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Stanton v The Body Corporate for Macarthur Chambers Residences[2016] QCATA 84

Stanton v The Body Corporate for Macarthur Chambers Residences[2016] QCATA 84

CITATION:

Stanton v The Body Corporate for Macarthur Chambers Residences [2016] QCATA 84

PARTIES:

Julie Stanton

(Applicant/Appellant)

v

The Body Corporate for Macarthur Chambers Residences

(Respondent)

APPLICATION NUMBER:

APL265-15

MATTER TYPE:

Appeals

HEARING DATE:

28 January 2016

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

Member Howard

DELIVERED ON:

27 May 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The appeal is allowed; and
  2. The Adjudicator’s decision is confirmed.

CATCHWORDS:

APPEAL – REAL PROPERTY – BODY CORPORATE AND COMMUNITY MANAGEMENT; POWERS, DUTIES AND LIABILITIES – where lot owner’s motions at AGM defeated – whether Adjudicator erred in law – including whether Adjudicator failed to consider relevant legislative provisions – whether breach of natural justice – whether factual finding supported by evidence

Body Corporate and Community Management Act 1997 (Qld) ss 4, 94, 100, 101B, 276, 289, 294, Schedule 1A ss 2, 3, 6

Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld) ss 34, 35, 53, 79

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

Albrecht v Ainsworth & Ors [2015] QCA 220

Bakir v Chevron Renaissance [2016] QCATA 33

Kioa v West (1985) 159 CLR 550

Walden v Body Corporate for Broadwater Tower [2015] QCATA 166

APPEARANCES:

APPLICANT:

Ms Julie Stanton appeared on her own behalf

RESPONDENT:

Mr Authur Mellick appeared on behalf of the Body Corporate for Macarthur Chambers Residence

REASONS FOR DECISION

SENIOR MEMBER STILGOE

  1. [1]
    In this appeal, the Appeal Tribunal comprised Member Howard and me. I have had the benefit of reading Member Howard’s reasons in draft. I agree with her reasons, her conclusions and the order she proposes.

MEMBER HOWARD

  1. [2]
    This is an appeal from a decision made by an Adjudicator appointed under the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’) on an application by two lot owners, including Ms Julie Stanton against the Body Corporate for Macarthur Chambers Residences (the Body Corporate). It revolves around events in the lead-up to, and the holding of, an Annual General Meeting (AGM) on 25 August 2014.
  2. [3]
    Ms Stanton is the only applicant in the appeal proceedings. Her application for appeal seeks orders setting aside the Adjudicator’s orders and the making of ‘just and equitable orders’ in their place. At the hearing before this Appeal Tribunal, she clarified that she seeks declaratory orders validating her position.

The background

  1. [4]
    The adjudication application sought orders that:
    • the resolutions on motions 9 and 10 were void;
    • the voting results for motion 12 (made by the caretaker proposing amendment to the caretaking and letting agreements by including an option to extend or renew the agreements for a further term of 5 years) be declared invalid and that the motion be declared not carried; and
    • the election of the committee, which occurred at the AGM, was void and orders providing for a further general meeting to elect a committee.
  2. [5]
    Ms Stanton (who was a committee member at the time) proposed motions 9 and 10. It is useful to set them out here in full. They are in the following terms:

Motion No

Motion

Vote

9

ORDINARY RESOLUTION – Systemic frequent unreasonable and unlawful payments approved under the directions of Mr Keith De Lacy
Submitted by Lot Owner 201 102JS – Additional Motion

That as soon as practically possible but no later than 30 November 2014, Mr Keith De Lacy and/or the Body Corporate Manager, if they were involved in the matter, provide the Body Corporate committee with a comprehensive explanation in writing in regards to each of the payments as to why they were approved without a committee decision for each of the payments, before the payments were made, and without any documented outcome of the alleged work performed by Nicholsons Solicitors. The Body Corporate committee then to investigate the matter and request the money be refunded by the responsible party should the investigation result in a finding that the payments should not have been authorised.

