Outrigger [2025] QBCCMCmr 85 (17 March 2025)

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

GENERAL MEETING RESOLUTION - whether a purported resolution in 2011 authorising the additional garages was valid - whether a time limit applies to the application - whether the time limit should be waived.

Act, s 242

[1] This application is about an old body corporate decision to approve additional garages.

[2] The minutes of an extraordinary general meeting (EGM) on 12 October 2011 record that 4 motions passed. At the annual general meeting (AGM) on 25 April 2012, the body corporate resolved (4 votes to nil) to confirm the 2011 EGM minutes. The current owners of Lot 3 were owners at the time of these meetings, but all other lots have since changed ownership.

[3] 2011 EGM Motions 2 and 3 resolved to authorise the owners of Lot 2 and 3 respectively to add a second story to their lots. The applicants challenged (in part) Motion 3 (lodged in March 2022) and Motion 2 (lodged in February 2023) but both applications were dismissed.[1] In the second matter the adjudicator noted the challenge to Motion 2 was out of time. The applicants have separately appealed those decisions.[2] An appeal of the first order was dismissed.[3]

[4] By this application the applicants now challenge 2011 EGM Motion 4. Motion 4 approved the construction of an additional garage at the front of the complex alongside existing garages to provide a double private garage for each lot. The minutes record that Motion 4 was introduced from the floor of the meeting, accepted because all lots were represented at the meeting, and passed with 4 votes in favour. The applicants allege numerous defects with the motion. They say at least one owner is now seeking to rely on the motion and so substantively seek an order that the motion at all times void.

[5] Given the passage of time since Motion 4 passed, there are questions of whether the application can now be made and, if it can, whether an order is warranted.

[6] Outrigger community titles scheme 9717 (Outrigger) is a 4-lot scheme at Bargara. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as survey plan 141415.

[7] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute 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.[4] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[5]

[8] This application was lodged on 30 August 2024. The Commissioner's delegate sought clarification from the applicants on some aspects of the application,[6] which was amended.[7]

[9] The Commissioner invited submissions from the committee and other owners.[8] A submission was made on behalf of the affected persons, which the applicants obtained and responded to.[9]

[10] The application was referred to department adjudication.[10] I have now investigated the dispute, including reviewing the application and submissions.[11]

[11] Two of the applicants, in their capacity as committee members, wrote to the other owners in a letter dated 13 June 2024. They noted that at a previous meeting Bradley Grogan (a co-owner of Lot 2) had informed the body corporate of an intention to build additional garages, in accordance with 2011 EGM Motion 4. They expressed the view, as they indicated had previously been expressed, that the improvements did not have the requisite approval and Motion 4 could not be relied on. The letter then detailed alleged defects with Motion 4.

[12] On 30 June Mr Grogan said Motion 4 was passed without dissent and was straightforward. He said the motion did not lapse with the effluxion of time and could only be overturned by another motion without dissent. He said the motion could and would be relied on.

[13] On 4 July the two committee members wrote again noting Mr Grogan's intent and raising matters they said needed to be resolved before a vote on any final plans.

[14] A motion to rescind 2011 EGM Motion 4 was defeated at an EGM on 15 July 2024.

[15] On 19 July Mr Grogan said that, following the imminent completion of the renovations to Lots 2 and 3, they would turn their attention to the construction of double garages for each lot. He said unless Motion 4 was overturned via a motion without dissent, they would, in the 'not too distant future', be completing the long outstanding approvals for Outrigger.

[16] The committee resolved on 19 August 2024 (with 2 votes for, 1 against and 1 abstention on the basis of a conflict of interest) that no works commence in regard to installing additional garages until all requisite approvals are obtained without dissent.

