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- Unreported Judgment
Clarke v Body Corporate for Bell Park QMC 12
MAGISTRATES COURTS OF QUEENSLAND
Clarke v Body Corporate for Bell Park  QMC 12
Body Corporate for Bell Park
Magistrate sitting as a Tribunal under BUGTA
Appeal from Referee under BUGTA
Body Corporate Referee under BUGTA
13 September 2019
The decision of the referee is affirmed and varied in part:
APPEAL – ONUS – BODY CORPORATE – NOTICE REQUIRED FOR MEETINGS – MEETINGS – MOTIONS
Building Units and Group Titles Act 1980 ss. 77,106,107
Bell Park  QBCCMCmr 329
Bell Park  QBCCMCmr 63
Fox v Percy (2003) 214 CLR 118 ; 197 ALR 201;  HCA 22
On the papers
On the papers
- The Appellant Mr Clarke lives in the UK. He owns a unit within the Bell Park Body Corporate (BC) which is part of the Royal Pines principal body corporate (PBC).
- For some time he has complained that he has not been served with notice of meetings in accordance with the time limits under the Building Units and Group Title Act 1980. A number of previous disputes between the parties are made part of the material for my consideration. I have previously dealt with a very similar appeal involving both parties.
- The Appellant say the Body Corporate has continued to ignore the service requirements and refused to include motions he submits, most recently for an AGM on 21 August 2018.
- The Appellant applied to a referee for orders on 28 August 2018. The referee found on 8 February 2019 that it was true that his motions were not put. However, given the meeting had taken place and his would have been the only vote against (Mr Clarke) and there were 10 all in favor of the various motions passed, the Referee would not set aside the EAGM and order another.
- The referee said the Appellant bore the onus to make out his allegations of late service and had not. His was the only ‘evidence’ on the subject. The BC simply did not deny or even address this key allegation of fact. The referee nonetheless ordered the motions to be put as there was concern Mr Clarke and other owners were not receiving fair treatment at the hands of the BC.
- The Appellant appealed on 26 February 2019.
NATURE OF THE APPEAL
- The BUGTA provides that the appeal is against the order [s.106] and that I can admit further evidence [s.107(1)]. The appeal therefore is not an appeal in the strict sense nor to be a hearing de novo but rather a rehearing on the evidence.
- In an appeal by way of rehearing, the court is required to assess and evaluate the evidence for itself, maintaining due regard for the advantage of the trial judge in having seen and heard all of the evidence. I note the referee decided the matter on the papers.
- The Appellant sought for the appeal to be heard on the papers. The Respondent did not appear at the time for the hearing of the appeal or file any material. I will proceed to determine the matter on the material before the referee and all material filed by either party before it or this tribunal.
- While both the referee and I have powers to investigate, the sheer volume of material means that is not conducive to an expeditious resolution of the issues. The parties have been given the opportunity to appear and argue their cases or provide further material or make oral submissions. Neither did.
THE ISSUES FOR DETERMINATION
- The arguments are limited to those set out in paragraph 7 of the original application. That is because this is an appeal from a previous decision, and it cannot become any wider by including issues not raised before the original decision maker.
- Paragraph 7 refers to the attached submissions which lists 7 “Orders Sought”. I will deal with each in turn. They are (in summary form):
- That any 2018 GM be set aside.
- A new AGM be scheduled.
- Motions and nominations submitted to the Secretary on 5 July 2018 be submitted to that meeting.
- A Scrutineer be appointed.
- The Secretary be removed.
- The Body Corporate Manager be referred for investigation.
- The BC confirms the 5 July 2018 motions are received and explains why they are not in the minutes
- The BC distributes the AGM minutes.
- The grounds of appeal were not stated clearly and succinctly in the notice of appeal. No heading setting out the grounds is contained within them. There are 2 ‘motions’.
- One seeks the appeal be heard on the papers. That is how I have proceeded. The other seeks costs and damages. This tribunal cannot order costs [s.107(1)(d)].
- In “2.2 Specific Responses to Determinations” is a 7 page paragraph by paragraph strident critique of the referee’s decision.
- The notice of appeal also refers to “2.3 Additional Considerations”. This is the only place within the 2000 or so pages before me where the Appellant has been succinct. It asks the tribunal to ensure motions and nominations submitted to EGMs and AGMs are properly dealt with according to law.
