QLD: Q&A Body Corporate Decision Making

This Q&A is about body corporate decision making in QLD.

Table of Contents:

• QUESTION: Can you ask committee members to elaborate why they are voting for, say, Option 1 instead of Option 2 when the cost is higher for the same scope of work?
• ARTICLE: A Weighty Problem
• QUESTION: If a resolution has been passed by AGM to authorise payment of repairs, do we still have to have a VOC to carry out the already authorised repairs?
• QUESTION: Our body corporate has a statement “that any one Member does not have the authority to contact the Body Corporate Contractors or Suppliers without the Committee having provided this authorisation”. Is this binding?
• QUESTION: If the body corporate is engaged in multi-million litigation (with another body corporate in a mixed use, multi-purpose development), is the Committee permitted, without specific body corporate approval, to settle the matter – when all it was authorised to do was respond to proceedings?
• QUESTION: Our Committee has granted our caretaker permission to use an area of common property. Should this have gone to an AGM for a vote without dissent?
• QUESTION: Can the painting of the exterior of strata buildings be postponed for twelve months to enable levies to be raised for this maintenance?
• QUESTION: Our body corporate makes decisions that might be unpopular but necessary. Is there any obligation for a body corporate to always act or make a decision for the majority of owners?
• QUESTION: I came home to find a large red No Smoking sign on the wall directly in front of my apartment’s front door. How can I get this removed?
• QUESTION: If a motion has already been voted on and lost, is this same member able to resubmit the same motion again?
• QUESTION: One of our Committee members who is both the Treasurer and Chairperson makes decisions to spend lot owner’s money whenever she wants without approval. Can she do this?
• QUESTION: We failed to form a committee at our AGM. The meeting was dominated by a disruptive lot owner who called for the whole meeting to be void. We need to call an EGM, but how do we proceed without a committee?
• QUESTION: Some committee members wish to improve the scheme to 4 star resort standard. There is only $60,000 in our sinking fund. Are these actions considered unreasonable?
• QUESTION: A body corporate decision to install separate water meters has been on hold due to other expenses. Now we are ready to proceed and one body corporate member has changed their mind. Can the motion be overturned?

The BCCM held a Webinar on this topic: Body corporate decision making and meetings. The webinar can be viewed here:

Question: Can you ask committee members to elaborate why they are voting for, say, Option 1 instead of Option 2 when the cost is higher for the same scope of work?

Answer: You can certainly ask.

You can certainly ask. I always think a reasonable question should be awarded a reasonable answer. Provided the answer in response is logical and consistent, then I think that’s fine. People are allowed to make decisions.

In terms of quotes, if you’ve got two very close options, and you might get slightly different prices, people still can choose the more expensive one, and that’s okay. The cheapest quote isn’t necessarily the best one that’s available to us. For example, if you’re dealing with a contractor, maybe it’s a contractor you’re familiar with that has done good work for your building before. That might be a good reason why you choose their quote, which may be a little bit more expensive. But that’s fine because you have confidence that they’re going to come on time to work properly, respond to any problems that you might have. As opposed to a contractor who was a bit cheaper that you have never dealt with before. So usually, I think if there’s a logical and reasonable response, and it’s no problem.

Should the decision-making process be minuted for future reference? My view is, it’s the decision that matters and not so much the opinions that have build-up to it. Because in the end, we are all entitled to different decisions, but what gets counted is the vote and how you vote that really matters. It may be important in some schemes and in some circumstances to record some rationale if that was helpful to owners to help them understand why certain decisions should be made and I don’t see a problem with that. I wouldn’t see it with absolutely required myself.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #497.

ARTICLE: A Weighty Problem

A prospective unit buyer recently contacted us wanting to know whether it was worthwhile challenging a committee decision to refuse approval for their pet dog.

The buyer had the unit under contract and the finance condition was due in a week or so. The contract was otherwise unconditional, so that once finance approval was obtained and notified to the seller, the purchase would be completed.