[17] The affected persons say the application should be dismissed. The submission includes:

1. The applicants are attempting to unlawfully relitigate the matters in the previous orders and appeals. The applicants should be estopped from pursuing the orders due to Anshun estoppel. Where the application is so connected with the previous applications, it is unreasonable for the applicants not to have raised this claim in those applications.
2. The application was filed outside the 3-month time limit. There is no good reason to waive the time limit. The applicants provide no evidence they were not aware of the 2011 EGM until February 2022. Even if it was the case, they lodged the application 2 years and 7 months after that.
3. The orders sought are unreasonable, unjust and inequitable. The applicants have failed to provide any reliable evidence of their reasonable objection or why it is just and equitable in the circumstances to make the orders.
4. If made, the orders sought would be inconsistent with the previous decisions.
5. The applicants have not engaged in self-resolution or conciliation.
6. It is not contentious that a resolution without dissent was required to approve the garage renovations. Approval was properly received by a resolution without dissent at the 2011 EGM and another affirming the resolution at the 2012 AGM.
7. They dispute that there were inadequate particulars. The approval was accompanied by a detailed explanation in the word of the motion. Any irregularities or deficiencies in the motion are not so substantial that they should render the approvals invalid. The recorded results of 2 general meetings should not be overturned on the basis of the alleged insufficiency when there was no challenge until July 2024.

[18] The applicants' reply alleges much of the submission is unrelated to Motion 4. It cites numerous legislative provisions and includes:

1. For a motion to be admissible it must be included on the agenda. Motion 4 was not submitted to the 2011 EGM agenda. It constitutes general discussion only and does not qualify as a resolution.
2. If Motion 4 was to be converted to a resolution, it needed to be raised again and listed on the agenda of the next general meeting. It was not.
3. As no motion was raised or detailed plans or costs raised, which would be reasonable for a motion of the magnitude of Motion 4, Motion 4 must be ruled out of order.
4. As Motion 4 was a general discussion only, it could not be affirmed as a resolution at the subsequent AGM.
5. Section 242 of the Act only relates to meetings and resolutions. It does not relate to general discussions.
6. If the time limit applies, it would be reasonable to waive it where the correspondence notifying other owners of the intent to rely on the motion was on 30 June 2024.
7. Motion 4 requires the breaking of by-laws, including By-laws 1, 2, 3, 4, 5, 7 and 15. As Motion 4 alters the boundaries of structures on common property, it requires a new CMS. Motion 4 would be unlawful and unenforceable in the absence of permission to break the by-laws, a new CMS, and council approval.
8. There is no way an owner could expect an owner to wish to rely on a general discussion or when there were no detailed plans, costs, quotes, permission to break by-laws, or request to approve a new CMS.
9. If the order sought is not granted, every applicable law in the Act and regulation would need to be broken, without justification, and the applicants would bear unknown costs likely to be in the hundreds of thousands.
10. The orders sought are fair, just, reasonable and equitable. If the affected persons with to proceed with a new garage proposal, they detail the usual approval process.

[19] The applicants' reply includes further evidence, being recollections from 2 former owners. The applicants say it is clear from these that no permission to develop new garages was made at the EGM.[12]

1. A statutory declaration from a former owner of Lot 3 says she recalls the meeting on 12 October 2011 as it discussed the proposal to add a second floor to her lot and Lot 2. She recalls one of the owners of Lot 2 discussing his dreams for the entire complex. She refers to a handwritten note with a circled number 4 and the words 'approve garages'.[13] She assumes this was the body corporate manager's note. She does not recall seeing any sketches or official plans or costs for the project or it being discussed at any meetings since. She says she would potentially have agreed to investigating the possibility of redeveloping the front of the garages but would not have agreed to any encroachment on common and exclusive areas. She did not see the need for redevelopment because the garages were in good condition and functional. She says she would not have supported the proposal for reasons outlined in the declaration, including the cost for the whole complex. She says that to the best of her knowledge there was no formal acceptance of the proposal. Rather, she asserts it was an idea raised at a single meeting without formal plans, costings or development proposal. She asserts there was no agreement at any time to the proposed idea and she does not recall any other members being enthusiastic or receptive to the idea.
2. An email from the former owner of Lot 4 says she recalled a meeting where one of the owners of Lot 2 expressed a wish to redevelop the garages to double garages. She says the rest of the members thought it was not feasible because it would be prohibitively expensive. She says the decision made was for that owner to get quotes and then for the vote to be made, but the matter was not raised again.

