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  • Unreported Judgment

Swiatek v The Body Corporate for Euro Residential

 

[2019] QCATA 158

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Swiatek v The Body Corporate for Euro Residential [2019] QCATA 158

PARTIES:

SEAN SWIATEK

(appellant)

 

v

 

THE BODY CORPORATE FOR EURO RESIDENTIAL CTS 34922

(respondent)

APPLICATION NO/S:

APL033-19

ORIGINATING

APPLICATION NO/S:

0865/2018

MATTER TYPE:

Appeals

DELIVERED ON:

14 November 2019

HEARING DATE:

31 October 2019

HEARD AT:

Brisbane

DECISION OF:

Member Roney QC

ORDERS:

The appeal is dismissed.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where s 289(2) of the Body Corporate and Community Management Act 1997 (Qld) allows a person aggrieved by an Adjudicator’s order to appeal on a question of law to the Queensland Civil and Administrative Tribunal – what is error of law – whether there was an error of law- failing to apply the principle of legality – failing to provide adequate reasons for decision-failing to adequately investigate the application.

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BYLAWS – whether a bylaw prohibiting acts which cause to be constructed or placed upon any part of the Lot which can be viewed from outside the Lot any materials or items without the prior written consent of the Committee valid – whether requiring approval for changes to the external appearance of a lot or common property is valid – improper sub-delegation of the Body Corporate’s powers contrary to law – whether the Body Corporate had exceeded its statutory bylaw making power in making “House rules”, contrary to law – a whether a Bylaw was valid regulation or invalid prohibition

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BYLAWS – whether a bylaw uncertain

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BYLAWS – bylaws committee decision – whether the committee failed to act reasonably by not approving the installation of security doors in the applicant’s lot – whether the decision was on a Restricted issue-whether committee or body corporate approval to any alterations did not need to be accompanied by the conditions on which approval will be granted

REAL PROPERTY – STRATA AND RELATED TITLES – whether Adjudicator erred in law by failing to apply the principle of legality – failing to provide adequate reasons for decision – failing to adequately investigate the application.

Acts Interpretation Act 1954 (Qld), s27A

Body Corporate and Community Management Act 1997 (Qld), s 59, s 94, s 97, s 100, s 168, s 169, s 180, s 182, s 183, s 184, s 185, s 186, s 187, s 188, s 269, s 276, s 289, s 290

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 146

Ainsworth & Ors v Albrecht & Anor (2016) 261 CLR 167; [2016] HCA 40

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300

Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177

Body Corporate for Grand Pacific Restore CTS 29576 v Cox [2012] QCATA 14

Connecticut Fire Insurance v Kavanagh [1892] AC 473

Euro Residential [2019] QBCCMCmr 11

Huth v Clarke (1890) 25 QBD 391

King v City of Footscray [1924] VLR 110

Melbourne Corporation v Barry (1922) 31 CLR 174

Mineralogy Pty Ltd v The Body Corporate for “The Lakes Coolum” [2002] QCA 550

Olsen v City of Camberwell [1926] VLR 58

Parker v Mayor of Bournemouth (1902) 86 LT 449

Re Body Corporate for Viridian; Kjerulf Ainsworth & Ors v Martin Albrecht & Anor [2014] QCATA 294

River City Apartments v McGarvey [2012] QCATA 47

Swan Hill v Bradbury (1937) 56 CLR 746

Thompson v Body Corporate for Aspect Caloundra CTS 35499 [2013] QCATA 121

APPEARANCES &

REPRESENTATION:

Appellant:

Self-represented

Respondents:

Andrew Redburn, solicitor of Active Law

REASONS FOR DECISION

  1. [1]
    Euro Residential community titles scheme 34922 (‘Euro Residential’) consists of 83 lots and common property in West End Brisbane. The scheme is registered as 179819. This appeal relates to the consequences of the installation by the Appellant of security screen doors (the security doors) in front of the external glass doors leading onto the balcony of the Appellant’s Lot 1107 in Euro Residential. It is common ground that the subject doors and the screen doors in front of them are within the boundaries of the Appellant’s Lot. Indeed they are at the entrance to his balcony, with the balcony itself also being within his lot. The security doors are visible from outside of his lot. Other lots have security doors in similar locations but they differ in appearance to those installed by the Appellant.
  2. [2]
    The security doors were installed on 6 December 2016. Soon afterwards the Body Corporate advised the Appellant that the installation was contrary to its Bylaws. In particular, the Body Corporate asked the Appellant to remove the doors and, if he wished to replace them, apply for approval for security doors with ‘Crimsafe’ type mesh. The Appellant subsequently sought approval for the installed non-compliant security doors but this was not given.
  3. [3]
    History shows that such seemingly minor matters can be of very great significance. The Appellant here describes the case as representing a very important matter of principle. It brings to mind another famous case involving an owner’s right to choose a door type or colour. Some decades ago one Amabel Wellesley-Colley’s actions sent shockwaves through the population of the city of Bath in the UK when she had simply painted her front door in what was considered a vandalisation of the nationally important Royal Crescent. She chose to paint it a jolly shade of primrose yellow rather than the regulation white, as other doors in the crescent. She considered that it was her property and she could do as she wished. Bath Planning Department and Bath Preservation Trust differed and ordered her to re-paint or remove the offending colour. ‘My front door is not yellow,’ said Ms Wellesley-Colley. ‘People who say it is a terrible colour are criticising a colour made by God. I mixed the paint myself and matched it with a real primrose.’ Ms Wellesley-Colley appealed to the highest authorities in the land. She appealed firstly to an MP to raise the issue in the House of Commons. She contacted the Secretary of State for the Environment, Peter Walker. After spending a considerable sum, and after a six-hour long public enquiry (which she attended in a bright yellow suit), the Department of the Environment found in her favour, and the story became part of the City’s history.
  4. [4]
    The community management statement (CMS) for Euro Residential shows that the Accommodation Module applies. Bylaw 3.2 recorded in the CMS for Euro Residential materially provided and still provides as follows:

3.  APPEARANCE OF LOT

3.2   The owner or occupier of a Lot shall not, except with the written consent of the Body Corporate, make a change in the external appearance of the Lot or the Common Property nor cause to be constructed or placed upon any part of the Lot which can be viewed from outside the Lot any materials or items without the prior written consent of the Committee.

  1. [5]
    By s 59 the Body Corporate and Community Management Act 1997 (Qld) (‘the Act’), the CMS for a community titles scheme is binding on each member of a body corporate. Further, s 168 and s 169 of the Act provide that bylaws are provisions that appear in a CMS and provide for, among other things, regulations applying to the use and enjoyment of lots included in the scheme. Section 94 of the Act imposes a duty on a body corporate to enforce the CMS. Sections 182 to 188 of the Act set out the process for pursuing an alleged contravention of a bylaw.
  2. [6]
    This Appeal is from a decision of an Adjudicator appointed by the Queensland Body Corporate and Community Management Commissioner in reasons handed down 14 January 2019.[1] The decision of the Adjudicator was given under s 276 of the Act.
  3. [7]
    In the adjudication to the Adjudicator the Appellant raised three grounds for asserting that Bylaw 3.2 is invalid, namely that:
    1. (a)
      The bylaw was ultra vires because it is prohibitive rather than regulatory;
    2. (b)
      The bylaw was ambiguous and uncertain; and
    3. (c)
      The bylaw is unreasonable or oppressive.
  4. [8]
    The Adjudicator was not satisfied that the bylaw was invalid, and held other consequential orders were therefore not required.
  5. [9]
    The fourth order asked for in the Adjudication was in effect for a declaration that new bylaws relating to the use and enjoyment of lots must contain as much detail as possible to regulate the activity. The Adjudicator held that the basis for seeking that order was neither explained nor substantiated and that it was not clear what new bylaws was being referred to and no submission made on how the unspecified bylaws should be framed. The Adjudicator considered that whilst any bylaw recorded by the Body Corporate should be sufficiently clear as to be able to be complied with and enforced, the order sought was too imprecise to be unenforceable if it was made. She held that the Appellant had not substantiated that any such order is warranted.
  6. [10]
    The fifth order asked for in the Adjudication was that the screen door installed be ‘deemed approved’. The Adjudicator did not consider that any such order was warranted.

