//
austlii:qld/QBCCMCmr/2026/34
General information, not legal advice.
QBCCMCmr
2026-02-12
Original judgment source is linked above.
Thorncroft [2026] QBCCMCmr 34
Body Corporate and Community Management Act 1997 (Qld) (), and (3)(a)
ADMINSTRATOR - whether an administrator should be appointed - BODY CORPORATE MANAGER - whether the body corporate manager should be dismissed.
[1] This application is about the administration of the body corporate.
[2] It appears this body corporate has not had an elected committee for some years, with the owners of 3 lots unwilling to join the committee. The body corporate has appointed KBW Community Management Pty Ltd (KBW) as a body corporate manager (BCM) in place of the committee under what is often referred to as a 'Part 5 engagement'.
[3] The applicant objects to KBW, its conduct, its management of the scheme, and its failure to provide reports. He says there are critical maintenance issues at the scheme that have been outstanding for up to 5 years. He asserts work that is required to be completed by the body corporate's insurer is unlikely to be completed, likely putting the body corporate in breach. The applicant also disputes KBW's appointment.
[4] The applicant asserts the body corporate and its management is dysfunctional. He seeks the appointment of an administrator for 3 months, at the body corporate's cost, and the dismissal of KBW. The question then is whether there is any basis for orders to be made.
[5] Thorncroft community titles scheme 4662 (Thorncroft) is a 4-lot scheme in Highgate Hill. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building unit plan 10897.
That a Body Corporate Administrator be appointed for a period of 3 months pursuant to Section 301 of the Act with the remuneration paid for by the Body Corporate pursuant to Sub-section 5 and KBW be formally dismissed as BC Manager.
[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] Substantively, I have jurisdiction under the dispute resolution provisions to determine this application,[2] but I will discuss my capacity to decide some matters raised in my analysis.
[8] The applicant originally applied for conciliation about various matters in June 2025.[3] In September 2025 the conciliator issued a certificate ending the conciliation on the basis that the body corporate did not have a functioning committee at the time.
[10] The Commissioner then invited submissions on the application from the body corporate and all owners, along with the applicant's partner who is an occupier of Lot 4 and was identified in the application as an affected person.[6] Submissions were received from KBW and the affected person. The applicant responded to the submissions.[7]
[12] KBW made a submission, said to be on behalf of the body corporate in its capacity as BCM under a Part 5 engagement. The submission includes:
[13] The affected person made a submission in support of the application and endorsing the personal and property impacts described in the application. They comment that another owner declines to comment or meet to discuss issues. They note the EGM but say there will be no physical meeting and there has been no progress on guttering or the roof leak.
[14] The applicant says there is no indication that any of the works related to the EGM motions have proceeded and nothing has been done for 5 of the 6 months of the insurance renewal deadline extension.
[15] The applicant also disputes the acceptability of the KBW submission. He says that as the conciliator deemed KBW unsuited to represent the body corporate at conciliation, it follows that it is unsuited to represent the body corporate with the submissions. He says his legal advice is that KBW is not lawfully appointed.
[16] As to that argument, I see no reason to disregard the submission from KBW. I consider its contents to be at least peripherally relevant to the matters in dispute regardless of any question of the validity of KBW's current engagement. Moreover, I do not consider the conclusions of the conciliator as to the capacity of any person to represent the body corporate at a conciliation in September 2025 is determinative of the current status of KBW's engagement or its ability to comment on the matters raised by the current application.
[17] The Act requires an adjudicator to investigate whether it would be appropriate to make an order on an application.[10]
[18] After reviewing the submitted material and the issues raised by the applicant, I asked a member of the Commissioner's office to contact KBW to request minutes of the December 2025 EGM, and to advise the status of the matters required by the insurer and the body corporate's insurance.
[19] KBW provided the minutes of the EGM at which motions were passed to obtain a roof condition report, a fire penetration inspection, and a work health and safety report, and to undertake fire services and grounds maintenance. KBW advised that the workplace health and safety requirements had been completed and a work order was being issued on 6 February for passive fire works. In regard to the roof inspection report, KBW said the gutters require work and there was a small roof leak, but quotes had not yet been sought. KBW further advised that the current insurance had been extended to 1 March 2026. It said the body corporate had been offered insurance with an alternative company but preferred to stay with its current insurer.
