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Walden v Body Corporate for Broadwater Tower QCATA 166
Walden v Body Corporate for Broadwater Tower  QCATA 166
Jonathan Nigel Walden
Body Corporate for Broadwater Tower CTS 9061
On the papers
16 November 2015
APPEAL – NATURAL JUSTICE – where appeal from decision of Adjudicator – where applicant seeks access to invoices from a body corporate – whether any error of law by Adjudicator
Body Corporate and Community Management Act 1997 (Qld), s 204, s 205, s 243, s 248, s 267, s 269, s 270, s 271, s 289, sch 2, sch 5
Body Corporate and Community Management (Standard Module) Regulation 2008 (Qld), s 203, s 205
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32
Ainsworth v Body Corporate for Viridian Noosa Residences CTS 34034  QCATA 175
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 130
Body Corporate for Grand Pacific Resort v Cox  QCATA 14
Cox v Body Corporate for Grand Pacific Resort  QCCTBCCM 1
Grut-Mackay v Cherwood Lodge CTS 20711  QDC 229
Hablethwaite v Andrijevic  QCA 336
Kioa v West (1985) 159 CLR 550
Kostas v HIA Insurance Services Pty Ltd  HCA 32
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296
Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- Broadwater Tower CTS 9061 (‘Broadwater Tower’) consists of 130 lots and common property. Under the Community Management Statement (‘CMS’) the Standard Module applies. Mr Walden is the owner of a lot included in the scheme.
- On 4 March 2014, Mr Walden lodged an application under the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’) seeking copies from the body corporate of:
….all invoices presented to, authorised by and initially paid by the Respondent relating to the alleged indemnity of Challenge Strata Management relating to the defamation proceedings ‘Walden v Danieletto’.
(these invoices are BC records and are covered under the BCCM Act s.205)
- Further, Mr Walden sought orders that the body corporate treat all requests for body corporate records by an entitled person in accordance with the BCCM Act under s 205.
- Challenge Strata Management (‘Challenge’) are the former body corporate manager (‘BCM’). As a result of AGM resolutions, Challenge was replaced as BCM by SSKB Strata Managers from 1 October 2014, and the former committee for the body corporate was replaced by a new committee from 26 September 2014.
- Mr Walden says that he has written to the body corporate over 30 times and visited the former BCM’s office on several occasions, but has not been provided with the invoices he requests. The new committee’s brief submissions did not respond to the application, but indicated that it was aware of the obligations under s 205 of the BCCM Act. Various individual owners made submissions about the application.
- Challenge prepared a submission on 26 September 2014 while it was the BCM. The submission states that the former committee does not make separate submissions, because it had no knowledge of Challenge’s billing processes. Challenge submits that it is a separate commercial entity from the body corporates it manages, which conducts its corporate accounting separately from that of its clients. The submission was provided to the Commissioner under cover of a submission from an owner.
- Challenge submits that three invoices were issued by Challenge to the body corporate relating to the costs in the defamation proceedings. They have since been reimbursed. Challenge outlines billing practices in respect of the creation of body corporate records as follows:
- a)It prepares bills for its body corporate clients each month by generating and issuing a Tax Invoice Summary (which lists the aggregate of charges made to the body corporate), a Recovery Records Report (which sets out more details about invoices payable), and a Payment Authority (on which the body corporate approves the monthly billings).
- b)The invoices referred to in a) have been kept with the body corporate’s records in Challenge’s office;
- c)No other records have been issued by Challenge to the body corporate at any time, concerning the particular charges which are of interest to Mr Walden or any other monthly charge ever made;
- d)The Applicant has had access to the invoices on each of the occasions that he has inspected records at their offices;
- e)Mr Walden has been given copies of the entirety of the invoices on at least three occasions;
- f)It is unclear what Mr Walden considers has not been provided;
- g)Mr Walden has been given, and sighted, the only documentation issued by Challenge to the body corporate;
- h)The application is unnecessary; and
- i)The body corporate incurred costs of $1,972.30 in distributing the notice inviting submissions and responding to the application.
- Mr Walden made a lengthy reply to the various submissions.
- An Adjudicator at the Commissioner’s office then decided Mr Walden’s application. She dismissed it and awarded costs of $1972.30 against Mr Walden.
- An appeal to the Tribunal may only be made on the basis of a question of law. Mr Walden has appealed the decision in the Tribunal on the grounds that he was denied natural justice,although his submissions may raise some other broader suggested errors of law. Although a party is usually limited to their grounds of appeal, because Mr Walden acts for himself, I deal with all of the issues he raises.
