CASE NOTE: JM Family Holdings Pty Ltd & Anor v Owltown Pty Ltd & Anor

JM Family Holdings Pty Ltd & Anor v Owltown Pty Ltd & Anor [2018] QCA 260

This appeal was heard by Court of Appeal Justices Fraser and McMurdo but the leading judgment was that of Justice Bond of the Trial Division of the Court of Appeal with whose reasons Fraser and McMurdo JJA agreed.

Local Counsel, Ben Strangman, appeared for the Applicants who were the present owners of a Lot within Norwinn Commercial CTS 38094.

The First Respondent was the owner of Lots 2 and 4 within that CTS and the Second Respondent was the Body Corporate for Norwinn Commercial CTS 38094.

At paragraphs 4, 5 and 6 Justice Bond noted the relevant facts as:

“4. A dispute arose between the first respondent and the second respondent concerning the validity of two resolutions which had been passed at the annual general meeting of the second respondent on 20 July 2015.  The resolutions had purported to specify that the maintenance costs of a particular lift on the common property should be shared between all lot owners in accordance with their respective contribution entitlements.  That outcome represented a change to the status quo, namely that the costs be borne solely by the owner of lot 8.

5. The first respondent contended that the resolutions were invalid and sought declarations to that effect and relevant ancillary orders from an adjudicator appointed under the BCCM Act to resolve the dispute. The applicants (who had become the new owners of lot 8 on 30 June 2014) were interested parties and supported the validity of the resolutions. The adjudicator dismissed the application.

6. The first respondent exercised its right to appeal on a question of law to an appeal tribunal constituted under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).  The first and second respondents were parties to the appeal, as were the present applicants.  The appeal tribunal found in favour of the first respondent, declared that the impugned resolutions were void, and made the ancillary orders which had been sought.”

At paragraph 9, Justice Bond noted the issues for determination were:

“(a)     whether this Court has jurisdiction to entertain the application;

(b)     whether the applicants should have the requisite extension of time;

(c)     whether the applicants should have leave to appeal; and

(d)     whether, if leave is granted, the applicants should succeed on their appeal.”

The further factual background is detailed by Justice Bond in paragraphs 11-17.

Proceedings were originally before the Adjudicator under the Body Corporate and Community Management Act 1997 whose decision subsequently went on appeal to QCAT and thereafter to the Court of Appeal.

Justice Bond found that the conclusion reached by the Adjudicator was correct and set aside the decision of QCAT.

This is an interesting decision. It is recommended all solicitors involved in Body Corporate and Community Management matters take the time to consider it.

Michael Campbell

Barrister-at-Law

10 October 2018

2018-10-26T02:16:28+00:00