Finger v Dickie [2015] QCATA 113

CITATION: Finger v Dickie [2015] QCATA 113 PARTIES: Damien Finger (Appellant) v Raymond Dickie (First Respondent) Pamela Dickie (Second Respondent) APPLICATION NUMBER: APL028-15 MATTER TYPE: Appeals HEARING DATE: 27 July 2015 HEARD AT: Brisbane DECISION OF: Justice Carmody Dr J R Forbes, Member DELIVERED ON: 31 July 2015 DELIVERED AT: Brisbane ORDERS MADE: The appeal is dismissed. CATCHWORDS: APPEAL – BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997 – where motions and resolutions regarding maintenance of premises - where first motion with alternatives – whether motion framed as required by law – where second motion with alternatives – where several quotations to be obtained and served – where only one quotation served – whether exceptional reasons for absence of several quotations shown – where meeting of unit holders passed each motion – whether either or both consequent resolutions valid Body Corporate and Community Management Act 1997 ss 49, 73, 85, 91, 94, 270, 276, 289 Schedule 1A Body Corporate and Community Management Act (Standard Module) ss 72, 152, 159 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 32 -- 1 of 9 -- 2 Industrial Relations Act 1996 (NSW) s 163 Industrial Relations Act 1999 (Qld) s 320 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Body Corporate for Palm Springs Residences v J Patterson Holdings Pty Ltd [2008] QDC 300 Brettingham-Moore v Municipality of St Leonard’s (1969) 121 CLR 509 Carroll & Ors v Body Corporate for Palm Springs Residences [2013] QCATA 21 Mathieson, Re; ex parte Herman (No 1) [1961] NSWLR 1139 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex Parte Palme (2003) 216 CLR 212 Morat Pharmaceuticals Pty Ltd v Hoft Pty Ltd & Anor [2014] QCA 319 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Qantas Airways Ltd v Gubbins (1992) NSWLR 26 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Talga Ltd v MBC International Ltd (1976) 133 CLR 622 W (an infant), In Re [1971] AC 682 Wednesbury Corporation v Minister of Housing and Local Government (No 2) [1966] 2 QB 275 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] JUSTICE CARMODY: I have had the considerable advantage of reading Dr Forbes’ reasons for decision. The considerations expressed by Dr Forbes form the foundation of my own decision in this appeal. [2] The appellant articulated the following grounds of appeal against the decision of the Adjudicator delivered on 23 December 2014: -- 2 of 9 -- 3 a) the Adjudicator applied a “highly technical approach” in applying the Body Corporate and Community Management Act 1997 (Qld) (“BCCMA”) and ancillary regulations; b) the Adjudicator failed to give “consideration or sufficient consideration to the history and surrounding circumstances” of the motions which would “overcome any technical irregularities”; and c) the Adjudicator failed to give “consideration or proper consideration to equitable principles in reaching his decision”. [3] I gratefully adopt the explanation of Dr Forbes of the relevant motions and circumstances giving rise to this appeal. It is convenient to briefly summarise my reasons for dismissing the appeal. Undue “Technicality” [4] The appellant appears to submit that the decision of the primary Adjudicator should be set aside for “undue technicality”. [5] “Undue technicality” is not a ground of appeal known to law. The appellant failed to identify any error of principle or discretion warranting appellate interference with the decision of the Adjudicator. [6] That the Tribunal is charged with dispensing with matters in a manner that is “accessible, fair, just, economical, informal and quick”1 vests within the Tribunal no power to supersede, modify or disregard the natural and ordinary meaning of the BCCMA. [7] To decide otherwise would unacceptably encroach on the legislative functions of Parliament, infringing on the separation of powers and supremacy of regular law. Accordingly, this ground of appeal must fail. Consideration of “History and Surrounding Circumstances” [8] The appellant ostensibly submits that the Adjudicator failed to consider the “history and surrounding circumstances” relating to the motions in reaching his decision. The appellant asserts that had the circumstances been considered, they would have “overcome any technical irregularities”. [9] As a general rule, defective motions and resolutions contravening the BCCMA will not be upheld unless exceptional circumstances exist. [10] To establish “exceptional