Williams v Body Corporate for Circle on Cavill
[2012] QCATA 166
•3 September 2012
| CITATION: | Williams v Body Corporate for Circle on Cavill [2012] QCATA 166 |
| PARTIES: | Cheryl Williams (Appellant) |
| v | |
| Body Corporate for Circle on Cavill CTS 39918 (Respondent) |
| APPLICATION NUMBER: | APL046-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 20 June 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Kenneth Barlow SC, Member Patricia Hanly, Member |
| DELIVERED ON: | 3 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Appeal allowed in part. 2. Set aside the decision of the adjudicator made on 18 January 2012 insofar as it dismissed the appellant’s application for a declaration that the nomination of Paul Urquhart for election to the committee was improperly declared invalid by the chairman of the annual general meeting of the respondent held on 30 June 2010. 3. Return that part of the application to the adjudicator for a decision on the merits, in accordance with the law and the reasons for these orders. 4. Direct that, before making a decision, the adjudicator invite the parties to submit to him evidence as to whether, in June 2010: (a) Mr Urquhart was the appellant’s spouse and therefore (subject to s 11(2) of the Accommodation Module) eligible to be a voting member of the committee under s 11(1)(b)(1)(A); and (b) Mr Urquhart was a letting agent and was therefore excluded from being a voting member of the committee by s 11(2)(a). 5. The question of the costs of the appeal be reserved, to be determined on the papers. 5. Otherwise dismiss the appeal. 6. Direct that the parties file and serve any submissions on the costs of this appeal, limited (in the case of the respondent) to no more than 3 pages and (in the case of the appellant) to no more than 5 pages, by the following dates: (a) by the respondent – within 14 days of this order; (b) by the appellant – within 14 days of receipt by her of the respondent’s submissions. |
| CATCHWORDS: | Body Corporate and Community Management – election of committee members – eligibility for election Body Corporate and Community Management – appeal from adjudicator – whether time limit on commencing appeal applied – whether adjudicator erred in finding no good reason for waiving non-compliance Body Corporate and Community Management – application for adjudication – costs of unsuccessful application Body Corporate and Community ManagementAct1997, ss 242, 270 |
APPEARANCES and REPRESENTATION:
| APPLICANT: | Mr P Urquhart |
| RESPONDENT: | Mr C Carrigan of Counsel, instructed by Matthews Hunt Lawyers |
REASONS FOR DECISION
Kenneth Barlow SC, Member
Introduction
The appellant, Ms Williams, owns a lot in the community titles scheme operated by the respondent, Circle on Cavill. The scheme is governed by the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module), to which it will be necessary to refer.
In this application, Ms Williams appeals from the decision of an adjudicator dismissing her application, under the Body Corporate and Community Management Act1997, for declarations concerning the result of the election, in June 2010, of the committee for the body corporate.
The following facts are not in dispute in this appeal. They are taken substantially from the findings of the adjudicator set out in the reasons for his decision.[1]
[1] Circle on Cavill [2012] QBCCMCmr 23.
Prior to the Annual General Meeting (AGM) scheduled for 23 June 2010, and reconvened on 30 June 2010, three nominations were received for ordinary committee member positions. One of these nominations was made by Ms Williams, who nominated Paul Urquhart for appointment as an ordinary member of the committee.
At the AGM, the chairman declared the nomination of Mr Urquhart invalid. Apparently his stated grounds were that Mr Urquhart was ineligible to be a voting member of the committee because:
a)he was not a lot owner;
b)he did not hold a power of attorney issued by a lot owner;
c)he was not a member of the applicant’s family; and
d)in any event, he was disqualified because he operated a letting agent business from within the scheme.
In declaring the nomination invalid, the chairman purported to rely on s 11 of the Accommodation Module.
Mr Urquhart sought a review of that decision by making an application for adjudication under chapter 6 of the Act. The body corporate sought an order that the application be dismissed on the ground that Mr Urquhart had no standing to make it. The adjudicator refused to dismiss the application. That decision was overturned by this tribunal in May 2011, on appeal by the body corporate.[2] The tribunal ruled that Mr Urquhart had no standing to make the application, though Ms Williams would have standing. The tribunal therefore ordered that Mr Urquhart’s application be dismissed.
[2] Circle on Cavill v Urquhart [2011] QCATA 125.
On 1 July 2011 Ms Williams filed her application for adjudication. In that application she sought declarations to the effect that:
a)her nomination of Mr Urquhart for election to the committee was wrongly declared invalid; and
b)the election of Peter Batley to the committee at the same annual general meeting was invalid, because he had a fiduciary relationship with the letting agent for the scheme and was therefore an “associate” of that agent and ineligible because of s 11(2)(b) of the Accommodation Module.