The Grounds of Appeal

  1. [11]
    In this appeal the Appellant sought orders that:
    1. (a)
      The decision of the Adjudicator be set aside, apparently in its totality;
    2. (b)
      A declaratory order that Bylaw 11 contained in Schedule 4 of the Act, that is the model Bylaw, was at all times invalid and unenforceable as it is contrary to s 97 of the Act. In other words, a declaration that a statutory example of, or a model Bylaw to be found in the Act be declared invalid;
    3. (c)
      A declaratory order that Bylaw 3.2 in the Respondent’s CMS dated 15 November 2011 is and was void;
    4. (d)
      Within three months the Respondent be required to record a new CMS removing the invalid Bylaw 3.2; and
    5. (e)
      For such time as the above ‘invalid bylaws’ continue to be recorded in the CMS, the Respondent must not implement or enforce the invalid bylaws. This presumably is meant to refer to Bylaw 3.2, but perhaps also the model Bylaw 11.
  2. [12]
    On 31 July 2019, the Appellant was granted leave to amend the grounds of his appeal.
  3. [13]
    Ground 1A, as now articulated, is that the Adjudicator erred in law by failing to consider a relevant provision of the Act, namely s 97, prohibiting delegation of the Body Corporate’s powers.
  4. [14]
    Ground 1A raises the point that the exercise of a discretion by the Committee under a bylaw such as Bylaw 3.2 or default bylaw 11 is an improper sub-delegation of the Body Corporate’s powers contrary to s 97 of the Act (‘the Sub-delegation Point’).
  5. [15]
    Ground 1B is that the Adjudicator erred in law by finding that the Body Corporate had not exceeded its statutory bylaw making power in recording Bylaw 3.2 and what is contended to be its consequent Crimsafe ‘House rule’, contrary to s 97 of the Act.
  6. [16]
    Ground 1C is that the Adjudicator erred in law by finding that the Body Corporate had not exceeded its statutory bylaw making power in recording Bylaw 3.2, by applying the wrong test to distinguish between valid regulation and invalid prohibition.
  7. [17]
    Ground 2 is that the Adjudicator erred in law by finding that s 169 of the Act empowered a Body Corporate to make bylaws.
  8. [18]
    Ground 2 raises the point that the exercise of a discretion by the Committee under a bylaw such as Bylaw 3.2 is the exercise of a ‘bylaw making power’, which power requires authorisation by a Special resolution of the Lot Owners in General Meeting (‘the Bylaw Making Point’).
  9. [19]
    Ground 3 is that the Adjudicator erred in law by finding that the committee of the Body Corporate was empowered to make decisions on all matters other than those requiring resolution at general meeting and that she failed consider s 100(2) of the Act, which sets out matters committees cannot decide.
  10. [20]
    Ground 3 raises the point that a decision of the Committee regulating an alteration to the aesthetics of a Lot is invalid as it is a decision affecting and/or changing the rights of Lot Owners, which is a restricted issue under s 100(2) of the Act (‘the Restricted Issue Point’).
  11. [21]
    Ground 4 is that the Adjudicator erred in law by finding that prior committee or body corporate approval to any alterations did not need to be accompanied by the conditions on which approval will be granted, contrary to s 97 of the Act.
  12. [22]
    Ground 5 is that the Adjudicator erred in law by finding that Bylaw 3.2 was not uncertain, particularly due to her failing to consider the impact of s 97 of the Act.
  13. [23]
    Ground 6 is that the Adjudicator erred in law by failing to apply the principle of legality.
  14. [24]
    Ground 7 is that the Adjudicator erred in law by failing to provide adequate reasons for her decision.
  15. [25]
    Ground 8 is that the Adjudicator erred in law by failing to adequately investigate the application.
  16. [26]
    On 24 June 2019, the Appellant lodged amended submissions in support of the grounds of appeal (the Appeal Submissions), to which the Respondent responded on 16 August 2019 in a response running to 40 pages. It filed further supplementary submissions at the hearing. The Appellant filed submissions in reply on 30 August 2019 and which ran to a further 24 pages. The net effect was that in an appeal on a question of law, the parties made 100 pages of written submissions.

Issues raised in the appeal not raised below

  1. [27]
    There is some controversy as to whether any of the present grounds of appeal sought to be advanced were raised before the Adjudicator either directly or indirectly. The question is whether, in those circumstances, those issues, if they were not in fact raised before the Adjudicator, can be raised now. It seems to me, that there is no necessity to resolve the issue as to whether any and all of the issues which are now raised in the appeal were directly raised below because all of the questions concerned raise issues of law which can be conveniently dealt with by this Tribunal on an appeal without there being prejudice to the Respondent. It is certainly the case that the way in which the points have been now argued diverge and supplement matters which were raised before the Adjudicator.
  2. [28]
    The High Court has made clear on numerous occasions that the ‘finality principle’ applies to appeals, so ‘except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence he failed to put during the hearing when he had an opportunity to do so’.[2] On the other hand, the arguments really concern issues of law. In those circumstances, it is expedient to deal with the arguments: Connecticut Fire Insurance v Kavanagh [1892] AC 473.
  3. [29]
    I accept that in appeals of this kind from an Adjudicator, it is relevant that the Adjudicator’s role is both inquisitorial and adjudicative, and is meant to cater for both lay persons and persons with substantial commercial interests.[3] The decision in Thompson v Body Corporate for Aspect Caloundra CTS 35499 permitted arguments to be advanced in circumstances in which the submissions sought to be advanced naturally arose out of the issues that obviously had to be explored in the adjudication: see Thompson reasons at [48].
  4. [30]
    It is doubtful in my view whether the submissions now sought to be advanced do naturally arise out of the issues that had to be explored in the adjudication because, as the Adjudicator’s reasons disclose, the Adjudicator is not required to and did not deal with those issues and was not invited to do so. Be that as it may, because the issues raise strict questions of law, and because the Appellant has fully articulated the arguments in support of these grounds, to which the Respondent has had a full and complete opportunity to respond, it seems to me to be in the interests of justice to allow each of the points to be raised in this appeal, even if they were not specifically raised below.

Appeals to this Tribunal

  1. [31]
    The appeal to this Tribunal is governed by s 289 of the Act, which provides:

289 Right to appeal to appeal tribunal

  1. (1)
    This section applies if—
  1. (a)
    an application is made under this chapter; and
  1. (b)
    an adjudicator makes an order for the application (other than a consent order); and
  1. (c)
    a person (the aggrieved person) is aggrieved by the order; and
  1. (d)
    the aggrieved person is—
  1. for an order that is a decision mentioned in section 288A, definition order—an applicant; or
  2. for another order—
  1. (A)
    an applicant; or
  1. (B)
    a respondent to the application; or
  1. (C)
    the body corporate for the community titles scheme; or
  1. (D)
    a person who, on an invitation under section 243 or 271(1)(c), made a submission about the application; or
  1. (E)
    an affected person for an application mentioned in section 243A; or
  1. (F)
    a person not otherwise mentioned in this subparagraph against whom the order is made.
  1. (2)
    The aggrieved person may appeal to the appeal tribunal, but only on a question of law.
  1. [32]
    Section 290 of the Act provides:

290 Appeal

  1. (1)
    An appeal to the appeal tribunal must be started within 6 weeks after the aggrieved person receives a copy of the order appealed against.
  1. (2)
    If requested by the principal registrar, the commissioner must send to the principal registrar copies of each of the following—
  1. (a)
    the application for which the adjudicator's order was made;
  1. (b)
    the adjudicator's order;
  1. (c)
    the adjudicator's reasons;
  1. (d)
    other materials in the adjudicator's possession relevant to the order.
  1. (2)
    When the appeal is finished, the principal registrar must send to the commissioner a copy of any decision or order of the appeal tribunal.
  1. (3)
    The commissioner must forward to the adjudicator all material the adjudicator needs to take any further action for the application, having regard to the decision or order of the appeal tribunal.
  1. [33]
    Section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides:

146 Deciding appeal on question of law only

In deciding an appeal against a decision on a question of law only, the appeal tribunal may—

  1. (a)
    confirm or amend the decision; or
  1. (b)
    set aside the decision and substitute its own decision; or
  1. (c)
    set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration—
  1. with or without the hearing of additional evidence as directed by the appeal tribunal; and
  2. with the other directions the appeal tribunal considers appropriate; or;
  1. (d)
    make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c).

