Solaya [2025] QBCCMCmr 118 (3 April 2025)

GENERL MEETING - AUTHORITY TO SUBMIT A MOTION - GENERAL MEETING VOTING PROCEDURE - SHOW OF HANDS - ADJUDICATOR INVESTIGATION POWER - COSTS

The applicant lot owners allege a general meeting motion was invalidly submitted by an occupier and then resubmitted at the meeting by another person without due notice. They also allege the recorded vote tally, determined by a show of hands, is incorrect because the meeting chair recorded yes votes without expressly calling for them. They request an order invalidating the resolution. A person who attended the meeting has an audio recording of the vote but declines the adjudicator's request to provide a copy. The applicants seek an order for costs pursuant to the Queensland Civil and Administrative Tribunal Act 2009.

- whether non-compliance with general meeting motion submission procedures should invalidate a resolution

- whether a failure to expressly call for a show of hands invalidates a vote

- whether the adjudicator's investigation powers extend to requiring an ordinary person to produce a record

Body Corporate and Community Management Act 1997, ss 104, 271

Body Corporate and Community Management (Standard Module) Regulation 2020, ss 86, 104, 107

2. Within 7 days of being informed by the payee of a suitable mode of payment, the applicants must pay to Joanne Bergamin the amount of $2,000.00, as costs pursuant to section 270(3) of the Body Corporate and Community Management Act 1997 (Qld).

• [1] This is an application by the owners of lot 7 (applicants) to challenge the validity of a purported body corporate general meeting resolution and the minutes recording the result.
• [2] The minutes of the 25 October 2024 annual general meeting (AGM) for Solaya CTS 31654 show that motion 10, to approve the installation of a doorbell camera on common property near the front door of lot 8, was passed by 4 votes in favour to 2 against.
• [3] The applicants say the resolution should be invalidated for 2 reasons. First, they say motion 10 was improperly included on the agenda and therefore should never have been the subject of a vote. Second, they say the recorded result of the vote on motion 10, which was conducted by a show of hands, is incorrect because, while there was a call for no votes, there was no explicit call for yes votes to be indicated, and accordingly the number of yes votes should have been recorded in the minutes as zero and the motion declared as defeated.
• [4] On 24 October 2024, I dismissed the application for an interim order that the motion be removed from the AGM agenda or, if it is considered and passed, that it not be given effect until a final determination of the matter.[1]

• [5] The applicants' amended application was not clear as to the requested outcomes and grounds. I therefore conveyed my understanding of the requested outcomes and grounds to the applicants, for them to confirm or correct. I said in my letter:[2]

.... it is not clear to me what outcomes you seek from the application.

I note you seek a 'review' and that the adjudicator 'ascertain' certain things about AGM motion 10, but these are not outcomes in themselves. I infer that you ultimately seek:

(a) a declaration that AGM motion 10 was not in fact passed, on the grounds that (you say):

(i) the motion was improperly put to the meeting, and/or

(ii) the vote was 2 votes against and none in favour, and

(b) a declaration that the minutes reflect accordingly.

I also understand that you do not press any other grounds.

• [6] The applicants responded (by email later the same day): 'You are correct, the only issues now before you are as summarised in your letter'.
• [7] In respect of motion 10, the AGM minutes record:

10. Security Camera Doorbell - Motion by Ordinary Resolution Proposed by J Bergamin of Lot 8

Mr Lee of Lot 7 requested that this Motion be withdrawn.

Mr Lee had lodged an interim application with the Office of the Commissioner for the Body Corporate and Community Management to have this Motion removed from the Annual General Meeting Agenda, noting that the Office of the Commissioner for the Body Corporate and Community Management advised that the application for an interim order was dismissed (Adjudicator's Order 1022-2024 dated 24 October 2024).

RESOLVED THAT permission be granted to place a camera doorbell on Common Property next to Unit 8 front door, on the third floor.

