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

INTERIM ORDER - whether an interim order is warranted in the circumstances

• [1] This is the most recent in a series of 6 applications filed in quick succession by applicants who are or are associated with the owner of lot 1 and the caretaking service contractor (CSC) for the scheme Somerset Gardens CTS 25221.
• [2] The applicant, Pango Holdings Pty Ltd (Pango), is the CSC for Somerset Gardens CTS 252221, engaged pursuant to an agreement made 26 October 2022. Because it is the CSC for the scheme, by reason of the legislation, it is also an unelected non-voting member of the committee, and it makes this application in that latter capacity. Pango's director, Violet Blackstock, is also the owner of lot 1 in the scheme. Violet Blackstock, as director of Pango, nominates her husband, Les Blackstock, as her representative in this and the other 5 applications.
• [3] The application identifies a very large number of outcomes for orders at the final determination stage, which are set out in the Schedule to these reasons.
• [4] Presently for determination is an application for interim orders. In summary, they are (adopting the applicant's numbering):
  1. To restrain the body corporate from implementing certain committee decisions made by a vote outside a committee meeting on 6 May 2025 (VOCM).
  2. That interim order 1 have effect until the other 5 presently undecided applications are decided or withdrawn.
  3. That if the interim orders on this application are not made, the body corporate be restrained from implementing the VOCM decisions referred to in order 1 for 28 days to allow time for the applicant to appeal the adjudication decision to QCAT.
  4. Pending final orders, the committee be restrained from approaching lot owners to discuss Mrs or Mr Blackstock or Pango.
  5. Pending final orders, the committee be retrained from utilising monies in the sinking fund to pay shortfalls in the administration fund.
• [5] The grounds for the requested interim orders are set out below. In summary, they are that the resolutions referred to in requested interim order 1 were not validly made.

• [6] Somerset Gardens CTS 25221 consists of 97 lots and common property. The scheme is governed by the Body Corporate and Community Management Act 1997 (Qld) (Act) and, as specified in its community management statement, the Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module).
• [7] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute relating to the Act, the regulation modules made under the Act, or a scheme's by-laws.[1] A 'dispute' is defined, for jurisdiction purposes, with reference to various paired categories of disputants, in section 227(1) of the Act, for example body corporate and owner. A matter is within jurisdiction only if the applicant has a status found in one of those categories and the dispute with the other party arises from circumstances associated with each parties' status.[2]
• [8] I note the respondent names the secretary of the body corporate as the respondent, but in the application form also describes the respondent as the committee. The applicant also refers in submissions to subsection 227(1)(h) of the Act as the basis for jurisdiction to hear the dispute, that subsection encompassing disputes between a committee member (ie the applicant) and the committee. The applicant's choice of respondent is therefore confusing. In any event, I would not make the requested interim orders, or final orders about the same subject matter, against the secretary or the committee. Rather, the body corporate is in my view the proper respondent, even when orders are sought about the committee, because a committee does not appear to be a legal person capable of being sued. I have proceeded to consider the interim order application as if the application is made against a proper respondent, because in the circumstances of the application being wholly dismissed, it does not matter who is the respondent. I have not yet turned my mind to the issue of the proper respondent for the other unrelated final orders. The applicant may wish to consider amending the application accordingly.

• [9] The Commissioner may refer a matter for adjudication of an interim order application without affected persons having an opportunity to make submissions on it.[3] In the circumstances, I did not seek submissions from the Body Corporate's committee and the owners. They will be invited to give their views on the final orders before I make that decision, in due course.
• [10] An adjudicator may make an interim order only if satisfied it is necessary due to the nature or urgency of the circumstances.[4] Accordingly, an applicant must satisfy the adjudicator that serious and irreparable harm would be caused without the interim order. An interim order is usually made in the form of a temporary injunction - an order not to do something, pending a final determination of an application. It has effect for a period stated in the order, not to be longer than one year, and may be extended, varied, renewed or cancelled by the adjudicator until a final order is made, and otherwise lapses when an application is finally determined or withdrawn.[5]
• [11] In deciding whether an interim order is warranted, adjudicators often adopt the approach taken by courts to considering interlocutory injunction applications.[6] The first issue is whether the applicant has made out a 'prima facie case' or raised a 'serious legal question', in the sense that, if the evidence remains as it is, there is some probability that the applicant will succeed at the final determination stage. The second issue is whether any inconvenience or injury which the applicant would be likely to suffer (if an interim order were refused, and the application was ultimately successful at the final stage) outweighs or is outweighed by any inconvenience or injury which the respondent would suffer (if an interim order were granted, and the application was ultimately unsuccessful at the final stage). On those matters, in the often-cited High Court decision Australian Broadcasting Corporation v O'Neill,[7] Gummow and Hayne JJ[8] said (at [65] and [72]):

65 The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

"The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted."

By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

"How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks."

72 The second of these matters, the reference to practical consequences, is illustrated by the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application. The first consideration mentioned in Beecham, the nature of the rights asserted by the plaintiff, redirects attention to the present appeal.

