Body Corporate for Donnelly House CTS37465 v Shaw
[2016] QDC 132
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- Body Corporate for Donnelly House CTS37465 v Shaw[2016] QDC 132
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Body Corporate for Donnelly House CTS37465 v Shaw[2016] QDC 132
Body Corporate for Donnelly House CTS37465 v Shaw[2016] QDC 132
DISTRICT COURT OF QUEENSLAND
CITATION: | Body Corporate for Donnelly House CTS37465 v Judith Elizabeth Shaw [2016] QDC 132 |
PARTIES: | Body Corporate for Donnelly House CTS37464 (Respondent/Applicant) v Judith Elizabeth Shaw (Applicant/Respondent) |
FILE NO/S: | D51/15 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Maroochydore District Court |
DELIVERED ON: | 3.6.16 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 22.4.16 |
JUDGE: | Robertson DCJ |
ORDER: | The application is granted. The parties are invited to submit a draft order to accord with these reasons. |
CATCHWORDS: | LIBERTY TO APPLY; where final orders were made dismissing an appeal by the Body Corporate against orders made by a Magistrate pursuant to s 287 of the Body Corporate and Community Management Act (the Act) appointing an Administrator to give effect to the Orders of an Adjudicator made 23.10.12; where costs of the appeal and the proceedings below were ordered to be paid by the Body Corporate to the respondent; where “liberty to apply was granted; where the respondent seeks costs against the remaining owners pursuant to s 314 of the Act; whether “liberty to apply” permits the respondent to apply in circumstances in which there was no appeal from any of the Orders of the Court. BODY CORPORATE: whether s 314 of the Act now permits the joinder of the remaining (3) Lot owners as parties, and liability for costs orders include them, whether s 314 can be construed to permit such a course, and whether it extends to owners of lots at the time the orders were made who are now no longer owners. |
COUNSEL: | Sinclair, A. of Counsel for the Applicant Skennar, D. of Counsel for the First Respondent Mitchell, M. of Counsel for the Lot owners |
SOLICITORS: | Stratum Legal Pty Ltd for the Applicant Noel Woodall & Associates for the First Respondent SJP Law for the Lot owners Legislation considered Acts Interpretation Act 1954 Body Corporate and Community Management Act 1997 Cases considered Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 20 Body Corporate for Donnelly House CTS37465 v Shaw [2015] QDC 139 Donnelly House [2012] QBCCM Cmr. 474 Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd. R. 593 Perpetual Trustees Qld v Thompson [2011] QSC 48 |
- [1]On 5.6.2015 for reasons set out in Body Corporate for Donnelly House CTS37465 v Shaw [2015] QDC 139, I dismissed an appeal from a Magistrates decision made on 27.3.15 appointing an Administrator for the purpose of performing the obligations of the Body Corporate under Adjudicators’ Orders made on the 23rd October 2012 and subsequently amended on 1, 12 and 16 November 2016. The order of the Magistrate was made pursuant to s 287 of the Body Corporate and Community Management Act 1997 (the Act). By the Magistrates’ Orders, confirmed on appeal, a firm Archers was appointed as Administrator.
- [2]As my lengthy judgment reveals, the Adjudicators’ Orders were made following a disputed adjudication before Adjudicator D Toohey in Application 0846 – 2011 and his decision is Donnelly House [2012] QBCCM Cmr. 474. As his orders reveal, the Body Corporate was required to undertake extensive works to repair the building to prevent water ingress particularly into Unit 6, the unit owned by Mrs Shaw and her husband. As the evidence revealed, it is a small Community Title Scheme comprising only (6) Lots, (4) of which were then owned by members of the Donnelly family.
