Kulcsar v Body Corporate for Larnaca Court CTS 10467
[2016] QCATA 47
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- Kulcsar v Body Corporate for Larnaca Court CTS 10467[2016] QCATA 47
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Kulcsar v Body Corporate for Larnaca Court CTS 10467[2016] QCATA 47
Kulcsar v Body Corporate for Larnaca Court CTS 10467[2016] QCATA 47
CITATION: | Kulcsar & Ors v Body Corporate for Larnaca Court CTS 10467 [2016] QCATA 47 | |
PARTIES: | Charles KULCSAR (First Applicant/Appellant) GENERIC INTERNATIONAL PTY LTD (Second Applicant/Appellant) Chucheep SUNAPHO (Third Applicant/Appellant) v BODY CORPORATE FOR LARNACA COURT CTS 10647 (Respondent) | |
APPLICATION NUMBER: | APL165-15 | |
MATTER TYPE: | Appeals | |
HEARING DATE: | On the papers | |
HEARD AT: | Brisbane | |
DECISION OF: | Justice Carmody | |
DELIVERED ON: | 16 March 2016 | |
DELIVERED AT: | Brisbane | |
ORDERS MADE: | THE APPEAL TRIBUNAL ORDERS THAT: The appeal is dismissed. | |
CATCHWORDS: | APPEAL – LEAVE TO APPEAL – BODY CORPORATE – Whether an adjudicator made any error in dismissing an application to waive non – compliance with a time limit in the Body Corporate and Community Management Act 1997 – whether an adjudicator has jurisdiction where no dispute Body Corporate and Community Management Act 1997 (Qld) s 242 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 146 Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 229 House v The King [1936] 55 CLR 499 Jackamarra v Krakouer (1998) 195 CLR 516 Mazelow Pty Ltd v MacDonald Earthmoving Co Pty Ltd [2001] QCA 87 | |
APPEARANCES and REPRESENTATION (if any):
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
- [1]This appeal proceeding is brought as of right on a question of law only under Part 11 of Chapter 6 of the Body Corporate and Community Management Act 1997 (Qld)(‘BCCM Act’).
- [2]It is to be decided in the way provided for by s 146 of the QCAT Act.
- [3]The relevant grounds of appeal are set out at [4] – [15] of the notice. A waiver of noncompliance with the procedural requirements of s 242(2) of the BCCM Act is applied for.
- [4]Despite the volumes of file material, the sole question to be decided is whether the BCCM Adjudicator made any legal (including discretionary) error in dismissing the appellant’s application to waive noncompliance with the three month time limit in s 242(2) of the BCCM Act for challenging the resolutions in issue.
- [5]The respondent, by contrast, cross-appeals on the ground that the Adjudicator should have dismissed the application, not only because it was stale, but also because jurisdiction was lacking as there was no “dispute” to be resolved and, in any event, the appellants had no legitimate standing to challenge the resolutions.
Context
- [6]The appellants are lot owners in Larnaca Court in Brisbane. They are in dispute with the body corporate and other lot owners over the validity of resolutions carried at general meetings held in 2008 and 2010 about the creation and transfer of ownership of a new lot. They allege the resolutions in question are irregular for want of quorum and proper notice.
The BCCM Act
- [7]Under s 242(2) of the BCCM Act an application to set aside a resolution of the body corporate must be made within three months after the meeting at which the resolution was passed. However, an Adjudicator to whom the application is referred may, for good reasons, waive the non-compliance under the relieving provisions of sub-section 242(4). The appellants were six years late in challenging the two 2008 resolutions and four years out of time in relation to the two 2010 resolutions.
- [8]Relaxation of rigid time limits is a matter of discretion. It depends on whether it can be done without causing prejudice or detriment to a party. The discretion is a wide and unfettered one.
- [9]The Adjudicator exercised her discretion against waiving the noncompliance because of the length of the delay, the lack of a reasonably satisfactory explanation for it, the appellants’ had no standing to challenge the resolutions within the time limit due to the fact they did not become a lot owner until some years after the disputed resolutions, the likely prejudice to the respondent in waiving noncompliance, the law’s preference for certainty and the poor prospects of success that the appellants would have had even if the application had been lodged in time.