The unit complex was multi-level, with carparks on the ground floor and residential units in the three floors above. Each unit had front and rear balconies. No units had courtyards. The buyer wanted approval for what would be considered a “medium” size dog i.e. roughly 18-20kgs in weight.

Through the agent, the buyer had made an application to the body corporate committee for approval of the pet dog. The committee refused on the basis that the scheme by-law provided that dogs must weigh 10kgs or under.

Was it worthwhile for the buyer to challenge the committee’s decision? The buyer could not bear to be separated from his dog but also really liked the unit…

Adjudicators’ decisions in relation to pet approvals probably now number in the thousands. It is not hard to find decisions in relation to by-laws that impose weight limits. After sifting through a sample of those decisions some relatively clear principles emerge:

1. A by-law which bans domestic pets, or any type of them, is almost certainly void.
2. A by-law which bans domestic pets over an arbitrary weight limit is almost certainly void.
3. A by-law which permits pets up to a certain weight limit without approval, but which imposes a requirement for approval over an arbitrary weight limit, is also likely void.
4. A by-law which permits pets after approval, but which imposes restrictions on the exercise of the body corporate’s discretion when granting that approval which are inappropriate to the circumstances of the scheme, is likely to be void.
5. A by-law which permits pets after approval, but which places restrictions on the exercise of the body corporate’s discretion when granting that approval which are appropriate to the circumstances of the scheme, is likely to be valid.

Of course the validity of the by-law is not the only issue. There is also the question of whether the decision made under it, typically by the committee, is valid. Taking these two criteria into account you end up with options which look like this:

Considering that a buyer does not have standing to bring a dispute resolution application to the Office of the Commissioner for Body Corporate and Community Management, the buyer has the additional task of working out how to approach the matter. Take the worst-case scenario, for the buyer, which is a valid by-law and a valid committee decision. In the event of a pet refusal under these circumstances there is little point in the buyer continuing with the purchase if they cannot bear to be separated from their pet.

Conversely in the best-case scenario where an invalid decision is made under an invalid by-law, what is the best way the buyer could approach the matter? Arguably a letter to the body corporate committee informing them of the fact that not only is their decision wrong but also that their by-law is invalid. Further, the buyer could say that in the absence of a valid by-law the buyer (and for that matter anyone else) can have a pet “as a right”. Whilst that would no doubt cause some waves within the body corporate, it would be the legally correct position. It would also permit the buyer to continue with the purchase and keep their pet.

The two other options within the matrix require different considerations.

Where a valid committee decision is made under an invalid by-law, the buyer’s approach could be the same as an invalid decision under an invalid by-law; simply proceed after notice. The reason being that if a valid decision is made (procedurally, with a correct exercise of discretion) under an invalid by-law, the decision is not enforceable. That is because absent a by-law requiring consent for pets being valid the body corporate has no other, for example, statutory right to regulate domestic pets within lots. Accordingly, the buyer could proceed with the purchase if they wished to.

The fourth option is perhaps the most frustrating. That is because even though the committee’s decision is invalid, the by-law itself is valid. If the buyer took the risk of proceeding with the contract whether or not they put the committee on notice as to their invalid decision, all it would subsequently take is for a valid decision to be made. That is, if the buyer put the committee on notice of their invalid decision then the committee could simply make a new, valid decision. If the buyer didn’t put the committee on notice about their invalid decision, settled the contract and moved in, then the buyer would have to seek to set aside the committee’s decision as invalid, whilst having the pet onsite and facing the prospect of receiving a fresh decision refusing consent for the pet. This is clearly not an attractive option.

