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

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                           37(3), 38(4)(e), 39(3) and 40(c) of the Commercial Module, and s 320 of
                           the BCCM Act.

                    [34]   The applicants further argued that the earlier motion at the April AGM
                           which gave initial approval to the air conditioning scheme should also be
                           treated as invalid. But once again no relief was sought to invalidate it, and
                           that issue was not in dispute. The ground now raised concerns the form of
                           the voting paper distributed before the meeting. The applicants complain
                           that “motion 14 made no provision to vote at all – only YES”. The
                           argument seems unpromising when full account is taken of the provisions
                           of the Commercial Module concerning voting on a motion that offers
                           alternatives.1 However this is a further issue that the applicants now seek
                           to raise for the first time on appeal. No legal error occurred, and I have no
                           jurisdiction to entertain these points.

                    Whether Ballada cast a valid vote

                    [35]   Ballada claims to have provided a vote by means of the post.

                    [36]   Section 39A of the Acts Interpretation Act 1954 relevantly provides:

                           (1)   If an Act requires or permits a document to be served by post, service –
                                 (a)   may be effected by properly addressing, pre-paying and posting the
                                       document as a letter; and
                                 (b)   is taken to have been effected at the time at which the letter would be
                                       delivered in the ordinary course of post, unless the contrary is
                                       proved… ..
                           (3)   Subsections (1) and (2) apply whether the expression ‘deliver’, ‘give’, ‘
                                 notify’, ‘send’ or ‘serve’ or another expression is used.

                    [37]   Under s 7 the term “Act” is defined to include statutory instruments under
                           the Act.

                    [38]   The first question here is whether under the BCCM legislation and
                           documents that bind the parties under the scheme “an Act requires or
                           permits a document to be served by post.”2 I am satisfied that the Act and
                           scheme, including the Commercial Module which this scheme has
                           adopted, permits a vote to be duly given if it is “given” to the secretary at
                           or before the start of the meeting.3

                    [39]   The question then is whether on the evidence the applicant gave a vote to
                           the secretary before the meeting. Under s 39A(1)(b) of the Acts
                           Interpretation Act 1954 service is taken to have been effected when the
                           letter would have been delivered in the ordinary course of post “unless the
                           contrary is proved”.



                    1
                            Commercial Module s 39.
                    2
                            Ibid 39A(1).
                    3
                            Ibid 54(2).




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


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[34]

37(3), 38(4)(e), 39(3) and 40(c) of the Commercial Module, and s 320 of
the BCCM Act.

The applicants further argued that the earlier motion at the April AGM
which gave initial approval to the air conditioning scheme should also be
treated as invalid. But once again no relief was sought to invalidate it, and
that issue was not in dispute. The ground now raised concerns the form of
the voting paper distributed before the meeting. The applicants complain
that “motion 14 made no provision to vote at all — only YES”. The
argument seems unpromising when full account is taken of the provisions
of the Commercial Module concerning voting on a motion that offers
alternatives.’ However this is a further issue that the applicants now seek
to raise for the first time on appeal. No legal error occurred, and | have no
jurisdiction to entertain these points.

Whether Ballada cast a valid vote

[35]

[36]

[37]

[38]

[39]

Ballada claims to have provided a vote by means of the post.
Section 39A of the Acts Interpretation Act 1954 relevantly provides:

(1) | If an Act requires or permits a document to be served by post, service —

(a) may be effected by properly addressing, pre-paying and posting the
document as a letter; and

(b) is taken to have been effected at the time at which the letter would be
delivered in the ordinary course of post, unless the contrary is
proved... ..

(3) Subsections (1) and (2) apply whether the expression ‘deliver’, ‘give’,
notify’, ‘send’ or ‘serve’ or another expression is used.

Under s 7 the term “Act” is defined to include statutory instruments under
the Act.

The first question here is whether under the BCCM legislation and
documents that bind the parties under the scheme “an Act requires or
permits a document to be served by post.” | am satisfied that the Act and
scheme, including the Commercial Module which this scheme has
adopted, permits a vote to be duly given if it is “given” to the secretary at
or before the start of the meeting.°

The question then is whether on the evidence the applicant gave a vote to
the secretary before the meeting. Under s 39A(1)(b) of the Acts
Interpretation Act 1954 service is taken to have been effected when the
letter would have been delivered in the ordinary course of post “unless the
contrary is proved”.

Commercial Module s 39.
Ibid 39A(1).
Ibid 54(2).

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

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