YES/NO/ABSTAIN

10

ORDINARY RESOLUTION – Systemic frequent bulling [sic] and intimidation of a committee member under the direction of Mr Keith De Lacy
Submitted by Lot Owner 201 102JS – Additional Motion

That:

  1. Using the committee executive positions and/or the approval of executive committee members to bully and intimidate committee members is not acceptable.
  2. Committee members who receive preferential treatments, in relation to their properties, or personal favours from the building managers to declare these preferential treatments/ favours as an attachment to their nomination as a committee member in reference to the provision of BCCM Act 1997, Schedule 1A (6) 6 Conflict of interest

YES/NO/ABSTAIN

 

  1. [6]
    Ms Stanton provided explanatory notes for the two motions.
  2. [7]
    Motions 9 and 10 were not supported by other members of the body corporate committee, who resolved at a meeting of the committee on 21 July 2014 to ‘draft, approve and distribute an explanatory note in response to the allegations’ with the AGM motions submitted by Ms Stanton.[1] Although Ms Stanton is recorded as present for part of the meeting, the minutes do not indicate whether she was present when this resolution was made.
  3. [8]
    When the body corporate later circulated papers to lot owners before the AGM, they received Ms Stanton’s proposed motions and her explanatory schedule in relation to each of them, and an explanatory note from the committee in response to the motions, indicating that it did not support the motions. Six individual committee members are named at the end of the explanatory note as its authors.[2] They were all of the committee members other than Ms Stanton. Ms Stanton does not accept that the explanatory notes were circulated by decision of the committee (as opposed to particular members of it).
  4. [9]
    The committee’s explanatory note was unflattering in its content about Ms Stanton. For example, it suggests that Ms Stanton (who was new to the committee at the previous AGM), had not adopted a collegiate and constructive approach on the committee. Rather, it asserts that she ‘has chosen instead to swamp other committee members with lengthy, accusatory, disruptive, offensive, negative and time-consuming emails’.[3]
  5. [10]
    In relation to motion 9, the explanatory note asserts that payments are made at arms’ length by the body corporate manager (Archers) which prepares statements for consideration which are considered at each committee meeting and are independently audited. In particular, the explanatory note sets out an explanation about the legal costs Ms Stanton refers to, for seeking advice concerning two issues. The first is described as an ongoing air-fan issue with the shopping centre located in the premises and which was causing noise and disruption for some lot owners. The second is said to relate to seeking advice concerning a complaint about Ms Stanton running an accountancy practice from her residential lot in contravention of the community management statement. Regarding the other claims made by her, the note asserts that Ms Stanton ‘is unable to identify any payment that should not have been made.’[4]
  6. [11]
    In relation to motion 10, the explanatory note asserts that ‘Requesting an offensive person with a perverse instinct to engage in civil discourse does not amount to bullying and intimidation.[5] Nor, they assert, does dealing with the complaint made against her. Further, the note states that MacArthur Chambers is lucky to have helpful, cooperative and courteous building managers whose actions do not amount to the preferential treatment alleged by Ms Stanton. The authors ask lot owners to take the matters set out into consideration in considering the motions moved by Ms Stanton.
  7. [12]
    At the AGM, the motions were considered and the issues they raised were ventilated. The Committee says that the Chair ruled motions 9 and 10 ‘invalid’.[6] However, the lot owners voted on motions 9 and 10. The minutes of the AGM record motions 9 and 10 as ‘not carried’. Motion 12 was carried. A committee was elected. Ms Stanton was not re-elected.
  8. [13]
    In brief, in the adjudication, Ms Stanton argued that the committee’s explanatory note was not properly compiled or provided and that owners were not able to vote in a fair and reasonable way. Ms Stanton is concerned that the voting results for motion 12 were not properly counted. She also alleged that the then caretaker unreasonably lobbied owners about Motion 12, because she (the caretaker) sent an email to the lot owners whose properties were in the rental/letting pool. Further, the adjudication application contended that the election of the committee was not in accordance with legislative requirements and that unreasonable lobbying occurred in the lead up to the election.
  9. [14]
    An Adjudicator made orders dismissing the application.

