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

EMERGENCY ORDER - whether appropriate to make an order under s243A of the Act - whether motion to authorise proceedings should be declared valid notwithstanding a minor technical irregularity

Act , ss 106, 243A, 276, 312; Accommodation Module, s 78

1. I declare that Motion 9, which was carried at the annual general meeting of the body corporate on 27 November 2024 (AGM), with 30 votes in favour and 2 votes against, is to take effect as carried by special resolution of the body corporate.
2. I order that notwithstanding the notice requirement in s 81 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020, the body corporate is authorised to convene an EGM on 2 April 2025 to consider a motion to ratify and/or retrospectively approve the decision of the body corporate to commence proceeding no. BS954/25 in the Supreme Court of Queensland at Brisbane as if that approval had been given prior to the commencement of that proceeding.

• [1] The applicant is the body corporate for Oceana on Broadbeach CTS 24163 ("Scheme") and seeks the following outcomes pursuant to section 243A of the Act :
  1. That this application be referred to a dispute resolution officer for determination in emergency pursuant to s 243A of the BCCM Act.
  2. A declaration that Motion 9 passed at the annual general meeting of the body corporate on 27 November 2024 (AGM) take effect as carried by special resolution.
     1. That, subject to the decision of the lot owners at the extraordinary general meeting ("EGM") to be held on 2 April 2025 or at the earliest opportunity thereafter, a declaration that the body corporate was authorised to commence proceeding no. BS954/25 in the Supreme Court of Queensland at Brisbane ("Claim") as if a resolution authorising the commencement of said Claim had been made by special resolution of the lot owners in a general meeting.
  3. That the notice requirement in s 81 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 be dispensed with and the body corporate be authorised to convene the EGM on 2 April 2025 to consider a motion to ratify and/or retrospectively approve the decision of the body corporate to commence proceeding no. BS954/25 in the Supreme Court of Queensland at Brisbane as if that approval had been given prior to the commencement of said proceeding.

• [2] Oceana on Broadbeach comprises of 98 lots totalling 48,571 lot entitlements as is shown on Schedule A of the Community Management Statement ("CMS") recorded on 19 February 2024**.** The Scheme includes two residential buildings situated at 100 Old Burleigh Road, Broadbeach, (title reference 50182952) ("Oceana's Land").

• [3] Oceana's Land adjoins, and shares common boundaries to the south (side) and west (rear) of land situated at 21 Broadbeach Boulevard, Broadbeach, (Neighbouring Land"). The Neighbouring Land is owned by 21 Broadbeach Blvd Pty Ltd ACN 659 981 281 ("Neighbour").

• [4] In or around July 2023, the Neighbour obtained a development approval to construct a 20-storey residential unit tower. In or around April 2024, through its builder GlenQ Pty Ltd ("Builder''), the Neighbour commenced construction of the unit development.

• [5] In or around September 2024, a dispute arose between the body corporate and the Neighbour and their Builder with respect to alleged trespass and nuisance by the Neighbour and/or its agents causing interference and damage to Oceana's Land.

• [6] On 18 September 2024, the body corporate committee resolved to engage lawyers to commence urgent legal proceedings seeking injunctive relief, to cease the unlawful trespass, and to convene a general meeting to obtain retrospective approval from the body corporate in respect of the commencement of proceedings in accordance with s 312(1)(b) of the Act. The relevant extract of the minutes of the committee meeting held on 18 September 2024 is annexed to the application.[1]

• [7] On 19 September 2024, proceedings were commenced on behalf of the body corporate in the Supreme Court of Queensland at Brisbane ("BS12520/24"). BS12520/24 was ultimately discontinued on 6 December 2024 following the body corporate, the Neighbour and the Builder entering into a licence agreement with respect to the use/access of certain parts of Oceana's Land.