- [3]As discussed in some detail in my reasons, a number of issues were exposed as being prominent. In particular, the Body Corporate contended that it had entered into a binding contract to give effect to the Adjudicators’ orders with an entity known as BOSS Building Maintenance (Australia) Pty Ltd, and it was argued (successfully) by the Body Corporate that the Magistrate had erred in not dealing adequately with that issue; however, after analysing all the evidence ([66 – 80]), I re-exercised the Magistrate’s discretion, and concluded:
“[80]In my view, the existence of the contract was a relevant issue for his Honour to consider in the exercise of his discretion. His failure to do so was an error. However, in undertaking the analysis above in relation to this discrete issue, I have concluded that, in conjunction with other factors, and in particular the animus between the parties; the uncertainty over the extent to which the BOSS contract addresses the adjudicator’s orders, the attitude of the Body Corporate in refusing to provide information that may assist Mrs Shaw to determine if the contract does address the orders; the fact that it is her unit that is most seriously threatened by admitted serious defects in the building (the rectification of which by the orders is the responsibility of the Body Corporate); the fact that despite saying it is ready, willing and able to comply with the orders, the actions of the Body Corporate e.g. the threatened application to the Supreme Court, strongly suggest otherwise, in exercising the discretion afresh, taking into account this discrete issue, the same orders should be made.”
- [4]My judgment was not the subject of appeal. At [88] – [89] I wrote:
“In my reasons above, I have referred to some of the other points made on appeal which are not attributed to a specific ground. In my opinion the appeal should be dismissed, and I so order. Both parties were given an opportunity to make submissions about costs at the conclusion of the appeal hearing. I order the appellant to pay the respondent’s costs of and incidental to the appeal on the standard basis, and I certify for two counsel. I am satisfied that the matter is of sufficient complexity to require two counsel, particularly given the importance of the matter to the respondent. The parties agree that I have power to deal with costs below, and the Body Corporate should pay these costs as well on the standard basis. It goes without saying that Mrs Shaw should not have to contribute to any levy struck in order to satisfy the costs order.
I will give the parties liberty to apply by the giving of three days’ notice in writing.”
- [5]On 22.10.15, by consent the Order made by me was varied to substitute Peter Cassels of Cassels Strata as the administrator.
- [6]On 14.4.16, Mrs Shaw applied for orders that Gary Bugden of Bugden Legal replace Mr Cassels as administrator, and for further orders, pursuant to s 314 of the Act:
“2.That:
a.Raymond Charles Donnelly, the owner of Lots 1, 2 and 4;
b.Jennifer Ann Donnelly, a former joint owner of Lots 1, 2 and 4;
c.Sarah Anne Donnelly, the owner of Lot 3; and
d.Eric Robert Smith and Anne Smith as trustee (under instrument 715695724), the owner of Lot 5
are joined as parties to these proceedings.
- That the costs payable by the Appellant under the orders of the court made on 5 June 2015 be paid to the Appellant in the following proportions:
a.Any owners for lots 1, 2 and 4 jointly and severally – 60%
b.The owner of lot 3 – 20%
c.The owners of lot 5 – 20%”.
- [7]She also seeks costs of this application against the Body Corporate, and against the remaining Lot owners in similar proportions to those set out in [3] above.
The Section 314 Application
- [8]Section 314 is in the following terms:
314 Liability of owners for monetary obligations of body corporate
(1)In a proceeding by or against the body corporate for a community titles scheme, a court may order that an amount payable under a judgment or order against the body corporate be paid by the owners of particular lots included in the scheme in proportions fixed by the court.
(2)If an order is sought under subsection (1) against the owner of a lot who is not a party to the proceeding, the owner must be joined as a party.
- [9]At the hearing, the (5) present Lot owners (now Ray Donnelly – 3 Lots, Sarah Donnelly (daughter of Ray and Jennifer) 1 Lot, and Eric and Anne Smith, 1 Lot), were separately represented by Mr Williams who informed me that his clients supported the Body Corporate’s position.
- [10]The Body Corporate’s position (as regards s 314) is articulated in this way by Ms Skennar of Counsel:
“a.In the event that costs orders were to be sought against individual lot owners they were required to be made a party to the proceeding (s. 314 of the Body Corporate and Community Management Act 1997).
b.The appeal has been resolved with final orders, including final costs orders, without the other owners being joined as parties. As the orders that were made were final orders, there is no power to vacate those orders merely because they are now perceived to be inconvenient or not suitable.
c.The respondent did not join the other owners to the appeal or give them notice that she would seek orders that they pay the costs personally until this application was filed.
d.The other owners (and Jennifer Donnelly, an owner at the time of the appeal) have changed their financial position based on the orders that have already been made;
e.Each of the other owners (and Jennifer Donnelly) did not have an opportunity to be heard at the time of the appeal about personal liability.
f.It is unlikely that the Court has power to make the orders sought by Ms Shaw by reason of s. 100 of the Body Corporate and Community Management (Commercial Module) Regulation 2008. That section requires the Body Corporate to levy the owner of each lot in proportion to the contribution schedule lot entitlement of the lot”.
