Monte Carlo [2025] QBCCMCmr 264 (30 July 2025)

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

CARETAKER - where the caretaker sought approval to transfer the management rights - whether the body corporate unreasonably withheld approval for the transfer.

Act, ss 94(2), 100(5); Standard Module, s 143

• [1] This application is about the proposed transfer of management rights.
• [2] The applicant and respondent executed new caretaking and letting agreements (the agreements), replacing previous agreements, on 30 July 2024. The agreements were approved by Motions 10 and 11 passed at an annual general meeting (AGM) on the same date. There was dissention at the AGM about the motions, but they carried with the support of the company owner of 17 lots (Hachma International (Australia) Pty Ltd, Hachma). It appears Hachma and the applicant share a director.
• [3] The applicant says its sole director primarily undertakes the duties and responsibilities under the agreements, and wishes to retire. The applicant entered into a contract to sell the management rights to BBA Management Pty Ltd (BBA). On 11 November 2024 the applicant sought the respondent's consent, pursuant to section 143 of the Standard Module, to transfer its interest in the agreements to BBA. On 26 November the applicant was informed that the committee did not consent to the transfer. The body corporate indicted it was investigating the validity of the 2024 AGM resolutions.
• [4] The body corporate subsequently held an extraordinary general meeting (EGM) on 7 January 2025. EGM Motions 2 and 3 proposed rescinding 2024 AGM Motions 10 and 11. It appears the motions received sufficient votes to pass, but were ruled out of order by the chairperson. Motions to overturn those rulings failed. EGM Motion 5 then proposed consenting to the transfer of the agreements to BBA. That motion failed.
• [5] The applicant challenges the withholding of consent to the transfer as unreasonable. It rejects the concerns regarding the 2024 AGM decisions to enter into the agreements. In any event, it says those concerns are not factors in the consideration of whether to consent to the proposed transfer. It says there no relevant factors were relied on by the body corporate in refusing to provide consent. It seeks orders to give effect to EGM Motion 5.

• [6] Monte Carlo community titles scheme 11083 (Monte Carlo) is a 52-lot scheme in Surfers Paradise. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building units plan 4099.
• [7] The application seeks the following orders:
  1. a declaration that the decision of the Respondent's Committee, to withhold consent to the transfer of the Applicant's engagement as a service contractor and authorisation as a letting agent, was, in breach of s143(6)(b) of the Standard Module, unreasonable;
  2. a declaration that the decision of the Respondent at the 7 January 2025 EGM, to withhold consent to the transfer of the Applicant's engagement as a service contractor and authorisation as a letting agent, was, in breach of s143(6)(b) of the Standard Module, unreasonable;
  3. an order that Motion 5 of the 7 January 2025 EGM is deemed to have been resolved by the Respondent; and
  4. an order that the Respondent do all things reasonably necessary to give effect to the resolution of Motion 5.

• [8] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute in the context of a community titles scheme about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1] The reference to the Act includes a reference a regulation module.[2] I am satisfied I have jurisdiction to determine this matter.[3]

• [9] This application was lodged on 12 February 2025.
• [10] The Commissioner invited submissions from the committee and all owners.[4] Nine submissions were received. The applicant obtained and responded to the submissions.[5]
• [11] The application was referred to department adjudication.[6]
• [12] I have now investigated the dispute, including reviewing the application and submissions and the Commissioner's records.[7] The secretary subsequently supplied minutes of an EGM held on 29 April 2025. The parties have not otherwise advised of any change in the circumstances.