Ground 1A – the Sub-delegation Point

  1. [34]
    As I have already identified, Ground 1A raises the point that the exercise or potential exercise of a discretion by the committee under a Bylaw such as the present Bylaw 3.2, or the model Bylaw 11, amounts to an improper sub-delegation of the Body Corporate’s general powers to the committee, and that this is contrary to s 97 of the Act.
  2. [35]
    Section 97 of the Act prohibits a Body Corporate from delegating its powers. The Applicant also relies upon the provisions of s 27A(12) of the Acts Interpretation Act 1954 (Qld) which provides that if an Act authorises the delegation of a function or power, that function or power may be sub-delegated only if the Act expressly authorises the function or power to be sub-delegated.
  3. [36]
    The Appellant submits that the Body Corporate has delegated its bylaw making power to the committee. The contention is that the creation by the Body Corporate of Bylaw 3.2 in and of itself constituted a delegation of bylaw making power to a committee. The way in which the Act is structured is such as to permit a Body Corporate to act by resolution of unit or lot holders in general meeting, in various ways by the different kinds of resolutions that can or must be passed in order for the Body Corporate to act in specific ways. Hence, for the Body Corporate to act in certain ways it requires a resolution of the Body Corporate in general meeting which is to be passed without dissent, and in others, by way of special resolution and ordinary resolution.
  4. [37]
    The committee of the Body Corporate is in charge of the administrative and day-to-day running of the body corporate, the making decisions on behalf of the body corporate and putting the lawful decisions of the body corporate into place. The committee could make decisions by calling a committee meeting or by voting outside a committee meeting.
  5. [38]
    Section 100 of the Act provides as follows:

100 Power of committee to act for body corporate

  1. (1)
    A decision of the committee is a decision of the body corporate.
  1. (2)
    Subsection (1) does not apply to a decision that, under the regulation module, is a decision on a restricted issue for the committee.
  1. (3)
    Despite anything in a contract with the body corporate (including the engagement of a body corporate manager), a decision of the body corporate manager is void to the extent that it is inconsistent with a decision of the body corporate’s committee.
  1. (4)
    If persons, honestly and reasonably believing that they are the committee for the body corporate, make a decision while purportedly acting as the committee, the decision is taken to be a decision of the committee despite a defect in the election of 1 or more of the persons.
  1. (5)
    The committee must act reasonably in making a decision.
  1. [39]
    Section 100(2) deals with ‘restricted issues’. One of the Appellant’s arguments which I will deal with under Ground 3, is that the decision of the committee in relation to the security doors was a restricted issue in that it changed his rights or privileges. Under s 42 and s 43 of the Standard Module the committee cannot make decisions about restricted issues, which are:
    1. (a)
      Setting or changing a body corporate levy;
    2. (b)
      Changing the rights, privileges or obligations of lot owners;
    3. (c)
      Decisions that have to be made by ordinary resolution, special resolution, resolution without dissent or majority resolution;
    4. (d)
      Starting a legal proceeding, unless it is to recover a liquidated debt against the owner of a lot related to a proceeding where the body corporate is already a party for an offence under the bylaw contravention provisions of the Body Corporate and Community Management Act 1997 (Qld);
    5. (e)
      A dispute resolution application;
    6. (f)
      Paying money to committee members unless it is less than $50 incurred by a committee member attending a committee meeting and not more than $300 reimbursed to a committee member in a 12 month period.
  2. [40]
    The notion of a prohibition on delegation to subordinate legislators is well known to the law.
  3. [41]
    There have been many different expressions which Parliament may employ to confer on a delegate legislator rule-making powers falling short of prohibition. For example, the subordinate legislator may be given power to regulate, restrain, restrict, govern or grant license.
  4. [42]
    Where the legislator has been given such relatively limited powers, the weight of authority recognises that there is something prima facie improper about allowing the legislator to enact a prohibition subject to a power of dispensation, whether that power is reserved to the legislative body or vested in another. The leading English case is Parker v Mayor of Bournemouth,[4] in which the local authority had statutory power to make bylaws regulating the selling of articles on the beach. The authority passed a bylaw prohibiting sales on the beach except in pursuance of an agreement with the corporation. The court held that the bylaw was invalid on the ground that it reserved to the authority power to make unreasonable and discriminatory agreements. A similar view has been taken by courts of high authority in other jurisdictions. Thus in Melbourne Corporation v Barry the High Court,[5] held that a local authority given power to regulate processions could not lawfully prohibit processions and confer on the town clerk power to exempt persons from prohibition.
  5. [43]
    The concept of delegation itself is recognised as follows:

Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to a conferring of an authority to do things which otherwise the person would have to do himself. The best illustration of the use of the word is afforded by the maxim, delegates non potest delegare, as to the meaning of which it is significant that it is dealt with under the law of contracts: it is never used by legal writers, so far as I am aware, as implying that the delegating person parts with his power in such a manner as to denude himself of his rights. If it is correct to use the word in the way in which it is used in the maxim, as generally understood, the word ‘delegate’ means little more than an agent.[6]

  1. [44]
    The argument that a bylaw which is a regulation which binds each member of the Body Corporate and which prohibits individual lot owners from constructing or placing upon any part of their lots materials or items which can be viewed from outside the lot without the prior written consent of the committee, amounts to a delegation to the committee of some power which only the Body Corporate in general meeting can discharge, is elusive. It is critical for the due administration of the activities of a Body Corporate, that the Committee be in a position to make appropriate decisions to administer the day to day running of the Body Corporate other than in respect of restricted matters which the Act itself insists be done by the Body Corporate in general meeting that what are essentially administrative decisions about whether to permit particular conduct or not can occur.
  2. [45]
    In my view, to prohibit certain conduct, subject to specific allowance by a Body Corporate Committee, does not necessarily amount to a contravention of the prohibition in s 97 of the Act on a Body Corporate delegating its powers. A decision by a committee to permit, or not permit something to be placed on the part which may be viewed from outside of it on any application in that regard is nothing more than a valid exercise of the power which the committee has under s 100 of the Act to make the decisions of the Body Corporate.
  3. [46]
    It has been said by an learned academic[7] that:

One of the central concerns of administrative law is to provide a check against unreasonableness in the sense of arbitrary, capricious or improperly discriminatory action. This means that at some point in the administrative process the courts will have to be prepared to prevent such action. The courts have recognised intense difficulties in invalidating individual exercises of discretion on these grounds, especially in discovering proof of capriciousness and the like .11 If this cannot be guarded against at the level of exercise of discretion in the individual case the only effective safeguard is to prevent the potential for abuse by invalidating the conferment of arbitrary power. A presumption on the part of the courts that the person with the dispensing power will exercise it reasonably completely subverts the court's power to prevent abuse. In general, the courts are alive to this problem and the weight of authority rejects the presumption of reasonable administration and looks to the potential for abuse.

