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  • Unreported Judgment

Jodlowska v The Body Corporate for River View Terraces

 

[2020] QCATA 70

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Jodlowska v The Body Corporate for River View Terraces [2020] QCATA 70

PARTIES:

Katarzyna Jodlowska

(applicant/ appellant)

v

THE BODY CORPORATE FOR RIVER VIEW TERRACES CTS 23176

(respondent)

APPLICATION NO/S:

APL186-19

ORIGINATING APPLICATION NO/S:

BCCM1027-18

MATTER TYPE:

Appeals

DELIVERED ON:

15 May 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Roney QC

ORDERS:

  1. The appeal is dismissed.
  2. I direct the Respondent to file an outline of submissions of no greater length than three pages on the issue of costs, including identifying the quantum of any costs sought to be recovered, and that it do so within seven days of the date of publication of this order.
  3. The Applicant shall file any responsive submissions no greater than three pages within seven days of receipt of the Respondent’s submissions on costs.
  4. I will then determine the question of costs on the papers.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where s 289(2) of the Body Corporate and Community Management Act 1997 (Qld) allows a person aggrieved by an Adjudicator’s order to appeal on a question of law to the Queensland Civil and Administrative Tribunal – what is error of law – whether there was an error of law – where application seeking orders to declare meetings and committee nominations invalid made outside of three month time limit – whether non-compliance should be waived – whether application was frivolous, vexatious, misconceived and without substance – where applicant no longer owner in scheme – whether costs should be awarded against applicant

Body Corporate and Community Management Act 1997 (Qld), s 162, s 242, s 270, s 276, s 289, s 290, s 342

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 102, s 146

Aspar Autobarn Co-operatives Society v Dovala Pty Ltd (1987) 74 ALR 550

Cocks Macnish v Biundo [2004] WASCA 194

Kulcsar & Ors v Body Corporate for Larnaca Court [2016] QCATA 47

Sandown [2019] QBCCMCmr 400

Sierra Grand [2016] QBCCMCmr 516

State Electricity Commission of Victoria v Rabel [1998] 1 VR 102

Toodayan v Anti-Discrimination Commission Queensland [2017] QSC 301

TV Rocks Resorts [2016] QBCCMCmr 281

Walden v Broadwater Tower Body Corporate [2015] QCATA 28

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    The Applicant is a former owner of Lot 31 in the River View Terraces development which comprised 52, two-storey townhouses situated in Upper Coomera near the Gold Coast. She disposed of her interest in the unit approximately one and a half years ago and has not been a unit holder since.
  2. [2]
    She has appealed the decision of an Adjudicator appointed under the Body Corporate and Community Management Act 1997 (Qld) (‘the Act’) which in a decision of 11 June 2019, that is almost a year ago, the Adjudicator refused to allow applications she had made in an AGM held on 17 October 2017 and an EGM held on 17 February 2018 be declared invalid. The Reasons also refuse her application to declare invalid the nomination of four committee members, who nominated and became committee members in 2017.
  3. [3]
    All in all, she made application for some 20 orders to be made by the Adjudicator, each and every one of which was refused by the Adjudicator.
  4. [4]
    Only parts of the decision refusing those orders are appealed.
  5. [5]
    The decision of the Adjudicator was given under s 276 of the Act. Section 276 provides as follows:

276 Orders of adjudicators

  1. An adjudicator to whom the application is referred may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about—
  1. a claimed or anticipated contravention of this Act or the community management statement; or
  2. the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or
  3. a claimed or anticipated contractual matter about—
  1. the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
  2. the authorisation of a person as a letting agent for a community titles scheme.
  1. An order may require a person to act, or prohibit a person from acting, in a way stated in the order.
  2. Without limiting subsections (1) and (2), the adjudicator may make an order mentioned in schedule 5.
  3. An order appointing an administrator—
  1. may be the only order the adjudicator makes for an application; or
  2. may be made to assist the enforcement of another order made for the application.
  1. If the adjudicator makes a consent order, the order—
  1. may include only matters that may be dealt with under this Act; and
  2. must not include matters that are inconsistent with this Act or another Act.
  1. [6]
    The appeal to this Tribunal is governed by s 289 of the Act, which provides:

289 Right to appeal to appeal tribunal

  1. This section applies if—
  1. an application is made under this chapter; and
  2. an adjudicator makes an order for the application (other than a consent order); and
  3. a person (the aggrieved person) is aggrieved by the order; and
  4. the aggrieved person is—
  1. for an order that is a decision mentioned in section 288A, definition order—an applicant; or
  2. for another order—
  1. an applicant; or
  2. a respondent to the application; or
  3. the body corporate for the community titles scheme; or
  4. a person who, on an invitation under section 243 or 271(1)(c), made a submission about the application; or
  5. an affected person for an application mentioned in section 243A; or
  6. a person not otherwise mentioned in this subparagraph against whom the order is made.
  1. The aggrieved person may appeal to the appeal tribunal, but only on a question of law.
  1. [7]
    Section 290 of the Act provides:

