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

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         [58]   The applicant has not stated where the voting paper was posted from, or the address it was
                posted to, or the time of day it was posted. The photocopy of handwritten entry in the mail
                register (albeit written in different handwriting to all other mail entries in the register) is
                indicative. However it does not show the time, location or address. It does not demonstrate
                that the voting paper was correctly addressed or paid for.
         [59]   The application comments on the numerous SSKB addresses but does indicate which the vote
                was posted to. If it was posted during business hours on 7 July from a location within in
                Brisbane to SSKB’s Brisbane address, it should have been delivered in one business day in
                the ordinary course of post. However if it was posted after mail collection for the day wherever
                it was posted, an additional day would need to be added.
         [60]   Given SSKB claim the voting paper was never received in its offices, even after the EGM, the
                question may rather be one of whether the voting paper was properly posted to SSKB at all
                rather than one of timeframe.
         [61]   Ultimately I am not satisfied that the applicants have discharged its onus of demonstrating that
                the first applicant posted the voting paper, that the mail was correctly addressed (to any SSKB
                address), that the mail was correctly stamped, and when and where the mail was posted.
                Accordingly I am not satisfied that the applicants have demonstrated that a vote was given to
                the secretary that should be counted.
         [62]   Even if I am incorrect in determining that Ballada’s voting paper was not required to be
                counted, there is an issue whether the vote would have affected the EGM outcomes. This
                gives rise to a question of the type of resolution required to pass each of the EGM motions.
              Resolution types
         [63] EGM Motions 1, 3, 5, 6 and 7 required an ordinary resolution, and the applicants have not
              disputed this. Even if the Ballada votes were cast against these motions, these motions would
              still have passed overwhelmingly. Accordingly, the inclusion of the Ballada votes could not
              change the result. This includes the substantive motion approving the disputed works.
         [64]   Motions 2 and 4 were listed as requiring a resolution without dissent and so could have been
                affected by Ballada’s vote. However, in the interim order I queried why they were resolutions
                without dissent. The Body Corporate agrees Motions 2 and 4 should have been listed as
                ordinary resolutions. These motions sought to rescind previous budget and levy motions which
                had passed by ordinary resolution. A motion can be revoked by a motion of the same type 13.
                As ordinary resolutions, the 41 votes cast in favour of Motions 2 and 4 would have been
                sufficient to approve these motions even if the first applicant’s votes were cast against them.
         [65]   Motion 8, which provided for the Body Corporate to assign ownership of the new individual
                systems to each lot, was also listed as requiring a resolution without dissent. The Body
                Corporate has similarly argued that only an ordinary resolution was required for this motion.
                While the Body Corporate has agreed to purchase the individual air-conditioning units in the
                first instance, it submits that because it does not intend to incorporate them into the common
                property (rather they will be installed within lots), they remain assets for the purpose of section
                11 of the Act. It further argues that pursuant to section 123 of the Commercial Module, the
                Body Corporate requires only an ordinary resolution to deal with a body corporate asset. By
                contrast, the disposal of common property requires a resolution without dissent. The
                applicants have not presented any argument against this position. I accept the Body
                Corporate’s reasoning. Accordingly, the first applicant’s votes against Motion 8 would not have
                been sufficient to defeat the motion.
         [66]   One submission argues these motions should have been resolutions without dissent because
                of their significance. However the subjective or objective significance of an issue is not
                relevant to determine the type of resolution required for a motion. This is not a discretionary
                matter but rather determined solely by reference to the legislative provisions.



         13
              Section 62 of the Commercial Module


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{58} The applicant has not stated where the voting paper was posted from, or the address it was
posted to, or the time of day it was posted. The photocopy of handwritten entry in the mail
register (albeit written in different handwriting to all other mail entries in the register) is
indicative. However it does not show the time, location or address. It does not demonstrate
that the voting paper was correctly addressed or paid for.

(59) The application comments on the numerous SSKB addresses but does indicate which the vote
was posted to. If it was posted during business hours on 7 July from a location within in
Brisbane to SSKB’s Brisbane address, it should have been delivered in one business day in
the ordinary course of post. However if it was posted after mail collection for the day wherever
it was posted, an additional day would need to be added.

(60) Given SSKB claim the voting paper was never received in its offices, even after the EGM, the
question may rather be one of whether the voting paper was properly posted to SSKB at all
rather than one of timeframe.

(61) Ultimately | am not satisfied that the applicants have discharged its onus of demonstrating that
the first applicant posted the voting paper, that the mail was correctly addressed (to any SSKB
address), that the mail was correctly stamped, and when and where the mail was posted.
Accordingly | am not satisfied that the applicants have demonstrated that a vote was given to
the secretary that should be counted.

(623 Even if | am. incorrect in determining that Ballada’s voting paper was not required to be
counted, there is an issue whether the vote would have affected the EGM outcomes. This
gives rise to a question of the type of resolution required to pass each of the EGM motions.

Resolution types

(63] EGM Motions 1, 3, 5, 6 and 7 required an ordinary resolution, and the applicants have not
disputed this. Even if the Ballada votes were cast against these motions, these motions would
still have passed overwhelmingly. Accordingly, the inclusion of the Ballada votes could not
change the result. This includes the substantive motion approving the disputed works.

(641 Motions 2 and 4 were listed as requiring a resolution without dissent and so could have been
affected by Ballada’s vote. However, in the interim order | queried why they were resolutions
without dissent. The Body Corporate agrees Motions 2 and 4 should have been listed as
ordinary resolutions. These motions sought to rescind previous budget and levy motions which
had passed by ordinary resolution. A motion can be revoked by a motion of the same type”.
As ordinary resolutions, the 41 votes cast in favour of Motions 2 and 4 would have been
sufficient to approve these motions even if the first applicant’s votes were cast against them.

{65} Motion 8, which provided for the Body Corporate to assign ownership of the new individual
systems to each lot, was also listed as requiring a resolution without dissent. The Body
Corporate has similarly argued that only an ordinary resolution was required for this motion.
While the Body Corporate has agreed to purchase the individual air-conditioning units in the
first instance, it submits that because it does not intend to incorporate them into the common
property (rather they will be installed within lots), they remain assets for the purpose of section
11 of the Act. It further argues that pursuant to section 123 of the Commercial Module, the
Body Corporate requires only an ordinary resolution to deal with a body corporate asset. By
contrast, the disposal of common property requires a resolution without dissent. The
applicants have not presented any argument against this position. | accept the Body
Corporate’s reasoning. Accordingly, the first applicant's votes against Motion 8 would not have
been sufficient to defeat the motion.

{6s} One submission argues these motions should have been resolutions without dissent because
of their significance. However the subjective or objective significance of an issue is not
relevant to determine the type of resolution required for a motion. This is not a discretionary
matter but rather determined solely by reference to the legislative provisions.

"3 Section 62 of the Commercial Module

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