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

GENERAL MEETING MOTION - whether the body corporate unreasonably failed to pass a motion.

Act, ss 62, 94, 100, 170-172

• [1] This application is about fencing on common property. It arises from a long history of dispute about the purported enclosure of common property. Many years ago, fences were erected on common property enclosing courtyards at the rear of each lot, but no by-law was recorded to give any owner exclusive use of the enclosed areas. Moreover, it appears a fence from the applicant's Lot 3 was installed or relocated to give Lot 3 a much larger courtyard.
• [2] At an annual general meeting (AGM) general meeting in 2023 the body corporate resolved (Motion 16) that the applicant relocate the Lot 3 fence and that it look at registering roughly equal exclusive use areas. If that motion was not unanimously resolved, the body corporate then resolved (Motion 17) that all 'illegal' fences be removed, to be coordinated by the owner of Lot 2 (Motion 18). The applicant apparently voted against the motions. The applicant asserts that the Lot 3 fence was then removed, but the Lot 1 and 2 fences remained.
• [3] As a result, the applicant put motions to the next AGM on 13 December 2024. Motion 22 proposed that owners accept the prior fencing and disputes as being settled in 2001, to formally document those boundaries, and to restore and upgrade all fences. If that motion failed, the applicant then proposed (Motion 23) that owners agree to amend the 2023 AGM Motion 18 to state that it be undertaken by 31 March and, if not completed by then, that the owner of Lot 3 complete the work. The applicant's motions failed to pass.
• [4] The applicant disputes the body corporate's decision not to pass Motion 23 and wants it deeded passed. They say if one fence was to be removed, all should be. So, I will consider whether the body corporate validly decided AGM Motion 23.

• [5] Sunbird Villa community titles scheme 966 (Sunbird Villa) is a 3-lot scheme in Port Douglas. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building unit plan 70661.
• [6] The application seeks the following order:

That motion 23 at the Sunbird Villas AGM 13 Dec 2024 ... be deemed to have passed because the owners of Lots 1 and 2 unreasonably withdrew support for the fence removals that they had previously given by approving motion 17 and 18 at the Sunbird Villas AGM 20 Sep 2025 ...

• [7] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[2]

• [8] The applicant applied for conciliation of this dispute in May 2025.[3] Each owner participated in a conciliation session in May but could not reach an agreement.
• [9] This application was lodged on 11 June 2025. The Commissioner invited submissions from the committee, body corporate manager, and all owners.[4] The owners of Lots 1 and 2 made submissions, which the applicant responded to.[5]
• [10] The application was referred to department adjudication.[6] I have now investigated the dispute, including reviewing the submitted material, titles records, and previous orders.[7]

• [11] The owner of Lot 1 says the owners of Lots 1 and 2 both thought they had purchased a property with an exclusive use area, and they want to right the situation.
• [12] The submitter claims the original owners agreed to put up fences so each lot would have a small exclusive use area, with the intention of having the areas officially recognised. But they say the applicant put up a fence to give Lot 3 a much bigger area and denied others the use of that part of the property. They say in 2001 it was ruled that the applicant should take down the fence and relocate it as per the original plan, and the decision did not consider whether the fences should be there or not. They say the applicant refused to take down the fence, but an order in 2023 said the previous orders stand. They submitted a motion to ratify the exclusive use areas as per the original design, but the applicant would only vote for a larger area.
• [13] The owner says they did not want to take the fences down but were at their wits end in trying to obtain use of the rear of the property. They say the owner of Lot 2 was to take the fences down but after the 2023 vote they received advice about problems arising from removing the fences. They say removing the fences and exclusive use areas would reduce the value of their investment, there would be less privacy and safety, and the costs they incurred on their yards could be lost. The owner says they have rental bookings based on a property with a back yard. They also say there is now a dog in Lot 2 which is best served with a yard and the applicant has previously laid baits which could affect the safety of the dog.
• [14] The submitter says they are now unsure how to solve the problem. They took down the fence that was ordered to be removed 24 years ago and offered to put the Lot 3 fence back where it originally was, but the applicant would not agree. They say the applicant was happy to put up the fences and fought to keep them for years, so it now seems contrary to now be adamant for them to be removed. They say the owner of Lot 2 has since removed the fence between Lot 2 and Lot 3, but the applicant has put up a barricade demonstrating the desire for privacy.
• [15] The owner of Lot 1 proposes the fence between Lots 1 and 2 be left up, that Lot 2 be able to put their fence back up, and that Lot 3 put a fence up where the allotment of roughly the same area was. They intend to put a motion to the upcoming AGM to revoke the motion to take down the fences, so there would then no longer be a motion that has not been carried out.
• [16] The submission details other issues experiences with the applicant.
• [17] The owner of Lot 2 supports the Lot 1 submission. They say the facts provided are correct to the best of their knowledge. They note that dealing with the applicant has been very difficult.
• [18] The applicant comments on some matters in the submissions. They suggest the owners of Lots 1 and 2 may have had a side agreement that only the Lot 3 fence be removed, but they acknowledge the fence between Lots 2 and 3 has been removed.

• [19] I will note the history of the scheme, and the dispute about fencing and exclusive use, much of which was outlined in a previous order.[8]
• [20] Sunbird Villas was created when building unit plan 70661 was registered on 15 July 1987, under the Building Units and Group Titles Act 1980 (BUGT Act) that was in force at the time.
• [21] The survey plan shows a two-story building wholly surrounded by common property.
• [22] On registration, the applicable by-laws were the default by-laws in schedule 3 of the BUGT Act. The body corporate did not subsequently resolve to amend the by-laws.[9]
• [23] When the current Act was enacted in 1997, it applied to Sunbird Villa. Pursuant to its transitional provisions,[10] a default CMS was automatically recorded when no CMS was recorded by the body corporate. The effect was that the by-laws for the body corporate were deemed to be those in force as of 1 July 2000, being schedule 3 of BUGT Act.
• [24] No subsequent CMS has been recorded. Notably, the body corporate has never recorded any by-laws granting any exclusive use over common property to any lot.
• [25] In 1999 former owners of Lots 1 and 2 each brought applications seeking exclusive use of a courtyard at the rear of their lot, having discovered after purchase that it was not registered.[11] Those owners agreed but the owner of Lot 3 (Dorothy Morgan) did not. It was noted that a fence at the rear of Lot 3 had been removed and a new fence erected by the owner of Lot 3 to substantially increase the Lot 3 courtyard. The applications were dismissed because of the disagreement about the size of the areas and the inadequate attempts to resolve that.[12]
• [26] In 2000 the former owners of Lots 1 and 2 each brought further applications about the matter.[13] The adjudicator was again not prepared to give each lot a grant of exclusive use. They said there was no automatic entitlement to exclusive use and the presumption was that all common property is for the collective use and enjoyment of all. But the adjudicator found the owner of Lot 3 had unilaterally annexed a disproportionately large piece of common property for their exclusive use by erecting a fence. They said if the owner of Lot 3 believed the original owner agreed to give them exclusive use of the disputed area, they should pursue legal action to establish that. Until that occurred, the adjudicator said they were not prepared to allow the unilateral unauthorised annexation of common property by one owner to the detriment of others. Accordingly, in May 2000 the adjudicator ordered the following in each application: [14]

RA Meek****I hereby order that the owner of lot 3, Dorothy Helen Morgan, shall at her expense, and within six (6) weeks of the date of this order, remove the fence which she has caused to be erected running from the south west corner of lot 3, due west to the rear boundary fence. y

• [27] Notably, the orders in 2000 did not direct the relocation of the Lot 3 fence - only its removal. However, the reasons for each order did conclude with the following comments:

This order will return the parties to the status quo which existed at the time of the purchase by [the then owners of Lots 1 and 2]. Following this, it is again for the parties to negotiate an allocation of common property. Failing the parties reaching an agreement on this issue, then the position created by this order will continue; namely each party will have a fenced rear courtyard of roughly equal area, but no party will have the added benefit of exclusive use of this area. This is reflective of what each owner purchased, and what I therefore consider each owner is reasonably entitled to.

• [28] The Commissioner's office was notified in August 2000 that Dorothy Morgan had appealed the May 2000 orders to the District Court,[15] but in March 2001 the appeal was discontinued.
• [29] On 8 October 2001 a Magistrate made an order to enforce the May 2000 orders.[16] The Magistrate registered the orders with the court, appointed an owner of Lot 2 to perform the obligations of Dorothy Morgan under the orders (being the removal of the fence), and ordered Dorothy Morgan to pay the expenses of the administrator and the costs of the enforcement application. But it does not appear the fence was removed at that time.
• [30] It appears the applicant has claimed a settlement was reached in 2001 about the fences and exclusive use areas. I am unable to identify any cogent evidence of any such settlement. But even if there was some agreement, that is not binding where there was no evidence of a general meeting resolution to grant exclusive use or record a CMS, and no CMS was recorded. Without clear evidence of that intent, any agreement could not displace the May 2000 orders.
• [31] In 2002 the owners of Lot 2 brought an application about the management of the scheme.[17] The ongoing issue about the courtyards was raised by the parties, implying there had been no agreement. However, it seems the issue was not actively pursued for many years.
• [32] In May 2023 the body corporate received legal advice. The solicitor noted there were no lawfully granted exclusive use allocations and so no right to annex an area of common property or divide an area of common property by a fence. They said the body corporate could lawfully remove any fence that purports to fence a courtyard but could not relocate fences.
• [33] Later in 2023, Dorothy Morgan brought an application disputing the 2023 AGM resolutions.[18] The application for interim orders was dismissed because a prima facie case had not been established.[19] The adjudicator noted it appeared owners had continued with de facto exclusive use of the fenced areas. They said the May 2000 orders for the removal of the fence had not been complied with and remained in force. The application for final orders was withdrawn.

• [34] I acknowledge there has been a long history of interpersonal conflict at this scheme. The adjudication process under the Act is not well-placed to resolve such conflict. Where the parties were unable to progress their dispute at conciliation, substantively I can only determine the legal issues raised. I will outline the relevant legal principles, consider the order sought by the applicant, and comment on the options for the parties moving forward.

• [35] All owners own common property as tenants in common and the occupier of each lot enjoys the right to the use of the common property.[20] Unless they have been granted particular legal rights over common property, no occupier has any greater right to the use and enjoyment of any part of common property than another. That is the case regardless of the area's proximity to a lot, the past or current usage, or the need or interest of any person to use the area.
• [36] A body corporate can resolve to give specific legal rights to common property in various ways. If the body corporate wants to sell or otherwise dispose of part of the common property, or grant a lease or license for more than 3 years over any or all of the common property, it must authorise that by a resolution without dissent.[21] A lease or licence over common property for 3 years or less can be approved by special resolution. But the most common way of giving rights to use common property or a body corporate asset is by exclusive use.
• [37] Exclusive use is granted by way of a by-law which attaches to a lot and gives the occupier the right to the exclusive use (or other special rights).[22] A resolution without dissent is required to approve a new CMS that includes (or amends or removes) an exclusive use by-law.[23] The owner of each lot benefiting from the grant must consent to the by-law applying or ceasing to apply before the resolution or vote personally in the relevant resolution.[24]
• [38] One approved, the new CMS must be recorded with Titles Queensland. Where the body corporate has not previously recorded a CMS other than the automatic CMS, it should also consider the other by-laws to be included in the new CMS. It could continue with the by-laws that currently apply (from schedule 3 of the BUGT Act), or decide to use the by-laws in schedule 4 of the Act, or decide on other by-laws. A special resolution is required to approve a new CMS to include or change by-laws other than an exclusive use by-law.[25]
• [39] An exclusive use by-law must specifically identify the common property to which the by-law applies.[26] The registrar of titles will normally require a survey plan to be included in the CMS clearly identifying the exclusive use areas.[27]
• [40] A body corporate can authorise an owner to make an improvement to the common property for the benefit of their lot.[28] Erecting a fence on common property would be an improvement.[29] But it has been consistently accepted that where an improvement to common property will have the effect of exclusively and indefinitely occupying the use of common property, it will amount to a disposition of common property that must be authorised by a resolution without dissent unless their existing legal rights to the area (such as a grant of exclusive use).[30] In numerous decisions the construction of a fence on common property by an owner, even if purportedly approved, has been invalidated where the effect was to prevent others using the common property and there has been no specific grant of rights to use the area.[31]

• [41] A body corporate must act reasonably in undertaking its functions, including in making or not making a decision.[32] Similarly, a committee must act reasonably in its decision-making.[33]
• [42] Given the history of the scheme, and the failure to agree on exclusive use allocations, it was prima facie open to the body corporate to resolve at the 2023 AGM to remove all the fences at that purported to alienate common property. For that reason, the adjudicator in 2023 was not satisfied the applicant had established a prima facie case about the validity of the resolutions.
• [43] But having resolved to remove all fences, the body corporate should have implemented the resolution.[34] Alternatively, if owners changed their minds about thar, the body corporate could have resolved at a subsequent general meeting to rescind the resolutions.[35] The body corporate did neither. Instead, one fence was removed at the time, another after this application was lodged, and a third remains.
• [44] I acknowledge the frustration for the applicant in that situation. That said, there is considerable irony in the applicant objecting to a delay of 1 or 2 years in removing the Lot 1 and 2 fences when the Lot 3 fence was not removed until nearly 24 years after its removal was ordered. All owners have used common property to the exclusion of others without proper authority. But the applicant has alienated a considerably larger area of common property without authority, in direct contravention of legally binding orders, and to the detriment of the other occupiers.
• [45] The issue now is the current order sought. The applicant wants 2024 AGM Motion 23 deemed passed. By that motion the applicant sought to amend 2023 AGM Motion 18. Motion 18 resolved 'That the body corporate agrees to the owner of lot 2, the only permanent resident on site, coordinates the timing of the fence removal project and trades involved at no additional cost, and he provides a monthly update on progress to the other owners.' The applicant sought to add the words '...to be completed by 31 March 2025 and, if not completed by that time, then the owner of Unit 3 will be commissioned to complete the works forthwith.'
• [46] While the applicant might want the timely implementation of the 2023 motions, the application does not clearly establish why it was unreasonable for the body corporate to decide not to pass the particular amendments proposed.
• [47] The wording proposed, when simply added to the wording of the original motion, does not entirely make sense. The applicant has not explained the particular deadline in the motion or why it would be unreasonable not to agree to that timing. And, particularly given the context and history of dispute at the scheme, the applicant has not explained why other owners must agree to the owner of Lot 3 undertaking the work.
• [48] While the body corporate should implement the 2023 AGM resolutions if they are not rescinded, the applicant has not established that it must do so in the time or manner proposed. The applicant bears the onus of establishing that the body corporate failed to act reasonably in deciding not to pass 2024 AGM Motion 23. I am not satisfied of that.

• [49] The applicant has not satisfied me that the particular order sought should be made. I will dismiss the application. However, I consider the body corporate should implement its 2023 AGM resolutions completely unless those resolutions are rescinded.
• [50] Whatever happens with the 2023 AGM resolutions, the substantive dispute that has existed for over 25 years at this scheme, being exclusive use of courtyards at the rear of each lot, would not be resolved by the order sought in this application.
• [51] It is certainly unfortunate if any or all of the owners were misinformed by sellers or others as to the extent of the lot they were purchasing or their right to the use of adjacent common property. Any misleading conduct in that regard is beyond the jurisdiction of this office. Moving forward, it seems clear all owners would like exclusive use of a courtyard at the rear of their lot and would like those courtyards fenced for privacy and security. That certainly seems appropriate. However, numerous previous attempts to achieve that have been unsuccessful. The stumbling block is evidently the size of the area to be allocated to Lot 3.
• [52] It seems to me there are three main options for owners moving forward.
• [53] First, all fences and barricades on common property could be removed and all occupiers would have unrestricted access to all areas of the common property at the rear of the lots. Although that may be the least desirable for all owners and occupiers, it is arguably the only option if exclusive use cannot be resolved.
• [54] Second, the body corporate could resolve to record an exclusive use by-law granting each lot exclusive use of a similar sized area of common property at the rear of the lots. The body corporate could then resolve to permit owners to install or retain fences that delineate those areas. If a motion to that effect was submitted and not passed, the decision not to pass it could be challenged in this office. An adjudicator could potentially find the opposition to the motion was unreasonable in the circumstances, and give effect to the motion.[36] The long history of unresolved conflict on this issue, the clear desire of all owners for exclusive use of a courtyard, and the apparent absence of any cogent evidence that the owner of Lot 3 ever acquired any right to a greater area of common property, may be factors favouring such a claim.
• [55] A third option is that the body corporate could resolve to record an exclusive use by-law granting the owners of Lots 1 and 2 exclusive use of a similar sized area of common property at the rear of their lots and granting a larger area to Lot 3. Again, the body corporate could then resolve to permit the owners to install or retain fences that delineate those areas. If a motion proposing that arrangement failed to pass, again the decision could be challenged. However, unless the owner of Lot 3 could provide cogent evidence that they ever acquired a right to a greater area of common property, or offered adequate compensation to the body corporate for the acquisition of greater rights to common property than the other lots and the corresponding loss of the use of common property,[37]it might be difficult to sustain an argument that any opposition to that proposal was unreasonable.
• [56] I encourage all owners to put the history of conflict behind them and to work constructively to resolve the issue of the use of the yards behind lots for the benefit of all owners.
• [57] Also, if the committee or any owner proposes submitting a motion to record a new CMS with exclusive use areas, I would encourage them to obtain professional advice about the form of the motion, and the contents of the CMS including the survey plan of exclusive use areas to ensure that all necessary requirements are met.

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

[8] Sunbird Villa [2023] QBCCMCmr 420

[9] Titles dealing 702335233 dated 14 November 1997 is identified as being notification of a change of by-laws but was actually notification of a change of address.

[11] Applications 0587-1999 and 0588-1999

[12] Orders were made on both applications on 8 December 1999 but were unreported.

[13] Applications 0011-2000 and 0012-2000

[14] Sunbird Villa [2000] QBCCMCmr 215 and Sunbird Villa [2000] QBCCMCmr 216

[17] Application 0092-2002, with an interim order made in February 2002 (Sunbird Villa [2002] QBCCMCmr 81) and final orders made in May 2002 (Sunbird Villa [2002] QBCCMCmr 341)

[19] Sunbird Villa [2023] QBCCMCmr 420

[21] Section 184 of the Standard Module

[28] Sections 187 and 193 of the Standard Module

[29] Noting the definition in schedule 6 of the Act

[30] Noting in particular Katsikalis v Body Corporate for "The Centre" [2009] QCA 77 and Dansur v Body Corporate for Cairns Aquarius CTS 1439 & Anor [2022] QCATA 15

[31] For example, Surrey Gables One [2010] QBCCMCmr 557, Halcyon Waters [2020] QBCCMCmr 203, Paradise Boulevard South [2022] QBCCMCmr 277, Parkgarden [2024] QBCCMCmr 315

[35] Pursuant to section 115 of the Standard Module

[36] See item 10 of schedule 5 of the Act

[37] Noting Ainsworth & Ors v Albrecht & Anor [2016] HCA 40