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

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

GENERAL MEETING RESOLUTIONS - whether resolutions passed at general meetings should be invalidated - TIME LIMIT - whether there is good reason to waive the time limit applying to part of the application.

Act, ss 94, 242

• [1] This application is about access to scheme land from and associated signage. There has been ongoing debate in the body corporate about whether a gate at the Hoare Street entrance should be kept open or kept locked (with key access) when not in use. The applicants object to general meeting resolutions about the issues. They seek orders to invalidate two resolutions. I will consider whether there is any basis for the orders.

• [2] Regency Gardens community titles scheme 1091 (Regency Gardens) is a 68-lot scheme in Cairns. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building unit plan 70532.
• [3] The application seeks the following orders:

(1) An order that Motion 15 purportedly passed by ordinary resolution at the Annual General Meeting of the Respondent held 23rd April 2025 is invalid and of no effect.

(2) An order that Motion 19th April 2024: Owner Lot 35, by ordinary resolution, install a Map of the Complex at all Entrances: is invalid.[1]

• [4] 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]

• [5] This application was lodged on 18 June 2025.
• [6] The Commissioner's delegate sought clarification from the applicants on some aspects of the application.[4] The application was subsequently amended.[5]
• [7] The Commissioner then invited submissions from the committee, the owner who submitted the disputed motions, and all owners.[6] Two submissions were received opposing the application. The applicant obtained and responded to the submissions.[7]
• [8] The application was referred to department adjudication.[8]
• [9] I have now investigated the dispute, including reviewing the application and submissions.[9]

• [10] Regency Gardens was created on the registration of building units plan 70532 in January 1986. The original address for the scheme was at Hoare Street.
• [11] It appears the main entry to the scheme was originally on Hoare Street, but that there are two other entrances. It also appears that in around 1998 the committee decided to install lockable security gates at the Hoare Street entrance.
• [12] At an annual general meeting (AGM) in 2012 the body corporate defeated a motion (with 6 votes in favour and 21 against) proposing that the Hoare Street gate be opened permanently. It appears there were previous and subsequent requests for the gate to be left open.
• [13] At an AGM on 29 April 2024 the body corporate considered several motions about the Hoare Street gate. It passed Motion 9.2, with 21 votes for and 7 against, that the gate remain locked when not in use. Motion 25 decided that owners be given a new key for the Hoare Street gate, Motion 26 resolved to inform owners on how to request a key, and Motion 27 resolved to keep a register of the keys. The body corporate also considered Motion 29 to accept a quote to install new signs at all three entrances that include a map of each unit location. Motion 29 passed with 19 votes for and 3 against. Motion 29 appears to be the subject of the applicants' second order.
• [14] In June 2024, the committee agreed (at item 6.6) to 'find a resolution for the Hoare Street Gate' with an automatic gate to be investigated and that the CMS be updated to properly implement the use of the gate and ensure enforcement of any by-law. It also discussed (at item 6.9) documentation from the second applicant asserting that certain AGM motions were not valid, and that legal advice received prior to the AGM said they should have been ruled out of order.
• [15] The Hoare Street gate locking mechanism was discussed by the committee in January 2025.
• [16] At the next AGM on 23 April 2025 the body corporate considered Motion 15 that the Hoare Street gate remain locked when not in use. Motion 15 passed with 20 votes for and 9 against. This motion is the subject of the applicants' first order. Motion 16 at the 2025 AGM then considered changing the type of gate but was defeated.