- [11]Mr Sinclair, for Mrs Shaw submits that the application is within the jurisdiction of the Court, by reason of the “liberty to apply” order and from the clear wording of s 314. During oral argument (after the Donnelly’s and Mr Smith were cross-examined by Mr Sinclair) Ms Skennar suggested that, despite the clear orders made by me on the 5th June, the “liberty to apply” order had not been included in the order formally taken out for Mrs Shaw’s Solicitors. She did not take this any further. Certainly the order on file, signed by Mr Hennessy, the Deputy Senior Registrar, includes (at 3):
“Liberty to apply upon the giving of 3 days’ notice”.
- [12]In Perpetual Trustees Qld v Thompson [2011] QSC 48, Martin J at [29] quoted with approval from the judgment of Campbell JA in Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 20 which considered the ambit of an order granting liberty to apply. Martin J summarised the principles:
“(a)When final relief has been granted in a suit, an order granting liberty to apply enables further orders to be made which are necessary for the purpose of implementing and giving effect to the principal relief already pronounced or, as it is sometimes called, “working out the order”.
(b)Liberty to apply cannot be used to alter the substance of an order already made.
(c)What can be done under a reservation of liberty to apply depends on what needs to be done, in the particular case, to work out the particular orders that have been made.
(d)If an order is one the working out of which of its nature involves deciding complex questions, or questions that were not specifically raised at the time that the order was made, those questions can be raised and decided in the original suit pursuant to liberty to apply”.
- [13]As to what is involved in “working out an order” is discussed by Martin J at [30] in which he referred to what McPherson SPJ (as he then was) said in Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd. R. 593 at 598:
““… a judgment or order that expressly reserves to parties a leave or liberty to apply can be varied on an application pursuant to such leave only so far as may be necessary for the purpose of working out the actual terms of the order so as to make it more efficacious in matters of detail. What is meant in this context by ‘working out’ the terms of an order is considered in some of the cases on the point. In Cristel v Cristel [1951] 2 KB 727, 728, Somervell LJ said it ‘involves matters on which it may be necessary to obtain the decision of the court. Prima facie, certainly, it does not entitle people to come and ask that the order itself shall be varied’. A simple judgment for a money sum requires no ‘working out’ in any sense, so that liberty to apply is quite inappropriate in such a case. On the other hand, there are many orders, particularly on the equity side, as to which the process of carrying the primary judgment into effect may require supervision, with the consequence that further or supplementary orders or directions may be needed to enable it to achieve its purpose. An example commonly encountered in practice is specific performance, where, because the consent or approval of some person or instrumentality may be needed to authorise a preliminary step, the judgment sometimes takes the form only of a declaration that the contract be specifically performed, together with subsidiary orders compelling particular acts to be done. See Egan v Ross (1928) 29 SR (NSW) 382, 388; Hasham v Zenab [1960] AC 316; Brown v Heffer (1967) 116 CLR 344, 350. The primary order may then need to be supplemented by further orders from time to time before the stage is reached at which the defendant can finally be ordered to perform specifically what he contracted to do in the way of transfer or payment as the case may be: Brown v Heffer (1967) 116 CLR 344, 350.
In Penrice v Williams (1883) 23 Ch D 353, 356–357, Chitty J spoke of an order that is ‘clearly not of a final character, and also when there is necessarily something to be done irrespective of what appears on the face of the order’. His Lordship was there explaining that in some cases an order may by its very nature need to be supplemented to give full effect to it, in which event liberty to apply is implied and need not be expressly reserved. See also Fritz v Hobson (1880) 14 Ch D 542, 561; Cristel v Cristel [1951] 2 KB 727, 731. A decree of specific performance in the limited form previously described nevertheless is a ‘final’ order for the purpose of appeal and otherwise, and so, at least as to issues litigated, cannot be discharged or varied under liberty to apply, notwithstanding that further decisions and orders may yet have to be made in working out its consequences. What cannot be done under the guise of ‘working out’ an order is to vary it.””