290 Appeal

  1. An appeal to the appeal tribunal must be started within 6 weeks after the aggrieved person receives a copy of the order appealed against.
  2. If requested by the principal registrar, the commissioner must send to the principal registrar copies of each of the following—
  1. the application for which the adjudicator's order was made;
  2. the adjudicator's order;
  3. the adjudicator's reasons;
  4. other materials in the adjudicator's possession relevant to the order.
  1. When the appeal is finished, the principal registrar must send to the commissioner a copy of any decision or order of the appeal tribunal.
  2. The commissioner must forward to the adjudicator all material the adjudicator needs to take any further action for the application, having regard to the decision or order of the appeal tribunal.
  1. [8]
    Section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides:

146 Deciding appeal on question of law only

In deciding an appeal against a decision on a question of law only, the appeal tribunal may—

  1. confirm or amend the decision; or
  2. set aside the decision and substitute its own decision; or
  3. set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration—
  1. with or without the hearing of additional evidence as directed by the appeal tribunal; and
  2. with the other directions the appeal tribunal considers appropriate; or
  1. make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c).
  1. [9]
    Hence, pursuant to s 146, in deciding an appeal against a decision on a question of law, the Appeal Tribunal is not engaged in a rehearing of the matter.
  2. [10]
    Relevantly, she appeals orders which were refused in the following terms:

[4] The following orders are sought:

2. If order 1 is declined, then the following orders are sought:

  1. That the application be accepted under section 242(4)(a) of the Act;
  2. That the reconvened AGM held on 17 October 2017 be declared invalid;
  3. That the reconvened EGM held on 17 February 2018[1] be declared invalid;
  4. That the nomination for committee by Alexander Tenkate on 20 June 2017 be declared invalid;
  5. That the nomination for committee by Naomi Wilbur on 30 June 2017 be declared invalid;
  6. That the nomination for committee by Stephen Ward on 13 June 2017 be declared invalid;
  7. That the nomination for committee by Kathleen McLean on 19 June 2017 be declared invalid.

  1. That all levy notices issued by the body corporate for the 2017/2018 financial year be declared invalid.

  1. [11]
    She also brought applications below for other orders she does not appeal, namely:
    1. (a)
      For a declaration that decisions of the committee since the appointment of the abovementioned committee members be declared invalid;
    2. (b)
      That the Body Corporate call an EGM for the 2018 Financial Year to pass relevant budgets;
    3. (c)
      That the Body Corporate allow her to inspect Body Corporate records;
    4. (d)
      Orders that would have required the committee to disclose to owners a range of information about things that she contended involved a multiplicity of kinds of improper conduct which she alleged the committee had engaged in in 2018;
    5. (e)
      Orders that she in fact was a financial member of the Body Corporate, which related to controversy associated with the fact that in September 2018 the Respondent Body Corporate had commenced debt proceedings against her in a Magistrates Court in Coolangatta in relation to unpaid levies. In those proceedings she sought to defend the claims by attacking the validity of the meetings at which budgets were struck and which also relied upon her contention that the committee had not been properly elected;
    6. (f)
      That the Body Corporate reimburse her for levies, legal costs, and water charges which were said to have been unlawfully imposed upon her via contribution notices while she was an owner; and
    7. (g)
      That the Body Corporate provide her with various records of the Body Corporate in some 25 different categories.
  2. [12]
    In relation to the matters which are the subject of this appeal, the Adjudicator decided to refuse the relief sought, inter alia on the basis that although the original applications in relation to those matters were brought out of time, in the sense that they were brought later than the three months permitted for them to be brought under s 342 of the Act. She argues that the Adjudicator made an error of law in refusing to waive that time limit pursuant to s 242(4)(b) of the Act.
  3. [13]
    In that regard, she contends that the Adjudicator made an error of law in dismissing the application that she had made under s 242(3) of the Act, the error of law being that the Adjudicator “disregarded a material fact in exercising his discretion to extend the time limit”. She relies upon the decision in Kulcsar & Ors v Body Corporate for Larnaca Court [2016] QCATA 47 in support of the proposition that disregard “for [sic] a material factor constitutes an error in exercising discretionary judgement”.
  4. [14]
    In substance the Applicant contends that the central reason for refusing to waive non-compliance with the time limit for the bringing of the application was that there was no merit to the application itself. In that regard the Applicant contends that that in itself was an erroneous finding because the application was not without substance, and therefore the Adjudicator applied an incorrect test.
  5. [15]
    In support of this proposition the Applicant relies upon a conclusion set out in paragraph [27] of the Reasons. After stating the relevant principle being based upon an error of law in disregarding a material factor, the Applicant in fact inverts that proposition and contends that the Adjudicator should have applied a different test, namely a kind of test which would have accepted the application had “substance and merit”.
  6. [16]
    An examination of the Adjudicator’s Reasons reveals that whilst the Adjudicator’s findings as to the absence of merit were one of the considerations which founded the discretionary decision to decline to waive non-compliance, it was only one of numerous factors that were taken into consideration.
  7. [17]
    The Adjudicator’s Reasons on this issue were as follows:
  1. [12]The applicant correctly identifies that section 242 of the Act places a time limit on certain adjudication applications seeking orders invalidating resolutions or meetings of the committee or body corporate and the election of committee members.  Such applications must be made within three months of the relevant meeting.  If an adjudication application is made more than three months after the relevant meeting, the commissioner must deal with the application as if it were made within three months of the relevant meeting and an adjudicator may, for good reason, waive the noncompliance.
  2. [13]Any examination of whether the time limit should be waived pursuant to section 242(4)(b) involves consideration of the following statement made by Dodds J in the appeal of Weeks v. Commissioner for Body Corporate (Maroochydore District Court Appeal 13/99), at pages 4 and 5 of the judgment,