The appeal process

  1. [15]
    An appeal to the Appeal Tribunal from an adjudicator’s decision under the BCCM Act may be made on a question of law only.[7] The purpose of the appeal process is to correct any error of law made by a decision-maker. Accordingly, an appeal from an adjudicator to the Appeal Tribunal under the BCCM Act is an appeal in the strict sense.[8]
  2. [16]
    In deciding an appeal on a question of law, the Appeal Tribunal has the jurisdiction and the powers of the Appeal Tribunal under s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).  Under the BCCM Act, it also has the jurisdiction and powers of an adjudicator under the BCCM Act.[9] The Appeal Tribunal may amend or substitute an order based on the adjudicator’s findings of fact if the question of law entirely disposes of the proceeding and if the adjudicator who made the order appealed would have had the jurisdiction to make the amended or substituted order. If further findings of fact are required, the matter must be remitted to the adjudicator for reconsideration.

The Adjudicator’s decision

  1. [17]
    The learned Adjudicator considered that no resolutions had been made on motions 9 and 10, referring to the minutes recording them as ‘not carried’.[10] The learned Adjudicator found that because there were no resolutions made on those motions, orders could not be made to the effect that the resolutions were void.
  2. [18]
    The learned Adjudicator went on to consider whether, (if the Applicants intended to seek declarations that the motions were carried), that would be appropriate but concluded such orders should not be made. He considered that motions 9 and 10 ‘should have been ruled out of order using the powers under section 79 of the Accommodation Module’.[11] Further, he concluded that both motions, if they had been carried, would conflict with the legislation or be unlawful or unenforceable. In relation to motion 9, he observed that the body corporate could not enforce resolutions requiring other people to do certain things. In relation to motion 10, he observed that committee members were required by legislation to disclose the matters set out in the Accommodation Module (concerning conflict of interest), inconsistently with motion 10. He further considered that motion 10(1), which sought in effect a declaration that it was not acceptable for executive committee members to bully or intimidate committee members, could not be enforced.
  3. [19]
    The learned Adjudicator concluded there was no basis in law to make the orders sought regarding motions 9 and 10.
  4. [20]
    Motion 12 was carried and a term included in the caretaking and letting agreements for an option to extend or renew the agreements for a further five years. Ms Stanton alleged that the votes were improperly assessed as valid or invalid, and that the counting was incorrect. It was alleged by Ms Stanton that at least four of the voting envelopes that may have been valid were not counted, and seven voting envelopes that were counted were of ‘questionable validity’.
  5. [21]
    The learned Adjudicator accepted that an independent returning officer was engaged in relation to motion 12. He had a statement from Archers Body Corporate Management, confirming that the AGM materials were sent to each lot owner as per the body corporate roll, that they had not been contacted by any owner/s indicating that AGM materials had not been received, and that none was returned as undelivered/returned mail. The learned Adjudicator found, in essence, that the Applicant/s had not substantiated their allegations made in relation to the votes being improperly classified, and found that there was no evidence that the AGM material was not received by any owner. In any event, having regard to the numbers, he concluded that even if the arguments were correct, it would have made no difference to the result on the motion.
  6. [22]
    The allegations of unreasonable lobbying relate to both Motion 12 and the election of the committee. Allegations were made by the Applicant/s that the caretaker had emailed and telephoned owners whose properties were in the hotel pool, and which she managed, instructing them on how to vote and asking them to support the option to extend or renew the caretaking and letting agreement and to elect certain persons to the committee. The committee provided a copy of the caretaker’s email, submitting that it did not make demands, or attempt to pressure anyone. It further submitted that one of Ms Stanton’s co-applicants (who is not a party to these appeal proceedings) had written to and phoned lot owners to lobby them.
  7. [23]
    The learned Adjudicator found that lobbying a lot owner for votes in the election is not contrary to the legislation, and found the Applicant/s’ assertions, that the caretaker placed undue pressure on owners in the hotel pool, to be without substance.
  8. [24]
    In respect of the election of the committee, the learned Adjudicator found that another application (APL0611-14) to the BCCM (the other adjudication) contained the same allegations and that a determination had been made in relation to those allegations dismissing the application. The learned Adjudicator found that, to the extent that this application sought determination on issues that had already been decided, that there was no further jurisdiction to rehear the issue and dismissed that aspect of the application.

The grounds of appeal

  1. [25]
    Ms Stanton filed lengthy submissions with her application for appeal, which assert that the grounds of appeal are contained in the attachment. The lengthy submissions traverse many matters, not all of which are relevant to the decision appealed. However, I understand the grounds of appeal to be that the adjudicator erred in:
  • interpreting or applying s 94 of the BCCM Act;
  • failing to observe natural justice;
  • finding facts that were not supported by the available evidence;
  • finding that there were no resolutions made on motions 9 and 10;
  • finding motions 9 and 10 would conflict with the BCCM legislative scheme or were unenforceable or unlawful;
  • not considering the conflict of interest of some committee members;
  • not accurately reflect[ing] what was his function at law’; and
  • concluding that the issues in the other adjudication resulted in the adjudicator being functus officio in relation to the application as far as it related to the election of committee members;
  • finding that the AGM was not infected by unreasonable lobbying by the caretaker.
  1. [26]
    The body corporate submits that the appeal application should be dismissed. It submits that the application does not identify any error of law. It also submits that the appeal lacks utility.
  2. [27]
    For reasons to be explained, I have concluded that the learned Adjudicator’s orders should be confirmed. That said, I make the observation Motions 9 and 10 (although they may be worded in what could be considered an inflammatory manner), appear to have been proposed because of Ms Stanton’s concern for proper procedure to be followed by the body corporate and committee members when authorising and paying accounts; dealing with conflicts of interest; ensuring committee members act fairly and honestly; and that elections of committee members are properly run. These are legitimate concerns. Proper procedures are required to be followed. It is unfortunate that it was not possible for the concerns held by Ms Stanton to be dealt with cooperatively between her and other members of the committee. 

Do the appeal grounds disclose an error of law?

Did the adjudicator err in interpreting or applying Section 94 of the BCCM Act?

