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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Noonan v Osborne and Body Corporate for Spinnaker CTS 40812  QCATA 130
GRAEME OSBORNE & ROSLYN OSBORNE
THE BODY CORPORATE FOR SPINNAKER BLUE CTS 40812
13 August 2020
Member Roney QC
The application for leave to amend the grounds of appeal is allowed. Costs reserved.
The Applicant shall file an Amended Application to the Tribunal reflecting the amended grounds of appeal as set out in Annexure 1 to the submissions in support of the Application.
APPEAL AND NEW TRIAL – 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- Where application made to amend grounds of appeal out of time for an appeal - relevant principles when deciding whether to allow amendment
Body Corporate and Community Management Act 1997 (Qld), s 276, s 289(2), s 290
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 64, s 146
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- This is an interlocutory application by the Applicant seeking leave to amend the grounds of appeal upon which she has appealed a decision by an Adjudicator appointed by the BCCM Commissioner who ruled that a particular motion at a Body Corporate meeting of the Body Corporate of Spinnaker Blue on 21 February 2019 was void. The relevant adjudication was the matter of Spinnaker Blue CTS 40812, Adjudication Order 0265-2019.
- It is well accepted that such appeals are limited to appeals on questions or errors of law.
- The decision of the Adjudicator was given under s 276 of the Body Corporate and Community Management Act 1997 (Qld) (‘the Act’). Section 276 provides as follows:
276 Orders of adjudicators
- (1)An adjudicator to whom the application is referred may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about—
- (a)a claimed or anticipated contravention of this Act or the community management statement; or
- (b)the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or
- (c)a claimed or anticipated contractual matter about—
- (i)the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
- (ii)the authorisation of a person as a letting agent for a community titles scheme.
- (2)An order may require a person to act, or prohibit a person from acting, in a way stated in the order.
- (3)Without limiting subsections (1) and (2), the adjudicator may make an order mentioned in schedule 5.
- (4)An order appointing an administrator—
- (a)may be the only order the adjudicator makes for an application; or
- (b)may be made to assist the enforcement of another order made for the application.
- (5)If the adjudicator makes a consent order, the order—
- (a)may include only matters that may be dealt with under this Act; and
- (b)must not include matters that are inconsistent with this Act or another Act.
- The appeal to this Tribunal is governed by s 289 of the Act, which provides:
289 Right to appeal to appeal tribunal
- (1)This section applies if—
- (a)an application is made under this chapter; and
- (b)an adjudicator makes an order for the application (other than a consent order); and
- (c)a person (the aggrieved person) is aggrieved by the order; and
- (d)the aggrieved person is—
- (i)for an order that is a decision mentioned in section 288A, definition order—an applicant; or
- (ii)for another order—
- (A)an applicant; or
- (B)a respondent to the application; or
- (C)the body corporate for the community titles scheme; or
- (D)a person who, on an invitation under section 243 or 271(1)(c), made a submission about the application; or
- (E)an affected person for an application mentioned in section 243A; or
- (F)a person not otherwise mentioned in this subparagraph against whom the order is made.
- (2)The aggrieved person may appeal to the appeal tribunal, but only on a question of law.
- Section 290 of the Act provides:
- (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.
- (2)If requested by the principal registrar, the commissioner must send to the principal registrar copies of each of the following—
- (a)the application for which the adjudicator's order was made;
- (b)the adjudicator's order;
- (c)the adjudicator's reasons;
- (d)other materials in the adjudicator's possession relevant to the order.
- (3)When the appeal is finished, the principal registrar must send to the commissioner a copy of any decision or order of the appeal tribunal.
- (4)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.
- 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—
- (a)confirm or amend the decision; or
- (b)set aside the decision and substitute its own decision; or
- (c)set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration—
- (i)with or without the hearing of additional evidence as directed by the appeal tribunal; and
- (ii)with the other directions the appeal tribunal considers appropriate; or
- (d)make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c)
- Hence, pursuant to s 146, in deciding an appeal against a decision on a question of law, the Appeal Tribunal is not engaged in a rehearing of the matter.
- The Applicant had put a motion to the Body Corporate seeking resolution for the removal of two trees on common property exclusive use courtyards 1 and 4 of the relevant scheme, on the basis that they caused significant nuisance to the use, enjoyment and value of her Lot, and risked damage to the adjacent stormwater system.
- The resolution which was passed at the Annual General Meeting of the Body Corporate on 21 February 2019 was ruled by the Adjudicator to be void. The reasoning of the Adjudicator was that Motion 13 was invalid because the owners of the affected lots are responsible for the maintenance of the vegetation, including the particular trees within their exclusive use courtyards. The Adjudicator further held that there was no evidence that the owners of those lots were failing to maintain the trees, and that the Body Corporate had no authority to remove the trees within the exclusive use courtyards for the reason that they obstructed the view of Pumicestone Passage from other lots within the scheme.
- In the course of making that finding the Adjudicator made reference to the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) and the way in which that Act made provision for the resolution of tree disputes involving adjoining lots. The Adjudicator determined that an Adjudicator had no jurisdiction to determine such a dispute, but that QCAT could make orders in relation to a tree to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use or enjoyment of a neighbour’s land.