  1. [47]
    For the Respondent it is submitted that the contention that Bylaw 3.2, or indeed model Bylaw 8 in Schedule 4 to the Act is an unlawful delegation is contrary to decisions of this Appeals Tribunal and also of a Court of Appeal. In that regard it relies upon the decisions in River City Apartments v McGarvey [2012] QCATA 47, Mineralogy Pty Ltd v The Body Corporate for “The Lakes Coolum” [2002] QCA 550 and Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177.
  2. [48]
    It is not apparent from a review of any of those three decisions, that the question of whether the making of a Bylaw that reserved some decision making power to the Committee as to the way it was to be enforced or whether it was to be enforced in any particular way amounted to an unlawful delegation of power. River City Apartments certainly concerned the validity of a Committee’s exercise of discretion regarding a bylaw concerning the keeping of pets. The member deciding it, Mr Barlow QC, as he then was, held that a bylaw that prohibits altogether the keeping of pets in lots is not a bylaw regulating the use or enjoyment of lots, but purports to prohibit a particular use and type of enjoyment altogether. It therefore goes beyond the scope of a valid bylaw permitted by s 169 and is invalid. He did not consider or decide and point about delegation.
  3. [49]
    Similarly, the decision in Beaches Surfers Paradise concerned a bylaw which vested in a committee a discretion to approve or disallow an application under its standard bylaws to keep a pet. As the reasons in Beaches Surfers Paradise make clear at [2]-[4], [62] and [112], the Body Corporate was seen as performing its statutory Body Corporate functions and enforcing the standard bylaws through the committee in line with the arrangements in the CMS, there was no argument made that the language which vested that discretion in the committee in that case amounted to a delegation of regulation-making power. Hence the reasons do not canvas that issue. Carmody J did say in arriving at his conclusions, at [107]-[108]:

[107] That said, however, the committee could not properly exercise its discretion in line with BCCM demands without, at least, genuinely looking for ways of granting, as well as reasons for denying, permission. It was incumbent on the committee to adequately consider whether Marley’s visitations could be permitted on terms that reduced her smelliness on hot days to the level of acceptability rather than default to outright refusal.

[108] Although the committee said it “can see no way in which a condition for the approval of a dog on level 25 could be devised to ensure (Marley’s) presence did not interfere unreasonably with the use and enjoyment of their lot for owners on levels 10 to 24 (and particularly) the owners on level 13”, treatment of the question was perfunctory at best and overly reliant on the dubious assumption that the respondent would probably not comply with reasonable conditions anyway.

  1. [50]
    This implies that he proceeded on the apparently uncontroversial premise that the Committee was entitled to exercise such a discretion.
  2. [51]
    The Appellant contends that the decision in River City Apartments and any others ‘that purport to delegate bylaw making power authority to a Body Corporate Committee should be ignored because that reasoning is plainly wrong’. He contends that the decisions in River City and Body Corporate for Beaches Surfers Paradise are not binding or persuasive and can be distinguished because each concerned bylaws relating to regulation of animal use and that they related to model or default Bylaw 11 in Schedule 4 to the Act and cannot be imported to the operation of a Bylaw which regulates the external appearance of lots.
  3. [52]
    The decision of the Court of Appeal in Mineralogy is principally concerned with the question of whether a bylaw regulated or prohibited an activity under a bylaw. There the bylaw in question had similarities with that under present consideration in that it prohibited the carrying out of improvements or alterations on the lot other than those to which the Body Corporate Committee or the agent had given approval. The decision does not concern itself with whether the form of that bylaw constituted an unlawful delegation of power, however it is implicit from the reasons that the Court was not invited to arrive at that conclusion. The Respondent points to findings at paragraph [13] of the Reasons of the Court of Appeal in that case that the standard bylaws in the Act contained similar forms of restriction to those which were in the bylaw under consideration and concluded that ‘It is well settled that provisions having, like the bylaws in Schedule 2, the benefit of statutory sanction by way of example are proof against challenge as being beyond power. That has long been recognised in the case of Table A to the Companies Act’.
  4. [53]
    Whilst this is authority for the proposition that bylaws which have the benefit of similarly worded statutory sanctioned bylaws are not being beyond the power of the Body Corporate, that is, not merely its committee, in my view it does not stand as authority for the proposition that to grant a committee a discretion as to whether to permit something to occur which the bylaws might not otherwise permit to occur is a delegation of power. The delegation point does not appear to have been taken or considered.
  5. [54]
    Nevertheless, it seems to me that for the reasons I have already expressed, Bylaw 3.2, and, in the event that Bylaw 8 in Schedule 4 to the Act instead applied, such that the occupier of a lot must not without the Body Corporate’s written approval, make a change to the external appearance of the lot, do not contravene s 97 of the Act and they do not make an unlawful delegation of power to the committee, whether or not the relevant bylaw specifically vests a discretion in the committee, or the Body Corporate itself.

Ground 1B

  1. [55]
    Under this ground the Appellant argues that the Body Corporate exceeded its statutory bylaw making power in adopting Bylaw 3.2 in its present form and which had some other unlawful corollary insofar as it was enforced by applying some “house rule” that required particular kinds of security doors to be used where security doors were used.
  2. [56]
    The Appellant’s contention is that the Body Corporate had no authority or power to create Bylaw 3.2 because it purported to sub-delegate bylaw making power to a committee and  that accordingly the committee’s house rule requiring a particular door type to be used exceeded statutory law making power.
  3. [57]
    This argument has both a similarity to that which underpinned Ground 1A, but also involves a level of circuitous argument. An entity with authority to establish a bylaw does not exceed its authority because, in the administration of that bylaw, the committee administering it develops some kind of policy or house rule in its application. The source of power for the Body Corporate to pass bylaws is in the Act. By their very nature bylaws in the CMS can only be there if they provide for, amongst other things, matters that relate to the use and enjoyment of lots.
  4. [58]
    The Appellant points to discussion in an Adjudicator’s decision in The Grove [2018] QBCCMCmr 581 at [58]-[59] which identifies that it is common for bodies corporate to make rules whether by specific bylaw or without one which are not inconsistent with the Act. It identifies that house rules which are not bylaws in that they have not been adopted at a general meeting and recorded in the CMS, are not binding but are advisory. The statements by the Adjudicator in that case do not go to the present issue which is concerned with the authority of the Body Corporate to pass the bylaws.
  5. [59]
    The Appellant’s second proposition depends upon reliance on another Adjudicator’s decision in Quays Hope Island [2017] QBCCMCmr 223 at [9] which was concerned with controversy over parking in visitor’s bays. In Quays Hope Island the relevant bylaw was a bylaw that purported to grant the Body Corporate committee a power to make house rules and as a result it was held that to the extent that the bylaw purported to empower the committee to create its own bylaws on behalf of the scheme, the bylaw was invalid. The adjudicator there held, quite properly that:

Bylaw 21.3 is a more limited example of a bylaw that purports to grant the body corporate committee (the committee) the power to make what are often referred to as “house rules”. Adjudicators have repeatedly held that such house rules are unenforceable.[8] I am of the same view, and for the same reasons. Namely, the Act provides that bylaws are to appear in the scheme’s community management statement (CMS). All owners must decide to adopt them by passing a special resolution at a general meeting. They only take effect from the date that they are recorded in the CMS. Rules that are proclaimed by the committee and never recorded in the CMS do not meet any of these requirements. To the extent that bylaw 21.3(b) purports to empower the committee to adopt bylaws on behalf of the scheme it is inconsistent with the Act and therefore invalid to the extent of the inconsistency.

  1. [60]
    Neither of those decisions, support the contention advanced by the Applicant that the Body Corporate had no power to enact a bylaw in the form of the present bylaw even if it vested a discretion in the Committee which when exercised involved it applying some sort of policy or “house rule”, if in fact one existed. The application of a policy or “house rule” might be unreasonable in a given case, depending on the facts, but the fact that a committee has one does not invalidate the bylaw itself.
  2. [61]
    The end result is that there is no question as to the authority or power of the Body Corporate to pass the bylaw simply because its language involved the exercise of a discretion by the committee as to whether to permit what was otherwise notionally prohibited.

Ground 1C

  1. [62]
    Ground 1C is that the Adjudicator erred in law by finding that the Body Corporate had not exceeded its statutory bylaw making power in recording Bylaw 3.2, by applying the wrong test to distinguish between valid regulation and invalid prohibition.
  2. [63]
    The Adjudicator considered the issue of whether Bylaw 3.2 is ultra vires because it exceeded the legislative power to regulate behaviour by providing the Committee with an ability to ‘prohibit at will’. On this issue she held as follows:

[27] The applicant asserts that Bylaw 3.2 is ultra vires because it exceeds the legislative power to regulate behaviour by providing the Committee with an ability to ‘prohibit at will’. As such, he argues that the bylaw is prohibitive rather than regulatory.

[28] If Bylaw 3.2 prohibited changes to the appearance of a lot or common property, or imposed such onerous conditions on requests for changes that it would be very difficult for an owner to ever have changes approved, the bylaw could well be beyond the power of the Body Corporate to make. However, that it not the case here. The bylaw simply requires approval.