[20] I provided this information to the applicant and invited him to comment on it. Although I did not mandate a response, the applicant objected to the 'need' for a further submission.
[21] The applicant said the information provided by KBW was too little too late after years of procrastination and unprofessional conduct. He asserts the documents indicate that the building will not comply with building standards and will be uninsurable. He further says regardless of the outcome of the insurance cover from 1 March, the 'wilful negligence' of putting the body corporate at risk of un-insurability should be grounds for dismissal. He then says the other issues in his conciliation and adjudication applications remain unaddressed. He refers to the general lack of maintenance, dysfunctionality and conflict, and lack of BCM reports. He provided further information on several matters.
[22] The role of an adjudicator is to decide whether to make an order on an application. Having regard to the requirement to observe natural justice, that necessarily requires a determination on the legal questions raised by the order actually sought in the application, rather than on any ancillary, underlying, or related issues that may concern an applicant.[11]
[23] The issues raised by the order sought in this application are whether an administrator should be appointed and whether KBW should be 'dismissed'. Notably, the application does not specifically seek orders to invalidate any body corporate meetings, invalidate any motions passed at any meeting, overturn the decision of the body corporate not to pass any motions, require the body corporate to undertake specific work, or require the body corporate or KBW to undertake any other action.
[24] Having regard to the matters that appear to be of concern to the applicant, in deciding this application I will first note some general information about BCMs and administrators. I will then discuss the basis for the particular order sought, as best as I can identify that from the submitted material (and noting that I have found the grounds to the application somewhat difficult to follow).
[25] A BCM is a person (including a company) engaged to supply administrative services to a body corporate.[12] A body corporate is not required to have a BCM. However, even in small schemes, owners can find it simpler to engage a BCM to assist in meeting the sometimes complex administrative requirements of the legislation. That may be particularly the case where there is conflict between owners.
[26] Ordinarily, a BCM may be authorised to exercise some functions of executive committee members but will remain at the direction of the committee. The legislation provides detailed provides regarding the engagement and conduct of a BCM.[13] Notably, a BCM is bound by a code of conduct in performing their duties under their engagement and that code is taken to be included in the terms of their contract.[14]
[27] But the legislation also provides for a body corporate to engage a BCM instead of having a committee.[15] If there is no committee, the body corporate can authorise a BCM to exercise the powers of the committee and executive members of the committee. It can revoke that authorisation in writing at any time. If appointed on that basis, a decision of the BCM will be a decision of the body corporate unless it is on a restricted issue for the committee.[16]
[28] Part 5 of chapter 3 of the Standard Module sets out the requirements for engaging a BCM to carry out the functions of the committee and executive members of the committee (hence the term 'Part 5 engagement'). Some of the provisions that otherwise apply to the engagement of a BCM do not apply to a BCM acting under a Part 5 engagement.[17] But they are bound by the code of conduct for BCMs.
[29] The regulations set out when a Part 5 engagement can occur,[18] the form of the engagement,[19] and the functions and powers of the BCM under the engagement.[20] The term of the engagement ends either at the next annual general meeting (AGM) after the engagement was approved, or after 12 months, whichever is earlier, unless the body corporate terminates the engagement earlier.[21] The regulations also require the BCM to give owners a written report about the administration of the body corporate, which must include certain information, within 21 days of the end of each 3 month period for which the person is engaged as BCM under this part, or otherwise if asked by at least half of the owners.[22]
[30] If a BCM is engaged, either to assist the committee or in place of the committee, the body corporate is the entity that remains responsible for its statutory obligations. The primary decision-making forum for a body corporate is at a general meeting. The engagement of a BCM does not displace the responsibility of the body corporate and its member owners to make decisions as necessary to ensure the body corporate meets its obligations.
[31] The legislation does not provide for adjudicators to appoint BCMs. But it empowers an adjudicator to appoint an administrator and authorise that administrator to perform obligations of the body corporate, its committee, or a member of its committee under this Act or the CMS.[23] An administrator appointed by an adjudicator has the powers given to the administrator under the order.[24] Appointed administrators often undertake similar functions to a BCM, but the role is quite distinct.
[32] The power to appoint an administrator must be considered in the context that the responsibility for self-management is an inherent aspect of community titles schemes.[25] Administrator appointments can deprive owners of the right to decide for themselves how their body corporate will be managed and can have a significant cost. An appointment can displace the power of the committee or body corporate to make decisions and manage the scheme, and the power of owners to determine how their body corporate will be managed.
[33] From time-to-time adjudicators appoint administrators for a short time in place of a committee to 'restart' a body corporate, for example if it has ceased to hold general meetings or there is no committee able to call a general meeting. But beyond that adjudicators rarely appoint administrators unless there are compelling grounds to do so.
[34] In overturning the decision of an adjudicator to appoint an administrator in scheme with considerable long-term disagreement, the former Commercial and Consumer Tribunal said:[26]
Appointment of an administrator is within the power of an adjudicator (section 276(3) and Schedule 5 of the BCCM Act), no criteria are prescribed for doing so, but it is a significant step since it takes responsibility for the conduct of the affairs of the body corporate out of the hands of the committee and vests it in the administrator. An applicant must therefore demonstrate to the required standard that such a step is appropriate. Typically, without attempting to be exhaustive, there will be evidence that the body corporate is so dysfunctional that it cannot operate properly within the statutory framework that governs it, or that there is a well founded suspicion, on the part of an applicant for appointment of an administrator of financial malpractice within the body corporate, or that there is conduct that amounts to undue oppression in the conduct of its affairs. Without more, mere disagreements between the members, especially when the disputes are due to reasonably held differences of view and there are means available to resolve them by reference to external processes.
[35] There are several avenues for owners to raise concerns about actions and decisions within body corporate. They can write, meet, submit motions, and request a general meeting be called to consider proposed motions. If internal steps are unsuccessful, they can bring a dispute resolution application challenging particular actions and decisions.
[36] In that context, to substantiate an administration appointment an applicant must usually provide substantive evidence that the administration of the body corporate has broken down irretrievably or is in such disarray that the body corporate is fundamentally breaching its obligations in a way that cannot be resolved without intervention. Alternatively, an applicant would need to evidence significant malpractice or oppression. It is not enough for an applicant to disagree with the decisions made by the majority or the committee, or to be in conflict with others, or even to establish instances of legislative non-compliance.
[37] The first part of the order sought by the applicant is for an administrator to be appointed for 3 months, at the body corporate's expense.
[38] The applicant nominates Mr Benjamin Goodman. By a letter on 17 November 2025, Mr Goodman consents to being appointed as administrator for Thorncroft. Mr Goodman supplies details of his qualification and experience, and the terms under which he would accept the appointment, including his remuneration rate. Mr Goodman states there is no actual or perceived conflict of interest in his appointment as administrator. I note that on 15 October 2025 Mr Goodman wrote to KBW as a solicitor acting for the owner of Lot 4 (the applicant) about his client's dispute with the body corporate.
[39] The applicant does not say what functions he proposes the administrator undertake during the appointment. He does not indicate what obligations he wants the administrator to perform or what powers he wants the administrator to be given. He does not say if he wants the administrator to act in place of the committee, or executive members of the committee, or to undertake all the functions of the body corporate as a whole. He does not, for example, propose that the administrator reconvene the 2025 AGM or hold any other general meeting. To the extent that the applicant is concerned about maintenance and meeting the requirements for the insurance renewal in time, the applicant does not explain why an administrator is more likely to achieve that. And the applicant does not indicate what would happen, or how the body corporate would be managed, after the administrator period ended.
[40] Mr Goodman's consent to the engagement says his role would "...generally be to address unmet statutory obligations of the Body Corporate or Lot Owners, bringing the Body Corporate into a safe and normal level of compliance and administration and prepare the Body Corporate for self-management or the engagement of a Body Corporate manager." He then says, "My powers as administrator would be at least those necessary, in my view, to undertake the actions required of me on behalf of the Body Corporate and would be subject to my approval before I act on any matter."
[41] I consider the information provided by the applicant as to the nature and purpose of the proposed appointment is too vague to enable an appointment to be made.
[42] If that deficiency in the application could be remedied, I will consider why the applicant considers an administrator is warranted. In general terms he asserts the body corporate or KBW is dysfunctional. He indicates an administrator is needed because necessary repairs have not been undertaken, because of KBW's alleged failings, and because the body corporate may not meet its insurance obligations. I will comment on these.
[43] A body corporate has a statutory obligation to maintain common property and other aspects of scheme land in good condition.[27]
[44] If an owner considers a body corporate has failed to meet that obligation, they can submit motions to the committee or a general meeting (accompanied by quotes as appropriate) proposing that the body corporate undertake the work the owner asserts is required. If the body corporate does not pass such motions or otherwise fails to undertake maintenance the owner believes is required, the owner could pursue a dispute in the Commissioner's office seeking that the maintenance be undertaken.
[45] It may well be that this body corporate has not undertaken all maintenance required of it or has not undertaken maintenance as promptly as might be appropriate. However, exactly what is currently required is not necessarily substantiated from the assorted allegations and opinions in the application. Referencing communications and motions about maintenance issues shows that concerns have been raised, but not that the concerns have merit, or that the body corporate is not currently meeting its statutory obligations.
[46] More fundamentally, if the body corporate has breached its maintenance obligations, that would not of itself be a basis to appoint an administrator. It is regrettably common for bodies corporate to not always undertake all required maintenance. Orders to require compliance (for example, to undertake particular work where the need for it has been substantiated) can be warranted if the issue cannot be resolved internally. But instances of statutory non-compliance do not mean the body corporate is so dysfunctional that it can no longer function independently. And it would not of itself warrant the removal of the right of owners to determine how their body corporate is managed.
[47] In this case, the minutes of past meetings evidence that the body corporate has passed motions relating to maintenance issues. At the EGM in December 2025 numerous such motions were resolved, some with the applicant's support. There may be questions of whether resolutions have been implemented, but it does appear that at least some have. Accordingly, regardless of the merits of the applicant's concerns about the maintenance of the scheme, the applicant has not yet established that there is such wholesale non-compliance with maintenance obligations that would rise to the level that would warrant the intervention in the management of the body corporate by way of an administrator.
[48] The applicant makes numerous allegations about KBW.
[49] The applicant says KBW has left insufficient time to complete the work required for the body corporate to be reinsured. He says it failed to fulfil its responsibilities in expediting urgent repairs authorised by AGM motions. He criticises KBW's attempts to organise work.
[50] The applicant says KBW failed, without explanation, to issue the agenda for an AGM that apparently was to have been held in July 2025. He says it ignored his solicitor's advice that the AGM it called for October 2025 was unlawful.
[51] The applicant says KBW has only provided one of the reports it is required to provide under its Part 5 engagement, despite his requests. That report was apparently provided in October 2022. The applicant says KBW agreed at the 2024 AGM to provide a report but did not.
[52] The applicant also alleges breaches of numerous sections of the BCM code of conduct. He says KBW has not done anything to resolve disputes in the body corporate and has increased conflict by accusing him of intimidation. He alleges failures to respond to communication, bullying, and victimisation.
[53] There may be genuine concerns about the way KBW has undertaken its functions. But the application comprises broad allegations, many of which are not clearly explained or substantiated, particularly by reference to the contractual and statutory duties of KBW as distinct from the obligations of the body corporate. And as the applicant has not sought specific orders about the actions or performance of KBW (to the extent that any such orders would be within the jurisdiction of an adjudicator to decide), I do not consider it is open to me to investigate or make findings on the multifarious allegations made by the applicant. Moreover, the applicant does not appear to have properly pursued the statutory processes to address issues about KBW's performance (which I will discuss further below). There are also indications that the applicant may consider KBW to be responsible for some things that the body corporate would need to decide at a general meeting.
[54] It is also relevant that 3 of the 4 lot owners voted in October 2025, for at least the third year in a row, to engage KBW as BCM in place of a committee. That indicates, in the absence of any submissions to the contrary, those owners are satisfied with KBW's performance. While clearly the applicant disagrees, the views of the majority of owners about the preferred arrangements for the management of the body corporate should not be lightly disregarded.
[55] At this stage, the applicant has not satisfied me that his concerns about the conduct of KBW warrant the appointment of an administrator.
[56] The applicant asserts that because certain things required by the body corporate's insurer have not been done or evidenced, or cannot be done before the renewal date for the current insurance policy, the body corporate is likely to be without insurance.
[58] The applicant may have genuine concerns that the body corporate has previously failed to provide information that its insurer requires to continue to insure the scheme. I am unable to identify evidence of the insurer's requirements in the material submitted by the applicant. But, in any event, at this stage the applicant has not provided evidence that the current insurer has declined to renew the scheme's insurance, or that the body corporate would be unable to obtain the required level of insurance through a different company if it did. He does not evidence that the body corporate is yet in a position that it cannot meet its insurance obligations. At this stage, it just seems to be speculation by the applicant.
[59] Moreover, even if circumstances arose where the body corporate was unable to meet its insurance obligations that would not necessarily justify an administrator appointment. It might simply warrant orders to require the body corporate to fulfil the steps necessary to be able to obtain adequate insurance or, potentially, orders for the approval of alternative insurance.[30]
[60] Ultimately, where the applicant has not yet established that the body corporate has failed to meet its statutory obligations regarding insurance, I am not satisfied that the applicants concerns on that issue does not evidence the level of dysfunction that would justify the appointment of an administrator.
[61] The applicant also variously alleges the body corporate is dysfunctional because it did not accept the offer of conciliation, the owner of Lot 1 was critical of the applicant but did not agree to conciliation, the 2025 AGM was held despite the advice of his lawyer, and the body corporate voted to appoint KBW under a Part 5 engagement at the unlawful AGM. He then further says the body corporate has 'wilfully not acted reasonably' on multiple occasions. He says the body corporate is tolerating the conduct of KBW and so is breaching the code of conduct in schedule 1 of the Act.
[62] The conciliation certificate issued in September 2025 does not say the conciliation was ended because any party refused to participate. Rather, it seems the conciliator was not satisfied (at the time) that there was anyone who could represent the body corporate in conciliation. But if KBW or other owners declined to participate in conciliation with the applicant, I do not immediately see why that would evidence a level of dysfunction in the body corporate that would warrant the intervention of an administrator.
[63] There may be questions about the validity of the 2025 AGM and the resolution to engage KBW at that AGM. I will comment on that further below. But body corporate meetings and decisions are frequently invalidated for a range or reasons. The invalidation of a meeting or a resolution is not of itself evidence that a body corporate is persistently unable to function.
[64] I am unclear from the submitted material what decisions the applicant is asserting the body corporate acted unreasonably in making or not making.[31] Again, if it was substantiated that individual decisions were unreasonable, they could be overturned. But that would not of itself justify an administrator. I would also note that the body corporate and the other owners at this scheme are not committee members and so are not bound by the obligations in the code of conduct for voting members of the committee in schedule 1A of the Act.
[65] Although the applicant clearly objects to KBW and the position of other owners at the scheme, it is evident the body corporate has held regular meetings and has made decisions on many matters that are required for a body corporate to function. It has set budgets and contributions, approved insurance, and engaged a BCM in place of a committee. At least some motions regarding maintenance have been passed. While the applicant may not agree with the body corporate's decisions to pass some motions or not pass others, and could challenge individual decisions, this does not evidence fundamental dysfunction.
[66] While the applicant may prefer face to face discussions with other owners about matters concerning the scheme, there is no statutory reason why owners cannot choose to participate in body corporate decision-making only via voting papers submitted to a formally convened general meeting.[32] While in some cases direct discussions may be constructive, substantively the body corporate can only make decisions by voting on properly notified motions. If there is interpersonal conflict, such arms-length decision-making may be more appropriate. Other owners, either individually or collectively, are not required under the legislation to meet with the applicant. And I can see no reason why they would be obliged to accept direct correspondence from the applicant.
[67] If the applicant believes individual owners have contravened the by-laws (which is indicated in the documentation provided), and can substantiate that allegation, he can pursue a dispute in that regard.[33] But by-law breaches by owners would not establish that the body corporate itself is dysfunctional. Individual owners are separate entities from the body corporate and while the body corporate must enforce the by-laws, it would not be responsible for an owner's by-law contravention.
[68] If the body corporate is not currently meeting all its statutory obligations (which is not necessarily substantiated at this stage) the applicant has simply not established the level of dysfunction, malpractice, or oppression that would warrant the appointment of an administrator to displace, even temporarily, the right of owners to determine how their body corporate will be managed. That is particularly so when the nature or purpose of the proposed administrator appointment is not adequately identified.
[69] The second part of the order sought by the applicant is for the dismissal of KBW. While the applicant clearly objects to KBW, the applicant does not explain the legal basis on which he asserts that an adjudicator can make an order to 'dismiss' KBW.