  1. [28]
    There are two limbs to Ms Stanton’s arguments. Firstly, she says the learned Adjudicator failed to consider that s 94 was applicable to the application made. Secondly, she says that the learned Adjudicator incorrectly interpreted s 94. Failure to consider a relevant provision would constitute an error of law. The construction or interpretation of a statutory provision is a question of law.
  2. [29]
    Section 94(1) provides for the body corporate to administer the common property and body corporate assets for the benefit of the lot owners; enforce the community management statement; and carry out its other functions under the BCCM Act and the community management statement. Section 94(2) requires a body corporate to act reasonably in performing its functions under 94(1) of the BCCM. The objects and secondary objects of the BCCM Act are contained in ss 2 and 4. The secondary objects include, among other things, balancing the rights of individuals with the responsibility for self-management of community titles schemes.[12] Section 100 provides that decision of a committee is a decision of the body corporate. A committee must act reasonably in making a decision.[13]
  3. [30]
    Ms Stanton alleges the learned Adjudicator misinterpreted that s 94 of the BCCM Act in that the learned Adjudicator failed to consider that it requires the Body Corporate to act in the interests of all lot owners. She says that this requires a balancing of individual rights of lot owners with the responsibility for self-management of schemes. She says that had he recognised this, the learned Adjudicator would have found that the Body Corporate’s use of AGM materials to make ‘malicious attacks’ which effectively lobby against her re-election, was a violation of her equal property rights. She submits that the body corporate committee’s use of AGM materials in this way was unreasonable.  She contends that the learned Adjudicator was required to decide whether the committee had approved the explanatory note alleged to have been sent by it. She says that if he had, he would have concluded that it was unreasonable to secretly approve and write the explanatory note. In doing so, she argues, it did not act reasonably as required by s 94(2). Further, she argues that an email from one committee member, in which he said he would happily buy her out of her lot for the price she paid for it, pressured her to surrender her property rights at less than market value, and violated her property rights.
  4. [31]
    The construction of s 94 advanced by Ms Stanton is erroneous. It appears to stem from taking individual words or phrases contained in s 94 and in the objects of the BCCM Act out of context. Section 94 imposes a duty on a body corporate to act in the interests of all lot owners in administering its assets, as well as a general duty to act reasonably in performing its functions.
  5. [32]
    The learned Adjudicator did not consider or make findings about whether the actions of the body corporate complied with s 94. In relation to the application to have the resolutions made on motions 9 and 10 declared void, the learned Adjudicator found that no resolutions were made on the motions. Although that was not so, (for reasons to be discussed), his failure to make findings about whether s 94 had been complied with does not reveal an error of law. That is because the learned Adjudicator went on to hold that the application could not succeed in any event, because the motions should have been ruled out of order because they would, if carried, conflict with the legislation or were void or unenforceable. The procedure Ms Stanton proposed in Motion 9 was contrary to the procedure for approval and payment of accounts provided for in the BCCM (Accommodation Module). As the learned Adjudicator held, it was in conflict with the legislative scheme and would also be unenforceable.
  6. [33]
    Motion 10 seeks, in part, a declaration about the unacceptability of bullying behaviour by committee members. All committee members are bound by a code of conduct.[14] Among other things, they must act honestly and fairly in performing their duties as a committee-voting member and disclose any conflict of interest to the committee. The Accommodation Module sets out a procedure for dealing with conflicts of interest by a committee member, which differs from the Motion made.[15] Also, a procedure is provided for dealing with breaches of the code of conduct.[16] The other part of Motion 10 seeks to impose requirements for committee member nominating for the committee in a manner which differs from the requirements provided for in the Accommodation Module for nominations.[17] The learned Adjudicator concluded that there was no basis in law to make the orders sought.[18] I agree: as framed, they could not be made.
  7. [34]
    Further, Ms Stanton’s arguments seem to suggest that lot owners may possibly have voted unreasonably (and therefore as a body corporate acted unreasonably) because they were influenced by the actions of those committee members whom she considers have maligned her. This argument cannot assist her in circumstances that the orders she sought could not be made for the reasons already explained.
  8. [35]
    Accordingly, in the circumstances, the learned Adjudicator did not need to determine whether the body corporate had complied with s 94 to decide the adjudication application. Failure to do so does not reveal an error of law.

Alleged failure to observe natural justice

  1. [36]
    A failure to observe natural justice is an error of law. The alleged failure relied upon by Ms Stanton is a failure to interpret all of the critical issues. In oral submissions, she asserted that the failure to observe natural justice included a failure to investigate properly whether the explanatory note of the committee was in fact the work of the committee members named (as opposed to only two of them, Messrs DeLacy and Mellick).
  2. [37]
    The requirements of natural justice or procedural fairness are flexible. The requirements depend upon the statutory framework.[19] It is well established that natural justice entitles a party to know the case against them and to have the opportunity to respond to it. It also entitles a party to have the dispute determined by an impartial and unbiased decision-maker. In the context of the BCCM Act, an adjudicator’s failure to adequately investigate can, in some circumstances, be a breach of natural justice.[20]
  3. [38]
    Before the application was determined, the parties had the opportunity to provide information, evidence and submissions concerning the application. Ms Stanton had the opportunity to, and did, provide further information and submissions in reply to those relied upon by the Body Corporate. There is no allegation made that the learned Adjudicator was not impartial or was biased.
  4. [39]
    The alleged failure to investigate the explanatory note further did not impact on the outcome, because the learned Adjudicator was correct that Motions 9 and 10 should have been ruled out of order, conflicted with the legislative scheme or otherwise unlawful or unenforceable as discussed throughout these reasons. The learned Adjudicator did not need to determine the issues Ms Stanton seeks to agitate about the explanatory note. Therefore, there was no need for the learned Adjudicator to investigate them further.
  5. [40]
    A breach of natural justice is not established.

Alleged finding of facts which are not supported on the evidence

  1. [41]
    A finding of fact which is not available on the evidence is an error of law.
  2. [42]
    Ms Stanton argues that there is no evidence to support the learned Adjudicator’s finding that the explanatory note alleged to be from the balance of the committee was from the committee, (as opposed to two of the individual members of the committee). Ms Stanton submits that the committee did not authorise the actions and that is ‘entirely feasible to think’ that it was done without the decision or agreement of the other committee members. This submission seems to be made on the basis that Ms Stanton herself did not authorise the committee’s explanatory note and she does not believe all of the other named committee members did either.
  3. [43]
    This argument cannot succeed. Although the learned Adjudicator summarised the evidence and submissions provided by the parties, he did not make a finding of fact about the authorisation of the committee’s explanatory note. This is because he decided that there was no basis in law for the orders sought in respect of motions 9 and 10 to be made. Whether the explanatory note was authorised did not need to be decided for him to determine the application before him.
  4. [44]
    That said, I make the observation that the minutes of the 21 July 2014 committee meeting record a resolution that the committee members (or at least those present at the time) agreed to draft and circulate a response. It is uncontroversial that an explanatory note in response to motions 9 and 10, was prepared and circulated to the lot owners. It is uncontroversial that the AGM was held and the issues raised in motions 9 and 10 were discussed. There is no evidence from Ms Stanton that any committee member named as an author denied the explanatory note was their document at the AGM. There is no evidence presented by Ms Stanton that any committee member has subsequently denied their agreement to the explanatory note or that the necessary requirements for voting at committee meetings were not adhered to in making the resolution. Ms Stanton’s submission is that it is ‘feasible to think otherwise,’ relies upon mere speculation and possibility. Therefore, even if the learned Adjudicator needed to consider this issue (which he did not) he would have had regard to what was more probable than not on the evidence, (not what may have been a mere possibility).
  5. [45]
    No error of law is revealed.

Resolutions on motions 9 and 10

  1. [46]
    The learned Adjudicator found that no resolutions were made on motions 9 and 10. They were recorded in the minutes as ‘not carried.’
  2. [47]
    I accept, as Ms Stanton says, that a resolution to defeat a motion is still a resolution. She says that he wrongly concluded, therefore, that he could not grant the order sought. But he then went on to conclude that, in any event, he could not make the order because the motions should have been ruled out of order because they ‘if carried, would either conflict with the legislation or be unlawful or unenforceable.’[21]
  3. [48]
    I agree with the learned Adjudicator’s conclusion, as I have already discussed in these reasons for decision.

Motions 9 and 10

  1. [49]
    Whether motions 9 and 10 were in conflict with the legislative scheme and their enforceability and lawfulness are questions of construction and therefore questions of law.
  2. [50]
    Ms Stanton’s Motion 9 raised legitimate questions about the actions of the body corporate committee. She questioned whether Nicholsons had been appointed properly. She questioned whether certain payments had been authorised by committee resolution. It is unfortunate that relations with Ms Stanton were so bad that the committee would not respond to these simple requests.
  3. [51]
    The learned Adjudicator pointed out that the Accommodation Module sets out the procedure for approval and payment of accounts. To the extent that Motion 9 proposes a different procedure, it is in conflict with the Accommodation Module. To the extent that Ms Stanton simply wanted confirmation that the committee had complied with the procedure, it was not in conflict with the Accommodation Module.
  4. [52]
    However, Ms Stanton’s Motion 9 was non-specific and therefore, as the learned Adjudicator observed, unenforceable.
  5. [53]
    Motion 10.1 is a motion calling for a declaration that bullying behaviour is unacceptable. The motion does not involve body corporate assets, so s 94 is not relevant. Schedule 1A of the BCCM Act requires a body corporate committee member to act honestly and fairly[22] and in the best interests of the body corporate.[23] The Accommodation Module provides a procedure if the body corporate believes that a voting member of the committee has breached the code of conduct. That procedure, if followed, may include a motion at a general meeting to remove the member from the committee.[24] Ms Stanton could have proposed a motion that complied with the Accommodation Module procedure. The learned Adjudicator correctly decided that the motion, as Ms Stanton framed it, was unenforceable.
  6. [54]
    Motion 10.2 is a restatement of a committee member’s obligation[25] to declare a conflict of interest. The learned Adjudicator was correct in deciding that the motion was unenforceable.
  7. [55]
    The submissions made by Ms Stanton do not provide a basis for concluding that the learned Adjudicator erred in law in finding the motions were contrary to the legislative scheme, unenforceable or unlawful. Ms Stanton’s submissions do not raise matters relevant to that determination. 
  8. [56]
    No error of law is revealed.