[29] While there is no statutory requirement for an owner or occupier to seek approval for changes to the external appearance of a lot, this is clearly something that the legislation contemplates that a body corporate could choose to make a bylaw on. Bylaw 8(1) in the default bylaws in Schedule 4 of the Act is an example of a bylaw regulating changes to the appearance of a lot by requiring changes to the appearance of a lot to be authorised by the body corporate. Bylaws regulating alterations to the external appearance of a lot are common in community titles schemes and have consistently been accepted by adjudicators. Given the nature of community titles schemes and their design, visual consistency and harmony is considered to be important in many schemes. A bylaw such as this can assist in preventing changes to a lot that could adversely affect other owners and the Body Corporate by causing discordance in the external appearance of the scheme as a whole.

[30] To the extent that Bylaw 3.2 regulates changes to the external appearance of common property, the legislation includes an obligation for owners to obtain body corporate approval to make an improvement to common property.[9]  The body corporate approval can be given by the committee in some instances, and otherwise by ordinary resolution in a general meeting. Bylaw 3.2 is consistent with the legislative provisions in that regard.

[31] I do not consider that Bylaw 3.2 gives the Body Corporate or its Committee an unfettered power to allow or refuse changes to the appearance of a lot or common property. In undertaking all of its functions, including enforcing the bylaws, the legislation mandates that the Body Corporate must act reasonably.[10]  Similarly, the Committee must act reasonably in making a decision.[11]  If the Body Corporate or its Committee acts capriciously, without justification, or otherwise unreasonably in deciding a request, that decision can be challenged. If an adjudicator is satisfied that the decision was unreasonable, the adjudicator can overturn the decision.

[32] Bylaw 3.2 does not include words such as “unless the change is minor and does not detract from the amenity of the lot and its surrounds”, as are included in the default Bylaw 8, and I do not consider that those words can be imputed into the meaning of Bylaw 3.2. Notwithstanding that, the obligation on the Body Corporate and its Committee to act reasonably in enforcing the bylaw would mean that any decision to refuse approval for a change that was minor and did not detract from the amenity of the lot and its surrounds would be open to challenge as unreasonable. Whether the decision was in fact unreasonable would depend on the particular circumstances of each case. Therefore, while Bylaw 3.2 is not the same as the default Bylaw 8(1), its practical effect is likely to be very similar.

[33] Given that the discretion in the bylaw to give or refuse approval is constrained by the legislative obligation to act reasonably, I am satisfied the bylaw is regulatory rather than prohibitive. Accordingly, I am not satisfied that the applicant has established that the Body Corporate has exceeded its statutory bylaw making power in recording Bylaw 3.2.

  1. [64]
    In support of his contention that Bylaw 3.2 contains an invalid prohibition, the Appellant relies upon decisions in Swan Hill v Bradbury (1937) 56 CLR 746, and the earlier mentioned decision of the Court of Appeal in Mineralogy. The Appellant contends that the Adjudicator ‘ignored the precedent and the rules established’ by those two decisions which identified that there was a prohibition on bylaws which constituted a complete prohibition or prohibition at will.
  2. [65]
    In Mineralogy, the Court of Appeal, by McPherson JA, with whom Jerrard JA and Philippides J (as Her Honour then was) agreed, held:

[6] If that were the only arguable deficiency in bylaw 53.1, it would be a valid exercise of the bylaw making power and the decision below would not be open to challenge. However, at the conclusion before us of submissions by the applicant, the Court raised the question whether bylaw 53.1 can properly be considered as providing for “regulation” as distinct from the prohibition of using and enjoying. What, s 131(1)(b)(i) authorises is the making of a bylaw providing “only” for “regulation of .. the use and enjoyment of ... lots ...”. On its face, it confers no power to make a bylaw prohibiting use and enjoyment. The question then is whether bylaw 53.1 in substance prohibits rather than regulates the carrying out of any construction, etc on a lot. There is no doubt that in form the provision is stated as a prohibition. It says:

“An occupier must not carry out any construction, improvements ... or landscaping on the lot...”

It then proceeds to qualify the prohibition by adding “other than those to which the Body Corporate Committee ... has given approval in writing as hereafter provided”.

[7] In Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746, 762, Dixon J said:

“... the force of the word ‘regulating’ has been discussed repeatedly and the cases dealing with its application have grown only too familiar. Prima facie a power to make bylaws regulating a subject matter does not extend to prohibiting it either altogether or subject to a discretionary licence or consent. Bylaws made under such a power may prescribe time, place, manner and circumstance and they may impose conditions, but under the prima facie meaning of the word, they must stop short of preventing or suppressing the thing or course of conduct to be regulated.”

Similar statements are found in judgments in other cases. For example, in Brunswick Corporation v Stewart [1941] HCA 7; (1941) 65 CLR 88, 95, Starke J said:

“Prima facie a power to regulate and restrain a subject matter does not authorize prohibiting it altogether or subject to a discretionary licence or consent ... But, as might have been expected, this proposition cannot be universally applied (Slattery v Naylor (1888) 13 App Cas 446).

[8] The underlying rationale is that a power to regulate an activity implies that the activity will, despite such regulation, be capable of continuing, which it would not do if it were completely prohibited. See City of Toronto v Virgo [1896] AC 88, 93. Prohibition of an activity in part, in a particular case, or in a particular way, may however in some circumstances be needed in order to achieve effective regulation. “The extent to which such partial prohibition is permissible” the Privy Council has said, “depends on the terms of the power to regulate and on the context in which the power is to be operated”: Ng Enterprises Ld v Urban Council [1996] UKPC 30; [1997] AC 168, 177. The Australian authorities, a few of which are referred to in that decision are in accord with that view. See, for example, Goldberg v Law Institute of Victoria [1972] VicRp 69; [1972] VR 605, where Gillard J held that a prohibition upon exhibiting a sign or nameplate of more than a specified size on solicitor’s premises was authorised by a power to make rules regulating professional duties, practice, conduct and discipline of practitioners. In Brunswick Corporation v Stewart [1941] HCA 7; (1941) 65 CLR 88, 95, Starke J said that the court “should have regard to the body entrusted with the power and the language in which the power is expressed and the subject matter with which the body has to deal”. In reliance on that statement, Gillard J held that the provision relating to exhibiting signs was no more than a particular prohibition in a solicitor’s practice, and was valid as a form of regulation ([1972] VR 605, 610).

[9] The provision in bylaw 53.1 does, it must be acknowledged, go considerably further. It commences with a prohibition on the carrying out of construction, improvements, renovations, alterations, additions or landscaping, all of which are described as “the works”. In the case of a vacant lot like that owned by the applicant, the effect is to prevent what is generally accepted as a basic right of a landowner, which is to build a dwelling on the land. That activity is prohibited by the bylaw unless it takes place with the prior written approval of the Body Corporate Committee. Prima facie, as Dixon J said in the passage referred to above, such a prohibition goes beyond mere regulation. It begins by committing to the discretion of the Committee or its agent the owner’s ability to construct works. The discretion is, however, not altogether unqualified or unlimited. Approval “must not be unreasonably withheld”, provided that the works “are in harmony with the architectural design ...” and other matters specified in subpara (i) of bylaw 53.1(c). The quoted formula (“not ... unreasonably withheld”) is commonly found in covenants in leases and in statutory provisions regulating them, where its meaning has proved neither elusive nor difficult to ascertain or apply.

...

[12] Given that the bylaw supplies an objective standard by which to judge the harmonious character of the proposed works, and that approval to carrying them out must not be unreasonably withheld, it does not seem to me that the bylaw is invalid on the ground of its being prohibitory rather than regulatory. In Brunswick Corporation v Stewart [1941] HCA 7; (1941) 65 CLR 88, 96, the question of validity was approached as one to be determined according to whether or not the requisite approval under the bylaw could be arbitrarily withheld. Starke J said:

“It thus appears that the bylaw does not invest the surveyor with a power of prohibiting building altogether or subject to a discretionary licence or permit or consent. The provisions of the bylaw do not commit the grant or refusal of a permit to build to the discretion or arbitrary and capricious authority of the surveyor but give him an authority merely to examine and satisfy himself that the bylaws are being complied with, subject even then to the arbitrament of an independent and skilled body of architects. Despite Bradbury’s Case, bylaw 53 appears to me within the power to regulate the erection and construction of buildings.”

