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

REASONABLENESS - where a lot owner initially opposed a motion requiring a resolution without dissent and subsequently withdrew his opposition - whether an order deeming the motion to have passed is warranted.

That Motion 2 at Extraordinary General Meeting dated 20 May 2025 for the Body Corporate for Vision Apartments CTS 36921 titled 'Reconfiguration of lot 8 and the common property' is deemed to have passed.

[1] The scheme, Vision Apartments CTS 36921, is located in Nundah. It is regulated under the Act and the Standard Module.

[2] The scheme comprises 16 lots and common property, and has been created under a building format plan of subdivision. The scheme building contains five levels labelled alphabetically from A to E.

[3] Lot 8, which is relevant to this dispute, is located in parts on Levels A, B and C. The part of Lot 8 that is located on Level B contains a courtyard that is of an area of 58m².

[4] The registered survey plan bearing reference SP198582 indicates that Lot 8 contains the largest courtyard on this level, with other lots containing courtyards with an area of 55m², 39m², 38m², 31m², 19m², 18m², 17m², 13m² and 10m². Lot 3 contains a courtyard that is of an area of 19m².

[5] Similarly, the balconies within the lots on all relevant levels are also smaller in size than the courtyard within Lot 8.

[6] This dispute as complained, is about unreasonable opposition by a lot owner against a motion for the disposal of common property (which requires a resolution without dissent in order to be carried).

[7] The applicant, Stephanie McDonald, is the owner of Lot 8. The respondent is the body corporate. The applicant has identified the owner of Lot 3, David Watt as an affected person, being the sole dissentient to the aforesaid motion.

[8] The applicant states that contiguous to the courtyard within Lot 8, lies common property land that is of an area of 53m². She adds that this area overlooks the windows of the laundry room and toilet of Lot 8, and hence has not been used by anyone in the eleven years she has resided there. Evidently, a portion of this land has been deemed by a land valuer to be unusable by any other owner or occupier.[1]

[9] The applicant states that she initially sought to purchase 28m² of this common property land with the support of the committee. In this regard, a formally drafted motion was tabled by the committee which was successfully carried in September 2024 pursuant to a resolution without dissent.

[10] Subsequently, the applicant was made aware that the remainder of this common property land, which the body corporate previously thought constituted a fire evacuation route, was in fact not one and simply a dead-end.

[11] Accordingly, the applicant (once again with the support of the committee) sought to purchase the remainder of this common property land, i.e., an area of 25m2 at the market value of $19,300.00. Accordingly, she tabled a motion for extraordinary general meeting ('EGM') dated 20 May 2025 to this effect. However, this time, the motion was not carried given Mr Watt, the affected person, voted against the motion. In other words, the motion did not meet a resolution without dissent.

[12] The applicant states that the affected person (the dissentient) provided the following reasons for voting against the motion, all of which in her view are unrelated to the motion:

1. Lot 8 already has a greater lot size and area than others on the upper levels. The effect of the motion on the building is not welcome; and
2. 'At the end of the day I don't think it's fair. I have asked for an external window to be replaced for 2 ½ years. All the downpipes on my lot leak. My windows leak. The buildings cleaners do a terrible job, cobwebs everywhere in the main entry. There's water all throughout the stairs, carpark and all we do is pay more fees. I have the building sprinkler system under my front patio which means I can't do anything with my lot. As I said I agreed last time. Lot 2 knows this because we have talked about this and concerns.'

[13] The applicant states the following in response:

1. Whether her lot is larger is not and should not be the dissentient's concern, given it does not adversely impact other lots in the scheme. She states that the dissentient did not explain what the 'effect' on the building is, in his opinion;
2. Any maintenance issues that the dissentient has with the body corporate should not impact his vote on the motion in dispute. She states that he does not own the land on which the sprinkler system lies, and accordingly does not have any right to develop the same. She adds that if the dissentient had voted in favour of the motion, the sinking fund would have the proceeds of the sale, that can be put to rectifying the maintenance issues he has raised.

[14] The applicant also states that there is precedent of purchases of rights to common property areas by lot owners. She provides the following examples:

1. Common property garages for Lots 1 and 15; and
2. Common property area of approximately 3m2 on level A, for Lot 16 for use as a storage space. [2]

[15] Moreover, the applicant states that most members of the body corporate view the common property land in question as a wasted area. This is supposedly because, as aforesaid, it is situated adjacent to the laundry and toilet of Lot 8, with a view of the same; and contains no utility infrastructure. Further, the applicant states that between 2015 to 2024, the body corporate spent approximately $2.4 million to rectify serious building and certification defects, pursuant to raising this sum via special levies and a bank loan. She states that during this period, the body corporate was unable to carry out any improvements to the building. She states that the proceeds of the sale under the motion would provide over $19,000.00 into the sinking fund which would benefit all owners, by way of improvements to the scheme building - which would in turn increase the value of the lots, the rental yields, reduce body corporate fees for cleaning services etc.

