Poinciana Vistas [2025] QBCCMCmr 140 | Case summary

Poinciana Vistas [2025] QBCCMCmr 140 | Case summary | Zoe

[13]

[13] The Act provides, in part, that an application to invalidate a committee or general meeting resolution must be lodged within 3 months of the relevant meeting.[9] The legislation requires that the Commissioner must deal with an out of time application as if it was made in time. An adjudicator may then decide whether there is 'good reason' to waive the time limit.
[14] The factors to be considered by an adjudicator when deciding whether there is good reason to waive a time limit will include the length of the delay, the reason for the delay, the effect of the delay on others, and whether the applicant would otherwise have been entitled to the relief.[10]
[15] In regard to the body corporate decisions that the applicant disputes:
1. Issue 1 relates to resolutions passed at a general meeting on 15 March 2024. This application was emailed to the Commissioner's office on 15 June 2024, just meeting the 3-month timeframe.
2. Issue 2 relates to a resolution passed at a general meeting on 3 February 2024. The application on that matter was just under 6 weeks out of time.
3. Issue 3 seeks to overturn a committee resolution on 22 October 2023, and so the application in that regard was nearly 5 months outside the timeframe.
4. Issue 3 also seeks to overturn the decision not to pass the applicants motion at the general meeting on 3 February 2024. However, as the body corporate did not pass the motion, there was no resolution. There is no time limit applicable to that issue.
5. Issue 4 seeks to overturn a committee resolution on 17 August 2023, and so the application some 7 months outside the timeframe in that regard.
[16] The body corporate submitted that the applicant had not advanced any reason for the non-compliance with the time limits. It says the application should be dismissed on that basis. The applicant responded that this issue had already been addressed with the Commissioner's office and the Commissioner had accepted the application and dealt with the timeframes.
[17] Unfortunately, it appears there has been some miscommunication between the applicant and the Commissioner's delegate in this regard.
[18] While the Commissioner's delegate may have canvassed the time limit question with the applicant, it is for an adjudicator and not the Commissioner to decide whether the time limit should be waived. The Commissioner was required to accept the application regardless of whether it was out of time. The acceptance of the application did not waive the time limit.
[19] Furthermore, while the applicant had provided reasons for waiving the time limit, his statement was not included in the application because he asked that it remain confidential. While I respect the applicant's privacy, having regard to the principles of natural justice I cannot take into account the applicant's explanation on this issue where that was not included in the application or otherwise provided to the body corporate. To be clear, I have not relied on the confidential statement provided by the applicant.
[20] I considered writing to the applicant to invite him to provide reasons that were not confidential as to why the time limit should be waived on each issue and for any statement to be provided to the respondent. However, after reviewing the merits of the substantive issues in dispute I considered that it was not necessary to delay the determination of this matter further do so.

[16]

[24] The applicant says this was a misuse of body corporate funds and the owners are responsible for their repairs. He says the explanatory note for the motions refers to the capacity for the body corporate not to require an owner to pay an excess. However, he says there was no insurance claim, and the cost of repairs were below the insurance excess in any event.
[25] The body corporate says the council denied responsibility for the damage to Lot 30. It says the committee considered the potential claim amounts were likely less than the excess if a claim was made and that section 203(3) of the Standard Module was relevant. It resolved to pay for the gutters and downpipe on Lot 30. When the applicant objected, it put the matter to all owners. The body corporate says the committee acted in good faith in proposing the motions, believing it could and should financially assist the owners. It says it previously contributed to the cost of repairing damage to Lot 7 but acknowledges those circumstances were different.
[26] The body corporate's submission also discussed whether the applicant had asserted the motions were out of order and whether they should have been ruled out of order. It says even if the motions should have been ruled out of order, there was no fundamental disadvantage in preserving the status quo by allowing the motions to stand. It says the motions were passed with strong majorities and have been implemented, with the owners being reimbursed. It says the two owners will be disadvantaged if the motions are declared void.
[27] Along with all owners, the owners of Lots 30 and 43 were invited to respond to the dispute but did not make a submission.
[28] In reply the applicant says the Lot 7 circumstances were different as that involved an insurance claim. He comments on the issue of ruling the motions out of order. He says the body corporate was notified of the issue at the time of the committee resolution and time does not remove the financial burden or the owners' responsibility for the damage. He says allowing the motions to stand would create a precedent for a body corporate to be a secondary insurer.

