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

5KIPGFD[#WUV.++
                                                             4



                    [9]    The present appeal is governed by s 146 of the Queensland Civil and
                           Administrative Tribunal Act 2009 (“the QCAT Act”). Such an appeal,
                           which is on a question of law only, is confined to the evidence that was
                           obtained by or presented to the Adjudicator.

                    [10]   The material attached to the application for appeal contains a quantity of
                           documents, and seeks to raise some issues that were not raised before
                           the Adjudicator. There was adequate opportunity for the parties to raise
                           the issues about which they were in dispute, and to present all relevant
                           material during that procedure. The appeal must of course be confined to
                           the evidence and issues that were presented to the Adjudicator.

                    [11]   The ultimate issue is whether the Adjudicator has shown to have erred on
                           a question of law that affected the outcome.

                    Facts

                    [12]   Until 2011 the air conditioning system for the building was a “water based”
                           system operated from a cooling tower on the roof, with individual unit
                           systems in each unit which, upon failure, would be replaced or repaired by
                           individual owners.

                    [13]   At the Annual General Meeting of 19 April 2011 it was unanimously
                           resolved to discontinue the current water cooling air-conditioning system
                           and install an individual system for each lot, with ownership of those
                           systems to be transferred to each lot owner. The minutes noted that the
                           work would be conducted on the lower levels as the first measure. Neither
                           applicant voted on the issue.

                    [14]   Further planning and negotiation with contractors led the management
                           committee to the view that some variation of the original planning was
                           necessary. Proposals for the updated changes, including full quotations
                           and specifications concerning the system upgrade were notified for
                           consideration at an EGM on 12 July 2011. Notice was sent to all owners
                           dated 20 June 2011 of the resolutions that were considered necessary in
                           order for the matter to proceed. The agenda included 8 motions, 4 of
                           which were listed as motions requiring resolution without dissent.

                    [15]   The applicant Ballada acted at material times through Mr Kildey, an
                           architect. The initial dispute the subject of his application was his claim
                           that he cast a valid postal vote against the proposals, and that it was
                           never acknowledged or counted.

                    [16]   The relevant circumstances surrounding this issue are canvassed in some
                           detail in the reasons for judgment of the Adjudicator dated 7 August 2012,
                           particularly at paragraphs [24] to [30], and [37] to [44].

                    [17]   Mr Kildey stated that he personally posted voting papers to the body
                           corporate manager (Stewart Silver King & Burns) on 7 July 2011. On the
                           other hand, the body corporate manager provided evidence that no such




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


[OCR of page images]
Signed by AustLll

[9]

[10]

[11]

The present appeal is governed by s 146 of the Queensland Civil and
Administrative Tribunal Act 2009 (“the QCAT Act’). Such an appeal,
which is on a question of law only, is confined to the evidence that was
obtained by or presented to the Adjudicator.

The material attached to the application for appeal contains a quantity of
documents, and seeks to raise some issues that were not raised before
the Adjudicator. There was adequate opportunity for the parties to raise
the issues about which they were in dispute, and to present all relevant
material during that procedure. The appeal must of course be confined to
the evidence and issues that were presented to the Adjudicator.

The ultimate issue is whether the Adjudicator has shown to have erred on
a question of law that affected the outcome.

Facts

[12]

[13]

[14]

[15]

[16]

[17]

Until.2011 the air conditioning system for the building was a “water based”
system operated from a cooling tower on the roof, with individual unit
systems in each unit which, upon failure, would be replaced or repaired by
individual owners.

At the Annual General Meeting of 19 April 2011 it was unanimously
resolved to discontinue the current water cooling air-conditioning system
and install an individual system for each lot, with ownership of those
systems to be transferred to each lot owner. The minutes noted that the
work would be conducted on the lower levels as the first measure. Neither
applicant voted on the issue.

Further planning and negotiation with contractors led the management
committee to the view that some variation of the original planning was
necessary. Proposals for the updated changes, including full quotations
and specifications concerning the system upgrade were notified for
consideration at an EGM on 12 July 2011. Notice was sent to all owners
dated 20 June 2011 of the resolutions that were considered necessary in
order for the matter to proceed. The agenda included 8 motions, 4 of
which were listed as motions requiring resolution without dissent.

The applicant Ballada acted at material times through Mr Kildey, an
architect. The initial dispute the subject of his application was his claim
that he cast a valid postal vote against the proposals, and that it was
never acknowledged or counted.

The relevant circumstances surrounding this issue are canvassed in some
detail in the reasons for judgment of the Adjudicator dated 7 August 2012,
particularly at paragraphs [24] to [30], and [37] to [44].

Mr Kildey stated that he personally posted voting papers to the body
corporate manager (Stewart Silver King & Burns) on 7 July 2011. On the
other hand, the body corporate manager provided evidence that no such

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

Verify version