The Adjudicator’s Reasons for Decision
- The learned Adjudicator considered the material, specifically disregarding voluminous material which she considered was not relevant to the supply of the specific invoices. She considered the requirements of s 205 of the BCCM Act, and s 205(1) of the Body Corporate and Community Management (Standard Module) Regulation 2008 (Qld) (‘Standard Module’) setting out applicable fees for providing requested information to interested person. She noted the requirement for a body corporate to keep records as provided for in s 203 of the Standard Module. However, she also noted that a body corporate could supply only those documents in its possession or control, and that it was not required to create new documents which do not exist to satisfy a request.
- Further, she found that the onus was on the person seeking copies of records to specify the particular documents sought and in circumstances that the body corporate asserts that the documents do not exist, or have not been retained, the onus will fall on the person disputing that claim to prove that the documents existed or continue to exist.
- The Adjudicator found that Mr Walden had received the three Challenge invoices before he lodged the application. She considered that he provided no basis or evidence to support the claim that there were actually other invoices. She noted that Mr Walden referred to requiring the original invoices, but that she was unclear about the basis for asserting that the invoices were not original. The adjudicator said that she was:
… at a loss to understand from the Applicant’s voluminous and confusing reply to submissions what he believes what he believes actually exists in the records in that he has not been given as distinct, from documents that he thinks the Body Corporate should have. 
- Further, she said ‘tellingly, the Applicant says in his reply to submissions (page 5) “Applicant requires what should be issued to the Respondent not what was issued!”’ The learned Adjudicator then confirms that the obligation under s 205 of the BCCM Act requires only that the body corporate give access to records that were actually created and retained. The Adjudicator declined to make a declaration to the effect of s 205, noting that such a declaration had previously been made in response to another application.
- The learned Adjudicator dismissed the application on the basis that it was vexatious, misconceived and without substance pursuant to s 270(3) of the BCCM Act. She reached the conclusion that it was vexatious, misconceived and without substance on the basis that Mr Walden had already received the only body corporate records that exist relating to his request and included them with his application. Further, she found that he had entirely failed to identify any existing documents that had not been already supplied to him on several occasions.
- Referring also to the history of applications filed by Mr Walden, and Mr Walden’s conduct of this application, the adjudicator made an award of costs to the body corporate in responding to the application in the amount of $1,972.30.
The alleged errors of law
- The alleged denial of natural justice is made baldly in the application for appeal. Mr Walden’s submissions filed on 15 June 2015 set out a variety of alleged errors of law. However, it must be said that they are confusingly expressed. As far as I can determine, the intent expressed may be summarised as set out in the following paragraph.
- Mr Walden submits that the Adjudicator erred in in the following ways:
- The submissions from Challenge were not requested by the committee;
- The Adjudicator incorrectly referred to the defamation proceedings as being between Walden and Challenge (rather than Walden and Danieletto);
- The Adjudicator could not have reached the decision she did on the evidence because Danieletto was not a party to the BTBCC service agreement;
- The Adjudicator could not have reached the decision on the evidence that the invoices requested had been provided. In particular, Challenge in its submissions refers to a receipt which he says shows that the invoice from the lawyers consulted by Mr Danieletto, namely ABKJ Lawyers has been in the Challenge records and remains in the body corporate records;
- The Adjudicator incorrectly found that because previous applications were dismissed, this application should be dismissed;
- The Adjudicator erred in finding that evidence was not provided that the records sought exist, because the Tax Invoice Summaries refer to the invoices;
- The Adjudicator erred in finding that if a record is not in possession of the body corporate it does not have to produce it because Broadwater Towers and Challenge had obligations under the BCCM and ‘ATO’ legislation to keep proper records including invoices and receipts;
- The Adjudicator erred in finding that the invoices had been provided, when that finding could not have been made on the evidence because the documents provided to the Adjudicator are not legitimate invoices. The documents provided are tax invoice summaries or record recovery records reports, rather than invoices;
- The Adjudicator erred in failing to take into consideration the body corporate’s obligation under s 204 of the BCCM Act and s 203 of the Standard Module to maintain proper accounts accurately reflecting payments made by it or on its behalf;
- Because of the duty of the body corporate to produce records under s 205 of the BCCM Act;
- Because records related to accounts rendered by the former BCM were records within the power or control of the body corporate;
- Because the body corporate was on notice to request that the former BCM provide the invoices which it should have provided and could have insisted on Challenge providing them pursuant to paragraph 11 of Schedule 2 of the BCCM Act but it failed to do so.