• [8] The minutes record that votes were taken from the floor from representatives of 6 lots:
  1. lot 2, Roy and Kay Townsend
  2. lot 3 , Argiro (Sylvia) Roussos
  3. lot 5, Neale White
  4. lot 7, the applicants
  5. lot 8, Elizabeth Ford, also recorded as the corporate owner's nominee, and
  6. lot 9, Gregory and Deborah Kilmister
• [9] The minutes also record that Joanne Bergamin of lot 8, Alex Roussos of lot 3, and Kate Rawnsley of the body corporate management firm attended.

• [10] The application, as originally made, challenged the installation of the camera on grounds concerning the reasonableness and appropriateness of it being approved given the effect that may have on the applicants' privacy and a related court proceeding. Those concerns are no longer pressed by the applicants. Accordingly, I will not set out or consider the submissions made by the applicant and other parties except where they are relevant to the final form of the application.
• [11] The applicants say:

1. At the AGM, the applicants objected to motion 10 because its proposer, Joanne Bergamin, was not authorised to put a motion because she was an occupier and not an owner. 2. Motion 10 was then withdrawn and a new motion 10 on the same terms was put up by Liz Ford, director of the corporate owner of lot 8. The applicants objected to that, because:

(i) there was not adequate notice of it being put on the agenda, and > > (ii) the chair had not declared any proxies or authorisations as required by section 113 of the Standard Module, and therefore Liz Ford had no standing to propose the motion.

1. The chair overruled that objection and proceeded to put the motion.

1. After the motion was put, and after some debate, the chair called for a vote and asked for votes against. The applicants and Neil White of lot 5 noted no. The chair did not then call for yes votes, but proceeded to declare the motion passed. 2. Mr Lee immediately emailed those present to note his understanding of the facts concerning the conduct of the vote and requested anyone who disagreed with him to respond. No response was received from any person indicating a contrary recollection of events. The responses from the secretary and chairperson were evasive and did not address the issues. 3. The body corporate manager then prepared inaccurate minutes concerning the vote.

• [12] There is no submission from Neale White of lot 5, who also voted against motion 10.
• [13] Colin Mander of lot 4 makes a brief submission (relevantly) to the effect that he was not present at the meeting and therefore cannot comment.
• [14] Regarding the vote, the elected committee secretary and owner of lot 9, Greg Kilmister simply says: 'it was supported by the majority of unit owners.'
• [15] Kay Townsend, the elected committee chair and treasurer and co-owner of lot 2, says of the motion being put:

Ms Bergman was nominated as a company nominee when she moved in and nominated by Mr & Mrs Ford and it is my belief that this nominee still stands which [the body corporate manager] SSKB assures me it does.

• [16] Regarding the vote on motion 10, Mrs Townsend confirms the applicants and Mr White voted no and says: 'the rest of the meeting voted yes myself included'.
• [17] Joanne Bergamin, the then occupier of lot 8, and the original motion 10 submitter, says:
  1. Surfcloud Pty Ltd, of which her parents Michael and Elizabeth Ford are directors, is the owner of lot 8, and she is the lot occupier[3] and their valid nominee on the body corporate committee.
  2. While she was ineligible to submit Motion 10 as the occupier of Lot 8, she was also the nominee of Surfcloud. As the company nominee, she was eligible to submit Motion 10 on behalf of the owner of Lot 8. However, Elizabeth is listed as the company nominee for Lot 8 in the Minutes, while she was listed as being in attendance. This is largely due to Peter Lee continually interrupting the meeting and demanding the motion be withdrawn on various grounds and then demanding that Elizabeth make the motion instead of her. Those present were all trying to placate Mr Lee, since, as lay people, they were uncertain about the law. They were simply trying to uphold correct procedure to the best of their ability.
  3. It is alleged that only 'no' votes were recorded, with the assumption that the balance votes were 'yes' when they could have been 'abstain'. However, the applicants have not put on any evidence that any of the 'yes' votes were actually 'abstain' votes. To change the outcome on Motion 10, two of the 'yes' votes would have to be 'abstain' votes. There is no evidence of that.
• [18] Sylvia Roussos, of lot 3, relevantly says 'I vote yes' in respect of motion 10.

