and considered all factors before arriving at its decision.
• [211] In summary, I am satisfied on the whole of the evidence that, when making a decision about Motion 2, the body corporate failed to genuinely and/or adequately consider several factors that were material and relevant in the circumstances.
• [212] As a result, I am satisfied that in deciding not to pass Motion 2, the body corporate contravened its statutory duty to act reasonably. I am also satisfied in the circumstances that by acting unreasonably it made a legally defective and unreasonable decision about Motion 2. I consider it is just and equitable to make an order pursuant to Schedule 5, Item 24 declaring that Motion 2 take effect as proposed.

• [213] As further grounds for the relief sought, the applicant also argues that the Conflicted Owners had an incentive to vote against and defeat Motion 2 so that their associates, the Lessee and the Original Owner, could escape the Proceedings and avoid allegations of breach of fiduciary duties. Where the votes of the Conflicted Owners were determinative of the outcome of the vote by special resolution, the applicant argues that in the circumstances, the exercise of those voting rights caused the body corporate to make an unreasonable decision.
• [214] I understand the applicant to be suggesting that the Conflicted Owners were not exercising their voting rights in line with their proprietary interests in the scheme. Rather, he asserts that those owners were instead exercising their voting rights in a way that aligned with their associated interests in, and in accordance with duties owed to, the Lessee and Original Owner.
• [215] I also understand the applicant to be arguing that, by exercising their right to vote this way, the Conflicted Owners caused the body corporate to make an unreasonable decision because the decision was tainted by conflicts of interest and that the effect of the decision was inconsistent with the body corporate's function of managing the common property for the benefit of owners.
• [216] In response, the Dissenting Owners say "it is no secret that there is some partial commonality of directors and shareholders" between them and the defendants in the Proceedings. However, they argue that:
  1. there is no evidence they exercised their votes for an ulterior purpose
  2. the mere fact there is an overlap does not mean the body corporate's decision on Motion 2 was automatically unreasonable
  3. the applicant is still required to establish that the body corporate made an unreasonable decision, and
  4. the overlap does not give rise to a fraud on the minority where the relevant owners do not control a majority of votes.
• [217] In this case, the Dissenting Owners say the applicant has not provided sufficient evidence for an adjudicator to set aside their proprietary voting rights or conclude the body corporate acted unreasonably.

• [218] For the reasons that follow, in addition and in the alternative to my findings and determination in Part 3, I am persuaded in the circumstances and by the whole of the evidence, including by drawing fair and logical inferences, that the exercise by the Conflicted Owners of their voting rights was determinative of the outcome of Motion 2 and caused the body corporate to make an unreasonable decision.
• [219] An adjudicator may make orders to resolve disputes about the exercise of rights, including about the exercise of voting rights by lot owners voting rights.[105] Although adjudicators do not have the power to directly and individually strike out otherwise validly cast votes, the power to make orders to set aside body corporate decisions can have the same effect. [106] In my view, if satisfied the exercise of rights caused the body corporate to make an unreasonable decision, then pursuant to section 276(1)(b) and Schedule 5, Item 24 of the Act, an adjudicator has the power to deem a body corporate decision passed or not passed.
• [220] I have considered what test is to be applied to make an order pursuant to Schedule 5, Item 24 to resolve a dispute about the exercise of rights in the context of a ratification, by special resolution, to bring the Proceedings to challenge the legality of a disposition of rights in a substantial portion of common property.
• [221] Guided by the Beaches decision in QCAT, I am of the view that an unreasonable decision is one that lacks an intelligible justification, can only be explained on the basis of a misconception, bias, or defective reasoning, or is a decision that is "conflicted, arbitrary, patently absurd or plainly unjust"[107]
• [222] In Beaches, Carmody J did not elaborate on what is meant by a "conflicted" or a "plainly unjust" decision. Comments from other courts indicate or at least imply that the exercise of voting rights must be bona fide and legitimately related to the voter's proprietary interest. In the NSW case of Houghton, the court commented that an owner's right to vote at a general meeting may "within limits" be exercised by the proprietor for his or her own benefit.[108]
• [223] In this case, it is self-evident that the directors, beneficial owners of the Lessee and Original Owner would have concerns about the continuation of the Proceedings and the possibility that those Proceedings could lead to a decision adverse to the interests of the defendants (including the Lessee) and adverse to the interests of the defendants' ultimate beneficiaries.
• [224] The Conflicted Owners have associations with the defendants, which associations involve financial or beneficial interests. Further, some of the Conflicted Owners have directors in common with one or more of the defendants. While those overlapping directors owe a fiduciary duty to the defendants, including to the Lessee entity, they do not owe a fiduciary duty to the body corporate. Nor are the overlapping directors obligated to act reasonably when they are voting as the representative of a lot in the scheme, including when voting on Motion 2.
• [225] In those circumstances, I am satisfied that it is more likely than not that the Conflicted Owners voted in accordance with:
  1. an ownership or beneficial interest in the Lessee, including those held by associates[109]
  2. an ownership interest in the trust for which the Lessee entity is trustee, and/or
  3. to comply with a fiduciary duty owed by an associate to the Lessee.
• [226] In other words, I am persuaded that the Conflicted Owners' exercised their votes against Motion 2 based on interests and duties external and separate from their interests in the scheme. Those external interests are in direct conflict with the interests of the body corporate. I am thus satisfied the Conflicted Owners' exercise of their voting rights was primarily driven by interests and duties unrelated to their proprietary interests in the scheme.
• [227] In circumstances where the Conflicted Owners' votes were determinative of the motion requiring a special resolution, I am satisfied this caused the body corporate to make what could be fairly termed a conflicted and therefore, unreasonable decision.
• [228] Further, I am satisfied the Conflicted Owners' exercise of voting rights caused the body corporate to make a decision that ignored and conflicted with its role in administering common property and assets for the benefit of lot owners.
• [229] Finally, in my opinion, it would be plainly unjust, and therefore an unreasonable decision of the body corporate, for the votes of lot owners who have an interest in litigation against associated parties being discontinued to be determinative of the body corporate's decision whether to pass Motion 2.
• [230] For the above reasons, I am satisfied the body corporate made an unreasonable decision. I have made an order giving effect to Motion 2. I note that where I am satisfied that the body corporate did not make a lawful decision, I do not need to consider equitable doctrines.