… the objects of the Act militate against too strict or legalistic a view about good reason for waiving non-compliance with the time limit.  What will be required is a balancing of the length of the delay; the reason for the non-compliance; the effect of the delay on others who are affected by the matter in dispute and importantly, whether apart from the question of non-compliance with the time requirement, an applicant will be entitled to the relief sought.  The applicant, being the person seeking a waiver, will have the task overall of satisfying the adjudicator that the time limit should be waived in all the circumstances.

In my view, this is the appropriate test of whether non-compliance with the three month time limit should be waived in this application.  The applicant needs to satisfy me that the time limit should be waived in all the circumstances.

  1. [14]The body corporate points out that the application seeks to invalidate resolutions made and elections conducted at meetings held on 17 October 2017 (2017 AGM) and 7 February 2018 (2018 EGM).  This application was lodged on 24 September 2018, more than 11 months and 7 months after the relevant meetings, respectively.
  2. [15]The body corporate states that the applicant’s excuse for the delay is that the applicant’s attempts to mediate the dispute immediately after the 2017 AGM were frustrated by the body corporate in refusing to participate and failing to provide access to body corporate records.
  3. [16]In fact, submits the body corporate, the applicant’s only attempts to discuss their issues concerning the relevant meetings were made on 12 and 28 February 2018 (when they put their concerns in writing), more than three months after the 2017 AGM.  The applicant raises a complaint about the body corporate failing to provide her with access to records, but has failed to substantiate any claims which, in any event, could have been the subject of a separate dispute resolution application if the applicant considered they were unreasonably denied access to records.
  4. [17]The body corporate submits that the applicant has failed to provide any reasonable or justifiable excuse for their delay in lodging the application.  The requirement to lodge an application within three months of the relevant meeting is to ensure that bodies corporate are not left exposed and vulnerable to their decisions being overturned after they have been relied upon and implemented.
  5. [18]In the present case, the body corporate continues that the application seeks orders in relation to the 2017 AGM (and subsequent related 2018 EGM), which relate to (inter alia) the setting of budgets for the scheme and the election of committee members.
  6. [19]It is significant, in the body corporate’s view, that a more recent AGM of the body corporate was held on 25 September 2018 (2018 AGM), the day after this application was lodged.  A copy of the minutes of that meeting were provided with the submission.
  7. [20] The 2017 AGM and 2018 EGM relate to:
  1. the setting of budgets for the financial year of the body corporate ending on 30 June 2018; and
  2. the election of committee members for the period ending at the 2018 AGM (held on 25 September 2018).
  1. [21]The body corporate submits that the utility of the orders sought in the application in relation to resolutions made at the 2017 AGM and 2018 EGM are rendered redundant in circumstances where the resolutions in question have been fully implemented and superseded by resolutions on the same subject matters at the 2018 AGM.
  2. [22]The levies in respect of the budgets approved at the 2018 EGM have been fully struck.  The committee elected at the 2017 AGM have served their term in office for 12 months.  New budgets for the current financial year have been set and a new committee elected at the 2018 AGM.
  3. [23]The effect of making orders in the terms sought in the application would be to cast significant uncertainty in relation to the financial position of the body corporate and all of the committee’s decisions made in the period between the 2017 AGM and 2018 AGM, which would be open to challenge[2]. The body corporate submits that this is an entirely unreasonable outcome that could have significant consequences on the management and finances of the scheme.
  4. [24]Accordingly, in relation to the discretion granted to adjudicators under section 242 of the Act to waive non-compliance with the three month time limit on making applications including orders in the nature of those sought in the application, the body corporate submits that the present case is a clear one in which it is appropriate for me not to waive the non-compliance.  The application should therefore be dismissed, concludes the body corporate.
  5. [25]In her response to the submissions, the applicant claims that her filing of an amended defence in the Magistrates Court, which was served on the body corporate on or around 29 March 2018 highlighted relevant issues that the body corporate could have addressed.  She argues this was served on the body corporate within three months of the reconvened EGM held on 7 February 2018 and the body corporate has no excuse for failing to address the matters raised by her in her defence.
  6. [26]I cannot accept that the filing of an amended defence in the Magistrates Court can possibly satisfy the requirements of section 242 of the Act, which requires that an application with this office be lodged within three months of the relevant meeting complained of.
