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

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

GENERAL MEETING MOTION - where a motion which proposed changing exclusive use areas and by-laws failed to achieve a resolution without dissent - whether the body corporate unreasonable failed to pass the motion - whether the opposition to the motion was unreasonable.

Act, ss 94, 276(1), schedule 5, item 10

• [1] This application challenges a body corporate decision not to pass a motion and allow works.
• [2] The applicant applied to the committee in April 2024 for approval to install LPG cylinders on an exclusive use car space allocated to its Lot 12. The body corporate raised concerns with the proposal and sought further information. In June 2024 it refused approval. Correspondence ensued. The applicant then carried out the work without approval.
• [3] Following an unsuccessful attempt at conciliation, the applicant submitted Motion 11 which was considered at an annual general meeting (AGM) on 11 April 2025. It proposed amending the exclusive use area and by-laws to permit it to use one of Lot 12's exclusive use car spaces to store gas bottles and to run gas lines through the concrete driveway to connect those bottles. Motion 11 required a resolution without dissent but failed to pass.
• [4] The applicant asserts the body corporate failed to act reasonably in not passing Motion 11 and the decision of owners, including by committee members who denied the improvement application, was unreasonable. It seeks orders deeming the body corporate to have resolved to amend the by-laws to change the existing exclusive use areas, to permit it to use a car park to store gas bottles, and to permit the installation.
• [5] This application raises questions of whether the body corporate unreasonably failed to pass Motion 11 or that the opposition to the motion was unreasonable. I have determined it concurrently with an application lodged by the body corporate seeking removal of the works.[1] .

• [6] Production Avenue Commercial Centre community titles scheme 52360 (PACC) is a 16-lot scheme at Molendinar. The community management statement (CMS) shows the Commercial Module applies. The scheme is registered as survey plan 304092.
• [7] The application seeks the following order:

That the Body Corporate is deemed to have resolved:

(a) to amend the by-laws to change the existing exclusive use areas to permit the owner of Lot 12 to utilise one of the car parks allocated to Lot 12 for the storage of gas bottles;

(b) to permit the Owner of Lot 12 to undertake Lot Alterations and Improvements.

• [8] 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.[2] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[3]

• [9] The body corporate applied for conciliation of the related dispute in December 2024.[4] The parties participated in a conciliation session in January 2025, but did not reach agreement.
• [10] This application was lodged on 9 May 2025. The Commissioner invited submissions from the committee and all owners.[5] No submissions were received.
• [11] The application was referred to department adjudication.[6] I have now investigated the dispute, including reviewing the application and Titles records.[7]

• [12] The applicant the body corporate to be deemed to have amended the by-laws to allow it to use an exclusive use car park to store gas bottles, and to permit the alterations that have been undertaken. Although the applicant appears to disagree with the committee refusal of approval for its works, the grounds to the application do not appear to seek to overturn the committee decision. In essence it appears the applicant is seeking to give overturn the outcome of AGM Motion 11 and give effect to that motion. I will consider the application on that basis.

• [13] The legislation provides for exclusive use by-laws which attach to a lot and give the occupier of the lot exclusive use of, or other special rights to, common property or an asset.[8] Usually common property that is the subject of an exclusive use by-law must be identified in a plan so there is no doubt about the extent of the common property that is the subject of the by-law.[9]
• [14] A body corporate must pass a resolution without dissent to consent to record a new CMS that changes an exclusive use by-law.[10]
• [15] AGM Motion 11 sought to 'amend the existing exclusive use area and by-laws'. To the extent that the motion could be passed by the body corporate (which I will discuss below), a resolution without dissent was required. A resolution without dissent was not achieved.[11]
• [16] An adjudicator cannot overturn a body corporate decision simply because a party disagrees with the decision or considers it unfair. An adjudicator may only make an order that is just and equitable in the circumstances to resolve a dispute.[12] Without limiting the power of an adjudicator to make orders, schedule 5 of the Act sets out orders that can be made. Item 10 contemplates an adjudicator giving effect to a motion, or a variation of a motion proposed, if the motion required a resolution without dissent but did not pass because of "opposition that in the circumstances is unreasonable".
• [17] In regard to whether the opposition to a proposal was unreasonable, the High Court has said:

It is no light thing to conclude that the opposition by a lot owner to a resolution is unreasonable where the adoption of the resolution will have the effect of: appropriating part of the common property to the exclusive use of the owner of another lot, for no return to the body corporate or the other lot owners; altering the features of the common property which it exhibited at the time an objecting lot owner acquired his or her lot; and potentially creating a risk of interference with the tranquillity or privacy of an objecting lot owner.[13]

Nothing in the BCCM Act suggests that an opponent to a proposal acts unreasonably in failing to act sympathetically or altruistically towards a proponent who seeks to diminish the property rights of the opponent. The BCCM Act does not contemplate that the rights of a lot owner genuinely opposed to the reduction of his or her rights to common property attached to his or her lot may be overridden where that might be thought by an adjudicator to be a reasonable course to adopt, having regard to some standard of sympathy or altruism applicable between lot owners.[14]

Opposition prompted by spite, or ill-will, or a desire for attention, may be seen to be unreasonable in the circumstances of a particular case.[15]

• [19] The High Court accepted that the task for an adjudicator was to identify a ground of opposition and inquire as to whether that ground was a rational basis for opposition. This is to be considered in the context of the right to vote as a proprietary right of all lot owners.
• [20] The party challenging the decision on a motion bears the onus of substantiating that a dissenting voters' opposition was unreasonable in the circumstances.