• [19] The applicants' case turns on questions of procedural compliance in the conduct of the meeting and vote. At the outset, I note that, if in fact there is procedural non-compliance, courts, tribunals and adjudicators have long recognised that a misstep by a body corporate along the way to an exercise of a function or power does not necessarily invalidate its actions or the outcomes.[4] The focus must be on the purposes of the legislation and the consequences of holding an act to be invalid.[5] A practical and realistic approach should be taken in determining the consequences of errors,[6] avoiding unnecessary disputes and allowing bodies corporate to get on with their governance.[7] Power is vested in adjudicators to validate irregular acts even where the non-compliance appears to be substantial, if its effect is not.[8] It is perhaps trite to say, but worth noting, that the ultimate purpose of voting is to ascertain the will of owners who wish to vote and, where possible and reasonable, to implement their wishes.[9]

• [20] The applicants complain that motion 10 was initially submitted by a person not allowed to submit a motion, because they were only an occupier, and then, when the same motion was proposed by a different person at the meeting, that it was not proposed with sufficient notice. By the time of their reply submissions, the applicants seem to have dropped this ground, as they say: 'However, these comments [concerning privacy] are largely irrelevant to the decision you must reach today i.e. whether or not the approval was actually passed.' Regardless, for completeness, I will address the issue.
• [21] The meeting agenda papers show motion 10 was proposed by Ms Bergamin. It is correct for the applicants to say that a mere occupier may not submit a motion for a general meeting but, as will be discussed below, that does not determine the matter in this case.
• [22] In the materials before me is a copy of a nomination form by which Surfcloud Pty Ltd, owner of lot 8, nominated Elizabeth Ford and Ms Bergamin for voting purposes. The applicants question its validity because it is not signed and dated on the company's behalf, but they do not explain with reference to any legislation or caselaw the relevance of that complaint to the question of whether motion 10 was properly submitted.
• [23] Section 86 of the Standard Module is a comprehensive set of provisions governing the submission of general meeting motions. It provides:

(1) A motion for consideration at a general meeting of the body corporate may be submitted at any time by -

(2) Subsection (3) only applies in relation to the first annual general meeting of a body corporate.

(3) If a motion is submitted by a member of the body corporate before the first annual general meeting, it must be included on the general meeting agenda if it is practicable to include the motion.

(4) Subsections (5) to (8) apply in relation to all other general meetings of a body corporate.

(5) If a motion is submitted, including by a member of the body corporate in response to an invitation under subsection (8) , it must, subject to subsections (6) and (7) , be included on the next general meeting agenda on which it is practicable to include the motion.

(6) A motion submitted by a member of the body corporate may be included on the agenda for an annual general meeting only if the secretary receives the motion before the end of the body corporate's financial year immediately preceding the meeting.

(7) However, a motion of a following type must not be included on the agenda for a general meeting if the motion's inclusion would result in the body corporate considering a motion of that type more than once in a financial year for the body corporate -

(a) a motion proposing that a regulation module be applied to the community titles scheme that is different from the regulation module identified in the scheme's community management statement;

(b) a motion proposing that the remuneration paid to a particular service contractor be changed;

(c) a motion proposing that the engagement of a person as a service contractor, or the authorisation of a person as a letting agent, be amended if, as a result of the amendment, the engagement or authorisation would include a right or option of extension or renewal.

(8) If a notice is forwarded to members of the body corporate inviting nominations for committee member positions to be filled at an annual general meeting of the body corporate, the members must also be invited to submit motions for inclusion on the agenda for the meeting.