- Further, he submits that the Adjudicator could have used the investigative powers of s 271 of the BCCM Act to ascertain whether Challenge or Danieletto held the records requested.
Errors of law
- A breach of natural justice is an error of law. Natural justice is a flexible concept. As Mason J (as his Honour then was) observed in Kioa v West, the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321.
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations … 
- In essence, the requirement is to act fairly in all the circumstances. Some of the more certain requirements of natural justice include providing parties with the opportunity to present their case and the opportunity to know the case against them and respond to it; and having an impartial decision-maker hear the case.
- The failure by an Adjudicator to properly investigate under ss 269 and 271 of the BCCM Act may, in some limited circumstances, constitute a denial of natural justice. This may arise, for example, when there is a lack of logically probative evidence as a result of a choice of an Adjudicator not to further investigate. However, an Adjudicator may limit investigations to inviting submissions from interested parties and is not generally obliged to seek clarification or further information from a party which has provided ‘apparently sensible’ submissions.
- In acting fairly in the circumstances, decision-making functions imply ‘a rational process of decision-making according to law.’ A decision that is based on no evidence or findings of fact that are not open on the evidence, are not consistent with a rational process. Accordingly, in some circumstances, factual error may result in an error of law, as follows:
…where, because of the development of an obligation of reasoned decision-making, the judge, ….exposes his reasons and these reasons demonstrate manifest error or illogicality in the reasoning process; rely upon facts which are not established by the evidence or indicate such an unexplained perversity as to suggest that an error has taken place in one of the three stages of the process of judicial decision-making, an error in point of law will be established …
- The three stages referred to are fact-finding; rule-stating and rule application. Whether findings of fact are open on the available evidence is a question of law.
Was an error of law made by the Adjudicator?
- As I understand Mr Walden’s claim and submissions, in making the application he sought to see three invoices rendered by AKJB Lawyers to Challenge and/or Mr Danieletto which were billed by Challenge to the body corporate on the relevant Tax Invoice Summaries and Recovery Records Reports prepared by Challenge.
- What he has been able to see are the documents produced internally by Challenge, namely the Tax Invoice Summaries, Recovery Records Reports, and the Payment Authorities produced by Challenge (for signature by a representative of the body corporate authorising the payment of the Tax Invoice Summaries). Challenge’s submission claims that these are the only documents which form part of body corporate records, (as I understand the submission, as opposed to documents which form part of its own corporate records). It says this is so for all charges billed to the body corporate.
- Mr Walden complains that the submissions from Challenge were not requested by the committee. Challenge was at the time the BCM. Challenge’s submissions were directly relevant to the application. The submissions specifically refer to the committee not making a separate submission. It is reasonable to infer from this assertion that Challenge was requested by the committee to provide the submission. This appears to be the basis upon which the Adjudicator had regard to Challenge’s submissions, without specifically articulating it. I can identify no legitimate basis for complaint that the Adjudicator had regard to the submissions.
- Mr Walden complains that the Adjudicator refers to the defamation proceedings between Challenge and Walden, rather than Danieletto and Walden. It is uncontroversial that Mr Danieletto is an officer or employee of Challenge. No error of law is revealed.
- Challenge submits that the only records of the body corporate are those produced by Challenge itself namely the Tax Invoice Summaries, the Recovery Records Report and the Payment Authorities. Mr Walden’s submissions infer that Challenge must have received invoices from ABKJ Lawyers (which were then billed to the body corporate), which have not been made available to him. Nor, on the evidence, have they been made available to the body corporate. The reasonable inference from Challenge’s submission is that the records of the body corporate, as opposed to Challenge itself, do not include the ABKJ invoices. Without specifically articulating it, it is apparent from the reasons for decision that this is the basis upon which the Adjudicator proceeded. As she said, Mr Walden’s submissions identify, he wants the documents he believes should have been issued to the body corporate, not what was issued.
- Mr Walden’s point seems to be that the invoices received from ABKJ by Challenge and submitted for payment by the body corporate, should form part of the records for that body corporate. However, if Challenge has not provided those records to the body corporate, then they do not form part of the records of the body corporate. Under section 205, the body corporate must, on payment of the prescribed fee, permit inspection of the records and/or give a copy of records requested by an interested person. As the learned Adjudicator found, the body corporate did what it was required to do.
- Whether or not Challenge could or should have provided additional records to the body corporate is not relevant as between Mr Walden and the body corporate on this application for inspection of documents by Mr Walden under s 205. That is a matter for the body corporate to pursue, if it is to be pursued at all, having regard to its obligations to keep documents and records under the BCCM statutory scheme. Section 205 of the BCCM Act is not a mechanism through which a body corporate can be required to pursue Challenge for the invoices Mr Walden wants to see.
