Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and 229(3)(a)

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

GENERAL MEETING MOTION; IMPROVEMENT TO COMMON PROPERTY; REASONABLENESS - whether the body corporate acted unreasonably by refusing to approve the applicant's roof-mounted air conditioning condenser while other owners' roof-mounted condensers are tolerated; whether the motion seeking approval should be given effect.

Act, s 94(2).

1. Motion 8 of the annual general meeting held on 20 February 2025 is deemed to have passed by ordinary resolution.
2. The application is otherwise dismissed.

• [1] On 5 November 2024, Adjudicator Archer gave Mr Harm one year to remove his air conditioning condenser from the roof over lot 79 unless a general meeting permitted it to remain.[1] Adjudicator Archer found it was an improvement to common property requiring body corporate approval by ordinary resolution.[2]
• [2] Mr Harm submitted a motion (motion 8) to the AGM held on 20 February 2025 seeking approval. The body corporate committee submitted motions to "confirm agreement" with:
  1. Adjudicator Archer's order that the condenser should be removed (motion 9), and
  2. the removal of Mr Harm from the committee (motion 10).
• [3] Motions 8 and 9 narrowly failed 30-31 and 30-30 respectively, while motion 10 passed with 36 votes in favour and 28 against.
• [4] Mr Harm argues the committee's motions "falsely represented the adjudicator's order and ... intended to tarnish my character". He claims the body corporate acted unreasonably by withholding approval for his condenser to remain where it is, given:

2. the fact that the matter was purposefully confused by a motion incorrectly stating the independent adjudicator had ruled that it be removed

3. a clear precedent exists with several condenser installations on other lots on the respective roof and viewable from common property,

4. our installation cannot be seen from common property and cannot be heard from the neighbouring lot.

That motion 8 of the 20/2/25 Annual General Meeting be carried as approved and approval be given to retain the installed air conditioning condenser in its current location and that motion 9 of the 20/2/25 Annual General Meeting be deemed out of order or invalid.

• [6] The body corporate must act reasonably when carrying out its functions, including when making decisions.[3]

The word "reasonably" is used in its ordinary sense and "act reasonably" has a corresponding meaning. Reasonable action is evidence-based and rational".[4]

• [7] If satisfied a decision not to pass a motion was unreasonable, an adjudicator may give effect to the motion.[5]
• [8] It is undisputed that other lots have condensers mounted externally in elevated positions. The others are described as being on the front roofs or side walls of the lots, visible from the common property, while Mr Harm's is on the rear roof of his lot and can only be seen from neighbouring Vickers Street.
• [9] For some roof-mounted condensers to be acceptable but Mr Harm's not, there would need to be some material difference between them. If Mr Harm's was louder, less attractive, or more conspicuous for instance, the body corporate could sensibly refuse to allow it while permitting the others to remain.
• [10] The body corporate is not required to decide every application to mount a condenser on the common property in the same way, after all. It is only required to act reasonably, which involves considering the specific circumstances and individual merits of each application. It would not be unreasonable to refuse a roof-mounted condenser that is twice as loud as the others and situated right outside a neighbour's bedroom window.
• [11] But no logical basis for the different treatment of Mr Harm is evident. His condenser is in a similar position to the others. By all accounts, it is less visible. There is no indication that it is noisy or otherwise objectionable. There is nothing in the opposing submissions to explain the distinction between this condenser and those around it. In these circumstances, the decision seems arbitrary rather than "evidence-based and rational". On the balance of probabilities, it was made unreasonably.
• [12] I have no way to measure the committee's influence on voters. It clearly set out to rally sentiment against Mr Harm. That was the only conceivable purpose of motions 9 and 10. There was no need for the body corporate to "confirm" Adjudicator Archer's order; it had legal effect irrespective of the popular support it might command at the AGM. Motion 9 was simply a vehicle for expressing opposition to Mr Harm. Rather than explaining the need to confirm Adjudicator Archer's order, the explanatory note for motion 9 was a point-by-point critique of Mr Harm's explanatory note for motion 8. It encouraged owners to view the decision on motion 8 as:

...a referendum on whether this Committee, or indeed, future body corporate committees can enjoy the confidence of owners to make decisions on their behalf.

• [13] That was unhelpful. That would not be a relevant basis for deciding whether Mr Harm's condenser may remain where it is on the common property. The committee always lacked the power to make that decision on behalf of owners. Owners at the AGM should have been focussed on whether that specific condenser might be permitted in that precise location and under what conditions, not picking a side in some misconceived power struggle.
• [14] Motion 10 asked owners to "confirm their agreement to the removal of Kevin Harm from the Pacific Haven Body Corporate Committee". I do not know whether Mr Harm was still on the committee at that point - the committee says he offered his resignation in late 2023 - but a new committee was being elected at the AGM anyway. There was no need to remove Mr Harm from office, except that it provided an opportunity for an explanatory note accusing Mr Harm of unspecified breaches of the code of conduct for voting committee members in 2022-23 and installing a steel structure on the western elevation of his lot without body corporate approval.
• [15] The committee would not have had to sway many voters to cause motion 8 to fail rather than succeed given the closeness of the vote. But I do not need to make a finding about the extent of the committee's influence. I am satisfied the body corporate refused Mr Harm a privilege it has extended to other owners without any logical and relevant basis for the inconsistency. In that way, it acted unreasonably. I will declare motion 8 passed.
• [16] No orders are necessary with respect to motion 9. It was meaningless and it failed.

[1] Pacific Haven - North Caloundra Beach [2024] QBCCMCmr 400.

[3] Act, s 94(2).

[4] Carmody J, Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [23].