circumstances”, one must demonstrate at least: a) that the irregularity was trivial or frivolous, with no material or substantial impact on the substance or form of the motion or resolution; and 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b). -- 3 of 9 -- 4 b) that the irregularity caused no prejudice, disadvantage or disbenefit to the parties, or any relevant third party.2 [11] Even if such elements are established, if it can be made out, considering the text, context and purpose of the relevant provisions of the BCCMA, that the Legislature intended that instantiation of error to invalidate the relevant motions or resolutions, the Tribunal will nonetheless be enjoined to find that the motions or resolutions were void. [12] On these facts, the relevant motions and resolutions substantially failed to comply with the BCCMA and Standard Module. The deficiencies were not merely trivial or frivolous, but significant and directly affected the parties to these proceedings. Accordingly, this ground of appeal must fail. Consideration of Equitable Principles [13] The appellant asserts that the Adjudicator failed to consider “equitable principles” in reaching his decision. The appellant claims that the Adjudicator is bound to consider such principles, by reason of s 276 of the BCCMA, which prescribes that an adjudicator may make any orders which are “just and equitable” in the circumstances. [14] I respectfully adopt the reasons of Dr Forbes in interpreting the meaning of “just and equitable”. The concept denotes the vesting of the relevant decision-maker with a discretion. This discretion is not unprincipled or unconstrained; the Legislature properly contemplated that the discretion would be exercised within the confines of the statute, common law and any applicable principles of equity. [15] If the Legislature intended to confer the Adjudicator with the extraordinary power implied in the submissions of the appellant – such that the Adjudicator could idiosyncratically elect to dispense with statutory requirements – it would render much of the BCCMA otiose. For why would the Parliament prescribe that the violation of certain formal and substantive requirements in issuing a motion or resolution render it void, if the Parliament really intended that the Adjudicator be vested with ultimate responsibility to modify and dispense with the applicable law? [16] Accordingly, this ground of appeal must fail. Proposed Order [17] The appeal should be dismissed. [18] DR J R FORBES, MEMBER: This is an appeal against the decision of an Adjudicator under section 276 of the Body Corporate and Community 2 See, for example, Carroll and Ors v Body Corporate for Palm Springs Residences CTS 29467 [2013] QCATA 21. -- 4 of 9 -- 5 Management Act 1997 (“BCCMA”). The appeal is available as of right, but limited to questions of law.3 [19] The Adjudicator held that two motions (numbers 10 and 11) and consequent resolutions of the body corporate passed on 31 May 2014, were void for non-compliance with the BCCMA. Motion Ten [20] Motion Ten is detailed in paragraphs [5] and [6] of the Adjudicator’s reasons for decision (“the decision”). Alternatives aside, it proposes: That the body corporate carry out building repair works recommended4 by Jeffrey Hills and Associates Pty Ltd (JHA) in their attached engineer [sic] report [dated 18 August 2012] [21] Eleven alternatives5 follow, six of which are now material. Only two of them refer to the JHA report, specifically to suggestions6 therein. [22] The other four material alternatives to Motion Ten refer to quotations by businesses other than JHA, namely Opat and Higgins. [23] Section 72 of the BCCMA’s Standard Module provides that alternatives to a primary motion must deal with the same issue. In other words, the alternatives must be within the “four corners” of the basic proposal. The Adjudicator considered that possible adoption of JHA suggestions is not the same issue as adoption of JHA recommendations. And a fortiori, in the Adjudicator’s opinion, the alternatives concerning Opat and Higgins were unconnected, or insufficiently connected with the JHA recommendations. Even if the difference between recommendations and suggestions is set aside, the latter alternatives are clearly not cognate with the head motion. [24] The Adjudicator found a second defect in Motion 10, namely, that it called, incorrectly, for a special resolution.7 Prima facie, the recommended work is of the nature mentioned in section 159(1) and/or (2) of the Standard Module.8 A general meeting motion proposing maintenance work is always decided by ordinary resolution. ... There is no explanation in the AGM notice as to why Motion 10 required a special resolution ... [I]t is reasonable to question whether some or all proposed work is an improvement to common property rather than “building repair works” ... Motion Eleven 3 BCCMA s 289(2). 