[20] The applicants' reply to the submission includes arguments and evidence that were not presented in the application and so not put to those affected. However, given all the circumstances, I have not considered it necessary to delay the determination of this application further by putting that new material to the affected persons for further comment.

[21] The substantive issue in this application is the validity of 2011 EGM Motion 4. In determining the dispute about that motion, I will consider the time limit relevant to this application. However, I will first comment on the status and effect of Motion 4.

[22] Although the applicants brought previous applications about other motions from the 2011 EGM, I consider the nature and substance of Motion 4 is quite distinct from those other motions. Accordingly, I do not accept that the question of issue estoppel or Anshun estoppel arises.

[23] It is apparent there is ongoing dispute about the administration of the body corporate and longstanding interpersonal conflict between some owners. However, I do not consider those matters is pertinent to the issues to be decided in this dispute. Also, I will not have regard the applicants' ongoing objections to 2011 EGM Motions 2 and 3.

[24] In their reply to the submission the applicants assert that 2011 EGM did not pass a resolution on Motion 4. They say that, because it was not properly submitted, Motion 4 was and could only be a 'general discussion'.

[25] There are questions about whether Motion 4 was valid, including because of the way it was submitted, and whether it should have been ruled out of order. But it is clear from the EGM minutes that it was explicitly accepted at the meeting as a motion to be voted on despite the manner of submission and the result was intended at the time as a resolution. There is nothing in the minutes that refer to the motion as general discussion. In fact, the minutes clearly record (under the heading of 'general discussion') that other matters were discussed which were not recorded because there was no authorised action or approved spending.

[26] I have not been provided with any cogent evidence that the supplied minutes of the EGM were incorrect or did not accurately reflect the decision of owners on Motion 4 at the time (although opinions and recollections about the meaning and effect of the decision may differ). Moreover, the minutes were accepted at the next general meeting.

[27] Accordingly, I am satisfied there was a purported body corporate resolution on Motion 4. I will comment on whether the resolution was valid below.

[28] Motion 4 as minuted resolved "That the Body Corporate provide approval for the construction of additional garage[14] at the front of the complex alongside the existing garages as detailed in the attached plans to provide a double private garage for each lot."

[29] A note for the resolution in the minutes said the motion was discussed in detail and that '...it was agreed that this approval is for future construction...' but that as there were no details regarding costs, owners could not be billed for the work. The minutes then said, 'If the construction is proposed to proceed at a later date, owners will be asked to vote on the costs/quotations to approve the commencement of any work.'

[30] I note the following regarding the area at the front of the scheme:

1. The survey plan shows two buildings at the street side of the scheme land, each containing a garage for Lots 1 and 2 and Lots 3 and 4 respectively. The garages are part of the respective lots, but the buildings are surrounded by common property.
2. Pursuant to By-law 15 in the CMS,[15] parts of the common property have been allocated the exclusive use and special rights. Notably, Lots 1 and 2 are given to 'special rights' to a 78m2 area of common property marked 'A' on the northwestern corner of the scheme next to the building housing the Lot 1 and 2 garages. Lots 3 and 4 have special rights to a 78m2 area of common property on the southwestern corner marked 'D' next to the other garage building . The two lots in each case are given the right to use the area in conjunction with the other, subject to conditions in the by-law.
3. The common property on the street side of the garage building and between the garages and the residences remains unallocated common property.

[31] The application includes 3 pages of plans dated September 2010 for the redevelopment of Lots 2 and 3 (pursuant to Motions 2 and 3) that were included in the notice of the 2011 EGM. Those plans show a building in the special rights area on each side of the scheme land, detached from and somewhat shorter than the existing garage buildings, and each marked 'proposed garage'. It may be these plans are the 'attached plans' referred to in Motion 4. The location for the garages as identified in those plans appears consistent with comments about the garages in the submitted material.