- [14]Mr Sinclair submits that the application pursuant to s 314 is covered by the “liberty to apply” order. He refers only to (d) in the summary at [29] of Perpetual Trustees. When one considers the analysis as a whole, it seems to me that this application goes beyond what is required to work out the original orders.
- [15]It would follow therefore that an order seeking to join parties and to order them to pay costs (on a joint and several basis) previously ordered would not (if only the UCPR applied) be covered by a liberty to apply order, whereas the order sought replacing the Administrator clearly would.
The s 314 point
- [16]However, it is primarily the wording of s 314 upon which Mr Sinclair bases his argument that this Court has jurisdiction to make the Orders sought in 2 and 3 of the Application filed 14.4.16. As a consequence of s 14 of the Acts Interpretation Act the heading to a section is part of the Act.
- [17]Neither Counsel has been able to discover any authority on the proper construction of this section.
- [18]I cannot accept the primary submission of the Body Corporate that the section should be interpreted as only applying to proceedings “by or against the body corporate” that are not finalised (in the sense articulated in 14b of Ms Skennar’s written outline) and at 26 of her supplementary outline. The section in its clear unambiguous terms provides a discretionary power to a court to “order that an amount payable under a judgment or order against the body corporate be paid by the owners of particular lots included in the scheme in proportions fixed by the court.” I agree with Mr Sinclair that the plain words of subsection (1) contemplate that there have been proceedings resulting in an amount payable (here under the costs order) by the Body Corporate. As he submits, it would deprive the subsection of purpose if an application such as this had to be brought before judgment when the outcome is unknown. As my reasons will disclose, the Donnellys were clearly aware of the nature of the original proceedings (and the appeal) and all (as well as Mr Smith) were served with costs submissions in relation to the primary proceedings. As I noted in my reasons on 5.6.15, Mrs Donnelly was intimately involved in the litigation, and, in effect, was the “mind” behind many of the Body Corporates actions, as she continues to be, despite no longer being a Lot owner.
- [19]No submission was made, either by Ms Skennar or Mr Williams, at, or prior to the hearing on the 22.4.16, that Mrs Donnelly could not be subject to an order under s 314 because she is no longer a Lot owner. As I note later, as part of a property agreement with her husband, she transferred in interest in the (3) Lots jointly owned by them to him on 17.6.15. I raised this as an issue to be addressed after the matter was adjourned.
- [20]Ms Skennar submits, by reference to the definition of “owner” in Schedule 6 of the Act. Relevantly, “owner” is defined as “(a) the person who is, or is entitled to be, the registered owner of the lot, …”; that Mrs Donnelly cannot be subject to an order under s 314.
- [21]Section 14 of the Acts Interpretation Act 1954 provides that “the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation”. It does not (as Mr Sinclair suggests at [75] of his written outline) refer to “the section”.
- [22]However, when one considers the heading, along with the plain unambiguous words of the section itself, I agree with him that, on a proper construction of the section, its purpose should not be restricted as Ms Skennar suggests, and applies to both present and former Lot owners: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [71] and [78]. Given that the section provides a discretionary remedy in subsection (1), the degree to which a Lot owner (or owners) have contributed to the making of the “order”, in this case the costs order, against the Body Corporate is clearly a relevant factor, which in itself protects Lot owners who are, as it were, bona fide purchasers without notice. That is certainly not the case with Mr Donnelly, and, as my reasons reveal, this is a clear case to which the section applies given that it is Mrs Donnelly who is mainly responsible for the actions on behalf of the Body Corporate which lead to the adverse costs order, which actions she has continued despite no longer being a Lot owner.
- [23]Section 14(1) of the Acts Interpretation Act 1954 is of not much assistance, although s 314 is contained in Chapter 7 Miscellaneous which also deals with appeals (see Part 1).
