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

Whether orders may be made against a subsidiary body corporate in relation to the actions of the principal body corporate.

Act, s 270(1)(c); Accommodation Module, s 201(1).

[1] This application fails as it has been brought against the wrong respondent.

[2] The applicant owns lots 10 and 11 in the respondent, The Beach Club Palm Cove Commercial. The respondent is a subsidiary body corporate in a layered arrangement of community titles schemes. The Beach Club Palm Cove Principal CTS 30536 is the principal body corporate.

[3] The dispute concerns the applicant's use of toilets and a deck on the common property of the principal body corporate. The applicant says the principal body corporate:

1. prevented its continued use of the toilets
2. refused to authorise a transfer of the applicant's licence over the deck
3. removed the deck and a bar
4. engaged lawyers to issue threats
5. lodged complaints with government authorities
6. took these actions without involving the applicant, inviting it to meetings, passing resolutions, or providing minutes, and
7. failed to provide copies of records in relation to the above actions.

[4] The applicant seeks the following orders against the subsidiary body corporate:

1. A formal finding that the applicants and their tenants were denied natural justice. We were never consulted on any decisions, invited to any meetings or contributed to any instructions involving our lots. The body corporate acted unreasonably and without lawful authority.

2. A direction that the body corporate must produce:

• All meeting notices, motions, minutes, resolutions, and instructions from 1 January 2023 onward relating to Lots 10 and 11.
• All records authorising engagement of legal representatives or issuance of breach notices and compliance correspondence.

o An explanation for the absence of such records where applicable.

1. A declaration that any enforcement actions, breach notices, or representations made to third parties (including Cairns Regional Council and OLGR) in the absence of a valid resolution are of no effect.
2. An order restraining the body corporate, its committee members, and body corporate manager from making or authorising representations to external authorities without a properly passed motion or resolution.
3. Further or other orders as the Adjudicator considers just, including recognition of the prejudice suffered by the applicants through loss of business, disruption to tenants, and unnecessary legal expenses.

[5] But these orders all concern actions allegedly taken by the principal body corporate. The respondent had no control over the toilets and deck and made no decisions in relation to them. The applicant protests that complaints were lodged with the Office of Liquor and Gaming Regulation and Cairns local government without "disclosure to owners or the Commercial Scheme committee (of which I am a member)", indicating that those actions were also not taken by the respondent.

[6] As a committee member, the applicant is entitled to reasonable access to the respondent's records without paying a fee.[1] But the respondent says it has already provided access to the records sought by the applicant pursuant to order 2. In reply, the applicant clarified that its concern is:

...whether any lawful decision-making records exist which authorise the actions and positions taken by the Respondent in relation to Lots 10 and 11.

[7] As discussed, it was the principal body corporate that took the actions and positions at issue. There is no reason to suspect that the respondent holds any relevant records.

[8] The application is misconceived and is dismissed pursuant to section 270(1)(c) of the Act.

[9] The respondent asks that I order the applicant to compensate it for loss resulting from the application,[2] but it did not quantify its loss or provide any evidence of it. In any event, the applicant looks to have been an owner at the scheme for close to ten years and this is its first adjudication application. I will not order costs on this occasion, but an adjudicator may have regard to this dismissal if considering costs against the applicant in future. I encourage the applicant to ensure it brings any future application against the correct party.