Section 312(1) of the Body Corporate and Community Management Act 1997 notes:
The body corporate for a community titles scheme may start a proceeding only if the proceeding is authorised by –
- if the scheme is a specified two-lot scheme – a lot owner agreement for the scheme; or
- otherwise – special resolution by the body corporate
Under this section of the legislation the Office of the Commissioner for Body Corporate and Community Management have ruled that this includes applications being made by the Body Corporate to QCAT (Queensland Civil & Administrative Tribunal) in respect to fencing and / or tree disputes.
The Act and the Regulation Modules provide some exceptions to the requirement to obtain a special resolution as “proceedings” are different to a “prescribed proceeding” – however the application to commence the action through QCAT does not sit under any of the exceptions listed.
An adjudicators order lodged by a Committee Member of a body corporate sought an interim order that a motion passed at a recent vote outside of committee meeting not be acted upon until a final order made – this motion being to commence action through QCAT to pursue an outstanding amount for replacement of a section of fencing.
The adjudicator noted in the order:
“The committee is unable to make a decision on behalf of the body corporate if it relates to a restricted issue as identified in the regulation module. Amongst the restricted issued listed in the Standard Module is a decision to start a proceeding. The Act states that a decision to commence a proceeding required authorisation by special resolution”…….”The Committee apparently believes that an application to the Queensland Civil and Administrative Tribunal (QCAT) for an order under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 is not a proceeding, but I do not see why not”.
As such, the adjudicator ruled that resolution 1 (and another) made by the body corporate committee are of no effect and must not be acted upon pending the final determination of this application.