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

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                    [40]   There was evidence upon which the Adjudicator could be satisfied that the
                           contrary was proved. There was evidence that no such vote was received,
                           and the Adjudicator was entitled to act upon it. There is no error of law in
                           the Adjudicator’s approach to the matter. Indeed, she endeavoured to
                           obtain greater particularity from Ballada concerning the method of postage
                           and other relevant data, but the applicants provided no further evidence in
                           support of their claims.4

                    [41]   It is true that Mr Kildey had indicated that he intended to vote no and that
                           the manager and committee were probably aware of this. But there is a
                           substantial difference between notification of an intention and the casting
                           of an actual vote.5 This claim failed on evidence that was reasonably
                           capable of acceptance, and no error of law is disclosed in the
                           determination of this issue.

                    Other points alleging invalidity of the meeting

                    [42]   A variety of further issues were raised, including invalidity based on the
                           fact that the body corporate does not maintain a mailbox.             The
                           Commercial Module requires the body corporate to either maintain a
                           mailbox or make suitable alternative arrangements for the receipt of mail.
                           There was evidence that the body corporate has made suitable alternative
                           arrangements, namely receipt on its behalf by the body corporate
                           manager, SSKB.6 It was therefore open to the Adjudicator to hold that the
                           body corporate did not breach the requirements of the Commercial
                           Module about which complaint was made, and that the arrangements
                           made for notices concerning the EGM and voting thereon were compliant
                           with the relevant procedural requirements of the Commercial Module.

                    [43]   The Adjudicator observed inter alia that it is likely that in fact North Point
                           has a better standard of tracking incoming correspondence than most
                           bodies corporate. There is no merit in the applicants’ point, and no legal
                           error has been shown on the part of the Adjudicator.

                    [44]   The same may be said of a barrage of further points now raised
                           concerning alleged technical inadequacy of the notice of meeting, and
                           other documents and procedures connected with the meeting. Overall
                           there is no reason to think that any reasonable recipient was deprived of
                           the opportunity of voting as he or she might have wished to vote.

                    Alleged invalidity of resolutions

                    [45]   It was alleged that the motions were confusing and misleading and
                           accordingly invalid, and that the information provided to the owners in the
                           motions and material relating to them was inadequate.

                    [46]   As to this, the Adjudicator observed:


                    4
                            See Adjudicator’s reasons for decision, at [57].
                    5
                            Ibid [52].
                    6
                            Ibid [79].




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


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[40]

[41]

There was evidence upon which the Adjudicator could be satisfied that the
contrary was proved. There was evidence that no such vote was received,
and the Adjudicator was entitled to act upon it. There is no error of law in
the Adjudicator’s approach to the matter. Indeed, she endeavoured to
obtain greater particularity from Ballada concerning the method of postage
and other relevant data, but the applicants provided no further evidence in
support of their claims.*

It is true that Mr Kildey had indicated that he intended to vote no and that
the manager and committee were probably aware of this. But there is a
substantial difference between notification of an intention and the casting
of an actual vote.° This claim failed on evidence that was reasonably
capable of acceptance, and no error of law is disclosed in the
determination of this issue.

Other points alleging invalidity of the meeting

[42]

[43]

[44]

A variety of further issues were raised, including invalidity based on the
fact that the body corporate does not maintain a mailbox. The
Commercial Module requires the body corporate to either maintain a
mailbox or make suitable alternative arrangements for the receipt of mail.
There was evidence that the body corporate has made suitable alternative
arrangements, namely receipt on its behalf by the body corporate
manager, SSKB.° It was therefore open to the Adjudicator to hold that the
body corporate did not breach the requirements of the Commercial
Module about which complaint was made, and that the arrangements
made for notices concerning the EGM and voting thereon were compliant
with the relevant procedural requirements of the Commercial Module.

The Adjudicator observed inter alia that it is likely that in fact North Point
has a better standard of tracking incoming correspondence than most
bodies corporate. There is no merit in the applicants’ point, and no legal
error has been shown on the part of the Adjudicator.

The same may be said of a barrage of further points now raised
concerning alleged technical inadequacy of the notice of meeting, and
other documents and procedures connected with the meeting. Overall
there is no reason to think that any reasonable recipient was deprived of
the opportunity of voting as he or she might have wished to vote.

Alleged invalidity of resolutions

[45]

[46]

It was alleged that the motions were confusing and misleading and
accordingly invalid, and that the information provided to the owners in the
motions and material relating to them was inadequate.

As to this, the Adjudicator observed:
See Adjudicator’s reasons for decision, at [57].

Ibid [52].
Ibid [79].

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

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