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Body Corporate Case Update: North Point Case

25 September 2013

The Facts

This case related to the North Point community titles scheme.  The Queensland Police Credit Union owns the ground and first floor levels as well as 35 out of 76 lots.  Two unit owners in the scheme brought an application setting aside motions carried at an extraordinary general meeting regarding air-conditioning works.  Other issues also arose out of the dispute.

A unanimous decision was made at the annual general meeting of 19 April 2011 to discontinue the current air-conditioning system and install individual units which would be transferred to each lot owner.  The proposal for the system upgrade changed and an extraordinary general meeting was called to consider necessary motions, four of which were listed as requiring resolutions without dissent.  The initial dispute claimed that the applicant's valid postal vote against the motions had failed to be counted and therefore the resolution should be set aside as invalid.

Further claims were later raised by the applicants against the Queensland Police Credit Union including:

  • to pay for all the costs of installing the new air-conditioning on the ground and first levels;
  • to account to the body corporate for all monies received by it in respect of licensing of its exclusive use car parks in the scheme;
  • to account to the body corporate for rental and compensation for the ATM it had installed in the ground floor lobby; and
  • to execute a lease in respect of the ATM which would include maintenance and make good obligations.

The Decision

The adjudicator had made findings against the applicants, who then appealed to QCAT.  On appeal, QCAT dismissed the applicants' contentions as follows:

  • QCAT's appeal powers are limited to errors of law only. The adjudicator was not satisfied with the evidence presented by the applicant to demonstrate that its voting paper had in fact been sent and the adjudicator was entitled to act upon that accordingly;
  • QCAT did not accept that the body corporate did not maintain a mailbox as required under the Commercial Module (that is, the body corporate had made suitable arrangements for the receipt of mail by its body corporate manager);
  • QCAT did not consider that the adjudicator had erred in finding that the motions were not confusing or misleading;
  • As the resolutions were found to be valid, no claim could be brought against the Queensland Police Credit Union to pay for the upgrade works take in the ground and first levels;
  • There was no limitation on a lot owner's right to retain rents and profits from renting out car parks granted under the exclusive use by-law. The by-laws contemplated use by the lot owner's "licensees";
  • QCAT did raise the possibility that the installation of the ATM was not validly authorised, as it had been approved by a resolution passed outside a committee meeting. Arguably, this amounted to a disposition of common property and such a decision should have been made by a resolution without dissent of the body corporate at general meeting. However, the orders sought were that the Queensland Police Credit Union be required to account for the rents and sign a lease, (rather than for an order that the committee decision be set aside). QCAT was therefore not prepared to make the orders against the Queensland Police Credit Union as sought by the applicants, although it left open the possibility of orders being made against the body corporate by way of a separate dispute.

 Citation : Ballada Pty Ltd v North Point Brisbane & Anor [2013] QCATA 184

 

For more information please contact:

Rebecca Castley | Partner
Mullins Lawyers
t +61 7 3224 0211
f +61 7 3224 0333
rcastley@mullinslaw.com.au

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