Walden v Body Corporate for Broadwater Tower
[2012] QCATA 270
•13 December 2012
| CITATION: | Walden v Body Corporate for Broadwater Tower [2012] QCATA 270 |
| PARTIES: | Jonathan Nigel Walden (Appellant) |
| v | |
| Body Corporate for Broadwater Tower CTS 9041 (Respondent) |
| APPLICATION NUMBER: | APL330-11 / APL362-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ken Barlow SC, Member Patricia Hanly, Member |
| DELIVERED ON: | 13 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal in APL330-11 be dismissed. 2. The appeal in APL362-11 be dismissed. |
| CATCHWORDS: | Body Corporate and Community Management – obligations of committee – whether committee followed proper meeting procedure in making decisions – whether committee kept adequate minutes of meetings Body Corporate and Community Management – adjudicator’s investigation – extent of obligation to investigate matter – whether failed properly to investigate – whether application properly dismissed as frivolous, vexatious, misconceived or lacking in substance Body Corporate and Community Management (Standard Module) Regulation 2008, ss 53, 54, 55 Body Corporate and Community Management Act 1997, ss 269, 270 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
INTRODUCTION
Ken Barlow SC, Member
Mr Walden is the owner of a lot in the Community Titles Scheme for which the respondent is the body corporate.
This is the hearing, together, of two appeals filed by Mr Walden. The first in time to have been filed was from a decision of an adjudicator in adjudication application number 617-2011.[1] That decision was made on 26 July 2011. That appeal has been allocated number 330-11 in this Tribunal.
[1] Broadwater Tower [2011] QBCCMCmr 313.
The second appeal to be filed, which has been allocated number 362-11 in this Tribunal, is from a later decision of the same adjudicator, made on 16 August 2011 in adjudication application number 376-2011.[2]
[2] Broadwater Tower [2011] QBCCMCmr 347.
Appeal No 330-11 was set down for an oral hearing on 12 May 2012. It became clear at that hearing that Mr Walden believed that both matters were being dealt with and the body corporate’s representatives did not have the same understanding. Consequently, the Tribunal made directions for the filing of fresh submissions by each party in relation to each appeal and ordered that each appeal be determined on the papers.
Subsequently, Mr Walden has filed fresh submissions in respect of each appeal. In response, the body corporate has not filed submissions, but instead filed an application for miscellaneous matters seeking further directions. It contended that the submissions filed by Mr Walden did not comply with the directions made on 12 May, did not adequately identify the grounds of the appeals and sought to re-argue the facts, or to introduce new facts. The Tribunal subsequently directed that that application also be determined on the papers.
Although the body corporate has not filed submissions directly in response to Mr Walden’s fresh submissions, it is my view that the matter can be determined now, without the need for further directions or for any further hearing or submissions by the body corporate. Accordingly, the body corporate’s application for further directions ought be dismissed.
At the same time, the body corporate filed an application for leave to be represented by solicitors. Again, having regard to my views about the determination of the appeals generally, it is really unnecessary for the body corporate to be represented by solicitors in the appeals and I do not propose to deal with that application.
Each of the applications to the Commissioner and each of these appeals concerns the conduct of the committee of the body corporate in 2010 and 2011, but particularly 2010. To a large extent, it might be thought that the matters the subject of Mr Walden’s complaint have been overtaken by time, but nevertheless it is necessary to deal with them.
APPEAL NUMBER 330-11
In his application for adjudication, Mr Walden sought the following orders:
a) that the committee recall tenders for repair work for the podium waterproofing adjacent to units 1, 2 and 3 and such work be overseen by a qualified engineer, who be responsible for calling and letting of all tenders and contracts for the work;
b) that Mr Bill Edwards be permitted to serve his appropriate term as director of Bayview Harbour Yacht Squadron Pty Ltd and that the withdrawal of his nomination by the body corporate committee be declared null and void;
c) that the 2011-2012 sinking fund budget and the sinking fund budget for 2011-2025 be drawn up by a suitably qualified engineer or maintenance planner to be appointed by the Commissioner;
d) that, on an interim basis, the then current committee be relieved of their positions and an administrator be appointed to the body corporate until the annual general meeting in September 2011.