• [8] Subsequently, on 27 November 2024, an AGM was held at which time a motion was submitted by the committee in the following terms:

THAT in order to protect the interests of Oceana's land and Residents, Frigo James Legal Pty Ltd be engaged and instructed to prepare, file and prosecute an urgent application and claim before the Supreme Court of Queensland at Brisbane on behalf of the Body Corporate seeking urgent injunctive relief for orders (including damages) to cease the unlawful trespass and nuisance activities causing interference and damage presently occurring on the Body Corporate's land, as well as any other related necessary court relief and orders that may be required, as may be amended from time to time. ("Motion 9")

• [9] The explanatory schedule included in the AGM notice and agenda circulated to the lot owners[2] noted, that This motion is to retrospectively approve for the Body Corporate to commence court proceedings in accordance with section 312(1)(b) of the Body Corporate and Community Management Act 1997".

• [10] The AGM notice misdescribed Motion 9 as being a "motion by Ordinary Resolution". However the applicant says the misdescription occurred in circumstances where it was plainly clear that the committee's intention in submitting the motion to the lot owners was to ratify the commencement of the proceedings in accordance with the requirements of s 312(1)(b) of the Act, that is, by way of special resolution.

• [11] On 27 November 2024, Motion 9 was carried by the body corporate. A total of 36 votes were cast, being 30 in favour, 2 against and 4 abstained from voting. A copy of the relevant extract of the minutes of the AGM held on 27 November 2024[3] is attached to the application.

• [12] In or around January 2025, a subsequent dispute arose between the body corporate, the Neighbour and the Builder concerning further alleged trespass and nuisance activities which allegedly caused interference and damage to Oceana's Land, as well as breaches of the licence agreement previously entered between the parties. Demands were made by the body corporate to cease the trespass, but the demands were ignored.

• [13] On 13 March 2025, and in light of the authorisation provided by Motion 9 as carried by the body corporate at general meeting on 27 November 2024, the body corporate commenced further legal proceedings in the Supreme Court of Queensland at Brisbane ("BS954/25") seeking injunctive relief to restrain the Neighbour and the Builder from trespassing onto Oceana's Land, as well as other related court relief, including damages for breaches of the licence agreement.[4]

• [14] On 19 March 2025, the body corporate received a letter from the solicitors acting for the defendants in BS954/25, requesting a copy of the special resolution authorising the body corporate to commence said proceeding.[5]

• [15] Upon receiving the correspondence referred to above, it became apparent to the body corporate that Motion 9 as passed at the AGM on 27 November 2024 was irregular in that it had been misdescribed as a motion passed by ordinary resolution, when in fact a special resolution was required to comply withs 312(1)(b) of the Act.

• [16] On 20 March 2025 and 21 March 2025, the body corporate received further correspondences from the solicitors acting for the defendants threatening to take immediate action to apply to strike out proceeding BS954/25 should the body corporate not withdraw said proceeding.[6]

• [17] On 21 March 2025, the body corporate provided its response to the above correspondences, noting that a resolution had been obtained prior to the commencement of proceedings BS954/25 and that necessary steps were being taken by the body corporate to rectify the technical irregularity referred to at paragraph 15 above.[7]

• [18] In light of the above matters, by resolution of the body corporate committee on 21 March 2025, Frigo James Legal ("FJL") was engaged to prepare and file this application on behalf of the body corporate seeking declaratory relief under s 227(2) of the BCCM Act on the terms set out at section 7 of the adjudication application.[8]
• [19] By email from FJL to this Office on 26 March 2025 at 10:59am, the applicant body corporate first lodged its adjudication application which was allocated ref. number 0281-2025.
• [20] Thereafter, on 26 March 2025 at 3:53pm, the applicant body corporate provided via email to this Office, revised grounds in support of its application ref. 0281-2025. At the time of filing its application, the applicant had not been served with any application by the defendants in proceeding BS954/25 seeking to dismiss and/or strike out the proceeding. The applicant noted, however, that there was a real apprehension that the defendants would likely proceed with the threatened application.
• [21] At 4:58pm on 26 March 2025, the body corporate was served via email with the following documents filed by the defendants in proceeding BS954/25:

a. Conditional notice of intention to defend disputing the jurisdiction of the court to

determine BS954/25 as the body corporate has not obtained the special resolution

required by s 312 of the BCCM Act to start the proceeding ("Conditional NID").