Unfortunately for the buyer that approached us, their circumstances fell into this fourth category. The committee’s decision was invalid. The committee had simply refused the pet on the basis that it weighed over 10 kilograms. The body corporate’s by-law however, permitted pets subject to body corporate approval. The committee was able to give that approval on conditions that it saw fit. Examples of some conditions were provided in the by-law including, most relevantly, that the pet weigh under 10 kilograms. This was not a mandatory condition, and neither was it expressed in such a way as to limit the decision making power of the body corporate. Based on the wording of the by-law the committee could have equally imposed of a condition that the pet weigh under 15 kilograms.

Given the difficulties associated with this option, the buyer understandably elected not to proceed with the purchase.

Michael Kleinschmidt
Stratum Legal
E: [email protected]

This post appears in Strata News #495.

Question: If a resolution has been passed by AGM to authorise payment of repairs, do we still have to have a VOC to carry out the already authorised repairs?

Answer: Generally if a decision has been made by the Body Corporate that is the direction to the Committee to ensure those works are undertaken so having a VOC to reconfirm this would be unnecessary.

It may depend on the exact wordings of the motions, but generally, if a decision has been made by the Body Corporate (the motion at the AGM) that is the direction to the Committee to ensure those works are undertaken so having a VOC to reconfirm this would be unnecessary and would incorrectly imply that the committee could overturn the decision of the Body Corporate by voting against its wishes.

That said, every decision and motion is different and there may be some subtleties here that can’t be considered without knowing all the details of the situation. If you are concerned you should contact your body corporate manager and ask for a rationale behind the process.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #493.

Question: Our body corporate has a statement “that any one Member does not have the authority to contact the Body Corporate Contractors or Suppliers without the Committee having provided this authorisation”. Is this binding?

Is this statement Binding:

“It is important for all Committee Members to be aware that any one Member does not have the authority to contact the Body Corporate Contractors or Suppliers without the Committee having provided this authorisation”

Answer: It’s an accurate statement.

It’s an accurate statement. The body corporate committee is a collective decision-making entity. Individual committee members are not empowered to make decisions on behalf of the committee. Once the committee has made a decision, that decision might then empower an individual committee member to take action, for example, speak to a contractor. It’s also common for a committee to decide upon a committee member as a liaison person between the committee and its contractors, although again, this is something that needs to first be decided upon by the committee.

Your question ‘is this binding?’ suggests that this statement comprises part of a contract, by-law or other legal document. If so, you might wish to seek legal advice about specific interpretation of it.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #489.

Question: If the body corporate is engaged in multi-million litigation (with another body corporate in a mixed use, multi-purpose development), is the Committee permitted, without specific body corporate approval, to settle the matter – when all it was authorised to do was respond to proceedings?

Answer: Generally not, but it depends.

Generally not, but it depends.

The committee has the power to make decisions for the body corporate to the extent that owners’ rights, privileges and obligations are not changed as a result of the decision.

Accordingly, the decision to settle the matter is capable of amounting to a restricted issue. On most occasions entering into a settlement deed would be a restricted issue, but it depends on whether any of the specific clauses in the deed will change the rights, privileges and obligations of owners. This can only be ascertained by reviewing the details of the deed. Keeping in mind that the committee can always enter into a deed on the basis it will be later ratified at a general meeting.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #487.

Question: Our Committee has granted our caretaker permission to use an area of common property. Should this have gone to an AGM for a vote without dissent?

Our Committee has granted our caretaker permission to use an area of common property to use as a nursery including right to use common property water.

Our caretaker has a landscaping business on the side. The committee uses the “excuse” that the caretaker supplies some plants at no charge in the complex.

The committee has also constructed a colour bond enclosure on common property that was partly used previously as a car park for the caretaker to store equipment.

Should this have gone to an AGM for a vote without dissent?

Answer: Granting an occupation authority requires an ordinary resolution at a general meeting.

The Committee cannot grant the Caretaker rights to the common property. The Caretaker can only be granted permission to use an area of common property via an ‘occupation authority’ for purposes associated with the caretaking and/or letting. Granting an occupation authority requires an ordinary resolution at a general meeting. This can be either an EGM or an AGM, not a Committee meeting. The motion will be approved if a majority of those who validly vote on the motion vote in favour of it. The occupation authority will only last while the caretaking and/or letting agreements are in effect.