The Adjudicator did not reflect his function at law

  1. [57]
    Ms Stanton seems to argue that the learned Adjudicator should have, (in performing his function under s 276(1)(a)) determined whether there had been a contravention of the BCCM Act and considered whether to make orders (other than those sought), as may be just and equitable. Ms Stanton relies on the decision in Riverleigh Gardens,[26] where, in different circumstances, an adjudicator decided to make orders in some respects different from those sought in the application.
  2. [58]
    Section 276 provides for an adjudicator to make an order that is, in the circumstances, just and equitable, including a declaratory order, to resolve a dispute under the BCCM Act. A dispute may include a claimed breach of the BCCM Act: s 276(1)(a). However, the adjudicator’s powers are exercisable in the context of the application made.
  3. [59]
    The dispute being determined is defined by the application made. Declarations about the behaviour of committee members, which seems to be what Ms Stanton contemplates, would not resolve the interpersonal dispute which appears to lie at the heart of this unfortunate situation. The learned Adjudicator made no findings about the behaviour of either Ms Stanton or other committee members. He confined his findings to matters required to determine the application.
  4. [60]
    As already discussed, the learned Adjudicator did erroneously find that ‘not carried’ resolutions were not resolutions. He therefore considered that he could not grant orders that the resolutions were void. However, contrary to the submission made by Ms Stanton that he did not consider other possibilities, he then went on to find that even if the intention of the applicants was to seek declarations that motions 9 and 10 were carried, he could not do so for the reasons already discussed.
  5. [61]
    No error of law has been established.

The Adjudicator was functus officio

  1. [62]
    There was a separate application to the Commissioner about the validity of the nominations for committee membership.[27] The Commission made a decision on that application on the same day as the decision under appeal. The learned Adjudicator therefore decided that he did not have to deal with this question. The other adjudication order in which the determination was made about the election is not appealed.
  2. [63]
    Ms Stanton says that the issue is different because in the subject application she added extra information: that she did not see a nomination by Anne Barry when she inspected the body corporate records; and that the other nominees were materially disadvantaged.
  3. [64]
    However, the dispute had been determined. No error of law emerges from the submissions Ms Stanton makes to this Tribunal.

Unreasonable lobbying by the caretaker

  1. [65]
    The learned Adjudicator found the lobbying for votes was not prohibited by the BCCM legislative scheme.
  2. [66]
    Although Ms Stanton repeats the arguments she put forward to the learned Adjudicator, she has not made any submissions about the correctness of the law, or the learned Adjudicator’s reliance on the previous decisions. Ms Stanton cannot simply say that the learned Adjudicator did not observe natural justice, or that his decision was unfair. The learned Adjudicator was not in error.

Not considering the conflict of interest of some committee members

  1. [67]
    Ms Stanton suggests that the learned Adjudicator failed to consider the conflict of interest of some committee members.
  2. [68]
    The learned Adjudicator at paragraph [16] of the reasons for decision made some observations about obligations in dealing with a conflict of interest, as it concerns a chairperson of a general meeting, by disclosing it.
  3. [69]
    As I understand Ms Stanton’s ground of appeal, it relates to the alleged non-disclosure of a conflict of interest of three members (Mr DeLacy, Mr Mellick and Ms Barry) of the committee whom Ms Stanton says should have declared a conflict of interest and withdrawn themselves from the meeting. Ms Stanton submits a conflict arises because motions 9 and 10 refer to improper actions of Mr DeLacy, Mr Mellick and (in this instance) Ms Barry, who she says misrepresented their views as the committee’s views in the explanatory note circulated by them to lot owners. In her oral submissions, Ms Stanton seemed to also say that this ground of appeal related to the building manager, and that she sought a declaration to that effect.
  4. [70]
    Once again, the adjudication application failed for reasons unrelated to the behaviour of any particular committee members. Therefore, the learned Adjudicator did not need to make findings the alleged conflict of interest in deciding the application, and did not err in not doing so.  
  5. [71]
    That said, I make the observation that conflicts of interest are serious matters. The BCCM Act and Regulations make provision for dealing with conflicts of interest, which must be adhered to.