  7. [27]I agree with the body corporate’s submission.  I do not consider it appropriate to waive the non-compliance with section 242 of the Act in circumstances where the delay involved in bringing the application in the case of each meeting is significant (nearly triple and more than double the time limit, respectively); the resolutions have been fully implemented and superseded by resolutions passed at the 2018 AGM; waiving the non-compliance would cause significant uncertainty and disruption for the body corporate; and, as detailed below, there is no merit to the application in any event.
  1. [18]
    As those Reasons make clear, the primary reasons for refusing to waive the non-compliance concern the fact that the application was not lodged until 24 September 2018, more than 11 months after the 2017 AGM which was under challenge had been held and the decisions under it implemented, and more than seven months after the 2018 EGM which was under challenge had been held, and the decisions made under it implemented.
  2. [19]
    Of even greater significance than the actual duration of delay was the fact that the resolutions in question had already been implemented before the application was brought and furthermore, there had been an AGM held in 2018 at which other resolutions had been passed which in effect rendered the resolutions passed at the two meetings under challenge as having been superseded or overtaken by events. The Adjudicator quite properly concluded that waiving non-compliance would cause significant uncertainty and disruption for the Body Corporate.
  3. [20]
    It was relevant for the Adjudicator to have regard to what the consequences would be for a Body Corporate to permit an application to be brought challenging meetings so long after the decisions made under them had been passed and implemented. It was open to the Adjudicator even were he satisfied that there was any merit to the application, independently of any other issue, to decide that in the exercise of discretion it was not appropriate to waive non-compliance with the requirements of s 242.
  4. [21]
    The Adjudicator did not fail to take into consideration the relevant consideration because the Adjudicator did have regard to the merits of the application.
  5. [22]
    In my view, even had the Adjudicator concluded that there was some merit to the applications, as distinct from finding that there was no merit to them, the Applicant has been unable to demonstrate that any different outcome would have been arrived at.
  6. [23]
    It is clearly not in the interests of a Body Corporate to be open to having decisions made at properly convened general meetings challenged long after the decisions had been made and implemented, particularly in circumstances where there is no clear explanation for the delay in bringing the application, and insofar as explanations exist, they excuse the delay. There was no explanation for the delay in this case, and no other matters which excused it.
  7. [24]
    It is not consistent with the objects of the Act that parties, and particularly those who by the time decisions are being made about whether to invalidate meetings no longer even own a unit in the relevant scheme, and therefore have no direct ongoing interest in the outcome of those decisions except to the extent that they affect her pecuniary interests, should be permitted to sit on their hands and not bring applications to challenge the outcomes of those meetings for extensive periods.
  8. [25]
    I will turn to the second aspect of the appeal in a moment concerning whether the application was properly dismissed under s 270(1)(c) of the Act on the basis that it was frivolous, vexatious, misconceived and without substance. For present purposes it suffices to say that the Applicant’s contention that the merits of the application, or the lack thereof, was the main reason for not waiving the non-compliance is demonstrably wrong. It was one of a number , and seemingly a considerably less significant factor than others which have been identified and which of themselves justify the decision.
  9. [26]
    The Applicant also challenges orders by the Adjudicator dismissing the proceeding on the basis that it was frivolous, vexatious, misconceived and without substance, and an ancillary decision to order her to pay the Body Corporate the amount of $2,000.00 to partially compensate the Body Corporate for its costs in responding to the application, the foundation in the finding in Reasons [88] that s 270(3) of the Act permits an Adjudicator who dismisses an application for being frivolous, vexatious, misconceived or without substance, to also order costs.
  10. [27]
    In relation to those issues, the Adjudicator made the following findings:
  1. [33]Paragraph 3 on pages 3 and 4 of the application asserts that the 2017 AGM was ‘not properly convened because the number of votes cast does not equate to the number of voting papers’ and ‘the minutes are not a true and accurate account of the meeting’.
  2. [34]The particular motions that the applicant takes issue with are those in respect of motions 4 to 7, which were lost/resolved with the following voting tallies:

(a)Motion 4 (Sinking fund budget and contributions)

Yes

2

No

7

Abstain 1

(b)Motion 5 (No audit)

Yes

2

No

7

Abstain 1

(c)Motion 6 (Appointment of auditor)

Yes

8

No

2

Abstain 0

(d)Motion 7 (Body corporate insurance)

