Can a Body Corporate Commence Legal Proceedings Without a General Meeting Resolution?

Can a Body Corporate Commence Legal Proceedings Without a General Meeting Resolution?

It is a question lawyers get asked all the time: can a body corporate commence legal proceedings without a general meeting resolution?

The simple answer is yes, you can, so long as the Committee passes an appropriate resolution which is later ratified by the Body Corporate in a general meeting.

But what does it take to ‘ratify’ a decision? It would appear the devil is in the detail. The point is demonstrated by the recent Supreme Court decision in The Body Corporate for Oceana on Broadbeach CTS 24163 v 21 Broadbeach Blvd Pty Ltd [2025] QSC 68.

Background

The matter related to a dispute between The Body Corporate for Oceana on Broadbeach CTS 24163 (Body Corporate) and the developer & builder of a neighbouring site (Defendants).

On 19 September 2024,  the Body Corporate first commenced proceedings against the Defendants seeking damages for trespass and nuisance in relation to various works carried out on the neighbouring site (2024 Proceedings). The 2024 Proceedings were commenced with the authority of the Committee, but a general meeting resolution was not passed beforehand, on the basis that there was urgency to act quickly to prevent further damage. At this time, the Committee had also resolved to convene an EGM at the earliest opportunity to seek retrospective approval from the Body Corporate for the commencement of the 2024 Proceedings.

The Body Corporate held its AGM on 27 November 2024 and passed the following resolution (Resolution 9):

“9. Commencement of Court Proceedings for Developer Trespass Dispute – Motion by Ordinary Resolution

RESOLVED THAT in order to protect the interests of Oceana’s land and Residents, Frigo James Legal Pty Ltd be engaged and instructed to prepare, file and prosecute an urgent application and claim before the Supreme Court of Queensland at Brisbane on behalf of the Body Corporate seeking urgent injunctive relief for orders (including damages) to cease the unlawful trespass and nuisance activities causing interference and damage presently occurring on the Body Corporate’s land, as well as any other related necessary court relief and orders that may be required, as may be amended from time to time. 

YES   30   NO   2  ABSTAIN  4”

The parties ultimately resolved the 2024 Proceedings by entering into a licence agreement, which was discontinued in December 2024.

The Body Corporate alleged that the Defendants breached the licence agreement and thus commenced further proceedings on 13 March 2025 seeking various orders, including for damages (2025 Proceedings). The 2025 Proceedings are the subject of the present application, in which the Court was asked by the Defendants to either dismiss or strike out the proceedings for want of proper authorisation by special resolution in a general meeting.

The Court

One of the issues that the Court considered was whether the words “any other related necessary court relief and orders” were sufficient to authorise the commencement of the 2025 Proceedings. The Court held that they were not, because in the circumstances it was clear that the resolution was directed to retrospectively ratifying the 2024 Proceedings and, on a plain reading of the words used, the reference was to court relief and orders in relation to the 2024 Proceedings, not the 2025 Proceedings.

The Court also considered whether Resolution 9 was passed by special resolution, despite being recorded in the minutes as being passed by ordinary resolution. The Court found that it could not be said to have passed by special resolution, because of s 78 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020, which required that the voting paper state the type of resolution required for each motion (which did not occur in this case).

Implication

The case highlights the importance of using specific wording in the ratifying motion. It may have been the intention, or the genuine belief held by the Body Corporate that the resolution would be sufficient to authorise any future or new proceeding against the Defendants. However, that intention was not clearly reflected in the words used.

The Court ultimately dismissed the Defendant’s application to strike out the Body Corporate’s 2025 Proceeding, because it considered the appropriate course was to stay those proceedings until proper authorisation had been given by the Body Corporate.

This amounts to, in non-legal language, a ‘very close call’. If the 2025 Proceedings were struck out, then the Body Corporate may have ended up with a cost order against it, and, if the Body Corporate wanted top progress the dispute, it would have to commence brand new proceedings, which had been properly authorised.

Commencing litigation, even in urgent circumstances, needs to be done right.  If not, then serious and severe consequences can flow.

Bugden Allen can help you get it right, first time, and when it’s urgent.

– Anna Park, Senior Associate

© Bugden Allen Group Legal Pty Ltd. This is general information only and not legal advice. You should not rely on this information without seeking legal advice tailored to your specific circumstances.