Body Corporate for Highlands Vista v Taylor [2017] QCAT 298

CITATION: Body Corporate for Highlands Vista CTS 38691 v Taylor [2017] QCAT 298 PARTIES: Body Corporate for Highlands Vista CTS 38691 (Applicant) v David Anthony Taylor and Dianne Barbara Taylor (Respondents) APPLICATION NUMBER: NDR193-16 MATTER TYPE: Other civil dispute matters HEARING DATE: 8 June 2017 HEARD AT: Brisbane DECISION OF: A/Deputy President Brown DELIVERED ON: 30 June 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for miscellaneous matters filed 21 March 2017 is refused. 2. The matter is listed for a compulsory conference on a date to be advised. CATCHWORDS: REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – POWER TO SUE AND BE SUED – where respondents asserted body corporate lacked proper authorisation to commence proceedings – whether evidence of lack of authorisation – whether lack of authorisation can be cured by subsequent ratification Body Corporate and Community Management Act 1997 (Qld), s 104, s 312(1)(b) McEvoy & Anor v The Body Corporate for No 9 Port Douglas Road [2013] QCA 168 -- 1 of 6 -- 2 APPEARANCES: APPLICANT: Mr D Nel RESPONDENT: Mr D Taylor REASONS FOR DECISION [1] Body Corporate for Highlands Vista, a complex of four (4) lots, says that trees growing on the Taylors’ land are causing damage to its land or property on its land and are substantially and unreasonably interfering with the use and enjoyment of the land by the body corporate and the individual lot owners. [2] The body corporate filed two (2) applications for a tree dispute. The proceedings were subsequently consolidated by order of the Tribunal.1 The Taylors have applied to strike out the proceeding on the basis that the body corporate did not, before filing the application, pass a special resolution authorising the commencement of the proceeding. [3] The strike out application presents the following issues for determination: a) What are the requirements for the commencement of a proceeding by a body corporate? b) Did the body corporate comply with those requirements? c) If it did not, what are the consequences of non-compliance? The requirements under the Body Corporate and Community Management Act 1997 (Qld) (“BCCM Act”) and Standard Module2 for the commencement of a proceeding by a body corporate [4] The body corporate for a community title scheme may only start a proceeding if authorised in particular stated ways set out in the BCCM Act. Relevant to this application is s 312(1)(b) of the BCCM Act, which requires a special resolution by the body corporate to authorise the commencement of a proceeding. Did the body corporate comply with the requirements of the BCCM Act and Standard Module? [5] The body corporate says that it held a general meeting on 13 August 2016. It says that the body corporate resolved at the meeting to commence these proceedings.3 The body corporate relies upon the minutes of the meeting.4 1 Directions made 2 March 2017. 2 Body Corporate and Community Management (Standard Module) Regulation 2008 (Qld) 3 Body corporate submissions filed 9 March 2017. 4 Minutes of body corporate meeting held 13 August 2016. -- 2 of 6 -- 3 The minutes refer to two (2) agenda items, the second of which is “Nuisance trees”. It is appropriate to set out the relevant part of the minutes under the heading “Outcome”: Trees on Taylors property The Body Corporate has authorised Daniel to act as its representative to follow the procedures to take this matter before QCAT. It was also agreed to take both lots of trees to QCAT at the same time ie Trees abounding fence between flats and Highlands Vista and trees which have been planted along the back boundary of Highlands Vista. Body Corporate will be responsible for Application Fee and any other fees incurred in the running of this claim. This action has become necessary due to the fact that the Taylors have ignored our registered letter sent to their mailing address three months ago requesting them to have the trees cut back. This was followed with a conversation with Mrs Taylor in which she refused to discuss the matter. The current status is that the Body Corporate has applied for arbitration to try and resolve the matter. [6] The minutes note the attendance at the meeting of the four (4) lot owners in the scheme.5 [7] On their face, the minutes appear to make clear that the body corporate resolved, without dissent, to commence and pursue these proceedings. The Taylors say otherwise. [8] In their original submissions, the Taylors said that the body corporate had provided no evidence that the requisite special resolution pursuant to s 312 BCCM Act had been passed and as a result the proceeding was defective and should be dismissed or struck out.6 The Taylors’ position changed somewhat when the body corporate filed the minutes of the 13 August 2016 meeting.7 The Taylors refer to the minutes as merely ‘a signed sheet of paper purporting to demonstrate all lot owners being in agreement’.8 They say that the minutes fail to comply with the requirements of the Standard Module. [9] In further submissions,9 the Taylors say that the body corporate has provided no evidence of a special resolution having been passed and that the action of the body corporate in seeking to retrospectively authorise the commencement of the proceeding is an acknowledgement that the requisite authority had not been obtained before the proceedings were commenced.10 5 Applicant’s submissions filed 9 March 2017. 6 Respondents’ submissions filed 27 February 2017. 7 Respondents’ submissions filed 20 April 2017. 8 Ibid, [2]. 9 Respondents’ submissions filed 31 May 2017. 