20181085-ASC12 - Ballada Pty Ltd v North Point Brisbane & Anor [2013] QCATA 184

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                                On their face, the motions and the supporting information appear relatively
                                straight forward. In the absence of any more detail, I am unclear how or
                                why the applicants consider them confusing or misleading. I am not
                                satisfied there is sufficient basis to invalidate the motions.

                    [47]   There is nothing in this point and no error is shown.

                    [48]   The Adjudicator then mentioned some further alternative grounds on
                           which the application must fail even if Ballada’s adverse vote had been
                           cast, observing:

                                Even if the second respondent had voted against the motions with more
                                information, that vote would not have changed the outcome of any of the
                                resolutions.

                    [49]   That observation is based on the Adjudicator’s conclusion that the motions
                           listed as requiring a resolution without dissent actually required to be
                           carried only as ordinary resolutions.7

                    [50]   Motions 2 and 4 sought to rescind previous budget and levy motions
                           which had been passed by ordinary resolution. A motion may be revoked
                           by a motion of the same type.8 Motion 6 was for the appointment of a
                           project manager for the air conditioning works. It was not mentioned in the
                           adjudication application. It does not dispose of property, and no basis is
                           advanced in the applicants’ submissions for its requiring a resolution
                           without dissent. Motion 8 dealt with assignment to the lot owners of the
                           body corporate of ownership of the new systems within each lot. Under
                           s 123 of the Commercial Module the body corporate may deal with a body
                           corporate asset by ordinary resolution. Disposal of common property of
                           course requires a resolution without dissent. However, the view is open
                           that acquisition or replacement of air-conditioning units in the individual
                           lots involved neither acquisition nor disposal of common property, and that
                           it amounted to dealing with body corporate assets that were not part of the
                           common property. It is also arguable that the replacement of the systems
                           in the units was an improvement within the meaning of s 119 of the
                           Commercial Module, and that an ordinary resolution is sufficient
                           authorisation for the making of such improvements, though I hold doubts
                           about this, and would not base my decision on that premise. On either of
                           these bases a vote by the applicant against motion 8 would not have been
                           sufficient defeat the motion.

                    [51]   No separate point was made to suggest that the applicants were
                           prejudiced by the error of describing these motions as “motions by
                           resolution without dissent”.

                    [52]   The applicants’ main case is that Ballada cast a valid vote, and that the
                           resolutions which were required to be carried without dissent were
                           therefore not appropriately carried. That has been totally undermined by


                    7
                            Ibid [64] and [65].
                    8
                            Commercial Module s 62.




4GVTKGXGFHTQO#WUV.++QP/CTEJCV                                                           8GTKH[XGTUKQP


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[47]

[48]

[49]

[50]

[51]

[52]

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On their face, the motions and the supporting information appear relatively
straight forward. In the absence of any more detail, | am unclear how or
why the applicants consider them confusing or misleading. | am not
satisfied there is sufficient basis to invalidate the motions.

There is nothing in this point and no error is shown.

The Adjudicator then mentioned some further alternative grounds on
which the application must fail even if Ballada’s adverse vote had been
cast, observing:

Even if the second respondent had voted against the motions with more
information, that vote would not have changed the outcome of any of the
resolutions.

That observation is based on the Adjudicator’s conclusion that the motions
listed as requiring a resolution without dissent actually required to be
carried only as ordinary resolutions.”

Motions 2 and 4 sought to rescind previous budget and levy motions
which had been passed by ordinary resolution. A motion may be revoked
by a motion of the same type.® Motion 6 was for the appointment of a
project manager for the air conditioning works. It was not mentioned in the
adjudication application. It does not dispose of property, and no basis is
advanced in the applicants’ submissions for its requiring a resolution
without dissent. Motion 8 dealt with assignment to the lot owners of the
body corporate of ownership of the new systems within each lot. Under
s 123 of the Commercial Module the body corporate may deal with a body
corporate asset by ordinary resolution. Disposal of common property of
course requires a resolution without dissent. However, the view is open
that acquisition or replacement of air-conditioning units in the individual
lots involved neither acquisition nor disposal of common property, and that
it amounted to dealing with body corporate assets that were not part of the
common property. It is also arguable that the replacement of the systems
in the units was an improvement within the meaning of s 119 of the
Commercial Module, and that an ordinary resolution is sufficient
authorisation for the making of such improvements, though | hold doubts
about this, and would not base my decision on that premise. On either of
these bases a vote by the applicant against motion 8 would not have been
sufficient defeat the motion.

No separate point was made to suggest that the applicants were
prejudiced by the error of describing these motions as “motions by
resolution without dissent”.

The applicants’ main case is that Ballada cast a valid vote, and that the
resolutions which were required to be carried without dissent were
therefore not appropriately carried. That has been totally undermined by

Ibid [64] and [65].
Commercial Module s 62.

Retrieved from AustLII on 30 March 2020 at 16:29:45

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