• [13] A submission made on behalf of the body corporate opposes the application. It includes:
  1. The adjudicator should enquire whether the proposed transferee still wants to proceed with the transaction. If not, there would be no utility in the decision.
  2. The application proceeds on the wrong test for unreasonableness and the applicant has not addressed the correct test. It discusses the test for reasonableness, and the factual context. The applicant has not established unreasonableness.
  3. The applicant only seeks orders about January 2025 EGM Motion 5. The adjudicator should focus on whether the opposition by lot owners to Motion 5 was unreasonable.
  4. The relevant test is not whether owners voting on Motion 5 considered the factors in section 143(3) of the Standard Module. That section only applies to the body corporate and not lot owners. The applicant has not adduced evidence of any considerations beyond those in section 143(3) of the Standard Module.
  5. The failure to give reasons does not make a decision objectively unreasonable.
  6. There are multiple grounds on which a reasonable body corporate or committee could have honestly and rationally decided to withhold consent.
  7. The request for consent to the transfer breached the agreements and was not a valid request because it did not include a statement of assets and liabilities of each director and shareholder of the proposed assignee, or a bank reference. The applicant does not address its failure to comply with the mandatory requirements of the agreements.
  8. A reasonable body corporate could have honestly and rationally refused to consent to the proposed assignment because the applicant did not make a valid request.
  9. Because of the failure to provide a statement of assets and liabilities and a bank reference as required, a reasonable body corporate could be dissatisfied in relation to the sufficiency of the transferee's financial standing.
  10. On 28 January 2025 it wrote to the applicant advising that, on review of the proposed purchaser's curriculum vitae, experience and qualifications, the committee did not agree that the proposed purchaser was suitable for the position. The applicant has not provided any further information in support of the proposed assignment since.
  11. The applicant provided no information about who the directors and shareholders of the proposed transferee are, the assets and liabilities of the proposed transferee or its director or shareholders, whether the transferee is incorporated or its credit rating, or what other liabilities are secured against its assets.
  12. The agreements contain a guarantee and indemnity but there is no discernible value behind those.
  13. Bald assertions are made as to the qualifications of the transferee and related persons. There is no evidence these persons stand behind the proposed transferee. The persons have no or at best limited letting or caretaking experience. There is no indication they have the equipment required under the caretaking agreement. There are no references from any previous body corporate that the persons were associated with. The references provided are not current.
  14. An affidavit evidences that at least one committee member and owner was not satisfied with the qualifications or financial standing of the proposed assignee. That committee member says other committee members shared those views.
  15. The letting agreement purports to include (in clause 1.3) a contractual restraint on the body corporate engaging another person to provide a letting service, but the agreement gives no consideration for that exclusivity, and it has no record of any consideration. If a contract is not supported by consideration, it is not binding.
  16. The applicant and its director do not have licences required under clause 1.2(a) of the letting agreement.
  17. The caretaking agreement breaches section 137(2)(b) of the Standard Module because it does not state all the functions that the applicant must carry out. The agreement refers in clause 3.1 to duties in schedule A but there is no schedule A.
  18. The caretaking agreement breaches section 137(2)(c) of the Standard Module because it does not set out the basis for working out payment for the services.
  19. Given those deficiencies, the agreements are void.
  20. On 12 February 2025 the committee issued the applicant a notice that it was in breach of the caretaking agreement. On 26 February it determined that works required to satisfy the notice had not been undertaken. On 3 March it instructed its body corporate manager to issue a letter to terminate the caretaking agreement.
  21. If not dismissed, the application could be adjourned to allow time to complete the processes it intends to take.
• [14] Seven owner submissions oppose the application and support the committee. I note:
  1. There is considerable concern about the conduct of the applicant and its director, and the adequacy of services being delivered. The submitters assert the applicant is breaching the agreements by not fulfilling the duties.
  2. There is concern about the 2024 AGM including that legal advice was not obtained before the motions were considered and that votes were not counted. There are concerns about the validity of the AGM motions and the agreements.
  3. There are concerns about the relationship between 3 committee members, Hachma, and the applicant. One says the chairperson did not have the right to chair the January EGM or rule motions out of order because of his association with the applicant.
  4. One owner comments that Hachma's voting entitlements make it impossible to pass anything that does not favour Hachma and the applicant.
  5. One submission comments that the resumes for the proposed transferee were substandard, lacked detail, and do not indicate that they are capable or suitable to take over the management role. Another says the proposed transferee '...does not comply with the regulations, lacks credibility and supporting financial information and would only introduce an uncertain future for the proprietors.'
  6. One submitter says if the applicant wants to get out of the agreements, they should quit and let the body corporate find someone else. They want the agreement voided.
• [15] Another owner submission says the owner voted in error on Motions 10 and 11 at the 2024 AGM as they were not fully informed at the time. But the submitter does not say whether the voted for or against the motions or whether they support or oppose the application.
• [16] The applicant's reply to the submissions includes:
  1. As far as it is aware, the proposed transferee is willing to complete the transfer.
  2. It disputes that an adjudicator does not have jurisdiction to resolve the dispute.
  3. The body corporate has failed to engage with the statutory process for a transfer or provide a relevant explanation why it was not willing to provide consent. The excuses given as to why the body corporate is not in breach of the legislation are mostly irrelevant or recent inventions. They give rise to the inference that the withholding of consent was motivated by factors other than those in section 143(3).
  4. The respondent's submissions regarding the relevant test are misconceived. It discusses the relevant test and the case law cited by the respondent.
  5. While the party alleging unreasonableness owes the onus of proof, it disputes that the applicant owns the onus of establishing that the respondent complied with section 143 of the Standard Module. It says it has provided evidence that the body corporate failed to comply with its obligations in section 143 of the Standard Module and if the respondent contests that, it bears the onus of establishing that it complied.
  6. If the respondent did not comply with its obligations under section 143 of the Standard Module, it follows that it also acted unreasonably.
  7. It disputes the submissions about the context of the dispute but also says they are irrelevant. Concerns about the validity of the AGM motions and the agreements are not factors the body corporate could consider under section 143 of the Standard Module.
  8. The body corporate was given information reasonably necessary to decide the request. It broadly complied with section 143(3) of the Standard Module and the agreements.
  9. The respondent did not complain of the absence of information at the time. The inference is the complaint in that regard is a recent invention. It was unreasonable for the body corporate to stay silent if it did not believe it had sufficient information.
  10. The agreements refer to information the body corporate reasonably requires, and so the clauses referring to information being supplied are guidelines only.