[32] Motion 4 indicates an intention for each lot to have a private double garage. Where each lot currently owns half of an existing garage building as part of their lot, and each shares special rights to the area of common property where it appears the new garages are proposed, I am not clear how that would be achieved. It seems to me that for each lot to have sole use of one of the 4 garage buildings (if 2 new buildings were constructed), would require 2 of the lots to sell or lease the part of their lot that is their existing garage and then acquire ownership or rights to the whole of the area of common property on which the new garages are built.

[33] Motion 4 was minuted as having passed by 4 votes in favour and nil against. However, the motion type was not listed, and it did not necessarily require a resolution without dissent. A motion does not become a resolution without dissent (and require a resolution without dissent to revoke it[16]) just because it passed without dissent.[17] Rather, the type of resolution required will depend on the substance of the motion and the legislation applying to it.

[34] If the intent of Motion 4 was to simply to authorise the body corporate to make an improvement to common property by constructing garages on the common property, that required a special resolution subject to the cost of the work.[18] If the intent was to authorise individual owners to make an improvement to common property for the benefit of their own lot, the motion of itself would require an ordinary resolution given the likely cost and impact.[19]

[35] Unlike Motions 2 and 3, Motion 4 did not specify that it authorised an individual owner to undertake works. Unlike Motion 2 and 3, Motion 4 did not propose improvements for an individual lot. Rather, the motion proposed constructing additional garages for the use of all lots. Having regard to the wording of the motion and the minuted note, it seems to me that the intention was for the body corporate to construct the additional garages. If the intention had been for individual owners to construct the garages, the references to owners being billed for the work would not make sense. Owners would not need to vote on quotes and costs unless the work was a body corporate expense rather than an individual owner expense. That interpretation of the intention of Motion 4 seems consistent with the statements from the applicants and the former owners, including references to the cost impacts.

[36] On that basis, I consider the body corporate agreed it would make improvements to common property in the form of additional garages. However, given the note to the motion, I consider that agreement was made in the context of an expectation that quotes would be obtained and voted on first. As such, I consider the motion was an in-principal or conditional authorisation.

[37] There is nothing in the Act that prevents preliminary, in-principal or conditional decisions. Indeed, it may well be appropriate for a body corporate to vote first on whether they agree to the concept of a significant proposal of this nature before time and money is spent getting detailed plans, quotes, or council approvals.

[38] To the extent that Motion 4 approved a body corporate improvement to common property, the body corporate expenditure on that improvement needed to be specifically approved. That was contemplated in the minuted note to the motion. Where the expenditure would exceed the body corporate's major spending limit, 2 quotes need to be submitted to owners.[20]

[39] While the minuted note to Motion 4 only referred to a further vote on costs, there are likely other things that would need to be voted on as well to implement Motion 4.

[40] If the intention was to construct the garages on the existing special rights areas of common property, that would change the rights to the use of those areas and so a resolution without dissent (and a new CMS) would ultimately be required.[21] Any owner forgoing their special rights to the common property or acquiring exclusive use or special rights to the new garages would either need to vote in the motion or consent in writing to it.[22] Similarly, a resolution without dissent (and a new CMS) would be ultimately be required to grant exclusive use over any area of common property that is not currently the subject of an exclusive use by-law. Alternatively, if the body corporate wanted grant a lease of over 3 years over any common property or sell part of the common property to individual lot owners to incorporate into their lots, again a resolution without dissent would be required.[23]

[41] Explicit motions are required to authorise a change the ownership of any part of scheme land, to change the exclusive use or special rights to the common property, and to approve spending. That could not be implied from Motion 4. But there is no reason that necessarily had to be voted on at the same time as Motion 4 for Motion 4 to be valid. Staged approvals may be appropriate or necessary to progress a proposal of this nature . For example, if there was to be a change to the ownership of land or to exclusive use or special rights to common property, a new survey plan reflecting the changes would be required. An accurate survey plan may not be able to be prepared and approved until new structures are actually constructed.