The adjudicator dismissed the application, without seeking submissions from all unit holders or investigating the matter beyond receiving submissions from each of Mr Walden and the body corporate committee. Her decision in this respect was made pursuant to s 270 of the Body Corporate and Community Management Act 1997. Relevantly, that section provides to the effect that an adjudicator may dismiss an application if it appears to the adjudicator that the application is frivolous, vexatious, misconceived or without substance; and the adjudicator’s power to make an order under that section may be exercised without investigating the detail of the application or before an investigation has ended. For completeness, I should add (as it is relevant to the second appeal before the Tribunal) that subsection 270(3) provides to the effect that, if the adjudicator makes an order dismissing an application on the basis that it is frivolous, vexatious, misconceived or without substance, the adjudicator may order costs against the applicant of no more than $2,000.
The adjudicator determined that the application was frivolous, vexatious, misconceived or without substance, having considered each of the orders sought by Mr Walden. Mr Walden appeals on the basis that the adjudicator made an error of law in considering each issue and in making her final determination. Of course, an appeal from an adjudicator’s decision may only be brought on a question of law: s 289(2) of the Act.
In the same manner as the adjudicator did, I propose to consider each of the orders which were sought by Mr Walden, the adjudicator’s reasoning and decision in respect of each of them and the grounds of appeal in respect of each of them and then to consider the question of whether the adjudicator erred in concluding that the application was vexatious, etc.
Podium waterproofing
Mr Walden objected to a decision that had been taken by the committee to appoint certain persons to project manage the waterproofing of the podium near units 1, 2 and 3. Mr Walden did not oppose the need for the waterproofing work to be done, but he opposed the manner in which it was proposed to be done, how it was proposed that it be authorised at an extraordinary general meeting and the persons who were appointed as the project managers.
The adjudicator noted that, although Mr Walden would have handled the project differently and disagreed with the way it had been handled by the committee, he had not identified any relevant legislation that had been breached.
Mr Walden has not identified any particular error of law made by the adjudicator in forming that view and dismissing that part of Mr Walden’s complaint. Nor can I see, on the reasoning of the adjudicator, any identifiable error of law. This part of Mr Walden’s appeal does not therefore identify any reason for allowing the appeal.
Representation on board of yacht squadron
This scheme is one of 4 that together constitute what is apparently known as the Bayview Harbour Complex. That complex also includes a private marina which is managed by a company called the Bayview Harbour Yacht Squadron Pty Ltd (BHYS). Its articles of association provide that a member (that is, a body corporate for each of the 4 towers in the complex) may at any time remove from office any person nominated by it. The body corporate’s by-laws also provide that the committee must ensure that appropriate representatives be appointed as directors of BHYS. By‑law 33.1 specifically empowers the committee to choose the appropriate representatives to be appointed.
Mr Bill Edwards had been the body corporate’s nominated director to the board of BHYS for some time and, in May 2011, he was the chairman of BHYS. At a committee meeting on 18 May 2011, it was resolved that the committee withdraw his nomination and instead nominate another person. Mr Walden contended that that was a spiteful resolution that was not in the best interests of the body corporate. The adjudicator could see no legal basis for challenging the decision.
As the adjudicator noted, this was not a restricted issue for the committee. The committee was entitled to change its nominee at any time. Of course, it must act reasonably in making a decision, but its minutes reveal that the specified reason was that it was considered preferable for current voting members of the committee to be the body corporate’s nominees. That cannot be said to be unreasonable. Mr Edwards was not then a member of the committee of the body corporate and the nominee appointed was.
