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

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                           against the body corporate that the body corporate should bring such
                           claims against the QPCU and enforce them.

                    [28]   The body corporate contends in relation to claim (g) that in the absence of
                           a claim against the body corporate to invalidate the committee resolution
                           authorising the installation of the ATM, the claim is not maintainable
                           against the QPCU. The question whether any of the claims against the
                           QPCU are in any event viable will be considered in due course.

                    Whether the Time for Notification of the Meeting was too short

                    [29]   The first ground taken on this appeal concerning “EGM contravention
                           issues” is that the notice of meeting was not given in accordance with s 41
                           of the Commercial Module. The EGM notice was dated 21 June 2011, it
                           was sent by post, a subsequent letter and notice dated 23 June 2011
                           were sent by post, and the meeting was held on 12 July 2011. This was
                           said to contravene s 41 of the Commercial Module, which, according to
                           the submission, requires such a meeting to be held at least 21 days after
                           giving of the EGM notice to the owners of lots.

                    [30]   The respondent body corporate objects that no such point was raised
                           before the Adjudicator. It is not a point that one would expect an
                           adjudicator to deal with unless a party raised it for consideration. It is an
                           issue which, once raised, might warrant the reception of further evidence,
                           explanation and clarification of detail.

                    [31]   There may in any event be answers to the point, including that the
                           meeting in question was an EGM, the time provisions for which are
                           prescribed in s 34 of the Commercial Module as requiring that it be called
                           within 14 days after the notice of request, and be held within six weeks
                           after the notice is given. It may well be that s 34 provides its own system
                           for EGMs while s 41 deals with general meetings other than EGMs. This
                           seems to be reinforced by the “note” contained in s 41.

                    [32]   Other possible answers to the point might need full argument and require
                           evidence to be properly litigated. For example, many of the matters
                           mentioned in the relevant Module with respect to procedures before,
                           during and after meetings are relatively trivial in the overall picture of
                           ensuring fair play in decision-making and body corporate meetings. It
                           would be surprising if the consequence of “nullity” were to be visited upon
                           all acts and doings following any irregularity in the process. However, I
                           leave for another day the question whether short notice of a meeting for
                           which the relevant module of a body corporate specifies a required
                           number of days notice means that the meeting is in all respects void, and
                           that no valid resolutions could result there from.

                    [33]   As no such point was raised before the Adjudicator, it was a non-issue,
                           and no error of law occurred on the Adjudicator’s part. This issue cannot
                           now be raised for the first time on appeal. The same may be said of
                           further points now raised concerning alleged infringements of ss 37(2),




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


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[28]

against the body corporate that the body corporate should bring such
claims against the QPCU and enforce them.

The body corporate contends in relation to claim (g) that in the absence of
a claim against the body corporate to invalidate the committee resolution
authorising the installation of the ATM, the claim is not maintainable
against the QPCU. The question whether any of the claims against the
QPCU are in any event viable will be considered in due course.

Whether the Time for Notification of the Meeting was too short

[29]

[30]

[31]

[32]

[33]

The first ground taken on this appeal concerning “EGM contravention
issues” is that the notice of meeting was not given in accordance with s 41
of the Commercial Module. The EGM notice was dated 21 June 2011, it
was sent by post, a subsequent letter and notice dated 23 June 2011
were sent by post, and the meeting was held on 12 July 2011. This was
said to contravene s 41 of the Commercial Module, which, according to
the submission, requires such a meeting to be held at least 21 days after
giving of the EGM notice to the owners of lots.

The respondent body corporate objects that no such point was raised
before the Adjudicator. It is not a point that one would expect an
adjudicator to deal with unless a party raised it for consideration. It is an
issue which, once raised, might warrant the reception of further evidence,
explanation and clarification of detail.

There may in any event be answers to the point, including that the
meeting in question was an EGM, the time provisions for which are
prescribed in s 34 of the Commercial Module as requiring that it be called
within 14 days after the notice of request, and be held within six weeks
after the notice is given. It may well be that s 34 provides its own system
for EGMs while s 41 deals with general meetings other than EGMs. This
seems to be reinforced by the “note” contained ins 41.

Other possible answers to the point might need full argument and require
evidence to be properly litigated. For example, many of the matters
mentioned in the relevant Module with respect to procedures before,
during and after meetings are relatively trivial in the overall picture of
ensuring fair play in decision-making and body corporate meetings. It
would be surprising if the consequence of “nullity’ were to be visited upon
all acts and doings following any irregularity in the process. However, |
leave for another day the question whether short notice of a meeting for
which the relevant module of a body corporate specifies a required
number of days notice means that the meeting is in all respects void, and
that no valid resolutions could result there from.

As no such point was raised before the Adjudicator, it was a non-issue,
and no error of law occurred on the Adjudicator’s part. This issue cannot
now be raised for the first time on appeal. The same may be said of
further points now raised concerning alleged infringements of ss 37(2),

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

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