[42] Accordingly, I accept that Motion 4 could authorise the garage proposal in principle, and in advance of other requisite steps been approved. However, I do not consider that Motion 4 had the effect of authorising an individual owner to proceed to construct an additional garage, or requiring the body corporate, to act without further resolutions.

[43] Section 242 of the Act provides, in part, that an application to invalidate a general meeting resolution must be lodged within 3 months of the date of the meeting. But an adjudicator may decide to waive the time limit for 'good reason'.

[44] Justice Dodds in the District Court has said there should not be a too strict or legalistic view of the reason for waiving non-compliance. Rather, he said:[24]

What will be required is a balancing of the length of the delay; the reason for the non-compliance; the effect of delay on others who are affected by the matter in dispute and importantly, whether apart from the question of non-compliance with the time requirement, an applicant will be entitled to the relief sought. The applicant, being the person seeking the waiver, will have the task overall of satisfying the adjudicator that the time limit should be waived in all the circumstances.

[45] In dismissing the appeal of an adjudicator's decision not to waive the time limit where there were delays of 4 and 6 years, the Queensland Civil and Administrative Tribunal (QCAT) said:[25]

Relaxation of rigid time limits is a matter of discretion. It depends on whether it can be done without causing prejudice or detriment to a party. The discretion is a wide and unfettered one.

The discretion to extend time for starting a proceeding is aimed at avoiding injustice. In addition to a satisfactory explanation for the delay, to obtain a waiver, an applicant, must demonstrate that an appeal is necessary to remedy a substantial injustice caused by an appealable error. Even a short delay will not be excused if the appeal would be futile and inconsistent with the due administration of justice.

Other relevant considerations commonly taken into account include whether:

• The delay was intentional or merely the result of inadvertence or misunderstanding.
• Whether the appellant was vulnerable or at the mercy of the actions of others e.g. his or her legal advisors; and a binding decision on the point was ignored or overlooked.
• There would be any significant prejudice to the respondent if time was enlarged. Mere inconvenience of having to defend the appeal is insufficient. What is required is undue disadvantage that cannot be remedied by a costs order or in some other way.

These factors are taken in combination, not isolation, and one does not necessarily outrank or override another.

[46] In their application the applicants acknowledge the age of the motion but claim there are compelling reasons to waive the time limit. But in their reply to submissions the applicants claim the time limit does not apply because Motion 4 was only a general discussion and was not converted to a resolution. As outlined above, I have not accepted that second argument. I am satisfied that the time limit does apply to this application. I will consider the factors outlined in the case law in considering the basis to waive the time limit.

[47] The applicants are seeking to invalidate a resolution purportedly passed on 12 October 2011. To comply with the time limit, the application should have been lodged by 12 January 2012. It was lodged on 30 August 2024, well over 12 and a half years out of time. That is a substantial delay. I am not aware of any previous order where a delay of that length has been waived. Adjudicators have commonly refused to waive much shorter delays.

[48] As outlined, it seems to me that Motion 4 merely provided an in principal agreement for the construction of garages, with further resolutions required for the motion to be implemented. Where there has apparently been no attempt to propose further motions or otherwise implement the motion to date, I do not consider that waiving the time limit would significantly prejudice other owners or cause a significant adverse impact.

[49] But where the applicants acquired their lots in March 2014 and March 2021 respectively, the time limit had long since expired before they became owners. The applicants do not explain why they are inherently entitled to challenge a resolution that was passed with (based on the minutes) the agreement of all owners at the time, and unchallenged by owners at the time, years before they became owners. In the order considered in the QCAT decision cited above, a significant consideration for the adjudicator refusing to waive the time limit was that the applicant did not become an owner until years after the dispute resolutions and so had no standing to bring the dispute within the time limit.[26]

[50] The applicants claim the 2011 EGM minutes were not in the records and there was no disclosure of the 2011 EGM when they purchased. They say there were no new CMS lodgements or plans for works affecting common property at the time of their purchase and that Queensland Titles Registry searches do not show any easements, encumbrances or interests associated with any lot. I do not accept these arguments.