• [17] The applicants assert that the body corporate did not properly resolve to prevent access to the scheme via the Hoare Street gate. They say if carried, 2025 AGM Motion 15 would be a 'house rule' that is not binding or enforceable. They say a special resolution has not been passed and the mechanism to lock and use the gate has not been incorporated into the by-laws. They say the CMS does not refer to the gate installation, key system, or by-laws for use. So, they say there is no legal authority for the body corporate to direct an owner or resident that the gate must be closed and locked after use.
• [18] The applicants argue the gate being closed and denying access is unlawful. They say requests to keep the gate open for longer periods in the best interests of the body corporate are refused by the committee. They further say the gate locking mechanism, with a chain and key, is difficult for some residents to use and some owners do not have keys. The applicants then say the gate closure is unfair to residents who must use an entrance other than their closest entrance. They also claim all break-ins have occurred when the gate is locked.
• [19] In regard to 2024 AGM Motion 29, the applicants say the signs were installed regardless of legal advice which was not tabled at the AGM. They say the signs given opportunistic trespassers instructions on other entrances to enter the property.
• [20] The owner who submitted the disputed motions says when they first purchased, they were reassured by the gate being locked due to their previous experiences. But in December 2023 they found the gate continually left open and later padlocked open. The owner says they raised concerns about the gate in January 2024 and then submitted motions to the 2024 AGM. They contacted the Queensland Fire, Ambulance, and Police Services to learn the procedures when attending an emergency and noted the responses in the explanatory note for Motion 9.2. They said the proposal for signage in Motion 29 arose from advice from the Queensland Fire Department that map signage at the entrance to a complex can be helpful in an emergency.
• [21] The submitter says while legal advice was tabled at a committee meeting in June 2024, there is no record that the engagement of the lawyers was discussed or approved by the committee. They say the second applicant showed strong resistance to implementing the AGM resolutions at a committee meeting in September 2024. They do not believe their motion needed to be recorded in the CMS. Given the events since the 2024 AGM, they felt it was necessary to reaffirm the body corporate position on the gate remaining locked at the 2025 AGM.
• [22] Another owner says the Hoare Street gate has a vehicle and pedestrian gate and every owner can obtain a key that opens both gates. They comment on the use of Hoare Street and the difficulties with using the Hoare Street gate. They say that because the other entrances allow for all necessary vehicle access, the Hoare Street gate became unnecessary. But they say the common property remains accessible by all three entrances and access is not denied.
• [23] The submitter says multiple votes have decided to keep the gate locked when not in use, and motions to keep the gate open have been rejected by the majority. They say it is a reasonable arrangement that has worked for over 20 years. They assert that in emergencies the other entrances provide safer exit points, but the Hoare Street gate can be unlocked and remain open temporarily. They say the purpose of the gate is to prevent unauthorised traffic and that it provides a reasonable and effective deterrent. The submitter disputes that a properly passed resolution needs to be in the by-laws to be valid. They say the legal advice referred to was not authorised by the committee, was based on incomplete information, and is not binding.
• [24] The submitter refutes various other allegations in the application. Most relevantly, they deny the difficulty of using the chain and key. They note the pedestrian gate is at standard height and the chain is simply attached to the lock to prevent it being lost and is not part of the locking mechanism, with the actual locking mechanism able to be operated with one hand. They note that the pool gates require more dexterity to operate. They also reject any suggestion of increased crime associated with the locked gate as absurd and unsupported.

• [25] The question in this application is whether the two disputed resolutions are valid. Resolutions are not invalidated simply because an owner disagrees with them. Rather, the person challenging a resolution must establish a procedural defect in the consideration of the motion, that it was beyond the power of the body corporate to pass the motion, that the body corporate acted unreasonably in passing the motion, or that the resolution was otherwise contrary to law. In this case I will consider the legislative framework relevant to the issues in dispute and then the objections to the particular motions. However, I will first address some preliminary issues.

• [26] It is apparent that there has been interpersonal conflict between individuals at the scheme, including between committee members. Those matters are beyond the scope of this application to determine, and do not appear to be relevant to the legal issues to decide.
• [27] One of the submitters asks that a determination be made on whether the expenditure on the engagement of lawyers was properly authorised. That is not a matter I can determine in the context of deciding the particular orders sought in this application. It is open to any owner to pursue that matter in a separate application if it is unable to be resolved internally.

• [28] The legislation imposes a time limit on certain applications, including those seeking to invalidate a general meeting resolution.[10] 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.[11]
• [29] To the extent that this application challenges Motion 15 as passed at the 2025 AGM, it was lodged just under two months after the meeting as so was within the time limit. But the application to challenge Motion 29 from the 2024 AGM was lodged nearly 14 months after that meeting. It was well out of time. The only explanation for the delay was that the committee was dysfunctional, and it was a stressful year for the applicants.
• [30] The applicants do not explain why any alleged dysfunction in the committee (even if unsubstantiated) or resulting stress prevented them bringing this application in their capacity as owners any earlier. The applicants purport to rely on legal advice that some 2024 AGM motions should have been ruled out of order, which they apparently had access to at the time of the 2024 AGM. Where Motion 29 has since been implemented, with resulting costs to the body corporate, the second order sought would affect the body corporate. Prima facie, there appears to be no good basis to waive the time limit with respect to the second order. However, I will comment on the merits of the claim in the event that it was brought in time.

• [31] The general functions of a body corporate are to administer the common property and body corporate assets for the benefit of the owners of lots in the scheme, enforce the CMS, and carry out other functions given to the body corporate under the Act and CMS.[12] A body corporate has all the powers necessary for carrying out its functions.[13] It must act reasonably in undertaking its functions, including in making or not making a decision.[14]
• [32] Prima facie, a body corporate can make decisions about its functions, including administering the common property. It can, for example, resolve to make improvements to common property.[15] The committee must implement the lawful decisions of the body corporate.[16]
• [33] A committee can also make its own decisions about the administration of the common property, unless it is a restricted issue for the committee.[17] Those restrictions include a decision that would change the rights, privileges, or obligations of owners. The committee must also act reasonably in making decisions.[18]
• [34] In addition to its general power to pass resolutions, a body corporate can resolve to make by-laws.[19] The body corporate can make by-laws for the administration, management and control of the common property and body corporate assets. It can also make by-laws for the regulation of and conditions applying to the use and enjoyment of lots, common property, body corporate assets and services and amenities supplied by the body corporate, and other matters permitted under the Act to be included in by-laws.
• [35] By-laws must be included in a CMS recorded for the scheme. The body corporate usually must pass a resolution without dissent to record a new CMS.[20] However, if a new CMS is only different from the previous CMS because of difference in by-laws other than exclusive use by-laws, only a special resolution is required to approve the new CMS.[21]
• [36] The CMS, including the by-laws recorded in the CMS, is binding on the body corporate, and each owner and occupier.[22]
• [37] It is not uncommon for bodies corporate to set policies or rules (sometimes called 'house rules'), for example regarding the use of common property. Sometimes bodies corporate will have a by-law contemplating the committee setting such rules. House rules can provide useful information or standards to guide harmonious community living. The making of such rules is not inconsistent with or contrary to the legislation. But adjudicators have consistently concluded that such rules do not have the status of a by-law and would not normally be binding or enforceable on owners and occupiers even if they are contemplated in a by-law.[23]