[17]

[29] The liability for maintenance and repairs within a body corporate is determined by application of the legislation and not by notions of what is considered to be fair. In general terms (and there are exceptions) an owner is responsible for maintaining their lot,[11] and the body corporate must maintain common property in good and structurally sound condition.[12]
[30] Unless the damage to Lots 30 and 43 arose because of some conduct or breach by the body corporate (such as a failure to maintain common property), the owners were liable for the cost of the repairs to their lots even if the damage was not their fault.
[31] The committee appears to have believed the body corporate could pay the costs because of the insurance excess provisions. I do not agree.
[32] The Standard Module sets out detailed provisions regarding the insurance arrangements.[13] It specifically discusses excesses payable on insured events.[14] If an event for which a body corporate insurance policy gives cover only affects one lot, the lot owner is liable for the excess unless the body corporate decides it is unreasonable in the circumstances for the owner to bear the liability.[15] But if the event affects two or more lots, or one or more lots and common property, the body corporate is liable for the excess unless it decides it is reasonable in all the circumstances for one owner to pay the excess or for the excess to be shared in some way.[16]
[33] If a claim was made on the body corporates' insurance policy for the damage to these two lots, and to the extent that the storm 'event' affected more than one lot, there may have been no reasonable basis for the body corporate to pass the excess on to the owners. But there is no suggestion that an insurance claim was lodged or that any excess was payable. I am unclear why there was no such claim, or whether the body corporate's insurance would have covered the damage had a claim been lodged, or if there is still any capacity to make a claim. Regardless, where there was no insurance claim the provisions about insurance excesses have no relevance. The fact that the body corporate might have paid the excess for an insurance claim does not empower it to pay for repairs where there is no claim.
[34] A body corporate only has the powers and functions given to it by the legislation. There is no legal basis for it to take on financial responsibility for something it is not legally liable for. I am satisfied the body corporate had no power to pay for work on lots it was not responsible for. While some might think it is unfair that two owners must pay to repair damage to their lots that was not their fault, that does not mean all other owners must share those costs. Owners who want to support the affected owners financially would need to do so personally.
[35] I am satisfied that AGM Motions 14 and 15 were void.
[36] Given that finding and the circumstances, I do not consider there is any utility in dealing with the question of whether the chairperson was on notice of the request to rule the motions out of order or should have ruled the motions out of order.
[37] I acknowledge the body corporate has already paid the owners involved. I consider the body corporate must seek to recover the funds that it was not validly authorised to pay. I appreciate the impact of this on those owners. However, this order will simply return them to the position they would have been in had the body corporate not exceeded its powers.

[21]