Yes

10

No

0

Abstain 0

  1. [35]The applicant’s grievance seems to stem from the fact that the minutes record only nine voting papers having been received, whereas ten votes are cast in respect of the subject motions.  In fact, it appears that Steve Ward held a proxy in respect of Lot 53 (and may have attended by teleconference), which would account for the additional vote.
  2. [36]In any event the body corporate notes that, even if the voting tally was incorrectly recorded (at the meeting or in the minutes), a single vote would not have affected the outcome of voting on motions 4 to 7.  Motions 4 and 5 would still have been lost, and motions 6 and 7 would still have been resolved in favour.
  3. [37]I agree with the body corporate’s submission.  The legislation is silent about telephone attendance at general meetings but it has been held there is no reason why a person should not attend by telephone or other device if the body corporate is willing to set up the link or facility.[3]  I also note that the applicant herself did not vote and was not represented, at that meeting.

2018 EGM

  1. [38]Paragraph 4 on pages 4 and 5 of the application argues that the 2018 EGM was ‘not properly convened because the acting chairperson appeared via teleconference’ and that ‘the number of votes does not equate to the number of voting papers counted’.
  2. [39]The particular motions that the applicant takes issue with are those in respect of motions 1 to 3, which were resolved with the following voting tallies:

(a)Motion 1 (Minutes of adjourned AGM of 17 October 2017)

Yes

5

No

1

Abstain 0

(b)Motion 2 (Administrative fund budget & contributions)

Yes

3

No

2

Abstain 2

(c)Motion 3 (Sinking fund budget & contributions)

Yes

3

No

2

Abstain 2

  1. [40]As submitted in relation to the motions considered at the 2017 AGM, even if the voting tally was incorrectly recorded (at the meeting or in the minutes), a single vote would not have affected the outcome of voting on motion 1.  Motion 1 would still have been resolved in favour.
  2. [41]Although it is not entirely clear, the applicant appears to take issue with two of the owners attending the 2018 EGM and casting their votes by telephone.  There is no legislative restriction on owners attending a meeting of the body corporate by telephone.  Accordingly, the applicant’s complaints in relation to the tallying and recording of votes carries no basis at law.
  3. [42]Similarly, for the same reason, the applicant’s assertion that the meeting must be invalidated because the chairperson attended the meeting by telephone must also be rejected.
  4. [43]I agree with the submission by the body corporate. 
  5. [44]The applicant also objects to her proxy being declared invalid some time after the meeting and before the minutes were produced.  This could have been because the applicant was regarded as being ‘non-financial’ for failing to pay recovery costs, although the reasons for the proxy being regarded as invalid are not recorded in the minutes and not addressed by the body corporate in its submission.
  6. [45]I note that motions 2 and 3 were to set and approve the administrative fund budget and contributions (motion 2) and the sinking fund budget and contributions (motion 3) for the period 1 July 2017 to 30 June 2018, as a result of motions 3 and 4 failing to pass at the reconvened AGM on 17 October 2017.  It was imperative that the body corporate attend to these matters.  Without any alternative budgets being suggested by the applicant (and no specific complaint about the approved budgets or contributions themselves), I cannot see that any utility could come from invalidating either of these motions, even if the application had been made within three months of the meeting.  The body corporate had and continues to have financial obligations it was and is required to meet.
  7. [46]The applicant’s grounds reveal no basis in law upon which to invalidate the 2018 EGM.

Committee Nominations

  1. [47]Paragraph 5 on page 5 of the application asserts certain irregularities in respect of the nomination forms submitted for candidates for election to the committee of the body corporate at the 2017 AGM.  The primary reason for asserting their invalidity is that the nomination form was not dated by the nominator.
  2. [48]The body corporate submits that such minor incompleteness in a nomination form is insufficient to invalidate it.  Moreover, and more significantly, as previously noted in its submission, the committee elected at the 2017 AGM have served their term in office and a new committee was elected at the 2018 AGM.  Accordingly, the utility of the orders sought in the application in relation to election of committee members at the 2017 AGM are redundant and the making of such an order would do no more than create significant uncertainty in relation to the committee decisions made in the period between the 2017 AGM and 2018 AGM.
  3. [49]I agree with the body corporate’s submission.  Whilst I acknowledge that the nomination form for Alexander Tenkate did not contain nominator details, Mr Tenkate was the owner of lot 10 at that time and was eligible to nominate himself for committee membership.  The nomination form for Naomi Wilbur, who was not a lot owner, did not have Part B of the form completed.  However, the residential address of the candidate had already been provided in Part A and it was clear from that section that she was an occupier of lot 2.  She is the partner of the owner and therefore, eligible for committee membership.
  4. [50]In circumstances where all nominees were eligible for committee membership, no elections were necessary because of the number of nominations received and where all have since served their time as committee members, I regard the applicant’s request for orders invaliding their nominations at this point in time to be frivolous and vexatious.

