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

GENERAL MEETING MOTION - whether the body corporate acted unreasonably in resolving a motion to remove combustible cladding and raise special contributions - whether the committee breached its fiduciary duty by not fully or fairly information owners - whether the motion may only resolve where a majority of total lot owners in the scheme vote in favour of the motion.

Act, ss 94(2), 108, 242.

1. The application is dismissed pursuant to section 242 of the Act.

• [1] This application for final orders is brought against the body corporate by a co-owner of Lot 3308 in the scheme. The applicant seeks an order that would void a resolution passed at a general meeting of the body corporate. The resolution proposed the engagement of a contractor to undertake recladding works on one of the buildings at the scheme, as well as raise a special contribution from owners to pay for those works.
• [2] The application for final orders follows an unsuccessful application for interim orders.
• [3] I have dismissed this application for being out of time, pursuant to section 242 of the Act. I have not found that there is good reason to waive this time limit, particularly where I am not satisfied the application would otherwise be successful as:

1. All owners were afforded opportunity to vote on the motion, and a vast majority of those that chose to do so, voted in favour of the motion. The legislation does not support the argument that a motion could not have passed because a majority of all of the total lot owners in the scheme chose not to vote on the motion. 2. The committee did not provide inadequate or misleading meeting material in relation to the disputed motion in circumstances where: 1. There is no evidence that the body corporate has relied on the disputed motion to issue special contributions in the amount of $30,000 to $40,000 per lot. 2. There is no evidence that the body corporate advised owners that it was required by law to remove the cladding. Conversely, there is some evidence that this information was presented at a forum that took place before the meeting. 3. The committee's duty to fully and fairly inform owners did not extend to it needing to circulate views against its proposal. There was no obligation on the committee to tell owners there was no express legislative requirement that the cladding be removed by a certain date.

1. The body corporate did not act unreasonably in its decision to resolve the disputed motion and remove the cladding, particularly where: 1. The cladding was identified in an expert report as a fire hazard likely to have the potential to result in the defeat of one or more aspects of the building's fire strategy. 2. The Department of Housing and Public Works strongly recommends private owners 'rectify their buildings to address the cladding fire risk and make their buildings safe'. 3. It is open to the body corporate to remove the cladding before entering into (or finalising) discussions with the manufacturer, particularly where there is no guarantee that any warranty or financial assistance would be provided. 4. I am not satisfied the body corporate needed to consider the financial position of every lot owner when deciding to remove the hazardous material.

• [4] The scheme is comprised of 131 lots under a building format plan subdivision across five buildings. The community management statement shows the Accommodation Module applies. The scheme is also subject to a layered arrangement, as well as a building management statement.
• [5] The dispute centres around the body corporate's decision to engage a contractor to remove combustible cladding, and replace same with non-combustible cladding, from one of the five buildings within the scheme, referred to as Aquarius.

• [6] In 2017, legislation was passed which banned the use of certain types of claddings on buildings due to fire risk.[1] These cladding materials are generally referred to as 'combustible cladding'. In 2018, further legislation was passed which required certain bodies corporate to identify the type of cladding on their building and take certain other steps if combustible cladding is identified.[2]
• [7] It is not disputed that the body corporate had combustible cladding across all five buildings. This is confirmed in building fire safety risk assessment reports obtained in October 2022.
• [8] The body corporate says it seeks to mitigate fire risk by removing combustible elements from its buildings and follow the Queensland Government's recommendation to 'rectify their buildings to address the cladding fire risk and make their buildings safe'.[3]
• [9] One of the buildings, referred to as Brizo, had minor works undertaken to remove the minor amounts of combustible cladding. This left four of the five buildings with combustible cladding.
• [10] The body corporate's attention then turned to another of the five buildings, referred to as Aquarius. The body corporate says that Aquarius was identified as the worst affected building with vertical runs of 100% polystyrene cladding, most of which is situated around fire exits.

• [11] The body corporate held its annual general meeting on 22 October 2024 (October 2024 AGM), where it passed the following motion (Motion 11.1):

11. Recladding Works to Building A (Aquarius) > > 11.1 Lennox Facades (committee preferred) > > That the Body Corporate resolves to engage Lennox Façade to undertake Recladding Works to Building A (Aquarius) in accordance with quotation #QU01202 dated 8 August 2024 in the amount of $745,642.70 (GST exclusive) as circulated with this notice and agenda. > > It is further resolved that pursuant to the Body Corporate and Community Management (Accommodation Module) Regulation 2008, the body corporate raise a Building Improvement Special Levy of $761,302.00 Gross (being $5.07183 per unit of entitlement), in accordance with the "Special Levy Calculation Worksheet - Lennox Facades" and that the contributions in respect to the special levy shall be due & payable as follows:

• [12] The motion was listed on the agenda as a group of same issue motion, as there was an alternative proposed. Motion 11.1 was the decision of the body corporate with 42 yes, 3 no and 1 abstention vote.