- The Appellant in “2.4 Relevant Dispute Applications” expressly asks the Tribunal to review 10 previous decisions and submissions relating to them. In my view, the referee was entitled to reject it as an abuse of process.
- Those previous referee’s decisions are now out of time for appeal. The Appellant cannot re-litigate those issues by the bringing of this appeal. What I have done is to read the decisions of those referees as they relate to the issues in contest here so I can understand the Appellant’s complaint that the late service issue is ongoing and in defiance of previous orders.
- The Appellant’s main two contentions appear as they have in previous matters to be that:
- the BC is repeatedly failing to serve documents on him in time for meetings as required under the Act; and
- the BC has not considered more than 100 motions he wants it to.
- Nowhere does he deal with how holding the meeting again would change things other than by ensuring his rights to have his motions and nominations considered.
- The referee dismissed the appeal because any vote would have still have been 10:1 if the Appellant were served in time.
- Hidden in the Appellant’s submission is the valid point. If
- he is not being served on time and
- he is not getting his motions put and
- there are only 10 owners turning up to the meeting,
there may be up to 20 others in the same position as him.
- No other owner has appealed or sought to be heard on this appeal.
- Most remarkably, the entire contribution of the BC to this material is a one page email. While the applicant must prove his case, his unchallenged assertions ought to succeed where the respondent BC simply does not even deny them and refuses to address them.
- If a BC files no material showing that Mr Clarke (and the others) was served on time, it ought not be surprised that a statement by him that it was late must be given weight.
- Ultimately, the only error I can detect on the record is the failure to accept the only evidence placed before the referee. They nonetheless reached the correct decision which I will only vary to make the obligations clearer.
- Any issues of cost or delay caused by the strident and insistence by the Appellant on his basic right to be notified on time and his frequent appeals are unlikely to end until he is unequivocally afforded his basic rights to proper notice.
- As long as the BC sticks its head in the sand and refuses to engage, it adds fuel to the fire and ensures further costs and delays as the Appellant seeks his rights. Doing so has placed a huge and unnecessary burden on the Commissioner’s office and this tribunal over a period of time. It should stop. It can only stop if the BC is required to deal with these issues transparently and fully.
- The Appellant’s unchallenged factual statements are the only material I have to act upon and I do so. I do not propose to investigate further and allow the BC any further chances to place material before me. I arranged a hearing and neither party appeared.
- I accept Mr Clarke where he says he wasn’t served on time. The fact the BC cannot or will not put forward material to suggest otherwise serves to give weight to his version.
- It would be trivial for them to have served him by courier or registered post. The cost would be far less than the cost of the ensuing appeal or complying with an order to reconvene another GM. They have not bothered to even suggest they did serve him on time.
- The meetings will not be set aside. They have passed other motions and the Appellant has not shown that these would change. I will order the BC to consider the motions at a specific meeting so there can be no doubt that the Appellants motions have been put and dealt with. The BC must hold a EGM within 3 months of delivery of these reasons.
- The BC is to table at the meeting and include in the minutes, written proof that the papers have been served on the Appellant and each and every other member of the BC. Service must be performed strictly in accordance with the Act and Module. A copy of the judgment is to be included in the notice of meeting.
- While a polite, well-mannered and well intentioned submissions of in electronic format would ease the burden on fellow lot holders, the Appellant says the BC cannot be trusted with that format (a format he insists in using in lodging his appeals). The Appellant cannot both insist others use paper while he uses email. It is gross hypocrisy to do so and I support the referee’s reasons at paragraphs  to  fully.
- Mr Clarke appeals in respect of the referee’s requirement for him to lodge the material electronically and says he will not and cannot be required to. He is mistaken.
- The power in s 77 is to be read widely. The power to rule in his favour is discretionary as is noted by the use of the word ‘may’.
- It is designed to end disputes in a fair way at reasonable cost. People who ask for its help are rightly thereby obliged to comply with the purpose of the Act and to quickly resolve their real disputes. No prejudice can flow to the Appellant to send a document he already has typed yet he refuses to do so.
- I consider any failure to supply the motions electronically can only evidence that there is no real interest in having them considered and it is rather in creating a nuisance. If Mr Clarke wants proof of service, he can post them on a USB stick.
- If the motions are not received by the Secretary in electronic form within 1 month of the delivery of these reasons, the meeting must still be held to ensure that all members are fully aware of these issues.
- The Chairperson or Committee must not rule any motion invalid unless they identify the reasons for the ruling and these are recorded in the minutes.