Levy notices and resolutions of committee be declared invalid; EGM be called

Orders 2 (8, 9 and 10)

  1. [56]These orders could flow from the making of orders 2 (2 to 7).  The body corporate submits that, to the extent that the applicant is not entitled to orders 2 to 7 and they are not made as requested, orders 8, 9 and 10 ought not be made.
  2. [57]The body corporate submits that the applicant does not raise any additional evidence or reasons in this section of the application as to why the requested orders (2 to 7, or 8 to 10) should be made and a general allegation is made that the body corporate manager and committee are acting in their own interest and not those of the body corporate.
  3. [58]As outlined previously in its submission, the body corporate submits that:
  1. the utility of the orders sought in the application in relation to resolutions made at the 2017 AGM and 2018 EGM are rendered redundant in circumstances where the resolutions in question have been fully implemented and superseded by resolutions on the same subject matters at the 2018 AGM;
  2. the effect of making orders in the terms sought in the application would be to cast significant uncertainty in relation to the financial position of the body corporate and all of the committee’s decisions made in the period between the 2017 AGM and 2018 AGM.
  1. [59]The body corporate submits that the making of the requested orders would be an entirely unreasonable outcome that could have significant consequences on the management and finances of the scheme in circumstances where the applicant is the only owner to raise issue with the relevant meetings and levies struck by the body corporate (and the application seemingly arising as a consequence of the applicant failing to pay levies and being sued by the body corporate for recovery of same).
  2. [60]I agree with the body corporate’s submission.  With the application dismissed in so far as orders 2 (1-7) is concerned, the application for orders 2 (8, 9 and 10) must also be dismissed, for those orders were dependent on the others being granted.  With the 2017 AGM and 2018 EGM not invalid, there is no need for committee decisions or levies struck to be invalidated, nor is there any need for a further EGM, particularly in light of the fact that the 2018 AGM has since been held.
  1. [28]
    In relation to the determination to order costs, the Adjudicator held as follows:
  1. [93]In exercising my discretion to award costs of $2,000 against the applicant, I have taken the following factors into account:
  • A previous application lodged by the applicant[4] against the body corporate which was dismissed.  It was noted in the statement of reasons for that decision that:
  1. [55]It appears to me that the applicant has a limited understanding of her rights and obligations as an owner of a lot in a community titles scheme. There is no basis in law for any of the orders sought by the applicant to be made against the body corporate.
  2. [56]Aspects of the application were misconceived and without substance. Further, the volume of material submitted and number of occasions on which the applicant submitted further material could be regarded as vexatious, as there is support for the notion that an excessive or oppressive volume in itself could render an application to be of a vexatious nature. This may be taken into account in deciding whether to award costs against the applicant in the event that she makes further applications, which are deemed by an Adjudicator to be frivolous, vexatious, misconceived or without substance.
  • That there was no basis in law for any of the orders sought in this application to be made.  The application was misconceived and without substance in this regard.
  • Certain aspects of the application were frivolous and vexatious, for example, the delay in bringing the application and amending the application to seek numerous additional orders, after the applicant had sold her lot in the scheme.
  • The body corporate incurred legal expenses in excess of $2,000 engaging lawyers to respond to the application on its behalf.
  1. [29]
    The decision to award costs was said to be, and was indeed, the result of the exercise of the Adjudicator’s discretion to do so.
  2. [30]
    The submissions made by the Applicant to this Tribunal seem to focus upon a consequential order to pay costs on the basis identified, rather than a general challenge to the decision to dismiss the application generally on the basis that it was frivolous, vexatious, misconceived and without substance.
  3. [31]
    The Applicant’s submissions do not focus upon what orders should have been made in relation to the merits of the application generally, were the alleged error of law concerning whether the application was frivolous, vexatious, misconceived and/or without substance not reached.
  4. [32]
    It follows from what I have already found in relation to the first ground of appeal, namely its dismissal on the basis that it was out of time, that even if a different result can be arrived at in relation to the merits of the application, the finding refusing to waive the time compliance would nevertheless be fatal on this issue. In other words, even if the Adjudicator had decided that some or all of the complained of conduct by the Body Corporate was open to criticism or that there was some conceptual basis to set aside or declare invalid the general meetings, and the nominations and appointments of committee members, that would not have resulted in a different outcome in relation to the merits of the application to grant that relief.
  5. [33]
    In her contention that the Adjudicator erred in concluding that it was frivolous, vexatious, misconceived and without substance, she relies upon a decision of the Supreme Court of Queensland in Toodayan v Anti-Discrimination Commission Queensland [2017] QSC 301 at [45]. She contends that that is authority for the proposition that that test is only met if the case is “hopeless” and not merely weak.
  6. [34]