[43] In a previous order I dismissed the applicant's application for final orders about the concrete pad.[18] That followed an interim order in which I had restrained the body corporate from removing the pad until the dispute was determined.[19] The applicant was not ordered to remove the unauthorised pad, but I concluded in the reasons for the decision that he should do so.[20]
[44] The applicant says qualified tradespersons removed the pad on the day he received the order, and the area was cleaned. He provides photographs of that. He says two committee members attended and verbally agreed there was no damage underneath or around the pad.
[45] By a resolution dated the next day, the committee resolved to require the applicant to remove the concrete pad at his expense by 20 November 2023 and restore the area of common property to its 'original condition' using up to 2 concrete pavers supplied by the body corporate. It also revoked any previous approval to maintain the area.
[46] The EGM notice (in the explanatory note for Motion 3) says on 27 November 2023 the body corporate authorised the work. It included an invoice from 'The Perfect Lawn' on 6 December 2023 for $285 for 'irrigation repairs and creation of pad behind Lot 44'. The explanatory note said the committee was of the view that the owner should reimburse the body corporate for the work because it was as a consequence of the owner installing the concrete pad.
[47] The applicant installed a concrete pad without approval but removed it immediately when his application seeking to retain the pad was dismissed. I have been given no evidence that the installation of the pad or its removal damaged the irrigation infrastructure or any other part of the common property in the area.
[48] If repairs were required to the irrigation infrastructure, they were the responsibility of the body corporate in the absence of evidence that the need for the repairs was caused by any conduct of the applicant. Also, where the committee appeared to have rescinded previous approvals relating to the area, it is unclear why the applicant would be liable for reinstating previous pavers or undertaking any other works. Rather, it would seem that the situation returned to the time before the applicant was approved to install pavers with the rear gate. The applicant was willing to reinstall the original pavers. If the body corporate chose to install new pavers or make other alterations to the area, it was responsible for the cost of doing so.
[49] I have no evidence to suggest the applicant was liable for the work that the committee chose to undertake. The body corporate does not assert that he was. On that basis, I am satisfied EGM Motion 3 was invalid.
[50] The delay in bringing the application on this issue was relatively short and there is no suggestion that the body corporate was materially prejudiced by the delay. Given my finding on the substantive issue and the circumstances including, I am satisfied that the time limit for the application on this point should be waived.
[51] I consider an order to invalid EGM Motion 3 is warranted. Moreover, the applicant should be reimbursed, or his account credited, for the amount invalidly charged to Lot 44. If the applicant has been charged any penalty interest or has lost any levy discount by virtue of having a purported debt arising from the invalidly charged amount, that should be rectified.

[24]

[58] The applicant details the history of the access to the rear gate. He says the reasons for the previous order said he could reinstate the previously approved pavers or submit a motion to a general meeting for an alternative concrete path if the pavers would not suit their needs. He says the committee decision denied him the opportunity to reinstall the pavers.
[59] The applicant says the path installed by the body corporate is a trip and fall hazard and his wife was advised by her occupational therapist not to use it. He wants the proposed path to enable his wife to safely use the rear access with a wheelchair or walking stick. He says if there is a fire at the front of the lot or the roadway floods, she has no exit point at the rear of the property.
[60] He says he submitted a general meeting motion as suggested in the previous order, but the committee did not support it. He says that was unreasonable considering the details supplied. He objects to the committee's explanatory note. He does not know if the committee recommendation influenced the vote. He says Motion 2 does not breach the by-laws or the legislation, does not interfere with the use of other lots or common property, will blend with the current pathways, and will be financially more responsible for future underground services or improvements. He says it will not prevent a person with a disability safely using the path or evacuating in an emergency. He says it will be the same standard as the Lot 37 path.
[61] The body corporate says VOCM 2023-87 was passed in response to the commentary in the previous order. It says there is no practical effect in invalidating that resolution as the concrete pad has since been removed and the area reinstated by the body corporate. It says the revocation of any prior approval to maintain the area was necessary to overcome any attempt to rely on the 2015 approval and avoid future uncertainty.
[62] The body corporate then says the applicant bears the onus of proving that it acted unreasonably in not passing EGM Motion 2. It says the motion and explanatory note do not say how or why the pavers do not suit the needs of Lot 44, evidence that the current path is a hazard, or evidence that the applicant's wife has been advised not to use it. It says owners voted based on the information presented to them and the applicant cannot now contend the body corporate acted unreasonably by not taking into account matters that were not before it.
[63] The body corporate further says the committee was not required to provide unbiased comment in its explanatory note and was entitled to put its opinion. It acknowledges that it erroneously included the committee's comment in the same explanatory schedule as the applicant's explanatory note. However, it says the applicant has not evidenced that owners who voted against Motion 2 would have voted differently but for the committee's comments or that there was some fundamental disadvantage.
[64] The body corporate also contends that the third order sought does not fall within the power of an adjudicator.
[65] In reply, the applicant says he continued with a recommendation from the previous adjudication. He says the only defence previously was that the path did not match and the irrigation system required maintenance access, but it would under this motion. He says proof of his wife's disability or advice from an occupational therapist is not reasonable.