• [17] The substantive issue in this application is whether the body corporate unreasonably withheld approval to transfer of the applicant's engagement as a service contractor and authorisation as a letting agent. The orders sought references the committee's decision to withhold approval as well as the failure of the EGM motion seeking approval. In determining this dispute, I will consider the legislation and case law, the relevant decisions, and the reasons for the decisions.

• [18] A service contractor or letting agent can transfer their engagement or authorisation, with the approval of the body corporate. Section 143 of the Standard Module says:
  1. Transferring engagements and authorisations

(1) A person's rights under an engagement as a body corporate manager or service contractor, or authorisation as a letting agent, may be transferred only if the body corporate under the engagement or authorisation approves the transfer.

(2) To avoid any doubt, it is declared that the approval may be given by resolution of the committee, unless the decision on the approval is a decision on a restricted issue for the committee, or by ordinary resolution of the body corporate.

(3) In deciding whether to approve a proposed transfer, the body corporate may have regard to -

(a) the character of the proposed transferee and related persons of the proposed transferee; and

(b) the financial standing of the proposed transferee; and

(c) the proposed terms of the transfer; and

(d) the competence, qualifications and experience of the proposed transferee and any related persons of the proposed transferee, and the extent to which the transferee and any related persons have received or are likely to receive training; and

(e) other matters stated in the engagement or authorisation.

(4) The body corporate must decide whether to approve a proposed transfer within 30 days after it receives the information reasonably necessary to decide the application for approval.

(5) The approval may be given on condition that the transferee enters into a deed of covenant to comply with the terms of the engagement or authorisation.

(a) unreasonably withhold approval of the transfer; or

(b) require or receive a fee or other consideration for approving the transfer, other than reimbursement for expenses reasonably incurred by the body corporate in relation to the application for its approval.

(7) Subsection (6) applies subject to division 2.

related persons, of a proposed transferee, means -

(a) if the proposed transferee is a corporation - the corporation's directors, substantial shareholders and principal staff; or

(b) if the proposed transferee is a partnership - the partners and principal staff of the partnership.

• [19] There is no obligation on a body corporate or its committee to approve a transfer request. It has a discretion as to whether it approves a transfer. However, the discretion is not unfettered.
• [20] First, the section 143(3) sets out things the body corporate may consider in deciding whether to approve the transfer or not. There is no suggestion that the body corporate must actively assess all of those things. But the implication in the wording of the provision is that these are the extent of the matters which the body corporate may have regard to.
• [21] Second, under section 143(6)(a), a body corporate must not unreasonably withhold approval for the transfer. That obligation echoes the general statutory obligation that a body corporate must act reasonably in regard to its functions, including in making or not making a decision.[8] Similarly, the legislation says a committee must act reasonably in making a decision.[9]

