The application also sought an order confirming that it was lawful for the executive committee to issue the certificate on 25 June 2014 as evidence that Motion 5 was passed as a special resolution. The hearing did not, in the end, cover this point and given the findings previously made in relation to Motion 5, there is no utility in proceeding to address this issue. Consequently on 29 May 2015 I declined to make that order.
[2]
Mr J Brudenall, Ms S Brudenall, Dr K Tsokhas, Dr D Sloper, Ms A Sloper, Mr R Long
[3]
Mr J Brudenall, Ms S Brudenall, Dr K Tsokhas, Dr D Sloper, Ms A Sloper, Mr R Long
[4]
[1] That notice was set out at attachment A2 to the application
[5]
[2] The owners for corporation of UP 202 having adopted the default rules contained in schedule 4 to the UTM Act, with some amendments and supplementation
Texts/Papers cited:Butterworths Concise Australian Legal Dictionary
It is not contested that the owners corporation, after the 2002 AGM, conducted itself on the basis that it was authorised to deal with the maintenance obligations as provided by Motion 5. There arises then a presumption that such authority existed. It was for the respondents to bring some evidence to the Tribunal to satisfy it that in fact Motion 5 had not been properly passed. No such evidence was forthcoming.
The minutes of the 2002 AGM as the official record which evidences what happened at the AGM, is the first evidence one turns to. When viewed with the benefit of hindsight, the wording in relation to Motion 5 could at the highest be said to be ambiguous. Much time was spent during the hearing in cross-examination of witnesses who had been involved in the drafting and subsequent adoption of the minutes. None of those witnesses supported an interpretation of the minutes other than that the motion was passed as a special resolution.
The evidence of the managing agent at the time was that in 2002 it was normal practice to merely note non-budget items as 'carried' rather than 'carried as a special resolution' although current practice is different.
If the minutes had recorded votes against the resolution, or that there was disagreement over the resolution, that would be documentary evidence which supported drawing the inference that the necessary number of votes were not reached. In the present case, the minutes contain no record of disagreement or contrary votes.
The respondents pointed to the blank part of the conveyancing certificates as evidence supporting the inference that the resolution should be found not to have been passed as a special resolution. The respondents' contention was that had the resolution been validly passed, the full details would have been entered into the form. I am not persuaded by this submission.
There are several problems with this argument. The first and most simple is that had the person completing the certificate truly believed that there was no special resolution in relation to the property it would have been easier and simpler to simply answer 'No' to the first question. Secondly, the argument is illogical. It is true that if the special resolution was not valid and the agents did not want to admit to that, they may have left out the details of the resolution. But equally, laziness, forgetfulness or a general disregard for details could have as easily been the cause of the omission. It does not follow that because the respondents' hypothetical would result in a failure to fill in details, that such a failure demonstrates the hypothetical is true.
The Tribunal heard personal accounts by a number of witnesses who had been present at the AGM in 2002. Much time was spent during the hearing examining those witnesses on their recollection of the voting at the AGM in 2002. Inconsistencies or issues about the reliability of these witnesses recollections were raised in the submissions of the respondents.
(1906) 4 CLR 835
(1986) 69 ALR 573
In the end, however, there was simply no evidence from any document or any witness that the numerical requirements of a special resolution were not met for Motion 5 at the 2002 AGM. No witness gave evidence that they personally voted against the motion and no witness saw anyone else vote against the motion. Nor was there any evidence that would satisfy the Tribunal that the procedures for the reduced quorum decision were not properly undertaken.
The parties put before the Tribunal legal advice provided to the owners corporation, in which the lawyers stated that in their opinion Motion 5 had been passed as an ordinary resolution. This was because of the difference in the wording within the body of the minutes, and the fact that the minutes had not been amended subsequently. Legal opinion, although helpful to the Tribunal in considering this matter, is not itself evidence. I do not share the opinion held by the lawyers, and note that in preparing that legal advice the lawyers did not have the benefit, as the Tribunal has had, of eyewitness testimony of the events of the 2002 AGM.
Given that the witnesses have said that the motion was put and voted on, and there is no evidence that even one person voted against the motion, the Tribunal is satisfied that the numerical requirements for a special resolution in section 106 were met.
The remaining issue is whether a motion, if it meets the requirements of a special resolution at the meeting, is still passed as a special resolution if it is not recorded as such in the minutes.
There is a Federal Court case about whether a resolution is void for want of the words 'special resolution' in the minutes. Re Van Twest & Anor, Ex parte Tubemakers Australia Ltd[1986] FCA 449; (1986) 69 ALR 573 was a case which concerned a resolution passed at a creditor's meeting. At [574] Pincus J said: