Hollis Holdings Pty Ltd v P.J. Hanley
[2002] QDC 1
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Hollis Holdings Pty Ltd v P.J. Hanley[2002] QDC 1
- Add to List
Hollis Holdings Pty Ltd v P.J. Hanley[2002] QDC 1
Hollis Holdings Pty Ltd v P.J. Hanley[2002] QDC 1
DISTRICT COURT OF QUEENSLAND
CITATION: | Hollis Holdings Pty Ltd v P.J. Hanley and Ors [2002] QDC 001 |
PARTIES: | Hollis Holdings Pty Ltd (respondent) (appellant) v P.J. Hanley (first respondent) Commissioner of Body Corporate Community Management (second respondent) Body Corporate for “Noosa on the Beach” community titles scheme 6417 (applicant) (third respondent) Hollis Holdings Pty Ltd (first applicant) Hollis Partners Pty Ltd (second applicant) v Body Corporate for “Noosa on the Beach” community titles scheme 6417 (respondent) |
FILE NO/S: | Appeal 9/01; Application 545/01 |
DIVISION: | District Court |
PROCEEDING: | Chambers |
ORIGINATING COURT: | |
DELIVERED ON: | 24 January 2002 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 14 January 2002 |
JUDGE: | K. S. Dodds DCJ |
ORDER: |
|
CATCHWORDS: | PRACTICE – Application to strike out appeal – Wh appeal filed within time. PRACTICE – Application to strike out appeal and restrain the body corporate from opposing the appeal – Wh the body corporate resolved to prosecute the appeal Body Corporate and Community Management Act 1997 Standard Module Regulation 1997 Banks v Body Corporate for “Noosa on the Beach” CTS 6416 (2000) QCA 146. Sattell & Ors v The Proprietors of Be-Bees Tropical Apartments Bup No. 71593 (2000) QCA 496. |
COUNSEL: | Mr Crisp for Hollis Holdings Pty Ltd Mr Carrigan for Body Corporate “Noosa on the Beach” |
SOLICITORS: | Kruger Lawyers for Hollis Holdings Pty Ltd Short Punch & Greatorix for Body Corporate “Noosa on the Beach” |
- [1]These reasons deal with two applications. They can conveniently be so disposed of.
- [2]The first application filed (“the first matter”) was by the Body Corporate for “Noosa on the Beach” Community Title Scheme 6417 seeking that an appeal by Hollis Holdings Pty Ltd, pursuant to Part 12 Chapter 6 of the Body Corporate and Community Management Act 1997 (“the Act”) against a decision of an adjudicator under the Act (appeal No.9/01 District Court Maroochydore), be struck out on the grounds it was commenced out of time.
- [3]Appeal 9/01 is an appeal by Hollis Holdings Pty Ltd against a decision of an adjudicator dismissing its application that:
- certain motions of an extraordinary general meeting of the Body Corporate held on 19 March 2001 were special resolutions and were lost;
- the motions were invalid;
- a vote for Lot 19 could not be counted.
- [4]As to this application it emerged at the hearing of the application that the appellant had in fact commenced the appeal in time. On this finally being established the applicant did not pursue the application to strike out.
- [5]I note that the appellant, after filing the notice of appeal, failed to comply with the Appeal Practice Direction in the District Court.
- [6]It should also to be mentioned that since 4 September 2001 the applicant’s solicitors were, to the knowledge of the appellant, asserting that the appeal had been filed on 8 June 2000 (apparently the date of service of the notice of appeal). In fact, it had been started when the notice of appeal had been filed on 25 May 2001 and was within time. Despite considerable exchange of correspondence between the solicitors for the parties between September 2001 and the return date of the application, the appellant’s solicitors, for whatever reason, did not point out to the applicant’s solicitors the error of that assertion nor did the applicant’s solicitor apprehend it. Such a simple courtesy, which should be expected between members of the profession (as opposed to their clients who may wish to cause as much embarrassment or cost to their opponent as possible), would have saved wasted time and cost.
- [7]This application is dismissed.
- [8]The second application filed was by Hollis Holdings Pty Ltd and Hollis Partners Pty Ltd against the body corporate for “Noosa on the Beach” Community Titles Scheme 6417 seeking that an appeal by the body corporate (appeal No.24/01 District Court Maroochydore) be struck out or dismissed and further that the Body Corporate be restrained from opposing the appeal in appeal No. 9/01.
- [9]Appeal 24/01 is an appeal by the body corporate against the order of an adjudicator pursuant to the Act dismissing the body corporate’s application that Hollis Partners Pty Ltd be restrained from conducting the business known as Accommodation Noosa from Lot 21 and the common property of the Community Title Scheme, and for costs of the proceedings. The respondent to the appeal is Hollis Partners Pty Ltd.
- [10]Because of the way the Hollis submissions were presented it is necessary to detail some minutes from meetings of the committee of the body corporate and of the body corporate itself.
- [11]Minutes of a “flying committee meeting” of 10 August 2001, at which 4 members were present, record that the committee confirmed that the information discussed at an informal committee meeting, held on 2 August 2001, was correct and that all committee members agreed with any resolution made within that meeting.
- [12]Minutes of an “informal committee meeting” held 2 August 2001, at which 2 members were present (not a quorum) record amongst a number of other things that it was resolved to contact the Body Corporate solicitor in order to appeal the decision of the adjudicator relating to the use of Lot 21 and to seek additional advice on the matter.
- [13]Following the meeting of 10 August the Hollis interests and some other members of the Body Corporate wrote to the Body Corporate Manager expressing concern or dissent regarding these resolutions.
- [14]Minutes of an “informal committee meeting” of the Body Corporate held 18 October 2001, at which 4 members were present, record that it was resolved that an extraordinary general meeting of the Body Corporate be called on 16 November 2001 about the appeal of the adjudicator’s decision dismissing the Body Corporate’s application regarding the use of Lot 21.
- [15]Notice of the proposed extraordinary general meeting was sent to members accompanied by copies of motions by way of ordinary resolution together with other material.
- [16]The motions by way of ordinary resolution for consideration at the meeting were inter alia:
Hollis Holdings Pty Ltd – Appeal No. 9/01
- the Body Corporate oppose appeal No. 9/01 filed in the District Court Maroochydore on 8 June 2001 (the date should have been 25 May 2001);
- the Body Corporate be authorised to expend from the Body Corporate Administration fund legal fees for the purpose of defending the appeal estimated at $12,000;
The Body Corporate – Appeal No. 24/01
- The Body Corporate pursuant to section 259(c) of the Body Corporate and Community Management Act 1997 proceed with appeal No. 24/01 filed in the District Court Maroochydore on 7 September 2001 as if the Body Corporate approval by the passing of the resolution had been given prior to the filing of the appeal;
- in respect of appeal No.24/01 the Body Corporate be authorised to join Hollis Holdings Pty Ltd, the owner of management Lot 21 in the Scheme, as a party to this appeal (I was informed that no such joinder was in fact sought);
- the Body Corporate be authorised to prosecute, from the Body Corporate Administration Fund, legal fees for the purpose of defending this appeal estimated at $9,000 (the wording of this last sentence is clearly wrong. The Body Corporate is, in fact, seeking to prosecute the appeal.)
- [17]The resolutions were carried by a majority of members voting 18 to 10 with no abstentions.
- [18]Submissions of the Hollis interests were based upon provisions of the Act and the Standard Module Regulation 1997 (“the Regulations”). It was submitted the Act and Regulations had the effect that the committee had no power to resolve as it had on the occasions I have set out above. Thus what the committee purported to resolve was a nullity and could not be resurrected or ratified by the extraordinary general meeting of 16 November 2001. Moreover, both the commencement of the appeal by the body corporate and its opposition to the appeal by Hollis Holdings Pty Ltd started proceedings. Therefore a decision to oppose the Hollis Holdings Pty Ltd appeal could only be made by a special resolution of the body corporate.
- [19]Section 92(1) of the Act provides that a decision of the committee of a body corporate is a decision of the body corporate. Section 92(2) provides that sub-section 1 does not apply to a decision that, under the Regulations, is a decision on a restricted issue for the committee.
- [20]A decision is a decision on a restricted issue for the committee if it is a decision
---
(e) to bring a proceeding in a court other than
- (i)a proceeding to recover a liquidated debt against the owner of a lot;
- (ii)a counterclaim, third part proceeding or other proceeding in relation a proceeding to which the Body Corporate is already a party: Regulation 26(e)
- [21]Section 36 of the Acts Interpretation Act 1954 provides that a proceeding means a legal or other action or a proceeding.
- [22]An appeal from a decision of an adjudicator is not a “proceeding in relation to a proceeding to which the Body Corporate is already a party”: Regulation 26(e); Sattell & Ors v The Proprietors of Be-Bees Tropical Apartments Bup No. 71593 (2000) QCA 496.
- [23]Section 259(1) of the Act provides that the Body Corporate may start a proceeding only if the proceeding is authorised by a special resolution of the Body Corporate. Section 259(2) however provides that the Body Corporate does not need a special resolution to
---
(c) appeal against an adjudicator’s order.
- [24]Regulation 103 of the Standard Module Regulation so far as relevant provides the committee may only carry out a proposal involving spending above “the relevant limit” for committee spending for the Scheme if
---
- (a)the spending is specifically authorised by an ordinary resolution of the Body Corporate.
- [25]I was informed the limit was $3,100.
The Body Corporate Appeal – Appeal No.24/01
- [26]Section 259(2) authorises the Body Corporate to appeal against an Adjudicator’s order by ordinary resolution.
- [27]The decision of the Body Corporate to appeal is recorded in the minutes of the meeting of 16 November. Reference to those minutes show that it is not a decision to ratify resolutions of the Committee at an earlier time.
- [28]The notice of appeal was filed before the Body Corporate resolved to appeal. The resolution of the Body Corporate of 16 November dealt with this by resolving that the Body Corporate proceed with the appeal as if its approval to appeal by the passing of the resolution had been given prior to the filing of the appeal.
- [29]In Banks v Body Corporate for Noosa on the Beach CTS 6416 (2000) QCA 146 an application for leave to appeal to the Court of Appeal from a decision of the District Court was filed when the Body Corporate had not, by special resolution, authorised the application. Some three months after the application was filed the Body Corporate, by special resolution, resolved to authorise the commencement and conduct of the appeal and incur any necessary legal expenses. The Court of Appeal considered the subsequent ratification of the body corporate’s application rendered the application and appeal competent.
Opposition to the Hollis Appeal – No. 9/01
- [30]The Body Corporate filed a notice of address for service in the appeal on 22 June 2001 thereby, according to the submission of the Hollis interests, starting a proceeding when there was no authorisation by the Body Corporate to do so.
- [31]I do not think the filing of an address for service by a Body Corporate respondent in an appeal is within the meaning of starting a proceeding as that phrase is used in section 259(1) of the Act. The proceeding was started by the filing of the notice of appeal by Hollis Holdings Pty Ltd.
- [32]The ordinary resolution of the Body Corporate at its meeting of 16 November 2001 resolved to oppose the appeal and authorised the expenditure up to a certain amount to do so.
- [33]The Act does not require a resolution to oppose an appeal from an adjudicator to be other than an ordinary resolution. Likewise authorisation of expenditure.
- [34]The application is dismissed.