As of the AGM Meeting held on the 22nd October 2025, Motion 11. An order declaring that a resolution purportedly passed at a meeting of the committee for the Body Corporate, or a general meeting of the Body Corporate was, at all times void.

• [14] There appears to be a common understanding that the above order related to the resolved Motion 11.1 of the October 2024 AGM.

• [15] The applicant previously sought interim relief, that would have stopped the body corporate from acting on the disputed motion. In Salacia Apartments One [2025] QBCCMCmr 83, I dismissed the application for interim orders, as:
  1. The application was made outside of the legislated timeframe for challenging resolutions of the body corporate, and based on the material in front of me at the time, there did not appear there is good reason to waive compliance with that time limit.
  2. On my preliminary review, the application did not appear to raise a serious legal question, and appeared to have little prospect of success in obtaining final orders.
  3. Even if I was satisfied that the applicant had raised a serious legal question, the balance of convenience did not justify the interim relief where contractors are already engaged and a deposit had been paid.

• [16] The applicant says that:
  1. Only a minority of owners voted in favour of Motion 11.1.
     1. The committee has 'been far from honest' and has 'withheld vital information' from owners. Namely, that there is no express legislative deadline to remove the combustible cladding.
     2. Owners were not made aware that there was going to be a special levy of $30,000-$40,000 as a result of resolving Motion 11.1.
     3. The body corporate has acted unreasonably in resolving Motion 11.1, due to the above circumstances.

• [17] The body corporate opposes the application and submits that it should be dismissed, as:
  1. The Applicant has not made the application within the time limit, and provides no 'good reason' for the delay.
     1. Motion 11.1 was validly resolved at a general meeting.
  2. The body corporate informed all lot owners of their repair and maintenance obligations to facilitate building improvements to Aquarius.
  3. The work is for the repair, maintenance and improvement of common property and the body corporate has a statutory obligation to undertake such works.
  4. The works are appropriate and essential for the structural soundness, safety, and insurability of the scheme land.

• [18] The owners (or their representatives) of 30 lots made submissions. The owners of 23 lots supported the application. These submissions largely repeat the reasons advanced in the application, in particular the concern that the Motion 11.1 had the effect of raising a special contribution in the amount of $30,000 - $40,000 per lot.
• [19] An additional ground, which was not expressed in the application, is the position that the cladding may be covered by warranty. Submissions indicate there were discussions with the manufacturer of the cladding, and a request for reimbursement or financial assistance. Some lot owners feel those options should have been explored before Motion 11.1 was resolved. The respondent body corporate has not been on notice of this argument. Typically, I would invite the body corporate to comment on same. However, I have not found that necessary where those arguments have not swayed my decision.

• [20] Pursuant to section 242 of the Act, an application seeking to declare a resolution of the body corporate void must be made within 3 months of the resolution passing. The application has been made approximately 2 weeks outside of this time limit. However, the legislation also provides that I may waive compliance with the time limit for 'good reason'.[4]
• [21] The onus on the applicant to satisfy me that there is good reason to waive the time limit. When deciding whether there is good reason to waive the time limit, I should balance 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.[5]
• [22] The applicant says the reason for delay is that they experienced difficulties in obtaining relevant information, they encountered unforeseen circumstances, technical issues, miscommunication and had 'personal discussions with lot owners'. At the interim stage, my preliminary view was that the applicant had not provided good reason for me to waive non-compliance.[6]
• [23] While the delay of two weeks may be seen as insubstantial to some, the legislation afforded the applicant a generous 3 months to dispute the resolution. The timeframe is important for bodies corporate as it provides some assurance that motions can be acted upon with limited risk of challenge after 3 months. The vague reasons for the delay are unmoving.
• [24] I note the delay may have impacts on the body corporate. The body corporate says it has acted on Motion 11.1 and now has contractual obligations with a third party.
• [25] However and ultimately, whether there is good reason to waive the time limit also requires me to consider the merits of the application itself, by determining whether the applicant would otherwise be entitled to the relief. I will therefore proceed to consider the merits of the application.