• [12] As to the question of a prima facie case. the questions of law and fact raised by the application do not need to be finally decided at the interim order determination stage, and doing so is not appropriate where the evidence is potentially incomplete or questions of law require opposing arguments and unhurried consideration. That said, if the answer to a question of fact or law is clear on the evidence and issues as presented in the interim application, it may be appropriate and beneficial to decide such questions at the interlocutory stage.[9]
• [13] The stronger the prima facie case of the applicant, and therefore the greater the likelihood of success, the less that will be needed for the balance of convenience to favour the grant of the interlocutory injunction.[10] It follows that, even if the considerations of the nature or urgency of the circumstances or the balance of convenience favour the applicant, it may be preferable to dismiss an interim order application if there is no real prospect of success, at the final determination stage, on the legal arguments and the uncontroversial facts as presented in the interim order application. That is simply another way of saying that the two issues of serious legal question and balance of convenience are parts of one ultimate question - whether an interim order is warranted and just in the circumstances - and therefore should not be addressed mechanically or in isolation from one another.[11]

1. Pending the making of final orders in the dispute, the Body Corporate for Somerset Garden CTS 25221, is restrained from implementing or taking any other action with regard motions 1, 2, 3, 4, 11 in the VOCM of the 6th May 2025

• [15] The VOCM minutes record that those resolutions were passed as follows:

1. Caretaker's failure to remedy RAN Ordinary Resolution

RESOLVED THAT the Body Corporate resolves to formally document its position that Pango Holdings Pty Ltd ACN 622 680 568 ('the Caretaker') has failed to remedy the breaches specified in the Remedial Action Notice issued on 25 February 2025, except regarding the accessibility of fire hydrants.

The Body Corporate acknowledges that the Caretaker's non-compliance may necessitate further action from the Body Corporate, which may include the issuing of a further Remedial Action Notice.

2. Further RAN to Caretaker Ordinary Resolution

RESOLVED THAT the Body Corporate resolves to engage Mathews Hunt Legal to draft a further Remedial Action notice (covering 3-5 breaches) to Pango Holdings Pty Ltd ACN 622 680 568 ('the Caretaker') for its breaches of the Caretaking Agreement dated 26 October 2022 at an estimated cost of $3,500 plus GST and outlays (if any). Any further attendances, such as corresponding with the Caretaker or its solicitors, will be charged in accordance with its hourly rates.

3. Common Property Condition Report Ordinary Resolution

RESOLVED THAT the Committee approve one (1) of the following quotations for the preparation of a common property condition report.

Seymour Consultants at a cost of $2,650.00 incl GST

'Opt. B' has been selected with the highest votes. Option A 0 Option B 7 Option C 0

RESOLVED THAT the Committee approve one (1) of the following quotations for the preparation of an updated Sinking Fund Forecast

Seymour Consultants at a cost of $1,752.00 incl GST

'Opt. B' has been selected with the highest votes. Option A 0 Option B 7 Option C 0

11. Insurance Claim - Cyclone Alfred Ordinary Resolution

RESOLVED THAT in accordance with Schedule 1 1.5 of the Caretaking and Letting Agreement made 26 of October 2022, the Committee instructs the Caretaker to complete insurance claim documents and once completed provide to the Body Corporate Manager with supporting documentation for submission to the Body Corporate Insurance Broker Marsh Advantage Insurance for Insurer consideration related to the Cyclone Alfred Weather event.

• [16] The applicant's arguments in relation to those resolutions are said to have three broad grounds, which I will deal with in turn. In summary, they are:
  1. The spending arising from passing motions 2, 3 and 4 is unlawful.
  2. The committee acted unreasonably in making those decisions.
  3. The secretary did not comply with the code of conduct in sending the notice for the VOCM.
• [17] As to the first ground, the applicant says the spending required to implement the resolutions on motions 2, 3 and 4 is 'contrary to the Act and the directions of the BCCM commissioner and the Queensland state government.'
• [18] The applicant then discusses provisions of the legislation on spending, budgets and special levies,[12] and comes to the conclusions that passing the resolutions was unlawful because:
  1. the administrative fund balance was not presently sufficient to meet those expenses
  2. the liability could only be satisfied by, or would be the impetus for, the body corporate unlawfully transferring funds from the sinking fund
  3. the spending on legal costs is part of a single project and was not properly authorised as such, and
  4. taken together with the costs of the other associated legal spending, the approved spending would cause the body corporate to exceed the amount budgeted for legal expenses as a whole at the start of the financial year.
• [19] As to that first point, it may be the case that the body corporate does not have a sufficient amount in the administrative fund to cover those expenses (I make no finding in that regard), but that would not make passing those resolutions unlawful. It is contemplated by the legislation that, from time to time, liabilities may arise for which the body corporate does not presently hold sufficient funds, and that a body corporate is able to fix a special contribution to be levied on the owners towards the liability[13] (often called a 'special levy'), if need be - the applicant's own submission acknowledges this. Ironically, the applicant seeks to restrain the body corporate from taking steps to ensure its funds are sufficient to meet forecast expenses, through motion 4, while also complaining of financial mismanagement.
• [20] As to the second point, while funds may not be transferred between the administrative and sinking funds,[14] that does not render invalid a resolution for spending which precipitates the transfer. The contravention arises only if and when monies are improperly transferred. It is not necessary or appropriate to invalidate the underlying spending motion itself, if it is otherwise apparently valid.
• [21] As to the third point, section 162(2) of the Accommodation Module provides that, if a series of proposals forms a single project, the cost of carrying out any one of the proposals is taken to be more than the relevant limit for committee spending if the cost of the project, as a whole, is more than the relevant limit.[15] The purpose of the provisions seems to be directed to stopping a committee deliberately or inadvertently circumventing the limit on its spending authorisation by making a serious of decisions to authorise spending within its authorisation limit rather than to submit the cost of the whole project to owners for authorisation.
• [22] The various legal fee costs identified by the applicant to be part of a single project are the costs associated with the RAN the subject of motion 2, a separate $6,150 expenditure (for an unspecified purpose), $5,453.80 allegedly spent by the secretary to make a submission on a previous interim order application,[16] fees associated with a bullying allegation against the body corporate (which I understand is or is proposed to be an action in another jurisdiction), and fees associated with a defamation action (again, an action that is or would be taken separately from this jurisdiction). The applicant does not say what the committee's spending limit is, but unless it has been changed by a resolution of owners in general meeting, by default under the legislation it would be an amount worked out by multiplying $200 by the number of lots in the scheme,[17] ie $19,400.
• [23] The notion of a 'single project' is not defined in the legislation. As to what constitutes a single project, I have previously commented:[18]

