Cairns Central Plaza Pty Ltd v Lloyd

CITATION: Cairns Central Plaza Pty Ltd v Lloyd and Anor [2013] QCATA 26

PARTIES:	Cairns Central Plaza Pty Ltd (Applicant/Appellant)
v
Wayne Lloyd (First Respondent) Body Corporate for Cairns Central Plaza Apartments CTS 40022 (Second Respondent)

APPLICATION NUMBER: APL339-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Hon James Thomas AM QC, Judicial Member

DELIVERED ON: 11 February 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.     Appeal allowed.

2.     Adjudicator’s decision of 23 August 2012 set aside.

3.     Matter returned to the Adjudicator for further determination.

CATCHWORDS:

Validity of body corporate resolution – service contract dispute – whether resolutions to increase remuneration valid – need for proof of effective power of attorney and assignment thereof to proxy-holder’s principal - whether resolutions valid as a review under s 130 of the Body Corporate and Community Management Act 1997 – application to invalidate resolutions not brought for more than two years – whether adjudicator erred in waiving three months time limit – relevant considerations in exercise of discretion – whether prejudice to service provider capable of removal – powers of adjudicator under the Body Corporate and Community Management Act 1997 – power to make orders conditional upon giving of an undertaking – enforceability of such undertakings

Body Corporate and Community Management Act 1997, ss 130, 135, 228, 229, 242, 276, 284, 287, 288, Schedule 5
Queensland Civil and Administrative Tribunal Act 1999, ss 32, 146, 147

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 (‘QCAT Act’).

REASONS FOR DECISION

1. This is an appeal against an Adjudicator’s decision in a dispute concerning the validity of motions which substantially increased the remuneration of the appellant service provider. They were said to have been passed at a body corporate meeting on 23 March 2010.

2. The original parties to the dispute were Mr Lloyd (the owner of lot 1106) and the Body Corporate. However by an amendment made on 23 April 2012 the present appellant, Cairns Central Plaza Pty Ltd, was added to the proceedings as a ‘person affected by the outcome sought’. Correspondence ensued between the Adjudicator and that company whose director, Ms Alison Knell, made substantial submissions to the Adjudicator on 8 June 2012.

3. In this appeal, Cairns Central Plaza Pty Ltd will be referred to as ‘the Appellant’, and the respondents will be referred to, respectively, as ‘Mr Lloyd’ and ‘the Body Corporate’.

4. The decision of the Adjudicator, given on 23 August 2012, was that the resolutions in question are and always were void.

5. Both respondents support the decision of the Adjudicator. The submissions of all 12 lot owners who chose to make submissions to the Adjudicator also support that outcome.

Jurisdiction

1. The Adjudicator’s jurisdiction arose under ss 228 and 229 of the Body Corporate and Community Management Act 1997 (‘the BCCM Act’). The function of the Adjudicator is essentially inquisitorial. The Adjudicator is not bound…