• [22] The body corporate discusses the test for overturning a motion requiring a resolution without dissent on the basis that opposition to the motion was unreasonable in the circumstances, pursuant to item 10 of schedule 5 of the Act.[10] However, the decisions in this dispute did not involve a motion requiring a resolution without dissent.
• [23] I consider the relevant questions here are, in regard the purported decision of the committee in November 2024 to withhold approval, whether the committee failed to act reasonably in making a decision pursuant to its obligation under section 100(5) of the Act. In regard to the decision not to pass January 2025 EGM Motion 5, the question is whether the body corporate failed to act reasonably in making the decision pursuant to section 94(2) of the Act.[11] Those questions are to be decided in the context of the obligation in the regulations that the body corporate not unreasonably withhold approval for the transfer of engagements and authorisations.
• [24] I note that the decision to pass or not pass a general meeting motion is a decision of the body corporate, rather than of the individual owners who vote on the motion (although the reason for votes by individual owners on that motion may be a relevant consideration). Similarly, it is a committee who is the decision-maker for a committee motion, rather than the individual committee members who vote on that motion.
• [25] There is considerable case law on reasonableness in regard to body corporate decision-making.[12] The test for whether a decision is reasonable is objective.[13] It is a question of fact, having regard to all the circumstances.[14] It has been said that reasonable decision-making "...involves an evaluation of the known facts, circumstances and considerations that tend to have a rational bearing on the issue..." and "...requires that all relevant matters are taken into consideration and irrelevant ones are left out".[15]
• [26] It is generally accepted that a party challenging a decision or action as unreasonable bears the onus of proving that assertion.[16]
• [27] There is only limited consideration of the narrower question of whether approval for a transfer has been unreasonably withheld. In 2006 Mr Dorney QC (as he then was) considered the matter in three related specialist adjudications, in regard to a provision of the 1997 regulations that was substantially the same as the current section 143.[17] Mr Dorney said the onus was on the person seeking approval of the transfer to establish that withholding approval was unreasonable. He said:[18]

My conclusion is that the following principles apply:

(a) the question of whether the Respondent's conduct was reasonable or unreasonable is one of fact to be decided by the tribunal of fact (namely, the Specialist Adjudicator in this instance): see Tamsco Ltd v Franklins Ltd [2001] NSWSC 205 at [49];

(b) since particular cases are of illustrative value only, care must be taken not to elevate a decision made on the facts of a particular case into some principle of law: see Ashworth Frazer Limited v Gloucester City Council [[2001] UKHL 59; 2001] 1 WLR 2180 at [4];

(c) in determining whether the conduct was reasonable, it is not necessary to determine that it was either right or justifiable, if the conclusions which led to refusal of consent might have been reached by a reasonable person in the circumstances: see Ashworth Frazer at [5];

(d) the apparent paradox in (c) is no more than semantic (see NCR Ltd at [31][19]), because, although the essence of a reasonable decision is that there are reasons for it which can be justified at some level (even if only by showing the reasons are genuine and not wholly fanciful), what is not required is for those reasons to be justified by reference to some objective standard of correctness;

(e) the subjectivity arises because it is sufficient if a reasonable person in the Respondent's position might have regarded the assignment as objectionable, even though some persons might take a different view, it being enough that such a person has genuine concerns on matters relevant to the value of the interest the person has, even if the prospect of those concerns being realised is small: see NCR Ltd at [33];

(f) reasonableness is to be determined at the date of refusal of consent: see JA McBeath Nominees[20] at 129 [it being noted, in Old Papa's Franchise Systems[21], that subsequent conduct and subsequent financial position is irrelevant: although that appears to be in conflict with Mason J in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 where it was observed to be "most unjust if the landlord could not take advantage of an important ground justifying refusal merely because it was not known to him at the time, e.g. the impending bankruptcy of the proposed assignee", although it may well be that a reconciliation is achieved if the ground, e.g. impending bankruptcy, existed as a fact at the date of refusal];

(g) as a matter of principle, the question of what circumstances are to be considered is, statute apart, one of contract and therefore the terms of the contract must always be determinative (although circumstances may reveal a conception of reasonableness, e.g. based on the particular statute, that broadens the dimension and, in those sorts of cases, there may be relevant considerations apart from the character and personality of the proposed assignee and matters affecting the use or exploitation of the rights assigned): see Cathedral Place Pty Ltd & Anor v Hyatt of Australia Ltd & Ors [2003] VSC 385 at [27], with specific reference, for the last qualification, to J A McBeath Nominees;

(h) as a matter of principle, and as a matter of authority, the person considering consent may have regard to the question of whether the proposed assignee is a suitable substitute, whereby it might be entitled to resist the creation of a relationship between itself and the new person which differs from that created under the original agreement because the refusal to consent would be no more than necessary to ensure that it continued to enjoy the rights for which it had contracted: see Cathedral Place at [29]; and

(i) in the end, it is necessary to work out "what was the real and true reason for the refusal of consent": see Tamsco at [44].

• [28] Another specialist adjudicator who considered the reasonableness of the withholding approval also looked at whether the reason for refusal was genuine. That adjudicator said:[22]

I accept that the Body Corporate can not make the decision to refuse so that the refusal is designed to achieve some collateral purpose wholly inconsistent with the terms of the management agreement.