- [10]The appellants’ written submissions deal with the noncompliance issue between [47] – [48]. The respondent’s relevant response is from [44] – [59]. The appellants’ submission in reply is at [56].
- [11]The discretion to extend time for starting a proceeding is aimed at avoiding injustice. In addition to a satisfactory explanation for the delay, to obtain a waiver, an applicant, must demonstrate that an appeal is necessary to remedy a substantial injustice caused by an appealable error. Even a short delay will not be excused if the appeal would be futile and inconsistent with the due administration of justice.[1]
- [12]Other relevant considerations commonly taken into account include whether:
- The delay was intentional or merely the result of inadvertence or misunderstanding.
- Whether the appellant was vulnerable or at the mercy of the actions of others e.g. his or her legal advisors; and a binding decision on the point was ignored or overlooked.[2]
- There would be any significant prejudice to the respondent if time was enlarged.[3] Mere inconvenience of having to defend the appeal is insufficient. What is required is undue disadvantage that cannot be remedied by a costs order or in some other way.[4]
- [13]These factors are taken in combination, not isolation, and one does not necessarily outrank or override another.[5]
- [14]Appellate bodies traditionally show respect for first instance decisions because of the need for litigation to be dealt with as quickly as possible and at the lowest cost having regard to the importance or value of the subject matter. Where the decision in issue is a discretionary one there is a strong but rebuttable presumption that it is correct.[6]
- [15]The interference with a discretionary judgment is governed by the principles stated by the High Court in House v The King.[7] Error in exercising the discretion must be established to rebut the presumption by showing any one or more of the following:
- a wrong principle was acted on;
- irrelevant considerations were taken into account;
- the facts were mistaken;
- material factors were disregarded; and
- although no specific discretionary error is apparent, the result is unreasonable or plainly unjust.
- [16]The matters the appellants allege the Adjudicator overlooked or under weighted are listed at [48](a)-(p)(vi) on page 15 of their written submissions. Of those only [48](j), (o) and (p)(i)-(vi) relate to the time limit issue. However, the Adjudicator’s published reasons show that she was mindful of the need for a flexible non-legalistic approach to the “good reason” excuse.
- [17]Obviously the respondent invested money in reliance on the resolutions, in anticipation of future redevelopment of the common property, as the respondent points out in paragraphs [49]-[50] of its written submissions.
- [18]The inferred (but non-specific) damage probably incurred by the respondent that could not be adequately compensated for in money because of the length of the delay and subsequent changes in the respondent’s position was a reason given for refusing the waiver, but it was not the primary one.
- [19]The main reason for not showing leniency was clearly the Adjudicator’s view that the appeal was unmeritorious.
- [20]In my opinion the appellant’s proposed appeal on the question of the refusal to extend the procedural rule as to time is not reasonably arguable because none of the asserted errors have been demonstrated.
- [21]There is nothing to indicate that the Adjudicator did not exercise her discretion consistently with principle and without the making of the error alleged by the appellant in denying the relief they sought to ensure that justice was done.
- [22]Inadequate explanation for an extremely long delay is sufficient in itself for noncompliance not to be waived. So too is the likely prejudice to the respondent because relevant documents either no longer exist or cannot be found, and the costs incurred by the respondent on the faith of the validity of resolutions made half a dozen years ago and well before the appellant acquired any community title interest.
- [23]The appeal is dismissed.
Footnotes
[1] See Mazelow Pty Ltd v MacDonald Earthmoving Co Pty Ltd [2001] QCA 87.
[2] See generally Beazley, Appeals on appellant courts in Australia and New Zealand, LexisNexis (2014) at 87-88.
[3] Jackamarra v Krakouer (1998) 195 CLR 516 at 542-543 per Kirby J.
[4] Jackamarra v Krakouer at 543 per Kirby J.
[5] Crime and Misconduct Commission v Chapman and Anor [2011] QCAT 229.
[6]Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, Kirby J at 627.
[7] [1936] 55 CLR 499 at 505.