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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
R T Electrical Pty Ltd v Body Corporate for Carefree CTS 14400 and ors  QCATA 38
R T ELECTRICAL PTY LTD
BODY CORPORATE FOR CAREFREE CTS 14400
BRETT A HAWKINS
AMANDA L BRACKEN
27 March 2020
On the papers
Judicial Member D J McGill SC
Appeal dismissed. Adjourn question of costs.
BODY CORPORATE AND COMMUNITY MANAGEMENT – ADJUDICATION – SCOPE OF JURISDICTION OF ADJUDICATOR – where the appellant seeks to appeal a decision of an adjudicator –where the appellant sought the removal of structures from common property and relief from a failure to comply with bylaws – where the grounds of appeal do not identify any error of law – where the appellant failed to show any error of law in the decision of the adjudicator – whether the Tribunal should dismiss the appeal
Body Corporate for Beaches Surfers Paradise v Backshall  QCATA 177
Hill v Woollahra MC (2003) 127 LGERA 7
KTH v Secretary to the Department of Health and Human Services  ICAT 1971
McDonald v Director-General of Social Security (1984) 1 FCR 354
Mirvac Funds Ltd v Moonee Valley CC  VCAT 1924
Riverscape North  QBCCMCmr 108
REASONS FOR DECISION
- This is an appeal to the Appeal Tribunal from a decision of an Adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) s 289. The appellant, the applicant before the adjudicator, sought various orders in relation to the common property of the scheme “Carefree”. The adjudicator made three orders, but otherwise refused the relief sought. By its amended application, filed 6 August 2019, the appellant seeks an additional order from the Tribunal.
- By the Act s 289(2) an appeal brought to the Tribunal from the decision of an adjudicator is to be only on a question of law. It is not for the Tribunal to reconsider findings of fact or exercises of discretion or judgment by the adjudicator, unless the finding or decision of the adjudicator was not one which on the material available it was legally open to the adjudicator to make.
- The scheme is a small one, consisting of three lots in a two-story building located at Mermaid Beach. It was apparently built about 48 years ago, although it has been modernised to some extent. There are two units on the first floor, both owned by the appellant, with access by external stairs, and one unit at the back of the ground floor, the unit owned by the second and third respondents. The front part of the ground floor consists of a garage area with space for three cars which is part of the common property, behind which there are three areas, possibly intended as storage areas, which form part of lots 1, 2 and 3. The yard of the premises is also part of the common property.
- It appears that, as some time in the past which the adjudicator was generally unable to determine, various things were constructed in the common property apparently for the benefit of the then owner of lot 1. The appellant sought from the adjudicator five specific orders requiring the removal of the following:
- (a)A plasterboard wall constructed between that part of the garage abutting lot 1 and the rest of the garage.
- (b)A plasterboard wall at the back of that part of the garage so enclosed, separating the garage from part of lot 1 but not located on the boundary between the common property and lot 1, and reinstatement of the brick wall formerly along that boundary.
- (c)A shower and toilet constructed in part on the garage area of the common property.
- (d)A fence enclosing an area outside the front entrance to Lot 1, creating what was referred to as a “courtyard.”
- (e)A cupboard abutting the external wall of lot 1 housing a hot water system.
- The appellant also sought relief from a failure to comply with certain bylaws, but for reasons given the adjudicator declined to consider this aspect of the dispute. The appellant challenged this approach on appeal. The adjudicator found that the construction of the plasterboard wall had been authorised by the body corporate, but ordered that the respondents allow others access to that part of the common property enclosed by the wall unless an exclusive use by-law for it was enacted. The relief sought in (b) and (c) was granted, and the relief sought in (e) refused.
- With regard to the “courtyard”, this is a fenced area about 5 metres by 2.3 metres outside the front door to unit 1. It occupies part but not all of the yard area between the building and the side fence, much of it underneath a walkway along the side of the first floor. The adjudicator declined to order its removal, but required the owners of lot 1 to allow other owners and occupiers free access to the area enclosed, unless exclusive use was granted by a by-law or in some other way. By this appeal the appellant challenges the decision not to order its removal.
Appeal – appellant’s submissions
- The grounds of the appeal in the amended application for leave to appeal are:
- (a)The adjudicator erred at law in reaching his conclusion in paragraph 24 that “it would not be just and equitable to order the respondents to remove the courtyard wall or gate under these circumstances.”
- (b)In reaching that decision, the adjudicator has failed to place sufficient weight on, or has failed to reasonably consider the following:
- The absence of any evidence whatsoever that the initial courtyard wall was approved by the body corporate.
