Scholer Pty Ltd as Trustee v Gowland

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Scholer Pty Ltd as Trustee v Gowland and Anor [2021] QCATA 119

PARTIES:

SCHOLER PTY LTD AS TRUSTEE FOR THE SCHOLER TRUST

(applicant/appellant)

v

ROBYN GOWLAND          

(respondent)

v

THE BODY CORPORATE FOR SPINNAKER MAIN BEACH CTS 9565
(second respondent)

APPLICATION NO/S:

APL166-20

MATTER TYPE:

Appeals

DELIVERED ON:

27 September 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

The Adjudicator’s order of 11 May 2020 is set aside.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHERE APPEAL LIES – ERROR OF LAW – where appeal from Adjudicator’s decision only on a question of law –– where the lot owners passed motion 14 to adopt a new Caretaker’s at an Annual General Meeting – where application brought to challenge the validity of the motion – where the adjudicator declared a vote taken at the Annual General Meeting to adopt a new Caretaker’s agreement void – where a finding that the explanatory statement was misleading in not providing further information – where not all lot owners given notice of the meeting within 21 days – whether lot owners given adequate notice in any event – whether the Committee was required to provide further information to lot owners in the explanatory statement concerning motion 14 – whether the absence of the information was misleading – the extent to which the Committee is required to provide information in the explanatory statement – whether there was a reasonable amount of information in the explanatory statement.

Body Corporate and Community Titles Act 2007 (Qld), s 289, s 296 and s 100;

Carroll & Ors v Body Corporate for Palm Springs Residence CTS 29467 [2013] QCAT 21;

Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482, Appeal 4080 of 2000, District Court 29 May 2001 (unreported).
Morat Pharmaceuticals Pty Ltd v Hoft Pty Ltd & Anor [2014] QCA 319
Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300
Admiralty Towers [2014] QBCCMC mar 317.
Sun City Resort [2016] QBCCMC mar 436.

Contessa Condominiums [2018] QBCCMC mar 547.

APPEARANCES & REPRESENTATION:

Applicant:

Mr Strangman, counsel instructed by Small Myers Hughes

First Respondent:

Second Respondent:

In person

Mr Kyle, solicitor ABKJ Lawyers

REASONS FOR DECISION

1. Spinnaker Main Beach is a large high rise apartment building on Main Beach at Surfers Paradise, comprising 119 lots and forms the community title scheme 9326 (“the Scheme”).  It is registered as Building Units Plan 5576.

2. Scholer Pty Ltd (“Scholer”) has been the caretaking contractor since 2015 under the management agreement first entered into between the Body Corporate and the then contractor in 2006.

3. In or about 2019 Scholer sought to negotiate a new agreement with the Body Corporate. It entered into discussions with the then Committee about the content of the new agreement. An agreement was finalised which met with the approval of the Committee, but it still had to be put…