211 Ron Penhaligon Way Offices [2022] QBCCMCmr 398 (8 November 2022)

ADJUDICATOR’S ORDER
Office of the Commissioner
for Body Corporate and Community Management

CITATION:	211 Ron Penhaligon Way Offices [2022] QBCCMCmr 398
PARTIES:	211 Ron Penhaligon Way Offices Pty Ltd, owner of Lots 1, 3 and 7 (applicant) Body Corporate for 211 Ron Penhaligon Way Offices (respondent)
SCHEME:	211 Ron Penhaligon Way Offices CTS 25277
JURISDICTION:	Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and 229(3)(a) Body Corporate and Community Management (Commercial Module) Regulation 2020 (Commercial Module)
APPLICATION NO:	1099-2022
DECISION DATE:	8 November 2022
DECISION OF:	I Rosemann, Adjudicator
CATCHWORDS:	INTERIM ORDER – whether an interim order is warranted. Act, s 279

Pending a final determination, the Body Corporate for 211 Ron Penhaligon Way Offices must not implement Motions 2, 6, 7, 8, 9, 10 and 11 included on the agenda for the extraordinary general meeting of the body corporate scheduled for 8 November 2022, if passed.
This interim order has effect until 12 months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn or otherwise ended (whichever is earlier).

[1] This application is about the validity of several motions included on the agenda of an extraordinary general meeting (EGM) scheduled for 8 November 2022. The dispute arises in the context of a long history of disputes in the scheme. In part these disputes relate to the use and enclosure of an area of common property by the owners of Lot 5. The EGM has been called pursuant to a previous order and, based on that order, is to be chaired by the sole remaining committee member.^[1] The applicant disputes EGM Motions 2, 6, 7, 8, 9, 10, 11 and 12 and asserts that they should be ruled out of order by the meeting chair.

[2] The applicant seeks interim orders to stop implementation of the disputed motions if passed. It then seeks final orders that the motions are invalid and should have been ruled out of order at the EGM. The question now is whether an interim order is warranted.

[3]

211

Ron Penhaligon Way Offices community titles scheme 25277 ( 211 RPWO) is an 8-lot scheme at Robina. The community management statement (CMS) shows the Commercial Module applies. The scheme is registered as Survey Plans 100021 and 115562.

[4] This application was lodged on 2 July 2022 seeking the following interim order:

That the Respondent Body Corporate be restrained from putting into effect, any of Motions 2, 6, 7, 8, 9, 10, 11 and 12, if passed at the 8 November 2022 EGM, or any adjournment of it, until such time as this Application is finally determined, rejected, or withdrawn.

[6] 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.^[2] In particular, an adjudicator may make an interim order if satisfied, on reasonable grounds, that one is necessary because of the nature or urgency of the circumstances.^[3]

[7] I am satisfied I have jurisdiction under the legislative provisions to determine this matter.^[4]

[8] The Commissioner referred this application to me to decide whether the nature or urgency of the circumstances warrants an interim order.^[5] As allowed under the Act, the Commissioner made this referral despite not giving notice of the application to other parties.

[9] There is no statutory requirement to obtain comment from a respondent or affected party before an interim order is decided. I invited committee comment on the application prior to the EGM, albeit that until the EGM there is only one committee member. Unfortunately, while that invitation was issued by the Commissioner’s office on 4 November, it was not forwarded by the body corporate manager (BCM) to the committee member until 8 November. The committee member said there was insufficient time to make a submission and sought an extension until after the EGM for the new committee to make a submission. However, in the circumstances, I consider it appropriate to make an order before the EGM so that it can inform the meeting.

[10] The only issue to decide at this time is whether an interim order is warranted. However, to determine it is just and equitable to make an interim order, it is necessary to consider the substantive issue in dispute.