    In that decision the finding of the Court was:
  1. [45]Section 139 does not provide for the rejection of weak cases – which this case may well be – but only those which come within the category sometimes described as “hopeless”. By not considering fully the context in which the alleged discriminatory words were used, the Commissioner failed to take into account a relevant consideration. The application must be allowed. The decision to reject the complaint is set aside. That is a case, like many considering the language concerning whether an application or claim was frivolous, vexatious, misconceived and without substance, where the issue was about whether a proceeding ought be summarily dismissed. Not, as here, where after a full consideration of all of the evidence and arguments , an adjudicator has decided the application was misconceived and without substance.
  1. [35]
    She contends that whilst her case may have been weak, it was not hopeless and that there were a number of her complaints which were upheld in circumstances where she contends that the number and seriousness of the allegations were relevant considerations in deciding whether the application was frivolous and without substance. She also contends that it is irrelevant that she has brought another application in which another Adjudicator had decided matters adversely to her, and indeed, as the Reasons make clear, found that aspects of her earlier application were “misconceived and without substance”.
  2. [36]
    The expression ‘frivolous, vexatious, misconceived or lacking in substance’ appears in a wide variety of statutory contexts and the meaning of the individual terms in this sequence has been considered in a number of cases in different jurisdictions; e.g. State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 and Cocks Macnish v Biundo [2004] WASCA 194. 
  3. [37]
    The term "vexatious" is used in the context of the Act in the sense illustrated by the Shorter Oxford Dictionary when it says "Of legal actions: instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant" (cf. Aspar Autobarn Co-operatives Society v Dovala Pty Ltd (1987) 74 ALR 550 at 554, where this meaning was approved by the Federal Court of Australia in a different statutory context).
  4. [38]
    An application is misconceived where it is conceived wrongly. That is, it proceeds from a misunderstanding or an idea, notion or belief on the part of the applicant that is plainly wrong.
  5. [39]
    The first thing to observe is that the proposition that a number of her complaints were upheld by the Adjudicator has no foundation, when the proposition is put under scrutiny.
  6. [40]
    For example, the relevant paragraph of the decision of the Adjudicator at [69] in relation to the failure to keep full and accurate minutes of meetings and to provide them to owners made no finding that there was such a failure.
  7. [41]
    In paragraphs [68] and [69] of the Reasons it was held on this issue:
  1. [68]The applicant argues that committees must be transparent in all their dealings and maintain accurate minutes of all meetings held.  She claims the committee makes decisions on matters she raises with them ‘behind the scenes’ and refuses to present the minutes of those meetings pertaining to those decisions to her or any other lot owner.  The owners of lot 1 submit that Mark Goldstone did attend at least two informal meetings (or gatherings as they were referred to) with the most active committee members during 2018, one of which was Kate McLean.   They state that there were no agenda items or minutes for these ‘meetings’.
  2. [69]Whilst I can appreciate the applicant’s frustration in not having all decisions made by the committee minuted and distributed to owners, I cannot order that documents that do not exist be made available.  Having said this, the body corporate should ensure that all decisions made by the committee are minuted and copies of minutes of committee meetings are provided to owners, as required by the legislation.
  1. [42]
    No orders were made in her favour concerning the distribution of minutes of committee meetings.
  2. [43]
    In relation to the complaint about the failure to complete committee nomination forms, paragraphs [47] to [50] of the Reasons state as follows:
  1. [47]Paragraph 5 on page 5 of the application asserts certain irregularities in respect of the nomination forms submitted for candidates for election to the committee of the body corporate at the 2017 AGM.  The primary reason for asserting their invalidity is that the nomination form was not dated by the nominator.
  2. [48]The body corporate submits that such minor incompleteness in a nomination form is insufficient to invalidate it.  Moreover, and more significantly, as previously noted in its submission, the committee elected at the 2017 AGM have served their term in office and a new committee was elected at the 2018 AGM.  Accordingly, the utility of the orders sought in the application in relation to election of committee members at the 2017 AGM are redundant and the making of such an order would do no more than create significant uncertainty in relation to the committee decisions made in the period between the 2017 AGM and 2018 AGM.
  3. [49]I agree with the body corporate’s submission.  Whilst I acknowledge that the nomination form for Alexander Tenkate did not contain nominator details, Mr Tenkate was the owner of lot 10 at that time and was eligible to nominate himself for committee membership.  The nomination form for Naomi Wilbur, who was not a lot owner, did not have Part B of the form completed.  However, the residential address of the candidate had already been provided in Part A and it was clear from that section that she was an occupier of lot 2.  She is the partner of the owner and therefore, eligible for committee membership.
  4. [50]In circumstances where all nominees were eligible for committee membership, no elections were necessary because of the number of nominations received and where all have since served their time as committee members, I regard the applicant’s request for orders invaliding their nominations at this point in time to be frivolous and vexatious.