b. Application seeking, relevantly, orders to set aside or dismiss or strike out proceeding

• [22] The Strike Out Application is set to be heard on 4 April 2025 at 10am. Copies of the above documents were provided by the applicant to this Office via email on 26 March 2025 at 5:07pm.
• [23] In light of the matters raised in the Strike Out Application and the Conditional NID, the body corporate committee instructed FJL to amend the relief sought in this adjudication application ref. number 0281-2025 and to seek additional relief.
• [24] The applicant therefore seeks the following outcomes pursuant to section 243A of the Act :
  1. That this application be referred to a dispute resolution officer for determination in emergency pursuant to s 243A of the BCCM Act.
  2. A declaration that Motion 9 passed at the annual general meeting of the body corporate on 27 November 2024 (AGM) take effect as carried by special resolution.
     1. That, subject to the decision of the lot owners at the extraordinary general meeting ("EGM") to be held on 2 April 2025 or at the earliest opportunity thereafter, a declaration that the body corporate was authorised to commence proceeding no. BS954/25 in the Supreme Court of Queensland at Brisbane ("Claim") as if a resolution authorising the commencement of said Claim had been made by special resolution of the lot owners in a general meeting.
  3. That the notice requirement in s 81 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 be dispensed with and the body corporate be authorised to convene the EGM on 2 April 2025 to consider a motion to ratify and/or retrospectively approve the decision of the body corporate to commence proceeding no. BS954/25 in the Supreme Court of Queensland at Brisbane as if that approval had been given prior to the commencement of said proceeding.

• [25] Section 243A of the Act also provides as follows:

243A Referral to dispute resolution officer in emergency

(1) This section applies if the commissioner reasonably considers -

(a) an application should be immediately referred to a dispute resolution officer because it relates to emergency circumstances; and

(b) it is not appropriate to deal with the application under section 247.

(2) The commissioner may immediately refer the application to a dispute resolution officer without giving written notice as mentioned in section 243(1).

• [26] I note that at 4:58pm on 26 March 2025, the body corporate was served via email with the following documents filed by the defendants in proceeding BS954/25:

a. Conditional notice of intention to defend disputing the jurisdiction of the court to

determine BS954/25 as the body corporate has not obtained the special resolution

required by s 312 of the BCCM Act to start the proceeding ("Conditional NID").

b. Application seeking, relevantly, orders to set aside or dismiss or strike out proceeding

• [27] The Strike Out Application is set to be heard on 4 April 2025 at 10am.
• [28] In light of the defendants' application seeking orders to set aside or dismiss or strike out proceeding BS954/25 the applicant submits that emergency circumstances exist justifying the making of the requested orders pursuant to section 243A.
• [29] The body corporate argues that the proceeding is a rightful claim by the body corporate as it had approval of the requisite special majority[9] for a special resolution to approve commencement of proceeding, and the misdescription of the required resolution was an irregularity of the most technical nature.[10]
• [30] I am satisfied that this is a matter which falls within the legislative dispute resolution provisions and relates to emergency circumstances.[11] 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 the performance of duties, under the Act or the CMS.[12] An order may require a person to act, or prohibit a person from acting, in a way stated in the order. An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[13]

