20181085-ASC11 - North Point Brisbane [2012] QBCCMCmr 355

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                    e. Even if there was a resolution, QPCU would need to provide ‘commercial terms’. Under
                       section 152 of the Act the Body Corporate must act in regard to common property in the
                       interests of all owners and not just the majority owner.
                    f. The new air-conditioning solely supplies QPCU’s Lot 3, is within the boundaries of Lots
                       3 and 4, and is not in the boundary structure. Therefore it is the lot owner’s
                       responsibility. QPCU has unlawfully utilised Body Corporate funds for it.
                    g. There has been no engineering report on the new air-conditioning and no life-cycle
                       costs on the existing system.
                    h. There was no audit of the air-conditioning expenditure, no detail of what assets have
                       been written off on replacement, and no comparison between the Body Corporate and
                       QPCU records regarding the air-conditioning.
                Analysis
         [50]   I will consider first the EGM issues, including the purported vote from the first applicant; other
                issues relating to the EGM notice and other issues relating to the EGM motions. I will then turn
                to the three issues raised in respect of QPCU.
                EGM issues
              Vote from Ballada Pty Ltd
         [51] The first issue is whether the first applicant’s vote should have been counted for the EGM.

         [52]   It is clear that Kildey expressed his intent to vote against the EGM motions. However that was
                not a valid vote pursuant to section 53 of the Commercial Module. As noted in the reasons for
                the interim order, it would have been contrary to the legislation for the Body Corporate to
                purport to record a vote based on such an email. I cannot deem that to be a valid vote. The
                applicant needed to vote personally at the meeting, or by proxy or by a valid voting paper.
         [53]   Electronic voting is only permitted if the Body Corporate has passed an ordinary resolution
                providing for electronic voting. It is not apparent that this has occurred at North Point. Any
                owner can submit a motion to a general meeting seeking agreement to electronic voting. But
                unless and until this occurs, the question of electronic voting is immaterial to this dispute.
         [54]   Kildey says he submitted a voting paper for both lots on behalf of the Ballada Pty Ltd. Section
                53(2)(b) of the Commercial Module places the obligation on the voter (the applicant in this
                case) to ‘give’ its vote to the secretary before the start of the meeting.
         [55]   Section 39A of the Acts Interpretation Act 1954 provides that if an Act requires or permits a
                document to be served on a person by post (and the section explicitly includes the term ‘give’
                in this respect), service may be effected by properly addressing, prepaying and posting the
                document as a letter. Service is taken to have been effected when which the document would
                be delivered in the ordinary course of post, unless the contrary is proven. Service is always
                taken to have been satisfied if the document was posted by certified mail provided by Australia
                Post. As such, the vote can be taken to have been given to the secretary if it is properly sent
                and should have been received in the ordinary course of post before the start of the meeting.
         [56]   In my reasons for the interim order I indicated the questions to be determined here were:
                    a. Did the applicant properly address, pay for and post a letter with the voting paper?
                    b. Would an ordinary letter mailed from that location to the secretary’s address have been
                       received by the Body Corporate in ‘ordinary course of post’ prior to the EGM?
                    c. Was the voting paper sent by certified mail?
                    d. Is there evidence the voting paper was not received within the ‘ordinary course of post’?
         [57]   I further stated that the applicant would bear the onus of providing evidence in respect of (a),
                (b) and (c) above. If those could be demonstrated, the Body Corporate would bear the onus of
                providing evidence in regard to (d) above. Despite being invited to do so, the applicants have
                provided no further evidence in support of their claims.




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


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Signed by AustLll

e. Even if there was a resolution, QPCU would need to provide ‘commercial terms’. Under
section 152 of the Act the Body Corporate must act in regard to common property in the
interests of all owners and not just the majority owner.

f. The new air-conditioning solely supplies QPCU’s Lot 3, is within the boundaries of Lots
3 and 4, and is not in the boundary structure. Therefore it is the lot owner's
responsibility. QPCU has unlawfully utilised Body Corporate funds for it.

g. There has been no engineering report on the new air-conditioning and no life-cycle
costs on the existing system.

h. There was no audit of the air-conditioning expenditure, no detail of what assets have
been written off on replacement, and no comparison between the Body Corporate and
QPCU records regarding the air-conditioning.

Analysis
50] | will consider first the EGM issues, including the purported vote from the first applicant; other

issues relating to the EGM notice and other issues relating to the EGM motions. | will then turn
to the three issues raised in respect of QPCU.

EGM issues
Vote from Ballada Pty Ltd

(51) The first issue. is whether the first applicant’s vote should have been counted for the EGM.

(52) It is clear that Kildey expressed his intent to vote against the EGM motions. However that was
not.a valid vote pursuant to section 53 of the Commercial Module. As noted in the reasons for
the interim order, it would have been contrary to the legislation for the Body Corporate to
purport to record a vote based on such an email. | cannot deem that to be a valid vote. The
applicant needed to vote personally at the meeting, or by proxy or by a valid voting paper.

(531 Electronic voting is only permitted if the Body Corporate has passed an ordinary resolution
providing for electronic voting. It is not apparent that this has occurred at North Point. Any
owner can submit a motion to a general meeting seeking agreement to electronic voting. But
unless and until this occurs, the question of electronic voting is immaterial to this dispute.

(54 Kildey says he submitted a voting paper for both lots on behalf of the Ballada Pty Ltd. Section
53(2)(b) of the Commercial Module places the obligation on the voter (the applicant in this
case) to ‘give’ its vote to the secretary before the start of the meeting.

(55) Section 39A of the Acts Interpretation Act 1954 provides that if an Act requires or permits a
document to be served on a person by post (and the section explicitly includes the term ‘give’
in this respect), service may be effected by properly addressing, prepaying and posting the
document as a letter. Service is taken to have been effected when which the document would
be delivered in the ordinary course of post, unless the contrary is proven. Service is always
taken to have been satisfied if the document was posted by certified mail provided by Australia
Post. As such, the vote can be taken to have been given to the secretary if it is properly sent
and should have been received in the ordinary course of post before the start of the meeting.

{58} IN my reasons for the interim order | indicated the questions to be determined here were:

a. Did the applicant properly address, pay for and post a letter with the voting paper?

b. Would an ordinary letter mailed from that location to the secretary's address have been
received by the Body Corporate in ‘ordinary course of post’ prior to the EGM?

c. Was the voting paper sent by certified mail?
d. Is there evidence the voting paper was not received within the ‘ordinary course of post’?
(57) | further stated that the applicant would bear the onus of providing evidence in respect of (a),
(b) and (c) above. If those could be demonstrated, the Body Corporate would bear the onus of

providing evidence in regard to (d) above. Despite being invited to do so, the applicants have
provided no further evidence in support of their claims.

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Retrieved from AustLII on 30 March 2020 at 16:27:59 Verify version