• [29] I can see no legal reason why the test canvassed in those decisions would not apply equally whether the decision to withhold approval was made for the body corporate by the committee or in a general meeting.
• [30] Mr Dorney QC also said there was no obligation on a person to advance specific grounds or reasons for their decision at the time unless there is a statutory obligation to do so (which does not exist in the body corporate legislation).[23] Although it could be argued to be unreasonable to give no reason for a decision, I accept the body corporate did not have an obligation to give the applicant a comprehensive explanation for the basis of its decisions.
• [31] I will have regard to these matters in considering the body corporate's decisions.

• [32] On 11 November 2024 the applicant requested the body corporate's approval to transfer the agreements to BBA. It provided a draft motion, draft deed of assignment, and assorted documents about the proposed transferee and its apparent principals. The body corporate had 30 days from receipt of all information it required to decide the transfer request.
• [33] There is no suggestion that a decision on the proposed transfer was a restricted issue for the committee. It was a matter that the committee could decide. However, there is no inherent legislative reason why a committee cannot put a question it can decide to a general meeting.
• [34] There is no indication that the committee sought further information from the applicant about the proposed transfer or that it required more information about the transfer before making a decision. It apparently sought legal advice. The body corporate advised the applicant on 26 November that the committee did not consent to the transfer. It then flagged that it was investigating the 2024 AGM resolutions.
• [35] The applicant responded the next day saying there was no basis given to refuse approval and asserting the refusal was unreasonable. It alleged those instructing the body corporate's solicitors were acting in bad faith. It invited the body corporate to reconsider its decision.
• [36] On 5 December the body corporate's solicitors said it could not approve the assignment until its investigation into the authorisation of the agreements had concluded. It said that, accordingly, the refusal to provide consent was reasonable and necessary. It also denied any bad faith. It then said it would convene an EGM to consider Motions 10 and 11.
• [37] No evidence has been provided of any minuted committee resolutions on any of these matters.
• [38] The body corporate subsequently considered Motion 5 at the EGM in January 2025 proposing to consent to the transfer. That motion failed, with 18 votes in favour but 22 against.
• [39] To the extent that the committee purported to decide the transfer request, on or before 26 November 2024 (albeit that there appears to be no documented resolution), the request was decided within the 30 day time limit. However, if the body corporate did not properly decide the request until the EGM in January 2025, it did not comply with that time limit.

