Management Rights, Industry Publication
Being right and being smart can be two different things
Article by Frank Higginson
Current as at July 7, 2026
This article appeared in the QLD Strata Magazine published by LookUpStrata, December 2025
Serving on a body corporate committee can often feel like dancing on legal eggshells, and the innocent volunteer can quickly find themselves ankle-deep in a procedural omelette.
For example, is there really that much difference between a meeting voting on an ordinary resolution versus a special resolution?
In short: Yes, there is.
Unlike ‘the vibe’ from the classic Australian film The Castle, courts tend to adhere to the black letter of the law, even when the intent is clear.
As the body corporate for one Gold Coast strata scheme has discovered to its cost, it’s not just a case of semantics: terms such as ‘ordinary resolution’ and ‘special resolution’ carry specific meaning in legislation.
In a case heard before the Supreme Court of Queensland, the body corporate for Oceana on Broadbeach commenced proceedings against the developer and the builder of a project on an adjoining property, seeking damages for trespass and nuisance. There were allegations of a boundary fence and vegetation being removed, and excavations that damaged utilities on Oceana’s property. All these issues are proper things to have arguments about.
In brief, all the parties subsequently signed a licence agreement, and the building work could continue.
However, just months later Oceana claimed the agreement had been breached and commenced proceedings in the Supreme Court seeking a permanent restraint on the developer and the builder from entering Oceana’s property.
This is where the procedural eggshells started to crack.
Under the BCCM Act, a body corporate can only initiate legal proceedings for something of this nature under the authority of a special resolution of the body corporate.
According to the minutes of Oceana’s AGM in November 2024, the agreement to pursue legal action against the neighbouring developer and builder was passed an as ordinary resolution (30 in favour, 2 opposed and 4 abstains).
The defendants’ lawyer seized on that, arguing that the proceeding was incompetent because it was not authorised by a special resolution.
There is insufficient space here to detail the difference in voting requirements between the two types of resolutions, but suffice to say this was procedural crack number one.
Further cracks emerged in the procedure to retrospectively approve the body corporate’s decision to undertake legal proceedings in the first place and in a BCCM adjudicator’s jurisdiction to truncate the period of notice for an extraordinary general meeting to try to urgently rectify the non-compliance.
As Chief Justice Bowskill noted: “There is an understandable sense of frustration in such a conclusion, because it seems quite apparent that there is overwhelming support from the body corporate for the action taken against the defendants, both in September 2024 and now. However, that practical consideration cannot overshadow the operation of the legislation.”
As this was a case of “compounding procedural and technical irregularities or failures to comply with the mandatory terms of the legislation” the proceedings were stayed (with a hope for an ultimate resolution). Costs are to be determined.
All of which has been a long, ongoing and expensive undertaking that highlights the importance of a body corporate being mindful of the importance of following the legal process.
The full background and ruling from the Supreme Court can be found at: https://www.sclqld.org.au/caselaw/154616
Read more from industry experts in the QLD Strata Magazine:
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