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Cite as: December 2011 85(12) LIJ, p. 8

Owners corporation appeal

Recently I was involved in a case in which I found that an owners corporation might not be able to file an appeal to the Supreme Court from the decision of the Victorian Civil and Administrative Tribunal (VCAT) in the time required by the VCAT Act 1998.

Section 148(2)(a) of the VCAT Act requires that an appeal to the Supreme Court must be filed no later than 28 days after VCAT’s decision.

Section 18(1) of the Owners Corporation Act 2006 (OC Act), however, provides that an owners corporation must not bring legal proceedings unless it is authorised by special resolution to do so.

Pursuant to s96 of the OC Act, a special resolution is passed if a ballot or poll is taken and 75 per cent of the total lot entitlements of all the lots affected by the owners corporation, or in any other case 75 per cent of the total votes for all lots affected by the owners corporation, supports a motion.

Pursuant to s97 of the OC Act, if the vote in favour of a resolution is at least 50 per cent and the vote against is not more than 25 per cent, the resolution is passed as an interim special resolution. An interim special resolution becomes a special resolution of the owners corporation on the day that is 29 days after the day the interim special resolution was passed unless 25 per cent of lot owners petition the secretary against the resolution.

Under the OC Act, there must be notice of at least 14 days to conduct a special general meeting (s76(1)) or a ballot (s85(1)) and if an interim resolution is passed, it is not possible to obtain a special resolution within 28 days.

It might be arguable that, in the circumstances, an appellant should file an originating motion and summons within time and then delay the hearing until the ballot is determined, but it would appear that this will not be appropriate as effectively the application will be a nullity without the support of a special resolution (Deveigne v Askar [2007] NSW CA 45).

It would appear that the safest course is to put the proposed respondent on notice and seek its consent for an application for leave to appeal being made out of time. If this is not provided, it would appear that the appellant should apply within time for leave to appeal out of time.

Norman Mermelstein, Law Ink Pty Ltd

For providing the letter of the month Norman Mermelstein has won a $75 book voucher from the LIV bookshop, redeemable for the next 12 months.

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