• [40] The body corporate purportedly resolved to enter into the current agreements by Motions 10 and 11 at the 2024 AGM.[24] Those motions passed with 19 votes for, 16 against, and 1 abstention. A substantive objection to the proposed transfer is the view that the body corporate does not have valid agreements with the applicant because the 2024 AGM was not validly held, or Motions 10 and 11 were not validly passed, or the agreements are deficient.
• [41] It is beyond the scope of this application for me to determine the validity of the 2024 AGM or the validity of Motions 10 and 11. Even if it was, the submissions do not contain sufficient evidence to substantiate the claims made about the conduct of the AGM or the resolutions.
• [42] The legislation imposes a time limit on applications to invalidate a general meeting or a general meeting resolution.[25] Such applications should be lodged within 3 months of the meeting, but an adjudicator can waive that time limit if satisfied there is good reason to do so. In this case, an application to challenge the 2024 AGM or Motions 10 and 11 should have been lodged by 30 October 2024 unless there was good reason to allow a later application.
• [43] It is apparent that concerns about the 2024 AGM and Motions 10 and 11 were known from the time of the meeting. The minutes record that some issues were discussed at the meeting. An affidavit included in the body corporate's submission says concerns about voting were raised soon after. The body corporate apparently obtained legal advice in early September. On 4 October its solicitors wrote to the applicant's solicitors indicating that the committee held concerns and asserting that 4 'no' votes were not recorded.
• [44] The body corporate said it intended to call an EGM in October to consider motions to revoke the AGM resolutions. It seems no such EGM was called at the time.
• [45] Different lawyers acting for the body corporate advised the applicant's lawyers on 26 November saying the body corporate was investigating the validity of the AGM resolutions. But no indication has been given that the apparent investigations revealed any evidence to substantiate a basis to invalidate the 2024 AGM or Motions 10 and 11.
• [46] The body corporate and owners appear to have had ample opportunity to formally challenge the AGM and its resolutions. They had over 5 months to do so before the 2025 EGM and over 6 months before this application. Despite the body corporate having the benefit of legal advice, it has not brought an application to invalidate the AGM or the AGM resolutions. It appears from the Commissioner's records that a lot owner applied to challenge the AGM resolutions in October 2024,[26] but that was rejected by the Commissioner.[27] Relevantly, there was no determination on the merits of that application by an adjudicator.
• [47] In the absence of a substantiated challenge to the validity of the AGM and its resolutions, there appears to be no reason why the applicant is not entitled to rely on the AGM resolutions and the agreements signed in reliance on the AGM resolutions.
• [48] The body corporate considered rescinding AGM Motions 10 and 11 at the January 2025 EGM. It is said that the rescission motions received sufficient votes to pass, but they were ruled out of order. An attempt to overturn the ruling at the EGM was unsuccessful. There are objections to that ruling and to the role and conduct of the chairperson. However, despite still being legally represented, it is not apparent that the body corporate has sought to formally challenge those matters. From the Commissioner's records it appears an owner applied in April to invalidate the position of 3 committee members on the basis that they were associates of the caretaker and to deem pass EGM Motions 2 and 3.[28] However, that application was rejected by the Commissioner for reasons other than the merits of the substantive dispute.[29] I also note that the body corporate confirmed the minutes of the January 2025 EGM in April 2025.
• [49] It is again beyond the scope of this application for me to make any findings or determination the validity of the chairperson position or their rulings at the 2025 EGM. However, I would make the observation that if AGM Motions 10 and 11 were rescinded at the 2025 EGM, there would likely be questions as to whether that was a reasonable decision when the agreements were executed in July 2024, there was no earlier attempt to rescind the resolutions, there was no pursuit of a challenge to the resolutions authorising the agreements, and the applicant appears to have acted in reliance on the executed agreements.
• [50] Had the body corporate validly resolved to rescind AGM Motions 10 and 11, there would be no current agreements in place to be assigned. But at this stage that has not occurred. On that basis, again, the applicant is currently entitled to rely on the agreements.
• [51] The body corporate has questioned the validity of the letting agreement because of the lack of consideration,[30] and whether the applicant and its director hold required licences. It further questions the validity of the caretaking agreement in regard to the duties and remuneration details included in it. At an EGM in April 2025 the body corporate resolved to consider obtaining legal advice to set aside or deem void the current letting agreement. Those matters are again beyond the scope of the questions for me to determine in this application. They may include contractual matters that constitute a complex dispute that is beyond the jurisdiction of a department adjudicator.[31] But at this stage, and certainly not before the transfer decisions were made, the body corporate has not established that the agreements are not valid.
• [52] Finally, the body corporate appears to be pursing the termination of the agreements based on alleged breaches of them. The parties have not advised the status of any such action. But that would clearly be a contractual matter that is beyond the jurisdiction of a department adjudicator. If the agreements are terminated, of course they could not be transferred. However, the body corporate had not taken steps to terminate the agreements at the time that it decided not to consent to the proposed transfer. The applicant was and is entitled to rely on the existence of the agreements until they are invalidated or validly terminated.

• [53] I will consider the various matters raised in the submitted material in regard to the committee and general meeting decisions to withhold approval for the transfer.

• [54] The only stated reason given by the committee for its purported decision to refuse consent in November 2024 was the question of whether the AGM resolutions were valid. If that was a genuine and substantiated concern, it would have been a rational basis to refuse approval. The body corporate could not approve the transfer of agreements that did not exist.
• [55] But at the time of the purported committee decision and the January 2025 EGM the body corporate had several months to pursue the question of the validity of the agreements and the AGM resolutions. Despite being on notice of the issues and obtaining legal advice, it did not do so. Moreover, the claims about the validity of the AGM and the AGM resolutions and the validity of the agreements have not been clearly substantiated. I do not consider it was reasonable for the committee or the body corporate to refuse approval for the transfer of the agreements because of claims there are no valid agreements in place, where its claims were not prosecuted and remain unsubstantiated.