- The absence of any evidence whatsoever that exclusive use was given to the owner of lot 1 for the courtyard area.
- The absence of the registration of a new plan for the scheme showing the wall and exclusive use area.
- That there is no evidence to support the adjudicator’s assumption that by the body corporate (including the applicant) approved the installation of a gate in the wall leads to a conclusion that the wall itself was not seen to be irregular or objectionable. (sic) In fact, in the Annual General Meeting held on 12th October 2006, there is evidence that the body corporate was not happy with any improvements undertaken by Mr Clement (who constructed the wall) and Mr Clement was asked by the body corporate to rectify/remove the alterations.
- (c)The adjudicator has also erred at law in setting aside and failing to consider the by-laws and other legislation that the body corporate would have breached if the body corporate did approve the courtyard and gate. A body corporate acting reasonably would not purposely breach its own by-laws.
- The grounds of appeal are not apt for an appeal only on a question of law. The first alleges an unspecified error of law, which takes me nowhere. The second, by challenging the weight placed on certain considerations by the adjudicator, in terms raises an issue which does involve a question of law, since the amount of weight attributed to a particular matter is something for the judgment of the adjudicator. The third potentially raises an error of law, but does not relate the ground to the reasons for the approach of the adjudicator; that is, does not identify where it is said the reasoning of the adjudicator was as a matter of law wrong.
- The basic submission of the appellant was that there was no evidence which was available to the adjudicator to support the finding that the construction of the courtyard had been approved by the body corporate, that it was an error of law for the adjudicator to have found that the body corporate had taken this particular formal step in the absence of any evidence to support such a finding, and that if the respondents contended that the wall had been approved by the body corporate, the onus of proof was on them to show that this was the case.
Approach of the adjudicator
- The adjudicator noted that the wall did not appear on the registered plan for the scheme, that there was no evidence of when and by whom it had been constructed. He said that “there is no indication of … whether it was approved by the body corporate.” He noted that it was referred to in a letter from a former owner to the body corporate on 10 November 2006, which showed that it was then in existence, and that at the annual general meeting on 2 August 2007 the then owner “applied for and was granted permission to install a gate in unit 1 courtyard.” The adjudicator said that the fact of this approval tended to suggest that the wall was not seen by the body corporate to be irregular or objectionable.
- The adjudicator noted that there were no minutes of body corporate meetings prior to 1995, nor minutes of annual general meetings in 1997, 1999, 2002 or 2004, nor was there any register kept of authorisations of improvements to common property. In these circumstances, the lack of evidence of formal approval did not demonstrate that it was not approved at some time in the past. The adjudicator said that the applicant had not demonstrated that the respondents should be forced to remove the wall.
- It is true that there is no direct evidence the body corporate approved construction of the courtyard, but the body corporate records are far from complete, so this does not demonstrate that no such approval was given. The fact that the gate in the courtyard fence was approved at the annual general meeting on 2 August 2007 is significant in two respects. First, it shows that, as the adjudicator said, the courtyard was not then seen as irregular or inappropriate. Second, that this approval, and approval for the plasterboard wall, were sought shows a pattern of behaviour on the part of the then owner of lot 1 of obtaining approval for things done on the common property, and supports the inference that approval would also have been sought (and obtained) for construction of the courtyard fence. It is circumstantial evidence that such approval was given, and the adjudicator was entitled to treat it as such. Indeed, the approval of the gate strikes me as compelling evidence supporting the inference drawn by the adjudicator.
- The absence of an exclusive use by-law for the courtyard is of no real significance. There was also no such exclusive use by-law for the separate garage closed off by the plasterboard wall. There was evidence that the then owner of lot 1 thought that the approval of that wall conferred exclusive use of the enclosed part of garage. As the adjudicator said, that was incorrect, but such a view could easily have been held, and if it were also held when the courtyard was approved, that would explain the absence of the exclusive use by-law, and hence the absence of a registered plan. This argument lacks force.
- The submission about the onus of proof was wrong, in two respects: first, it is unhelpful to talk about an onus of proof in the case of an administrative decision. But a party asserting a particular contention may have the responsibility of satisfying the decision maker of that contention. It was the appellant that was asserting before the adjudicator that the courtyard had been constructed without approval, so it was the responsibility of the appellant to satisfy the adjudicator of that contention. The decision cited in this context in the appellant’s submissions is authority to the contrary of its argument. In so far as there was anything like an onus, it was on the appellant to show that the construction of the courtyard had not been approved. It failed to do this.