- [24]As my reasons will disclose, the Donnellys in particular, but also Mr Smith by his passive adherence to the approach dictated by them, have done their best to undermine the present administrator. Their conduct since the orders were made is similar to the conduct of Mrs Donnelly which lead to the orders in the first place (e.g. threats to Mrs Shaw, an express intention by word and action to control the implementation of the 2012 Adjudicator’s Orders, and to insist on the efficacy and enforceability of the BOSS “contract”; and to deny Mrs Shaw access to information); and I agree with Mr Sinclair that the section seems custom made for the extraordinary circumstances of this case. The section also clearly leaves the Body Corporate with primary liability for the costs order. It follows that, in my opinion, this Court has jurisdiction to hear and determine the whole of the application.
Should the discretion be exercised in this case?
- [25]This is the primary focus of the many affidavits filed in these proceedings. Mrs Shaw relies on an affidavit by her Solicitor Mr Kleinschmidt and her own affidavit both filed 14.4.16.
- [26]No issue is advanced by the Body Corporate, or indeed any of the proposed parties, that Mrs Shaw has delayed in bringing this application although the individuals all assert prejudice to which I will come to shortly.
- [27]The Donnelly’s and Mr Smith (according to the unchallenged evidence of Mr Kleinschmidt) were all served on or about 24 April 2015 with a copy of Mrs Shaw’s costs submissions including costs orders sought against the Donnelly’s in the Magistrates Court. At that time Lots 1, 2 and 4 were jointly owned by Ray and Jennifer, Lot 3 was owned by Sarah, and Mr and Mrs Smith owned Lot 5. Since then, as a result of a matrimonial settlement consequent upon a separation (according to Ray) in 2014 between he and Jennifer, he is now the sole owner of Lots 1, 2 and 4. From the title searches this transfer seems to have been effected on 17.6.15. As my judgment reveals, it was Jennifer who clearly was the controlling mind behind the actions of the Body Corporate before the Magistrate and before me.
- [28]Mr Peter Cassels was appointed as Administrator on 22.10.15. As I note above, that order was made by consent. On 29.10.15, Matthews Hunt wrote to Michael Wylie of BCP Strata advising that the firm acted for Mr Cassels, and required that a sum of $25,000 as part of insurer’s funds referred to in a Motion on the agenda for the EGM to be conducted that day, be forwarded to the Solicitors “to cover some or all of (Mr Cassel’s) likely costs.” BCP Strata were (and still are) conducting body corporate services for the Body Corporate. Sarah Donnelly (as Chairperson of the Committee) responded by email on 3.11.15, in an email partly composed by her and partly (as to legal issues) by her mother, who was then no longer a Lot owner, but still in the employ of Noel Woodall & Associates who have represented the Body Corporate in this dispute throughout. It is a lengthy email, but relevantly to the exercise of the discretion, Miss Donnelly asserted (on behalf of the Body Corporate) that Mr Cassels was not entitled to legal expenses, that the amount sought was well above “his fee estimate”; implied that the Solicitor was endeavouring to take advantage of “the lot owners”; stated that (Mr Cassels) was “now in a fiduciary relationship with the body corporate and must act in its best interests”; the BOSS contract was still “on foot” according to Peter Kemp (and another) of BOSS; there was an attempt (presumably by Mrs Shaw) to “interfere with the contracting process”; the other quotes considered by the Body Corporate in July 2013 “did not comply with the Building Code”; the Lot owners will need to obtain loans to pay for the works; and “finally, and regrettably, I must place your firm and the Administrator on notice that, in light of the above, should you take action that forces undue hardship on the owners or brings about a situation where the owners are forced into a default position because of your actions that are unnecessary, superfluous, ultra vires, negligent, in breach of the fiduciary relationship or otherwise avoidable, than the body corporate reserves its rights against both you, your firm and the Administrator (sic)”. This last threat, I infer, was the work of Mrs Donnelly.
- [29]To describe the email as aggressive and combative would be an understatement. It was hardly the response of a Body Corporate willing to comply with Court Orders and act in good faith.
- [30]Not surprisingly, Mr Cassels advised Mr Kleinschmidt on 4.11.2015 that he did not intend to accept any further appointment. On 6.11.2015, Sarah Donnelly emailed Michael Wylie of BCP Strata advising him that “if anyone contacts you requesting transfer of funds from the sinking or administration funds”, contact Noel Woodall & Associates.