[11] Any order granted must be just and equitable.^[6] With an interim order, an adjudicator must be satisfied there are serious legal questions to be answered, and that the balance of convenience between the parties justifies an interim order. As such, an adjudicator must balance the inconvenience of granting interim orders if final orders are ultimately refused, against the inconvenience of refusing interim relief if final orders are ultimately granted. Of particular significance is whether an interim order is necessary to prevent serious or irreparable harm. Interim orders are only granted if they are necessary due to the nature or urgency of the circumstances.^[7] An applicant must establish that the circumstances warrant an interim order. An interim order will not be made if the only urgency is a desire to expedite the dispute.

[12] The applicant seeks orders regarding EGM Motions 2, 6, 7, 8, 9, 10, 11 and 12. I will comment on those motions in turn.

[13] In general terms, the applicant asserts that the disputed motions should be ruled out of order. The regulations provided that the person chairing a general meeting must rule a motion out of order if the motion, if carried, would conflict with the Act, the regulation, the by-laws or a motion already voted on at the meeting, or if the motion would be unlawful or unenforceable for another reason, or if the motion was not on the meeting agenda.^[8] While I will not specifically comment at this time on whether the person chairing the EGM should rule any motion out of order, I encourage him to have regard to the following.

[14] Motion 2 was submitted by the owner of Lot 2 and proposes that any excess water charges be charged to Lot 3. The explanatory note indicates there has been an increase in water usage since the incorporation of a hairdressing salon in Lot 3 and while that has not yet reached an excess water charge, if it did it is to be paid by Lot 3.

[15] The power of a body corporate and its committee to make decisions is limited by its statutory functions. A body corporate does not have the power to unilaterally impose charges on an owner or occupier, regarding of how justified it may seem in the circumstances. Rather, it must have specific authority under the Act, regulation module or the by-laws to charge an owner or occupier for any particular amount.^[9]

[16] Sections 195 and 196 of the Act set out how utility services can be charged for. A body corporate cannot purport to pass on water charges to an owner or occupier except in accordance with that provision. If Motion 2 is proposing that an owner or occupier be charged for water in a way other than provided for in the Act, it would clearly be invalid. The submitted material indicates that the charges proposed by Motion 2 would not comply with the legislation and so there appears to be a genuine question about the validity of Motion 2.

[17] Motion 6 was submitted by the owner of Lot 5 and is listed as an ordinary resolution. It proposes that quotes be obtained for an ‘overhead cover’ outside Lots 1 and 3, and then to allocate undercover parking spaces to each lot numbered Lots 1 to 7, and finally to mark each space as being reserved for that lot, at a cost of up to $1,500.

[18] The applicant says the ‘overhead cover’ is to be installed on common property and so the motion is proposing an improvement to common property and then to grant all owners other than Lot 8 exclusive use of a car space on common property, to be marked as such. It says while the improvement to common property only requires an ordinary resolution, the granting of exclusive use requires a resolution without dissent.

[19] Motion 6 is curious. It proposes obtaining quotes for a cover but does not proposing approving the installation of any such cover or the expenditure on a cover. There is no reason why the body corporate could not resolve to obtain quotes (and it does not need a general meeting resolution to do so), but the motion does not advance any proposed improvement to common property beyond obtaining a quote.

[20] In regard to the remainder of the motion, it appears the intention of the motion would have the effect of giving exclusivity over particular car parking spaces on common property to specific lots. I consider that would amount to a grant of exclusive use, which clearly requires the recording of an exclusive by-law by a resolution without dissent.^[10] On that basis, prima facie, Motion 6 is not a motion that could be validly passed as an ordinary resolution.

[21] Motion 7 was submitted by the owner of Lot 6 and proposes rescinding all body corporate resolutions passed since the annual general meeting (AGM) on 25 March 2022.^[11] The explanatory note says that, due to interference in the election procedure at the March EGM, the committee was not representative and was discharged with a new election ordered. It says ordinarily the resolutions would stand irrespective of an irregularity in an election, but this was not an irregularity but a ‘malicious contrived scheme to extinguish the rights of members.’