If the Caretaker does not have an occupation authority in respect of either area, then I recommend that you raise your concerns with the Body Corporate Manager and/or Committee. If the issue is not resolved, I recommend that you proceed to conciliation in the Commissioner’s Office.

Hayley Gath
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #471.

Question: Can the painting of the exterior of strata buildings be postponed for twelve months to enable levies to be raised for this maintenance?

Answer: If the painting had been agreed upon at an EGM/AGM then the committee would or should have also agreed how they were going to pay for it and if they did, they cannot postpone for 12 months unless they had another meeting to agree to that.

If the painting had been agreed upon at an EGM/AGM then the committee would or should have also agreed how they were going to pay for it and if they did, they cannot postpone for 12 months unless they had another meeting to agree to that.

The committee needs to hold an EGM if the financing was not agreed to at the meeting to make that decision.

Debbie Barker
StrataLoans
E: [email protected]
P: 1300 785 045

This post appears in Strata News #471.

Question: Our body corporate makes decisions that might be unpopular but necessary. Is there any obligation for a body corporate to always act or make a decision for the majority of owners?

On a regular basis, our body corporate makes decisions that might be unpopular but necessary.

Some owners have argued that the body corporate is not acting in the interests of the majority of owners when it makes unpopular decisions.

I have reviewed the legislation regarding body corporate obligations. I note that Section 94:

1. states that a body corporate for a community titles scheme must –
   
   1. (a)administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme, and
   2. enforce the CMS (including enforcing any by-laws for the scheme in a way provided for in this Act, and
   3. carry out other functions given to the body corporate under this Act and the CMS.
2. the body corporate must act reasonably in anything it does under subsection (1) including making, or not making, a decision for the subsection.

Based on the above I cannot see any obligation for a body corporate to always act or make a decision for the majority of owners. It must administer common property and assets for owners and act reasonably. Am I correct?

Answer: Being in a body corporate is a numbers game. If there are sufficient numbers to achieve the required threshold, then it passes and it is up to an aggrieved party to show why there was something amiss with that result.

While I appreciate it makes sense to assume that a majority decision would be the ‘right’ decision, decisions in a body corporate get made according to legislation and the legislation prescribes different thresholds to pass things. For example, a resolution without dissent requires no ‘no’ votes to be cast, in order to be successful. It doesn’t mean that there must be unanimous agreement.

For an owner to suggest that if something is “not popular” (not popular to them, I assume) then it must be incorrect, betrays a misunderstanding of how things work in a body corporate. Moreover, I would be very interested to know how one owner can know or think they know what the majority of owners want or what is in their best interests. It is a presumptuous (or psychic) position to take, without evidence to back it up.

Being in a body corporate is a numbers game. If there are sufficient numbers to achieve the required threshold, then it passes and it is up to an aggrieved party to show why there was something amiss with that result. Simply saying “I don’t agree” or “I don’t like it” is not going to cut it. Equally, though, if you’re on the committee and you’ve got people telling you they don’t like your decisions and that people are unhappy with them, wouldn’t it make sense to take heed of that and perhaps do a little more to explain your reasons? That might be part of the issue.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #468.

Question: I came home to find a large red No Smoking sign on the wall directly in front of my apartment’s front door. How can I get this removed?

I own a ground floor unit and came home to find a large red No Smoking sign on the wall directly in front of my apartment’s front door, i.e. when I open my door the sign is immediately in front of me on the wall.

I immediately rang the body corporate chairman who after a discussion sent me a text message stating – ‘I don’t really care if you don’t like looking at the sign – it is my call where they go’.

What can I do about this as, although I am not a smoker, I find the sign very unpleasant.