[51] Where the body corporate appears to have simply resolved in-principle to construct garages on common property, there is no encumbrance or anything else required to be included in a body corporate disclosure statement or recorded with the Queensland Titles Registry.

[52] It appears the minutes were in the records because they were identified by a body corporate manager. The applicants have not substantiated that they searched all relevant records at the time of purchasing their lots. Indeed, the submitted material indicates that one of the applicants only sought (in January 2021) minutes for the previous 3 years, which would not have included the minutes of the 2011 EGM. Also, the affected persons provide an undated document headed 'Lot Improvements' which lists approvals for individual lots along with several approvals affecting all lots, one of which is 'The construction of additional garaging approved EGM 121011.' The affected persons indicate this document was included in the disclosure documents received when the owners of Lot 3 purchased in 2018. On its face, this seems to constitute a register of authorisations affecting common property contained in the records.[27]

[53] The applicants also do not evidence that they were not aware of the 2011 EGM until February 2022. By then the first and second applicants had 8 years to review body corporate records and the third applicant had over a year. It was a matter for them if they chose not to do so.

[54] The applicants acknowledge they were given the 2011 EGM minutes in February 2022. But the applicants did not then bring this application for another over 2 and a half years. Where the applicants pursued applications about 2011 EGM Motions 2 and 3, they can hardly suggest they had not carefully considered the whole of the 2011 EGM proceedings or were not aware of the dispute resolution process. Indeed, the applicants specifically concede that they were alarmed by the 2011 EGM as soon as they became aware of it, but simply say they were concerned with other matters. That is not a basis to waive the time limit.

[55] The applicants further say that no action was taken on Motion 4 until June 2024, and they acted within 2 months of being notified of an intent to rely on Motion 4. I do not consider the applicants were absolved from the requirement to pursue their application in a timely manner just because they were not notified of an intent to rely on the minuted resolution. Resolutions are inherently not time limited and could potentially be acted on at any time. There is no requirement to notify anyone of an intention to rely on a resolution. Also, where the correspondence signed by two of the applicants on 13 June 2024 referred to previous advice of an intention to pursue the garages, they were clearly on notice of that intention before 30 June.

[56] Particularly having regard to the nature of Motion 4, I do not consider there is any good reason to exercise my discretion to waive the time limit in this matter. However, given the evident ongoing conflict at this scheme, I will comment on the merits of the claim to assist the parties moving forward.

[58] The applicants say Motion 4 passed as a concept for a later time and pending the passing of quotes. They say in effect it was a 'pre-approval' but there is no basis in the legislation for a pre-approval and it was an unreasonable decision of the body corporate at the time.

[59] The applicants variously allege deficiencies with Motion 4, including:

1. It was raised from the floor of the EGM where there was no capacity to do so.
2. No resolution type was provided with the motion or recorded in the minutes.
3. There was no mention of the need to record a new CMS within 3 months.
4. The motion was devoid of accompanying explanatory material, including final plans.
5. The motion did not mention the requirement for council approval of final plans.
6. The motion did not consider the impact of by-laws, such as By-laws 1, 4, 5, 8 and 12.
7. There was no special resolution relating to costs and no quotes supplied.
8. Even if the motion could have been considered, it is unenforceable.

[60] I will make some observations on these matters.

[61] The legislation does not allow a substantive motion to be raised from the floor the floor of a meeting. The legislation says a general meeting may only pass a resolution on a motion if the motion is included in the agenda and voting paper, or it was a procedural motion for the conduct of the meeting or a motion to amend a motion.[28]

[62] Motion 4 was clearly defective in that regard. However, that is not the end of the matter. A body corporate is expected to comply with the legislation. But non-compliance with procedural requirements relating to body corporate meetings does not automatically invalidate the disputed meetings or motions.