• [21] PACC substantively comprises a 2-storey building in a horseshoe configuration surrounding common property. The concreted common property in the centre of the scheme has car parking surrounded by a driveway that provides access to all lots. The scheme comprises 16 2-storey lots which house commercial and light industrial businesses.
• [22] As PACC is registered as a building format plan of subdivision, the boundaries of the lots are defined on the survey plan by the structural elements of the building, including floors, walls and ceilings.[16] The boundary between each lot and the adjacent lot or common property with be the centre of the floor, wall or ceiling. Accordingly, the building exterior is common property.
• [23] Under By-law 11 in the CMS,[17] each lot is given exclusive use of an area shown in a plan attached to schedule E for car spaces_._ Under schedule E, which lists 'Exclusive Use Area - Car Spaces', Lot 12 is allocated area marked X12 on the exclusive use plan DWGH133G. The attached plan shows area X12 as a 66m2 area with 5 car spaces.
• [24] It is not disputed that the respondent undertook work on common property. The substantive work involved installing LPG cylinders one of the respondent's exclusive use car parks, including screening and other associated infrastructure. However, the work also included pipework laid across the unallocated common property between Lot 12 and its exclusive use area, and a gas meter/valve box installed on the common property exterior of the building.

• [25] I have discussed in the related application the approvals that would appear to have been required for the applicant to undertake the works in question. In this matter I will only consider the motion that the applicant actually put to the body corporate.
• [26] The text of Motion 11 was as follows:

That the Body Corporate for PRODUCTION AVENUE COM CNTR CTS 52360 resolves to amend the existing exclusive use area and by-laws to permit the Owner of Lot 12 to uitilise one of the car parks allocated to Lot 12 for the storage of gas bottles, and to run gas lines through the concrete slab driveway to connect those gas bottles to Lot 12 (all at the cost of the Owner of Lot 12). The registration fee, the reasonable costs of amending the CMS, and the reasonable costs of documenting the use area to be paid by the Owner of Lot 12.

And that the Body Corporate further authorises the entry into the above Motion by having two Committee members sign one of whom must be the Chairperson or the Secretary.

• [27] The explanatory note submitted by the applicant with AGM Motion 11 included the following information about the proposal:
  1. The owner of Lot 12 requires gas as a utility service for its business operations.
  2. It installed gas bottles in one of its 5 exclusive use car parks.
  3. It has designated an internal car park so 5 car parks remain available for its use.
  4. No other owner is affected the change in car parks.
  5. It has complied with all relevant local authority regulations, obtained necessary permits, met safety standards, and adhered to environmental and operational requirements for the gas bottle installation and associated works, and the installation was performed in a professional manner, retaining the amenity of the scheme.
  6. All supporting documents were given to the body corporate and available for inspection.
  7. The installation did not lead to any increase in insurance premiums for the scheme and if that occurred it would pay the additional costs.
  8. It will be responsible for all repairs, maintenance, or modifications required to the installation and ensure the installation is regularly inspected as required and adheres to safety and legislative requirements.
  9. If it ceases to own Lot 12 or no longer require the installation, it will disconnect and remove the installation and return the exclusive use area to a carpark.
  10. It agrees to meet registration fees and reasonable costs of amending the CMS, including when it ceases to own the property.
• [28] Regardless of the merits of the proposal, in my view there was a fundamental flaw in AGM Motion 11 and the explanatory material.
• [29] Motion 11 said it proposed 'to amend existing exclusive use area and by-laws'. It appears the purpose was to enable the applicant to keep the gas cylinders and associated infrastructure it had installed. However, nothing in the motion or the explanatory note explains how the exclusive use area and by-laws in the current CMS were proposed to be amended.
• [30] It may be the applicant's only intention was to change the purpose of the usage of the exclusive use area (either all or part of area X12 or the entirety of the exclusive use areas at the scheme), so that one of the Lot 12 car spaces could be used for the storage of gas cylinders rather than only car parking. But that is not clear from the material. And if that is the extent of the proposed change, the way in which that intention was to be reflected in the wording of the by-law is not explained.
• [31] Where it is apparent that the installation included pipes traversing the common property driveway between the exclusive use car space and Lot 12, and a gas meter/valve box on the common property exterior of the building, it is unclear if there was some intent to change the boundaries of the existing exclusive use area, or add to it, to encompass that. If there was an intention to alter the extent of common property allocated for the exclusive use of Lot 12, there was no plan or description of any such alteration.
• [32] Given the lack of detail about the proposed changes to the exclusive use area and by-law, I do not consider Motion 11 was a valid motion. While the applicant may have understood how they intended the CMS to be altered, that was not detailed in the AGM notice and so voters were not properly put on notice of it.[18] Moreover, with so little detail, I consider the motion could not have been implemented by the body corporate if it had passed.
• [33] Where I do not consider AGM Motion 11 to be valid, I do not consider I could make orders that would essentially give effect to the motion.

