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

INTERIM ORDER - where the validity of a requested extraordinary general meeting is disputed - whether an interim order should be granted in the circumstances.

1. The motions considered at the extraordinary general meeting scheduled for 28 July 2025, if passed, must not be acted upon, pending final determination of this application.
2. This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn or otherwise ended (whichever is earlier).

• [1] This dispute concerns the validity of an extraordinary general meeting to be held on 28 July 2025 (EGM). The respondent is the chairperson and secretary of the body corporate committee. She says she has called the EGM as requested by more than 25% of owners in the scheme. The motions propose the removal and replacement of committee members and to terminate the engagement of the body corporate manager.
• [2] The body corporate asserts that the respondent has failed to provide a copy of the notice evidencing the owners' request for the EGM (requisition notice). Further, it says the EGM notice does not comply with legislative requirements and that the software program utilised by the respondent for the EGM (AffinityBCM) is not an electronic voting system approved or operated by the body corporate.
• [3] Final orders are sought to the effect that:
  1. the notice for the EGM is void and of no effect;
  2. any general meeting held on 28 July 2025 pursuant to that notice is void and of no effect; and
  3. a declaration that Carolyn Lewis acted ultra vires in calling the EGM.
• [4] In the interim, the body corporate seeks an order that the motions considered at the EGM, if passed, not be acted upon, until final determination of this application.'
• [5] The only question at this time is whether an interim order is warranted.

• [6] Mount Whitsunday community titles scheme 37885 comprises 33 lots and common property. It is regulated by the Standard Module.
• [7] The dispute is between the body corporate and a member of the committee, regarding the exercise of powers or performance of duties under the Act and the Standard Module. Prima facie, I am satisfied the matter falls within the legislative dispute resolution provisions.[1]
• [8] An adjudicator to whom the application is referred may make an order that is just and equitable in the circumstances to resolve the dispute.[2] Further, an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances.[3] The Commissioner has referred the application to me to decide whether an interim order is warranted. There is no statutory requirement to obtain comment from the respondent, or any affected person before an interim order is decided.[4] In the circumstances, I gave the respondent a brief opportunity to respond to the interim order application.
• [9] The respondent made a submission, the relevant aspects of which will be discussed in the analysis below.

• [10] An interim order will only be granted if it is necessary due to the nature or urgency of the circumstances. In considering whether to grant interim relief, an adjudicator must consider:
  1. Whether the application raises a serious legal issue with a likelihood of success at final determination, that is, whether there is any merit to the application; and
  2. Whether the balance of convenience favours the interim order being granted. This requires balancing the inconvenience of granting relief now if final orders are ultimately refused against the impact of refusing interim relief if final orders are ultimately granted. Of particular significance is whether an interim order is necessary to prevent serious or irreparable harm.

• [11] On 5 July 2025, the respondent sent an email addressed to lot owners attaching notice of the EGM. The email stated that the meeting had been convened in accordance with section 84 of the Standard Module, "following a valid written request from more than 25% of lot owners".
• [12] The EGM notice contains 12 motions, proposing:

a) the removal of 5 committee members and their replacement with 5 other persons as committee members; > > b) the termination of the agreement with the current body corporate manager and to appoint a new body corporate manager; > > c) the authorisation for the new committee to cancel any other general meeting scheduled by the outgoing committee.

• [13] The body corporate raises the following issues with respect to the calling of the EGM.

• [14] Section 84(1) of the Standard Module provides:

84 Requirement for requested extraordinary general meeting

(1) An extraordinary general meeting (a requested extraordinary general meeting) of the body corporate must be called if a notice requesting an extraordinary general meeting to consider and decide motions proposed in the notice is -

(a) signed by or for the owners of at least 25% of all the lots included in the community titles scheme; and

(b) given to the secretary or, in the secretary's absence, the chairperson or, if the committee has not yet been chosen, the original owner.

• [15] The body corporate submits that despite the respondent's claim that the EGM was requisitioned by owners pursuant to section 84 of the Standard Module, she has failed to provide a copy of the relevant requisition notice. It says the respondent's refusal to do so gives rise to a strong adverse inference that either no requisition notice exists, or that it is being concealed due to material defects.
• [16] The respondent's submission contains a copy of the requisition notice dated 5 July 2025, proposing the 12 motions to be considered at the EGM and signed by the owners of 9 lots. There are 33 lots in the scheme which means the requisition notice appears to satisfy the requirements under section 84(1) of the Standard Module.
• [17] I note the body corporate requests that if the respondent produces a requisition notice in her response to the interim order application, it be given an opportunity to review the documents she produces to make comment on them. Given the limited time available, and for the reasons that follow below, I have decided not to provide a copy of the requisition notice to the body corporate for comment at this interim stage. The body corporate will be entitled to obtain a copy of the respondent's submission in due course, and may wish to then amend its application accordingly.

• [18] Aside from the question of a valid requisition notice, the body corporate submits an interim order is also warranted as the EGM notice is defective in the following ways:
  1. there is no agenda - section 87(3)(a);
  2. as there is no agenda, there is also no motion to confirm the minutes of the last meeting - section 93(2)(v);
  3. the notice is not accompanied by a proxy form - section 87(3)(b)(i);
  4. the notice is not accompanied by a corporate owner nominee form - section 87(3)(b)(ii);
  5. the notice is not accompanied by a voting paper - section 87(3)(c);
     1. the respondent stated that the voting paper would be sent separately the next day via Affinity BCM;
     2. what was sent via AffinityBCM to some (not all) lot owners was an email with links for electronic voting
     3. a hard copy voter paper has never been issued with the EGM notice or otherwise by the respondent - section 88(1);
  6. the notice is not accompanied by explanatory material - section 87(3)(e) and section 90.
  7. after the EGM notice was issued, some (but not all) lot owners received an email with links to vote electronically;
  8. AffinityBCM is not the electronic voting system adopted by the body corporate for receiving electronic votes authorised by ordinary resolution pursuant to section 106;
  9. instructions for casting both hard copy and electronic votes were not included;
  10. the voting papers were deficient in many respects; and
  11. the name and lot number of the person submitting the motions were not included on the voting papers that were eventually issued to some (but not all) lot owners.
• [19] The respondent has not commented on the above claims.
• [20] A review of the EGM notice indicates at least some of the deficiencies raised by the body corporate. I will make further comment on these below.