[63] In regard to statutory compliance, QCAT has said:[29]

The BCCMA is a lengthy, technical and complex instrument, with no fewer than six sets of subordinate and similarly complex "module regulations". It cannot be the case that the legislature expected all, or even most committee members of a body corporate, small, large or very large, to be experts in corporate law, or masters of community management. Indeed, the BCCMA implicitly recognises that, if this legislation were at all times, and in all circumstances applied with the utmost rigour and most precious attention to detail, its objects and policies would be retarded by endemic disputation, rather than advanced.

The direction that a "body corporate must act reasonably" in the performance of its "general functions" does not suggest that every minor irregularity should be pounced on to impede or paralyse the normal conduct of business. ...

• [64] The District Court has similarly said:[30]

The very detailed provisions of the standard module regulation ... make it almost inevitable that from time to time there will be noncompliance. Equally though the provisions of the Act make it clear that noncompliance of an insubstantial nature will not be allowed to imperil the actions of bodies corporate or their committees, particularly in the instance of committees where actions are taken bona fide.

[65] The EGM minutes record that all owners were present, accepted the motion and voted in favour of the motion. The AGM minutes record that the EGM minutes were confirmed. There was no challenge to Motion 4 at the time or for over 12 years. In that context, owners at the time were not disenfranchised by Motion 4 not being included on the agenda. I do not consider the failure to include the motion on the agenda and voting paper was a substantial procedural defect given the circumstances. It does not warrant the invalidation of the motion now.

[66] The 2011 EGM minutes do not include a resolution type for Motion 4. They similarly do not include a resolution type for Motions 1 to 3, and the legislation does not actually require the motion type to be included in the minutes.[31] The motion type was included on the voting paper for Motions 1 to 3 as required,[32] and of course was not provided for Motion 4 because it was not on the voting paper. This argument is simply an extension of the previous one and for the same reasons I do not consider the defect warrants the invalidation of Motion 4 after so long.

[67] Motion 4 did not consider final plans, a new CMS, council approval, by-laws, costings or other details for the garage. But that does not of itself invalidate the resolution in the circumstances. As outlined, it may be logical to obtain in-principal approval of a significant concept of this nature before time and energy was spent on all the details required to implement the concept.

[68] It seems from the minutes that the motion was discussed at length and owners particularly considered the absence of costings. It was noted by the adjudicators determining the disputes about Motions 2 and 3 that those present at the EGM were content to approve other proposals notwithstanding the absence of some details.[33] Similarly, the minutes indicate the owners were prepared to approve the concept in Motion 4 despite any lack of details. If they were not, they could have refused to pass the motion. To the extent that the motion appears to simply agree to the concept of installing garages, with an expectation of further approval before any work proceeded, I can see nothing unreasonable or otherwise unlawful in that.

[69] The applicants claim the motion was unenforceable because of the defects detailed above.

[70] A motion may be invalid and should be ruled out of order by the person chairing the meeting, if it is unenforceable.[34] A motion might be unenforceable if it is so uncertain as to its meaning or effect as to be unable to be implemented, or if it would not be lawful to implement it.

[71] But a motion is not unenforceable simply because it states the body corporate's intent or position on a matter and would require further steps, including further approvals, to implement. On its face, Motion 4 could be implemented by quotes for the proposed garages being obtained and put to a further general meeting, along with other information or motions as may be necessary to give effect to the proposal.

[72] The applicants say no meetings have considered any aspect of Motion 4 since the 2011 EGM. However, resolutions do not expire unless there is something time-limited in the wording, which is not the case here. Given the years of conflict over the substantive works on Lots 2 and 3, it is unsurprising that the focus was on pursuing those works rather than the garages and that attention only turned to the garages when other works were being finalised. I do not consider that Motion 4 is invalid simply because it has not yet been relied upon or implemented, or that further motions that would be required to implement the proposal have not yet been proposed.