- [31]Sarah Donnelly had previously made an adjudication application to access the records of the former administrator Mr Staehr. On 9.11.15, an Adjudicator dismissed Miss Donnelly’s application, concluding:
“‘It seems to me that the applicant, the Body Corporate, and other owners should now simply step back and allow the court-appointed administrator (sic) get on with organising the repair work without further interference.’”
The adjudicator also said of Miss Donnelly’s application:
“[58]As noted above, the right of an owner to access records is not affected by the purpose for which they wish to use the records. Notwithstanding that, it appears from the material provided by the applicant that her desire to access the particular records arises from her concern relating to the responsibility for work covered by Order 0846-2011 and the manner in which the Administrator can act in regard to implementing Order 0846-2011. This appears to continue the history of challenges to the repair works, despite the adjudicator, Magistrates Court and District Court orders made, and despite the ongoing costs and delays from those challenges”.
- [32]Miss Donnelly (and inferentially all other Lot owners except Mrs Shaw) did not have regard to that sage advice. She and her parents (and to a lesser extent Mr Smith who has, it seems to me, uncritically nailed his colours to the Donnelly’s mast), blame Mrs Shaw for all their woes, and indeed for the delays, but their actions since the 5.6.15 strongly suggest (a) they wish to control the actions of the administrator and (b) they wish to proceed with the so called BOSS “contract”. The actions of Sarah Donnelly and Mr Wylie (at its direction) on the part of the Body Corporate, reflect a clear intention to achieve these ends. Remarkably, in light of her email of the 3rd November 2015, Miss Donnelly wrote to Mr Cassels on 18.12.2015 seeking advice on his progress.
- [33]Finally, and only after (I infer) Mr Cassels threatened to take action to enforce a special levy motion passed on 30.7.14, the Body Corporate (through an email dated 12 January 2016, signed as Chairperson by Miss Donnelly), the insurance monies (a total of $47,424.54) were transferred to Mr Cassels’ Solicitor’s Trust Account. The $25,000 requested was retained and the balance returned.
- [34]In his affidavit filed in these proceedings, Mr Ray Donnelly (irrelevantly) tells the story of the development of Donnelly House by he and Jennifer in 2004 – 2005. In April 2010, he and Jennifer sold Unit 6 to the Shaws for $1,050,000. He blames Mrs Shaw for his present financial situation and even appears to blame her for the breakdown of his marriage. Annexed to Mr Kleinschmidt’s affidavit and marked MJK 20 is an email from Mr Donnelly to Mr Cassels dated 22.3.16. He refers to contact from Mr Cassels (part of MJK 22) which suggests (unsurprisingly given my reasons for judgment) that the works the subject of the 2012 Adjudicators’ orders would have to be put out to tender. Mr Donnelly maintained that the BOSS contract was in force and that “you are wasting both time and money by getting different consultants to say what is already known”. He threatened legal proceedings against him, and suggested he put his insurer on notice.
- [35]I infer that this was the final straw for Mr Cassels and he informed Mr Kleinschmidt that he wished to resign. Mr Kleinschmidt then went about obtaining a replacement for Mr Cassels. On 23.3.16, the Body Corporate held an EGM which passed a number of motions, a number of which appear to ignore the Administrator’s powers in relation to the rectification works ordered by Adjudicator Toohey. Motion 3 is an example of this, where the Body Corporate Committee voted (with Mrs Shaw against) to enter into a $200,000 loan “for the purposes of rectification works”. Motion 16 dealt with the costs ordered by me on 5.6.15, which total $130,081.72. As Mr Kleinschmidt noted, in his letter to the Committee dated 24 March 2016, that motion did not relieve his client of payment of a share of her own costs, contrary to what I had said in paragraph [88] of my reasons. In a 9 page response (MJK 24), Mr Woodall strenuously denied any of the suggestions made by Mr Kleinschmidt. He argues at some length that the Shaws are liable for a one sixth contribution, and that my remarks are “obiter dicta”. This remarkable response is relevant to Order 4 sought in the present application. The proposal by the Body Corporate has softened somewhat to a proposal that the levy be in accordance with the motion but that the Body Corporate be liable to pay the levy directed to Mr & Mrs Shaw in respect of their own costs.
