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

REASONABLENESS; GENERAL MEETING MOTIONS - whether the body corporate acted unreasonably when refusing to pass the applicant's motions at the 2024 AGM; whether the motions should be deemed passed.

Act, s 94; Accommodation Module, s 170(1).

• [1] Ms Chmelarova of lot 12 asks that six motions that were voted down at an annual general meeting on 20 August 2024 be deemed to have passed. The motions, submitted by Ms Chmelarova, were:

That the body corporate approves to remove the BBQ and a gas bottle, stored in the communal kitchen and sets up them in outdoor common area.

That the body corporate engages a contractor to replace panels adjacent to unit 6 on the common property on the cost within the committee spending limit AS SOON AS POSSIBLE.

17 The Cleaning Crew - Resolution of Motion 18A - AGM 2021

That the body corporate revokes the resolution of motion 18A passed at the 2021 AGM held on 31 August 2021 that can be read as: That the Body Corporate resolved to accept the quotation from The Cleaning Crew at a cost of $28,005.12 per annum including GST.

That the body corporate revoke resolution of motion No 19 passed at the AGM held 23 August 2022 that can be read as: That the Body Corporate agrees that the hours for common room use by unit occupiers shall be from 8AM to 9PM every day, or as determined by the Body Corporate Committee from time to time, and the common room shall be locked outside those hours.

That the body corporate approves to provides a key to the common room to occupiers to the lot on their written request.

That the body corporate revokes the resolution of motion No 17 passed at the AGM 2022 that can read as that the Body Corporate agrees that the room in the common room designated 'Managers' is reserved by the Body Corporate for the purposes of storage necessary for the administration and operation of the Body Corporate, and shall be locked when access is not required for the conduct of Body Corporate activities.

• [2] Ms Chmelarova says a barbeque and gas bottle were purchased by the body corporate in 2015 and set up in an outdoor common area. They were subsequently moved to the common kitchen, prompting this proposal to return them to the outdoor area.
• [3] Since the AGM, Ms Chmelarova says their location is unknown. She asks that I not only deem motion 15 to have passed, but also order that the barbeque and gas bottle are made available to occupiers "at the scheme indoor area of the common property".
• [4] The Act requires the body corporate to act reasonably in the exercise of its functions. Ms Chmelarova argues that the decision against motion 15 was an unreasonable exercise of the body corporate's function of administering body corporate assets for the benefit of owners, as the motion was "clear, simple to understandable, easy to vote and pass" and would have enabled occupiers to use the BBQ again.[1]
• [5] I have little indication of how the body corporate acted when deciding against motion 15. There is no suggestion the body corporate did anything wrong in bland procedural terms. It included the motion on the agenda in the form submitted by Ms Chmelarova. It circulated her explanatory note. There is nothing to indicate owners did not give the motion reasonable consideration before casting their votes. The body corporate correctly deemed the motion to have failed when it received three votes in favour and ten against.
• [6] No submissions were received from owners or the body corporate to cast any light on their reasons for opposing motion 15. The AGM minutes give some idea:

The meeting discussed the issues attached to this motion such as who would fill up the gas bottle when empty, who would ensure that the BBQ is cleaned after use, who would set up the house rules attached to this request.

• [7] It seems the other owners prefer the barbeque is not used, or at least is not freely available in the outdoor common area, while these questions are not resolved to their satisfaction. Ms Chmelarova does not clearly explain why this view was unreasonable, nor how the body corporate failed to administer the barbeque for the benefit of owners by declining to move it to the outdoor common area while responsibility for cleaning and refilling remained unclear.
• [8] The party alleging a failure to act reasonably bears the burden of substantiating that claim. Ms Chmelarova has not convinced me that the only reasonable course available to the body corporate was to pass her motion so the barbeque would be available to occupiers in the outdoor common area. It is not obvious that the body corporate could not reasonably refuse to deploy its asset in that way while dissatisfied that adequate arrangements were in place for its cleaning and refilling.