• [231] I have made orders for the reasons given above.

[1] Two of the lots on that plan were subsequently cancelled and re-registered on plan SP339722.

[2] See e.g., Sections 226, 227, 228, and 276 et seq. of the Act

[4] I note the applicant also provided evidence of the body corporate's efforts to resolve the external dispute that is the subject of the Proceedings.

[7] See Schedule 6 Dictionary of the Act

[9] See e.g., Stevens v Body Corporate for Atlantis West CTS 8790 [2025] QCATA 49 at [14]; Altum Properties No. 4 Pty Ltd & Parkridge Management Pty Ltd v Body Corporate for Parkridge Villas [2024] QCATA 39 at [29]

[12] See Applicant's 31 July 2025 response to adjudicator invitation at [6] - [7]

[22] See Williams v Hursey [1959] HCA 51 at [18]- [23]

[24] See Sections 94(1)(a) and 152(1) of the Act

[26] See Sections 94(1)(b) and (c) of the Act

[27] See Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 (Beaches) at [34]

[28] See Ainsworth v Albrecht [2016] HCA 40 (Ainsworth) at [51]; Re Body Corporate for Viridian; Kjerulf Ainsworth & Ors v Martin Albrecht & Anor [2014] QCATA 294 (Ainsworth - QCATA) at [20]; Body Corporate for the Reserve CTS 31561 v Trojan Resorts Pty Ltd [2017] QCATA 53 (Reserve) at [18]

[29] Different decision-making processes apply in specified two-lot schemes.

[31] See e.g., Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300 (Palm Springs), at [56]-[74]

[32] See Section 101B and Schedule 1A (at 2 and 3) of the Act

[33] See Section 30(1) of the Commercial Module

[34] See Section 30(2) of the Commercial Module

[35] Dindas & Anor v Body Corporate for One Park Road CTS 2114 & Ors [2006] QDC 302 (Dindas) at [22]

[36] See e.g., Dindas at [22]-[23]; Ainsworth at [58]

[38] Id.; see also Palm Springs at [89]

[39] Note that section 135 of the Act does preclude a member from voting on review of a service contract motion if the member is associated with the service contractor. A disclosure requirement might be implied in those circumstances.

[40] See Ainsworth at [51]; Reserve at [18]; the same is true in New South Wales, see Houghton & Anor v Immer (No. 155) Pty Ltd [1997] NSWSC 608 (Houghton) ("The power of a proprietor to vote at general meetings of the body corporate is not fiduciary, and within limits it may be exercised by the proprietor for his or her own benefit.").

[42] Or, for a special resolution, an aggregate of sufficient owners.

[43] See Section 94(1) of the Act. A body corporate must operate within the statutory framework. For example, a body corporate cannot decide to operate a business. See Section 96 of the Act

[44] See e.g., Lyra Principal [2024] QBCCMCmr 212 at [73] (a body corporate did not have the power to enter into a facilities sharing agreement with a non-body corporate entity)

[46] See Beaches at [34], [46] and [98]; also Schedule 5, Item 24 of the Act

[47] See, e.g., Palm Springs at [97] - [99]

[49] See e.g., Section 162 and Schedule 1 of the Accommodation Module

[50] See e.g., Warren v Body Corporate for Buon Vista CTS 14325 (No 2) [2006] QCA 398 (Warren), para 31

[51] See Carroll and Ors v Body Corporate for Palm Springs Residences CTS 29467 [2013] QCATA 21

[54] See Ainsworth at [27], [58] and [71]

[55] I note that in Ainsworth - QCATA at [21], Member Roney KC cautions that, notions of reasonableness arise in different contexts and when looking to case law for interpretation of similar language, it is important to keep in mind the precise language of section 94 of the Act.

