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

5KIPGFD[#WUV.++

         [75]   The applicants have said the first applicant requested further information and was quoted $250
                an hour to receive it. In this regard I note that a body corporate may only charge an owner the
                prescribed fees outlined in section 161 of the Commercial Module to access records. If the
                BCM has a contractual arrangement with the Body Corporate that entitles it to charge for
                providing or facilitating access to records, those charges must be paid by the Body Corporate
                (with whom the BCM has the contract) and not the lot owner. However, as the first applic ant
                already indicated he would vote against the motions, the applicants have not demonstrated that
                the difficulty in accessing that information would have affected the outcome of the motions.
         [76]   In a matter which looked at the question of allegedly misleading material, Dorney QC, as His
                Honour then was, said19, tribunal member, said-
                     “... it is not sufficient merely to find that the “misleading” information, in the absence of
                     any other contradictory material … was persuasive in favour of an affirmative vote. What
                     needs to be considered is whether there was some breach of the relevant provisions
                     such that, for instance, the Adjudicator was empowered to make an order under section
                     276, including one mentioned in Schedule 5, of the BCCM Act. Justice and equity do not
                     work in a vacuum. Items 7 and 8 of Schedule 5 permit an adjudicator to order either that
                     a general meeting of the body corporate is void for irregularity or that a resolution
                     purportedly passed at a general meeting of the body corporate was, at all times, void.
                     And those Items, in turn, need to depend upon some breach of the BCCM Act. So, for
                     instance, was section 94(2) breached by the body corporate not acting reasonably in
                     making the decision in passing Motion 2 in the circumstances of such “misleading”
                     information being provided in the Notice of Meeting?
         [77]   There is no evidence of a deliberate attempt by the Committee to mislead. Aside from a brief
                reference to the second respondent’s confusion, the applicants have not shown that any owner
                was actually misled by the motions or that any vote would have changed if owners had been
                better informed. Even if the second respondent had voted against the motions with more
                information, that vote would not have changed the outcome of any of the resolutions. There is
                no evidence or argument of a specific legislative breach. The fact that the applicants may have
                misunderstood the motions, does not mean the motions were procedurally defective.
         [78]   On their face, the motions and the supporting information appear relatively straightforward. In
                the absence of any more detail, I am unclear how or why the applicants consider them
                confusing or misleading. I am not satisfied there is sufficient basis to invalidate the motions.
              Other EGM notice issues
         [79] The applicants note a range of other issues relating to the validity of the EGM notice.

         [80]   First, they say the Body Corporate does not maintain a mail box. Section 116 of the
                Commercial Module requires the Body Corporate to either maintain a mailbox or make suitable
                alternative arrangements for the receipt of mail. The applicants suggest the Body Corporate
                does not have suitable alternative arrangements, but does not explain why.
         [81]   It is apparent that SSKB receives mail for the Body Corporate. Aside from the non-receipt of
                the voting paper allegedly sent by the first applicant, there is no indication that there has been
                any general problem in the receipt of the Body Corporate’s mail. The SSKB letterhead shows
                numerous addresses for the different offices but I do not see how this inherently presents a
                problem. I have been given no evidence that SSKB is not receiving the Body Corporate’s mail.
         [82]   The applicants assert there is no system in place to record and acknowledge mail. SSKB have
                said it scans and catalogues all incoming mail. The applicants have not refuted this. While a
                body corporate has an obligation to retain records, including incoming correspondence 20, it
                does not have a legislative obligation to log or acknowledge incoming mail. While it may well
                be desirable, it would be an onerous and unrealistic requirement to impose on all bodies
                corporate, including those that do not engage a BCM. It is likely that in fact North Point has a
                better standard of tracking incoming correspondence than most bodies corporate.

         19
              Batwing Resorts Pty Ltd v Body Corporate for Liberty CTS 27241 [2008] CCT KA004-08, para 66
         20
              Section 159 of the Commercial Module


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


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[75]

176]

[77]

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[79]

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(81]

[82]

The applicants have said the first applicant requested further information and was quoted $250
an hour to receive it. In this regard | note that a body corporate may only charge an owner the
prescribed fees outlined in section 161 of the Commercial Module to access records. If the
BCM has a contractual arrangement with the Body Corporate that entitles it to charge for
providing or facilitating access to records, those charges must be paid by the Body Corporate
(with whom the BCM has the contract) and not the lot owner. However, as the first applic ant
already indicated he would vote against the motions, the applicants have not demonstrated that
the difficulty in accessing that information would have affected the outcome of the motions.

In a matter which looked at the question of allegedly misleading material, Dorney QC, as His
Honour then was, said’®, tribunal member, said-

“.. it is not sufficient merely to find that the “misleading” information, in the absence of
any other contradictory material ... was persuasive in favour of an affirmative vote. What
needs to be considered is whether there was some breach of the relevant provisions
such that, for instance, the Adjudicator was empowered to make an order under section
276, including one mentioned in Schedule 5, of the BCCM Act. Justice and equity do not
work in a vacuum. Items 7 and 8 of Schedule 5 permit an adjudicator to order either that
a general meeting of the body corporate is void for irregularity or that a resolution
purportedly passed at a general meeting of the body corporate was, at all times, void.
And those Items, in turn, need to depend upon some breach of the BCCM Act. So, for
instance, was section 94(2) breached by the body corporate not acting reasonably in
making the decision in passing Motion 2 in the circumstances of such “misleading”
information being provided in the Notice of Meeting?

There is no evidence of a deliberate attempt by the Committee to mislead. Aside from a brief
reference to the second respondent’s confusion, the applicants have not shown that any owner
was actually misled by the motions or that any vote would have changed if owners had been
better informed. Even if the second respondent had voted against the motions with more
information, that vote would not have changed the outcome of any of the resolutions. There is
no evidence or argument of a specific legislative breach. The fact that the applicants may have
misunderstood the motions, does not mean the motions were procedurally defective.

On their face, the motions and the supporting information appear relatively straightforward. In
the absence of any more detail, | am unclear how or why the applicants consider them
confusing or misleading. | am not satisfied there is sufficient basis to invalidate the motions.

Other EGM notice issues
The applicants note a range of other issues relating to the validity of the EGM notice.

First, they say the Body Corporate does not maintain a mail box. Section 116 of the
Commercial Module requires the Body Corporate to either maintain a mailbox or make suitable
alternative arrangements for the receipt of mail. The applicants suggest the Body Corporate
does not have suitable alternative arrangements, but does not explain why.

It is apparent that SSKB receives mail for the Body Corporate. Aside from the non-receipt of
the voting paper allegedly sent by the first applicant, there is no indication that there has been
any general problem in the receipt of the Body Corporate’s mail. The SSKB letterhead shows
numerous addresses for the different offices but | do not see how this inherently presents a
problem. | have been given no evidence that SSKB is not receiving the Body Corporate’s mail.

The applicants assert there is no system in place to record and acknowledge mail. SSKB have
said it scans and catalogues all incoming mail. The applicants have not refuted this. While a
body corporate has an obligation to retain records, including incoming correspondence”, it
does not have a legislative obligation to log or acknowledge incoming mail. While it may well
be desirable, it would be an onerous and unrealistic requirement to impose on all bodies
corporate, including those that do not engage a BCM. It is likely that in fact North Point has a
better standard of tracking incoming correspondence than most bodies corporate.

"© Batwing Resorts Pty Ltd v Body Corporate for Liberty CTS 27241 [2008] CCT KA004-08, para 66
20 . :
Section 159 of the Commercial Module

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

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