[22] The applicant says that while the EGM has been called to comply with a previous order, the previous decision refused to make orders invalidating the election at the AGM but instead ordered fresh elections. It says Motion 7 seeks to reverse committee decisions made when the dominant faction was not in control of the committee. It says the decisions deal with a Supreme Court action brought by the owners of Lot 5 against the body corporate, which has been struck out, with a costs order in favour of the body corporate.^[12]

[23] The applicant then says that, by in effect seeking to void the committee decisions, the motion is improperly by-passing the process for challenging a committee decision in the Commissioner’s office. It says an application for most of the decisions would be out of time.^[13] It also says the motion will allow further disputes about the body corporate’s defence of the Supreme Court claim and any who owner believed their rights had been affected by any of the decisions ought to have made an application at the appropriate time. Next, the applicant argues it is unreasonable to rescind committee decisions en bloc, with the risk of a flood of disputes regarding previous decisions. It says the body corporate’s actions were correct, appropriate and justified, as evidenced by the Supreme Court decision and a previous adjudicator’s order. It says it intends to raise further arguments as to why Motion 7 is unlawful.

[24] Motion 7 does not propose to invalidate the previous committee decisions. Rather, it seeks to rescind them. Arguably a body corporate cannot overturn a motion previously passed on the basis that it is invalid. However, I see no reason why a body corporate cannot change its mind about a decision it has reached and subsequently rescind or alter a decision, providing it acts reasonably in doing so. A body corporate is not obliged to establish that a decision was invalid to subsequently rescind it. As such, I am not immediately persuaded that owners had to challenge the committee decisions through the statutory dispute resolution process or that the time limit for disputing a motion through the dispute resolution provisions of the Act is relevant to the validity of Motion 7.

[25] However, the body corporate must also act reasonably in making a decision.^[14] I consider there is a genuine issue about whether it would be reasonable for a body corporate to pass a blanket motion to rescind all committee resolutions made over an extended period, particularly where the relevant decisions are not identified. Moreover, I question whether a body corporate can reasonably rescind motions that have already been implemented, particularly if the implementation of those motions cannot now be ‘undone’. Given the nature of some of the committee resolutions in that period, attempting to rescind resolutions that have already been implemented could potentially put the body corporate in a difficult legal position and lead to further dispute. Alternatively, the view could be taken that rescinding a motion that has already been implemented and cannot in practice be undone will be meaningless and of no effect.

[26] I further note the Act provides that if persons who honestly and reasonably believe they are the committee for a body corporate make decisions while purportedly acting as the committee, the decision will be taken to be a committee decision despite a defect in the election of one or more persons.^[15] While an adjudicator previously found irregularities in the AGM election, he did not invalidate the election of committee members from the date of the AGM. Rather, he vacated the chairperson, secretary, and ordinary member positions from the date of the order on 9 September 2022.^[16] It is not apparent that there has been any finding that any committee member involved in the decisions from 25 March to 8 September did not honestly and reasonably believe they were validly elected at that the time of the decisions.

[27] I also note that in another application which disputes committee resolutions made on 16 June and 6 July 2022,^[17] Adjudicator Sutherland said in his reasons for dismissing an interim order to prevent the motions being implemented (made before determining the committee election):^[18]

The application concerning the validity of the last committee election is yet to be decided, but even if it is found to be invalid, it does not necessarily follow that every decision made by the (purported) committee is invalid. The validity of the committee’s decisions, including those impugned here, should in each case be determined on the merits of the decisions themselves.

[28] In the circumstances, I am satisfied there is a genuine issue to be decided about the validity of EGM Motion 7.

[29] Motion 8 was submitted by the owner of Lot 6 and proposes that Active Law be ‘discharged’ from acting for the body corporate. It then proposes that the BCM obtain the body corporate’s paper files from Active Law, scan and hold them in safekeeping, or receive them in electronic form, and that the paper files are not inspected by any person until scanned. The explanatory note alleges that Active Law had a conflict of interest in that it acted for Mr Steven Massey and Ms Elizabeth Ellis (apparently committee members at the time), and had taken instructions from Mr Massey in relation to the Supreme Court matter in circumstances where he is likely to be a key witness.