• [34] Notwithstanding my conclusion on the validity of AGM Motion 11, for completeness I will consider the opposition to the motion.
• [35] AGM Motion 11 received 8 votes in favour and 4 votes against. The applicant says the owners who voted against the motion were the committee members who denied the improvement application, along with another owner. The application does not evidence any attempts by the applicant to engage with those dissenting voters or enquire as to the reasons for their dissent. Rather, the applicant appears to have made assumptions as to the dissenters' consideration of the motion and the basis for their opposition. The dissenting voters were not named as affected persons to the application by the applicant and did not make submissions.
• [36] Although the dissenting voters did not make submissions, it remains for the applicant to establish that their dissent was unreasonable.
• [37] The applicant says the votes by the committee members were objectively unreasonable because they did not consider the relevant circumstances, took into account irrelevant circumstances by determining against the expert material provided by the applicant, and did not act in an objective and fair manner in deciding the motion. No evidence is provided to substantiate these assertions.
• [38] Although the applicant clearly objects to the decision of the committee in June 2024 to refuse consent to the improvement application made in April 2024, it has not explicitly sought orders to overturn that decision. Moreover, as outlined in the related application, the committee had no authority to approve the improvement to the exclusive use area as that required a general meeting resolution.[19]
• [39] But even if the committee acted unreasonably in deciding the April 2024 improvement application (which is not substantiated), the applicant has not explained why the refusal of that request rendered the dissent at the AGM to be unreasonable. AGM Motion 11 clearly went beyond the scope of the improvement application put to the committee because it essentially sought to amend (albeit in an unspecified way) the CMS.
• [40] Furthermore, when the committee members voted at the AGM those persons were voting in their capacity as owners, not as committee members. When the committee members decided the improvement application made in April 2024, they were required to act in the best interests of the body corporate.[20] The committee was required to act reasonably in making the decision.[21] But as owners voting at the AGM those persons were entitled to vote in their own interest and not in the interests of the applicant, the body corporate, or other owners.
• [41] In regard to the other dissenting voter, the applicant says the owner voted electronically before the AGM. It says there is no evidence in the minutes that the owner considered the motion or obtained the documents provided by the applicant to the committee in favour of the improvement application or the motion. As such, it says that owner did not consider all relevant circumstances in an objective and fair manner. Again, no evidence is provided to substantiate these assertions.
• [42] Owners are not required to attend a meeting to vote. And whether or not they do, nothing about each voter's consideration of each motion other than their vote would usually be recorded in the minutes.[22] Furthermore, voters should be given enough information in the meeting notice to be able them to understand and vote on a motion without needing to obtain further information from the body corporate or any other source. The fact that the voter in this case did not obtain other documentation from the body corporate cannot rationally be cited as evidence that the voter did not consider the motion or unreasonably opposed it.
• [43] The applicant obviously believes voters should have voted in favour of its proposal. But it has provided no evidence to substantiate its claim that the dissenting owners failed to adequately consider the motion, considered irrelevant matters, or acted unfairly. It has not established that the dissenting voters could not rationally have reached a different conclusion on the information provided to them. It has also not evidenced any ill will or other improper motive by the dissenting voters.
• [44] As outlined, the specific meaning and implementation of Motion 11 was not clearly stated in the motion and explanatory material. The voters may have voted against the motion because of that uncertainty. And given the potential effect of the motion, including the multitude of issues raised by the committee during its communications with the applicant, the applicant has not established that other owners could not have had justifiable concerns about the proposal. At this stage, it has not demonstrated that the opposition to the motion was unreasonable.

• [45] The reasons outlined I do not consider AGM Motion 11 was a valid motion. But even if it was, the applicant has not established that the opposition of the 4 dissenting voters was unreasonable in the circumstances. Accordingly, I have dismissed this application.
• [46] Given that finding, in the related application I have concluded that the applicant has contravened the regulations and the by-laws because the works do not have the requisite approval.[23] However, it is open to the applicant to submit further motions to a general meeting that provides clear detail as to the approvals sought and the proposed changes to the CMS, and that gives voters the information they reasonably require to properly consider the motion.

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

[13] French CJ, Bell J, Keane J and Gordon J in Ainsworth v Albrecht [2016] HCA 40 at 55

[14] French CJ, Bell J, Keane J and Gordon J in Ainsworth v Albrecht [2016] HCA 40 at 58

[15] Ainsworth v Albrecht [2016] HCA 40 at 63

[16] Sections 48C and 49C(4) of the Land Title Act 1994

[17] Recorded 6 February 2019, Titles dealing number 719232710

[18] See for example McGill DCJ in Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300, para 50, regarding proper notice of a general meeting.

[19] Pursuant to section 140(3) of the Commercial Module

[20] Noting item 3 of schedule 1A of the Act

[21] Section 100(5) of the Act

[22] Noting section 75 of the Commercial Module

[23] Production Avenue Commercial Centre [2025] QBCCMCmr 270