[70] To the extent that KBW has been engaged by the body corporate as BCM, it is for body corporate to resolve to terminate that engagement. The legislation sets out the process for the body corporate to terminate a BCM engagement.[34] The failure to carry out duties under the engagement, to comply with the code of conduct, or to provide Part 5 engagement reports are some of the grounds for a body corporate to decide to terminate an engagement. But the body corporate (or at least half of owners in the case of a Part 5 engagement) must first give the BCM a remedial action notice and then, if the notice is not complied with, the body corporate could pass an ordinary resolution to terminate the engagement.
[71] It is evident that the body corporate has not issued a remedial action notice to KBW or resolved to terminate KBW's engagement. Although the applicant asserts that KBW has breached its code of conduct and has failed to provide reports, it is not evident that he sought a remedial action notice on that basis. On 1 August 2025 the applicant only proposed (in the form of a voting paper sent to other, albeit not for a formally convened body corporate meeting) to issue a remedial action notice to KBW directing it to organise repairs and maintenance. The proposal referred to the obligations of the body corporate under the legislation, but not specifically to the obligations of KBW under the legislation or the terms of its engagement. The applicant did not include a copy of a proposed remedial action notice or otherwise include all the details required to be included in such a notice. It does not appear that any other owner agreed. And as it seems the applicant's proposal was not put as a formal motion to a meeting, there is no body corporate decision that can be challenged.
[72] Where the statutory processes for terminating a BCM have not yet been properly pursued, there is arguably no proper dispute yet in that regard. But in any event, a department adjudicator is not empowered to terminate the engagement of a BCM. Moreover, a dispute about the termination of the engagement of a BCM is a dispute about a contractual matter.[35] A dispute about a claimed or anticipated contractual matter about the engagement of a BCM is a 'complex dispute' that can only be determined by a specialist adjudicator (appointed by agreement of the parties) or by the Queensland Civil and Administrative Tribunal.[36]
[73] I am unclear if, alternatively, the applicant is seeking an order for the 'dismissal' of KBW on the basis that it was not validly appointed at the 2025 AGM. If that is his position, it is not explicitly stated in the grounds to the application. Moreover, the applicant has not sought orders to invalidate the 2025 AGM or Motion 13 at that meeting.
[74] Minutes included in the application indicate that the body corporate engaged KBW under a Part 5 engagement at the AGMs on 26 July 2023 (Motion 40, with 3 votes for and 1 against) and 22 August 2024 (Motion 16, with 3 votes for and 1 against). Although I have not been given the minutes of the AGM in July 2022, the submitted material suggests a similar motion was also passed (Motion 18, with 3 votes in favour and 1 against) at that meeting, and that KBW had previously been engaged as a BCM since 2020. It is not evident the applicant disputed the validity of those past meetings or resolutions.
[75] The 2025 AGM was purportedly held on 28 October 2025. The owners of Lots 1 to 3 voted on the AGM motions. By Motion 13 (with 3 votes for and nil against), the body corporate purported to engage KBW as BCM under a Part 5 engagement.
[76] The applicant clearly disputes the validity of the 2025 AGM and the engagement of KBW. He relies on a letter from Mr Goodman on 15 October 2025 in this regard. That letter said that because a Part 5 engagement cannot be for a term of more than 12 months, the engagement approved at the 2024 AGM expired on 21 August 2025. It says KBW did not attempt to convene the AGM within 90 days of the end of the financial year, without explanation, and did not issue an invitation for owners to submit motions or nominations until 31 September. It said KBW's powers had expired, it was in breach of its obligations, and it was obliged to convene an EGM to attempt to form a committee.
[77] Prima facie, KBW did not have the authority to call the 2025 AGM after its engagement had ended in August 2025. Where there is a question about the authority of a person to call a body corporate meeting, it follows that there will be questions about the validity of meeting and any resolutions. But a meeting and its purported resolutions are not automatically invalid simply because of a defect in the way that the meeting was called or conducted.[37]
[78] The applicant did not seek an order to invalidate the 2025 AGM or Motion 13. If that was the applicant's intention notwithstanding, the body corporate, KBW, and other owners were not on properly notice that such an outcome was sought by this application. The application cannot now be amended to specifically seek such orders.[38] But if specific outcomes to that effect had been sought, it is not immediately evident that an order to invalidate the AGM or Motion 13 would be warranted or that there would be any utility in such an order now.