I agree with the adjudicator that there was no legal basis for challenging the committee’s decision. No error of law has been identified, either by Mr Walden or by me in reading the reasons. There is therefore no basis for this ground of Mr Walden’s appeal.
Sinking fund information
Mr Walden expressed concerns about the adequacy of the sinking fund. The budget for the sinking fund had been drawn up by a professional body corporate manager who had managed the affairs of this body corporate for many years. Mr Walden contended that the budget was inadequate and it should be prepared by an engineer or maintenance planner.
The adjudicator said that Mr Walden had not identified any specific problems with the budget, nor (more particularly) had he identified any breach of the Act in the preparation of the sinking fund budget.
In his submissions in this appeal, Mr Walden contends that the adjudicator was misled by evidence in submissions made on behalf of the body corporate.
However, the adjudicator must make the decision on the basis of the evidence before her and Mr Walden has not identified, nor can I see, any error of law made by the adjudicator in forming her view.
In the circumstances, this ground of Mr Walden’s appeal is also without basis.
Appointment of administrator
This part of Mr Walden’s application was only on an interim basis, pending the annual general meeting of the body corporate, which was to be held in September 2011. In the circumstances, there is no need to review the decision, although I would comment that I can see no basis on which the adjudicator’s refusal to appoint an interim administrator constituted or involved an error of law.
Vexatious application
The adjudicator concluded that Mr Walden’s application was frivolous, misconceived and without substance and therefore it was unnecessary for her to investigate the facts further than she had already done. She had been provided with many pages of submissions and supporting material by Mr Walden and also by the committee of the body corporate.
Having regard to the adjudicator’s conclusions on each of the grounds of Mr Walden’s application, I see no error in her decision not to investigate further on the basis that the application was, at the least, misconceived or without substance. The adjudicator referred to her power under s 270(2) and she exercised it having formed the view that it fell within s 270(1)(c). I consider that it was open to her on the material before her to form that view. She made no error of law in doing so, nor does Mr Walden identify any such error.
Conclusion in APL330-11
In the circumstances, there is no basis for Mr Walden’s appeal and it should be dismissed.
APPEAL NUMBER 362-11
In the second application to the adjudicator, Mr Walden sought orders about 5 issues:
a) the adequacy of minutes of committee meetings in November 2010 and February 2011;
b) that the committee ensure that all relevant safety regulations are adhered to with respect to the installation of anchor bolts;
c) that the committee engage relevant experts with respect to remedial works and the use of electricity and electrical fittings in the garage areas;
d) whether the committee properly allowed discounts or waived penalties for late payment of body corporate levies and other debts to the body corporate; and
e) the adherence of committee members to the code of conduct and their behaviour towards the previous chairperson.
Again, I shall deal with each of these issues separately, as did the adjudicator. In addition, there is an issue in this appeal of whether the adjudicator was correct in dismissing Mr Walden’s application on the basis that it was frivolous, vexatious, misconceived or without substance, and in ordering that he pay the body corporate costs totalling $1,597.08 pursuant to s 270(3).
Minutes of committee meetings
It appears that an informal meeting of the committee was held on 20 October 2010. It is not apparent to me why it was an informal meeting, but perhaps relevant notices had not been provided in the relevant period of time. In any event, at that meeting a number of decisions were made, including as to the testing of anchor bolts and review in 12 months time of whether to replace the anchor bolts. Another subject apparently discussed at that meeting was the obtaining of quotes, and the appointment of a project manager, for the waterproofing project.
The matters discussed at that meeting were recorded in notes. Mr Walden contends (and I do not understand the body corporate to contend otherwise) that those notes are not now included in the records of the body corporate. I have no idea why that is the case and they certainly should be, particularly as they were tendered at the following committee meeting. Nevertheless, the adequacy of the body corporate’s records was not a matter that was raised as a ground of the application, nor as requiring investigation by the adjudicator.