- Mr Walden suggests that the Adjudicator somehow erred because the body corporate did not use Schedule 2, paragraph 11 of the BCCM Act to require Challenge to provide the invoices he seeks, because of his application. Whereas the body corporate could potentially have sought information under paragraph 11 (which may or may not have resulted in the body corporate receiving the ABKJ invoices), no error was made by the Adjudicator as a result of the body corporate’s failure to do so.
- Mr Walden submits that the Adjudicator erred in finding that because previous applications had been dismissed, this application should also be dismissed. However, I do not accept that that she dismissed the application on the basis alleged. In her reasons for decision, she considered the application and the submissions in some detail, concluding that Mr Walden had been given the relevant body corporate records that existed.  She found that what he wanted were documents that he thought should have been created or issued, not the documents actually created and retained.
- She then later refers to the fact that Mr Walden had failed on ‘several occasions’ to identify the existence of relevant documents that had not been supplied to him, noting that he had made eight applications since 2011 and that 3 of them were dismissed as vexatious, misconceived or without substance. However, this was considered only once she had found that this application had no merit, and in the context of considering whether to make orders under s 270 of the BCCM Act dismissing the application as frivolous, vexatious or misconceived and awarding costs against Mr Walden. She did not find that this application should be dismissed because other applications were dismissed.
- I now turn to consider Mr Walden’s argument that the Adjudicator should have used the investigative powers in s 271 of the BCCM Act to ascertain whether Challenge or Danieletto held the records, and that the failure to do so was a breach of natural justice. An adjudicator must investigate an application to decide whether it is appropriate to make an order in respect of it: s 269. Specific powers or actions an adjudicator may exercise or take in investigating are specified in s 271 of the BCCM. The actions in s 271 are not at large: they are specified.
- It is useful to note that once an application has been made to the Commissioner, submissions are invited from all interested parties. This occurred here. The Commissioner may recommend that an application be adjudicated. Again, this is what occurred in this instance: an Adjudicator was appointed. An Adjudicator must investigate to decide whether it would be appropriate to make an order on the application. In the investigation, the Adjudicator has a variety of powers to require reports and information from parties and other affected persons. In particular, an Adjudicator may under s 271(1), among other things, do the following:
- (a)require a party to the application, an affected person, the body corporate or someone else the adjudicator considers may be able to help resolve issues raised by the application—
- (i)to obtain, and give to the adjudicator, a report or other information; or
an engineering report
- (ii)to be present to be interviewed, after reasonable notice is given of the time and place of interview; or
- (iii)to give information in the form of a statutory declaration;
- (b)require a body corporate manager, service contractor or letting agent who is a party to the application or an affected person to give to the adjudicator a record held by the person and relating to a dispute about a service provided by the person; ….
- (d)inspect , or enter and inspect-
- (i)a body corporate asset or record or other document of the body corporate;
- The BCCM file reveals that the application was referred to the Adjudicator on about 12 November 2014. The file does not suggest that any further requests for submissions or other documents were made by the Adjudicator. Consistently, in her reasons for decision the learned Adjudicator acknowledges that her investigation included reviewing the application and submissions (which had been invited by the Commissioner). The next action on the file was the issuing of the Adjudicator’s orders and reasons for decision to the parties, under cover of a letter dated 28 November 2014.
- Accordingly, it appears that Mr Walden correctly identifies that the specific powers provided for in s 271 were not used by the Adjudicator. However, Mr Walden does not identify any particular power in s 271 which he contends was, in error, not used and that thereby natural justice was denied. I do not propose to exhaustively consider the possible application of every specific power in s 271 in circumstances where Mr Walden fails to identify any of them as relevant. However, by way of explanation to illustrate why I do not consider they assist to reveal any error by the Adjudicator, I make observations about the application of the powers as extracted above from s 271, in the following paragraphs.
- Would a request under s 271(1)(a) be helpful? It enables an adjudicator to require ‘any person’ whom the adjudicator ‘considers may be able to help resolve issues raised by the application’ to give the adjudicator ‘a report or other information.’ Mr Walden’s application raises issues concerning production of records of the body corporate under s 205. Challenge has provided a submission to the effect that all of those records held by it on behalf of the body corporate have been made available to Mr Walden under s 205.