- The original grounds of appeal from the decision might fairly be described as incongruous insofar as they attempted to identify any error of law in the findings of the Adjudicator. The so-called “grounds of appeal” recited that there had been two differing adjudication orders regarding the same matter and that those two decisions were in some way or another inconsistent with each other. Apart from reciting that in the particular case under appeal the resolution was determined to be void, there were no other useful grounds of appeal identified and no error of law identified.
- The application for leave to amend the grounds of appeal seeks an amendment to permit further grounds, namely that that the Adjudicator erred in applying the incorrect legal test and seeks further or various orders that are said to flow from that conclusion, namely that there was an error in finding that the motion was void and it was in fact valid and is “substantiated” by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. The argument appears to be that s 311(1) of that Act provides that the Body Corporate is taken to be the owner of the scheme land for the purposes of that Act and that the Body Corporate is for the purposes of that Act a tree keeper.
- Prima facie the appeal was liable to be struck out on the grounds that it did not disclose any proper lawful basis for challenging the conclusion of the Adjudicator on the basis of any identified error of law. If the application is allowed, it would for the first time provide an arguable basis for the appeal, or at least identify what the grounds of appeal that involve the alleged error of law are.
- Notwithstanding what would seem to be a relatively straightforward application in that regard to permit the issue genuinely in dispute in the appeal to be heard and determined, the two First Respondents and the Body Corporate vehemently oppose the orders sought. In fact, over 30 pages of written submissions have been filed by the parties respectively seeking to support the application or opposing it. There is no dispute that this Tribunal has power under s 64 of the QCAT Act to permit an amendment of the kind sought and can do so on the application of the party who filed the document or of its own initiative.
- The appeal has been on foot for more than a year, having been commenced on 1 August 2019. There is no explanation for the delay in bringing any application of the kind presently sought. That in my view is not fatal. There is a not particularly persuasive attempt to substantiate the arguments which would be raised were this ground of appeal permitted to be included. The Applicant contends that there is no prejudice which would follow from permitting the amendment, and that there is some public interest in the determination being made where there are two inconsistent legal tests that have been applied toward substantially the same set of facts. I accept that to be so. I do not make any determination of the issue of whether there have in fact been two inconsistent legal tests applied in two different situations, however it does not follow that even if there were inconsistent legal tests applied by two different adjudicators, that the present ground of appeal sought to be included has real prospects of success.
- The Respondents oppose the amendment, arguing that a power under s 64 of the QCAT Act would only be exercised in limited circumstances, including where it is necessary for the speedy and fair conduct of the proceeding. It argues that the power ought be exercised “with extreme caution” because the Applicant has already argued and lost her case below, and that she is “seeking a great indulgence” to amend her grounds of appeal. It is also contended that the argument in support of the new ground of appeal is flawed and doomed to failure. It is also argued that if the amendment be permitted, that the First Respondents ought be compensated for legal costs occasioned by the amendment, as well as costs thrown away in responding to the application for leave to amend and in preparing an amended appeal response.
- With the greatest of respect to the parties concerned, the application is one which could properly have been brought and permitted to be resolved by consent without the necessity for these relatively lengthy and detailed and undoubtedly cost-raising submissions that were filed in resisting the application. It is unquestionably the case that the Applicant could always have included that ground of appeal in her Notice of Appeal, but did not. Had she done so, there would have been no basis to have opposed that ground being advanced, subject to an application being brought to summarily dismiss the appeal.
- In my view the appropriate test to be applied in deciding whether to give the leave sought is analogous to that which has been applied in many jurisdictions in which there has been failure to plead some matter or other which might otherwise have been pleaded, or where there has been a failure to take a step in a proceeding within the time in which it was required to be brought. Essentially that is the test of whether it is in the interests of justice to grant the extension, having regard to some kind of provisional assessment of the strength of the proposed amendment, and the level of prejudice to the Respondent if it is allowed to occur. The prejudice to the Respondents diminishes into insignificance where the prejudice is really the cost to the Respondents in resisting the application to amend, rather than any prejudice that flows from the making of the amendment itself. It is well accepted in Appellate Courts that there may be circumstances in which there may be some assessment of whether an appeal in respect of which some indulgence is sought is viable, however, it is not the case that in all such cases the Court will assess or attempt to assess whether the prospective appeal has merit or not. I do not consider it appropriate to decide whether this appeal has merit to decide whether to allow the amendment.
- In the circumstances, I allow the application to amend the grounds of appeal in the terms sought mand I reserve the costs of the application to the Member of this Tribunal that hears the appeal.
- The Applicant shall file an Amended Application to the Tribunal reflecting the amended grounds of appeal as set out in Annexure 1 to the submissions in support of the Application.
- Published Case Name:
Noonan v Osborne and Body Corporate for Spinnaker CTS 40812
- Shortened Case Name:
Noonan v Osborne and Body Corporate for Spinnaker CTS 40812
 QCATA 130
Member Roney QC
13 Aug 2020