4 Emphasis added. 5 In principle, alternatives are permitted by s 72 of the BCCMA. 6 Emphasis added. 7 Decision paragraph [15]. 8 Which deal with maintenance. -- 5 of 9 -- 6 [25] Motion 11 is a proposal (with two alternatives): That the body corporate replace all windows within the building at the same time as any building repair works as per Motion 10 are carried out. [26] It is undisputed that the expenditure envisaged by Motion Eleven exceeded the limit for major spending for the scheme.9 That being so, the Standard Module required the proposal to be supported by at least two quotations, served with notice of meeting, unless for exceptional reasons, it is not practical to obtain 2 quotations.10 That would be the case, for instance, if goods or services with the necessary characteristics are obtainable from just one source.11 [27] There is no suggestion that the above example applies here, and the Adjudicator could discern no exceptional reason for non-compliance with the normal rule. That is a question of fact and degree, not a pure question of law. It cannot be said – indeed, it is not argued – that the Adjudicator’s view is so unreasonable as to constitute an error of law12: If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function.13 [28] Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.14 Several reasons for the Adjudicator’s conclusion appear at paragraph [26] of his decision. “Undue technicality”? May the above defects be overlooked? [29] The gravamen of the appeal is that the decision is highly technical,15 and that he admitted defects in the notice of meeting may, and should be disregarded. In support of that plea it is submitted that the Adjudicator failed to give consideration or sufficient consideration to the history and surrounding circumstances related to the motions and that he failed to give consideration or proper consideration to equitable principles.16 [30] The prescriptions of sections 72 and 152 of the Standard Module may fairly be described (non-pejoratively) as technical. They are also mandatory and 9 Decision paragraph [24]. 10 Standard Module s 152(7). 11 Example appended to s 152(7). 12 That is, according to the Wednesbury doctrine: Wednesbury Corporation v Minister of Housing and Local Government (No 2) [1966] 2 QB 275 at 302; Brettingham-Moore v Municipality of St Leonard’s (1969) 121 CLR 509 at 524. 13 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P. 14 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025. 15 Notice of appeal 21 January 2015 ground (a). Submissions of appellant dated 19 February 2015 paragraph 4. 16 Ibid grounds (b) and (c). Submissions of appellant paragraph 35. -- 6 of 9 -- 7 prescriptive, indicating the legislature intended non-compliance to result in invalidity.17 It is no error of law to give full effect to mandatory legislation. Indeed, in view of the history and surrounding circumstances relied on, it was, or should have been apparent to the framer of the notice that some of the proposed business might be controversial. There is no evidence that the notice of meeting could not quite easily have been drawn to meet the strict requirements of the statute. [31] In support of his submissions of undue strictness, and the complaint of insufficient attention to events extraneous to the meeting, the appellant relies on dicta in Carroll & Ors v Body Corporate for Palm Springs Residences18 and Body Corporate for Palm Springs Residences v J Patterson Holdings Pty Ltd.19 With due respect, the dicta in Carroll are taken out of context, and those of McGill DCJ in Patterson are misconstrued. [32] Carroll is distinguishable on the facts. In that case the appellants sought to invalidate a resolution citing several trivial or insubstantial complaints. In the latter category, a complaint that the notice of meeting was not duly served was patently incorrect. Another plea was that a resolution to allow an owner to keep a domestic animal was insufficiently precise. The only perceptible defect – deemed a slight irregularity - caused no prejudice to the appellants, and they made no claim that it did.20 In those