The committee next met on 17 November 2010. The minutes of that meeting record an item headed “decisions outside meeting”. The minutes record that it was resolved that decisions made at the informal committee meeting on 20 October 2010, notes of which were tabled at the 17 November meeting, be ratified. That was resolved 7 votes to nil.
Mr Walden contended before the adjudicator and before this tribunal that the minutes of that meeting, and the minutes of the following meeting on 21 February 2011, inadequately recorded the discussions and resolutions at the meetings. He particularly seems concerned that the reasons for the resolutions that were made were not recorded in the minutes, nor was the discussion about them or the names of the persons who voted in favour of, or against, each of the resolutions.
The adjudicator formed the view that the minutes satisfied the legal requirements. She did so by referring to the definition of “full and accurate minutes” in s 55(5) of the Standard Module. The minutes certainly seem to me to comply with each of the obligations under that definition.
In his submissions to the tribunal, Mr Walden referred to s 54 of the Standard Module, which concerns voting outside committee meetings. It appears that he asserts that that was not complied with in having the informal meeting in October and having the decisions made at that meeting ratified at the formal meeting in November. Therefore, he contends, the adjudicator erred in not finding that full and accurate minutes were not being kept.
The problem I see with this contention is that section 54 really concerns decisions made outside committee meetings, often by way of “flying minute”. The informal meetings conducted by the committee of this body corporate do not appear to purport to make final decisions. Rather, they are informal decisions (in effect, recommendations) which only become formal decisions when ratified at a subsequent meeting.
I must say that this manner of proceeding does not appear to be entirely satisfactory. If it is necessary for more frequent committee meetings to be held, then they should be held formally rather than in the informal manner that apparently occurred in October 2010. If this was a one-off occasion which required a relatively urgent committee meeting, then it would have been preferable that the procedure under s 54 be complied with.
Nevertheless, in my view the committee has complied with the obligation to keep full and accurate minutes on the basis that the October meeting was simply informal and did not make formal and valid decisions, but those decisions were made when ratified (or the recommendations accepted) by the resolution made in November 2010.
Accordingly, I consider that the adjudicator made no error of law in dismissing this aspect of Mr Walden’s complaint.
Anchor bolts
The question of anchor bolts was considered at both the November 2010 and February 2011 committee meetings. A question was raised whether the anchor bolts needed to be tested or replaced and whether they complied with workplace health and safety laws and Australian standards. It appears that the committee was informed of advice about the need to test anchor bolts and that, at the 21 February meeting, the committee was informed that no advice had been received that conflicted with the information presented to the last meeting. The committee then decided to engage a firm called Platinum Cleaners to inspect all anchor bolts and to fit permanent eyelets to each. Reference was made to an email from Fair and Safe Work Queensland – Advisory Services dated 29 October 2010 that apparently confirmed the requirements of s 323 of the Workplace Health and Safety Regulation 2008.
The adjudicator concluded that the committee, having considered a letter from Platinum Cleaners and having obtained further information, had made a valid decision in respect of the issue.
Mr Walden complains that the adjudicator was told of an email written to the body corporate by the Department of Justice and which had been provided to Platinum Cleaners, but she did not call for that email and therefore has failed to act impartially. This appears to me to be an allegation that the adjudicator has not properly investigated the matter. I cannot see that it was necessary for the adjudicator to call for that email, or that her failure to do so constituted an error of law.
Mr Walden does not identify any other error of law, nor can I discern any.
This aspect of Mr Walden’s appeal therefore has no basis.
Engaging experts
This aspect of the application had two legs to it. First, Mr Walden contended that users of basement power points were using common property power for their own advantage and may be using illegal or unsafe connections. He sought an order that the committee engage appropriate experts to ensure that no illegal or unauthorised wiring or use of electricity was occurring.
Mr Walden’s submissions in this respect in the appeal are a little confusing. He refers to certain provisions of the Electrical Safety Act 2002 and the regulations under that Act, and he notes that electrical work has to be done by qualified electricians. He then complains about a lack of transparency by the committee in relation to the engaging of persons and the costs associated with those issues and says there is nothing in the adjudication decision that addresses the issue of the electric power points.