- This deals with grounds 1, 2, 3 and 7.
SCRUTINEER – GROUND 4
- The referee said at :
The applicant’s request for the appointment of an independent scrutineer has been dismissed on numerous previous occasions. It appears that he fails to comprehend the information that has been repeatedly provided to him about the role of scrutineers under the legislation, or his need to substantiate the legal basis for any orders sought. The continued pursuit of such orders without any legal or factual foundation is vexatious and an abuse of process.
- Mr Clarke submits that the referee has not read BUGTA. That seem unlikely to me especially on this point. The Appellant says BUGTA ‘requires the referee to appoint a scrutineer’. He does not nominate where in the Act this is.
- The only reference I can find is in Schedule 2. The referee is correct about the very limited role of scrutineers under the Act. While s.77 might allow a referee to require the chairperson to appoint one or even appoint one themselves, it is not contemplated by BUGTA that as a matter of routine that independent people supervise votes at all meetings. The orders I have made are designed to ensure that the minutes show how the Act was complied with. I have little doubt that if they do not, another application will follow.
REMOVAL AND / OR SANCTION OF SECRETARY – GROUND 5
- The Appellant seeks the removal or sanction of the BC Secretary.
- As was said in Bell Park  QBCCMCmr 329:
 As I stated in a previous order, I do not consider that I have any statutory authority to remove the secretary, even if there was some evidence of a significant failure of the secretary to fulfil their duties. Moreover, the secretary is not specifically named as a respondent in this application. …
- The secretary was not named in this application. The box relating to them and the BCM was not ticked on the form.
RERERAL FOR INVESTIGATION – GROUND 6
- The referee summed it up this way:
 The applicant seeks an order that the BCM be referred to an unspecified crime and misconduct authority for investigation. The dismissal of previous application to refer the BCM to Strata Community Australia was upheld on appeal by the Magistrates Court. Magistrate Hogan stated that “It is not the function of a referee to refer the manager to this company ‘for investigation’.” Clearly, the onus is on the applicant to make any complaint that he has directly with any relevant authority.
 Yet again, the applicant’s demand for an order to refer the BCM to some external body for investigation has been dismissed on many occasions. The applicant appears to have some difficulty in comprehending, or simply chooses to ignore, the information previously outlined regarding the jurisdiction of a referee and his own responsibility to substantiate his claims. The continued pursuit of such orders without legal or factual foundation is vexatious and an abuse of process. Continually resubmitting the same inappropriate orders will certainly not increase the likelihood of them being made.
- I can offer no improvement to those observations.
CONFIRMATION OF MOTIONS – GROUND 7
- The Appellant seeks order that the BC account for how his motions were processed and left out. He has rights to see the minutes and the books and to attend meetings. That is all he is entitled to. The orders I have set out will transparently ensure the motions are dealt with on this occasion. I see no purpose in working out why they were not put in the past. The BC only puts forward that it did not want to comply with the law. Mr Clarke wants the BCM changed and held to account for what he sees as the denial of his rights. The BC can form its own view on that.
DISTRIBUTION OF AGM MINUTES – GROUND 8
- The BC is required by law to distribute the minutes of the AGM. The Appellant has a copy. He provides no material to support his allegation that no-one other than the Committee received a copy. The other owners have not complained.
- I note that the Appellant has said in his notice of appeal “It’s pointless the Referee banging on about ‘nonsensical’ comments and the like and then not enforce fairness in the process. They only ensure the dispute applications will continue endlessly.”
- Such statements tend to indicate that there may be no genuine dispute about the rights and obligations of the parties under the Act, but a state of mind in the Appellant in which the appropriate response to any unfavorable outcome which is perceived as unfair is endless dispute applications.
- These comments (and others) were considered by me in deciding whether the whole of the appeal should be rejected as being an abuse of process. I have decided that point has not yet been reached but only because the BC failed to participate and prove otherwise, thereby leaving itself open to the allegation that it is indeed denying Mr Clarke his rights, again.
Magistrate/Tribunal under BUGTA
 Fox v Percy (2003) 214 CLR 118 ; 197 ALR 201;  HCA 22 at  per Gleeson CJ, Gummow and Kirby JJ.
- Published Case Name:
Stephen Clarke v Body Corporate for Bell Park
- Shortened Case Name:
Clarke v Body Corporate for Bell Park
 QMC 12
13 Sep 2019