Adjudicator’s decision
The adjudicator dismissed Ms Williams’ application. He also made an order, pursuant to s 270 of the Act, that she pay to the body corporate the sum of $2,000 as costs of the application.
In brief, the adjudicator’s reasons for dismissing the application in so far as it concerned the rejection of Mr Urquhart’s nomination were:
a)he was prepared to assume (although Ms Williams had not demonstrated) that Mr Urquhart was Ms Williams’ de facto spouse and therefore a member of her family;[3]
b)Ms Williams’ application was made more than 3 months after the AGM at which the chairman’s decision to reject Mr Urquhart’s nomination had been made, that was longer than the period allowed under s 242 of the Act, Ms Williams had not demonstrated any good reason for waiving her non-compliance with that section, and therefore her application was made out of time;
c)it was possible that Mr Urquhart’s nomination had been wrongly rejected on the ground that he was operating a letting agent business, but he did not need to decide that because of his conclusion that the application was out of time.
[3] Accommodation Module, s 11(1)(b)(1)(a) and s 11(3)(a).
The adjudicator dismissed the application concerning Mr Batley’s eligibility for election because he found that:
a)Mr Batley did not have a business relationship with the letting agent, apart from having his unit in the letting pool for a short period of time – a fact which is specifically excluded as a reason for disqualification from election by s 11(2)(b) of the Accommodation Module; and
b)there was no evidence that Mr Batley was a letting agent, or an associate of a letting agent or that he was carrying on business as a letting agent.
The appeal
The appeal, as filed, sought 9 orders, the first of which was stated to be:
“Please refer to QCAT Appeal 0506-2011.pd point 96-104”.
The number 0506-11 is the number allocated to the adjudication application. Given the way the appeal was argued, I take that to mean that Ms Williams was asking this tribunal, in effect, to set aside the decision of the adjudicator (including the order that she pay costs) and to make the declarations that she sought in that application. I propose to treat the appeal as if those were the orders sought.
The other 8 orders sought were to the effects that the appeal be expedited, the appeal tribunal hear the application afresh, Mr Batley and others be compelled to give evidence at such a hearing, the costs of the application and 3 others be paid by Mr Batley, Mr Batley and “other parties” be the subject of “fines or penalties” and “referral to public prosecutor’s office”. Apart from the application for expedition of the appeal, none of those orders (to the extent they can be understood) is within the power of this tribunal.[4]
[4]An appeal under s 289 is an appeal in the strict sense, so the appeal tribunal must decide it only on the evidence before, and applying the law that applied at the time of, the adjudicator’s decision: see River City Apartments v McGarvey [2012] QCATA 047, at [11]-[16].
In written submissions and at the hearing, Ms Williams made detailed allegations to the effect that Mr Batley had misled the body corporate committee and therefore he was ineligible to be a member of the committee. In my view those allegations, and the submissions in support of them, are misconceived and irrelevant to the real issues in this appeal (and, indeed, to any issues which this tribunal can decide). I therefore do not propose to discuss them, but instead I shall concentrate on what I perceive to be the real issues, which were discussed during the hearing of the appeal.
There are, in essence, 4 issues in this appeal, as argued at the hearing:
a)whether the adjudicator was correct in finding that s 242 of the Act applied to the application concerning Mr Urquhart’s nomination and, if so, whether his finding that there was no good reason for waiving non-compliance was contrary to the evidence;
b)whether the adjudicator ought to have found that Mr Urquhart was not ineligible for election because he was Ms Williams’ spouse and he was not operating a letting agent business;
c)whether the adjudicator was correct in dismissing the application concerning Mr Batley; and
d)whether the adjudicator validly exercised his discretion under s 270 in ordering that Ms Williams pay $2,000 toward the body corporate’s costs of the application.
I shall deal with them in that order.
Application of s 242
Section 242 of the Act relevantly provides to the effect that:
a)an application to an adjudicator seeking an order declaring void a meeting or a resolution of the body corporate, or the election of a committee member, must be made within 3 months after the relevant meeting;
b)if an application is made outside that period, the adjudicator may, for good reason, waive the non-compliance.
It is immediately obvious that the section could apply to Ms Williams’ application to have Mr Batley’s election declared void. However, the adjudicator did not dismiss that part of the application on this ground. Instead, he dealt with that part on the basis of the evidence before him.
