Opposing Committee Decisions (QLD)
Did you know that some Committee decisions can be opposed? This means that before proceeding with any action (particularly anything controversial), the Committee should wait until the notice of opposition time period has passed.
What is the time period and process I hear you ask? In this article, we explore the current regulations that include this provision and what is proposed for the future if the legislation is to be updated.
At present section 56 of the Body Corporate and Community Management (Standard Module) Regulations Qld 2008 (Standard Module) provides for the ability for owners to challenge a committee resolution. How? To oppose a committee resolution, the following needs to occur:
- Owners (or the representatives) of at least one-half of the lots included in the Scheme need to sign a notice opposing the resolution of the committee. This is called a “Notice of Opposition”;
- The Notice of Opposition must be given to the secretary within 7 days after the secretary gives a copy of the minutes containing the resolution or;
- For a resolution passed other than at a meeting (Vote Outside of a Committee Meeting (VOCM) or “Flying Minute”), a copy of the resolution given to each owner as required under section 55.
It is important to note that owners cannot challenge a resolution which is considered to be of a routine and/or administrative nature and/or involves spending not more than the greater of $200.00 or $5 multiplied by the number of lots included in the Scheme. E.g. 10 lots multiplied by $5 = $50.
A Committee can only give effect to a committee resolution once the time for giving notice of opposition under section 56 expires, without a notice of opposition being given to the secretary. While a proactive committee would see the benefit in acting on and implementing committee resolution as soon as possible, it is of utmost importance that the 7 day period has expired prior to doing so.
A recent Commissioners Office order of Coronation Gardens [2017] QBCCMCmr 235 (17 May 2017) deals with this very issue. Adjudicator J.D.M. Underdown relevantly states:
“…section 56(1) Standard Module provides a vehicle for owners to object to what the committee proposes to do even if that might be a reasonable action on the part of the committee. It is simply an action which owners do not want, and therefore requires significant numbers.”
The Notice of Opposition is a unique vehicle to owners as it does not require owners to establish a breach of the legislation simply that the majority of owners do not agree with the resolution passed. Further, the Committee is hamstrung by the owner’s decision and the only available remedies to overcome the Notice of Opposition is to either put a motion up to general meeting or apply to the Commissioner’s Office for an order that the resolution be actioned.
As noted above, this vehicle is presently only available to schemes which are registered under the Standard Module. However, recommendation number 34 recently announced by the Attorney- General and Minister for Justice and Minister for Training and Skills, looks for this vehicle to be applied across all of the regulation modules. The report provides that the ‘strongest argument in favour of this position is that if the notice of opposition is considered an appropriate safeguard for lot owners in some schemes, it should be available for all lot owners in all schemes.’
If this recommendation is implemented it will see all owners across all schemes being able to oppose a committee resolution by obtaining the signatures of 50% or more of owners within the scheme. It goes without saying that this is a high threshold to reach, especially considering the number of owner’s signatures required to call an extraordinary general meeting, however, there is a fine line between allowing owners to voice their opinion and also allowing a body corporate to administer and operate in an efficient and effective manner.
This article was contributed by Jessica Cannon of Cannon Law.
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I hasten to direct Owners to a situation where the VOTING POWER OF A body corporate is comprised of a family holding voting whose ownership exceeds 50% of lots and therefore controls the votes at any general meeting.
The committee has 5 of the 7 voting members from the control family.
In this circumstance, democracy is replaced by dictatorship and no motion can have the numbers to object. No motion can win at a general meeting if the family vote remains a bloc.
The legislation cannot always rely on an adjudicators version of ‘ reasonableness’ and there is no ‘fairness’ test defined within the Act. Further, an Adjudicators Order on ‘fairness’ or anything else cannot be enforced by the Act.
I’m sure there are many others who are confronted by this stalemate. What can we do??
Maybe the voting at committee and general meetings can be restricted as are PROX votes restricted at AGM’s and EGM’s under the Act.
Where can owners seek redress if an Adjudicator reverses his/her order? Why can an Adjudicators Order be enforced under the Act?
The example quoted in ‘Coronation Gardens’ took 5 months to resolve.
Given my circumstance, the trees would have been removed after the vote outside committee meeting and well before the 7 day (if any) notice was delivered to owners.
there are a few gaps needing attention within this legislation and regulations and until such time as these are addressed the number of disputes will continue to grow.
A solution here is compulsory conciliation meetings. at the moment, parties can boycott such meetings. Why is this not an obvious solution to reduce disputes.
Further, Committees often takes the stance not to communicate with owners for one reason or another. Surely compulsory mediation will solve the growing number of disputes.
Hi Don,
I appreciate your comments and thank you for taking the time to express your views of this topic. I can understand your frustration and you are obviously facing difficulties within your own Scheme.
The intention behind this recommendation is to create a new avenue for owners to challenge a committee decision even when that decision is lawful and within the parameters of the legislation. Ordinarily an owner (or group of owners) can only challenge a committee decision when it is unlawful or falls outside of the committee powers under the legislation. Given that this avenue allows owners to challenge lawful decisions, the threshold has to be high in order to justify the objection to the decision.
In terms of seeking quick and effective recourse, owners are at liberty to file an application with the Commissioner’s Office and seek interim orders. The interim orders can injunct a body corporate (and its committee) from taking action until such time as the final/substantive application is determined by an Adjudicator. In certain circumstances, there is also the ability to seek urgent orders from the Commissioner’s Office.
In my experience with the Commissioner’s Office there is a requirement, and a strict requirement at that, to firstly attempt internal conciliation of the issues at hand and failing that attend conciliation via the Commissioner’s Office. More often than not the parties can try some form of middle ground and a substantive application is not required. I understand and I have experienced first-hand the disputes which just are not receptive to conciliation and the only way forward is for an independent Adjudicator to make a decision.
In relation to the proxy votes there are a few recommendations which look to resolve some of the issues presently experienced in Schemes and I direct you to Archer’s news bulletin on the 64 recommendations on this point.
With all of the above said, I agree with you Don that there are certainly areas within the legislation that need work and I believe that these recommendations go some way to resolving some of the key issues experienced in community titles schemes. However, there are always going to be new issues which need to be tackled and that’s where comments like yours are advantageous in discussing and looking to practical and commercial resolutions.