[32] There is no definition or strict guidance on when a 'series of proposals' constitutes a 'single project'. In Cascade Gardens Leisure and Retirement Village [2018] QBCCMCmr 323, the adjudicator considered whether removing trees from a roundabout area, and the subsequent landscaping of the roundabout, were part of a single project. In finding there was a single project, the adjudicator considered it relevant that the works were discussed and voted upon by the committee as part of the same project; that the landscaping only occurred at that time and in the manner that it did because of local council requirements relating to the request to remove the trees; and that the body corporate would likely not have been permitted to remove the trees unless it had undertaken to do some level of replacement landscaping. The adjudicator therefore considered that the two elements of the work were "inextricably linked". From this reasoning, we can see that it is relevant whether the projects were considered by the committee to be related (that is, subjectively), and whether objectively they were related. It is also relevant whether one proposal was dependant on the performance of the other proposal.

• [24] Those comments have been cited with approval by other adjudicators.[19]
• [25] It seems that there is a common element to the expenses the applicant considers to be part of a single project, in that they are for legal fees in disputes involving the CSC's performance or disputes with the body corporate. However, having a common element in itself does not make the expenses part of a single project, for section 162(2) purposes. It seems the expenses at least in part relate to events arising at different times and/or from different decisions. Indeed, some of it seems to be associated with legal actions initiated by the CSC or its associates, rather than by the body corporate. Further, the fact that a body corporate might have anticipated and budged for a certain amount of legal costs spending, for the purpose of a financial years' administrative fund budget line item, does not make those expenses part of a single project.
• [26] Legal expenses are notoriously difficult to anticipate and estimate for more than concrete, discrete tasks, because each step is often contingent upon other unpredictable or contingent preceding events. Ideally, a committee should form a view (and act accordingly) as to likely future costs when it embarks on a course of action. But that process can quickly become mere speculation, which I do not think section 162(2) requires. For example, I note the applicant has foreshadowed appealing this decision, and if that appeal decision is unfavourable, it might appeal that decision, and then appeal again - I do not think it reasonable to require a committee to seek owners' approval for an expenditure which is otherwise within the committee's authorisation, for example issuing every RAN, simply because it might be appealed through several jurisdictions, potentially all the way to the High Court. I also note that the spending on the further RAN proposed in motion 2 only arises because (the committee says) the CSC did not fully comply with the RAN the subject of motion 1 - on the applicant's reasoning, every time a RAN was issued, a committee would have to anticipate that it would need to take further action for non-compliance, involving unknowable costs.
• [27] I do not foresee any substantial prospect of finding, at the final stage, that these are likely to be expenses all in the course of the body corporate undertaking a single project at a cost exceeding the committee's authorised spending limit.
• [28] As to the fourth point, it is not a contravention to exceed spending for budgeted line items or categories. It is of course sensible for a body corporate to come to its final budget figures for the administrative and sinking funds based on anticipated spending on various categories (eg, legal costs), but ultimately all monies in each fund are able to spent on any type of liability, if the expenditure itself is otherwise lawful and appropriate to that category. Accordingly, it does not matter that the body corporate might exceed its budgeted spending in a particular category such as legal costs.[20] It also follows that, for the purposes of the determining the validity of the spending resolutions in this application, it is not relevant whether the other spending resolutions were (as the applicant alleges) not properly authorised.
• [29] I see no basis for an interim order on the arguments addressed so far.
• [30] As to the second ground, the applicant says (quoting verbatim):

2). The committee act unreasonably in making a decision.not made reasonably in making the decision vote on outside of committee on the 6th May 2025.

a. The motion past to enact the RAN issued on the 25th February 2025 are unreasonable as "fruit from the position tree"

b. The costs of the issuing of the RAN in motion 3 of the EGM were false and misleading, given as $3500, but presently the speeding is cost $13,600)

c. The decision to issue the RAN and in the format of the RAN were based on opinion not professional opinion and the information supplied int eh photos does note allow fair consideration

d. The common property condition report agree to in motion 3 does not consider the compliance with the caretaker engagement.

e. The common property condition done in September found that found the condition was the same or better than similar schemes.

f. The work requested in the RAN issued on the 25th February 2025 is work not in caretaker engagement and the committee has failed to address these facts. The proper avenue to resolve this dispute is in QCAT). This applies to motion 11 in the VOCM of the 6th May 2025.