• [24] Subsection 86(1)(a) of the Standard Module provides, without any qualification, that a motion may be submitted by a member of the body corporate. Obviously, a member that is a corporate owner can only act through a natural person, but there is no mention of who that natural person may or may not be. Section 101 of the Standard Module requires a company nominee to be registered on the body corporate roll for the purposes of voting, but I cannot see any similar requirement for the purpose of submitting motions. It therefore seems that any person can submit a motion for a general meeting on behalf of a corporate owner. Of course, they must be authorised by the company to do that, but in my view that question of authorisation is a matter between the company and the person who submits the motion; ie, neither has to prove to the body corporate's or another owner's satisfaction that they are formally nominated to do so.[10]
• [25] The agenda should have more accurately stated that the motion was submitted by the owner of lot 8 rather than 'J Bergamin of lot 8'[11] but it is quite clear the motion was in substance proposed for the benefit of lot 8. The non-compliance in that regard is insubstantial.
• [26] While subsection 86(1)(a) says the motion may be submitted at any time, I note that, for the purpose of including it on an agenda for an AGM, a timing requirement is imposed by subsection 86(6). I do not know when motion 10 was first submitted but in any event the applicants do not complain that they had insufficient notice of the motion in the form proposed by Ms Bergamin, as it appeared on the agenda. I also note that their interim order application - to remove motion 10, or restrain its implementation if passed - concerned nuisance and privacy issues and another proceeding supposedly on foot in the District Court, but they did not object to the validly of the motion's submission. The voted-on motion was always about the installation of the camera doorbell for the benefit of lot 8, and at all times was submitted by someone authorised to submit it. It was only the name of the motion proposer which changed. The applicants' reply submissions complain at some length of the 'oppressive majority' of other owners apparently being intent on doing them an injustice. I cannot see any substance in that. The applicants do not point to any real prejudice to their interests by the late change. The change came about only because the applicants were misinformed about the law and the facts concerning Ms Bergamin's authority to submit motion 10. Any complaint by the applicants about the late change is in my view highly disingenuous.
• [27] I am not satisfied it is appropriate to invalidate the resolution on the basis of the motion not being submitted in strict compliance with the legislation.

• [28] The applicants complain that the vote on motion 10 was conducted improperly. The following provisions are relevant to their application.
• [29] Section 104 of the Act relevantly provides:

(1) The body corporate for a community titles scheme (scheme A) must -

(a) hold meetings of the types, and for the purposes, prescribed under the regulation module applying to scheme A; and

(i) in the way prescribed under the regulation module; and

(ii) to the extent the regulation module does not prescribe the way to conduct meetings - in the way decided by the body corporate.

• [30] Section 104 of the Standard Module provides:

A voter for a general meeting may vote on a motion, other than a motion to be decided by secret ballot, in any of the following ways -

(c) by casting a hard copy vote under section 105 ;

(d) by casting an electronic vote under section 106.

• [31] Section 107 of the Standard Module relevantly provides:

(1) Voting at a general meeting must be done in the way provided in this section unless the body corporate decides by special resolution that voting is to be done in another way.

(2) Voting by persons present at a general meeting must be by show of hands, if applicable, by electronic means, or by giving a completed hard copy or electronic vote to the secretary or, if the secretary is not present, the person chairing the meeting either -

• [32] There is no dispute that, in this case, voting by those present at the meeting required a show of hands. It is also not disputed that there were 2 no votes on motion 10, indicated by a show of hands. The only factual dispute is whether the other 4 voters present at the AGM voted yes, as declared to be the result and recorded in the minutes.
• [33] The issues for me to decide are firstly: what were the voter's intentions on motion 10; and, if (as the applicants say) the voting procedure was non-compliant, what orders should be made about that.

