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When is not making a decision – a decision?

Every stakeholder needs to be grateful for the time and energy invested by committee members into their strata communities. It is a volunteer, and often thankless, role that someone needs to play. They take time away from family or business to look after the best interests of their community.
But problems within a community arise when committee members do not make that sacrifice and set aside that time. A position on the committee is not ceremonial – it requires care, attention and work from those who volunteer for the position. Some problems I frequently see from committees include:

• Deciding to hold only one meeting a year, and it is usually right before or after the AGM (making the exercise largely redundant).

• Not investing enough time to properly consider something that has arisen, and then avoiding the problem altogether because they are not comfortable with dealing with the issue.

• Not responding to requests for a decision to be made (absenteeism).

• Introducing a “pay for service” model – if a lot owner or occupier wants the committee to do something, then they have to pay for the administrative cost (ie the cost of the flying minute to decide the pet application).

These problems lead to the management of a strata community being unattended or left to other stakeholders (ie building managers, body corporate managers). I often see owners and committee members complain about something that has happened in the past, which attracts a simple reply from those stakeholders: “no one on the committee responded or was interested in the issue, so we had to do something to keep the community going forward.”

Self management means making decisions

One of the fundamental objects of the Body Corporate and Community Management Act 1997 (Qld) is to balance the rights of individuals with the responsibility for self management. The government did not want to involve itself with the daily happenings of a strata community. It established this legislation to allow communities to govern themselves.

A primary duty of a body corporate is to act reasonably in anything it does, including making, or not making, a decision. The purpose of this duty is to ensure that a community does in fact govern itself in a timely manner.

For example, it is not reasonable to leave an owner or occupier waiting six months for a decision to be made on their request for permission to install air-conditioning to their lot. It is not enough to say that the next committee meeting is scheduled to occur in six months time, so they just have to wait. A Queensland summer is not that patient.

Owners and occupiers are not allowed to do whatever they want within their lot or upon the common property. By-laws apply to regulate that use, and they often need the body corporate’s permission to do something (like keep a pet, or make an improvement to the common property). The power to regulate those activities is balanced by the right of owners and occupiers to be subject to a body corporate that will actually make a decision in a timely and reasonable manner.

That is the balancing act.

Deemed refusal

A body corporate is often described as being the fourth tier of government. Similar to a local government, a body corporate makes decisions about things its constituents want to do. If a person files a development application with its local government, there is a statutory timeframe within which the local government must make a decision, failing which the application is deemed to be refused and that person can dispute the deemed refusal.

This gives people dealing with the local government the certainty of an outcome either way. Most importantly, the deadline serves as a call for action and often leads to a flurry of activity in the final days from the local government. With very limited exceptions , there is no similar deadline for body corporate matters.

Those dealing with a body corporate should set a realistic and achievable deadline for a decision to be made on their request, and state that a failure to make a decision by that deadline will be treated as a deemed refusal. You can then take steps to resolve the dispute that arises because of the deemed refusal.


Acquiescence generally means the tacit or implied consent to something because of a failure to object to it. It is typically said to arise when a body corporate knows about something an owner or occupier has done without approval, but raises no objection and allows the matter to stand for years at a time. As a legal principle, by acquiescence, a body corporate is said to have abandoned any rights it may have to object to what the owner or occupier has done.

It does not mean that if a committee fails to make a decision in a timely way, the owner / occupier can just assume there is implied consent. The principle does not work that way. In that circumstance, the owner should assume a deemed refusal and dispute that to gain some certainty of outcome.

Acquiescence does not provide any certainty. It is an equitable defence an owner or occupier can raise if a body corporate takes action (ie in the Commissioner’s Office) against them about something that has been in place for a long time without any objection. An adjudicator will look at the unique circumstances of the case when deciding whether to allow the defence.

“Pay for service”

I mentioned above a “pay for service” model being used in some communities. It typically arises when the body corporate is fairly inactive and wants to keep administrative costs as low as possible by only having (and paying) for one or two committee meetings a year, and avoiding having to make decisions outside those meetings.

Under this model, if an occupier applies for approval to keep a pet cat, they will be met with an administration fee for the paperwork involved in the committee making a decision. That was the situation that arose in Lenvilla [2018] QBCCMCmr 146 where an adjudicator ordered the body corporate to reimburse the $65 pet application fee because it could not lawfully be imposed.

There are always going to be costs involved in a body corporate serving the purpose of its existence: administering and managing its community. Some may try to reduce or avoid those administrative costs by self managing. But the legislation requires a committee to give written notice of what it intends to do (hold a meeting, vote on a motion etc) and what it has done (minutes). Even if the scheme was self managed, someone has to pay for the paper and ink.

There is an inevitable cost to community management, and that cost is shared by all lot owners because they all benefit from a community that is properly administered. A body corporate is not a user-pays service provider.
This does not mean that a body corporate can never pass on some of the costs it incurs in making a decision. The legislation does allow this in some circumstances. The point is that a body corporate must act reasonably, and that means being ready and willing to make decisions for the harmony of the community.


Strata communities should adopt a by-law which sets out a decision-making process. It should:

• set out a time in which a committee must acknowledge the application is received;

• entitle the committee to request more information about the application;

• provide that the application is automatically refused if the applicant does not give that information within a reasonable time; and

• set a deadline for when a final decision is to be made, and enable that deadline to be extended if the circumstances require it.