• [31] It seems the submission is directed to resolutions 1, 2 and 3.
• [32] As to the applicant's point 2)a., I take the applicant to say 'fruit of the poisonous tree', an expression meaning evidence obtained improperly, the related principle being that a party to legal proceedings should not get the benefit of such evidence. In this case, the 'poisoned' evidence is not put before me for the purposes of my decision, but allegedly was taken into account by the committee in making its decisions. While a committee is not bound by rules of evidence, such principles might be a useful guide as to whether a committee acted reasonably, in all of the circumstances, which section 100(5) of the Act requires.
• [33] It seems that the applicant is concerned that the present decision to issue a RAN by motion 2 is based on or is the culmination of a series of preceding flawed decisions by the committee and the body corporate (in general meeting) about the CSC. I do not see how the 'fruit of the poisonous tree' argument is relevant to that as such, as the principle is more directed to evidence obtained for example by deception or unlawful searches and surveillance. But in any event, as I have said, decisions about such matters must always be made reasonably, and reasonable decision-making requires consideration of all relevant factors and the exclusion of irrelevant factors, given all of the circumstances, which I say more about below. In that regard it seems that the applicant is concerned that:

¾ the decision to issue the RAN is premised on unreasonable or flawed preceding decisions by the committee and the body (the 'fruit of the poisonous tree' argument)

¾ the RAN is being issued without sufficient and relevant evidence of the CSC's alleged lack of compliance with their contractual obligations

¾ the condition report on which the committee has apparently based its decision was flawed because:

• − it assessed the CSC's performance based on 'typical industry standards' for such agreements rather than the terms of the applicant's actual CSC agreement
• − its consultant commented on the state of 'horticultural elements' without appropriate qualifications in that area

¾ the RAN process is motivated by the committee's and in particular the secretary's preconceived desire to terminate the CSC agreement rather than on a reasonable belief that the CSC had not performed its obligations

¾ the secretary's opinion as to the CSC's performance has influenced the process, but is not proper evidence on which the committee could makes its decisions

• [34] Section 94(2) if the Act requires a body corporate to act reasonably, including in making a decision, and section 100(5) requires the same of committees. The leading authority on reasonableness is the High Court's decision in Ainsworth v Albrecht [2016] HCA 40 (Ainsworth). I note that the Ainsworth dispute involved consideration of whether the opposition of an individual voter to a motion requiring a resolution without dissent was unreasonable. Although not a case involving committee decision-making, it is broadly applicable to the concept of reasonableness and it was followed in a later QCAT appeal decision of Carmody J on the issue of reasonable committee decision-making, in Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 (Beaches).
• [35] On the question of reasonableness, the applicant lists a number of factors derived from the caselaw which it says must be satisfied if a decision can be said to have been taken reasonably. The applicant apparently considers they constitute a checklist of things which must, for each body corporate or committee decision, be mechanically stepped through and be proven to have been fully complied with. That is not the case; the decisions on reasonableness simply require that the impugned action be considered objectively in the circumstances and in light of the ordinary meaning of the word 'reasonable', which mainly requires that (in the case of a decision) it be rational and based only on relevant factors.[21] The Ainsworth and Beaches decisions also make it clear that there is no onus on a body corporate to prove that it or its committee acted reasonably.[22] Rather, the adjudicator must be satisfied that the impugned action was unreasonable, and the persuasive onus in that regard rests with the applicant.
• [36] As to the reasonableness of the decisions, I note the following. The body corporate is obliged to maintain the common property.[23] Such work is apparently, at least to some extent, within the terms of the CSC agreement. Because it must pay for work performed under the CSC agreement, the body corporate is also obliged to monitor performance of the agreement, and if necessary initiate a proper process for termination. It is therefore reasonable for a body corporate to gather independent evidence about the condition of the common property, and regardless of whether it is for the purpose of assessing the performance of the caretaker. I am not satisfied that the committee's action is motivated by a simple desire to free the body corporate of the CSC agreement, as the applicant alleges. It seems inherently unlikely a body corporate of this nature would not want to have a CSC agreement with someone, and the far more likely explanation is that the body corporate simply wishes to hold the CSC to its agreement.
• [37] I do not see that it is irrelevant for the committee to be informed by a consultant's report which compares the state of the scheme's common property with other schemes, with or without reference to the terms of the CSC, and I do not accept the argument that such a consultant must have qualifications or expertise in horticulture. That said, issuing a RAN is a relatively uncomplicated decision to make - with or without a condition report, the committee is able to inform itself, through its members' own observations and feedback from owners and occupiers, as to the CSC's performance. The secretary's personal views may have influenced the committee (I make no finding about that) but there is nothing improper in that, indeed it is the nature of committee decision-making that members share their views about the issue at hand. Each member is then able to vote independently, and it seems unlikely the motion would have been passed unanimously by its 7 members if it were not a commonly held view.
• [38] Further, the issuing of a RAN is not an end in itself, but rather the start of a process.[24] It provides an opportunity for the CSC to know with certainty what are the alleged failures in its performance and what steps it is expected to take in response, before action to terminate the agreement may be initiated - in that light, it is beneficial to the notice recipient. If those steps have already been taken, or are not part of the CSC agreement, then the CSC can easily make that case in response. Before terminating the CSC agreement, the body corporate must next pass an owners' ordinary resolution to do so. If in fact a RAN has been improperly or unreasonably issued, or the body corporate unreasonably resolves to take termination action, the appropriate time to contest that is if and when the body corporate takes that action. I note that any dispute about the CSC's performance of its contractual obligations in itself is beyond an adjudicator's jurisdiction, it being a 'complex dispute'.[25]
• [39] I am not satisfied there is a prima facie case for the claim that the committee acted unreasonably in making resolutions 1, 2 and 3 on the grounds advanced and discussed above.
• [40] Even if there were a prima facie case, I think the balance of convenience favours the body corporate. There is no immediate harm to the applicant in issuing a RAN and I would be very reluctant to stop a body corporate simply initiating action to bring such a dispute to a final resolution, one way or the other.
• [41] As to motion 4, to spend $1,752, the applicant says that was not budgeted for and there is insufficient money in the administrative fund. I have addressed these arguments above. They do not indicate a contravention.
• [42] As to motion 11, directing the CSC to prepare certain insurance documents, the applicant says:

Having regard to the committee failing to consider that the decision and is contrary to the decision of the committee in the committee meetings of May 2024, September 2024, December 2024. Having regard to the instruction not being agreed that it is a duty of the caretaker agreement and the issue of any duty of the caretaker agreement should be decided by specialist adjudication of QCAT

• [43] The submission is unclear but the complaint seems to be that the task is not within the terms of the CSC. If that is the case, the applicant can make that argument if and when the body corporate takes action for non-compliance. Otherwise I do not see that it is inherently unreasonable to pass the motion.
• [44] As to the third ground, the applicant says the secretary did not comply with the code of conduct in sending the notice of motions for the VOCM. By way of section 101B of the Act, the code of conduct for committee voting members in Sched 1A of the Act applies to all voting committee members and they are taken to have agreed to comply with it upon becoming a member. Subsection (3) provides that, if a committee voting member breaches the code of conduct, the member may be removed from office in the way prescribed under a regulation. However, whether or not the secretary complied with the code of conduct does not directly determine the validity of their involvement in a committee decision, or other committee members' decisions. Rather, the validity of the decision is determined by its compliance with any relevant requirement relevant to the decision's subject matter (for example, spending limits) and the broader need for a committee to act reasonably.
• [45] In light of the above, I am not satisfied it is appropriate to make interim orders to temporarily restrain the implementation of the resolutions pursuant to motions 1, 2, 3, 4, or 11 passed by the VOCM on or about 6 May 2025.

2. The above interim orders in item 1 will have effect until the earlier of, the issuing by an adjudicator of further interim or final orders for the application Ref 1027-2024, 1162-2024, 0107-2025 and the application for final orders with regard the VOCM of the 6th May 2025, the applications are withdrawn or otherwise ended, or 12 months have elapsed from the date of the [sic]

• [47] It follows from my decision on requested interim order 1 that I am not satisfied I should make interim order 2.

3. If the decision is made to not grant the interim orders the Body Corporate for Somerset Garden CTS 25221 is restrained from implementing or taking any other action with regard motions 1, 2, 3, 4, 11 in the VOCM of the 6th May 2025 for 28 days to allow any appeal of the adjudicators orders to be filed in QCAT.

• [49] It follows from my decision on requested interim order 1 that I am not satisfied I should make requested interim order 3.

4. Pending the making of final orders in the dispute, the committee members of the Body Corporate for Somerset Garden CTS 25221, are restrained from approaching lot owner in their lots or by telephone and discussion Mrs or Mr Blackstock or the Caretaker Company Pango holding Pty Ltd.

• [51] The applicant claims that committee members would make 'discouraging remarks' about the Blackstocks and the CSC in speaking with lot owners, which would constitute a contravention of section 167 of the Act. That section prohibits an occupier of a lot using, or permit the use of, the lot or the common property in a way that: causes a nuisance or hazard; or interferes unreasonably with the use or enjoyment of another lot included in the scheme; or interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
• [52] Whatever harm might be caused to Pango or the Blackstocks (I make no such finding), I cannot see how section 167 would apply to a committee member going about their duties. In any event, I cannot foresee it ever being appropriate to restrain a committee member from speaking with owners about anything, at least in the context of my powers and this jurisdiction. Conceivably, something may be said which is defamatory (again, I make no such finding), but any remedy for that must be sought in a jurisdiction empowered to hear such a claim.
• [53] I am not satisfied I should make the requested interim order 4.

5. Pending the making of final orders motions requiring the committee not utilize monies in the sinking fund to pay the short falls in the administrate fund in the Financial year 2024/25

• [55] The body corporate is already restrained, by section 157(7) of the Accommodation Module, from transferring money between funds.
• [56] If in fact the body corporate contravenes the provision, that can easily be remedied by an order to transfer it back and to raise a special levy for the shortage in the appropriate fund.
• [57] I am not satisfied I should make the requested interim order 4.