• [34] I will firstly comment on the unavailability of certain evidence. Ms Bergamin said in her submission that she has an audio recording of the meeting, including the voting on motion 10, and the applicants urged me to require it to be produced to me. I requested it from Ms Bergamin, but she now declines to provide it.
• [35] Mrs Townsend informs me that the recording referred to in her submission is Ms Bergamin's, which she has heard but does not possess. The body corporate manager, Kate Rawnsley, informs me that, contrary to Mr Lee's assertion, she neither possesses nor has heard the recording.
• [36] I have considered whether I could compel Ms Bergamin to produce the recording, but I am not satisfied that an adjudicator's investigation powers extend that far, for the following reasons.
• [37] Section 271 of the Act relevantly provides:

(1) When investigating the application, the adjudicator may do all or any of the following -

(a) require a party to the application, an affected person, the body corporate or someone else the adjudicator considers may be able to help resolve issues raised by the application -

(i) to obtain, and give to the adjudicator, a report or other information; or

(ii) to be present to be interviewed, after reasonable notice is given of the time and place of interview; or

(iii) to give information in the form of a statutory declaration;

(b) require a body corporate manager, service contractor or letting agent who is a party to the application or an affected person to give to the adjudicator a record held by the person and relating to a dispute about a service provided by the person;

(c) invite persons the adjudicator considers may be able to help resolve issues raised by the application to make written submissions to the adjudicator within a stated time;

(i) a body corporate asset or record or other document of the body corporate; or

(ii) common property (including common property the subject of an exclusive use by-law); or

(iii) a lot included in the community titles scheme concerned.

(5) The body corporate or someone else who has access to the body corporate's records must, as requested by an adjudicator and without payment of a fee, do either or both of the following -

(a) allow the adjudicator access to the records within 24 hours after the request is made;

(b) in accordance with the request, give the adjudicator copies of the records or allow the adjudicator to make the copies.

(6) A person who fails to comply with a requirement under subsection (1)(a) or (b), or obstructs an adjudicator in the conduct of an investigation under this part, commits an offence unless the person has a reasonable excuse.

(7) It is a reasonable excuse for a person not to comply with a requirement mentioned in subsection (6) to give information or a document, if giving the information or document might tend to incriminate the person.

• [38] The audio recording is obviously a record. Subsection 271(1)(b) is the first of the listed circumstances which explicitly applies to records. It is also explicitly limited in reach as to the type of record and who holds it. It applies only to records held by a body corporate manager, service contractor or letting agent who is a party or affected person in the application and only to records relating to a dispute about a service provided by the person. To illustrate the limit of the subsection's reach, I note that, if Ms Bergamin's recording were held by, for example, a caretaker for the scheme, I could not compel it from them because they would not be a party or affected person in the application and it would not be related to a dispute about a service provided by them. Ms Bergamin's recording is a record, but it otherwise satisfies none of the other criteria.
• [39] Subsections 271(1)(d) and 271(5) also fit the circumstances, insofar as they explicitly apply to records, and also documents (noting that something could be both). However, those provisions are also explicitly limited as to the type of record and who possess it - only the body corporate's records or documents held by it. Ms Bergamin, who made and solely possesses the recording, is not a body corporate officer and so the recording is not a body corporate record,[12] nor is it a document held by the body corporate. Rather, it is her personal property.
• [40] I have also considered whether records of this nature can be caught by subsection 271(i)(a)(i). It applies to any person who may be able to help resolve issues raised by the application, and Ms Bergamin is such a person. The section empowers me to require the person to 'obtain, and give to the adjudicator, a report or other information', and the example given for that section is an engineering report. However, I consider it would stretch the ordinary meaning of those words to characterise an existing audio recording which Ms Bergamin possesses as 'a report or other information' which she would 'obtain'. Rather, in my view, the power is directed to things like the given example, an engineering report to be requested and obtained from someone else.
• [41] If subsection 271(i)(a)(i) were intended, by implication, to empower an adjudicator to require any person to hand over any relevant record or document held by them, it would surely be expressed in language clearly bringing that within scope. Applying this subsection to these circumstances would, as I said, stretch the ordinary meanings of its language. Further, applying subsection 271(i)(a)(i) as if it applied without limitation to records and documents (other than as described in the subsection) would ignore the clear limits on the powers of compulsion in the other provisions, discussed above, which expressly apply to records and documents. It is a well-settled principle of statutory interpretation that the meaning of words must be derived from the legislative context in which those words appear.[13] Comparison to the powers possessed by other agencies is also instructive. By contrast, for example, the ACCC's investigation power[14] is clearly expressed to encompass any type of relevant information or document held by any person, without any qualifying words like 'report' or 'obtain'. If an adjudicator's power were intended to be as broad as that, in my view it would have been expressed as such.
• [42] I note also there are serious consequences for non-compliance with a demand to produce a record - it is an offence punishable by a substantial penalty. That further suggests to me that the power must be exercised judiciously, not expansively or casually.
• [43] In light of that, I consider that the power pursuant section 271 of the Act to compel the production of a record or document other than a report to be obtained from another person has strictly limited reach, as set out in subsections 271(1)(b), 271(1)(d) and 271(5). It is also clear that those provisions do not apply to this audio recording insofar as it is held by Ms Bergamin.
• [44] I do not think this is an instance where I may draw any inferences (adverse or otherwise) from Ms Bergamin declining to provide potentially relevant evidence.[15]
• [45] In any event, for reasons which will become apparent below, I consider it suitable to proceed to a determination on the available evidence.