- Therefore, even if the Adjudicator could legitimately have required Challenge or Mr Danieletto to provide from their own records, any ABKJ invoices which underpin the entries made on the tax invoice summaries and other related documents, if they are not body corporate records, then they could not be provided to Mr Walden to satisfy his application. However, it is not at all clear to me that documents which are not held as body corporate records could be required by the Adjudicator under s 271(1)(a) from Challenge or Mr Danieletto, because the adjudicator may only require information the adjudicator ‘considers may be able to resolve the issues raised in the dispute.’ As Mr Walden cannot access records which are not part of the body corporate records under s 205, requesting documents from Challenge or Mr Danieletto which are not part of body corporate records, is not sanctioned by s 271(1)(a)(i).
- Section 271(1)(b) enables an Adjudicator to obtain from a BCM ‘who is a party to the application or an affected person’, a record held by it relating to ‘a dispute about a service provided by’ it. Challenge is not a party to the application, or an affected person. This dispute does not concern a dispute about a service provided by Challenge as BCM. Rather, it is a dispute concerning the production of documents held by the body corporate which must be produced for inspection and/or copying under s 205. Accordingly, this power could not be invoked by an adjudicator to require documents from Challenge or Mr Danieletto.
- Under s 271(1)(d), an adjudicator may enter and inspect a body corporate record. However, this does not entitle an adjudicator to access documents which are not body corporate records. As the documents which Mr Walden seeks do not form part of the body corporate records, this would not assist.
- Accordingly, it is difficult to see that exercise of the investigation powers could be used to ascertain whether Challenge or Danieletto held the records requested, and even if they could be, that would not assist Mr Walden to see them. If they are not body corporate records, they do not need to be produced in order for the body corporate to meet its obligations under s 205.
- I conclude that there is no identified breach of natural justice or other error of law relating to the variety of issues discussed so far.
- Some of the submissions made by Mr Walden seem to be to the effect that the Adjudicator erred by making factual findings which were not open on the evidence. Namely, she found that evidence was not provided that the records sought exist. As discussed above, if findings have been made which are not open on the evidence there may be an error of law. I have considered the issue but concluded that there has been no such error here.
- I have reached this conclusion because there is no evidence that the body corporate has possession or control of the ABKJ invoices. Although Challenge or Mr Danieletto may have them, on the evidence, they do not exist as part of the body corporate’s records. The body corporate has the Tax Invoice Summaries, the Recovery Records statements and Payment Authorities.
- The Adjudicator could deal with only the application before her, that is, the application for production of body corporate records by the body corporate to an interested person, namely Mr Walden. The Adjudicator could only act according to the powers provided under the BCCM Act. On an application under s 205, she had no power to adjudicate a contractual issue (if there is one) between the body corporate and the BCM, which the body corporate does not raise in an application of its own about the records kept by Challenge on its behalf.
Conclusions and orders
- Although I acknowledge Mr Walden’s frustration, his appeal reveals no error of law by the Adjudicator. The appeal is dismissed.
 Submission by committee for the Scheme dated 10 October 2014.
 Submission of Jean Hancox lodged on 29 September 2014.
 BCCM Act, s 289(2).
 Reasons for decision, .
 Reasons for decision, .
 (1985) 159 CLR 550.
 (1985) 159 CLR 550, at 584-585.
 Cox v Body Corporate for Grand Pacific Resort  QCCTBCCM 1 discussing Grut-Mackay v Cherwood Lodge CTS 20711  QDC 229 at [21-22]. See also, Body Corporate for Grand Pacific Resort v Cox  QCATA 14, at 36-41], Ainsworth v Body Corporate for Viridian Noosa Residences CTS 34034  QCATA 175, at [44-47].
 Body Corporate for Grand Pacific Resort v Cox  QCATA 14.
 Hablethwaite v Andrijevic  QCA 336.
 Kostas v HIA Insurance Services Pty Ltd  HCA 32, at .
 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 130 at 151, per Kirby P.
 Kostas v HIA Insurance Services Pty Ltd  HCA 32.
 In respect of whose actions, Challenge is vicariously liable.
 Reasons for decision especially at paragraphs [1-40].
 Ibid, at paragraphs [35-37]
 Ibid, at paragraph .
 Ibid, at paragraph .
 Ibid, at paragraph 43].
 Ibid, paragraph [41-48].
 BCCM Act, s 243.
 Ibid, s 248.
 Ibid, s 267.
 Ibid, s 269.
 Ibid, s 271.
 Reasons for decision [10-11].
- Published Case Name:
Walden v Body Corporate for Broadwater Tower
- Shortened Case Name:
Walden v Body Corporate for Broadwater Tower
 QCATA 166
16 Nov 2015