[79] To the extent that KBW was no longer empowered to convene the 2025 AGM after the expiry of its engagement, and where there were no committee members, technically the only option at the time would have been to seek an order for an administrator to undertake the functions of the committee for the limited purpose of convening the AGM.[39] That did not occur. But arguably events have overtaken the utility of such an order.
[80] Where the majority of owners have resolved to engage KBW every year for several years, and holds the records, KBW would have been the obvious choice to appoint as administrator to convene the 2025 AGM. But if someone else was appointed, there is no indication that the voting on Motion 13 or any other AGM motion would have been any different. Similarly, if the 2025 AGM was invalidated now and an administrator was appointed to reconvene it, there is no indication that the voting on any motions would have been different.
[81] In that context, the applicant has not established that there would be any utility in invalidating the 2025 AGM (and consequently the engagement of KBW pursuant to Motion 13) if in fact the outcome that he is seeking.
[82] The applicant appears to believe the appointment of an administrator is a straightforward matter. That is not the case. The applicant may have genuine concerns about maintenance, insurance, and the administration of the body corporate. The current circumstances may well be causing inconvenience and distress for the applicant and his partner. There may be merit to some of the concerns. However, for the reasons outlined, the applicant has not established that the appointment of an administrator is justified in the current circumstances. Moreover, the applicant has not established that I can or should 'dismiss' KBW. It follows that I have dismissed this application.
[83] Clearly there are many matters that are unresolved for the applicant. It is open to him to submit general meeting motions for those things he wants the body corporate to do.[40] As his lot represents 25% of lots in the scheme, he can requisition a general meeting to be held to consider those motions if required.[41] If the applicant disputes the validity of any such meeting or the decisions made on any motions, and is unable to resolve his concerns directly, he could pursue a future application to challenge the meeting or decisions.[42]
[84] For their part, I would encourage KBW and other owners to carefully consider what further action is required for the body corporate to meet its insurance, maintenance, and other statutory obligations. KBW should also have particular regard to its obligations under the terms of its engagement, including the requirement to provide quarterly reports under a Part 5 engagement.
[2] Sections 227, 228, 276 and schedule 5 of the Act
[11] Noting McColl & Anor v Body Corporate for Lakeview Park CTS 20751 [2004] QCA 44, para 32
[13] Noting sections 119 and 122 of the Act, and chapter 6 of the Standard Module
[14] Section 118 and schedule 2 of the Act
[17] Section 134 of the Standard Module
[23] Noting Item 23 of schedule 5 to the Act
[26] Surace v Commisso [2009] QCCTBCCM 42, paragraph 44
[27] Section 180 of the Standard Module
[28] Chapter 8, part 6 of the Standard Module
[29] Section 197 and 198 of the Standard Module
[30] Pursuant to sections 189 and 281A of the Act
[31] Noting its obligation in section 94(2) of the Act
[32] It is not apparent that the body corporate could make binding decisions by way of owners responding to voting papers generated and circulated by the applicant.
[33] Noting the preliminary procedures for such applications in chapter 3, part 5, division 4 of the Act
[34] Sections 149 to 152 of the Standard Module
[35] See the definition of 'contractual matter' in schedule 6 of the Act
[36] See sections 149B, 229 and 264 of the Act and the definition of 'complex dispute' in schedule 6 of the Act
[37] As discussed, for example, in Lovel v The Body Corporate for The Reserve (No 2) [2018] QCATA 169, Carroll and Ors v Body Corporate for Palm Springs Residences CTS 29467 [2013] QCATA 21 and Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482 (QDC, unreported, Bolton J, Appeal 4080 of 2000, 29 May 2001)
[39] Having regard to sections 46 to 51 of the Standard Module, KBW had no greater power to convene an EGM to try and form a committee after its engagement had expired than it did to convene the AGM.
[40] Under section 86 of the Standard Module, general meeting motions can be submitted at any time. Pursuant to section 90 of the Standard Module, it can be accompanied by an explanatory note (of up to 300 words) about a motion. The Commissioner provides information on drafting motion (https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/committees-meetings/general-meetings/drafting-motions).
[42] Noting section 242 of the Act, applications to invalidate a meeting or a meeting resolution should be lodged within 3 months of the date of the relevant meeting unless the adjudicator is satisfied there is good reason to waive that time limit.