Answer: Many of us find many things in life unpleasant, yet they happen all the time.

While I’m sympathetic to your situation, finding something ‘unpleasant’ is not of itself grounds for having something done about it. Many of us find many things in life unpleasant, yet they happen all the time.

In this case, what I would say is that the chairperson doesn’t have unilateral power to decide things. This should be a decision of the committee and you can check committee minutes for that. If the decision wasn’t properly made in your view, you could challenge the decision in the Commissioner’s Office. You might also be able to argue the sign causes a nuisance – a visual nuisance, perhaps – although you might want to research previous cases about that sort of thing first. In the first instance, as an owner you have a right to put motions to a committee meeting so your first step would be to put a motion to the committee and asking for the sign to be moved (I’m assuming you simply want it moved – do you know where to?). If that motion fails, you could also challenge that, potentially.

On the sign itself, do you know what your by-laws say about smoking? Generally a by-law banning smoking will be invalid, which I suppose may make the sign invalid also, depending on what it says.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #464.

Question: If a motion has already been voted on and lost, is this same member able to resubmit the same motion again?

Our body corporate had a committee motion submitted for the yearly servicing of newly installed garage doors at the expense of the body corporate. The motion lost and now the same committee member that submitted the first motion has asked for the motion to be resubmitted with information about the garage doors needing to be serviced yearly for the warranty to remain in place.

As the motion has already been voted on and lost, is this same member able to resubmit the same motion again?

Does this stop the committee member from getting the garage door serviced at their own expense?

Answer: If it is the body corporate’s responsibility, there is no limit on how many times a motion can be reconsidered.

It would be important to first ascertain who is responsible for maintaining the garage door. This is the party that should be paying for the maintenance.

If it is the body corporate’s responsibility, there is no limit on how many times a motion can be reconsidered.

If it is the lot owner’s responsibility, the body corporate should not be bearing this cost.

To determine who is responsible, can you please confirm whether the door is part of an individual car parking spot or the common property access door.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #459.

Question: One of our Committee members who is both the Treasurer and Chairperson makes decisions to spend lot owner’s money whenever she wants without approval. Can she do this?

One of our Committee members who is both the Treasurer and Chairperson has a vendetta against me and another lot owner. They are also not happy that we run Airbnb at the building. This has been approved by council.

She has spent lot owner’s money to go to a Solicitor to see if she could stop the Airbnb business. Can she just spend our money on this vendetta she has against our Airbnb business? 

Can she also just spend money on her apartment i.e. new fire door/fly screens that she broke herself? She says she can spend a certain amount and I have no say in what she does with our money. Is this right?

Answer: As an owner, you are entitled to see minutes of committee meetings and decisions and that’s your opportunity to exercise oversight on what the committee does.

The committee – i.e. the committee acting as a group, and not a single committee member acting of their own volition – can indeed spend money up to a defined limit without having to seek owners’ approval to do so.

The important qualifier here is the committee. The treasurer/chair can’t just decide she wants to do something herself, it will be subject to committee approval.

As an owner, you are entitled to see minutes of committee meetings and decisions and that’s your opportunity to exercise oversight on what the committee does. The other way to monitor committee activities is at the AGM. All committee positions are vacant at the AGM so you can nominate yourself or someone else that you think would do things more competently. If you think it necessary, you can also consider seeking to remove a committee member before the AGM via an ordinary resolution to an EGM. Be mindful, though, that you’ll need someone willing and able to replace them.

As an aside, if your treasurer/chair was part of a committee decision to seek advice about prohibiting AirBnB, then it was likely a waste of time, as the legal position on AirBnB in most bodies corporate is quite clear, namely, that a body corporate generally doesn’t have the ability to prohibit it.

Putting all the above to one side I’d suggest your issue is less to do with the above and more to do with a communication and relationship breakdown with this person. Is there a reason why they’ve got a ‘vendetta’ against you and AirBnB? Have there been problems with guests? If so then I’d suggest that might be a far more productive area of discussion for both of you.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #453.

