| 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 Industrial Relations Act 1996 (NSW) s 163 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Brettingham-Moore v Municipality of St Leonard’s (1969) 121 CLR 509 |
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
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.
The appellant articulated the following grounds of appeal against the decision of the Adjudicator delivered on 23 December 2014:
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…
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CaseChat Overview and Summary
The court had to determine whether the motions and resolutions adhered to the legal requirements set out in the BCCMA and its Standard Module. Specifically, the court examined whether Motion 10, which proposed building repair works based on an engineer's report, was appropriately framed, and whether the alternatives provided in Motion 11 were sufficiently connected to the primary proposal. The Adjudicator found that Motion 10 was problematic as it did not clearly differentiate between recommendations and suggestions, and that Motion 11 failed to provide several quotations as required by law.
Dr Forbes held that the deficiencies in the motions and resolutions were significant and directly impacted the parties involved. The court noted that the Adjudicator’s discretion, while broad, was not unconstrained and had to be exercised within the confines of the statute and applicable principles of equity. The court found that the Adjudicator had not erred in his legal assessment and that the appeal must fail on these grounds.
In conclusion, the appeal was dismissed, and the Adjudicator's decision was upheld. The court found that the motions and resolutions substantially failed to comply with the BCCMA and its Standard Module, and that the Adjudicator had correctly considered the legal principles applicable to the case.
Orders
Orders of the court
The appeal is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: DR J
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 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. 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. 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? Accordingly, this ground of appeal must fail.Proposed Order The appeal should be dismissed. R FORBES, MEMBER: This is an appeal against the decision of an Adjudicator under section 276 of the Body Corporate and Community Management Act 1997 (“BCCMA”). The appeal is available as of right, but limited to questions of law.[3][3]BCCMA s 289(2). 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 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 recommended[4] by Jeffrey Hills and Associates Pty Ltd (JHA) in their attached engineer [sic] report [dated 18 August 2012][4]Emphasis added. Eleven alternatives[5] follow, six of which are now material. Only two of them refer to the JHA report, specifically to suggestions[6] therein. [5]In principle, alternatives are permitted by s 72 of the BCCMA.[6]Emphasis added. The other four material alternatives to Motion Ten refer to quotations by businesses other than JHA, namely Opat and Higgins. 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.