[27]

[71] It is not for an adjudicator to substitute their own views about what might have been a preferable action or decision.[26] For intervention to be warranted, an adjudicator must be satisfied that a body corporate's decision was manifestly unreasonable. The person disputing a body corporate's decision or action (or failure to make a decision or act) bears the onus of demonstrating that the body corporate did not act reasonably.
[72] The applicant may have good reason for wanting the proposed path. He was entitled to ask for approval to make that improvement to common property. Undoubtedly the body corporate could have resolved to approve it. However, that does not of itself mean the body corporate was required to approve the proposed path. The applicant must establish that the body corporate failed to act reasonably in deciding not to pass Motion 2.
[73] The applicant contends that the current paving is a trip hazard and dangerous. However, he provides no evidence of that. He has not evidenced that his wife has been advised by an appropriately qualified person not to use the current path or otherwise that she cannot safely do so. He has not evidenced that the proposed path is required to provide an emergency evacuation route. The applicant said there would be underground access to services but does not explain how that will be achieved. Access to the irrigation clearly remained a concern for the committee, but the applicant has not evidenced how it could be maintained with the path in situ. And, while the applicant contends the path will be the same as one for Lot 37, he has not explained the circumstances of the installation of that path (including who installed it and with what approval) and whether that path could affect access to irrigation or other services.
[74] I accept the applicant's genuine interest in the proposed path. However, at this time he has not satisfied me that he provided sufficient information to the body corporate to establish that it could not reasonably refuse to grant approval. That does not prevent the applicant submitting further motions with additional information if he wishes to pursue the matter. But it may be appropriate for the applicant to first engage with the committee about what installation might meet the needs of the occupiers of Lot 44 while also addressing any legitimate concerns of the body corporate, to develop a proposal that may achieve body corporate support. Again, the body corporate must act reasonably in this regard.
[75] I do not consider it is appropriate in the circumstances to determine what material or size path would meet the needs of the residents of Lot 44 and address the body corporate's concerns. Prima facie, those are matters for the parties to decide. Moreover, the applicant has provided no evidence on which any such determination could be made.

[30]

[79] The applicant says after the termination of a caretaking agreement in July 2023, the committee began spending body corporate funds on lawn maintenance at a cost of $22,000 a year plus chemicals. He says 60% of the lawns are common property and so 40% of the cost is for private property lawns. The applicant says the body corporate funding private lawns breaches sections 210(2) and 211 of the Standard Module. He says the invoices show no detail of how the amounts are determined or allocated between common property and private property.
[80] He notes an EGM resolution in November 2023 which agreed that independent contractors would be engaged to perform the duties under previous agreements but says that does not disclose the maintenance of private property lawns or arrangements. He disputes more recent information that private lawns were maintained at no cost. He says there is no option or agreements in place for owners to maintain private lawns, which is required for transparency.
[81] The body corporate says that at the front of each lot there is an area of common property grass between the boundary of the lot and the common property roadway. It says there are also grassed areas of varying sizes at the front of each lot that are part of the lot. It says the exact boundary between the lot and the common property is not easily identifiable and the grassed area continues across the boundary line with no delineation.
[82] In negotiating with its new lawn mowing contractor, the committee says the contractor made a business decision to mow all grass at the front of lots the same time as mowing the common property lawn for the same cost as only mowing the common property. It said the same applied to chemical fertilising of the lawns. It says the committee accepted the quotes on that basis. It provides a statement from the contractor who confirms this arrangement and indicating a potential misunderstanding in a conversation with the applicant. It provides more recent invoices describing the work which record no cost charged for work on the lots.
[83] The body corporate says VOCM 2023-80 related to quotes for work up to December 2023 and those services have long since been provided, invoiced, and paid for. It says there is no utility in rescinding that resolution.
[84] It acknowledges the body corporate can enter into agreements with owners if it incurs costs in the supply of services. But it says here there is no cost incurred. It says the legislation permits the supply of services but does not obligate the body corporate to enter into agreements with owners. It says the sections cited by the applicant are not relevant to engagements between the body corporate and contractors. The body corporate questions whether the second and third orders sought could be made by an adjudicator, or how they practically could be made if the power exists. It says the body corporate, contractor, and owners could not be compelled to enter agreements and where there is no cost to body corporate it says the third order is futile.
[85] The applicant responds that recent invoices are irrelevant because they were adjusted after the application was lodged and were not communicated previously. He says previous invoices for weed treatment, fertiliser and labour were for the whole of the scheme including private lawns, which was using body corporate funds to maintain private property.