• [56] As noted, there is no suggestion the body corporate sought further information from the applicant before making its decisions on the transfer request. The committee did not indicate that any lack of information was a consideration in its decision in November 2024 to withhold approval. However, there is a question as to whether there was further information the applicant should have provided to the body corporate with its request.
• [57] Clause 5.1 of the caretaking agreement and clause 2.1 of the letting agreement say the caretaker or letting agent (as applicable) may transfer its interest in the agreement if it obtains written approval of the body corporate. They say the body corporate may refuse to approve the transfer if, in essence:
  1. it is reasonably satisfied the transferee has sufficient skills, is of sufficient financial standing, and is otherwise capable of performing the obligations under the agreement,
  2. for a company, there is an officer or employee that satisfies the above requirements, and
  3. it is reasonably satisfied that the transferee or its directors are of good character.
• [58] Clauses 5.2 and 2.2 in each agreement then sets out requirements about proposed transfers. Clause 5.2(a) and clause 2.2(a) list things that must be included in a written request for a transfer. These include a statement of assets and liabilities of the proposed transferee, or of each director and shareholder in the case of a company. Clauses 5.2(b) and 2.2(b) then say the body corporate must be given any other information it reasonably requires. Clauses 5.2(d) and 2.2(d) require the body corporate to notify whether the transfer is approved within 30 days of receiving the information it reasonably requires to assess the proposal.
• [59] It is not generally the role of a department adjudicator to determine the validity of caretaking or letting agreement, interpret or enforce it.[32] Moreover, a person cannot waive, or limit the exercise of, rights under the Act or contract out of the provisions of the Act.[33]
• [60] However, on its face, the provisions in the agreements about the information required for a transfer are consistent with the matters contemplated in section 143(3) of the Standard Module. And in addition to empowering the body corporate to consider the character, financial standing and competence of the transferee, the regulations specify that the body corporate may have regard to matters stated in the engagement or authorisation.[34]
• [61] Although the body corporate provided some information about the experience and character of the apparent principals of the proposed transferee, it did not provide all of the information referred to in the agreements including information about the transferee's financial standing.
• [62] The body corporate could have asked for that information and did not. If there was no requirement under the agreement to provide the information, I would tend to the view that the onus was on the body corporate to ask for further information if it did not consider the information initially provided was sufficient for it to decide the request. However, here the agreements specify the information be included in a transfer request.
• [63] I do not accept that the list of information in the agreements was a guideline only. Clauses 5.2(a) and 2.2(a) use the word 'must'. The reference to information 'reasonably required' in clauses 5.2(d) and 2.2(d) appears to reflect the capacity for the body corporate to seek information in addition to that information listed in clause 5.2(a) and 2.2(a) and echoes the words of section 143 of the Standard Module.
• [64] Where the parties purportedly entered into an agreement stating information to be provided in the case of a requested transfer, it seems to me the onus was on the applicant to supply all that information with its request rather than the body corporate having to ask for it. The implication then is that a request is not properly made if that information is not provided.
• [65] In that context, the applicant has not satisfied me that the body corporate failed to act reasonably in withholding approval for a transfer request that did not include all information the parties had purportedly agreed would be included in any transfer request.

Character, financial standing, and competence of the proposed transferee

• [66] Section 143 of the Standard Module permits the body corporate to have regard to identified matters including the character, financial standing and competence of the proposed transferee and any related persons.
• [67] It is not clear from the submitted material that those matters, or any deficiencies in the information provided about the proposed transferee and related persons, were explicitly considered by the committee in withholding approval in November 2024 or in the body corporate deciding not to pass January 2025 EGM Motion 5. It is not evident that the body corporate raised questions about those matters until after the EGM.
• [68] It seems probable the body corporate primarily withheld approval for reasons other than the attributes of the proposed transferee and its principals. In particular, that was whether there were valid agreements. However, it may be the body corporate did not turn its mind to the attributes of the proposed transferee, or did not articulate concerns about that, because it was addressing its primary concerns first.
• [69] Moreover, the submissions indicate that at least one committee member and some owners held concerns about the suitability of the proposed transferee and their principals. The applicant asserts these concerns were invented after the decisions. However, that claim is not substantiated. It would be difficult to do so where the body corporate was not inherently required to provide contemporaneous reasons for its decision.
• [70] It is not necessary for present purposes for me to canvass the detail of the information provided by the applicant to the body corporate about character, financial standing and competence of the proposed transferee and any related persons. The applicant does not address the concerns raised in the submissions. It appears to assert that because it considers the body corporate could have approved the transfer based on the information provided, it was unreasonable not to. I do not accept that.
• [71] To establish that the body corporate unreasonably refused approval for a transfer, the applicant must do more than posit that a reasonable body corporate could have given approval. Rather, it must establish that the body corporate had no regard to relevant considerations or that, to the extent that it considered relevant considerations, it could not rationally have failed to give approval.
• [72] While in this case the body corporate appears to have had regard to some irrelevant matters, the applicant has not established that it had no regard for the character, financial standing and competence of the proposed transferee and any related persons as it was permitted to do under section 143(3) of the Standard Module. And, where the applicant does not respond to the detail of the concerns raised in that regard, it does not establish that those concerns were irrational or unjustified. Substantively, the applicant has not established that the body corporate was bound on the information supplied (and in the absence of the information required to be supplied) to conclude that the proposed transferee had the character, financial standing, and competence to be the caretaking service contractor for the scheme.

