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

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                           the finding that no such vote was in fact cast. It would be additionally
                           undermined if the resolutions did not need to be carried without dissent.

                    [53]   In my view the Adjudicator was probably correct in considering that in the
                           circumstances none of the motions were of a kind that the relevant
                           module and rules would require to be carried without dissent, although I
                           have reservations about motion 8. But it is not necessary to express
                           concluded views on these points, as in fact no adverse vote was cast by
                           Ballada, and all the motions were carried without dissent.

                    [54]   The resolutions were said to be invalid on other grounds also. The basis
                           of these submissions is not entirely clear, but they seem to be founded on
                           unreasonableness and possibly on bad faith. Underlying these complaints
                           are challenges to the wisdom or need of any change of the air
                           conditioning service at all.

                    [55]   The applicants asserted that the air conditioning upgrade was “completely
                           inappropriate” for funding by a body corporate. No comprehensible case
                           was made out to satisfy that assertion. It is also alleged that the
                           resolutions were invalid because they had the effect of creating
                           insolvency, but that allegation was not made out by any acceptable
                           evidence.

                    [56]   Reference was made to oppression and to the perception that certain
                           decisions unduly favoured one sector or group of unit owners over others.
                           In a scheme that serves a mixed commercial and residential community,
                           there is considerable scope for difference of view as to the overall needs
                           of the scheme. The applicants here are apparently in a minority position in
                           the relevant decision making. In this situation a complainant seeking the
                           intervention of an adjudicator in a dispute with the body corporate needs
                           to show a telling case of unreasonableness or breach of some identifiable
                           duty. There also needs to be a situation where the Adjudicator possesses
                           the power to correct the inappropriate conduct.

                    [57]   In the present case I have searched in vain for evidence that makes good
                           the above assertions. There is nothing whatever that offers engineering,
                           structural or economic insights. That the applicants disagree with various
                           decisions that have been made is not in doubt. But no attempt was made
                           to provide objective evidence of the alleged vice of the scheme, and no
                           serious case was presented of oppression or unreasonableness. Nor is
                           there any clear picture of the views of the rest of the community.

                    [58]   The body corporate’s duty to maintain the common property included the
                           utility infrastructure. This includes the whole structure that takes the
                           system to the individual lots. The body corporate had the right to upgrade
                           or replace the utility infrastructure if that course was considered
                           appropriate.9 The carrying of the motions at the meetings of April and July
                           shows that that course was considered appropriate, and no objective
                           basis has been shown for interference with such decisions.

                    9
                            See Adjudicator’s reasons for decision, at [85] to [95].




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


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[53]

[54]

[55]

[56]

[57]

[58]

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the finding that no such vote was in fact cast. It would be additionally
undermined ifthe resolutions did not need to be carried without dissent.

In my view the Adjudicator was probably correct in considering that in the
circumstances none of the motions were of a kind that the relevant
module and rules would require to be carried without dissent, although |
have reservations about motion 8. But it is not necessary to express
concluded views on these points, as in fact no adverse vote was cast by
Ballada, and all the motions were carried without dissent.

The resolutions were said to be invalid on other grounds also. The basis
of these submissions is not entirely clear, but they seem to be founded on
unreasonableness and possibly on bad faith. Underlying these complaints
are challenges to the wisdom or need of any change of the air
conditioning service at all.

The applicants asserted that the air conditioning upgrade was “completely
inappropriate” for funding by a body corporate. No comprehensible case
was made out to satisfy that assertion. It is also alleged that the
resolutions were invalid because they had the effect of creating
insolvency, but that allegation was not made out by any acceptable
evidence.

Reference was made to oppression and to the perception that certain
decisions unduly favoured one sector or group of unit owners over others.
In a scheme that serves a mixed commercial and residential community,
there is considerable scope for difference of view as to the overall needs
of the scheme. The applicants here are apparently in a minority position in
the relevant decision making. In this situation a complainant seeking the
intervention of an adjudicator in a dispute with the body corporate needs
to show a telling case of unreasonableness or breach of some identifiable
duty. There also needs to be a situation where the Adjudicator possesses
the power to correct the inappropriate conduct.

In the present case | have searched in vain for evidence that makes good
the above assertions. There is nothing whatever that offers engineering,
structural or economic insights. That the applicants disagree with various
decisions that have been made is not in doubt. But no attempt was made
to provide objective evidence of the alleged vice of the scheme, and no
serious case was presented of oppression or unreasonableness. Nor is
there any clear picture of the views of the rest of the community.

The body corporate’s duty to maintain the common property included the
utility infrastructure. This includes the whole structure that takes the
system to the individual lots. The body corporate had the right to upgrade
or replace the utility infrastructure if that course was considered
appropriate.° The carrying of the motions at the meetings of April and July
shows that that course was considered appropriate, and no objective
basis has been shown for interference with such decisions.

See Adjudicator’s reasons for decision, at [85] to [95].

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

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