• [46] It is clear that the purported yes-voters are the representatives of the lots who were present, except the applicants and Mr White. All of those persons have made a submission and none says they wished to vote no or abstain. Mrs Roussos said in her submission 'I vote yes', and the applicants choose to characterise her use of the present tense as evidence that there was no vote conducted at the meeting and she has decided to vote yes only after the event. In any event, they do not dispute that Mrs Roussos supports the motion passing.
• [47] The applicants' own submissions acknowledge the majority wanted the motion to pass. They also acknowledge that, after the meeting concluded, a number of those present went upstairs to inspect the camera and discuss its location and orientation. The applicants say this is evidence that no agreement had been reached at the meeting about the location or position of the camera. That may be so, but equally in my view it is evidence that those persons considered the motion had been passed to approve the installation. The motion did not ever specify a very precise location but I consider that the resolution 'to place a camera doorbell on Common Property next to Unit 8 front door' was both sufficiently specific and flexible enough as to the precise location, and accordingly I do not take going upstairs to indicate that voters were reserving their decisions until later.
• [48] The evidence clearly establishes that the recorded yes voters wished the motion to pass. If that were otherwise, they would surely now say so.

• [49] As to the allegation that there was no call for yes votes, the applicants seek to make something of other owners' responses (or lack thereof) to Mr Lee's email to them, after the meeting, asking them to confirm his views about the process and result. I think he overstates the significance of their (non)responses in that regard.
• [50] The AGM occurred now some months ago, and it is well-accepted that memory tends to become impressionistic even just a short time after an event. Therefore, I would not expect recollections of the events to be precise and completely accurate.
• [51] In their submissions, Mr Kilmister and Mrs Townsend do not specifically address the issue of how it was determined that there were 4 yes votes, but clearly they think the motion was passed, and I consider it safe to assume they formed that impression from the events of the meeting.
• [52] I also asked Ms Rawnsley for her recollection of events at the meeting, and she responded:

Each Lot Owner was asked individually for their votes and the votes were read out to those present. Motions 10 was Resolved : 4 Yes votes, 2 No votes.

• [53] The applicants say there was no call for a yes vote. That may well be an honest belief, but evidence that an event was not observed is not evidence that an unobserved event did not occur.
• [54] The applicants bear the onus of persuading me as to their case, and I am not satisfied they have done that.
• [55] Despite that reservation, I will take the applicants' case at its strongest and for argument's sake - that is, without a formal finding of fact - proceed on the assumption that the meeting chair, having established there were 2 no votes, did not explicitly call for yes votes but rather assumed or inferred that the other 4 voters, by their conduct or statements, wished to vote yes, and declared the result accordingly. If that occurred (again, I stress there is no such finding of fact), then there would be reason to consider the procedure's legality.
• [56] Procedural requirements for meeting voting should not be taken lightly,[16] but section 107 of the Standard Module is not at all prescriptive as to how the show of hands process is to be conducted. That stands in contrast to the relatively prescriptive requirements for hard copy voting, electronic and secret voting.[17] Rather, the legislation seems more concerned with recording the result.[18]
• [57] I have not found case-law with a detailed account of the minimum procedural requirements for calling for votes by a show of hands. Of some assistance, Barnett J in Re HIH Casualty and General Insurance Limited & Ors[19] considered whether a vote conducted under the Corporations Regulation by a show of hands satisfied the regulation's provision for it to be decided 'on the voices' and cited with agreement the following passage of Hayne J in Kantfield Pty Ltd v Plastamatic (Aust) Pty Ltd:[20]

