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

COMMITTEE COMPOSITION; MAINTENANCE; IMPROVEMENTS; GENERAL MEETING PROCEDURES - whether:

• a committee member should be removed because she was not appointed within 30 days of her predecessor's resignation
• the body corporate should repair the common property
• two owners who made unauthorised improvements to their lots that were retrospectively authorised should be issued by-law contravention notices
• EGM resolutions should be overturned because the meeting was called later than required
• the body corporate should purchase maintenance equipment, and
• the body corporate should install security cameras, additional lighting, and parking signs.

Accommodation Module, ss 74(3)(a), 83(2)(a)(i), 89(3)(a) & (5)(a), 162(1), 170(1), 176, 177, 183,

1. The body corporate must restore the tennis court to good condition within six months unless it removes it from the common property pursuant to a valid resolution.
2. The application is otherwise dismissed.

• [1] Mr Azevedo is a lot owner at Waterford Court and apparently also the caretaker or caretaking service contractor. He applies as an owner for orders against the body corporate that can be summarised as follows:
  1. remove Ms Lee Que from the body corporate committee and replace her at a general meeting
  2. use the sinking fund to repair the common property, including the tennis court, swimming pool, fence, garden, and "safety issues"
  3. investigate unauthorised improvements to lots 23 and 37 and issue by-law contravention notices to the owners
  4. reverse unlawful motions passed at an extraordinary general meeting (EGM) on 11 December 2024
  5. provide proper maintenance equipment, including a new ride-on mower, and
  6. install security measures, including security cameras, proper lighting for the tennis court, and parking signs.

• [2] Mr Azevedo did not clearly explain why Ms Lee Que should be removed from the committee in his application. He said in his reply to submissions that the committee appointed her more than 30 days after her predecessor, Ms Maloney, resigned from the committee.
• [3] When a committee member resigns but the total number of remaining committee members has not fallen below the level necessary for a quorum, the committee has a month to either appoint a replacement or call a general meeting to appoint a replacement.[1] Mr Azevedo claims the committee took longer. Ms Maloney and some committee members disagree, claiming Ms Maloney resigned on 4 May and Ms Lee Que was appointed on 23 May 2024.
• [4] I would not see a late appointment alone as grounds for removing Ms Lee Que from the committee and ordering the body corporate to hold a general meeting to replace her. The committee had the power to make the appointment. There is no suggestion that Ms Lee Que was ineligible. If it was undesirable to be without a committee member for longer than 30 days, that would not be helped by depriving the body corporate of a committee member for a further 21 days until a general meeting could be held to consider her replacement.[2]
• [5] In any case, a fresh committee election was held at an annual general meeting on 10 April 2025 and Ms Lee Que was elected chairperson. Her current position on the committee relies on that process which has not been impugned by the present application. The events of 2024 are now irrelevant.

• [6] Mr Azevedo relies on the report of a safety inspection conducted by Suncoast Safety on 1 June 2024 in support of his second order. With respect to repairs, safety issues, or the specific items mentioned by Mr Azevedo, it found:
  1. some plants were partially overhanging a path
  2. the ground approaching the pool was uneven
  3. paving bricks near the pool were cracked, broken, and uneven in places
  4. some concrete paths were uneven in places
  5. a patch of the concrete driveway outside lot 21 had sunk
  6. mould had built up on the tennis court making it slippery
  7. overgrown trees near the pool fence may have allowed a child to climb over
  8. gardens were overgrown
  9. there was no fence on the southern boundary, and
  10. grass was described as "very long" (though did not look it in the accompanying photographs).
• [7] There is clearly an issue with the tennis court. It is not disputed that it has now been closed for over a year. The committee put motions to resurface the court to general meetings on 11 December 2024 and 10 April 2025 but all were voted down. One committee member says the committee is now investigating having the tennis court removed if that is the wish of most owners.
• [8] While the tennis court remains part of the common property, the body corporate must keep it in good condition.[3] The committee is clearly willing but is restrained by its spending limit.[4] It requires general meeting support, which is not forthcoming.
• [9] I will order the body corporate to restore the tennis court to good condition within six months unless it is removed and the area put to some other purpose. The committee will no longer require general meeting authorisation as it may exceed its spending limit to comply with an adjudicator's order.[5]
• [10] Mr Azevedo has tendered no evidence to establish that the swimming pool requires repair.
• [11] While the Suncoast Safety report mentioned there was no fence along Waterford Court's southern boundary, it did not indicate that any fences required repair. There is no positive obligation upon bodies corporate to ensure all of scheme land is fenced.
• [12] Assuming the "safety issues" are the uneven pathways and overgrown tree near the pool fence, the committee secured an increase to its spending limit at this year's AGM and says it is in the process of arranging concrete repairs. Mr Azevedo did not dispute that claim in his reply to submissions. The committee sought approval for expenditure on concrete repairs at the 11 December 2024 EGM only to have the motions voted down, so I have no reason to doubt its sincerity.
• [13] Several submissions claim the gardens are now being kept in good condition by a gardening contractor. I have no reason to suspect that the overgrown tree near the pool fence or the gardens more generally remain a concern.
• [14] I am not satisfied that any orders are necessary with respect to repairs to common property except in relation to the tennis court.