[31]

[86] As outlined above, in general terms owners are responsible for the maintained of their lots and the body corporate is responsible for maintaining common property.
[87] The regulations enable a body corporate to supply or engage a person to supply certain services (including maintenance) for the benefit of owners and occupiers.[27] It may, by agreement with those to whom services are supplied, charge for those services to the extent necessary to reimburse the body corporate for the cost of supplying the services.[28] In supplying and charging for the services, it must ensure the total cost to the body corporate (other than its administrative costs) is recovered from the users of the service.[29]
[88] The body corporate does not require the agreement of individual owners to supply services to a lot or to engage a person to supply those services.[30] If it does supply services, it must recover the recover the cost from the users of the services pursuant to an agreement. But if the supply of the services does not incur a cost to the body corporate, there is no cost to recover. If there is no cost to recover, there is no need for the body corporate to enter into an agreement with the persons to whom the services are provided.
[89] On its face, the committee resolution in August 2023 appeared to resolve for the body corporate to pay for lawn maintenance to lots as well as common property. The applicant's concern about that arrangement was understandable.
[90] However, the body corporate has provided evidence that the contractor has chosen not to charge for the additional work involved with maintaining the lawns on lots when it is maintaining the adjacent common property lawns. While the applicant may doubt the veracity of that position, he has provided no evidence that the amounts paid by the body corporate include a charge for the work on individual lots. The applicant's assumptions or speculation are not sufficient for me to make an order. Even if the contractor's charges for its work on common property are inflated to cover the cost of the work on the lots (which is not established), where the contractor has said there is no charge and has since provided invoices to that effect, there is no means by which the body corporate could determine an amount to charge owners for.
[91] For that reason, the applicant has not satisfied me that the committee resolution was invalid. Moreover, even if it was, I can see no utility in the current circumstances in invalidating the resolution so long after the work that it related to has been undertaken and paid for. There would be no apparent basis to recover the expenditure from the contractor if the resolution was invalidated.[31] Accordingly, even if the disputed committee resolution was invalid, I do not consider is any justification to waive the time limit for the application on that point.
[92] The applicant then seeks an order that the body corporate formalise an agreement with the contractor that is compliant with the legislation. However, the applicant has not established a statutory obligation on the body corporate to have a formal agreement for a service contract of this nature or that the arrangement with the contractor is not compliant with the legislation.
[93] The applicant also seeks an order that lawn maintenance supplied by the body corporate to owners be apportioned to owners opting into the service by agreement and that the costs for each be paid directly to the contractor or reimbursed to the body corporate. As outlined, owner agreements are only required where the body corporate incurs costs in delivering a service to lots and then only for the purpose of recovering those costs. In the absence of evidence that the work undertaken by the contractor on individual lots increases the total cost to the body corporate, there is no basis to require individual agreements. Moreover, if there is no evidence of costs being incurred for the work on the lots, there is nothing for owners to pay for.

Poinciana Vistas [2025] QBCCMCmr 140 (1 May 2025)

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Poinciana Vistas [2025] QBCCMCmr 140 (1 May 2025)

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