Black v Barard Management Pty Ltd The Body Corporate of Federation Row [2013] QCATA 326

CITATION: Black v Barard Management Pty Ltd The Body Corporate of Federation Row [2013] QCATA 326 PARTIES: Mrs Bernadette Marion Black (Applicant) v Barard Management Pty Ltd The Body Corporate of Federation Row CTS 20496 (Respondent) APPLICATION NUMBER: APL211-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Hon K Cullinane AM QC, Judicial Member DELIVERED ON: 28 November 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The Appeal is dismissed. CATCHWORDS: APPEAL – BODY CORPORATE – where the Applicant was aggrieved by a decision of an Adjudicator that the resolution at an annual general meeting of the Respondent body corporate was valid, and the election of a body corporate committee was invalid – where the Applicant seeks to appeal against that decision – where s 289(2) of the Body Corporate and Community Management Act 1997 (Qld) provides that the Applicant may only appeal to the Appeal Tribunal on a question of law – whether appeal should be granted Body Corporate and Community Management Act 1997 (Qld) ss 58, 89, 289(2) Collector of Customs (Tasmania) v Davis (1989) 23 FCR 378, cited -- 1 of 3 -- 2 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. REASONS FOR DECISION [1] This is an appeal pursuant to s 289 of the Body Corporate and Community Management Act 1997 (the Act) against the decision of an Adjudicator declaring that a resolution at the 2012 Annual General Meeting of the Body Corporate for Federation Row CTS 20496 appointing the respondent Barard Management Pty Ltd as body corporate manager under Part 5 of the Standard Module Regulation was valid, and that the purported election of a Body Corporate Committee at the annual general meeting was invalid. [2] Section 289(2) limits the right of appeal to a question of law. [3] The relevant factual background is as follows. [4] As the Adjudicator noted there had been considerable dissatisfaction with body corporate committees and the way in which the meetings had been conducted with the result that the majority of owners did not want committees or to attend meetings. [5] This is the background to the annual general meeting of the body corporate here. [6] Part 5 of the Standard Module Regulation provides for the appointment of a body corporate manager to carry out the functions of a committee. Section 58 of the Module imposes specific requirements to be satisfied in such an appointment. [7] The following motion (motion 19) was proposed at the annual general meeting: That if following the elections the body corporate is unable to choose a committee comprising of three owners and fill the executive positions, then pursuant to the Body Corporate and Community Management Act 1997 Barard Management Pty Ltd be appointed the Governing Body Corporate Manager under Part 5 of the Body Corporate and Community Management (Standard Module) to carry out the functions of the Committee and executive members from the date of this meeting until the next Annual General Meeting… [8] The motion then went on the detail the remuneration to be paid and certain other matters. [9] The Adjudicator outlines what happened at the meeting. [10] The motion was passed but the returning officer appointed to conduct the secret ballot on the motion incorrectly recorded the result and handed the result to the respondent’s officer. Instead of showing that the motion had been passed it recorded that the motion had been lost. -- 2 of 3 -- 3 [11] In consequence the meeting proceeded to appoint a committee. [12] Subsequently when the error was discovered the nominations of the persons declared elected to the committee were withdrawn. [13] Before the Adjudicator the Appellant in her submissions largely was concerned with the financial consequences of the appointment of the Respondent Barard Management Pty Ltd to her. [14] The Adjudicator concluded that upon the proper analysis of what had occurred there had been 4 votes in favour and one against motion 19 (two purported votes by proxy had to be ignored) and thus the requirements for a special resolution under section 106 of the Act had been satisfied. [15] The Adjudicator went on to declare the purported election of a committee invalid. [16] On the appeal the Appellant has raised a number of matters not previously raised by her. It is alleged that there were a number of breaches of s 58 of the Act which would invalidate the appointment of the body corporate manager. In addition breaches of s 89 of the Act are relied upon. [17] In my view the Appellant seeks to raise matters which do not raise questions of law. The matters raised concern the application of the facts of the case to the provisions of the Act which are expressed in ordinary terms used in their ordinary meaning. [18] As Beaument J in Collector of Customs (Tasmania) v Davis (1989) 23 FCR 378 said at 382: In the present case it is not suggested that any of the material terms of the legislation have any special meaning. It follows their ordinary meaning should be treated as a question of fact. [19] As these matters do not raise questions of law no right of appeal arises. [20] The Adjudicator’s conclusions on the issues which fell for resolution were correct. [21] The appeal is dismissed. -- 3 of 3 --