• [31] As outlined above, the AGM notice and agenda expressly provided that Motion 9 intended to "retrospectively approve for the Body Corporate to commence court proceedings in accordance with section 312(1)(b) of the Body Corporate and Community Management Act 1997''.
• [32] I am of the view that the explanation included in the AGM notice circulated to the lot owners, plainly demonstrated that the committee's intention in submitting Motion 9 for voting by owners, was to ratify the body corporate's decision to commence legal proceedings in accordance with the requirements of s 312(1)(b) of the Act. Also, I do not believe that objection can be taken to the fact that the approval was sought to retrospectively authorise the commencement of proceedings_._[14]
• [33] Further, I am of the view that having regard to the clear intention which was conveyed in the AGM notice and circulated to all lot owners prior to the general meeting, the misdescription of Motion 9 as being a 'motion by ordinary resolution' amounts to a technical irregularity of an unsubstantial nature.
• [34] A motion is passed by special resolution if at least two-thirds of the votes cast are in favour of the motion, and the number of votes counted against the motion are not more than 25% of the number of lots included in the scheme.[15]
• [35] Clearly, although Motion 9 has been misdescribed in the AGM notice as a motion to be decided by ordinary resolution, it did nevertheless satisfy the legislative requirements to pass as a special resolution. In this respect
  1. At least 2/3 of the votes cast were in favour of Motion 9 (30 out of 36 votes);
  2. The number of votes counted against Motion 9 (2 votes) were not more than 25% of the number of lots of the Scheme (total of 98 lots);
  3. The number of votes counted against Motion 9 (2 votes) were not more than 25% of the total contribution schedule of lot entitlements for the Scheme. It is evident from the CMS[16], that a combination of the lot entitlements of any two lots that have casted votes at the general meeting on 27 November 2024 does not exceed 25% of the total number of lot entitlements for the Scheme.

• [36] In previous Adjudication and appeal decisions, it has been consistently held that a misdescription with respect to the kind of resolution required to be passed, where a special resolution is required, does not invalidated the motion.
• [37] In Stainlay & Anor v for No.9 Port Douglas Road (District Court Appeal No. 177 of 2006)

White J. noted the requirement in the Accommodation Module Regulation[17] that a voting paper must -

State for each motion whether a resolution with dissent, special resolution, majority resolution or ordinary resolution is required.

• [38] At paragraphs [11] & [12], White J. stated:

I accept that the voting paper in respect of motion 7, was defective in that it specified that the motion was to be decided by ordinary resolution when it is clear that it should have been specified as having to be decided by special resolution because improvements were involved in at least some of the alternatives offered. In my view this was an irregularity of the most technical nature in the context of this particular case. The fact is that all eligible votes were cast in respect of the primary motion and in choosing one alternative. The primary motion was passed unanimously. There was, in my view, and could not have been any disadvantage to any lot owner by the failure of the voting paper to specify that the primary motion needed to be passed by special resolution

Section 276 of the Act provides as follows:-

(l) An adjudicator to whom the application is referred may make an order that is just equitable in the circumstances (including a declaratory order) to resolve a dispute in the context of a community title scheme, about -

(a) A claimed or anticipated contravention of this Act...

Without limiting subsections (1) and :2), the adjudicator may made an order mentioned in Schedule 5.

(9) An order declaring that a resolution purportedly passed at a meeting of the· committee for the Body Corporate, or a general meeting of the Body Corporate, is a valid resolution of the meeting

I have no doubt at all that had the point been raised before the adjudicator he would

have been satisfied that it was just and equitable to make an order and/or declaration confirming the validity of the resolution by which motion 7 was passed. In my view this Court has the same power. The fact that an appeal is limited to an error of law does not deprive this Court of all of the powers of an adjudicator provided the basis for the exercise of the power is It is submitted that this case falls within the above categories, in that:

• [39] I am of the view that the misdescription of Motion 9, as requiring an ordinary resolution when in fact a special resolution was required pursuant to s 312(1)(b) of the BCCM Act, amounts to a mere procedural irregularity and/or technical deficiency which is not fatal to its validity. The irregularity is of insubstantial nature as Motion 9 did in fact pass, by reference to the requirements in s 106 of the BCCM Act, as is required for it to be carried by special resolution at the general meeting on 27 November 2024.
• [40] I am also of the view that there is no material prejudice, detriment or injustice to any of the lot owners or any other person by declaring that Motion 9 take effect as a special resolution considering that it had the votes required to amount to a special resolution in any event and the overwhelming number of votes in favour of Motion 9.
• [41] On the other hand, I believe it is probable that the applicant will suffer prejudice should it be forced to withdraw its proceeding BS954/25 and re-file once it has been able to obtain further authorisation to commence proceedings upon the calling of a general meeting. Such prejudice would include the following:

(a) Costs - the body corporate would be required to pay, once again, the filing fee to file new proceedings, such fee being in excess of $2,000;

(b) Delays - proceeding BS954/25 was filed and served on 13 March 2025 and the defendants' defence is due on 10 April 2025. Should the body corporate be required to withdraw and re-file its claim it would obviously re-set the time for the defendants to prepare and file their defence to the claim until, it is estimated, mid-May 2025. This would further delay the progress and ultimate determination of the body corporate's claim;

(c) Consolidation of Proceedings - on 19 March 2025, and directly in response to the commencement of proceeding BS954/25, the adjoining landowner filed against the body corporate an application in the Supreme Court of Queensland at Brisbane (proceeding no. BS1104/25) ("Ground Access Application") seeking certain access rights with respect to parts of the body corporate's land which are precisely the subject of the body corporate's trespass claim in proceeding BS954/25. The application is listed for directions hearing on 11 April 2025 at which time the body corporate will be seeking orders for both proceedings BS1104/25 and BS954/25 to be heard and determined together having regard to the substantial overlap and commonality of facts and issues in dispute. ShouId the body corporate be forced to withdraw BS954/25 now and wait until such time as it has been able to hold an EGM to re-file its claim, the body corporate will lose the opportunity to have the two proceedings consolidated on 11 April 2025 and, possibly, altogether.

• [42] For the above reasons I have made the following order:
  1. I declare that Motion 9, which was carried at the annual general meeting of the body corporate on 27 November 2024 (AGM), with 30 votes in favour and 2 votes against, is to take effect as carried by special resolution of the body corporate.

• [43] Next, I note that out of an abundance of caution, the applicant has also sought the following orders:
  1. That, subject to the decision of the lot owners at the extraordinary general meeting ("EGM") to be held on 2 April 2025, or at the earliest opportunity thereafter, a declaration that the body corporate was authorised to commence proceeding no. BS954/25 in the Supreme Court of Queensland at Brisbane ("Claim") as if a resolution authorising the commencement of said Claim had been made by special resolution of the lot owners in a general meeting.
  2. That the notice requirement in s 81 of the Accommodation Module may be dispensed with and the body corporate be authorised to convene the EGM on 2 April 2025 to consider a motion to ratify and/or retrospectively approve the decision of the body corporate to commence proceeding no. BS954/25 in the Supreme Court of Queensland at Brisbane as if that approval had been given prior to the commencement of said proceeding.
• [44] It should be noted that in making order 1 above, I am of the view that the proceeding was commenced by special resolution pursuant to Motion 9, in accordance with the provisions of section 312 of the Act.
• [45] I am unable to make orders that invest the body corporate with a power to commence and pursue proceedings against someone, otherwise than in accordance with the provisions of section 312 of the Act : Body Corporate for Quay Terraces Cts 17468 v Brisbane City Council [2016] QPEC 12.
• [46] I am therefore unable to make an order 2 above, that the body corporate was authorised to commence proceeding no. BS954/25 in the Supreme Court of Queensland at Brisbane ("Claim") as if a resolution authorising the commencement of said Claim had been made by special resolution of the lot owners in a general meeting.
• [47] Next, I turn to the third order sought, i.e that the required 21 days notice for an EGM may be shortened so that an extraordinary general meeting ("EGM") can be held to consider a motion seeking ratification and/or retrospective approval with respect to the body corporate's decision to commence proceeding BS954/25.
• [48] As mentioned above, I do not believe that objection can be taken to the fact that the approval is sought to retrospectively authorise the commencement of proceedings_._ See for example:

Body Corporate for Hilton Park CTS 27490 v Robertson [2018] QCATA 31

McEvoy & Anor v The Body Corporate for No 9 Port Douglas Road [2013] QCA 168;

FCT v Sara Lee Household & Body Care [2000] HCA 35; (2000) 201 CLR 520.

