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 - whether a motion to remove a committee member from office was valid.

Act, ss 101B, schedule 1A; Accommodation Module, ss 36, 37

1. Motion 10 purportedly passed at the annual general meeting of the Body Corporate for Pacific Haven - North Caloundra Beach on 20 February 2025 was at all times void.

• [1] This application is about a resolution to remove the applicant from the body corporate committee for a breach of the 'code of conduct for committee voting members' (the code). The resolution, Motion 10, was passed at the annual general meeting (AGM) on 20 February 2025, with 36 votes in favour and 28 against.
• [2] The applicant believes Motion 10 is invalid because:

a) it lacked detail to enable owners to make a valid decision > > b) it did not identify any breach of the code or provide supporting information, and > > c) it was based on the majority view of the committee rather than fact.

• [3] The applicant says no breach of the code was raised with him before the Motion 10 was presented and he does not understand how owners could decide the motion. He believes the motion was included as a result of him challenging the committee to be accountable for its decisions and actions, and to ensure that a motion he submitted would fail.
• [4] The applicant wants Motion 10 invalidated, but does not ask to be reinstated to the committee.

• [5] Pacific Haven - North Caloundra Beach community titles scheme 26336 (Pacific Haven) is a 92-lot scheme at Battery Hill. The community management statement (CMS) shows the Accommodation Module applies. The scheme is registered as survey plans 114822, 119451 and 126808.
• [6] The application seeks the following orders:

That motion 10 of the Annual General Meeting of February 2025 be declared invalid.

• [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.[1] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[2]

• [8] This application was lodged on 22 May 2025.
• [9] The Commissioner's delegate sought clarification from the applicant on some aspects of the application.[3] The application was subsequently amended.[4]
• [10] The Commissioner invited submissions from the committee and all owners.[5] A submission was made on behalf of the committee and 16 submissions were received from owners. The applicant obtained and responded to the submissions.[6]
• [11] The application was referred to department adjudication.[7]
• [12] I have now investigated the dispute, including reviewing the application and submissions.[8]

• [13] A submission made by the chairperson on behalf of the committee opposes the application. It discusses the history of a dispute about works on the applicant's Lot 79. It says that, given the applicant's experience, there was an expectation he would be aware of the obligations of a committee member. The submission also says the applicant gave his version of the matter at the AGM , and owners were given the opportunity to change their vote, but none elected to.
• [14] Some 11 submissions from owners, including committee members, oppose the application. Most simply say they support Motion 10 and do not want it overturned. Some argue the owner is attempting to pervert democratic process and agree with the committee's rebuttal. One submission is in the same terms as that of the committee. Another disagrees with statements in the application and notes that owners had an opportunity to change their votes.
• [15] Five submissions from owners support the application and want Motion 10 invalidated. Some discuss previous issues. Some express support for the applicant, his professionalism and integrity. Some express concern about the conduct of those acting against the applicant and the reputational harm caused by Motion 10. One comments that Motion 10 had no practical purpose, in that it sought to remove the applicant from office just before his term was due to expire, such that the motion appeared to have been intended to discredit the applicant.
• [16] The applicant comments on the nature of the submissions. He says none of the submissions assert that sufficient information was given to enable a reasonable decision about any breach of the code or identify breaches of the code. He maintains that there was insufficient relevant information for owners to make an informed decision.

• [17] The legislation imposes a time limit on certain applications, including those seeking to invalidate a general meeting resolution.[9] Such applications should be lodged within 3 months of the meeting. However, an adjudicator can waive the time limit if satisfied there is good reason. In deciding whether to allow a late application, adjudicators will consider the length of the delay, the reasons for the delay, the impact of the delay on those affected by the outcome sought, and whether the application would have been successful if it were made in time.[10]
• [18] In this case, an application to challenge AGM Motion 10 should have been lodged by 20 May 2025. It was 2 days out of time. The applicant explained the brief delay. Given all the circumstances, I am satisfied it appropriate to waive the time limit.

• [19] This application disputes the validity of Motion 10 which purportedly passed at the AGM on 20 February 2025. It is evident there is a history of dispute between the applicant and the committee. But that is not relevant to the question raised by this application. For this dispute, I will note the relevant provisions of the legislation and then discuss the disputed motion.