Eligibility of the proposed replacement committee members

• [21] Thirdly, the body corporate submits that there is no evidence of written nominations for the persons proposed to be appointed as the new committee members at the EGM.
• [22] Section 47 of the Standard Module provides that if the reason for a committee member vacancy is that the committee member is removed from office by ordinary resolution, the body corporate may, at the general meeting at which the resolution is passed, appoint a person who is eligible to be a member of the committee to fill the vacancy. The body corporate raises concerns regarding the eligibility of the nominated committee members to fill the vacancies. Eligibility requirements are set out in section 10 of the Standard Module. The body corporate submits that the respondent's refusal to provide a copy of the nominations prevents the body corporate from verifying whether the proposed appointees are eligible; and that it gives rise to a strong adverse inference that either nominations do not exist, or that they are being concealed due to material defects.
• [23] The respondent's submission includes nomination forms for the proposed new committee members which she says confirm both their eligibility and consent. Again, the body corporate may inspect these nomination forms prior to proceeding with its application for final orders. At this stage, I make no findings about the proposed committee members' eligibility to be appointed to fill any vacancies arising from the EGM.

• [24] The respondent has now produced a requisition notice which, prima facie, appears to satisfy the requirements of section 84(1). However, I still consider an interim order is warranted in the circumstances given the apparent deficiencies with the EGM notice.
• [25] While minor procedural defects can in some circumstances be overlooked, it is my preliminary view that the EGM notice issued by the respondent fails to substantially comply with the statutory requirements, such that voters' participation in the EGM and the outcome of the motions are likely to be materially impacted. Of the various claimed defects, of particular concern is that voting papers do not appear to have been included with the notice as required by section 87(3) of the Standard Module. Rather, the EGM notice states that "[t]he voting paper will be distributed separately tomorrow via AffinityBCM". It then appears that what was sent via AffinityBCM 2 days following the EGM notice was an email with links for electronic voting. The body corporate also submits that such an email was only sent to some, not all owners. Aside from the EGM notice not being accompanied by the voting papers, it also appears that the 'voting slips' which were later included in the email to owners and which purport to be the voting papers for the EGM, do not comply with the requirements for a voting paper under section 88 of the Standard Module.
• [26] A further serious legal issue raised by the application is that AffinityBCM, the system being used for electronic voting at the EGM is not the usual platform operated by the body corporate but has been developed by the respondent and her husband. The body corporate submits that the system adopted by the body corporate for electronic voting is the system developed by Stratavote, which has been in use since 2021. In the circumstances, I question the authority of the respondent to utilise AffinityBCM as the electronic voting system for the EGM where it does not appear to have been authorised by the body corporate.
• [27] Lastly, I note that following lodgement of this application, further information was submitted by the body corporate to the effect that the respondent had issued another email to lot owners announcing that the motions subject of the EGM would now be decided by secret ballot. The body corporate submits that the respondent, as secretary for the committee does not have powers to unilaterally make such decisions for the body corporate and that in any event, it is far too late for the secret voting material to now be sent to lot owners; the material was required to be included in the notice of EGM called at least 21 days before it is to be held. The body corporate submits that this recent development reinforces the need for an interim order to be made as the respondent's behaviour continues to escalate and cause confusion and disruption to the management and administration of the body corporate.
• [28] The respondent appears to submit that it is a legislative requirement to conduct the voting by secret ballot. If relevant, I will consider that further in the course of determining final orders.
• [29] The application raises serious legal questions regarding the actions of the respondent and the calling and notice of the EGM that require further investigation and consideration at final orders.

• [30] At this point it is important to note that Motions 1-11 proposing removal and replacement of the committee members and the body corporate manager had already previously been submitted to the committee for inclusion in a general meeting scheduled to take place on 8 August 2025. That meeting was called by the committee prior to the respondent requisitioning the EGM and appears to be proceeding.
• [31] The body corporate submits that granting the interim orders does not silence any party or prevent the motions from being considered given the very same motions are already on the agenda for the meeting scheduled just 11 days later on 8 August 2025. Granting the interim orders merely ensures the motions are considered through a lawful and orderly process. The body corporate submits this application for an interim order is necessary to prevent the chaos, uncertainty and financial waste that would flow from an illegitimate meeting.
• [32] The respondent submits that the application is a tactical manoeuvre by the current committee to prevent a democratic change of leadership. However, given the same motions for a change of committee and body corporate management company will be made available to owners on 8 August 2025, I see no merit to this argument.
• [33] In the circumstances, I consider the balance of convenience to weigh in favour of granting the interim orders to maintain the status quo and ensure orderly governance pending a final determination of the dispute. Given the various deficiencies identified regarding the notice of EGM and the potential for this to materially impact the conduct and outcome of the meeting, I consider it preferable to put a hold on the implementation of the EGM motions until the validity of the meeting is determined. As stated above, in any event, the body corporate will have the opportunity to consider those same motions at the meeting scheduled for 8 August 2025.

• [34] I am satisfied the circumstances justify the granting of an interim order. The matter is now referred back to the Commissioner to progress the application for final orders in accordance with the processes under the Act.

[1] Sections 227(1)(g) and 228 of the Act