• [15] Mr Azevedo describes the improvements as an air conditioner at lot 23 and a patio at lot 37. His application is unclear whether they are within the lots or on common property. He asks for an order to address "unauthorized improvements at unit 23 and unit 37", while his grounds refer to the requirement to obtain body corporate approval for alterations to common property.
• [16] If these improvements were installed on the common property, body corporate approval was required. If their installed value exceeded $3,000, they required authorisation by ordinary resolution.[6]
• [17] If they were installed within lot boundaries they would only have required body corporate approval if they were structural alterations or they changed the external appearance of the lots.[7]
• [18] The owner of lot 23 concedes that her air conditioner required body corporate approval but says she obtained it retrospectively from the committee. Committee minutes of a meeting held on 16 September 2024 show at motion 5.8 that the committee approved a list of improvements to lot 23, including the air conditioner. Ms Simpson (the committee treasurer) should not have voted on that motion,[8] but with seven votes in favour and none against it would have passed regardless. Owners then narrowly voted against issuing Ms Simpson with a by-law contravention notice at motion 8 of the 11 December 2024 EGM.
• [19] The owner of lot 37 contacted the body corporate manager for approval before commencing work on her patio and was told on 4 August 2022 that she could proceed, though there had apparently been no committee or general meeting resolution to that effect. The improvement to lot 37 was approved retrospectively by ordinary resolution at motion 7 on 11 December 2024 though. At motion 9, owners declined to issue the owner with a by-law contravention notice.
• [20] As the improvements to both lots have now been approved by the body corporate, I see no need for further investigation or by-law contravention notices as sought by Mr Azevedo.

Unlawful motions at the EGM of 11 December 2024

• [21] Mr Azevedo says the motions at this EGM were "not properly circulated or raised in compliance with the Act" and "bypassed required quorum". I do not understand the first part, but the minutes indicate there was a quorum. 33 voters participated out of a total of 47 lots, exceeding the default minimum of 25%, and several voters were listed as being present at the meeting.[9]
• [22] In his reply to submissions Mr Azevedo added that the EGM was held at the request of owners yet was not called within 14 days as required, and the committee included some of its own unrelated motions on the agenda.[10] I do not see the former concern as sufficient reason to overturn the decisions of the EGM. That would not make the meeting be held any sooner.
• [23] The latter issue is not an irregularity. The committee is entitled to add its motions to the agenda of a general meeting notwithstanding that the meeting might have been requested by owners to consider other business.[11]

• [24] Mr Azevedo talks in broad terms of a failure of maintenance but generally without linking it to the absence of any specific equipment.
• [25] The body corporate sold its ride-on mower and now has the lawns maintained by a gardening contractor who uses their own equipment. Mr Azevedo has not explained how that is contrary to statutory requirements.

• [26] Mr Azevedo would like the body corporate to install security measures, including security cameras, lighting for the tennis court, and parking signs. He refers to section 180 of the Act in support, but that section concerns the limitations of by-laws. Section 180 of the Accommodation Module is about the disposal of body corporate assets and seems equally irrelevant. He may have intended to refer to the body corporate's obligation to maintain the common property in good condition, which is at section 180 of the Standard Module but section 170 of the Accommodation Module.
• [27] There is no suggestion that the body corporate is failing to maintain these items in good condition though. They are simply absent. The body corporate could elect to install them, but that would be as discretionary improvements rather than mandatory maintenance.[12]
• [28] I am not satisfied of a contravention warranting an order.

[1] Accommodation Module, s 40(1).

[2] Accommodation Module, s 81.

[3] Accommodation Module, s 170(1).

[4] Accommodation Module, s 162(1).

[5] Accommodation Module, s 162(1)(d)(ii).

[6] Accommodation Module, ss 177 & 183.

[8] Accommodation Module, s 58.

[9] Accommodation Module, s 89(3)(a) & (5)(a).

[10] Accommodation Module, s 74(3)(a).

[11] Accommodation Module, s 83(2)(a)(i).

[12] Accommodation Module, s 176.