• [20] The regulations set out the term of office for committee members and when a member's position may end.[11] There is a general capacity for a body corporate to remove a member from office, by passing an ordinary resolution.[12] There is then a separate capacity to remove a member from office for breaching the committee code of conduct.[13]
• [21] The Act sets out a code applies to committee voting members,[14] with members taken to have agreed to comply with it upon becoming a committee member.[15]
• [22] The legislation prescribes a specific process for a voting member of the committee to be removed from office for breaching the code.[16]
• [23] The first step in that process is for the body corporate to decide, by ordinary resolution at a general meeting, to give the committee member a written notice detailing the alleged breach of the code. The written notice must state each of the following:
  1. that the body corporate believes the member has breached a stated provision of the code of conduct
  2. details sufficient to identify the breach in not more than 600 words
  3. that the member may give a written response to the notice within 21 days and in not more than 600 words
  4. that, if asked by the member, the body corporate will pay the member all postage charges and photocopy expenses reasonably incurred by the member in giving a written response, and
  5. that the body corporate is to consider a motion to remove the member from office for the breach at the next general meeting called after the 21 day period has ended.
• [24] Only then, at its next general meeting, can the body corporate pass an ordinary resolution to remove the member from office.
• [25] It is a matter for owners who they would like to elect to the committee. They do not need a reason for their choice. Similarly, unless removing a committee member for the breach of the code, adjudicators have accepted that a body corporate does not need a reason to remove a committee member from office. But if a body corporate proposes to remove a member from office for breaching the code, the prescribed legislative process must be followed.

• [26] Motion 10 simply sought agreement to the removal of the applicant from the committee. The reason was not specified in the wording of the motion itself. But the basis for the motion was clearly detailed in the explanatory note.
• [27] The explanatory note said the actions of the applicant in regard to several contentious matters before committee during 2024 contravened the code. The explanatory note referenced three apparent requirements under the code. It then referred to an unapproved installation on Lot 79. It said the majority view of the committee was that the 'essential requirements' of the code were not met by the applicant in his role during 2023/2024 and needed to be addressed.
• [28] The cited 'essential requirements' of the code appear to reference concepts in clauses 1, 3, 5 and 6 of the code. But they do not accurately reflect the code obligations in my view. To the extent that they are presented as specific statutory obligations, the explanatory note could be viewed as misleading. Moreover, the explanatory note does not explain how the alleged conduct of the applicant was purported to have contravened any actual provision of the code. It is not clear from the information given that the applicant did breach the code.
• [29] The reference to an installation on Lot 79 presumably related to actions purportedly taken by the applicant and/or the co-owner of Lot 79 on their lot. But the explanatory note does not clearly explain how any actions of the applicant in his capacity as a lot owner are relevant to the performance of his obligations as a committee member.
• [30] There is also a question of the utility of the Motion 10. If the motion was validly passed, the removal of the applicant from office only had effect until the next committee election, at which point the applicant could be re-elected. In this case, a new committee was elected at the AGM, which had to be the last item on the AGM agenda.[17] Accordingly, the purported removal of the applicant only had effect for one motion (Motion 11) before the new committee election.
• [31] However, the substantive issue with Motion 10 was the failure to comply with the relevant statutory process. It is evident from the explanatory note that the intent of Motion 10 was to remove the applicant from the committee because of an alleged breach of the code. But it seems clear the body corporate did not resolve to give the applicant a breach notice explaining the alleged code contraventions, or then give him a breach notice, or provide him with the required formal opportunity to respond to that notice. The committee did not follow the legislative process in submitting this motion.
• [32] Had the body corporate followed the required process before passing AGM Motion 10 there could still have been questions about its validity. Those include the adequacy of the information provided to owners about the motion, whether there was a rational basis to conclude that the applicant had breached the code, and whether the body corporate acted reasonably (in accordance with its statutory duty[18]) in passing the motion. But where the inclusion of the motion on the AGM agenda was inherently flawed, it is not necessary to canvass those matters here.

• [33] I am satisfied that Motion 10, purportedly passed at the AGM held on 20 February 2025, was invalid because it did not comply with the legislative process for removing a committee member from office for a breach of the code. I will make an order to that effect.
• [34] It appears there may be some misunderstanding on the part of some committee members and owners about the committee code of conduct, as well as other rights and obligations under the legislation. The Commissioner's office provides a range of resources for those who would like to improve their knowledge.[19]

[2] Sections 227, 228, 276 and schedule 5 of the Act

[10] Kulcsar & Ors v Body Corporate for Larnaca Court CTS 10467 [2016] QCATA 47, Weeks v Commissioner for Body Corporate, (QDC, unreported, Dodds J, 13/99, 20 September 1999)

[11] Section 36 of the Accommodation Module

[12] Section 36(2)(f) of the Accommodation Module

[13] Section 36(2)(g) of the Accommodation Module

[16] Section 37 of the Accommodation Module

[17] Section 24(1) of the Accommodation Module

[19] See www.qld.gov.au/law/housing-and-neighbours/body-corporate/bccm