It is not so obvious that the section could apply to Ms Williams’ application to have declared void the chairman’s decision that her nomination of Mr Urquhart for election to the committee was invalid.
Clearly, that part of the application was not seeking an order that Mr Urquhart’s election was void. Quite the contrary. So s 242(1)(c) was not relevant. I did not understand the body corporate to submit otherwise but, if it did, I disagree with that submission.
Mr Carrigan, who appeared for the body corporate, submitted that the application was, in effect, for an order declaring the meeting void, because it was seeking a declaration that a decision made at the meeting (and therefore part of the meeting) was void. Therefore, he submitted, it fell within s 242(1)(a). I do not agree. Ms Williams was not seeking to have the meeting declared void – that paragraph of the section is clearly aimed at assertions that a meeting was inadequately called, or did not have a quorum, or on some other ground the entire meeting had no legal basis and therefore all steps taken at it were of no effect. That was not the nature of Ms Williams’ application.
The application concerning Mr Urquhart’s eligibility did not, therefore, fall within s 242. However, I understood the respondent to submit (although perhaps not vigorously) that, although the application sought 2 orders, as one part of the application (that concerning Mr Batley’s election) did fall within that section, the whole application is subject to the time limit imposed by the section. Of course, the adjudicator did not consider whether he should excuse non-compliance with s 242 in respect of that part of the application concerning Mr Batley, instead dismissing it for other reasons.
I do not consider that such an argument is correct. A person may make an application under chapter 6 of the Act if the person is a party to “a dispute” to which the chapter applies (s 238). Chapter 6 relevantly applies to “a dispute” between a lot owner and the body corporate. Section 32C of the Acts Interpretation Act1954 provides that, in an Act, words in the singular include the plural and words in the plural include the singular. In my view, the effect of these sections is that one application may be made in respect of more than one dispute between the parties, but each dispute may be treated, in some respects, as a separate application. Therefore, a section such as s 242 must be considered separately in relation to each dispute in respect of which an application has been made. Thus, s 242 operates similarly to the limitation periods that apply to different causes of action raised in one court proceeding.
The adjudicator was therefore wrong in dismissing the application concerning Mr Urquhart on the basis of s 242. In my opinion, that part of his decision ought be set aside.
Was Mr Urquhart ineligible?
In the light of that finding, and as Mr Carrigan conceded, the matter should be referred back to the adjudicator for a decision on the merits. I do not consider it appropriate for this tribunal, in this appeal, to attempt to determine the facts which the adjudicator declined to determine. While the tribunal has all the powers and can exercise all the jurisdiction of the adjudicator (s 294 of the Act), the appeal is only on a question of law (s 289) and, at least in the absence of clear evidence before the adjudicator on these issues, it is not appropriate (and indeed, not possible) for the tribunal to attempt to make relevant findings of fact.
On a reconsideration of the matter by the adjudicator, it will be necessary for him to determine whether, in June 2010:
a)Mr Urquhart was Ms Williams’ spouse and therefore (subject to s 11(2) of the Accommodation Module) eligible to be a voting member of the committee under s 11(1)(b)(i)(A);[5] and
b)Mr Urquhart was a letting agent and was therefore excluded from being a voting member of the committee by s 11(2)(a).[6]
[5]There does appear to have been some evidence before the adjudicator on this point, but it is not clear whether Ms Williams and Mr Urquhart drew his attention to it: in an email dated 13 September 2010 from a committee member, David Cunningham, he acknowledged that he knew that they lived together as de facto spouses.
[6]I note that, in contrast to s 11(2)(c), this paragraph and paragraph 11(2)(b) do not appear to be limited to letting agents for the scheme, but to “a letting agent” generally – that is, a letting agent for “a community titles scheme” – s 16(1) of the Act. However, that point was not before the tribunal and I do not consider it necessary to decide.
These appear to be the contentious grounds on which the chairman declared the nomination of Mr Urquhart to be invalid.
It would be appropriate, and I consider that the tribunal should direct, that the adjudicator invite the parties to submit evidence (not submissions without evidence) on these issues.
The tribunal asked Mr Carrigan what power the chairman at the general meeting had to declare void a nomination for election to the committee. He made an interesting, and possibly correct, submission in that respect, but ultimately I do not consider it necessary to decide the point because of my conclusions above.
Was Mr Batley ineligible?
Mr Urquhart, appearing for Ms Williams, made it clear that the nub of Ms Williams’ submissions about Mr Batley’s ineligibility to be a voting member of the committee was that he was in a fiduciary relationship with “Mantra”, who was the letting agent for the scheme.