[16] In these circumstances, the applicant seeks an order deeming the motion, i.e., Motion 2 at EGM dated 20 May 2025, to have been carried.

[17] This application was lodged on 24 August 2025.

[18] On 16 September 2025, the Commissioner provided a copy of the application and invited the committee (on behalf of the body corporate) and all owners including the affected person, Mr Watt, to make submissions.

[19] On the same day Mr Watt acknowledged receipt of this invitation to make a submission.

[20] Neither the committee, nor Mr Watt nor any other owner made submissions.

[21] On 30 October 2025, the Commissioner referred the dispute to department adjudication under section 248 of the Act.

[22] Subsequently, on 12 November 2025, upon the exercise of my inquisitorial powers under section 271(1) of the Act, I required Mr Watt to essentially provide an explanation as to the relevance of his objections to the motion in question; and to explain what he meant by 'the effect' of the motion on the scheme building (as per the reasons he provided to the applicant).

[23] In requiring such a response, I am of the view that the legal burden of proof continued to remain with the applicant. However, in doing so, I imposed a provisional burden or evidentiary/tactical burden on the affected person, Mr Watt.[3]

[24] I requested Mr Watt to provide a response by 20 November 2025.

[25] On 14 November 2025, Mr Watt indicated that he would respond by the due date specified.

[26] However, as at 11 December 2025, no such response was provided. I accordingly instructed my delegate to contact Mr Watt and ascertain the status of the response.

[27] Accordingly, on the same day, Mr Watt indicated, "I withdraw my no vote and approve the request."

[28] I have investigated the dispute by reviewing the application and further information provided by Mr Watt, in accordance with section 271 of the Act.

[29] 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 Community Management Statement ('CMS')[4] or about the exercise of rights or powers or performance of duties under the Act or CMS.[5] Further, an order may require a person to act, or prohibit a person from acting in a manner stated.[6] An order may also contain ancillary and consequential provisions the adjudicator considers necessary or appropriate. [7]

[30] I am satisfied that I have jurisdiction to determine the dispute in question by virtue of section 276(1)(b) of the Act.

[31] I note that given the sole dissentient to the motion has now withdrawn his objections, and approves of the motion, the dispute or controversy prima facie (and largely) no longer prevails.

[32] However, this does not undo the defeat of the motion, which the applicant continues to be aggrieved by. Accordingly, to this extent there remains a justiciable controversy preserving my jurisdiction despite the dissentient's withdrawal of his objections.[8]

[33] Accordingly, the questions before me for analysis prior to Mr Watt's withdrawal of his objections to the motion, were:

(a) Whether Mr Watt's opposition to the motion in the circumstances was unreasonable; and

(b) If so, whether the order sought by the applicant is warranted.

[34] However, currently, the only question for determination is whether the order sought is warranted.

[35] I am satisfied that an order deeming the motion to have passed is warranted given:

(a) There is no longer any opposition to the motion by Mr Watt or any other lot owner at the scheme;

(b) The committee supports the motion; and

(c) The carrying of the motion does not have the prima facie effect of contravening any provisions of the legislation.

[36] The sole dissentient to the motion withdrew his dissent. Accordingly, I am satisfied that the order sought by the applicant is warranted and hereby grant the same in accordance with section 276(1) of the Act.

[1] See page 76 of the application, i.e., page 17 of the Valuation Report dated 3 March 2025

[2] Note: This is likely a reference to exclusive use areas marked as 1A, 15A and 16A on Sheet 10 of the CMS, as opposed to purchased areas of common property that have then become part of the lot.

[3] See Leader Computers P/L v Hakim and Wilson [2009] SADC 94 at [92] and [93] citing the House of Lords decision in Brown v Rolls Royce Ltd [1960] 1 All ER 577 at [581] and [582]. Also see J D Heydon, Cross on Evidence, (10th Edn, 2015), LexisNexis Butterworths (Australia) at pp [320] and [321]

[4] The CMS includes the scheme's by-laws

[5] Sections 276)(1)(a) and (b) of the Act

[7] See Brighton on Broadwater Breezes [2018] QBCCMCmr 243 at [8]

[8] See Truth About Motorways v Macquarie [2000] HCA 11