• [58] In light of the above, the application for interim orders is dismissed.
• [59] The application will now be returned to the Commissioner for further case management.
• [60] I also draw the applicant's attention to section 270(3) of the Act, which empowers an adjudicator to order costs against an applicant if the application is dismissed for being frivolous, vexatious, misconceived or without substance. The applicant may wish to amend the application in light of what I have said above, especially given the extraordinarily large number of final orders sought, before it proceeds further.

1. That under section 280(2) the respondent to pay to the applicant the amount paid by the applicant under section 239(1)(c) as fees for the adjudication application.

2. A motion be placed on the agenda of the next committee meeting titles " application for bullying orders against the body corporate of somerset gardens and Ms Jones, Ms Smith and Ms Whannage" and all accompanying documentation be made available to lot owners before the meeting.

3. The committee place a notice motion in the next general meeting to issue a section 37 notice to the secretary Daniell Jones, regards the 3rd March 2025 committee meeting.

4. The committee place a notice motion in the next general meeting to issue a section 37 notice to the secretary Daniell Jones, regards the notice of motion given on the 24th January 2025

5. The committee be ordered to issue a section 37 notice to the secretary Daniell Jones, regarding the notice of motion given on the 6th May 2025

6. Motions 3.20, 3.22, 3.30, 9.12 of the 3rd March 2025 committee meeting are void at all times.

7. Motions 3.20, 3.22, 3.30, 9.12 of the 3rd March 2025 committee meeting did not act reasonably in making the decision and the motions are void at all times.

8. The members of the committee apologies for the bullying of Mrs. Blackstock, the owner of lot 1 and any harm that may have been done from the actions in the 3rd March 2025 committee meeting.

9. [26]Motion 1 of submitted by lot 1 under section 50 to the committee on the, being

"The committee resolves to take no action under the body corporate's insurance for any claim for legal cost or coverage for any action by an office bearer or the

committee concerned with defamation because the coverage is excluded under the policy in section 3.3.11 of the Residential Strata Insurance policy issued by

Longitude and further that the committee will seek to recover from any committee member and future cost to the body corporate for any such action taken for any claims that will not be covered by the Residential Strata Insurance policy ."

10. Motion 2 of submitted by lot 1 under section 50 to the committee on the, being

"The committee resolves to seek legal advice on the personal liability of committee members for costs that arise to the body corporate from:

a. decisions of any committee members to do not follow any professional advice given to the committee from the caretaker without considering any other professional advice to the contrary of the advice of the caretaker, or

b. decisions of any committee members on functions that are not those of the body corporate under section 94 of the BCCM Act, or

c. decisions of any committee members that are contraventions of the committee member's code of conduct under section 1A of the BCCM Act.

11. Motion 3 of submitted by lot 1 under section 50 to the committee on the, being

"The committee resolves, with regard the behaviour of the secretary Danielle Jones, that:

1. Danielle Jones is to be replaced from the position of body corporate representative to the caretaker in in accordance with section 14.1 of the caretaking and letting agreement between the Body Corporate for Somerset Gardens CTS 25221 and Pango Holdings Pty Ltd dated 26 October 2022, further

2. Danielle Jones is to be replaced from the position the nominee to the body corporate manager in accordance with section 7.1 of the attached administration agreement between the Body Corporate for Somerset Gardens CTS 25221 and Challenge Strata Management dated 12th October 2023, further

3. Jessica Catherine Mcleod appointed as the body corporate representative to the caretaker in accordance with section 14.1 of the attached caretaking and letting agreement between the Body Corporate for Somerset Gardens CTS 25221 and Pango Holdings Pty Ltd dated 26 October 2022, and further

4. that the committee authorise Danielle Jones to write on behalf of the body corporate to inform the caretaker of her appointment as the body corporate representative, further

5. Jessica Catherine Mcleod be appointed as the nominee to the body corporate manager in accordance with section 7.1 of the attached administration agreement between the Body Corporate for Somerset Gardens CTS 25221 and Challenge Strata Management dated 12th October 2023 and further that the committee authorise Danielle Jones to write on behalf of the body corporate manager to inform Challenge Strata Management of her appointment as the nominee, further

6. The following motion will be placed on the agenda of the next general meeting:

"The Body Corporate by ordinary resolution resolves to give the Danielle Jones written notice stating following points, to comply with section 37(2) of the BCCM (accommodation module) Regulations 2020:(a) (b) that the body the corporate believes that Danielle Jones has breached provisions of the code of conduct, being provisions:

(1) they must have a commitment to acquiring an understanding of this Act, including this code of conduct, relevant to the member's role on the committee.

(2) (1) they must act honestly and fairly in performing the member's duties as a committee voting member,

(3) they must act in the best interests of the body corporate in performing the member's duties as a committee voting member,

(4) they must take reasonable steps to ensure the member complies with this Act, including this code, in performing the member's duties as a committee voting member.

The details sufficient to identify Danielle Jones has breach of the provisions of

Danielle Jones was aware in communication from the caretaker sent in in

November 2023 about an understanding of Act regarding the distribution of VOCM's in her role as the secretary of the body corporate of Somerset Gardens CTS 225221.