circumstances, it was held that the committee had taken reasonable steps to comply with the Act21, that the appellants’ case was frivolous, vexatious or without substance22, and a specific legislative discretion was exercised in the respondent’s favour. [33] In the present case there are several substantial departures from the requirements of section 72 of the Act, and a clear failure to comply with subsection 152(2) of the Standard Module. [34] As the Adjudicator found, and was entitled to find, the appellants did not demonstrate any exceptional reason for non-compliance with subsection 152(2). [35] While not denying that Motions 10 and 11 were strictly non-compliant with the legislation, the appellants seek to avoid any adverse consequences by complaining that the Adjudicator failed to give proper consideration to equitable principles.23 However, no relevant equitable principle is identified, and equity (in the technical sense) is confused with the phrase “just and equitable”, which appears in section 27624 and elsewhere in the Act. The 17 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 389- 391; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 216 CLR 212 at [55] per McHugh J. 18 [2013] QCATA 21 at [22]. 19 [2008] QDC 300 at [98]. 20 Carroll & Ors, above at [20]. 21 BCCMA s 94(2); Ibid Schedule 1A s 4. 22 BCCMA s 270(1)(c). 23 Notice of Appeal, ground (c);Submissions 19 February 2015 paragraph 1(c). 24 BCCMA s 276(1): “The Adjudicator ... may make an order that is just and equitable in the circumstances ...”. See also ss 49, 73, 85, 91. -- 7 of 9 -- 8 latter phrase is sometimes more expansively expressed as equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.25 [36] The rules of equity are a body of judge-made law, evolved over many years, to complement or ameliorate the common law. The expression just and equitable, on the other hand, is not a term of legal art.26 Depending on the context in which it appears, it may or may not mean that the decision maker may decide according to general perceptions of fairness.27 In the very passage in Body Corporate for Palm Springs Residences v J Patterson Holdings Pty Ltd28 upon which the appellants rely, McGill DCJ distinguishes the two concepts, and holds that, so far as the BCCMA is concerned, an Adjudicator is not free to impose a subjective view of fairness, but must decide in accordance with legislation, common law or equitable principles, as the case may be29. More often than not, that is the position; a similar view is taken in Talga Ltd v MBC International Ltd30, Re Mathieson; ex parte Herman (No 1)31, and the decision of a former President of this Tribunal in Dindas v Body Corporate for One Park Road.32 In following this line of authority the Adjudicator did not err.33 [37] The provisions of the BCCMA governing Motions 10 and 11 are mandatory, and as the Court of Appeal observed in Morat Pharmaceuticals Pty Ltd v Hoft Pty Ltd & Anor34: Proprietors of lots are entitled to expect that materials provided to them by the body corporate in respect of matters to be voted on at a body corporate meeting are accurate and not misleading in any way ... That is the course the Appeal Tribunal took, implicitly recognising the importance of insistence on scrupulous fairness and probity in the conduct of body corporate affairs. [38] Those dicta are no warrant for dispensing “palm tree justice” in this case, contrary to Patterson, Talga, Mathieson and Dindas, above. Any perceived tyranny of a minority35 might be met by convening another meeting, after service of proper documentation. [39] I discern no error of law in the decision in question. Accordingly, the appeal should be dismissed. 25 See for example Industrial Relations Act 1999 (Qld) s 320(3); Industrial Relations Act 1996 (NSW) s 163(1)(c). 26 Qantas Airways Ltd v Gubbins (1992) NSWLR 26 at 30. 27 Ibid. 28 [2008] QDC 300 at [98]. 29 Using the word “law” to comprehend statute, common law, and rules of equity, as the case may be. 30 (1976) 133 CLR 622 at 634. 31 [1961] NSWLR 1139 at 1142. 32 [2006] QDC 302 at [24], [35] per Wilson DCJ (as he then was). 33 Decision paragraph [19]: “While having some discretion, an adjudicator’s power under section 276(1) of the Act is not unrestrained. It is necessary to show some proper basis in law or equity.” 34 [2014] QCA 319 at [37]-[38] per Muir JA, with whom Holmes and McMeekin JJA agreed. 35 Appellant’s submissions 19 February 2015 paragraph 33. -- 8 of 9 -- 9 ORDER The appeal is dismissed. -- 9 of 9 --