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

INTERIM ORDER - whether an interim order is warranted in the circumstances.

1. The application for interim orders is dismissed.

• [1] The applicant, Affinity Capital Pty Ltd, is the registered owner of Lot 11 at Mount Whitsunday community titles scheme 37885 (Mount Whitsunday). The applicant is represented by its director, Ms Carolyn Lewis who is also the current chairperson and secretary for the committee.
• [2] The applicant disputes the following resolutions of the committee passed on 15 July 2025 and 17 July 2025:
  1. That the body corporate engage Chambers Russell Lawyers to advise on whether the extraordinary general meeting scheduled for 28 July 2025 (EGM) has been validly called, for an estimated fee of $1,500-$2000 plus GST and disbursements.
  2. That the body corporate engage Chambers Russell Lawyers at a cost of $4000-$5000 plus GST to prepare and file an adjudication application seeking urgent interim and final orders under chapter 6 of the Body Corporate and Community Management Act 1997 (Qld) in relation to the validity of the EGM purportedly called by Carolyn Lewis for 28 July 2025.[1]
• [3] The application seeks a final order that the above resolutions be invalidated. A final order is also sought for the removal of 6 committee members from their positions and further, that they be disqualified from being elected or appointed as voting committee members for 3 years.
• [4] In the interim, the applicant seeks that the body corporate be restrained from making any payment to Chambers Russell Lawyers pursuant to the committee resolutions of 15 July 2025 and 17 July 2025 pending the final determination of this application.
• [5] The only issue at this time is whether an interim order is warranted.

• [6] Mount Whitsunday comprises 33 lots and common property. It is regulated by the Standard Module.
• [7] The dispute is between a lot owner and the body corporate, regarding an alleged contravention of, or the exercise of powers or performance of duties under the Act. Prima facie, I am satisfied the matter falls within the legislative dispute resolution provisions.[2]
• [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.[3] 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.[4] 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.[5] In the circumstances, I gave the body corporate a brief opportunity to respond to the interim order application.

• [9] 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.

• [10] Section 66 of the Standard Module provides:

(1) A member of the committee must disclose to a meeting of the committee the member's direct or indirect interest in an issue being considered, or about to be considered, by the committee if the interest could conflict with the appropriate performance of the member's duties about the consideration of the issue.

(2) If a member required under subsection (1) to disclose an interest in an issue is a voting member, the member is not entitled to vote on a motion involving the issue.

• [11] The applicant says the disputed committee resolutions are invalid as the 6 committee members responsible for passing them had a direct conflict of interest in the issues being considered. Specifically, the applicant says the resolutions were made after owners proposed EGM motions to remove the 6 committee members from their positions. The applicant therefore alleges the engagement of Chambers Russell Lawyers to provide legal advice on and to initiate proceedings against the EGM served to protect the committee members rather than to advance the interests of the body corporate. The applicant argues this constitutes an improper use of body corporate funds for the committee members' own personal benefit.
• [12] The body corporate submits, amongst other things, that there was no conflict of interest. Rather, the decisions to obtain legal advice and to challenge the validity of the EGM were in the interests of and a matter of importance to the body corporate in circumstances where:
  1. the secretary (Ms Lewis) failed and refused to produce the claimed requisition notice for the EGM;
  2. the notice and the voting papers of the EGM are substantially non-compliant with the legislation; and
  3. there is already a general meeting called in a compliant manner for 8 August 2025 to consider the same motions.
• [13] Thus, the body corporate argues that the "benefit" sought and obtained in this case was not personal to the committee members but for the body corporate. Further, the motions proposing the removal of the committee members from office will still be considered at the general meeting already scheduled for 8 August 2025.
• [14] On the current submissions, there is little to suggest the committee members had a conflict of interest in the issues decided pursuant to resolutions of 15 July 2025 and 17 July 2025. It is my preliminary view that the engagement of Chambers Russell Lawyers was not an improper use of body corporate funds. On the contrary, the body corporate appears to have a proper basis to challenge the validity of the EGM called by Ms Lewis. I have made an interim order on the body corporate's application (ref no. 0717-2025), preventing any of the EGM resolutions from being implemented pending final determination of that application.[6]

• [16] The applicant submits that an interim order is required to prevent irreversible harm whereby body corporate funds will be spent and misused on an improper legal action that serves to benefit a few select individuals. Conversely, if the interim order is granted to prevent the payments to Chambers Russell Lawyers until the application is decided, the applicant says the detriment to the body corporate will be minimal and temporary.
• [17] In circumstances where the application does not establish a prima facie case, I am not satisfied that an interim order restraining the body corporate from paying its solicitors is warranted to prevent serious or irreparable harm. If, in the unlikely event that orders are ultimately made to invalidate the committee resolutions of 15 July 2025 and 17 July 2025, action may still be taken to recover monies paid pursuant to those resolutions.

• [18] I note the body corporate submits that this application, including the application for final orders should be dismissed now in its entirety. It alleges the application is vexatious and misconceived and seeks an order of costs against the applicant.[7]
• [19] While there appears little merit to the application, I will allow it to be progressed in accordance with the processes under the Act. The applicant may wish to review the application given my observations in this interim decision. If the application does proceed to final orders, I will consider the body corporate's request for costs at that stage.

[1] That application has been lodged (ref no: 0717-2025) and an interim order has been made (Mount Whitsunday [2025] QBCCMCmr 259)

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

[3] Section 276(1) of the Act

[4] Section 279(1) of the Act

[5] See section 247(3) of the Act

[6] Mount Whitsunday [2025] QBCCMCmr 259

[7] See section 270 of the Act