She do not have a commitment to acquiring an understanding of the BCCM Act, because on the 8th November 2023, she did not distribute an advice of notice of VOBM to all lot owner as required by section600(3) of the Regulations .

There have been other instance that demonstrate the lack of commitment to acquiring an understanding of the BCCM Act, in he behaviour to:

a. Failed to resolve the action she did that in the VOCM of the 15th of July 2024 that have led to a dispute application to the commissioner,

b. Failed to resolve the action she did that in the EGM of the 6th. August 2024 that have led to a dispute application to the commissioner

c. Failed to resolve the action she did that in the AGM of the 25th October 2024 that have led to a dispute application to the commissioner

d. Failed to resolve the action she did that in the AGM of the 9th September 2024 that have led to a dispute application to the Commissioner

Danielle Jones did not act honestly and fairly in performing her duties as

a committee voting member, in that on the 12th July 2023 November she

did email the body corporate manger indicate that " a majority of the committee have informal approved the improve application form lot 21".

The owner of lot 21 as a member of the committee at that time.

That email approval was done in a way contrary to the Act, and was not

distributed as a notice to lot owners, and was never ratified at any subsequent committee meeting.

Danielle Jones has in the publication of the advice of notice of motion sent on the 25th March 2024 cause d a concerns notice for defamation to the given to the committee of Somerset Gardens CTS 225221.

This action was not in the best interest of the body corporate.

Other actions that are similarly not in the best interest of the body corporate are:

a. The reliance on a survey that has no statically validify and was based on the participants not having all available information to spend over $8000 of the body corporate's money to get information to make an improvement to the fencing that has not yet had the agreement that not more than 25% of the lot owners would not pass the special resolution need to make the improvement.

b. By sending emails approving the spending on the mulch, when a similar quote for less than $12,000 below the spending approved, was not considered and this action was done without the knowledge of the lot owners under the Regulations'.

c. The decision made by her as reported in the Audit Report - Roof Cleaning 14 November 2023 that identified her role in actions that cost the body corporate over $70,000.

On the 8th November 2023, Danille Jones did not distribute an advice of notice of VOBM to all lot owner as required by section600(3) of the Regulations .

This is an example, with knowledge of the ways to complies with this Act, that Danille Jones did not take reasonable steps to ensure the she complied with this Act, in performing the member's duties as a committee voting member.

(c) Danielle Jones may give any other member of the body corporate, within the

28 days after Danielle Jones is given this notice, a written response to the

(d) that, if asked by Danielle Jones, the body corporate will pay the Danielle

Jones all postage charges and photocopy expenses reasonably incurred by the

member in giving a written response under paragraph (c) to any other member of the body corporate;

(e) that the body corporate is to consider a motion to remove the Danielle Jones, from office for the breach at the next general meeting of the body corporate called after the period mentioned in paragraph (c) ends."

12. A general meeting be called to adjust the budget or issue a special levy to fund the extra legal cost that have been exceeded in the 2024/25 budget approved on the 11th October 2024.

a. apologies for not sending the caretaker reports with the minutes of the committee meetings and

b. the caretaker reports not sent in the past will be tabled at the next committee meeting and sent to lot owners with the minutes the committee meeting

c. at all subsequent committee meetings the caretaker report will be tabled and sent with committee meeting with the minutes to all lot owners

14. Motion 2.1 of the 3rd March committee meeting, as the committee meeting did not act reasonably in making the decision the motions is void at all times and further the committee is ordered to do the repairs to maintain the solar panels and the pergola in a functional condition

15. Motion 2.2 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times and further the committee be ordered to call a general meeting to adjust the sinking fund budget approved in the 2024/25 and to fund the maintenance of the solar panels and the pergola

16. The committee is to do the maintain the common property bushland in accordance with the GCCC recommendations and to allocate such funds to the sinking fund to allow for such maintenance and to allocated funds to each yearly budget to do so.

17. Motion 2.3 of the 3rd March committee meeting as the committee did not act reasonably in making the decision the motions is void at all times.

18. Motion 3.9 of the 3rd committee meeting as the committee did not act reasonably in making the decision the motions is void at all times.

19. Motion 3.10 of the 3rd March committee meeting as the committee did not act reasonably in making the decision the motions is void at all times.

20. Motion 3.11 of the 3rd March committee meeting as the committee did not act reasonably in making the decision the motions is void at all times.

21. Motion 3.13 of the 3rd March committee meeting as the committee did not act reasonably in making the decision the motions is void at all times.

22. Motion 3.17 of the 3rd March committee meeting as the committee did not act reasonably in making the decision the motions is void at all times.

23. Motion 3.19 of the 3rd March committee meeting as the committee did not act reasonably in making the decision the motions is void at all times.