In fact, the adjudicator noted that, so far as the committee was aware, all of the electrical points in the basement car spaces and storage areas had been installed by licensed electricians and it saw no need to appoint any expert to check them. She also noted that Mr Walden had not put any resolution about this issue to the committee or to the body corporate in general meeting before making his application to the Commissioner.
The adjudicator concluded that Mr Walden had failed to substantiate his claims on this issue. That seems to me, with respect, to be correct. Mr Walden appears not to have produced any evidence of illegal or dangerous connections. One might have expected, at the least, evidence from an electrician who had inspected some of the connections and concluded that they were unsafe. Nothing to that effect was produced.
In the appeal, Mr Walden complains that the adjudicator did not take into account a submission by one of the lot owners, Mr Roberts, on a question of the electricity issue. That submission was short, made an objection to “non-approved connections” for use with certain appliances and contended that earth leakage relays should be installed where required and power use monitored. In essence, he supported Mr Walden’s submission. Nevertheless, that did not comprise evidence and it seems that the adjudicator did read and take into account all the submissions before her and she nevertheless concluded that Mr Walden had failed to substantiate his claims. I see no error in that conclusion.
Mr Walden now says that the adjudicator did not investigate the electricity issues sufficiently, merely taking the word of the committee against that of Mr Walden in respect of his concerns. That is perhaps the error of law which he alleges.
An adjudicator has a power and, to some extent, a duty, to investigate a matter that has been referred to him or her. Subsection 269(1) requires the adjudicator to investigate an application to decide whether it would be appropriate to make an order on the application.
I considered the question of the extent to which an adjudicator must investigate a complaint in Body Corporate for Grand Pacific Resort v Cox [2012] QCATA 14, at [36] to [42]. Applying those principles, I do not consider that the adjudicator’s conduct in considering the electricity issue constituted an inadequate investigation. In the absence of any evidence put to her on behalf of Mr Walden that there was any illegal or dangerous attachment or electrical installation, there was no basis for investigating further, particularly in the light of the committee’s submission that it had considered the situation and felt that nothing further was required.
I therefore do not see any error of law on the part of the adjudicator in this respect either.
The second aspect concerning experts was whether the body corporate should engage relevant experts such as engineers before proceeding with remedial work which, according to Mr Walden, may impact on the integrity of the tower. This appears to be a complaint as to the appointment of persons by the name of Green to project manage the waterproofing project (it will be recalled that this was determined at the November meeting, ratifying a decision at the October meeting of the committee). The adjudicator was not persuaded that there was anything unlawful or unreasonable in the appointment of the Greens as the project manager. Mr Walden has not identified any error of law by the adjudicator in forming that conclusion. I do not consider there to have been one.
Waiving debt/allowing discounts
Mr Walden raised a number of questions concerning the decisions that have been made by the committee to waive certain debts or allow discounts on body corporate levies where they had not been paid by the due date.
Only one particular incident was directly referred to in the material before the adjudicator. It appears from the 21 February 2011 minutes that an application was made to the committee for reinstatement of October 2010 levy discounts by the owner of unit 48, Mrs Truskett. Mr Truskett (presumably Mrs Truskett’s husband) is the chairperson of the committee who was present at the meeting. Mr Walden appears to complain that the minutes recorded no reason for the decision and that Mr Truskett had an apparent conflict of interest in being present when the issue was considered and resolved.
The adjudicator noted that there had been 6 votes in favour of the resolution, none against and one abstention. She assumed that the abstention was by Mr Truskett.