• [73] The submissions reveal considerable owner concern with the conduct of the applicant and its director, and the performance of the duties under the agreements.
• [74] While owners may well have genuine concerns about the performance of the agreements, the submissions do not explain why that was a reasonable basis to refuse approval to the transfer. It is apparent that owners want a new caretaker. Consenting to the transfer would give owners a new caretaker. If the body corporate or owners oppose the transfer because they do not wish to support or enrich the current caretaker, or they want to punish the current caretaker, rather than any genuine objection the proposed transferee, that would appear to be a collateral purpose beyond the scope of the matter the body corporate was required to decide.
• [75] I do not consider the conduct of the applicant and the performance of the duties was a relevant consideration for the body corporate in deciding whether to approve the transfer.

• [76] I am satisfied the body corporate relied on unsubstantiated or irrelevant matters when deciding whether to approve the transfer of the applicant's agreements. However, the applicant has not satisfied me that the body corporate did not also have regard to relevant matters. Having regard to those relevant considerations, the applicant has not satisfied me that the body corporate could not reasonably refuse to approve the transfer.
• [77] Moreover, if the body corporate did not properly consider the request for a transfer based only on relevant matters, that does not necessarily warrant an order that would have the effect of deeming approval for the transfer to be given. Rather, arguably the appropriate course of action in those circumstances would be to require the matter to be returned to the body corporate to properly consider having regard only to relevant matters. But given the circumstances, including the passage of time and subsequent events, I do not consider an order to that effect would have been warranted.
• [78] If the applicant wishes to pursue the proposed transfer of its agreements, it could submit a new request to the body corporate accompanied by all information required by the agreements to be included and any other information that may address the genuine issues about the proposed transferee raised by the body corporate in its submission. If the applicant makes such a request, the body corporate should request any further information it reasonably requires and then decide the request having regard to the considerations in section 143(3) of the Standard Module. If the request is refused, it would be preferable for the body corporate to explain the reason for withholding approval. Those processes are of course subject to any progress of the body corporate's endeavours to terminate or invalidate the current agreements.

[2] Noting section 7(1) of the Act Interpretation Act 1954

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

[10] Ainsworth & Ors v Albrecht & Anor [2016] HCA 40, para 57

[11] Noting item 10 of schedule 5 of the Act

[12] Noting particularly Ainsworth & Ors v Albrecht & Anor [2016] HCA 40

[13] Gold Coast Apartment Management P/L v Price & Ors [2017] QCATA 99

[14] Waters v Public Transport Corporation [1991] HCA 49

[15] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at 43, citing McKinnon v Department of Treasury [2006] HCA 45; (2006) 228 CLR 423

[16] For example, The Sands Gold Coast Pty Ltd v Body Corporate for the Sands [No 2] [2016] QCAT 365, para 156, as cited by the applicant.

[17] South Pacific Noosa Apartments [2006] QBCCMCmr 424, Zanibar Mooloolaba [2006] QBCCMCmr 425 and Sirocco [2006] QBCCMCmr 426

[18] For example, Zanibar Mooloolaba [2006] QBCCMCmr 425, at 31

[19] NCR Ltd v Riverland Portfolio No.1 Ltd [2005] EWCA Civ 312

[20] J A McBeath Nominees Pty Ltd v Jenkins Development Corporation Pty Ltd [1992] 2 Qd R 121

[21] Old Papa's Franchise Systems Pty Ltd v Camisa Nominees Pty Ltd & Ors [2003] WASCA 11

[22] Il Villaggio [2006] QBCCMCmr 72 at para 158

[23] For example, Sirocco [2006] QBCCMCmr 426 at 50-59

[24] The body corporate did not pass Motion 1 to confirm the minutes of the AGM at the January 2025 EGM.

[26] Application 1054-2024, lodged 29 October 2024

[27] It appears the applicant did not supply requested information or confirm they wanted to proceed.

[28] Application 0328-2025, lodged 7 April 2025

[29] It appears the applicant did not provide evidence of attempts to resolve the dispute or other information.

[30] I am unclear whether the body corporate has had regard to section 113 of the Act, regarding consideration for an engagement or authorisation, in making this argument.

[31] Noting sections 149B and 229 of the Act

[32] Noting sections 149B and 229 of the Act

[34] Section 143(3)(e) of the Standard Module