The body corporate’s submission about the (lack of) utility of the appeal

  1. [72]
    It is uncontroversial that another AGM has been held and another committee of the Body Corporate was elected in 2015. It is also uncontroversial that the caretaker has now been replaced. The Body Corporate submits that there is no utility in the appeal. It argues that Ms Stanton does not seek to proceed with motions 9 and 10; does not seek to have the results of Motion 12 set aside; nor to have the election of the committee in 2014 declared void. It submits that the legislative framework does not support the making of the declaratory orders sought, which it submits have no utility.
  2. [73]
    Ms Stanton submits that the utility is in having declaratory orders made as provided for in s 276. The orders Ms Stanton seeks, even if they could be made on the findings made by the learned Adjudicator, have been superseded by events and would serve no purpose, perhaps other than to further damage already fractured relationships.

What orders should be made?

  1. [74]
    The learned Adjudicator erred in finding that there were no resolutions made on motions 9 and 10. However, he went on to find, correctly, that in any event they should have been ruled out of order because they conflicted with the legislative scheme or were unenforceable or unlawful. Therefore, he came to the right conclusion on the issue despite the error.
  2. [75]
    Even if this had not been the case, I would have dismissed the appeal as being without substance or utility for the reasons identified above.
  3. [76]
    I make the observation that difficult relationships between lot owners are counter-productive to the object of self-management of community titles schemes. The parties are urged to find more harmonious manner of relating to each other to avoid future disputes.

Conclusion and Orders

  1. [77]
    In light of the error identified, I would make orders allowing the appeal, but confirming the learned Adjudicator’s decision.

Footnotes

[1]  BCCM File APL265-15, Submissions of Body Corporate delivered on 6 January 2015 to the Commissioner for BCCM, Annexure 4, Minutes of Meeting of Body Corporate on 21 July 2014, last item on page 3.

[2]  BCCM File APL265-15, Application at pages JS 15 of 52 and 16 of 52.

[3]  Ibid, page JS15 of 52.

[4]  Ibid.

[5]   Ibid, page JS 16 of 52.

[6]  It seems, rather than out of order.

[7]  BCCM Act s 289(2).

[8] Albrecht v Ainsworth & Ors [2015] QCA 220, [94]-[96]; Bakir v Chevron Renaissance [2016] QCATA 33.

[9]  BCCM Act s 294.

[10]  Adjudicator’s reasons for decision dated 21 May 2015, at [14].

[11]  Adjudicator’s reasons for decision dated 21 May 2015, at [15].

[12]  BCCM Act s 4(a).

[13]  BCCM Act s 100(5).

[14]  BCCM Act s 101B and Schedule 1A.

[15]  BCCM (Accommodation Module) s 53.

[16]  BCCM (Accommodation Module) ss 34-35.

[17]  BCCM (Accommodation Module) Chapter 3, Division 2. 

[18]  Adjudicator’s reasons for decision dated 21 May 2015, paras [14]–[17].

[19] Kioa v West (1985) 159 CLR 550.

[20]  As discussed, in Walden v Body Corporate for Broadwater Tower [2015] QCATA 166 at [21].

[21]  Reasons for decision at para [15].

[22]  BCCM Act Schedule 1A s 2(1).

[23]  BCCM Act Schedule 1A s 3.

[24]  BCCM Accommodation Module s 34.

[25]  BCCM Act Schedule 1A s 6.

[26]  [2010] QBCCMCmr 134.

[27]  Adjudication Application 0611-2014.

Close

Editorial Notes

  • Published Case Name:

    Julie Stanton v The Body Corporate for Macarthur Chambers Residences

  • Shortened Case Name:

    Stanton v The Body Corporate for Macarthur Chambers Residences

  • MNC:

    [2016] QCATA 84

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe

  • Date:

    27 May 2016

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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