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

5KIPGFD[#WUV.++

         [29]   The second respondent did not vote at the EGM. The application suggests he would have
                voted against the motion had the EGM notice been clearer as to the terms of the motions.
         [30]   The applicants further claim that:
                    a. The Body Corporate does not maintain a mail box or notice board as required by
                       section 116 and 153 of the Commercial Module. There are no suitable alternative
                       arrangements for the receipt of mail.
                    b. The notice has various addresses and is confusing on where votes are to be returned.
                    c. There does not appear to be a system in place to record and acknowledge mail.
                    d. There is no provision for electronic voting.
                    e. The Ballada vote is claimed not to have been received despite strong evidence.
                    f. There is a question as to whether some EGM resolutions should have been expressed
                       as resolutions without dissent.
                    g. There is a question as to whether the EGM motions were misleading and confusing; a
                       fait accompli based on past decisions; inconsistent; inadequately explained in the
                       materials provided, such that they are invalid.
                    h. The voting paper was misleading and materially disadvantageous to owners.
                    i. Under section 117 of the Commercial Module, the Body Corporate cannot resolve to
                       transfer future property – that is property not yet in existence.
         [31]   The applicants therefore question whether the EGM notice and resolutions are valid.
         [32]   The submissions from the Body Corporate includes the following:
                    a. The grounds for asserting the EGM notice was invalid are unclear. The notice of the
                       EGM complies with section 37 of the Commercial Module.
                    b. Claims the notice was confusing about submitting voting papers are inconsistent with
                       Kildey’s conduct, including allegedly voting against the motions. In any event, the
                       notice clearly and repeatedly stated how to return the voting paper.
                    c. The applicants have failed to discharge their onus of proof regarding the questions to
                       be determined about the first applicant’s vote. The voting paper allegedly sent but
                       never received is of no effect and the EGM results should stand.
                    d. The grounds for asserting the EGM resolutions should be set aside are unclear. There
                       is no evidence that the motions were misleading. An ordinary person would not be
                       confused by the content of the motions or the explanatory material.
                    e. The applicants had ample opportunity over a long period to obtain information relevant
                       to the motions. They did not avail themselves of offers to discuss the project.
                    f. Motions 2 and 4 were listed as requiring a resolution without dissent but only required
                       an ordinary resolution as they revoked ordinary resolutions. Motion 8 also only required
                       an ordinary resolution as it disposed an asset under section 123 of the Commercial
                       Module. It would not be just and equitable to invalidate a resolution because it was
                       stated to require a resolution without dissent when an ordinary resolution was required.
                    g. Motions 2-5 were submitted by the Committee specifically to comply with section 98(3)
                       of the Commercial Module.
         [33]   The submission from QPCU supports the submission from the Body Corporate.
         [34]   The submissions from the BCM include the following:
                    a. While Kildey made his voting intention clear, a voting paper was required under section
                       53 of the Commercial Module (and Kildey was advised of this) but none was received.
                    b. All incoming mail to the BCM’s office is scanned and catalogued. No voting paper was
                       received by post, fax or email. They do not know what happened after it was entered
                       into Kildey’s mail register but it is not in the possession of the BCM or secretary.
                    c. It is not feasible for the BCM to check with every owner before a meeting regarding
                       their vote. Kildey did not contact the BCM to check his vote had been received.


                                                       Page 4 of 16
4GVTKGXGFHTQO#WUV.++QP/CTEJCV                                                        8GTKH[XGTUKQP


[OCR of page images]
Signed by AustLll

[23] The second respondent did not vote at the EGM. The application suggests he would have
voted against the motion had the EGM notice been clearer as to the terms of the motions.

(30) The applicants further claim that:

a. The Body Corporate does not maintain a mail box or notice board as required by
section 116 and 153 of the Commercial Module. There are no suitable alternative
arrangements for the receipt of mail.

The notice has various addresses and is confusing on where votes are to be returned.

There does not appear to be a system in place to record and acknowledge mail.

There is no provision for electronic voting.

The Ballada vote is claimed not to have been received despite strong evidence.

There is a question as to whether some EGM resolutions should have been expressed

as resolutions without dissent.

g. There is a question as to whether the EGM motions were misleading and confusing; a
fait accompli based on past decisions; inconsistent; inadequately explained in the
materials provided, such that they are invalid.

h. The voting paper was misleading and materially disadvantageous to owners.

i. Under section 117 of the Commercial Module, the Body Corporate cannot resolve to

transfer future property — that is property not yet in existence.

>~opaos

(31) The applicants therefore question whether the EGM notice and resolutions are valid.
(321. The submissions from the Body Corporate includes the following:

a. The grounds for asserting the EGM notice was invalid are unclear. The notice of the
EGM complies with section 37 of the Commercial Module.

b. Claims the notice was confusing about submitting voting papers are inconsistent with
Kildey’s conduct, including allegedly voting against the motions. In any event, the
notice clearly and repeatedly stated how to return the voting paper.

c. The applicants have failed to discharge their onus of proof regarding the questions to
be determined about the first applicant’s vote. The voting paper allegedly sent but
never received is of no effect and the EGM results should stand.

d. The grounds for asserting the EGM resolutions should be set aside are unclear. There
is no evidence that the motions were misleading. An ordinary person would not be
confused by the content of the motions or the explanatory material.

e. The applicants had ample opportunity over a long period to obtain information relevant
to the motions. They did not avail themselves of offers to discuss the project.

f. Motions 2 and 4 were listed as requiring a resolution without dissent but only required
an ordinary resolution as they revoked ordinary resolutions. Motion 8 also only required
an ordinary resolution as it disposed an asset under section 123 of the Commercial
Module. It would not be just and equitable to invalidate a resolution because it was
stated to require a resolution without dissent when an ordinary resolution was required.

g. Motions 2-5 were submitted by the Committee specifically to comply with section 98(3)
of the Commercial Module.

{33} The submission from QPCU supports the submission from the Body Corporate.
(341 The submissions from the BCM include the following:

a. While Kildey made his voting intention clear, a voting paper was required under section
53 of the Commercial Module (and Kildey was advised of this) but none was received.

b. All incoming mail to the BCMs office is scanned and catalogued. No voting paper was
received by post, fax or email. They do not know what happened after it was entered
into Kildey’s mail register but it is not in the possession of the BCM or secretary.

c. It is not feasible for the BCM to check with every owner before a meeting regarding
their vote. Kildey did not contact the BCM to check his vote had been received.

Page 4 of 16
Retrieved from AustLII on 30 March 2020 at 16:27:59 Verify version