Mr Urquhart also submitted that the adjudicator misunderstood the submissions that had been made to him on behalf of Ms Williams, as he appeared to understand those submissions to be asserting that Mr Batley was himself carrying on business as a letting agent. Mr Urquhart expressly disavowed making any such submission. He now submits that the adjudicator did not consider whether Mr Batley was an associate of Mantra by reason of having a fiduciary relationship with it.
There are two answers to this submission. First, the adjudicator made express findings that, “Mr Batley does not have a business relationship with Mantra, apart from having his unit in the letting pool for a short period of time” (at [24]) and that, “There is no evidence that Mr Batley is a letting agent, or an associate of a letting agent or that he is carrying on business as a letting agent …” (at [25], emphasis added). He seems, therefore, to have considered whether Mr Batley was an “associate” of Mantra. Although he did not refer to s 309 of the Act, in which that term is defined, it is not obvious that that definition was referred to him by Ms Williams in her submissions, and in any event those submissions asserted that Mr Batley was a fiduciary of Mantra. It seems likely that the adjudicator’s finding intended to deal with that assertion (although not as clearly as would be preferable).
Secondly, in the course of the hearing of this appeal the tribunal repeatedly invited Mr Urquhart to identify, in the material before the adjudicator, the evidence that Ms Williams relied on to demonstrate that Mr Batley had a fiduciary relationship with Mantra. His response was that he could not direct the tribunal to that evidence, as he did not have a copy of the material that was before the adjudicator. However, he asserted that:
a)Mr Batley, who owns a lot in the scheme, let out his lot through the letting pool managed by Mantra;
b)although, in itself, that is not a fact that would render Mr Batley ineligible for election, in a website called “roombookings.com”, which is for a business conducted by Mr Batley and through which it is possible to book a room in Circle on Cavill, it is said that, “Direct relationships with hotels combined with strong purchasing power puts Room Bookings in the position to negotiate exceptional rates for its consumers”;
c)the reference to “direct relationships” indicated a fiduciary relationship between Mr Batley and Mantra;
d)that indication was supported by Mr Urquhart’s knowledge of evidence that Mr Batley appeared to recommend Mantra to other lot owners, had a lot of influence on decisions taken by Mantra, and had a relationship with Mantra of “you scratch my back and I’ll scratch yours”; but Mr Urquhart did not descend into the detail of that evidence apart from referring to the page from the roombookings.com website where the above sentence appears.
With respect, none of these assertions, even if accepted as evidence (as opposed to assertions), tends to indicate, let alone prove, that Mr Batley had any fiduciary relationship with Mantra. The only clear relationship he had with it was that his lot was part of the letting pool for a period of time, but that is expressly excluded as a fact that renders a lot owner ineligible to be a voting member of the committee: s 11(2)(b) of the Accommodation Module. Even if Mr Batley wholeheartedly and repeatedly were to recommend Mantra to other lot owners, and were to have some influence on decisions or actions by Mantra, that would not point necessarily to the existence of any relationship other than that Mr Batley was a satisfied client of Mantra.
As applicant before the adjudicator, and as appellant before this tribunal, it was for Ms Williams to demonstrate there was evidence supporting her assertion that Mr Batley was an associate (more particularly, a fiduciary) of Mantra. In my view, nothing to which Mr Urquhart could direct the tribunal’s attention, nor anything that I have seen in the material before the adjudicator, constituted evidence that Mr Batley had a fiduciary relationship with Mantra.
During the course of the hearing of the appeal, it became apparent that some of the documents which, Mr Urquhart said, Ms Williams had sent to the office of the commissioner in support of her application may not have (or had not) been forwarded to, and taken into account by, the adjudicator. Ms Williams submits that, if that was the case, she did not have a fair hearing before the adjudicator and for that reason the appeal should be allowed.
After the hearing of the appeal, and in accordance with directions made by the tribunal, the body corporate filed an affidavit exhibiting some additional documents. I understand that those documents include the documents which it appeared may not have been seen by the adjudicator. I have read that material and I cannot see any evidence within it that Mr Batley was a fiduciary of Mantra. Therefore, even if it had been seen and taken into account by the adjudicator, it could not have made any difference to his decision.[7]
[7]In fact, having now seen the material and after a more detailed review of the file, it appears that this material was on the file and was before the adjudicator.
Therefore, Ms Williams has not demonstrated any error of law by the adjudicator in his conclusion that Mr Batley was not ineligible to be a voting member of the committee.
This part of the appeal should be dismissed.