• [38] By Motion 15 the body corporate resolved, as it had resolved by 2024 AGM Motion 9.2, to keep the Hoare Street gate locked when not in use.
• [39] The applicants' primary objection appears to be that the resolution is a house rule that is not binding or enforceable and there is nothing in the by-laws about the gates, keys, or their use.
• [40] The body corporate did not need to include anything in the CMS when it originally decided to install the Hoare Street gate or the locking mechanism on the gate. That was simply an improvement to common property.
• [41] Inherently, I can see no reason why a body corporate could not resolve to lock any or all of its vehicular and pedestrian gates providing all occupiers are given the means to access those gates and doors. It is very common for bodies corporate to do so. Again, I can see no reason why there would need to be a by-law to permit the body corporate to lock a gate.
• [42] The body corporate could resolve to adopt a by-law that owners and occupiers must not leave the Hoare Street gate open when not in use. If it did, the body corporate could pursue by-law enforcement action against any owner or occupier who left the gate open.[24] But the fact that there is currently no such recorded by-law does not mean Motion 15 was not something the body corporate could resolve. Essentially, Motion 15 sets out the agreed position of the body corporate regarding the gate. And the committee must implement the motion. That would mean, for example, that the committee could not act in a manner that is inconsistent with the resolution, such as removing the lock or locking the gate open.
• [43] Clearly the applicants and others would prefer the Hoare Street gate to be left open. The body corporate could certainly choose to do so. But to date the applicants' view has not been adopted by the majority. The applicants have not established that the body corporate must adopt their preference and cannot lawfully decide to keep the gate routinely locked.
• [44] The applicants raise other matters. Although the legal basis for these issues is not explicitly stated, it may be the applicants are suggesting it was not reasonable for the body corporate to decide to pass Motion 15. I will comment on those issues.
• [45] The applicants say the body corporate is unlawfully denying access, that some owners do not have keys, and that some owners cannot use their closest gate. But I have been given no evidence that all owners and occupiers cannot still use the Hoare Street gate. Rather, an owner or occupier just needs a key to use it. If an owner or occupier does not yet have a key, they appear to be readily available from the body corporate on request. There seems to be little inconvenience to unlock a gate. Access is not being restricted or denied.
• [46] The applicants do not substantiate their claim that the locking mechanism is difficult for some residents. If there are genuine concerns, it may be appropriate to modify or replace the locking mechanism to accommodate those needs. But any such difficulty would not of itself mean the body corporate could not reasonably decide to keep the gate routinely locked.
• [47] The applicants also provide no substantiation from their apparent claim that keeping the gate locked has affected or contributed to property crime at the scheme.

• [48] Motion 29 resolved to accept a quote to install new signs at all three entrances with a map of each unit location.
• [49] Although I am somewhat unclear as to the legal basis for the applicants' objection to this resolution, they appear to rely on apparent legal advice that the motion should be ruled out of order. It appears the advice was that if there had been no proper resolution to prevent access to the scheme via the Hoare Street gate, by amending the by-laws, there would be no authority to affix a sign to prevent access to the gate.
• [50] Without seeing the entirety of the legal advice referenced in this application, who it was obtained by, or the instructions provided to solicitors, I cannot comment on the basis for the legal advice purportedly provided. But on its face, I do not agree with it.
• [51] As discussed above, I do not consider the body corporate is denying owner or occupier access to the Hoare Street gate. It is simply requiring access by way of a key. I do not consider a by-law amendment is required for the body corporate to decide to keep the Hoare Street gate locked and only accessible by a key. Moreover, the signage is not itself restricting access to common property. It appears to simply be an improvement to common property by the body corporate to provide information to visitors about the scheme layout and access arrangements.
• [52] The applicants also provide no substantiation of their suggestion that the signage might promote criminal activity.

• [53] The applicants have not established that the disputed resolutions were not within the power of the body corporate to resolve or that the body corporate failed to act reasonably in passing those resolutions. There is no basis to waive the time limit in regard to the second order. In any event, I have dismissed the application in its entirety on merit.

[1] Notwithstanding the wording of this order as stated in the amended application form, it appears from the submitted material that the applicants are disputing Motion 29 as passed at the AGM on 29 April 2025.

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

[11] 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)

[15] Section 186 of the Standard Module

[19] Sections 168 and 169 of the Act, and subject to the limitations in section 180 of the Act

[23] See for example: Ocean Air Apartments [2011] QBCCMCmr 448

[24] See division 4 of chapter 3 of the Act