- The reference to the minutes of the annual general meeting of 12 October 2006 was equally misconceived. What the minutes in fact record was a very specific complaint about the fact that the plasterboard wall in the garage, which had been approved by the body corporate, had been constructed with a concrete footing which was so high it impeded the opening of the doors of a car parked near it. The then owner of lot 1 was to be asked what he intended to do about this, and about two other issues which were unrelated to the construction of the courtyard, with an intention to hold an extraordinary general meeting if his response was not satisfactory. There was no request to remove even the plasterboard wall, let alone anything else. This submission misrepresents the content of the minutes.
- With regard to the ground about the breach of by-laws, no argument was addressed to me as to why the adjudicator was wrong in law to disregard any reference to breach of the by-laws when the Form 1 given to the body corporate by the appellant about this point was given only after the dispute had been referred to the commission for adjudication. Assuming however that this did not exclude consideration of any continuing breach of a by-law if the courtyard remained, the submissions of the appellant do not address the issue of how this creates a difficulty with the situation created by the decision of the adjudicator. I should not be left to speculate about these matters.
- Doing the best I can, the by-laws relied on are clauses 3, 5 and 8 in the standard by-laws in Schedule 3 of the Building Units and Group Titles Act 1980. As the adjudicator correctly pointed out, clause 8 has nothing to do with the case, as it is concerned with things like laundry and signs. Clause 3 provides: “A proprietor or occupier of a lot shall not obstruct lawful use of the common property by any person.” This is the issue addressed by the second order made by the adjudicator, requiring the owner of lot 1 to allow the other owners and occupiers to have access to the interior of the courtyard. The appellant has not shown how the making of this order did not achieve a just and equitable resolution of the dispute between the parties in a way which was consistent with clause 3 of the by-laws, much less that the decision involved any error of law.
- Clause 5 of the by-laws relevantly provides: “A proprietor or occupier of a lot shall not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property except with the consent in writing of the body corporate.” The first point is that the clause is concerned only with a structure which is part of the common property; the part of the yard where the courtyard fence is constructed is not a structure. Assuming that the outside of the building is part of the common property, I have been referred to no evidence that it was damaged or penetrated by anything which would constitute a breach of this clause, nor have I found any.
- In any case, if the construction of the courtyard fence was approved by the body corporate, this should have been minuted, even if the minutes have not survived. That amounted to at least implied consent in writing of the body corporate for the purposes of this clause for whatever was to be done to the surface of the outside of the building. Since the appellant failed to show that the courtyard had been constructed without the approval of the body corporate, it also failed to show the absence of consent of the body corporate for the purposes of this clause.
- In those circumstances, the appellant has failed to show that there was any error of law in the decision of the adjudicator. Indeed, it appears to me, with respect, that the decision of the adjudicator was a sensible and practical resolution of the dispute between the parties. The appeal is dismissed. I invite submissions as to whether I should make an order for the costs of the appeal in favour of the respondents.
- One final point. The appellant’s application assumed that, if the courtyard had been originally constructed by the then owner of lot 1 within the common property without permission, the current owners of lot 1 were obliged to remove it at their own cost. It was not necessary, in order to decide this appeal, for me to consider whether this proposition is correct. I record that I have not investigated it, and express no opinion about it.
 Body Corporate for Beaches Surfers Paradise v Backshall  QCATA 177 at  – .
 The plan was dated 26 January 1972. Most of the information about the physical structure comes from the report of a valuer dated 31 October 2018. Both were before the adjudicator.
 I note that at the 2006 annual general meeting there was comment about the fact that it appeared that there had been no approval for the construction of a door from lot 1 to the garage area, which shows that the owners were alive then to the question of approvals. The response of the owner of lot 1, although wrong in law, explains why that case was seen by him as different.
 It supports the existence of something like a presumption of regularity: Hill v Woollahra MC (2003) 127 LGERA 7 at , . That the courtyard had existed for a long time without complaint suggests that it had been approved.
 McDonald v Director-Gneral of Social Security (1984) 1 FCR 354 at 356-7; KTH v Secretary to the Department of Health and Human Services  ICAT 1971 at . See also Pearce “Administrative Appeals Tribunal (4th Ed 2015) para 9.37.
 Mirvac Funds Ltd v Moonee Valley CC  VCAT 1924 at .
 Riverscape North  QBCCMCmr 108 at , .
 See the Act s 276.
- Published Case Name:
R T Electrical Pty Ltd v Body Corporate for Carefree CTS 14400 & Ors
- Shortened Case Name:
R T Electrical Pty Ltd v Body Corporate for Carefree CTS 14400
 QCATA 38
McGill SC DCJ
27 Mar 2020