So here, although the question whether the proposed works will achieve harmony with existing improvements involves an element of individual taste, it is not something that is committed to the arbitrary and capricious authority of the Body Corporate Committee or its nominated agent, either generally or without an opportunity for challenging the decision to refuse approval on the ground that it is unreasonable.

  1. [66]
    Applying the same logic, and accepting the Adjudicator’s conclusion that it is both relevant, and significant that a Body Corporate owes a duty to act unreasonably in the discharge of its functions, it seems to me that Bylaw 3.2 does not involve a prohibition which is otherwise subject to arbitrary or capricious authority by the Body Corporate or in circumstances in which it is not open to challenge.
  2. [67]
    It is true that the bylaw under consideration in Mineralogy involved the exercise of a judgment by the committee as to whether certain works were in harmony with the architectural design of existing improvements, however, in my view, the statutory requirement that the Body Corporate committee act reasonably in making its decisions constitutes ‘an objective standard’ by which to identify whether a consent has been reasonably provided or otherwise.
  3. [68]
    By way of demonstration of the way in which that duty to act reasonably has been construed can be seen from the analysis by Carmody J in Body Corporate For Beaches Surfers Paradise v Backshall.[12] There, at [99]-[100], His Honour held in a case involving pet use that:

[99] The committee acted reasonably in the BCCM sense if a notionally reasonable committee faced with the same issue could (not would) have honestly and rationally reached the same conclusion on a proper consideration of all the available material.[13]

[100] A reasonable committee, in my opinion, would consider:

  • its proper legal requirements and its functions;
  • the source, purposes and limits of its discretion;
  • all the relevant circumstantial considerations;
  • arguments for and against permitting Marley as distinct from dogs or pets in general;
  • the likely future consequences or gravity of refusing or granting permission on both the applicant and the CTS including any precedent value of its decision either way;
  • the nature and extent of any infringement on the applicant’s rights, interests and reasonable expectations of the other pet loving residents;
  • the majority view;
  • the assessed magnitude and frequency of the risk that dog smells would adversely impact on the enjoyment rights of others;
  • whether the objections could be ameliorated (e.g. whether the perceived risks to rights and reasonable expectations of other CTS users could be reduced to the level of acceptability by affordable practical measures via imposition of conditions); and
  • practical ways of resolving the tension between the rival positions rather than reasons not to do so.
  1. [69]
    The application of similar considerations to whether to allow a particular screen door to be installed means that the requirement in the bylaw for prior approval for the installation of such a door by the Body Corporate committee does not amount to it containing an absolute prohibition and it constitutes a lawful act of regulation.
  2. [70]
    The Adjudicator considered the issue of whether the Committee failed to act reasonably, contrary to s 94(2) and s 100(5) of the Act, by failing to accept or consider his application for approval of the installed security doors. Her findings are not challenged in this appeal.
  3. [71]
    On this issue she held as follows:

[55] The applicant was on notice by the Body Corporate’s letter of 9 December 2016 that it required any request for approval of security doors to be for ones with “crimsafe type mesh” (as distinct from only Crimsafe brand doors). The applicant has not given any reason in his application as to why he was not able to install doors with Crimsafe type mesh or why it was unreasonable in the circumstances for the Committee to require security doors approved under Bylaw 3.2 to be made from Crimsafe type mesh.

[56] The applicant has also provided no evidence that he responded to the correspondence in January 2017 disputing the non-acceptance of his request or the restriction on the type of doors, or presenting arguments as to why the style of security door installed was necessary or appropriate in his particular circumstances. Rather, he simply seems to have done nothing.

[57] It is evident that the applicant’s request for approval was not accepted, and so was effectively refused, because it was for security doors that were not made from a Crimsafe type mesh. The applicant did not question that response at the time and so the Committee was not called on to give reasons for that requirement at that time. In its submissions, the Committee has explained its requirements for the visual appearance of security doors and its concerns with the visual appearance of the doors installed by the applicant. The applicant has not disputed the Committee’s reasons. Accordingly, the applicant has not established that the matters on which the Committee apparently based its decision were not rational considerations.

[58] The applicant claims the Committee failed to provide procedural fairness to him by preventing him from explaining the relevant circumstances from his side. However the applicant does not explain this assertion. The applicant was invited to apply for approval for new security doors of a specified type. He apparently applied only for the original doors that did not conform to the specified type. He was invited again to apply for doors of the specified type, but did nothing further. The applicant has provided no evidence that he was prevented from submitting any further information or argument to the Committee at any time. If there were any other ‘relevant circumstances’ that the applicant believed the Committee needed to consider, the applicant has not explained why he could not have provided those either with his original request for approval or subsequently with any query over the non-acceptance or refusal of his request. In any event, the applicant has not in the context of this application presented any other matters which he asserts that the Committee should have had regard to but did not.

  1. [72]
    At [61] she concluded that on the material presented, she was not satisfied that the applicant has demonstrated that the Body Corporate failed to act reasonably in not approving the security doors installed in his lot.
  2. [73]
    The fact that the objective standard is to be found in the Act rather that in the bylaw itself is not fatal. It might as well be treated as implicit in the bylaw itself that any application made to the committee will be required to be decided reasonably by the Committee. It seems to me not to matter whether the bylaw itself says that or the Act itself says it. The objective position remains in either case that Bylaw 3.2 does not involve a prohibition which is otherwise subject to arbitrary or capricious authority by the Body Corporate or apply to the application of a discretion in circumstances in which it is not open to challenge and therefore the prohibition of an activity subject to prior approval by the Body Corporate committee. It is not an absolute prohibition and constitutes an act of regulation of the use and enjoyment of lots in accordance with the requirements of the Act.

Grounds 4 and 5

  1. [74]
    Ground 4 is that the Adjudicator erred in law by finding that prior committee or body corporate approval did not need to be accompanied by the conditions on which approval will be granted, contrary to s 97 of the Act.
  2. [75]
    Ground 5 is a related ground namely that the Adjudicator erred in law by finding that Bylaw 3.2 was not uncertain, particularly due to her failing to consider the impact of s 97 of the Act.
  3. [76]
    The Adjudicator considered the issue of whether the requirement in Bylaw 3.2 for prior written approval without describing how that should occur was unenforceable. She also considered the submission that there were no objective, unambiguous or reasonable conditions contained in the bylaw and whether the bylaw is ‘manifestly ambiguous and uncertain’ and therefore void for uncertainty.
  4. [77]
    On this issue she held as follows:

[35]…The legislation prescribes that the decision of a committee is a decision of the body corporate.[14]  Moreover, the legislation prescribes what matters must be decided by a body corporate by passing a resolution at a general meeting and all other matters may be decided by the committee.

[36] The bylaw requires that an owner or occupier cannot make a change to the external appearance of their lot or common property without approval. In the ordinary course of events, the owner or occupier would apply to the Committee for that approval. In most cases the Committee could decide that matter, and its decision will be a decision of the Body Corporate. Some changes to the common property may require general meeting approval, and the Committee could also refer a matter to a general meeting for a decision even if it was technically entitled to make the decision itself. The second part of the bylaw refers to materials or items placed on the lot that can be viewed from outside the lot, and the nature of that type of decision is not one that would require a general meeting resolution.

[37] The legislation sets out the process for body corporate decision-making, including how committee and general meeting decisions are made. With committee decisions, it is a straight forward matter for an owner or occupier to make a written request which would normally be decided at the next committee meeting or at a vote outside of a committee meeting.

[38] The applicant’s agent apparently made a written request to the committee for approval of the installed security doors. The Body Corporate says others have previously sought and received approval for security doors. This illustrates that there is no uncertainty in practice as to how approval can be obtained under Bylaw 3.2.