• [49] However section 81 of the Accommodation Module requires that 21 days notice is required for the holding of a general meeting. I am advised that the committee originally proposed to hold the EGM within 21 days of any orders made in this application. However, in light of the Strike Out Application filed by the defendants on 26 March, which is set to be heard by the Court on 4 April 2025, the committee now seeks a waiver of the requirement for the 21 days' notice period required by s 81 of the Accommodation Module. This will enable the EGM be held on 2 April 2025, that is, at a date prior to the hearing of the Strike Out Application, at which time the relevant motions will be put to the lot owners for voting.
• [50] The body corporate submits it would be just and equitable in the circumstances to order the shortening of the notice period for the following reasons:

(a) the Strike Out Application filed by the defendants in proceeding BS954/25 is set to be

heard and determined on 4 April 2025. Unless the body corporate is able to obtain the

requisite ratification and/or retrospective authorisation by special resolution of the lot

owners prior to the date of that hearing, there is a real material risk to the body

corporate that proceeding BS954/25 may be dismissed or struck out, which would

result in material prejudice and detriment to the body corporate and to all lot owners

including in the terms set out at paragraph 35(d) above (potential adverse costs orders

(b) the body corporate wishes to correct at the earliest opportunity any potential technical

irregularity that might exist with respect to the commencement of its proceeding

BS954/25 so that it may be allowed to continue to prosecute said proceeding against

the defendants and thereby continue to protect and preserve the rights and property of

the body corporate for the benefit of all lot owners;

(c) the body corporate proposes to take the following steps (as well as any other additional

reasonable steps that this office may deem necessary) to minimise, as much as

possible, any risks associated with lot owners not having a proper opportunity to vote

i. if the body corporate manager has an email address or a fax number for the

lot owner, then the notice of the EGM together with a copy of the decision made

in this proceeding will be emailed and/or faxed to the lot owner on the day this

ii. if the body corporate does not have an email address or fax number for a lot

1. where the lot is owner occupied, the notice of the EGM together with

a copy of the decision made in this proceeding will be hand delivered

to the lot owner within 1 business day of the date of this order;

2. where the lot is not owner occupied, the notice of the EGM together

with a copy of the decision made in this proceeding will be express

posted to the lot owner within 1 business day of the date of this order

AND the body corporate manager will telephone the lot owner.

• [51] An adjudicator has relatively broad powers under section 276. In the QCAT decision of

Lovel v The Body Corporate for The Reserve (No 2) [2018] QCATA 169

One of the circumstances in which an Adjudicator might decide to declare a meeting or a resolution passed as valid, notwithstanding that there were irregularities. One of those might be that the non-compliance was of an insubstantial nature, however it does not follow that it is only in circumstances in which the non-compliance is in insubstantial nature that an Adjudicator might exercise any of the powers vested in Adjudicators to validate irregular acts.

Section 9 of Schedule 5 to the Act also gives express power to an Adjudicator to make orders validating meetings held and also other validating orders. One of the matters which the Adjudicator on a hearing of the principal application will undoubtedly consider, is whether to invoke and apply any of those powers.

• [52] While it is proposed that only a short notice period will be provided, I note that the body corporate proposes to take various steps to minimise, as much as possible, any risks associated with lot owners not having a proper opportunity to vote due to the shorter notice period.
• [53] In the circumstances outlined above I believe it is appropriate to also make the following order:

That the notice requirement in s 81 of the Accommodation Module may be dispensed with and the body corporate be authorised to convene the EGM on 2 April 2025 to consider a motion to ratify and/or retrospectively approve the decision of the body corporate to commence proceeding no. BS954/25 in the Supreme Court of Queensland at Brisbane as if that approval had been given prior to the commencement of said proceeding.

[9] More than 2/3 of the votes cast were in favour of Motion 9 (30 out of 36 votes) and votes against Motion 9 (2 votes) were not more than 25% of the number of lots of the Scheme (total of 98 lots)

[10] Stainlay & Anor v for No.9 Port Douglas Rd (District Court Appeal No. 177/ 2006) White J. at [11]

[11] See sections 227, 228, 276 and Schedule 5 of the Act

[14] See Body Corporate for Hilton Park CTS 27490 v Robertson [2018] QCATA 31

[17] See section 78 Accommodation Module