  1. [44]
    The Adjudicator clearly did not in any way accept the Applicant’s complaints as having any validity.
  2. [45]
    In relation to what were complained of as voting irregularities, rather than acknowledging the validity of the complaints, the Adjudicator actually concluded that there were no such irregularities. In that regard paragraphs [35] to [42] of the Reasons provided for these matters and I have set then out above.
  3. [46]
    In relation to the complaints about including proxy votes when proxy was not in attendance, the Adjudicator’s decision was set out in the Reasons in paragraph [35] which has been set out above. They did not hold her complaint had any validity.
  4. [47]
    In relation to the complaint about failure to provide access to records, the relevant findings are at paragraphs [61] to [66] and also paragraph [53]. None of those involves any acknowledgement of the complaint having any validity. The same may be said about the Applicant’s complaint about the chairperson attending the EGM by teleconference, the findings in relation to which are set out in paragraph [37] of the Reasons set out above.
  5. [48]
    The same may be said for her reference to the issue of whether the Body Corporate had refused to mediate. The Applicant refers to paragraph [70] of the Reasons. That paragraph makes no reference to this issue. The Adjudicator does mention her contention about that elsewhere but dismisses it as essentially irrelevant.
  6. [49]
    Finally, in relation to the Applicant’s contention that the Body Corporate failed to comply with the terms of a Conciliation Agreement dated 2 December 2016, in that regard she complained that the Body Corporate had refused to comply with a previous Conciliation Agreement making the process an exercise in futility. The Reasons do not reference this issue, and was not even one of the grounds in the application which the Adjudicator determined. It necessarily follows that the Adjudicator did not make any affirmative or positive finding or even make a favourable passing comment.
  7. [50]
    The Respondent Body Corporate refers to a number of adjudication decisions in which the language of s 270(1)(c) has been considered. These include the decisions in TV Rocks Resorts [2016] QBCCMCmr 281, Sierra Grand [2016] QBCCMCmr 516 and Sandown [2019] QBCCMCmr 400. In the latter decision of Sandown at [57] and [58] the Adjudicator correctly held that the language of s 270(1)(c) does not require there to be a finding that an application was in every respect frivolous and vexatious and misconceived and without substance. It is enough that one or more of those bases be upheld so that an application might be held for example to be frivolous or vexatious, even if not “entirely devoid of substance”.
  8. [51]
    Reference has also been made to the decision of this Tribunal in Walden v Broadwater Tower Body Corporate [2015] QCATA 28 where at [34] the Tribunal concluded that it had been appropriate for an Adjudicator to make award for costs in circumstances where the application had been made outside of the scope of the legislation, without giving consideration to its threshold requirements. That case was merely an example of the application of the section to particular facts.
  9. [52]
    Section 270(c) and (b) of the Act specifically authorises an Adjudicator to have regard to previous applications made by a particular Applicant in deciding whether to order costs. It not an error of law to do so.
  10. [53]
    The considerations that the Adjudicator took into account in deciding to award costs on the basis that the application was misconceived and without substance because there was no basis in law for any of the orders sought was one properly arrived at, having regard to all of the relevant considerations. In my view, the Applicant has demonstrated no error of law on the part of the Adjudicator in arriving at that conclusion.
  11. [54]
    It follows that the application is dismissed.
  12. [55]
    For the Respondent Body Corporate it is submitted that there ought be an order for costs in favour of the Body Corporate under s 47(2) of the QCAT Act on the basis that the proceeding in this Tribunal is itself frivolous, vexatious, misconceived and/or lacking in substance. Alternatively it submits that it is appropriate to make a costs order under s 102 of the principal Act.
  13. [56]
    Those submissions are not properly developed in the Respondent’s written submissions, and the Applicant herself has not addressed them.
  14. [57]
    I will direct the Respondent to file an outline of submissions of no greater length than three pages on this issue, including identifying the quantum of any costs sought to be recovered, and that it do so within seven days of the date of publication of this order. The Applicant shall file any responsive submissions no greater than three pages within seven days of receipt of the Respondent’s submissions. I will then determine the question of costs on the papers.

Footnotes

[1] According to the minutes, the EGM was scheduled for 31 January 2018 and reconvened on 7 February 2018 (not 17 February as stated by the applicant) due to the failure to achieve a quorum on 31 January 2018.

[2] Indeed, requested order 8 in the Application is “That all decisions and resolutions of the committee since their unofficial appointment by the body corporate manager on the 17 October 2017 be declared invalid.” 

[3]Signature Waterfront Apartments [2017] QBCCMCmr 351.

[4]1027-2018.

Close

Editorial Notes

  • Published Case Name:

    Katarzyna Jodlowska v The Body Corporate for River View Terraces

  • Shortened Case Name:

    Jodlowska v The Body Corporate for River View Terraces

  • MNC:

    [2020] QCATA 70

  • Court:

    QCATA

  • Judge(s):

    Member Roney

  • Date:

    15 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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