[39] I do not accept that the requirement in a bylaw for prior committee or body corporate approval must be accompanied by procedures for obtaining approval, or the conditions on which approval will be granted. I note that Bylaw 2, 4, 5, 8, 9 and 11 in the default bylaws in Schedule 4 of the Act each provide restrictions on particular activities except with the body corporate’s written approval. None of those bylaws set out a process for the body corporate to consider a request for approval, the factors on which requests will be considered, or the conditions on which requests may be approved. Given those bylaws, I consider it would be absurd to suggest that Bylaw 3.2 is invalid because it does not describe how written approval can be obtained from the Body Corporate or its Committee.

[40] While perhaps Bylaw 3.2 could be more simply expressed, I do not accept that its meaning is so ambiguous or uncertain as to render the bylaw invalid.

  1. [78]
    In related findings, the Adjudicator considered the issue of whether Bylaw 3.2 is oppressive and unreasonable pursuant to s 180(7) of the Act and whether the bylaw is prohibitive rather than regulatory, having regard to s 169 of the Act.
  2. [79]
    On this issue she held as follows:

[43] The legislation does not contemplate that owners and occupiers have an unfettered right to the use and enjoyment of their lot. That is evident by the statutory power for a body corporate to make bylaws regulating, and imposing conditions on, the use and enjoyment of lots.[15]

[44] Moreover, the Body Corporate is not seeking in this case to prevent the applicant from installing security doors on his lot, or prevent him from securing his lot, or otherwise constraining his use of his lot. It is merely requiring that security doors installed on the lot are of a particular style - being the same style as those installed elsewhere in the scheme - to ensure consistency of the external appearance of the scheme.

[45] The applicant says owners have no say in the criteria for accepting or rejecting requests under Bylaw 3.2. However, owners can communicate with the Committee about the criteria and have legislative rights to participate in committee and general meeting discussions, communicate with the Committee; and challenge decisions. Moreover, there is no reason why an owner could not submit a motion to a general meeting proposing the criteria to be considered in respect of particular types of requests.

[46] The applicant appears to object to the fact that the purported criteria for deciding requests are not expressed in the bylaws. As noted above, I do not consider that a bylaw is invalid because the criteria for deciding the issue is not included in the bylaw. The scope of changes that could require approval under Bylaw 3.2 are extremely broad and it could well be impractical to try and encompass all possible issues in the bylaw. It is arguably more appropriate, then, for the Committee to consider each request on its merits, given the nature and particular circumstances of the request.

[47] The applicant objects to the fact that owners are ‘forced’ to bear the onus of proof that a Committee decision was unreasonable. However, that is not a feature or defect of Bylaw 3.2 or a basis for asserting that it is unreasonable or oppressive. It is a simple matter of law that a person who alleges a breach of law (in this case, a breach of section 94(2) or 100(5) of the Act) bears the onus of substantiating their claim.

[48] The applicant claims that Bylaw 3.2 requires owners to obtain approval from the Body Corporate and the Committee. As discussed above, I disagree with that assertion.

[49] I am not satisfied that the applicant has demonstrated that Bylaw 3.2 is oppressive or unreasonable, contrary to section 180(7) of the Act.

  1. [80]
    The Appellant approaches Ground 4 by first attacking the conclusions set out in the Adjudicator’s Reasons at [39] set out above and contends that the default bylaws in Schedule 4 of the Act which the Adjudicator identified as not having set out any process for the Body Corporate to consider a request for approval, were irrelevant to the issue except to the extent that default Bylaw 8 concerned a similar topic. He then goes on to contend that the correct legal position is that there is a requirement that conditions upon which approval would be granted are required both to be within the default bylaws, and in the specific bylaw in this case, failing which the bylaw is invalid.
  2. [81]
    The ultimate conclusion which he contends for on this issue is to the effect that there is ‘an overwhelming preponderance of legislation and binding authority that indicates that the details and conditions for approval must be contained with the bylaw otherwise it would amount to sub-delegation contrary to s 97 of the BCCMA’. In that regard, he relies upon more or less the same arguments that he advanced in relation to Ground 1A, the sub-delegation point, namely the effect of the operation of s 97 of the Act, and the decisions which I have discussed above in the High Court decisions in Swan Hill, Melbourne Corporation v Barry, and the Court of Appeal decision in Mineralogy.
  3. [82]
    For the reasons already expressed, I do not accept the proposition that the present bylaw amounts to a sub-delegation contrary to s 97 of the Act. Nor do any of those authorities stand for the proposition that detailed conditions for approval must be contained within the bylaw itself otherwise it amounts to a sub-delegation or prohibition rather than regulation.
  4. [83]
    The issue which the Adjudicator was addressing in her Reasons at [39] was to identify that the default bylaws, which had statutory effect in the event that they were not replaced by specific bylaws on the same topic, did not set out a process for the Body Corporate to consider a request for approval or the factors on which those requests were considered. By analogy, she concluded that if they were not seen by the legislature as a requirement for the default bylaws under the Act, it cannot be a requirement of specific bylaws adopted by a Body Corporate in lieu of the default bylaws that such details be present.
  5. [84]
    Bylaw 8 in Schedule 4 to the Act provides a model or default bylaw the following:

The occupier of a lot must not, without the Body Corporate’s written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.

  1. [85]
    There are two things to note about this. The first is that it seems to address itself only to the first aspect of the operation of Bylaw 3.2, namely conduct which makes a change in the external appearance of the lot. It is not concerned with the second part of Bylaw 3.2 which is concerned with constructing or placing on any part of the lot any materials or items which may be viewed from outside the lot. By that as it may, in broad terms it deals with the same general topic area.
  2. [86]
    The second thing to be observed is that the default Bylaw 8 does in fact contain some specification as to the consideration by which the change can be made, without the necessity for written approval. It does not however specify what the requirements are, or any specific conditions which need to exist for the obtaining of written approval. In other words, it defines the exclusion to the requirement to obtain approval, but does not define what is required to be demonstrated to obtain written approval.
  3. [87]
    As the Court of Appeal in Mineralogy held at [13]: ‘It is well settled that provisions having, like the bylaws in Schedule 2, the benefits of statutory sanction by way of example are proof against challenge as being beyond power’. I would not venture so far as to suggest that the existence of Bylaw 8 in Schedule 4 to the Act and the absence of what the Appellant calls ‘details and conditions for approval’ within it, is necessarily determinative of the issue of as a regulatory as distinct from a prohibitive bylaw. The requirements discussed in the authorities which have been referred to above do not, per se, state that there is a requirement independently of the question of prohibition versus regulation. Regulatory subordinate legislation or bylaws are not required to set out within the terms of the bylaw itself detailed objective bases for which conditions for approval are to be imposed. For the reasons I have already expressed, those conditions, for example the implied obligation that the Body Corporate will act reasonably in deciding whether to give written consent to the activity in question, or its corollary that consent will not be unreasonably withheld, are not necessarily required to be stated in the particular bylaw.
  4. [88]
    The Adjudicator made no error in law in drawing a comparison between the form of the default bylaws in Schedule 4 to the Act and the terms of Bylaw 3.2 in deciding whether there was a clear requirement at law to set out a process for the Body Corporate to consider a request for approval, and the factors upon which requests would be considered. This ground of appeal therefore must fail.
  5. [89]
    The argument under Ground 5 adopts much of the same arguments as are advanced in respect of Ground 4, this time in support of the proposition that Bylaw 3.2 was uncertain. The Adjudicator’s challenged conclusion in that regard is said to be found in paragraph 39 of her Reasons. A reading of that paragraph of the Reasons shows that she actually reached no conclusion on the issue upon which she is challenged. In other words, she did not arrive at the conclusion that the bylaw was not uncertain.
  6. [90]
    Putting that fundamental difficulty to one side, the contention advanced for the Appellant is that the bylaw is void for uncertainty because it is ‘impossible for the committee, or the Body Corporate, to provide consent or prior written approval because they are statutorily prohibited from making decisions that change the rights of lot owners and/or that can only occur by a special resolution which as creating the purported Crimsafe bylaw which is nothing more than an unenforceable “house rule”.’
  7. [91]
    That submission seems to throw together a number of controversial propositions. I have already dealt with the lack of any specific requirement for conditions to appear in the bylaw. I will deal shortly with the question of whether the bylaw default with a restricted issue, but as shall be seen, I conclude that this was not a restricted issue. Even were it a restricted issue, neither of those matters lead to the conclusion that Bylaw 3.2 is invalid due to it being too uncertain in its terms. This ground therefore also fails.