[59] See Beaches at [44]; Seabreeze On Reid [2022] QBCCMCmr 246 at [11]; Casablanca Palms [2020] QBCCMCmr 486 at [7]

[60] Id. at [45] citing Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 (Khan); [1987] FCA 457; (1987) 14 ALD 291 at 292 (Gummow J)

[64] See e.g., Beaches at [99] in the context of a committee decision; Reserve at [38] - [51] in the context of a decision made by a body corporate at a general meeting

[65] See Khan at 293, and cited in Beaches at [45]

[67] See Beaches at [34] see also Schedule 5 Item 24 of the Act

[68] See Houghton [1997] NSWSC 608 (Houghton)

[69] See e.g., Palm Springs at [97] - [99]

[70] See Palm Springs at [99] discussed in Lyra Principal [2024] QBCCMCmr 212 at [78]

[71] See Dindas at [30] citing Dixon J in Peters' American Delicacy Co. Ltd v Heath [1939] HCA 2; [1939] 61 CLR 457 (at 511)

[75] Guiding principles for quasi-judicial decision-makers not bound by the rules of evidence were explored by Brennan J in Pochi v Minister for Immigration & Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 (Pochi) at 492-93

[76] In my opinion, where parties in this jurisdiction do not have the power to compel production of documents or information from witnesses, and where adjudicators are given investigative powers, the focus is on the reasonable satisfaction of the adjudicator rather than which party bears the onus of proof.

[77] See Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at [361]- [362].

[79] See e.g., Cox v Body Corporate for "Grand Pacific Resort" [2007] QCCTBCCM 001 at [35]; see also Pochi (confirming circumstantial evidence can be logically probative)

[80] See ASIC Current Organisation extract for the Original Owner supplied by Affected Persons

[81] Where they are not parties to this application, I do not consider it is necessary to name the Three Doctors.

[82] See ASIC Current Organisation extract for the Lessee supplied by the Affected Persons

[84] See Section 309 for the definition of associate

[85] In response to requests for information, the Lessee and the Original Owner provided information about their respective directors and about the holders of units in the respective trusts for which those entities act as trustee. Representatives of the owners of Lots 209, 301, 302 and 303 also provided information about their ownership structure and associations with the defendants.

[86] See Application at page 70 of 124, May 2024 Letter from the Lessee to the committee

1. [87] By Motion 3, the committee proposed that the body corporate ratify and retrospectively authorise the legal expenditure (of $12,816.65) incurred up to the commencement of the Proceedings. The minutes of the May 2025 EGM show that motion was passed by ordinary resolution.
2. [88] Although a submission about the application included comments about the invalidated vote, I am not aware of any application to this office to challenge the decision to invalidate. I am satisfied from my investigations that owners were reminded to submit a nominee form if the lot was owned by an entity and the vote of the owner was invalidated because the body corporate did not receive a nominee form.

[92] The Dissenting Owners identified some, but not all of these factors_. See_ Dissenting Owners' 1 July 2025 Submission at [42]

[95] Khan [1987] FCA 457 at [25]

[96] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [30]

[97] See e.g., Ardoch [2006] QBCCMCmr 235

[99] Responding to a question about this application, a lawyer wrote to his client (an owner who did not vote on Motion 2) noting the adage that "only a fool or a liar guarantees the outcome of court proceedings."

[100] See Beaches at [29], citing Albrecht v Ainsworth & Ors [2015] QCA 220 at [101].

[101] See Section 10(6)(b) of the Limitation of Actions Act (stating that the provisions "may be_"_ applied by the court to claims for equitable relief by analogy)

[102] Khan [1987] FCA 457 at [25]

[103] See supra at [150] - [156]

[104] Gleeson CJ and Kirby J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [12] of the joint judgement

[105] See Hablethwaite & Anor v Andrijevic & Ors [2005] QCA 336 at [33]

[106] For resolutions without dissent, the High Court in Ainsworth at [57] and [67] suggested that body corporate decisions may be set aside pursuant to Schedule 5, Item 10 (with the effect that owner's voting rights are effectively overridden), where the owner's opposition to a motion requiring a resolution without dissent is not genuine or is motivated by spite or ill-will.

[107] See Beaches at [34] and [54]

[109] See Parker v Auswild; Bergmuller v Auswild [2022] VSCA 8 at [78] (commenting on a director being swayed "by the interest of a family member even if the director had no similar personal interest.")