If the unit holder was a relative of his, Mr Truskett was obliged to have formally declared (and had recorded in the minutes) his interest in the outcome of the application and he was not entitled to vote on the motion: s 53 of the Standard Module. In my view, he ought also properly to have absented himself completely from the committee meeting and someone else should have been appointed chairperson for the purpose of considering that application. However, that is a matter of proper procedure and governance, but it is not a requirement of the regulations and therefore, strictly speaking, it was sufficient that he abstain from voting. (No by-laws that may be relevant to this issue were before the adjudicator or this tribunal.)
Although the minutes did not specifically record who abstained from voting on the issue (which in my view would have been preferable, even though not strictly required under s 55 of the Module), I consider it to have been open to the adjudicator to draw the inference which she did, that it was Mr Truskett who abstained.
In these circumstances, it seems to me that the adjudicator has made no error of law in determining not to declare that resolution invalid.
Committee conduct/behaviour
Mr Walden sought an order that the committee “perform their duties adhering to the code of conduct” and “cease the vindictive behaviour toward the previous chairman”. The adjudicator found that Mr Walden’s application had revealed no fault in the conduct or behaviour of the committee.
In the appeal, Mr Walden submits that the committee’s behaviour, by holding informal meetings, has circumvented the orderly process of formal meetings. So far as I can ascertain there has been only one informal meeting, that in October 2010. While I have some criticism of it, it does not in my view constitute any legal grounds to seek orders of the nature sought.
In his submissions on this appeal, Mr Walden refers to a number of new factual matters in respect to this complaint under the heading “other minutes have now surfaced”. It is not for this Tribunal to consider new evidence. The appeal is strictly on a question of law.
The Tribunal has also received a letter dated 27 September 2012 from Derek Geddes, solicitor, on behalf of Mr Walden, seeking to place further material before the Tribunal. That material again constitutes additional evidence which it is not for this Tribunal to take account of. The expressed intention of the evidence was to demonstrate that the adjudicator’s decision was based on documents referred to that, it appears from subsequent attempts to obtain them on discovery from the body corporate, do not exist. But even if they do not in fact exist, a fact which the tribunal cannot determine in this appeal, that does not affect the adjudicator’s reasoning on the evidence before her.
Breach of natural justice
Mr Walden contends in his submissions that there has been a breach of natural justice because the adjudicator obtained the notes of the informal meeting on 20 October 2010 and did not supply a copy to Mr Walden. Apparently Mr Walden obtained a copy of the notes after the adjudicator’s decision was made.
In my view, although it would have been preferable for the adjudicator to have supplied a copy of the notes to Mr Walden, nothing comes of this complaint because of the adjudicator’s conclusion (and my own) that there was no error in the manner in which that meeting was dealt with.
Accordingly, Mr Walden has not identified any error of law on the part of the adjudicator in respect of this ground.
Frivolous application and costs
In his application in this appeal, Mr Walden contests the adjudicator’s conclusion that his application to the adjudicator was frivolous, vexatious, misconceived and without substance and her order that Mr Walden pay the body corporate’s costs associated with the application. In subsequent submissions, Mr Walden contended that (that decision was incorrect presumably for the reasons which he contended with respect to each of the grounds of the adjudicator’s decision) and he disputed it.
In his most recent submissions (which were supposed to have been made in complete substitution of all earlier submissions) Mr Walden has not addressed this issue, but I am prepared to accept that he contests the adjudicator’s conclusion and maintains that it was reached by error of law because of his conclusions as to the other grounds of the appeal.
Having regard to my conclusions as to each ground of the appeal, it was clearly open to the adjudicator to conclude that the application before her fell within s 270. The application was entirely unsuccessful, and it was supported by a large amount of assertion and documents tendered by Mr Walden and to which the body corporate was obliged to respond.
Therefore, I am satisfied that the adjudicator did not err in the exercise of her discretion in either dismissing the application or ordering that Mr Walden pay the body corporate’s costs.
Conclusion in APL362-11
Therefore, I consider that Mr Walden’s appeal should be dismissed.
Patricia Hanly, Member
In this matter the Appeal Tribunal consisted of Mr Ken Barlow, QCAT Member and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes.
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