Now it may be that nice questions may arise in some cases about what is meant by the expression 'decided on the voices'. Clearly the intention is that the vote is taken in a less formal and precise way than on a poll. Perhaps, as the explanatory memorandum suggests, the hitherto used and well understood expression 'show of hands' has been discarded because there was introduced into the regulations at the same time as this change was made, provision for the use of telephone conference facilities. (See reg 5.6.13 a , 5.6.13 b ). However that may be, I do not consider that it can be said that the voting procedure in some way miscarried simply because there was no outcry of voices and only a silent showing of hands when the matter was put to a vote.

• [58] Barnett J went on to say: 'The fact that voting was by show of hands rather than the "outcry of voices" to which Hayne J referred is immaterial.'[21]
• [59] I do not take Barnett J's observation to mean that voting by show of hands is equivalent to voting on the voices (the latter seems best suited to determining whether there is a clear majority, without a need to record a precise count).[22] But, his Honour's observation does indicate that different voting procedures do not need to have similarly precise procedures; that some degree of procedural accommodation of the circumstances is permissible; and that non-compliance with the strict terms of a voting provision is not fatal to the declared outcome if it delivers a genuine result. That is consistent with the view I noted earlier, to the effect that adjudicators, tribunals and courts regularly validate procedural non-compliance where it does not substantially affect the outcome.
• [60] Also consistently with that view, the authors of Joske's Law and Procedure at Meetings in Australia consider that, while under the common law a vote by show of hands is indicated by a person literally raising their hand,[23] a person might legitimately vote in many ways and that '[t]he form in which acquiescence is demonstrated is immaterial if acquiescence is actually indicated'.[24]
• [61] Ideally, to avoid uncertainty and dispute, a meeting chair should explicitly call for yes, no and abstain votes from in-person voters. However, it seems to me that the minimum practical requirement for voting in person at a general meeting is that, to adopt the words of Joske's, 'acquiescence is actually indicated', ie that there is a common understanding between the voter and the vote-counter as to their vote.
• [62] In my view, that occurred for motion 10. Therefore, I am not satisfied that, if in fact the conduct of the vote were irregular in the way alleged by the applicants, the outcome on motion 10 should be invalidated.