Costs under s 270
Under s 270 of the Act, an adjudicator may dismiss an application if it appears to the adjudicator that the application is frivolous, vexatious, misconceived or without substance. If an adjudicator makes such an order, he or she may order that the applicant pay the respondent’s costs resulting from the application, to a maximum of $2,000.
In this case, the adjudicator made those orders.
Insofar as the application concerned Mr Batley’s eligibility to be a voting member of the committee, having regard to my conclusions above I consider that it was open to the adjudicator to conclude that that part of the application was without substance and misconceived. Upon reaching that conclusion, it would be open to him to exercise the discretion to award costs against Ms Williams.
In exercising his discretion on costs, the adjudicator took into account that the application was very disorganised and contained a large number of allegations against committee members, most of which had little to do with the outcomes Ms Williams sought. As a result, the body corporate and its legal adviser had spent a considerable amount of time and resources responding to the application. The body corporate’s costs (both of forwarding the application material to lot owners, and in legal costs) had well exceeded $2,000. He therefore considered it appropriate to order that Ms Williams pay the body corporate costs of $2,000.
Of course, in reaching that conclusion, the adjudicator took into account that, in his view, the entire application, not just that part concerning Mr Batley, was misconceived and without substance. In my opinion, he could not properly come to that conclusion in respect of that part of the application concerning Mr Urquhart.
Nevertheless, the vast bulk of the submissions before the adjudicator (as in this appeal) concerned Ms Williams’ contention that Mr Batley was ineligible to be a voting member of the committee. Also, as the adjudicator said, the material presented to him by Ms Williams, particularly on that issue, was disorganised. In many respects it was difficult, if not impossible, to understand and much of it was irrelevant to the contention.
In these circumstances, notwithstanding that the adjudicator took into account the whole application, in my view it would have been open to him to make the costs order he did in respect of that part of the application concerning Mr Batley.
It might be argued that, as part of the application was not within the description in s 270, it was not open to the adjudicator to dismiss only part of the application and to order costs in respect of that part only, as s 270 only applies to dismissal of “the application”, which must mean the whole application.
For the reasons that I gave above (paragraph [24]) concerning whether s 242 permitted dismissal of the whole application even though it applied only to one of the orders sought in that application, I consider that such an argument, in respect of s 270, would not be correct.
Therefore, as it was open to the adjudicator to exercise his discretion under s 270(3) to order costs of that part of the application before him that he rightly considered to be misconceived and without substance, and given that the bulk of the costs incurred by the body corporate concerned that dispute, I do not consider that he erred, in a legal sense, in exercising his discretion in the manner he did.
Therefore, in this respect, the appeal must fail.
I should add that, even though the application concerning Mr Urquhart’s eligibility related to his non-election at the 2010 meeting of the body corporate, and even though the body corporate apparently subsequently offered to call a fresh general meeting at which all committee members would resign and Ms Williams might have a fresh opportunity to nominate Mr Urquhart, I do not consider that the application to determine his eligibility would fall within s 270 for those reasons. It was open (and in my view reasonable) for Ms Williams to take the view (as she did) that, if nothing had changed as to Mr Urquhart’s relationship with Ms Williams and his business activities, in the light of the chairman’s decision at the 2010 meeting (which the body corporate has never conceded to be wrong), it was (and remains) appropriate to seek a declaration as to his eligibility. It might have been different if the body corporate had openly acknowledged that the chairman’s decision at that meeting had been wrong.
Orders
I therefore consider that the appropriate orders are:
a)to allow the appeal in part;
b)to set aside the decision of the adjudicator insofar as it dismissed the appellant’s application for a declaration that the nomination of Paul Urquhart for election to the committee was improperly declared invalid by the chairman of the annual general meeting of the respondent held on 30 June 2010;
c)to return the application to the adjudicator to hear and determine that part of the application described in the above paragraph in accordance with the law and these reasons;
d)that, before determining that part of the application, the adjudicator invite the parties to submit further evidence to him as to whether, at the date of the meeting, Mr Urquhart was Ms Williams’ spouse and was a letting agent;
e)otherwise to dismiss the appeal.
The body corporate has applied for an order that Ms Williams pay its costs of this appeal. It has filed evidence and submissions in support of that application. At the hearing, Mr Carrigan asked for an opportunity to make further submissions having regard to the tribunal’s findings. I consider that the parties should have that opportunity and propose that the tribunal make appropriate directions.
Patricia Hanly, Member
I have had the advantage of reading in draft the reasons of Mr Barlow SC and the orders proposed by him. I agree with those orders and his reasons.
1
1
2