Ground 6

  1. [92]
    Ground 6 is that the Adjudicator erred in law by failing to apply the principle of legality. That principle holds that unless Parliament makes unmistakably clear its intention to curtail or abrogate a common law right, freedom or principle, the courts will not construe a statute as having that operation. The principle of legality is central to the operation of Australian public law.
  2. [93]
    Under this ground the Appellant joins together a number of other complaints he has made under other grounds, including:
    1. (a)
      That the bylaw was arbitrary and adopted house rules;
    2. (b)
      That there were no conditions for lot owners to follow so as to protect their property rights;
    3. (c)
      That no reasons were provided for ignoring his arguments below;
    4. (d)
      That a right to the free use and enjoyment of property is a bundle of rights that includes the right to change the external appearance of their property and that such rights could only be affected by valid regulation;
    5. (e)
      That the Body Corporate had no authority to unilaterally determine what were important rights and what were not;
    6. (f)
      That the bylaws should contain as much detail as reasonably possible within the bylaw to protect these rights.
  3. [94]
    Most if not all of these issues have already been dealt with adversely to the Appellant’s arguments.
  4. [95]
    His arguments under this ground do not address the question of why he contends there was an error in law by the Adjudicator in failing to apply the principle of legality. In fact, that appears not to have been a matter raised specifically by the Adjudicator, and hence she did not deal with it specifically in her Reasons.
  5. [96]
    Even if it was a matter which had been raised before her, there is nothing in her reasoning which demonstrates that she made an error of law in failing to apply that principle because, had it been applied, she would not have arrived at any different conclusion than that which she did. The principle did not have any relevant application to the issues to be decided.

Ground 7

  1. [97]
    Ground 7 complains that the Adjudicator failed to provide adequate reasons or complained that she specifically did not provide reasons for ‘ignoring the binding authority’ in the decisions in Swan Hill, Barry and Mineralogy.
  2. [98]
    This is really not a complaint about a failure to provide reasons for arriving at any factual or legal conclusion, but a complaint that she did not specifically apply, and show how she applied the approach of the Courts in each of those decisions.
  3. [99]
    I have already set out what the effect of each of those decisions was, and their practical relevance in this case. I have also concluded that those decisions were not authority for the proposition for which the Appellant relies upon them. It is not incumbent upon an Adjudicator in providing reasons which necessarily deal with all of the case law authority which has been referenced in argument put to the Adjudicator. It is true that her reasons do not specifically reference that authority, however had she properly done so, she would have reached the conclusions that I have reached and no different result would have followed.
  4. [100]
    In the decision referenced earlier in Body Corporate for River City Apartments, Mr Barlow SC, as he then was, held at [55] and [56]:

[55] In Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219 at [58], Muir JA said:

“The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with a ‘justifiable sense of grievance’ through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of judicial process; to afford natural justice or procedural fairness; to provide ‘the foundation for the acceptability of the decision by the parties and the public’ and to further judicial accountability.”

[56] It is not necessary for a court or tribunal, in order to give procedural fairness, to discuss in reasons for decision every submission that was made by the parties. Although the failure to give sufficient reasons is an error of law, the reasons given need only apprise the parties of the broad outline and constituent facts of the reasoning on which the decision maker has acted. In other words, what is necessary is a basic explanation of the fundamental reasons which led to the conclusions reached.

  1. [101]
    The submissions filed with the Adjudicator for her consideration were lengthy and detailed. The Appellant’s submissions did reference in various ways the decisions in Swan Hill, Barry and Mineralogy, as he calls them.
  2. [102]
    I do not consider that it was necessary to comply with the requirements to provide reasons that the Adjudicator specifically deal with what was provided for in those decisions, and therefore this ground also must fail.

Ground 8 – Error of law in failing to adequately investigate the application

  1. [103]
    There is a clear duty on an Adjudicator under s 269 of the Act to investigate the application. The precise language of that section is that an Adjudicator ‘must investigate the application to decide whether it would be appropriate to make an order on the application’. It is well settled that in investigating the application, an Adjudicator must observe the rules of natural justice, must act as quickly and with as little formality and technicality as is consistent with a fair and proper consideration of the application, and is not bound by the rules of evidence.[16]
  2. [104]
    The Appellant contends that the Adjudicator’s failure was to adequately investigate his concerns regarding the infringement of lot owner’s rights.
  3. [105]
    His complaint is that the Adjudicator did not investigate the application insofar as it involved his complaint that the Body Corporate committee had attempted to unilaterally infringe his rights contrary to what was contained in ‘binding High Court precedent’. The submission goes on to make more or less the same complaints as were made under Ground 7 in relation to the failure to consider and apply the authority in the decisions in Swan Hill, Barry and Mineralogy.
  4. [106]
    This complaint is not properly characterised as one involving a failure to investigate. Rather it is a reformulation of the complaint that she failed to apply case law which he contended bound her findings.
  5. [107]
    In my view the Adjudicator’s reasons do not reveal any failure to give proper consideration to the submissions made, or a failure to investigate any matter which ought to have been investigated. The Adjudicator appears to have properly considered the evidentiary material in its entirety, to the extent that it was in any way relevant. She was not obliged in order to discharge the obligations under s 286 to conduct some conceptual and general review of whether the Appellant’s property rights were in some way or another infringed. She was obliged to consider whether the relevant bylaw was unlawful or enforceable and she did so in reasons that are sufficient to show her reasoning. She clearly did that and made findings in respect of each of the grounds of appeal, and the submissions made in support of them.
  6. [108]
    The Applicant has not made out any case that demonstrates the Adjudicator failed to adequately investigate his application.
  7. [109]
    Ground 8 therefore also fails.
  8. [110]
    It follows, that for the reasons that I have already expressed, the appeal must fail.
  9. [111]
    The parties have given an indication in each case that they propose making an application for the costs of the appeal. As to costs, the starting point in this Tribunal is that each party must bear its own: QCAT Act, s 100. The statutory presumption may be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party: s 102(1). It is a matter for the parties as to whether they wish to make such an application, however I express my preliminary and unconcluded view, that prima facie this is not a case which would appear to attract any of the exceptions under s 102 of the QCAT Act. The parties have leave to apply for costs should either of them see fit to do so.
  10. [112]
    I order that the Appeal be dismissed.

Footnotes

[1]Euro Residential [2019] QBCCMCmr 11.

[2]Per Brennan CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, 309-10.

[3]See Thompson v Body Corporate for Aspect Caloundra CTS 35499 [2013] QCATA 121, [10]-[13].

[4](1902) 86 LT 449.

[5](1922) 31 CLR. 174. See also Swan Hill v Bradbury (1937) 56 CLR 746, where the power was to 'regulate and restrain'; Olsen v City of Camberwell [1926] VLR 58; King v City of Footscray [1924] VLR 110.

[6]Huth v Clarke (1890) 25 QBD 391.

[7]David Lanham, ‘Delegation, Legislation and Dispensation’ (1984) 14(4) Melbourne University Law Review 634, 635.

[8]Citing Sailfish Point [2006] QBCCMCmr 398; Atlantis West [2010] QBCCMCmr 190; 127 Charlotte Street [2015] QBCCMCmr 19, 26.

[9]Accommodation Module, s 162.

[10]The Act, s 94(2).

[11]The Act, s 100(5).

[12][2016] QCATA 177.

[13]Citing the QCAT Appeal Tribunal’s decision in Re Body Corporate for Viridian; Kjerulf Ainsworth & Ors v Martin Albrecht & Anor [2014] QCATA 294

[14]The Act, s 100(1).

[15]The Act, s 169.

[16]See Body Corporate for Grand Pacific Restore CTS 29576 v Cox [2012] QCATA 14, [38]-[49].

Close

Editorial Notes

  • Published Case Name:

    Sean Swiatek v The Body Corporate for Euro Residential

  • Shortened Case Name:

    Swiatek v The Body Corporate for Euro Residential

  • MNC:

    [2019] QCATA 158

  • Court:

    QCATA

  • Judge(s):

    Member Roney

  • Date:

    14 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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