24. Motion 3.20 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

25. Motion 3.21 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

26. Motion 3.25 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

27. Motion 3.26 of the 3rd committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

28. Motion 3.29 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

29. Motion 3.31 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

30. Motion 3.26 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

31. Motion 3.36 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times

32. Motion 3.39 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times

33. Motion 3.40 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times

34. Motion 3.41 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times

35. Motion 3.42 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

36. Motion 3.44 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

37. Motion 4 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times

38. Motion 4.4 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times

39. Motion 4.5 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

40. Motion 4.7 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times

41. Motion 4.8 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

42. Motion 5.5 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

43. Motion 7 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times

44. Motion 8.1 of the 3rd March committee meeting is void was an unreasonable decision of the committee as not comply with section 183 of the BCCM Act

45. Motion 8.2 of the 3rd March committee meeting is void was an unreasonable decision of the committee as not comply with section 183 of the BCCM Act

46. Motion 9.3 of the 3rd committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

47. Motion 9.5 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

48. Motion 9.7 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

49. Motion 9.8 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

50. Motion 9.10 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times

51. Motion 9.11 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

52. Motion 9.12 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

53. Motion 9.13 of the 3rd March committee meeting as the committee meeting did not act reasonably in making the decision the motions is void at all times.

54. Motion 1 of the 6th May 2025 Vote outside committee,as the committee did not act reasonably in making the decision the motions, is void at all times.

55. Motion 2 of the 6th May 2025 Vote outside committee, as the committee did not act reasonably in making the decision the motions, is void at all times.

56. Motion 3 of the 6th May 2025 Vote outside committee as the committee did not act reasonably in making the decision the motions, is void at all times

57. Motion 4 of the 6th May 2025 Vote outside committee as the committee did not act reasonably in making the decision the motions, is void at all times

58. Motion 6 of the 6th May 2025 Vote outside committee, as the committee did not act reasonably in making the decision the motions, is void at all times.

59. Motion 7 of the 6th May 2025 Vote outside committee, as the committee did not act reasonably in making the decision the motions, is void at all times.

60. Motion 8 of the 6th May 2025 Vote outside committee, as the committee did not act reasonably in making the decision the motions, is void at all times.

61. Motion 10 of the 6th May 2025 Vote outside committee, as the committee did not act reasonably in making the decision the motions, is void at all times.

62. Motion 11 of the 6th May 2025 Vote outside committee, as the committee did not act reasonably in making the decision the motions, is void at all times.

63. Motion 12 of the 6th May 2025 Vote outside committee , as the committee did not act reasonably in making the decision the motions, is void at all times

64. Motion 13 of the 6th May 2025 Vote outside committee, as the committee did not act reasonably in making the decision the motions, is void at all times.

65. Motion 15 of the 6th May 2025 Vote outside committee, as the committee meeting did not act reasonably in making the decision the motions, is void at all times.

66. Motion 17 of the 6th May 2025 Vote outside committee, as the committee meeting did not act reasonably in making the decision the motions, is void at all times.

67. Committee members of the Body Corporate for Somerset Garden CTS 25221, are not be acting in a way that is a nuisance to lot owners by approaching lot owner in their lots or by telephone and discussing Mrs or Mr Blackstock or the Caretaker Company Pango holding Pty Ltd.

• obtain two quotes, each detailing the work required for each sage of the maintenance requirements indented in the 2023 Fence Audit, and

• to ensure that the sinking fund forecast includes funding at the level of the highest of those quotes , and

• place motions on the agenda of the next body corporate meeting of the body corporate to approve the total spending on the fence maintenance requirements indented in the 2023 Fence Audit

• place motions on the agenda of the next body corporate meeting to engage one of the contractors who quoted to commence fence maintenance work that is due on the timings for each sage identified in the 2023 Fence Audit

69. The committee is required to do things necessary to put into effect resolution of the body corporate in:

[1] Section 276 and Schedule 5 of the Act

[2] Per MacGill DCJ in Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300 at [12]. In limited circumstances which do not apply here, an adjudicator may make an order on an application by only one of the types of parties mentioned in subsection 227(1), for example to change a body corporate's financial year date: Act, s 227(2)

[6] For general principles see for eg Australian Broadcasting Corporation v O'Neill [2006] HCA 46 and SDW2 Pty Ltd v JLF Corporation Pty Ltd & Ors [2017] QSC 1

[7] [2006] HCA 46

[8] Gleeson CJ and Crenna J agreed, at [19]

[9] Cohen v Peko-Wallsend Ltd [1986] HCA 70 at [6]

[10] BMW Australia Ltd v Brewster [2019] HCA 45 at [216]

[11] SDW2 Pty Ltd v JLF Corporation Pty Ltd & Ors [2017] QSC 1 at [21]

[12] See generally Accommodation Module, Ch 7

[16] Presumably the subject of the decision in Somerset Gardens [2025] QBCCMCmr 57

[17] Accommodation Module, Sched 1 dictionary

[18] Lumiere [2018] QBCCMCmr 517

[19] See for eg Kensington Gate [2021] QBCCMCmr 458; Coronaton Gardens [2021] QBCCMCmr 397

[20] See for eg Bahlaka Lodge [2021] QBCCMCmr 520 at [10] and other authorities cited therein.

[21] Ainsworth v Albrecht [2016] HCA 40 at [101]; Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [23], [96]-[100]

[22] Ainsworth v Albrecht [2016] HCA 40 at [84]; Beaches at [73]

[26] Orders 9,10 and 11 relate to the decision of the committee not to consider the motions submitted by the owner of lot 1 within the time frames under section 50 of the BCCM (Accommodation Module) Regulations. As the required time of section 50 was passed on the 14th April the motion is deemed not to have been passed. We believe that this is another example fo the committee not acting reasonably.