• [26] The applicant argues that Motion 11.1 could not authorise works or a special contribution, as only the representatives of 43 lots voted in favour of the motion, when there are 131 lots in the scheme.
• [27] While I understand the applicant's argument, I am not satisfied this justifies the order sought. The legislation does not direct that a majority of the total of lots within the scheme needed to vote in favour of the motion. Rather it was required that (amongst other things):
  1. Owners be given at least 21 days' notice of the meeting.[7]
  2. The motion was listed as a group of same issue motions,[8] as there were 2 motions proposing alternative ways of dealing with the same issue.
  3. The motion 'qualified' by receiving the required number of votes to pass.[9] An ordinary resolution only requires that the votes for the motion are more than the votes counted against the motion.[10]
  4. The motion either be the only motion to qualify, or if not, is the decision of the body corporate based on the requirements set out in subjections (6)-(8) of section 79 of the Accommodation Module.
• [28] The applicant has not disputed that owners did not receive 21 days' notice, nor argued that a different type of resolution other than an ordinary resolution was required for Motion 11.1. I am satisfied Motion 11.1 validly passed, according to the above criteria.
• [29] I note some submissions from lot owners state that there was no ability between Motions 11.1 and Motion 11.2 to not engage a contractor for the works. The submission seems to imply that the body corporate had an obligation to place a motion on the agenda to not undertake the works. This is a misguided position. It was open to voters to vote against proceeding with any works by voting no to both Motion 11.1 and 11.2.
• [30] Ultimately, all lot owners were invited to vote, only 45 lot owners chose to do so, and a vast majority of those lot owners voted in favour of Motion 11.1. Therefore, I am not satisfied that the final order sought is justified on this basis.

• [31] While I am not satisfied by the argument that the Motion 11.1 could not have passed where a majority of the total number of owners did not vote in favour of it, there may still be an argument as to whether voters were properly informed ahead of the vote.
• [32] The applicant argues that owners were misled by the committee and that the committee withheld vital information from owners. Namely, that the committee did not inform owners that the legislation specifically dealing with combustible cladding does not require its removal by a particular date, nor that the Motion 11.1 would result in special contributions of around $30,000 - $40,000 per lot.
• [33] As I noted in my interim order, the committee has a fiduciary duty to provide information that fully and fairly informs and instructs members on what is proposed to be done regarding motions at a general meeting.[11] Inaccurate, inadequate or misleading material may also void a resolution, on the basis that there was no proper notice.[12] Proper notice is important, as it can impact a member's decision as to whether they will attend or vote at the meeting at all.[13]
• [34] However, this duty does not mean that the committee needs to provide meticulously precise notes or give 'balanced' information by circulating views against its proposal.[14] It is also possible for owners to have sufficient background knowledge of the situation to make an informed decision, and there can be no criticism of the committee if that is the case.[15]
• [35] I am not satisfied the applicant's arguments justify the final order sought, as:
  1. There is no evidence the body corporate is relying on Motion 11.1 to raise special contributions in the amount of $30,000 to $40,000 from each lot. The notice of contributions the applicant has provided for their lot shows an amount of $5,761.60, which is inline with Motion 11.1.
  2. There is no evidence the body corporate advised owners that the removal of the combustible cladding was mandatory. Rather, it circulated relevant information on why it would be desirable.
  3. As the committee's fiduciary duty does not extend to circulating views against its proposal nor giving balanced information, there can be no criticism of the committee for not expressly stating in writing to all owners that the legislation has not mandated that cladding be removed by a particular date.
  4. The body corporate facilitated several opportunities for lot owners to be more informed regarding the proposal, including discussions with relevant consultants.
  5. There is evidence that some owners were, in fact, informed. One owner who supports the application acknowledged in submissions that they attended a presentation and discussion with the body corporate's expert consultant, organised by the body corporate some weeks prior to the October 2024 AGM. This owner acknowledged the consultant advised that there was no legislated deadline for the body corporate to remove the cladding.