[73] The applicants claim that Motion 4 requires the breaking of by-laws and does not include permission to break the by-laws. The submitted materials variously refer to By-laws 1, 2, 3, 4, 5, 7, 8, 12 and 15. The applicants do not explain how they assert that Motion 4 breaches these by-laws or requires them to be breached.

[74] By-laws 1, 2, 3, 5, and 7 relate to noise, vehicles, obstruction, damage to lawns, damage to common property, and leaving rubbish on common property. Each of those by-laws refer to conduct by an occupier. But where Motion 4 appears (as outlined) to propose that the body corporate (rather than an individual owner or occupier) construct an improvement to common property none of those by-laws appear to be relevant. Even if it was an owner building the garages, if it was done with approval, it is not clear how the by-laws would be breached.

[75] By-laws 8 and 12 relate to alterations to a lot and the appearance of the lot. But where Motion 4 appears to be approving garages to be constructed on common property, it is not of itself about changes to the lot. Moreover, By-laws 8 and 12 do not prohibit changes to a lot, they only require body corporate approval for them. If there were changes to lots as part of the construction of the garages, they would be approved by the approval of the construction and so there would be no breach of the by-laws.

[76] Finally, By-law 15 provides for exclusive use and special rights over common property. As outlined, the construction of garages on common property that would then be for the sole use of an individual lot would require a new CMS with an amended By-law 15. But as further outlined, that could occur later as part of any implementation of the proposal.

[77] For the reasons outlined, I am not satisfied there is good reason to waive the time limit applying to this application. Even if the time limit was waved, I do not consider an order to invalidate Motion 4 as passed at the 2011 EGM would be warranted.

[78] That said, while the intent of Motion 4 can be relied on unless it is rescinded, in the circumstances I consider it was little more than agreement to a concept. I do not consider the motion requires the body corporate to construct garages or take other action, or authorises any owner to proceed to construct garages, without further body corporate resolutions.

[1] Application reference 0230-2022 dismissed by Outrigger [2023] QBCCMCmr 207 and application reference 0126-2023 dismissed by Outrigger [2023] QBCCMCmr 386

[2] Queensland Civil and Administrative Tribunal appeal references APL369-23 and APL128-24

[3] Davies v Grogan (QCATA, unreported, Fitzpatrick, APL128-24, 21 October 2024)

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

[12] Noting in the statements indicates whether the former owners had or were shown the minutes of the 2011 EGM or the 2012 AGM before making their statements.

[13] The declarant refers to this being on the minutes, but the document attached to the declaration that has this annotation is a voting paper and not minutes.

[14] As the righthand margin of the text (including this word) is cut off, and given the grammatical construction of the motion, it may well be this word is actually 'garages' not 'garage'.

[15] Recorded 20 October 2004, Titles dealing number 708150428

[16] Section 116 of the Standard Module

[18] Section 186 of the Standard Module

[19] Section 187 of the Standard Module

[20] Section 173 of the Standard Module

[23] Section 184 of the Standard Module

[24] Weeks v Commissioner for Body Corporate (QDC, unreported, Dodds, 13/99, 20 September 1999), p 4-5

[25] Kulcsar & Ors v Body Corporate for Larnaca Court CTS 10467 [2016] QCATA 47, para 8 and 11-13

[26] Larnaca [2015] QBCCMCmr 116, para 36

[27] Section 228 of the Standard Module

[28] Section 107(6) of the Standard Module

[29] Carroll and Ors v Body Corporate for Palm Springs Residences CTS 29467 [2013] QCATA 21, para 22-23

[30] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482 (QDC, unreported, Bolton, 4080-2000, 29 May 2001), para 27

[31] Section 117 of the Standard Module

[32] Section 88(5)(b) of the Standard Modul

[33] Outrigger [2023] QBCCMCmr 207, para 19 and Outrigger [2023] QBCCMCmr 386,para 49

[34] Section 98(1)(a)(ii) of the Standard Module