• [9] A safety audit of the common property conducted by Solutions in Engineering in 2015 recommended that damaged panels of a small section of garden fencing of no clear purpose be replaced. The fence partially encloses a small paved area. The report did not say what was wrong with the panels and it was not evident in the report's photographs.
• [10] Ms Chmelarova submitted more recent photographs of the fence and two panels have been removed. Perhaps they were the panels that were discovered to be damaged in 2015. The remaining panels look fine, as far as I can tell from the photographs.
• [11] The body corporate must maintain the common property in good condition.[2] That means it must "keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to service the purpose for which it exists".[3]
• [12] I am not sure of the purpose of the fence. Some of Ms Chmelarova's photographs show a golf buggy parked on the paving bricks within it, though the buggy does not seem to require the fence.
• [13] Suffice to say, I am not persuaded that the fence is not presently in adequate condition, capable of satisfying its (mysterious) purpose. I do not see that the body corporate was barred from removing damaged panels in service of its obligation to keep the thing in good condition. What remains seems fine. Ms Chmelarova has not shown that there has been any significant loss of function or amenity.

• [14] Motion 17 proposed rescinding a resolution passed at the 2021 AGM to engage The Cleaning Crew to maintain the gardens and grounds. Ms Chmelarova says it was unreasonable to refuse to pass the motion because:
  1. "Motion 18A approved spending the body corporate funds of $28,005.12 p.a. including GST, however a cost for a service in the quotation was $489.60 excluding GST for 52 services for 364, it means a cost of $28,005.12 with GST for 364 days, that indicates discrepancy between a cost of $28,005.12 p.a. and for 364 days"
  2. The Cleaning Crew is continuing to provide services even though the engagement authorised in 2021 has ended, and
  3. the 2021 resolution was irregular in various respects.
• [15] I do not understand the first point.
• [16] If The Cleaning Crew is continuing to provide services beyond what was authorised by motion 18A in 2021, that is not a reason to rescind that resolution. Rescinding the resolution would only mean The Cleaning Crew's work was not authorised at the outset of its engagement either. It would do nothing to authorise the work that has continued beyond the expiry of the engagement, or to bring that work to an end. Any such work is not being done pursuant to the 2021 resolution.
• [17] Even if the 2021 resolution was irregular, it has now run its course. Nothing would be achieved by retrospectively rescinding it. I do not see that it was unreasonable to refuse to rescind a resolution of no continuing relevance even if it should not have been passed back in 2021. The work has been done and the contractor paid. Rescinding the resolution that purported to authorise it would change nothing.

• [18] Ms Chmelarova argues that it was unreasonable to refuse to rescind a resolution passed in 2022 that the common room would be open from 8am to 9pm, or as otherwise determined by the committee, and locked at other times. She says the opening hours approved in 2022 are not being observed. She cites examples of the common room being open outside those hours and locked within them.
• [19] I am not satisfied that the only reasonable response to the failure to comply with the 2022 resolution was to rescind it. Other owners who shared Ms Chmelarova's concerns could reasonably have voted against motion 21 because they preferred to insist upon the implementation of the 2022 resolution.

• [20] As the common room is not always open when it should be, Ms Chmelarova's motion 22 proposed that residents be given keys to the common room upon their written request. She says the failure to pass the motion was unreasonable.
• [21] However, Ms Chmelarova does not really explain why the body corporate could not reasonably refuse to give residents keys. While residents are generally entitled to make reasonable use of the common property,[4] it seems that arrangements are in place to facilitate access to the common room. Ms Chmelarova refers to a key safe "on the grille security door, [at] the entry to the common room". She also refers to a 2022 resolution that "the keys to all common property shall be secured and managed by a custodian appointed by the Body Corporate Committee from time to time". She mentions that the appointed custodian is the owner of lot 4.
• [22] I do not see why the body corporate is obliged to provide residents with their own keys rather than granting access to the common room via the key safe or the owner of lot 4.

• [23] Motion 23 proposed rescinding a 2022 resolution that a room on the common property be reserved for "storage necessary for the administration and operation of the Body Corporate" and kept locked when not being used for that purpose. Ms Chmelarova says the 2022 resolution should be rescinded because the room is not locked and presently houses items with no obvious link to body corporate operations.
• [24] But in the absence of the 2022 resolution, the room would presumably be unlocked and available to be used for a variety of purposes. In other words, nothing would change. In those circumstances, I do not see that the only reasonable course available to the body corporate was to pass Ms Chmelarova's motion 23. The same outcome would be achieved irrespective of whether the motion passed.

• [25] The application is dismissed. Ms Chmelarova has not shown that the only reasonable course available to the body corporate was to support her motions.

[3] Magog (No. 15) Pty Ltd v The Body Corporate for the Moroccan [2010] QDC 70 at [83], applying Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157.

[4] Act, s 35(1) & (4); Platt v Ciriello [1997] QCA 33.