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

5KIPGFD[#WUV.++

         [117]   The applicants have entirely failed to provide any reasonably coherent level of information on
                 the background or the nature of the outcome sought against QPCU. Having received Body
                 Corporate approval, QPCU was entirely within its rights to act on the basis of that approval and
                 relocate the ATM. I see no reason why QPCU should be required to pay rent or other
                 compensation to the Body Corporate in those circumstances.
               Other issues
         [118] Various comments in the applicant and submissions allude to QPCU’s status, voting power and
               obligations as a ‘majority’ owner. In this regard I note that with 35 of 76 lots in the scheme,
               QPCU does not own a majority of lots. Therefore while QPCU certainly has considerable
               voting power, if most other lot owners chose to vote they could defeat the QPCU position.
         [119]   Furthermore, regardless of how many lots it owns, QPCU is entitled to vote in its own interest,
                 just as any other lot owner can. While it may well be desirable for QPCU to have regard to
                 broader interests in the scheme, it is not legally obliged to act or vote in the best interests of
                 other lot owners, just as those lot owners are not obliged to vote in QPCU’s interests.
         [120]   However the Body Corporate must act reasonably in making a decision 30. Therefore if a
                 general meeting vote will result in an objectively unreasonable outcome having regard to the
                 interests of all owners and occupiers, that can be challenged and if appropriate overturned.
                 Similarly, if the Committee (whether influenced by QPCU or otherwise) reaches a decision that
                 is objectively unreasonable, it could be challenged. However the onus would be on the person
                 objecting to a decision to demonstrate that the decision was unreasonable.
               Costs
         [121] Under section 270(1)(c) of the Act an adjudicator may dismiss an application if satisfied it is
               frivolous, vexatious, misconceived or without substance. If an application is dismissed on that
               basis, section 270(3) empowers an adjudicator to award costs of up to $2,000 by the
               respondent in defending the application.        In awarding costs against an applicant, the
               adjudicator may have regard to previous applications made by an applicant.
         [122]   The Body Corporate has asked that this application be dismissed with the maximum costs.
         [123]   I acknowledge the respondents’ concern that application was poorly presented and argued.
                 The respondents have been put to the expense of reviewing and responding to the application
                 and multiple amendments, despite little real basis having been presented for most of the issues
                 raised. I have found little substantiation or merit in the application. For that reason I have very
                 seriously considered an award of costs against the applicants.
         [124]   However, while this application is certainly of a character which could fall within the scope of an
                 application that is misconceived and without substance, I have decided not to dismiss it on that
                 basis. I have had regard to the fact that this is the first application by the applicants. Moreover,
                 they appear to have proceeded on a genuine, albeit ultimately misguided, belief in their claims.
                 Therefore on this occasion I have decided not to award costs.
         [125]   However I alert the applicants to the fact that my findings on this application can be considered
                 by an adjudicator determining whether any future application should be dismissed under
                 270(1)(c). The applicants should carefully consider the legal basis and substantiation of any
                 future application. Applications will be dismissed, and costs awarded, if they submit baseless
                 or unreasonably burdensome applications in future.
                 Conclusion
         [126]   While the applicants clearly hold very strong views on the issues they raise, unfortunately they
                 have provided little cogent argument or genuine evidence in support of those views. I am
                 simply not satisfied that they have demonstrated that the Body Corporate or QPCU have
                 breached the Act or the Commercial Module in respect of any of the issues raised, or that the
                 Body Corporate has acted unreasonably. In fact I believe the applicants have misapprehended
                 the legislation in many respects. For the reasons outlined, I have dismissed the application.

         30
              Section 94(2) and 100(5) of the Act


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


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(117) The applicants have entirely failed to provide any reasonably coherent level of information on
the background or the nature of the outcome sought against QPCU. Having received Body
Corporate approval, QPCU was entirely within its rights to act on the basis of that approval and
relocate the ATM. | see no reason why QPCU should be required to pay rent or other
compensation to the Body Corporate in those circumstances.

Other issues

(118) Various comments in the applicant and submissions allude to QPCU’s status, voting power and
obligations as a ‘majority’ owner. In this regard | note that with 35 of 76 lots in the scheme,
QPCU does not own a majority of lots. Therefore while QPCU certainly has considerable
voting power, if most other lot owners chose to vote they could defeat the QPCU position.

(119) Furthermore, regardless of how many lots it owns, QPCU is entitled to vote in its own interest,
just as any other lot owner can. While it may well be desirable for QPCU to have regard to
broader interests in the scheme, it is not legally obliged to act or vote in the best interests of
other lot owners, just as those lot owners are not obliged to vote in QPCU’s interests.

1120} However the Body Corporate must act reasonably in making a decision®®. Therefore if a
general meeting vote will result in an objectively unreasonable outcome having regard to the
interests of all owners and occupiers, that can be challenged and if appropriate overturned.
Similarly, if the Committee (whether influenced by QPCU or otherwise) reaches a decision that
is objectively unreasonable, it could be challenged. However the onus would be on the person
objecting to a decision to demonstrate that the decision was unreasonable.

Costs

t121) Under section 270(1)(c) of the Act an adjudicator may dismiss an application if satisfied it is
frivolous, vexatious, misconceived or without substance. If an application is dismissed on that
basis, section 270(3) empowers an adjudicator to award costs of up to $2,000 by the
respondent in defending the application. In awarding costs against an applicant, the
adjudicator may have regard to previous applications made by an applicant.

{122} The Body Corporate has asked that this application be dismissed with the maximum costs.

(123 | acknowledge the respondents’ concern that application was poorly presented and argued.
The respondents have been put to the expense of reviewing and responding to the application
and multiple amendments, despite little real basis having been presented for most of the issues
raised. | have found little substantiation or merit in the application. For that reason | have very
seriously considered an award of costs against the applicants.

(124) However, while this application is certainly of a character which could fall within the scope of an
application that is misconceived and without substance, | have decided not to dismiss it on that
basis. | have had regard to the fact that this is the first application by the applicants. Moreover,
they appear to have proceeded on a genuine, albeit ultimately misguided, belief in their claims.
Therefore on this occasion | have decided not to award costs.

(125) However | alert the applicants to the fact that my findings on this application can be considered
by an adjudicator determining whether any future application should be dismissed under
270(1)(c). The applicants should carefully consider the legal basis and substantiation of any
future application. Applications will be dismissed, and costs awarded, if they submit baseless
or unreasonably burdensome applications in future.

Conclusion

(126) While the applicants clearly hold very strong views on the issues they raise, unfortunately they
have provided little cogent argument or genuine evidence in support of those views. | am
simply not satisfied that they have demonstrated that the Body Corporate or QPCU have
breached the Act or the Commercial Module in respect of any of the issues raised, or that the
Body Corporate has acted unreasonably. In fact | believe the applicants have misapprehended
the legislation in many respects. For the reasons outlined, | have dismissed the application.

°° Section 94(2) and 100(5) of the Act

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