[30] The applicant says Motion 8 is presumably to discharge Active Law in the current Supreme Court claim as there are no other matters. It says this will stymie the body corporate from pursuing costs orders made in its favour against the owners of Lot 5. It says that to recover the costs, the costs need to be assessed or otherwise agreed by the owners of Lot 5 and Active Law should remain engaged to assist the body corporate to brief a costs assessor to prepare a costs statement for filing and service. It says Active Law has estimated the costs recoverable from the owner of Lot 5 far exceed the cost of pursuing the costs order. As such, it says the only reason not to continue to engage Active Law would be to stall the recovery of costs from the owners of Lot 5, despite their meritless application, and indirectly benefit the occupier of Lots 4 and 5 and owner of Lot 4.

[31] The applicant further says passing Motion 8 would constitute a fraud on a power and contrary to section 94(1)(a) of the Act. It also says it would be an unreasonable decision, including because the body corporate has a right to recover the costs which arose due to the actions of the owners of Lot 5. It says there is no reasonable reason not to recover the costs and to fail to pursue the right of recovery of costs would be objectively unreasonable and not in the interests of owners.

[32] Motion 8 and its explanatory note is arguably problematic in that it does not address the effect of the decision on current matters which Active Law is acting for the body corporate. It does not indicate whether the intention is that the body corporate engage alternative solicitors, or not be legally represented at all, or withdraw entirely from the current proceedings. Without any such information, there may be a question as to whether voters were adequately on notice as to the meaning and effect of the motion.

[33] I am not entirely clear on the status of the Supreme Court’s decision with respect to costs for the unsuccessful claim by the owners of Lot 5 against the body corporate or the options for the body corporate to recover the costs it incurred in defending that claim. However, if the Court has ordered costs in favour of the body corporate, and the cost of recovering those costs are less than the likely costs to be recovered, it is certainly arguable that it would be unreasonable not to pursue the recovery of those costs. While the owners of Lot 5 might not want the body corporate to pursue the costs associated with their legal action, all owners have presumably incurred costs in the body corporate defending that action. Moreover, if the intention is to engage different legal advisers to pursue the costs, or pursue the costs without any legal representation, it could similarly be unreasonable to discharge the current solicitors if that course of action is likely to increase the cost of recovering the costs or reduce the prospects of recovery. At this stage, I am satisfied that a genuine legal issue has been raised.

[34] The applicant also says the motion in respect of the inspection of records is contrary to the Act,^[19] regarding access to body corporate records. It says part (c) of Motion 8 is contrary to the Act and the Commercial Module and so should be ruled out of order. To the extent that the Motion 8 purports to prevent access to body corporate records at any time, it would appear to conflict with the legislation and, as such, would be unlawful.

[35] Motion 9 was submitted by the owner of Lot 6 and is listed as an ordinary resolution. It proposes that, because the ‘1999 CMS’ was not approved by the body corporate it is ‘void ab initio’, that the CMS registered in 1998 is the only valid CMS, that the BCM notify the Registrar of Titles and Gold Coast City Council of that, and that the BCM be authorised to meet any required statutory or regulatory costs. The explanatory note says the body corporate was a 7-lot scheme in January 1998 and the CMS was altered in March 1999 to subdivide Lot 3 into Lots 3 and 8 without body corporate approval and so the 1999 CMS is not compliant.

[36] It appears there is a question about whether the 1999 CMS was validly approved by the body corporate because the body corporate does not hold a copy of minutes referring to the CMS.

[37] The applicant says the effect of Motion 9 would be to covert the scheme from an 8-lot scheme to a 7-lot scheme, which would change the distribution of power for voting. It says the decisions and actions around the 1999 CMS took place some 23 years ago and many subsequent decisions and actions have taken place. It says Motion 9 disregards the fact that Lots 3 and 8 are currently owned by different entities to the original owner of Lot 3 who subdivided the lot and would mean that the owners of Lots 3 and 8 would need to seek approval to lodge a new CMS to give effect to the original subdivision of Lot 3.

