THE IMPORTANCE OF PROCEDURE

There are many articles and information sheets on who is responsible for certain maintenance works. But many disputes arise over how a body corporate has attempted to approve maintenance being carried out which it accepts it is responsible for. In this article, we explore procedural errors that can arise despite a body corporate having the best of intentions to carry out the required work.

Like anything to do with bodies corporate, especially those in Queensland, there is a process and procedure to follow, and decisions must be made prior to any action being taken. When faced with large, expensive and complex works contracts, often the devil is in the detail – and that detail can easily be missed, particularly when there is pressure for works to be carried out urgently.

I will not go into chapter and verse of the process and resolution types required to approve certain maintenance and repair works. Instead, I wish to stress the importance of getting the process and procedure for approving works right. That importance is illustrated by a case study of Oceana on Broadbeach. While not a decision regarding maintenance works, this case study demonstrates how non-compliance with minor technicalities can be disruptive and detrimental to a body corporate’s position.

Oceana on Broadbeach

If you google that name, you will find a number of decisions in various jurisdictions but below is a high-level overview of the dispute.

Like many bodies corporate in Queensland, Oceana on Broadbeach was faced with a neighbouring development. Oceana was aggrieved by the development and alleged interferences caused by the development on its scheme and therefore initiated legal action against the developers.

The developers responded to that legal action – not by arguing the facts of the allegations, but by challenging the Body Corporate’s authority to bring the legal proceedings.

The issue stemmed from a seemingly innocuous mistake. Pursuant to section 312 of the Body Corporate and Community Management Act Qld 1997, a body corporate must pass a “special resolution” to authorise the commencement of legal proceedings. At Oceana’s 2024 Annual General Meeting, it held a vote to authorise proceedings against the developer. The vote passed with overwhelming support – 30 in favor and only 2 against – sufficient to meet the standard for a special resolution.

The problem? The meeting notice had mislabeled the motion as an “ordinary resolution”. This became the lynchpin of the dispute.

Seeking to resolve the issue quickly, the Body Corporate applied to an Adjudicator in the Office of the Commissioner for Body Corporate and Community Management. In a decision on 28 March 2025, the Adjudicator sided with the Body Corporate, calling the misdescription a “mere procedural irregularity” and a “technical deficiency” that was not fatal to the validity of the decision to commence proceedings. The Adjudicator declared the motion valid and, in a critical second order, granted a waiver to shorten the required 21-day notice period for a new meeting to ratify the decision.

It seemed like a swift and practical victory. But the developers escalated the matter to the Supreme Court of Queensland.

In a judgment delivered on 7 April 2025, Justice Bowskill of the Supreme Court deconstructed the Adjudicator’s decision. Her Honour agreed that the Adjudicator had the power to declare the original vote valid, despite the typo. However, the victory was short-lived.

Justice Bowskill identified two fatal flaws in the Body Corporate’s position:

1. the text of the resolution was only broad enough to authorise an earlier proceeding from 2024, which had already been discontinued. It did not extend to authorising the new proceeding filed by the body corporate in March 2025; and
2. the Adjudicator had overstepped their authority by shortening the mandatory 21-day notice period for the follow-up meeting. The law, Her Honour noted, is cast in mandatory terms and provides no power for an adjudicator to dispense with or shorten that timeframe. As a result, the subsequent meeting and its resolutions were deemed ineffective.

The outcome was a stalemate. The developers’ application to strike out the matter was dismissed. Yet the Court ruled that the Body Corporate’s proceeding was not properly authorised and ordered it to be stayed until the Body Corporate could hold another general meeting, with the proper notice, to ratify the commencement of legal action.

While the Body Corporate avoided a complete dismissal of the proceeding, the decision underscores a critical lesson. That is, the path to justice is paved with procedure, and there are few shortcuts.

The case serves as a warning to bodies corporate across Queensland that while the Courts and Adjudicators have often accepted that “non-compliance of an insubstantial nature should not be allowed to imperil the actions of bodies corporate or their committees”,[1] that position is not a one-size-fits-all excuse for non-compliance – and there are some procedural and compliance issues which cannot be overlooked.  

[1] Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court Brisbane, 29 May 2001 (Unreported)

A Timely Reminder

These decisions serve as a reminder that there are fundamental legislative requirements that must remain front of mind when bodies corporate are making decisions.

Some of the most important fiscal decisions for a body corporate relate to maintenance and repair works – particularly larger projects. Accordingly, getting the procedure and process right is crucial – not only to ensure that decisions are authorised as the legislation intended, but also to limit the potential for problems to arise for the body corporate down the track.

With that in mind, when it comes to decision making for maintenance works, bodies corporate and their committees should ensure that:

1. owners can understand, on the face of the motion, what they are being asked to decide on. Including clear explanatory notes to the motion can assist in communicating to owners the effect of the motion/decision without overcomplicating the motion itself. It is also open to a Committee to issue separate circulars and communications to owners, to keep them appraised of developments in upcoming or planned maintenance and decision-making;
2. the motion is in fact a ‘decision’ capable of being enforced by the Committee – it needs to authorise expenditure and outline the source of those funds (sinking fund, special levy, strata loan), and authorise entry into the necessary contracts;
3. the motion is considered by the correct resolution type – be sure to include GST, and consider whether the expenditure is part of a larger project (and if so, whether that affects the resolution type required);
4. if the proposed expenditure exceeds the major spending limit, two quotes are presented, unless there are exceptional reasons to warrant only obtaining one quotation; and
5. the procedural and legislative protections are afforded to owners – for example, regarding their entitlement to vote, meeting notice periods and the like.

Of course, mistakes leading to legislative non-compliance can and do happen. However, they can often be avoided by keeping the above tips in mind from the outset. Taking advice before the general meeting is called is often more cost effective than having to defend what has supposedly been authorized and risking delays in the works being implemented after the general meeting.

Article Contributed by Jessica Cannon, Partner at Chambers Russell Lawyers.