Australia: Body corporate appeal struck out due to lack of a special resolution


The case of Body Corporate for Quay Terraces Cts 17468 v Brisbane City Council [2016] QPEC 12 concerned a strike-out application made by HSW Nominees Pty Ltd in the course of an appeal commenced in the Planning and Environment Court by the Body Corporate for Quay Terraces Cts against the Brisbane City Council in respect of the council's decision to approve HSW’s development application.

Under the Body Corporate and Community Management Act 1997, the body corporate could start a proceeding only if the proceeding was authorised by a special resolution. As no special resolution had been obtained, HSW submitted that the appeal should be struck out as it had been commenced without the necessary authorisation.

The Court ordered that the appeal be struck out as there were no pressing reasons in the interests of justice warranting an alternate course of action, and the determination of an adjudicator under the Body Corporate and Community Management Act 1997, which purported to tie the Court's hands, was found to be beyond jurisdiction and have no weight in the circumstances.


A proceeding which was brought without the necessary authorisation would generally be dismissed or struck out, except where there were pressing reasons in the interests of justice which would warrant an alternate course of action.

HSW’s application was heard by the Court on 8 March 2016. Relevantly, an extraordinary general meeting was called by the body corporate, which was due to be held on 16 March 2016, seeking to ratify the commencement of the appeal.

The body corporate contended that the appeal should not be struck out but rather adjourned until after the extraordinary general meeting. In support of this contention, the body corporate sought to rely on a number of discretionary considerations which included the proximity of the extraordinary general meeting, the prospects of a resolution being passed at that meeting ratifying the commencement of the proceeding and a lack of significant prejudice to HSW.

In its consideration of whether there were any pressing reasons which would warrant the appeal not being struck out, the Court was cognisant of the fact that, if the appeal was struck out but a favourable resolution was subsequently obtained to authorise the proceeding, the body corporate could make an application to the Court seeking an extension of time to file a new notice of appeal under section 497 of the Sustainable Planning Act 2009. Accordingly this was not a situation where, in the Court’s view, striking out the appeal would "shut off any prospect of the matters of concern ever being ventilated by proceedings in this court".

The Court therefore found no pressing reasons in the interests of justice which would warrant the adjournment contended for by the body corporate. Further, in the event that a favourable resolution was obtained, the Court saw no injustice in putting the body corporate in a position of having to apply for an extension of time to file a new notice of appeal.


The day prior to HSW’s application first coming before the Court, the body corporate lodged an adjudication form under the Body Corporate and Community Management Act 1997 which resulted in the following determination being made:

I hereby order that subject to the decision of the Body Corporate for Quay Terraces in respect of motions 9 and 10 to be considered at the extraordinary general meeting to be held on 16 March 2016, or any adjournment of that meeting, the Body Corporate for Quay Terraces is authorised to commence and pursue proceedings number 369 of 2016 before the Planning and Environment Court as if a special resolution had already been passed at a general meeting authorising the commencement of those proceedings.

The body corporate submitted that this determination "ties this Court's hand" and the Court was "bound by the determination to act on the basis that the body corporate was indeed authorised to commence and pursue the proceedings as if the special resolution had, in fact, been obtained" (at [35]).


HSW submitted that the adjudicator’s determination was beyond jurisdiction and on this basis should be ignored by the Court in considering whether to strike out the appeal.

Despite the exclusivity of dispute resolution processes under the Body Corporate and Community Management Act 1997 the Court considered, as a collateral question in determining HSW’s application, whether the dispute in the appeal was a dispute to which the Body Corporate and Community Management Act 1997 applied.

The body corporate submitted that the adjudicator’s determination was for "a declaratory order about the operation of the Act" (at [45]) for the purposes of section 227(2) of the Body Corporate and Community Management Act 1997.

The Court disagreed with the body corporate’s submissions and found that the determination made was not a declaration about the operation of the relevant Act. The determination purported to allow the body corporate to commence and pursue the appeal under the Sustainable Planning Act 2009 as if a special resolution had already been passed when in fact it had not. This was not, in the Court’s view, a declaratory order about the operation of the Body Corporate and Community Management Act 1997.

The Court therefore found that the determination of the adjudicator was beyond jurisdiction and should be given no weight. On this basis, and in the absence of pressing reasons for adjourning the proceeding, the appeal was struck out.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Ian Wright
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