[38] The applicant says the presumption of regularity must be considered and discusses the test for the application of that presumption. It says the absence of minutes does not mean there was no approval as minutes can be lost. It says when the current BCM received the records they were in disarray with the loss of records evident. It notes the chair and secretary at the time signed the new CMS and a solicitor signed the form to request the recording of the new CMS.

[39] The absence of minutes in the body corporate’s records is not evidence of itself that the 1999 CMS was not validly approved, and even a defect in the process at the time may not necessarily warrant invalidation of the CMS.^[20] However, it is not feasible in an interim order to consider or investigate whether the CMS recorded in 1999 was validly consented to.

[40] More fundamental at this point is that, even if it was not validly approved, I question whether the body corporate would have the power under the Act to pass an ordinary resolution to invalidate a recorded CMS. Rather, my preliminary view is that any owner disputing the validity of the currently recorded CMS would need to lodge an application for the order of an adjudicator to invalidate the 1999 CMS establishing the legal basis on which the owner asserted that the CMS was not validly recorded. Alternatively, they could lodge a motion seeking, by resolution without dissent, to record a new CMS to give effect to the form of the CMS that the owner considers should apply.

[41] I am satisfied there is a serious question to be answered as to whether Motion 9 is valid.

[42] Motion 10 was submitted by the owner of Lot 4 and proposes that, within 14 days, the body corporate reinstate the structure inside the common area licenced to Lot 5 and obtain legal advice about charging the costs to Mr Massey and Ms Ellis. The explanatory note alleges the ‘destruction ‘of the structure was a result of the ‘gerrymandering’ of nominations at the AGM and unlawful rulings, and the body corporate may face another legal action if it is not replaced.

[43] The applicant says the effect of Motion 10 would be to make an improvement to common property and enclose an area of common property for the exclusive use of the occupier of Lot 5. The applicant says the motion does not specify what structure is to be reinstated, or who is to provide legal advice regarding costs, or what the costs of the advice is estimated to be.

[44] The applicant notes that Lot 5’s previous licence over part of the common property expired on 30 June 2022 and since then there has been no approval of a licence or exclusive use relating to the area. It says Motion 10 purports to give the occupier of Lot 5 the rights to use and occupy an area of common property when it does not sufficiently describe the area, specify the period of the lease or licence, or approve the lease or licence by special resolution or resolution without dissent, pursuant to the regulations regarding the lease or licence of common property. It says the motion is contrary to section 131 of the Commercial Module.

[45] Motion 10 is so unclear that arguably at the very least it is void for uncertainty. If the motion passed, it is not apparent what the body corporate would have agreed to do. Even if the unidentified structure in question was clearly understood by voters at the EGM, the motion does not say who is going to be engaged to do the work to reinstate the structure and it does not approve the cost of the work. There is also no detail as to who legal advice would be sought from and, without any approval of even an estimate or cap on the cost of any legal advice, the motion does not appear to authorise expenditure on legal advice being obtained.

[46] Although not specified in the motion, it may be the ‘structure’ referred to is the ‘encroaching walls’ that the committee resolved to remove by resolutions on 8 September. If the walls or other structure in question are on the disputed ‘encroachment’ area of common property, and if the previous licence granted to the owners of Lot 5 has ended, the reinstatement of walls or structures on that area would amount to a disposition of common property.

[47] The body corporate, if asked by an owner (rather than another owner), can authorise an improvement to common property for the benefit of an owner.^[21] However, if that improvement will subvert the common property to the exclusive use of the owner or occupier, the body corporate decision may be invalid unless the body corporate has granted legal rights to the use of the area by way of a lease, licence or grant of exclusive use.^[22]

[48] Also, if the licence period has ended, Motion 10 may be misleading in its reference to the area being licenced to Lot 5.