Question: We failed to form a committee at our AGM. The meeting was dominated by a disruptive lot owner who called for the whole meeting to be void. We need to call an EGM, but how do we proceed without a committee?

We are a Standard Module Scheme of only 4 lots with unequal contribution entitlements.

We held our AGM 3 days ago.

A motion to appoint a Body Corporate Manager was submitted by a lot owner prior to the voting papers being distributed. The owner also forwarded 2 proposals from Body Corporate Managers which were attached to the voting papers.

This Motion was the last item on the agenda as we had received 2 nominations for Executive Committee Positions and we also called for further nominations from the floor at the meeting. A Committee was not formed. A motion to change to a Small Scheme Module with Form 19 and associated costs was also an agenda item.

This was voted 2 for and 2 against the motion. A poll was not called for as the owner who lodged the motion to appoint the Manager challenged the result of the vote and verbally attacked the meeting chair causing the meeting to descend into a shambles. The Chair suggested that the meeting be halted and rescheduled but this only aggravated the situation.

The same owner refused to vote (recorded as abstain in the minutes) on any other motion on the agenda by stating that even the statutory motions had been loaded to stop the appointment of a Body Corporate Manager and were unnecessary as the Body Corporate Manager would ‘sort all of that out’.

All in all the actions of this owner were disruptive and offensive and she stated without proof, that there had been financial fraud. She would not listen to any explanation offered by the secretary or treasurer as to how the proposed budget was derived and how the levies were calculated.

The meeting continued and some motions passed.

So, finally the last motion is tabled and she ducks out and comes back with 1 of the 2 proposed Body Corporate Managers. She had paid him to attend. This was a positive as it afforded the owners a chance to directly ask questions and assist in their decision.

The votes were 2 for and 2 against and as it was a special resolution failed the 2/3 majority needed.

She was extremely angry and stated that she considered the whole meeting to be void and would not accept the outcome of any of the votes.

N:B: This was the first meeting she had attended in her 9 years as an owner and had never previously returned a voting paper. As a courtesy for submitting a motion we let her choose the date for the AGM.

We need to call an EGM. But as there is no committee how do we do that?
Who calls the EGM and distributes voting papers?

The motion to hold future meetings via email was passed. What are the legislative requirements?

Answer: An EGM should be called – by those committee members that are in existence – at which the body corporate considers appointing the necessary members to form the committee.

On the basis that you don’t have a valid committee, what should occur is that an EGM should be called – by those committee members that are in existence – at which the body corporate considers appointing the necessary members to form the committee. And then if that doesn’t happen, there should be a motion to approve the engagement of a body corporate manager under what’s called a ‘Part 5 agreement’. That agreement gives the manager the power of the committee. Refer to Part 2, Division 2, Subdivision 2 of the Standard Module.

That assumes, of course, that you have a body corporate manager and it’s not clear from your query you do. Not all body corporate managers are willing to undertake Part 5 responsibilities. If you go through all of those steps and can’t get either a committee or a Part 5 agreement in place, then your scheme is likely dysfunctional and will probably require the appointment of an administrator, which occurs on application to the Commissioner’s Office.

The fact that the owner ‘won’t accept’ the outcomes of the meeting is immaterial. The meeting outcomes stand until such time as an adjudicator orders otherwise.

Having either a Part 5 agreement or appointing an administrator is a serious and costly step for a body corporate. It means that you lose rights as an owner to vote – someone else does that for you. You may wish to point this out to the other owner in an effort to get them working cooperatively.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #440

Question: Some committee members wish to improve the scheme to 4 star resort standard. There is only $60,000 in our sinking fund. Are these actions considered unreasonable?

