Education

The overwhelming majority of relationships between committees and their body corporate’s caretaker are professional, functional, and conducted in the best interests of lot owners.

Occasionally, issues arise – even to the extent that they can seem irresolvable. Many times, over the last quarter century, I have seen caretakers and committees put ‘their side of the story’ to the lot owners, to try to control the narrative.

The rules of that game changed a couple of years ago when the code of conduct for body corporate managers and caretaking service contractors, in Schedule 2 of the Body Corporate and Community Management Act 1997 (Act) was amended.

Item 2, ‘Honesty, Fairness, and Professionalism’, now includes that a caretaking service contractor (management rights operator) must not unfairly influence or attempt to unfairly influence the outcome of a motion to be decided by the Body Corporate.

That restriction was aimed at caretakers seeking to influence the outcome of motions crucial to the operation of their business and the preservation of the value of their management rights asset; for example, motions to extend or ‘top up’ the agreement term, increase the remuneration, or change the duties.

It is important to note that the code of conduct in Schedule 1 for voting committee members did not change in the same way.

While there are other positive duties on committee voting members, there is a double standard when it comes to seeking to influence the outcome of a motion to be decided by a body corporate.

A body corporate is not a natural person. It can only ‘do’ things through its officers, which means, in almost all cases, the body corporate committee (and, in some cases, particular committee members).

In Queensland, it has been a long standing legal ‘norm’ that committees could do nothing unless they first made a formal decision to do it (i.e., passed a committee resolution within a committee meeting or by vote outside committee). Being such a basic proposition, there has not been any significant challenge to it over the years.

The principle makes sense, and provides protection to the committee members themselves, lot owners, and third parties. For example, unless or until the committee voted on a particular proposition (e.g., whether to send a letter expressing particular views on behalf of the committee), each committee member was not only entitled to hold their particular views, but to express them as a lot owner, free from any obligation to ‘tow the committee line’.

The most important advantage of the ‘there must be a vote on anything the committee decides’ proposition was that the committee could then be held to account. That is, by any person entitled to challenge the committee’s decision. For example, a committee deciding whether to approve a lot owner’s request to install an air-conditioner could be the subject of a dispute resolution application under Chapter 6 of the BCCM Act by the unsuccessful applicant.

In the recent decision of The Village Chancellor Park [2026] QBCCMCmr87 (20 March 2026), an adjudicator has determined that committees can make decisions, on some issues, without following the formal committee decision making processes in the Act.

In particular, the committee in question did not need to make a formal decision to decide to send a letter to all lot owners, expressing views about what the caretaking agreement required, that the caretaker’s performance was poor, and inviting owners to communicate with the committee about the caretaker’s performance.

The Adjudicator’s reasoning effectively created two ‘levels’ of body corporate (and committee) decision making.

The first level is where the body corporate has a source of power in the Act or elsewhere, and when exercising that power, the body corporate has to comply with the requirements for exercising that power. For example, when deciding whether to terminate a caretaking agreement, the lot owners must vote on the issue at a general meeting.

In the Adjudicator’s view, a source of power will be required when the body corporate makes a decision that affects the rights, interest or obligations of the body corporate, owners, occupiers or other parties entitled to have their interests accounted for. While not stated, the implied corollary, was that absent such a source of power, these sorts of ‘first level’ decisions could not be made.

The (new) second level decisions were those that do not affect the rights, interests or obligations of the body corporate, owners, occupiers or other parties entitled to have their interests accounted for. According to the Adjudicator, no formal source of power is required for these decisions, and thus the formal requirements in the Act (about decision making generally) do not need to be adhered to.

Having found that the committee’s ‘election’ to send the letter to lot owners fell into the second category of decision, no formal committee resolution was required to adopt the letter, and to decide to send it.

In the view of the Adjudicator, the caretaker’s objections to the committee doing so were (in effect) technical, the caretaker’s goal in the dispute was to make sure the owners knew the caretaker disagreed with the committee’s views, and as that had been done, no relief should be granted. Accordingly, the application was dismissed.

Aside from upsetting a bedrock understanding about how committees make decisions in Queensland, the decision gives rise to some very serious consequences, if followed.

First, the process of determining what a second level decision is, and the debate and disputes around that, will be a lawyer’s feast.

Second, any ‘second level’ decision is not reviewable under the Act, because, as the body corporate relying on the decision will argue, Chapter 6 of the Act is not available to a would be challenger, on the basis that there is no formal decision to review, there must be a decision of the relevant decision maker before there is a justiciable dispute (K.G. Tully & Anor. v. The Proprietors The Nelson Body Corporate [2000] QDC 31 (10 March 2000)) and there can be no ‘dispute’ anyway, because the second level decision is not about the ‘exercise of rights or powers, or the performance of duties, under the Act or the community management statement’ (per section 228(1(b) of the Act).

Third, it’s easy to see how ‘second level’ decision making can be abused. What’s to stop a committee deciding to send a letter to all lot owners expressing the committee’s views about (for example) what they say the by-laws require, how Bob in unit 4 is not complying with the by-laws, that the committee thinks Bob should shape up or move out, and to contact the committee if other lot owners don’t like Bob either.

If The Village Chancellor Park is followed, then bodies corporate, and in particular committees, will be less accountable to everyone, and not just their current caretaker.

Committees are the engine room of community title in Queensland, powering bodies corporate to get things done. Countless, usually thankless, hours are volunteered by committee members. All that having been said, committees must be accountable for their decisions, especially when they cause controversy, and especially when they impact lives and livelihoods.

This article written by QLD Partner Michael Kleinschmidt was first published on Bugden Allen website on 2 April 2026.

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© 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.