[49] To the extent that Motion 10 contemplates recovering costs from the named persons related to their purported role in the body corporate decision to remove the structure, I am not clear on what basis the body corporate could validly charge committee members for the cost of any consequences of committee’s decisions even if those decisions were not valid. A committee member is not civilly liable for an act done or omission made in good faith and without negligence in performing the person’s role as a committee member.^[23]

[50] An adjudicator previously noted that until the owners of Lot 5 establish a legal right to occupy the ‘encroachment area’, the body corporate has a right and even an obligation to assert its right to have the encroachment removed.^[24] He said it was difficult to conceive of a body corporate or committee being found to have acted unreasonably by asserting ownership rights in respect of an unauthorised encroachment. It appears the Supreme Court has subsequently determined that the owners of Lot 5 do not have a prima facie case of rights to the area as an encroachment. I am clear what other claim the owners of Lot 5 have to occupy the area. If the involvement of the named persons related to the structure complained of relates to the decisions of the committee to remove the encroaching walls, it is not immediately clear how any committee member involved could have any personal liability.

[51] I am satisfied that there are several issues arising regarding the validity of Motion 10.

[52] Motion 11 was submitted by the owner of Lot 4 and proposes that the body corporate compensate the owners of Lot 5 for the ‘unlawful asportation’ of their opening glass door and high security locks and charge back the cost to Mr Massey and Ms Ellis. The explanatory note says Mr Massey and Ms Elllis ‘presided over the asportation’ of the door belonging to Mr and Mrs Bartholomeusz, which has not been returned, and the body corporate is not vicariously liable for their improper act.

[53] The applicant says the motion seeks to compensate the owners of Lot 5 and levy the cost of that compensation to the named persons. The applicant refers to the wall assembly and office walls described in the Supreme Court proceedings and says there has not been any trial of those issues yet. It says the owners of Lot 5 have not yet established a right to occupy the area of common property and it would be fundamentally unreasonable for the body corporate to compensate for a right that the owners of Lot 5 did not have. It says the EGM papers do not disclose a compensable right that has been lost. It says resolving to compensate the owners of Lot 5 is an inherent admission that the owners of Lot 5 have suffered a compensable loss, and compensating the owners is a decision that could only reasonably be made after taking legal advice and considering the circumstances.

[54] The applicant further says the motion proposes to charge the cost of the compensation to two persons who are associated with members of the body corporate but are not themselves members of the body corporate. It says this is a decision that the body corporate has no power to make. Further, it says the motion does not meet the requirements for any resolution to be given effect, in that it does not specify the quantum of compensation, how it has been calculated, or when it is to be paid.

[55] Motion 11 is unclear in my view. The applicant appears to believe the ‘compensation’ in the motion is for the loss of the rights to or use of the disputed area however, the wording indicates to me that it only relates to the door and locks that have been removed with some assumption that these items are the property of the owners of Lot 5. I tend to the view that, at the very least, the failure of the motion to specify the quantum of the proposed compensation or how any compensation would be calculated or determined renders the motion unenforceable, and so invalid.

[56] If the submitter of the motion asserts that the named persons (acting in their own right or as the representatives of lot owners) have personally taken the property of the Lot 5 (being the door and locks), any dispute about the return of that property or compensation for it would appear to be between the owner of Lot 5 and the named persons. I cannot immediately see what legal authority the body corporate would have to compensate the owners of Lot 5 or to take action to recover the costs back to the named persons in that context. The explanatory note specifically asserts that the body corporate is not liable. If the body corporate is not responsible or liable for the conduct complained of, it is hard to see why the body corporate could or should have any role in the matter.

[57] Alternatively, if the submitter of the motion is suggesting that the named persons removed the property in question, or organised for its removal, in their capacity as committee members and on behalf of the body corporate, the body corporate may have a proper interest in the issue. However, if the door and locks referred to in the motion are part of the encroaching walls that the committee resolved to remove, it is not clear why the body corporate would be legally responsible for ‘compensating’ the owners of Lot 5 for the removal. Moreover, even if the body corporate had acted unreasonably or otherwise unlawfully in resolving to remove the items, it is not clear on what legal basis the body corporate could have to charge the cost to individual committee members having regard to the limits on the civil liability of committee members.