• [36] While I am not satisfied that the committee had failed to convey the meaning and effect of Motion 11.1, there still remains an argument that the body corporate failed to act reasonably in passing the motion.
• [37] As mentioned in my interim decision, the body corporate must act reasonably, including when making decisions.[16] The term 'reasonably' is used in its ordinary sense.[17] Acting reasonably in decision making involves the body corporate considering the facts and circumstances that tend to have a rational bearing on the issue and disregarding irrelevant ones.[18]
• [38] Importantly, when acting reasonably, there may be more than one decision that could be made on the same set of facts.[19] This can make it difficult for an applicant to infer unreasonableness. The question is not whether there was a better alternative, as an applicant may suggest. Rather, the applicant's task is to evidence that the body corporate's conclusion could not be reasonably reached at all.
• [39] Where it is argued that the body corporate has failed to act reasonably in a decision, an adjudicator's role is to firstly assess the decision-making process and whether the body corporate has failed to consider any relevant factors or relied on irrelevant factors.
• [40] If there is no defect in that decision making process, the decision of the body corporate will stand unless an adjudicator is satisfied that the outcome of the decision is legally unreasonable. A legally unreasonable decision is one that is not conflicted, arbitrary, absurd or plainly unjust.[20]
• [41] Arguments raised that imply the body corporate has acted unreasonably include that:
  1. It is not mandatory to remove the cladding.

1. There may be the ability to raise funds for the works through warranty or agreement with the manufacturer of the combustible cladding, and this should have been explored before passing Motion 11.1.
2. There are owners in the scheme that cannot afford the special contribution.

• [42] I acknowledge the body corporate's submission that the removal of the cladding is in line with the body corporate's statutory duty to maintain common property pursuant to section 170 of the Accommodation Module. Whether the body corporate has an obligation to remove the cladding under this section largely turns on whether the works can be categorised as maintenance, as opposed to improvement works to common property. The delineation is not always so straightforward, and the body corporate has not made clear submission on this point, and refers to the works as both maintenance and improvement works. However, and in any event, I do not find it necessary to determine this line of argument as I find it is reasonably open for the body corporate to undertake works, regardless of whether it is compelled to do so under section 170 of the Accommodation Module, for the reasons that follow.
• [43] First, I am not satisfied that the fact cladding removal is not mandatory is such a relevant consideration that the body corporate could then only reasonably refuse to remove it. Rather, it is reasonably open to the body corporate to decide to remove it in circumstances where where a Building Fire Safety Risk Assessment report for the building Aquarius, prepared by Safer Buildings Group, states, amongst other things:
  1. The fire hazard is high.
  2. There is a risk to the failure of the fire strategy.
  3. Parts of the cladding are very likely to obstruct the only pathways for occupant evacuation in case of a fire.
  4. It is recommended the cladding be removed.
• [44] Second, while there may be ability to raise funds for the removal through warranty or manufacturer agreement, I do not consider this to be such a relevant consideration that the body corporate could not reasonably proceed with removal. It is reasonably open to the body corporate to proceed with removal, and to enter into those financing discussions and agreements after or during removal, particularly where it is not guaranteed that any agreement would be reached, and the matter is a fire hazard.
• [45] Third, the applicant provides no evidence of financial hardship. Although, I note there are submissions from owners who claim the contribution will negatively impact them. Nevertheless, I am not satisfied that the body corporate needed to consider the financial position of every owner in the scheme, particularly in circumstances where the works are to remove an identified fire hazard. Again, I am satisfied it was reasonably open to the body corporate to decide to resolve Motion 11.1 in the circumstances.

• [46] I am not satisfied that there is good reason to waive compliance with the timeframe for lodging this dispute, pursuant to section 242 of the Act and will dismiss the application on this basis. In doing so, I have found that there is no good reason to waive the time limit as the application would be unsuccessful in any event.

[1] Building and Construction Legislation (Non-conforming Building Products - Chain of Responsibility and Other Matters) Amendment Act 2017 (Qld).

[2] Building and Other Legislation (Cladding) Amendment Regulation 2018 (Qld).

[3] Queensland Government, Department of Housing and Public Works webpage 'Managing combustible cladding in Queensland' https://www.housing.qld.gov.au/initiatives/safer-buildings/managing-combustible-cladding-in-queensland. A copy of this webpage is relied on by the applicant.

[6] Salacia Apartments One [2025] QBCCMCmr 83 at [26].

[11] Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300 at [56].

[12] Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300 at [50]; Gold Coast Apartment Management P/L v Price [2017] QCATA 99 at [60].

[13] Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 at [465] as cited in Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300 at [61].

[14] Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300 at [63-64], citing Campbell v Australia Mutual Provident Society (1908) 24 TLR 62 and Fraser v NRMA Holdings Ltd (1995) 55 FCR 452.

[15] See Scholer Pty Ltd as Trustee v Gowland and Anor [2021] QCATA 119 at [44]; Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300 at [26].

[17] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [23], Carmody J refers to s 32 of the Acts Interpretation Act 1954.

[18] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [42].

[19] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [47] citing Woden Valley Glass v Psaila (1993) 122 ALR 378, 391.

[20] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [34].