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

5KIPGFD[#WUV.++

         [67]   The applicants query the validity of the EGM notice because of the question over the resolution
                types. The Body Corporate argues that while the voting paper was not strictly in compliance
                with the legislative requirements for motion types 14, it would not be just and equitable to
                invalidate the affected motions on that basis.
         [68]   The District Court15 considered the situation where a motion was listed as an ordinary
                resolution but in fact required a special resolution, and sufficient votes were cast for the motion
                to achieve a special resolution. In confirming the validity of the motion, the Court said:
                     “I accept that the voting paper was defective… In my view this was an irregularity of the
                     most technical nature in the context of the particular case. … There was, in my view, and
                     could not have been any disadvantage to any lot owner by the failure of the voting paper
                     to specify that the primary motion needed to be passed by special resolution.”
         [69]   I similarly conclude there can be no reason why any owner at North Point could have been
                disadvantaged by the error in the agenda voting paper with regarding the motion type. In the
                current circumstances there is even less potential for disadvantage as the required motion was
                of a lower standard that the listed resolution type.
         [70]   Accordingly I accept that all motions on the EGM agenda required ordinary resolutions .
                Further the EGM notice is not invalid because it incorrectly listed the motion type for some
                motions. It follows then that the first applicant’s votes, even if improperly excluded, would not
                have affected the outcome of the any of the EGM resolutions.
              Adequacy of the meeting material
         [71] The applicants indicate an objection to the EGM motions because of the lack of clarity of the
              motion and adequacy of the information provided to owners in the motions and with the notice.
              They allege it is confusing, inadequately explained, and misleading, such that it is invalid.
         [72]   In this regard the District Court has said16 that:
                     “There is certainly an obligation to give proper notice of what is actually to be considered
                     by the meeting, and to point out the relevant consequences of the approval of the
                     resolution. If there is a failure to give proper notice of the meeting, which may occur if the
                     notice of the proposed resolution is misleading as to what is really proposed, or its effect
                     and implications, then that may well impact on the validity of the resolution, because in
                     such circumstances there was either no valid notice of the meeting or no valid notice of
                     the proposed resolution.”
         [73]   However the Court in that matter then cited another case17 that said:
                     “The need to make full and fair disclosure must be tempered by the need to present a
                     document that is intelligible to reasonable members of the class to whom it is directed,
                     and is likely to assist rather than to confuse. … In the circumstances the court s hould not
                     be quick to conclude that a contravention … has occurred because other information
                     could have been provided that was not. The need for the applicants to establish the
                     materiality of errors and omissions is an important step in the proof of their claims.”
         [74]   The Court noted the onus was on the party making the objection to identify what was not
                disclosed, and how that amounted to a failure to make full and fair disclosure 18. However, the
                applicants have provided little by way of specifics as to how they claim the information provided
                to owners was inadequate. Rather they have made broad but unsubstantiated claims.


         14
             Section 38(4)(b) of the Commercial Module
         15
              White DCJ in Stainlay and Tecelec (Qld) Pty Ltd v Body Corporate for No. 9 Port Douglas Road
            Community Title Scheme 24368, Unreported, Appeal No. 177 of 2006 (1 December 2006) para 11
         16
             McGill DCJ in Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd
            [2008] QDC 300, para 50
         17
             Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 cited in Body Corporate for Palm Springs Residences
            (cited above), paras 61-62
         18
             McGill DCJ in Body Corporate for Palm Springs Residences (cited above), para 72


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(67) The applicants query the validity of the EGM notice because of the question over the resolution
types. The Body Corporate argues that while the voting paper was not strictly in compliance
with the legislative requirements for motion types", it would not be just and equitable to
invalidate the affected motions on that basis.

i683) The District Court'® considered the situation where a motion was listed as an ordinary
resolution but in fact required a special resolution, and sufficient votes were cast for the motion
to achieve a special resolution. In confirming the validity of the motion, the Court said:

‘| accept that the voting paper was defective... In my view this was an irregularity of the
most technical nature in the context of the particular case. ... There was, in my view, and
could not have been any disadvantage to any lot owner by the failure of the voting paper
to specify that the primary motion needed to be passed by special resolution.”

tes] | similarly conclude there can be no reason why any owner at North Point could have been
disadvantaged by the error in the agenda voting paper with regarding the motion type. In the
current circumstances there is even less potential for disadvantage as the required motion was
of a lower standard that the listed resolution type.

(79) Accordingly | accept that all motions on the EGM agenda required ordinary resolutions.
Further the EGM notice is not invalid because it incorrectly listed the motion type for some
motions. It follows then that the first applicant's votes, even if improperly excluded, would not
have affected the outcome of the any of the EGM resolutions.

Adequacy of the meeting material

(711. The applicants indicate an objection to the EGM motions because of the lack of clarity of the
motion and adequacy of the information provided to owners in the motions and with the notice.
They allege it is confusing, inadequately explained, and misleading, such that it is invalid.

172) In this regard the District Court has said’® that:

“There is certainly an obligation to give proper notice of what is actually to be considered
by the meeting, and to point out the relevant consequences of the approval of the
resolution. If there is a failure to give proper notice of the meeting, which may occur if the
notice of the proposed resolution is misleading as to what is really proposed, or its effect
and implications, then that may well impact on the validity of the resolution, because in
such circumstances there was either no valid notice of the meeting or no valid notice of
the proposed resolution.”

173) However the Court in that matter then cited another case” that said:

“The need to make full and fair disclosure must be tempered by the need to presenta
document that is intelligible to reasonable members of the class to whom it is directed,
and is likely to assist rather than to confuse. ... In the circumstances the court should-not
be quick to conclude that a contravention ... has occurred because other information
could have been provided that was not. The need for the applicants to establish the
materiality of errors and omissions is an important step in the proof of their claims.”

(741 The Court noted the onus was on the party making the objection to identify what was not
disclosed, and how that amounted to a failure to make full and fair disclosure '®. However, the
applicants have provided little by way of specifics as to how they claim the information provided
to owners was inadequate. Rather they have made broad but unsubstantiated claims.

"4 Section 38(4)(b) of the Commercial Module

° White DCJ in Stainlay and Tecelec (QId) Pty Ltd v Body Corporate for No. 9 Port Douglas Road
Community Title Scheme 24368, Unreported, Appeal No. 177 of 2006 (1 December 2006) para 11

"6 McGill DCJ in Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd
[2008] QDC 300, para 50

’ Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 cited in Body Corporate for Palm Springs Residences
(cited above), paras 61-62

*8 McGill DCJ in Body Corporate for Palm Springs Residences (cited above), para 72

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