[58] Although the application seeks orders about Motion 12, there is no Motion 12 listed on the EGM agenda. Item 12 on the voting paper is a committee election. The grounds to the application do not comment on the election or otherwise on any Motion 23. I am unclear whether this motion number was included in error. In the absence of any grounds on this point there is obviously no basis for an order.

[59] The applicant is concerned that the purpose of the disputed motions is to benefit one faction of owners or commit the body corporate to liability in favour of that faction and are to intended to subvert the effect of the Supreme Court decisions. The applicant says that if interim orders are granted, the only inconvenience would be a delay in the action proposed and no real detriment arises. It says note of the matters are urgent and the body corporate’s position would not be worsened by any delay. Conversely, it says that if interim orders are refused but the final orders are ultimately granted, the body corporate will take actions that are likely to result in loss for the body corporate and its members, including further disputation and litigation.

[60] Albeit in the absence of a submission from the respondent, it does not appear that there would be any urgency about any of the disputed motions or any particular inconvenience if they were delayed, except perhaps the discharge of the solicitors in Motion 8. Given the strength of the applicant’s prima facie case, I consider on balance that the circumstances favour interim relief.

[61] I am satisfied the applicant has raised genuine legal issues about the validity of EGM Motions 2, 6, 7, 8, 9, 10 and 11. It may be that the motions are ruled out of order by the chairperson at the EGM, or that they are not passed. However, if any of the motions are purportedly passed, I consider that in the circumstances it would be appropriate to make an order preventing the body corporate from implementing those motions.

[62] I will refer this application back to the Commissioner to progress under the Act. If any of the motions in dispute purportedly pass at the EGM, such that there is a continuing dispute, I anticipate the Commissioner will seek submissions from the committee and all owners about the final orders. In due course, the application is likely to be referred back to an adjudicator for investigation and determination concurrently with the original adjudication application.

[63] The parties should note section 279(2) of the Act regarding the term and effect of an interim order. This interim order will have effect for a period of twelve months. The interim order will not automatically be renewed, and it will be up to the applicant to request an extension of the order if this matter is not resolved within twelve months.

^[1] 211 Ron Penhaligon Way Offices [2022] QBCCMCmr 338
^[2] Section 276 of the Act
^[3] Section 279(1) of the Act
^[4] See sections 227, 228, 276 and Schedule 5 of the Act
^[5] Section 247 of the Act
^[6] Section 276 of the Act
^[7] Section 279 of the Act
^[8] Section 56(1) of the Commercial Module
^[9] See for example, The Body Corporate for The Grove CTS 9356 v Comerford [2019] QCATA 172
^[10] Sections 62, 170-172 of the Act
^[11] The motion refers to the meeting as an EGM, but it is apparent that it was actually the AGM

^[12] Supreme Court claim VS7477/22, Bartholomeusz & Anor v Body Corporate for 211 Ron Penhaligon Way Offices Community Titles Scheme 25277 [2022] QSC
^[13] Section 242 of the Act
^[14] Section 94(2) of the Act
^[15] Section 100(4) of the Act
^[16] 211 Ron Penhaligon Way Offices [2022] QBCCMCmr 338
^[17] Application reference 0729-2022
^[18] 211 Ron Penhaligon Way Offices [2022] QBCCMCmr 302, para 28
^[19] Section 204 and 205 of the Act

^[20] See for example, the equitable doctrine of rectification of instruments as discussed in Burrell v Body Corporate for Boulevard North CTS 9833 [2010] QDC 352
^[21] Section 134 of the Commercial Module
^[22] See for example Katsikalis v Body Corporate for “The Centre” [2009] QCA 77
^[23] Section 101A of the Act
^[24] 211 Ron Penhaligon Way Offices [2022] QBCCMCmr 302, para 31

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

211 Ron Penhaligon Way Offices [2022] QBCCMCmr 398 (8 November 2022)