Our committee has decided upon a series of improvements to our strata scheme. When a chosen contractor could not start by a desired date, they called an EGM to rescind the motion/quotes and supply a new one with extra work included. This included unnecessary items, such as a new decorative coating of all 3 pools and a new water slide, not just repairs to the main pool only. Some committee (6 out of 7 are letting investors) and have stated their wish for the building to appear to be a 4 star resort standard.

These unnecessary upgrades come at a time when a new roof to our 5 storey 220 lot building is essential and a great deal of neglected maintenance and replacement of plant is required. One lift is not working and we have an old leaking hot water system.

As only $60,000 is left in our sinking fund the loan obtained for the extra work will have to be paid back by owners. Owners were not advised of the future funding needs. 

Are these actions considered unreasonable and could committee members be held personally responsible for making unreasonable decisions? 

Answer: A committee has an obligation to put into effect the decisions of the body corporate. However, if that motion is successfully revoked, the committee will not have failed to meet that obligation.

This raises a few separate issues:

Implementation and revocation of a decision

A committee has an obligation to put into effect the decisions of the body corporate. However, if that motion is successfully revoked, the committee will not have failed to meet that obligation.

If there are genuine issues with what was approved by the owners at general meeting (i.e. the scope of work falls short of the work that is required) then I do not see an adjudicator making any adverse finding against the committee. However, if the additional works amount to an improvement or works that are not required as a consequence of the body corporate’s maintenance obligations, I would suspect that the committee may be getting close to crossing the line to being required to implement the body corporate’s decisions if:

1. the new general meeting does not go their way; and
2. they refuse to take the appropriate action to implement the body corporate’s decision on the second round.

Budgeting

It sounds like there is a great deal of maintenance required that has not been properly budgeted for. The body corporate needs to ensure that:

1. It is maintaining all common property in good condition – irrespective of the cost; and
2. Any spending is properly authorised and budgeted for.

If there is insufficient budgeting then there would be no other option but to increase the levies on owners or obtain loans.

Upgrades to the scheme

There is nothing inherently wrong with a committee wanting to improve the overall standards of the scheme. But it can only do so with the endorsement of owners with the correct approvals and funding when required from general meeting.

Committee liability

Committee members can be held personally liable for their actions, but only if their actions are not in good faith and without negligence. This is a very difficult threshold to meet and the actions taken do not appear to be in that vicinity. Even then, there is ordinarily insurance coverage provided to the committee members.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #429.

Question: A body corporate decision to install separate water meters has been on hold due to other expenses. Now we are ready to proceed and one body corporate member has changed their mind. Can the motion be overturned?

In 2017, our body corporate voted unanimously on installing separate water meters in our small complex. This was confirmed again in the Minutes in 2018.

We have been waiting on funds to cover the cost of installation as other non-related maintenance came up.

We have been advised that there are finally enough funds to go ahead with the installation of the separate meters and the plumber is still honouring his 2017 quote.

However, one of the body corporate members has now changed her mind and no longer wants this to proceed because she feels it’s a waste of money.

Can a body corporate member who voted on the installation in 2017 then again in 2018 change there mind? The original decision is noted in both minutes.

Can this confirmed Motion be overturned? And if so, how?

Answer: The legislation deliberately makes it hard to challenge a resolution.

A Body Corporate must implement its decisions.

If an owner changes their mind about a Body Corporate resolution they can seek to have the resolution overturned by proposing a motion for the owners consideration at the next scheduled general meeting. An earlier meeting can be held if the owner persuades the committee to call a general meeting, or if the owner can gather the written support of 25% of the owners to compel a general meeting to be held.

If an owner believes a decision is invalid then they can seek to challenge the decision through the Commissioner’s office, provided that the adjudication application is made within 3 months of the decision (unless there is a good reason for the delay).

The legislation deliberately makes it hard to challenge a resolution so as to give the Body Corporate certainty about its decisions because otherwise nothing would ever be achieved.

Peter Hunt
E: [email protected]
W: Mathews Hunt Legal

This post appears in Strata News #324.

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