- [36]This letter is yet another demonstrating the deep and abiding animus directed by the Committee towards Mrs Shaw. The suggestion by Ms Skennar, at the start of this hearing, that the matter be referred to mediation, presumably on instructions of the Committee, was completely without merit.
- [37]On the 30 March 2016, Mr Bugden advised the Registrar of this Court that he would consent to being appointed under s 287 of the Act in place of Mr Cassels. His letter (MJK 26) satisfies me that he is exceptionally well qualified to take on this difficult role. The argument advanced now by the Body Corporate that his fees are too much; can be seen as hypocritical given the legal expenses incurred by the Body Corporate (see paragraph 10 of Document 42). Mr Bugden has no connection with any of the parties; and has the qualifications to meet what hitherto have been disruptive actions of the Committee to (at the very least) go behind the orders made by the Magistrate. In my view, given the obvious close link between BCP Strata and the Committee, it would be entirely inappropriate for anyone connected with that firm to be appointed administrator. The correspondence between Mr Cassels and Miss Donnelly and the letter from Noel Woodall & Associates (MJK 27 – MJK 28) are yet again evidence of the Committee’s intention not to proceed with the works as directed by the Administrator, as opposed to doing what it has always wanted, and that is to proceed with the BOSS “contract”.
- [38]On 12.4.16 Mr Cassels wrote to the District Court expressing his desire to resign as administrator, saying in part that this was:
“a.The Body Corporate delayed in raising and transferring sufficient funds to enable him to process the administration;
b.He has been threatened with litigation by individual members of the Body Corporate committee and the Body Corporate; and
c. The Body Corporate has usurped his appointment by directing contractors to complete works that fall within the ambit of the administrator’s appointment.”
The evidence before me supports his reasons.
- [39]The affidavit of Mrs Shaw filed 14.4.16, which is unchallenged, demonstrates further why the remaining members of the Committee are determined to cause her harm. At a time when Sarah Donnelly was Chair of the Committee (and was also acting as proxy for Mr Smith, at an EGM on 29.10.15) motions were passed (5:1) that she be issued a notice for breach of code of conduct (sic), and the Body Corporate make a formal submission to investigate Mrs Shaw for possibly committing a criminal offence “for purportedly attending on a principal or agent of BOSS Building Maintenance on or about 31 July 2015 and seeking that principal or agent disown or terminate the contract between the Body Corporate for Donnelly House and BOSS Building Maintenance by allegedly saying words to the principal or agent to the effect “I have spent so much money on this. I won’t stop until I get what I want. What will it take to get rid of that contract?”” Unsurprisingly, no evidence of such a statement has ever been produced before me. I comfortably infer, that despite the fact she was no longer a Lot owner, and was not present at the meeting, the author of this Motion was Jennifer Donnelly. This approach is redolent of her approach referred to briefly in [38] of my reasons. As in that instance, the motion reflects a complete lack of understanding of how the criminal justice system works. I infer from Mrs Donnelly’s evidence in cross-examination that a submission was sent to Crown Law, but that her employer was not engaged to do the submission. I infer she sent the submission. As I say, it shows an abysmal lack of understanding of the process. If a criminal offence is alleged to have been committed, the proper authority to complain to is the police. It again demonstrates the degree of animus all the Donnellys have towards Mrs Shaw.
- [40]Motion 6 approved the appointment of Noel Woodall & Associates (for whom Jennifer Donnelly then and still works) from a panel of 3, and approved fees of $500 per hour up to $10,000. This action shows the hypocrisy of the Body Corporate now complaining about Mr Bugden’s fees. As I have noted, I infer the submission was made, by Mrs Donnelly personally, and not by the Solicitors. In her oral evidence on the 22nd April 2016, she said on oath that she did not hate Judith Shaw. I do not believe her.