10 Ibid, [8]. -- 3 of 6 -- 4 [10] The action of the body corporate referred to by the Taylors is the convening of an extraordinary general meeting on 26 May 2017. The substantive motion at the meeting was the ratification of the passing of the 26 August 2016 motion relating to the commencement of the proceedings.11 The minutes of the meeting are before the Tribunal.12 The body corporate resolved unanimously to ratify the decision of 26 August 2016 to commence the proceedings. I do not understand the Taylors to attack the validity of this resolution or the process leading to the resolution. [11] In their most recent submissions, the Taylors say that the body corporate failed to properly authorise the commencement of the proceedings before filing the applications and that the body corporate has acted too late to remedy the deficiency.13 [12] Put in the most succinct way, the complaint made by the Taylors is that the body corporate could only authorise the commencement of the proceedings by special resolution, that a special resolution could only be passed at a general meeting of the body corporate and that there is no evidence that a general meeting of the body corporate was held on 13 August 2016. [13] A body corporate must hold and conduct meetings as prescribed by regulation.14 The regulation relevant to the present application is the Standard Module. [14] A motion is passed by special resolution only if: a) at least two-thirds of the votes cast are in favour of the motion; and b) the number of votes against the motion is not more than 25% of the total number of lots included in the scheme; and c) the total contribution schedule lot entitlements of the votes against the motion is not more than 25% of the total contribution schedule lot entitlements for all lots included in the scheme.15 [15] I am satisfied, on the evidence before me, that a meeting of the body corporate was held on 13 August 2016. I accept that the minutes of the body corporate meeting held 13 August 2016 are an accurate record of what was discussed and agreed to by the lot owners at the meeting. Those lot owners constituted the body corporate. [16] The minutes refer to the body corporate authorising one of the lot owners, Mr Nel, ‘to follow the procedures to take this matter before QCAT’. The minutes state that ‘it was also agreed to take both lots of trees to QCAT.’ The minutes therefore record the body corporate having agreed, and thus having resolved, to bring these proceedings. The minutes clearly refer to 11 Agenda for Extraordinary General Meeting, 3 May 2017. 12 Minutes for Extraordinary General Meeting, 26 May 2017. 13 Respondents’ submissions filed 31 May 2017, [17]. 14 BCCM Act, s 104. 15 BCCM Act, s 106(3). -- 4 of 6 -- 5 the body corporate acknowledging being responsible for the costs of bringing the proceedings. There is no record of there being any dissent to the resolution. The minutes are signed by all lot owners. [17] I accept that the minutes of the meeting reveal that the body corporate resolved unanimously to commence the proceedings for a tree dispute in the Tribunal. I accept that the lot owners understood that the body corporate would be responsible for the costs associated with pursuing the proceedings in the Tribunal. Whilst the Taylors say that there is no evidence that a general meeting was called and convened in strict compliance with the requirements of the BCCM Act, they provide no evidence to the contrary. I accept that a special resolution was passed as required by s 312 of the BCCM Act prior to the filing of the applications for a tree dispute authorising the commencement of the proceedings. [18] The complaint by the Taylors regarding the form of the minutes is not persuasive. The minutes are merely the record of the resolution, not the resolution itself and any technical irregularity in the minutes does not invalidate the resolution. [19] Even if there was an irregularity in the process adopted by the body corporate which had the effect of invalidating the resolution authorising the commencement of the proceedings, that irregularity has been remedied by the subsequent resolution to ratify the decision passed at the EGM on 26 May 2017. Contrary to the submission by the Taylors that any failure by the body corporate to validly authorise the commencement of proceedings cannot be subsequently validated, the Court of Appeal has made clear the correct position: It is well-established that the commencement of proceedings without proper authority may be cured by subsequent ratification. … In my view (although the point need not finally be resolved in order to determine whether leave should be granted), accepting the principle that the effect of ratification is to clothe the agent with authority for the purposes of the unauthorised act, the body corporate was able retrospectively to give the committee authority to mount the QCAT appeal. That conclusion would be in keeping with the notion that ratification is designed to “remedy an inconvenience”; it seems clear enough that the body corporate wished to appeal, and that its failure to do so was the product of simple oversight as to the level of authorisation required. The applicants would not be deprived of any right by that result.16 [20] As was the case in McEvoy, the Taylors are not deprived of any right as a result of the body corporate being permitted to remedy any lack of authorisation to commence the proceedings. 16 McEvoy & Anor v The Body Corporate for No 9 Port Douglas Road [2013] QCA 168, 334 [30], 337 [40] (“McEvoy”). -- 5 of 6 -- 6 Orders [21] For the reasons given, the application for miscellaneous matters filed 21 March 2017 should be dismissed. Directions will be made progressing the matter to a compulsory conference. -- 6 of 6 --