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

5KIPGFD[#WUV.++

         [20]   With respect to the outcomes sought against QPCU, I share the Commissioner’s concern that
                there is little evidence of any genuine attempt by the applicants to directly resolve their
                concerns with QPCU. The second applicant wrote to QPCU regarding the car park rental issue
                in 2008 but there is no indication of any action since then. No evidence has been provided that
                the applicants raised their other concerns with QPCU or the Body Corporate before lodging the
                application, or taken the logical step of submitting any relevant motions to a general meeting.
         [21]   On balance however I consider it would be in the interests of both parties to proceed to
                determine the questions raised by the applicants. They did at least write to QPCU alerting it to
                their issues in early 2012 (albeit in a somewhat confusing manner), and it is not apparent that
                delaying this matter for more communication is likely to address the applicants’ concerns.
                Matters in dispute
         [22]   I will summarise the application and submissions regarding the outcomes sought against the
                Body Corporate and against the QPCU separately.
         [23]   I must note that my summation of the issues, and indeed my determination of this application,
                has been hindered by my difficulty in understanding much of the application. Despite repeated
                attempts by the Commissioner to clarify the application and the basis of the outcomes sought, I
                consider the application remains confusing and disjointed, with numerous unexplained and
                unsubstantiated assertions. I anticipate this lack of clarity similarly hindered the respondents’
                capacity to adequately respond to the application.
                EGM issues
         [24]   Notice of the EGM on 12 July 2011 was send to owners dated 20 June 2011. The agenda
                included eight motions: Motion 1 to accept the previous minutes; Motions 2-5 to rescind and
                reissue the sinking fund budget and levy; Motion 6 was to engage a contractor to oversee the
                air-conditioning project; Motion 7 to approve a quote for stage one of the air-conditioning
                project; and Motion 8 to assign individual air conditioning systems to individual lot owners.
         [25]   The explanatory notes commented that the proposed air-conditioning works would be staged,
                with stage one as per the attached quotes and each stage to be reviewed by the Committee in
                the following financial year. It was also noted that the Body Corporate would fund the removal
                of the outdated system and the installation of the new system, but that after each stage of
                refurbishment the ongoing responsibility for the systems would transfer to individual lot owners.
         [26]   The EGM minutes record that each of the eight motions were passed with 41 votes in favour
                and nil against. Motion 7 was a motion with alternatives and all 41 votes recorded were cast in
                favour of Alternative 1. Motions 1, 3, 5, 6 and 7 were motions requiring an ordinary resolution.
                Motions 2, 4 and 8 were listed as motions requiring a resolution without dissent.
         [27]   After the EGM, the Committee noted the air-conditioning motions were carried, and so the
                agreement with the selected contractor would be reviewed by the Body Corporate’s solicitors
                prior to work commencing. The Committee also noted one owner had reservations about the
                project but had not attended the EGM and no voting paper had been received.
         [28]   The first applicant objected to the EGM outcome, alleging a failure to record its vote. It says :
                    a. Kildey asked the BCM for documentation regarding the EGM motions but was quoted
                       $250 per hour to provide it.
                    b. Kildey emailed the BCM on 6 July 2011 stating it would vote against the EGM motions
                       and “Please ensure that our NO VOTE is properly recorded.”
                    c. The BCM advised Kildey to forward his voting papers so his vote could be recorded.
                    d. Kildey personally posted voting papers to SSKB on 7 July 2011. A copy of the voting
                       paper dated 7 July and a page from a handwritten mail register which purports to record
                       voting papers being posted to SSKB on 7 July 2011 are provided.
                    e. The mail should have been received by the BCM no later than Monday 11 July 2011, in
                       time for the meeting on Tuesday 12 July.
                    f. The BCM said no voting paper was received so its vote was unable to be counted.


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


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Signed by AustLll

{20} With respect to the outcomes sought against QPCU, | share the Commissioner's concern that
there is little evidence of any genuine attempt by the applicants to directly resolve their
concerns with QPCU. The second applicant wrote to QPCU regarding the car park rental issue
in 2008 but there is no indication of any action since then. No evidence has been provided that
the applicants raised their other concerns with QPCU or the Body Corporate before lodging the
application, or taken the logical step of submitting any relevant motions to a general meeting.

(21) On balance however | consider it would be in the interests of both parties to proceed to
determine the questions raised by the applicants. They did at least write to QPCU alerting it to
their issues in early 2012 (albeit in a somewhat confusing manner), and it is not apparent that
delaying this matter for more communication is likely to address the applicants’ concerns.

Matters in dispute

(22) | will summarise the application and submissions regarding the outcomes sought against the
Body Corporate and against the QPCU separately.

[23] | must note that my summation of the issues, and indeed my determination of this application,
has been hindered by my difficulty in understanding much of the application. Despite repeated
attempts by the Commissioner to clarify the application and the basis of the outcomes sought, |
consider the application remains confusing and disjointed, with numerous unexplained and
unsubstantiated assertions. | anticipate this lack of clarity similarly hindered the respondents’
capacity to adequately respond to the application.

EGM issues

(24), Notice of the EGM on 12 July 2011 was send to owners dated 20 June 2011. The agenda
included eight motions: Motion 1 to accept the previous minutes; Motions 2-5 to rescind and
reissue the sinking fund budget and levy; Motion 6 was to engage a contractor to oversee the
air-conditioning project; Motion 7 to approve a quote for stage one of the air-conditioning
project; and Motion 8 to assign individual air conditioning systems to individual lot owners.

(25) The explanatory notes commented that the proposed air-conditioning works would be staged,
with stage one as per the attached quotes and each stage to be reviewed by the Committee in
the following financial year. It was also noted that the Body Corporate would fund the removal
of the outdated system and the installation of the new system, but that after each stage of
refurbishment the ongoing responsibility for the systems would transfer to individual lot owners.

[28] The EGM minutes record that each of the eight motions were passed with 41 votes in favour
and nil against. Motion 7 was a motion with alternatives and all 41 votes recorded were cast in
favour of Alternative 1. Motions 1, 3, 5, 6 and 7 were motions requiring an ordinary resolution.
Motions 2, 4 and 8 were listed as motions requiring a resolution without dissent.

(27) After the EGM, the Committee noted the air-conditioning motions were carried, and so-the
agreement with the selected contractor would be reviewed by the Body Corporate’s solicitors
prior to work commencing. The Committee also noted one owner had reservations about the
project but had not attended the EGM and no voting paper had been received.

128] The first applicant objected to the EGM outcome, alleging a failure to record its vote. It says:
a. Kildey asked the BCM for documentation regarding the EGM motions but was quoted
$250 per hour to provide it.

b. Kildey emailed the BCM on 6 July 2011 stating it would vote against the EGM motions
and “Please ensure that our NO VOTE is properly recorded.”

c. The BCM advised Kildey to forward his voting papers so his vote could be recorded.

d. Kildey personally posted voting papers to SSKB on 7 July 2011. A copy of the voting
paper dated 7 July and a page from a handwritten mail register which purports to record
voting papers being posted to SSKB on 7 July 2011 are provided.

e. The mail should have been received by the BCM no later than Monday 11 July 2011, in
time for the meeting on Tuesday 12 July.

f. The BCM said no voting paper was received so its vote was unable to be counted.

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