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

COMMITTEE MEETING; COMMITTEE RESOLUTIONS - whether:

• a committee resolution in favour of a motion submitted by an owner was invalid because it was passed more than six weeks after the motion was submitted
• a committee resolution to leave keys to common property with a resident owner was an unlawful delegation of its powers, and
• a committee meeting was invalid if called by the body corporate manager rather than the committee secretary or chairperson.

Act, ss 94(1)(a), 97, 119(2); Accommodation Module, ss 46(1), 49(1), 50, 63(6)(g).

• [1] Ms Chmelarova of lot 12 submitted two motions to the body corporate committee. The first, submitted on 30 July 2024, sought retrospective approval for curtains in lot 12. The second was submitted on 17 September 2024 and proposed that the committee requests the return of common area keys held by an owner who is no longer on the committee.
• [2] The committee passed the first motion as item 4 of a committee meeting held on 24 September 2024, outside the six weeks the Accommodation Module allows for a decision on an owner's motion. It declined the second motion at item 12 of the same meeting. Ms Chmelarova argues both decisions and the committee meeting were invalid. She seeks orders in the following terms:

1.1. The applicant seeks in relation to following motions passed at the committee meeting held on 24 September 2024 Order:

(a) that motion under Item 4. Correspondence in - outcome of conciliation meeting - Lot 12 was invalid and the committee acted unreasonably.

(b) that motion under item 12. Any other business - Common room keys was invalid.

1.2. The applicant seeks in relation to owner's (applicant's) motion submitted on 30 July 2024 that the committee acted unreasonably.

1.3. The applicant seeks in relation to owner's (applicant's) motion - Common areas keys submitted on 17 September 2024 Declaration that the committee acted unreasonably and Order the committee consider applicant's motion Common areas keys.

1.4. The applicant seeks in relation to the committee meeting held on 24 September 2024 Order that meeting was invalid.

1.5. Other orders or declarations that are just and equitable in the circumstances.

• [3] A motion submitted by an owner should be decided within six weeks, or twelve weeks if the committee writes to the owner to advise that it requires more time. If it is not decided within these periods, it is taken not to have been passed.[1]
• [4] The committee wrote to Ms Chmelarova on 13 September 2024, three days after the six week deadline had expired, and apologised for the delay in deciding her motion. It then resolved to grant the requested retrospective approval for her curtains at item 4 of its 24 September committee meeting.
• [5] Ms Chmelarova argues:
  1. her motion failed when it was not decided within six weeks
  2. the substance of the motion was not clearly described in the agenda for the committee meeting as it should have been,[2] with item 4 stating only:

1. the correspondence that prompted the decision was not described in the minutes as it should have been,[3] and

1. approval for her curtains should have been granted.

• [6] None of this persuades me that the committee's resolution should be deemed invalid. While Ms Chmelarova's motion may have automatically failed when it was not decided within six weeks, that does not mean that the committee lacked the power to pass the resolution on its own initiative at a later date. It only means that if the committee had continued to do nothing, the default position would have been that the proposal failed. Instead, the committee elected to revive the proposal on 24 September and pass a resolution in Ms Chmelarova's favour.
• [7] It is probably true that the description of the agenda item lacked sufficient detail to clearly inform owners or committee members of the nature of the decision that was to be made. But that does not seem an adequate reason to declare the decision on the item void where there is no indication anyone was disadvantaged by the poor description in the agenda. For instance, there is no suggestion that any other owners would have opposed the proposal if only they had known of it, or that committee members were unclear on the nature of the proposal before them.
• [8] Details of any correspondence tabled at the committee meeting should have been included in the minutes, including the correspondence that prompted the resolution at item 4. But again, that is not a reason to declare a valid decision void. The fault lies with the minutes, not the decision on item 4. At most, it might be a reason to order the minutes reissued with the missing details (if that had been sought).

• [9] Ms Chmelarova's second motion arises from a committee resolution of 12 May 2022 to leave common area keys with a "trusted member of the committee" who lived onsite. Ms Chmelarova pointed out that he is no longer on the committee and proposed that the committee retrieves the keys from him. Instead, the committee resolved at item 12 of 24 September to leave the keys with that owner notwithstanding that he was no longer on the committee, noting that he remained "a trusted member of the Body Corporate...currently residing on-site".
• [10] Ms Chmelarova objects:
  1. all owners are members of the body corporate, and there is no provision categorising some as "trusted"
  2. the body corporate cannot delegate its powers[4]
  3. it is unreasonable to leave some keys with that owner while others are freely accessible to anyone, and
  4. the body corporate acted unreasonably by failing to decide her motion of 17 September within six weeks.
• [11] However, in the same order:
  1. The description of that owner as "trusted" was a natural use of language, not a reference to a statutory provision. It only meant that the committee felt it could rely upon him to look after the keys.
  2. I do not see how the body corporate was delegating its powers by deciding to leave keys with an agreeable owner who lives onsite. It seems to have been exercising its power to administer the common property and body corporate assets.[5]
  3. I am not satisfied that the committee acted unreasonably simply because it might have chosen to deal with different keys in different ways. Presumably some keys are more in demand than others, or the areas of common property they access are more sensitive for some reason, or there is a greater need to keep track of some keys than others. There are likely many sensible reasons the committee might treat different keys differently.
  4. The committee decided against Ms Chmelarova's motion of 17 September one week later, notwithstanding that it did not set out her motion in full and tally the votes for and against before making its own decision on the same topic. Instead, it noted her request, then resolved to leave the keys with the same owner. That was functionally identical to voting her motion down.

• [12] Ms Chmelarova also argues that the entire committee meeting of 24 September was invalid because she could find no record that it was called by the committee secretary or chairperson as required.[6] She suggests that it was called unilaterally by the scheme's body corporate manager.
• [13] A body corporate manager may be authorised to exercise powers of an executive member of the committee.[7] But even if the meeting was not properly called, I would not deem the entire meeting void on that basis where the minutes indicate that a majority of the committee participated and validly made decisions on behalf of the body corporate. Any technical deficiency in the calling of the meeting was immaterial in that context.