• [63] The applicants request an order for their costs in the application. I could not award costs even if they had succeeded in the application. That is because, in this jurisdiction, the power to award costs to an applicant is only in section 280 of the Act, and it is limited to refunding application fees where, for the same dispute, the respondent failed, without reasonable excuse, to participate in a department conciliation session. There was no preceding conciliation in this application. Otherwise, there is no inherent power for an adjudicator to award costs to a successful party on a 'costs follow the event' basis, in the way that a court might.[25]
• [64] I explained this to the applicants at the time of the request, and they then conceded that section 280 Act did not apply in this case. However, they then then asserted that I could award costs under the Queensland Civil and Administrative Tribunal Act 2009. That is also incorrect, because, as I had also previously explained to them, this application is not being determined in the jurisdiction to which that Act applies.
• [65] However, pursuant to subsection 270(3)(a) of the Body Corporate and Community Management Act 1997 (Qld), which applies to my determination of this application, if an adjudicator dismisses an application for being frivolous, vexatious, misconceived or without substance, they may also order costs against the applicant to compensate a respondent, an affected party and the body corporate (as the case may be) for loss resulting from the application, such as reasonably incurred legal expenses.
• [66] The applicants freely admit that the majority of voters intended the motion to pass. There is no indication that, if the vote were run again, or without the alleged non-compliance, that the outcome would have been anything other than as recorded in the minutes. Seen in that light, the non-compliance they complain about is trivial, and, in parts, without legal foundation. I had earlier dismissed the application for interim orders for having no good basis. The applicants, having abandoned the parts of their case concerning privacy and nuisance, pressed on, seemingly only to win a point against other owners. In my view, the application was variously frivolous, vexatious misconceived and without substance.
• [67] Ms Bergamin requests a costs order in her favour, having provided evidence of $3080.00 in legal fees incurred in getting advice about her response to the application as (at the time of the application) an affected person. I will award her the maximum amount allowed under the legislation, which is $2,000.[26] No other party requests a costs award.
• [68] In respect of any future applications, the applicants should also note that, in considering costs, the adjudicator may have regard to previous applications made by the applicant.[27]

• [69] In light of the above, I will dismiss the application and make a costs order against the applicants.

[1] Solaya [2024] QBCCMCmr 390

[3] Ms Bergamin has since vacated the lot.

[4] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001 (unreported)

[5] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28

[6] Fraser v NRMA Holdings Ltd (1995) 55 FCR 452

[7] Carroll and Ors v Body Corporate for Palm Springs Residences CTS 29467 [2013] QCATA 21

[8] Lovel v The Body Corporate for The Reserve (No 2) [2018] QCATA 169 at [34]

[9] Chev-Elle [2010] QBCCMCmr 125

[10] It might be reasonable for a body corporate to require evidence that a corporate owner has authorised a person to submit a motion on its behalf if the body corporate has reasonable doubts about whether the submission is genuine, but that is not in issue in this case.

[11] Standard Module, s 88(6)(b)

[12] See Sched 6 of the Act and, for eg, 211 Ron Penhaligon Way Offices [2017] QBCCMCmr 597 at [50], as to the meaning of body corporate record.

[13] See for eg Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 396-7 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ), quoting R v Brown [1996] 1 AC 543, 561 (Lord Hoffmann); Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, 36 [109] (Kirby J); SGH Ltd v Federal Commissioner of Taxation [2002] HCA 18; (2002) 210 CLR 51, 91 [88] (Kirby J).

[14] The Australian Competition and Consumer Commission's functions include enforcing compliance with the Competition and Consumer Act 2010. The investigation power is under section 155(1) that Act.

[15] See for eg Cox v Body Corporate For "Grand Pacific Resort" [2007] CCT KA001-07 at [32]-[35]

[16] See for eg Body Corporate for Surfers Waters v Angland & Anor [2000] QDC 34; Hollis Holdings Pty Ltd v Hanley & Ors [2002] QDC 085; Van Deurse & Anor v Q1 Management Pty Ltd & Anor [2017] QCATA 113

[17] Standard Module, ss 105, 106, 109, 110, 111

[19] [2006] NSWSC 485 at [30]

[20] (1994) 14 ACSR 687 at p.691

[22] See for eg a discussion of the difference between them in No 5 Lorac Avenue Pty Ltd v Brooke [1995] VSC 33

[23] Citing Ernest v Loma Gold Mines Ltd [1896] UKLawRpCh 157; [1897] 1 Ch 1

[24] Magner, ES 2007, Joske's Law and Procedures at Meetings in Australia, 10th ed., Law Book Company,

[25] See Woodrange Pty Ltd v Le Grand Broadwater Body Corporate [2004] QDC 215, Queensland Fish Board v Bunney, Ex parte Queensland Fish Board [1979] QSCFC 11, p 303, Spicer v Carmody; Robinson v Carmody [1948] NSWStRp 25, p 350

[26] Per subsection 270(4) Act, the total amount of costs ordered under subsection (3) may not be more than $2,000.