This is not intended to hamstring a committee. It can assist a committee in setting the expectations of owners and occupiers as to when their request will be dealt with, so the committee is not subjected to arbitrary demands for a decision in three business days.

None of this should be seen as an invitation for nuisance owners to take a committee to task for failing to deal with their 8th letter that week in a timely manner. That touches on one of the biggest challenges facing strata communities, which I cannot do justice to in this article. Suffice it to say, those special cases should be treated differently and a committee should not allow a transparent decision-making process to be abused.

Volunteering to be on a strata committee does not necessarily have to be an onerous or time-consuming exercise. When working with a proactive and capable strata manager and a competent building manager (f there are management rights for the scheme), a committee can fulfil its intended role of receiving and vetting information so it can make decisions in a timely and reasonable manner. But the committee does have to make time to fulfil this role, and should align itself with service providers who can make that process as simple as possible.

This article was contributed by Jason Carlson, Grace Lawyers.


* This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.

1 For example, the obligation to make a decision on whether to consent to a transfer of management rights within 30 days of receiving all information reasonably necessary to make a decision.


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  1. John Edds

    Some good points there Jason and one that all committee members should heed. As a former Chair of committees for over 20 years there is a tendency for some members to turn up or only focus on one issue. Many don’t plan their holidays around the set meeting timetables and when they rock up for next meeting they find that their favourite subject has not been discussed and cause a fuss.

    Intending committee members need to undertake to align their availability with set times and be prepared to back up their arguments with facts.

    1. Jason Carlson

      Hi Cindy. Good question.

      For minutes of a committee meeting to be full and accurate, they need to include details of tabled correspondence. I do not think this means a full account of what the correspondence raises, but enough so the subject matter and author can be identified. If an owner is curious about the correspondence, they can make a written request for a copy of that correspondence. If a decision has been made in relation to a particular piece of correspondence at that meeting, then the minutes would record that decision. A helpful adjudicator’s decision dealing with a similar issue is accessible here:

      Overall, a body corporate has to act reasonably in everything it does, including considering and acting upon correspondence. The obligation to act reasonably may extend to answering queries raised in correspondence if the circumstances warranted it. However, I have seen many situations where the tone and volume of correspondence sent to a committee was such that I don’t think any sane committee would entertain it. There has to be a balance. Owners are entitled to attend committee meetings. So if an owner has queries about the administration of their community, they should avail themselves of that opportunity and request some time to raise them in the meeting.

      Kind regards,
      Jason Carlson
      Grace Lawyers

  2. Cindy

    Hi Jason, our Committee often lists correspondence from owners in the minutes as “various issues” or give no details of the subject at all and they do not send any reply or even make note of any decision or discussion as to the matter raised. In the past I have heard a BC Manager say that the committee is not ‘obligated’ to give any reply. This leaves a lot of unanswered questions and ignored comments made by owners which I find very rude and sometimes arrogant as the Committee do not want to answer, or even listen to, owners and they remain a law unto themselves. I would like your take on the legalities of this “approach”,or more to the point, lack of acknowledgement and response, by Committee’s. Thank you.

  3. Jason Carlson

    Hi John. You make some good points. I’d also add that in today’s day and age, technology has given us many more options to be involved in the management of a community. It is preferable to have everyone in the same room, but a committee member can attend a meeting by teleconference.

    Kind regards,
    Jason Carlson
    Grace Lawyers

  4. Lyn Mattingley

    Last year we purchased a unit and I became a committee member. The committee only meets once a year after AGM. However, the Chairperson with the knowledge of the BCM makes all decisions for the committee with no consultation let alone passing motions, etc. The owners are aware of this but are happy to have someone do all the work. I consider the Chairperson’s actions unlawful. I am aware of at least 7 expenditures made in this fashion since April 27, 2018. One of these expenditures was above the committees spending limit The BCM told me that this expenditure had been approved by the committee when it had not. The BCM says that the committee has always acted within the legislation. Can you please tell me (1) can these unlawful actions be ratified by the committee and/or the body corporate? (2) If it is within the power of the Body Corporate only to ratify, should it be done at the AGM or an EGM. Thanks for your help.

    1. Jason Carlson

      Hi Lyn.

      An act done by a committee member (as an agent) without proper authority can be ratified be the body corporate (as the agent’s principal). Whether the ratification can be given by committee resolution or resolution passed in general meeting depends on the nature of the act. If it involved expenditure above the committee spending limit, then the decision to ratify can only be made in general meeting. The risk in all of this is that if a committee member makes a unilateral decision, they could held personally liable if their act is not ratified by the rest of the committee or the body corporate.

      What you have described is not unusual in the strata industry. It certainly is not a perfect way of managing body corporate expenditure, but it does happen. Committees tend to develop their own way of operating, and I often see “Captains of the Committee” emerge who take the lead in just about everything. These Captains almost always have the community’s best interests at heart, and are the go-getter personality many communities need to keep functioning properly.

      A QCAT member deciding an appeal against an adjudicator’s order once cautioned that if the “legislation were at all times, and in all circumstances applied with the utmost rigour and most precious attention to detail, its objects and policies would be retarded by endemic disputation, rather than advanced”: Carroll & Ors v Body Corporate for Palm Springs Residences CTS 29467 [2013] QCATA 21.

      If you are new to the committee, I’d encourage you to request greater involvement in day-to-day decisions. A captain is often relieved to see someone else willing to help keep the ship moving in the right direction.

      Kind regards, Jason.