- [41]Motion 9 (also passed 5:1) was (inter alia) to authorise the Body Corporate to apply for a stay of my judgment of 5.6.15 “in a Court of competent jurisdiction” if Mrs Shaw “seeks to enforce (the costs order)”. This Motion bizarrely linked the “review” of my judgment to the investigation of Mrs Shaw approved in Motion 5.
- [42]Annexed to her affidavit (and to Mr Kleinschmidt’s) is evidence that on 1.3.16 Sarah Donnelly approved payment of an invoice from BOSS for 10% of the so called BOSS “contract” referred to in my reasons from an entity with a different ABN to the entity referred to in those reasons.
- [43]Mr Sinclair has made a number of written objections to parts of the affidavits relied upon by the Body Corporate. Again, because of the conclusions I have reached, I do not intend to rule on these objections many of which seem well founded.
- [44]Sarah Donnelly purchased her Lot in 2011 for $340,000 which she says was market value. She was not sure if she was served with the costs assessment on 24.4.15 but I am satisfied she was. The evidence clearly establishes that she is well versed in all aspects of the dispute with Mrs Shaw, and has taken steps (referred to above) that show at the very least a lack of commitment to co-operate with the Administrator and to act to frustrate the Magistrates’ orders. The same conclusions can be drawn in relation to Mr and Mrs Donnelly. The degree to which she is engaged is reflected generally in the evidence, but particularly in her evidence in cross-examination. Exhibit 1 is a lengthy submission sent by her in response to an Adjudication Application commenced by Mrs Shaw (I infer) to prevent BOSS from proceeding further with the rectification works without the consent of the Administrator. The submission was not read by her, she alleges, and was prepared by her mother, who by then was not a Lot owner and not a member of the Committee. The submission regurgitates old arguments and again shows the determination of the Body Corporate (and all the Donnellys and I infer Mr Smith) to proceed with the BOSS contract and to undermine the role of Mr Cassels. It also reveals the degree to which (as at April 2016) the mother was still intimately involved in the dispute and purporting to act on behalf of the Body Corporate. Attached to that submission is an account to the Body Corporate from her employer for legal fees from 26.2.16 to 1.4.16 for $15,062.15.
- [45]In my view, Mr Smith, a retired accountant who does not live in Donnelly House has simply nailed his (and his wife’s) flag to the Donnelly mast. He has been treasurer of the Committee, and at least since 5.6.15 has not participated in the payment of any BOSS invoice. He gave Mrs Donnelly his proxy to vote in favour of the motions at the EGM on 24.4.15. Despite being treasurer, he was unaware of large sums being paid (and authorised) to Noel Woodall & Associates in relation to legal fees incurred by the Body Corporate in relation to dealings with Mrs Shaw since orders were made. He candidly admitted voting with the daughter and Mr Donnelly and clearly did not turn his mind to the serious nature of some of the motions that he joined in passing.
- [46]Miss Donnelly describes herself as a legal assistant. Mrs Donnelly said is now doing her PLT so I infer, she has, or will soon have, a law degree. In any event, she presented as an intelligent person, with an in depth grasp on the details of the dispute at least from the point of view of her parents.
- [47]For the reasons set out above, I am deeply cynical of the evidence of Raymond and Sarah Donnelly and Eric Smith of a strong desire to “have the rectification works carried out in a timely manner so that they move on beyond the dispute with Mrs Shaw and get on with their lives”. I have taken into account evidence of their financial circumstances as set out in their affidavits. I have considered the matters set out in [27] of Ms Skennar’s latest written submissions.
- [48]In my view, the evidence of the remaining Lot owners and Mrs Donnelly does not establish prejudice to the extent that I would not make orders now sought in all the circumstances. All of them were aware of the nature of the dispute; all were served with the costs assessment and therefore on notice that they could be personally liable, and all have acted on the Committee to frustrate Mrs Shaw from having her costs order satisfied, and to frustrate the Administrator in carrying out his duties.
- [49]It follows that I will make the orders proposed by the applicant/respondent.
- [50]Mr Sinclair provided me with a draft order, however I invite the parties to submit a draft order to accord with these reasons. Necessarily the costs of this application should follow the event, and the 5 persons named in the draft order should be jointly and severally liable with the Body Corporate for Mrs Shaw’s costs of this application.