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Triguboff v Barry QCATA 58
Triguboff v Barry  QCATA 58
HARRY TRIGUBOFF and RHONDA TRIGUBOFF
DAVID BARRY and JEAN BARRY
Heard on the papers
Kenneth Barlow QC, Member
14 March 2016
Body Corporate and Community Management – appeal from order of adjudicator – whether an appeal on a question of law – Body Corporate and Community Management Act 1997 (Qld), s 289
Body Corporate and Community Management – repair to leaking roofing membrane on balcony – whether cost should be borne partially by owners of lot – Body Corporate and Community Management (Accommodation Module) Regulation 2008, s 157
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Council of the City of Wollongong v Cowan (1955) 93 CLR 435
HIA Insurance Services Pty Ltd v Kostas  NSWCA 292
Logan v Woongarra Shire Council  2 Qd R 689
Ponnama v Arumogam  AC 383
River City Apartments v McGarvey  QCATA 047
APPEARANCES and REPRESENTATION:
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
- I have had the substantial benefit of reading Member Barlow QC’s reasons and agree with them. I also concur with the orders he proposes.
MEMBER BARLOW, QC
- The applicants, Harry and Rhonda Triguboff, are the owners and occupants of lot 51 in the Silverpoint Community Titles Scheme 5844.
- The respondents, David and Jean Barry, are the owners and occupants of lot 50 in Silverpoint. Lot 50 is situated immediately below lot 51.
- For some years, Mr and Mrs Barry have complained to the body corporate for Silverpoint that water was leaking into their unit from the balcony of lot 51, apparently due to a defective water membrane. That balcony does not appear to be part of the common property of the body corporate, but it appears to comprise a roofing structure for lot 50. Pursuant to section 157 of the Accommodation Module (which applies to the scheme) the body corporate is required to maintain in good and sound structural condition roofing structures and roofing membranes that provide protection for lots. Apparently on that basis, Mr and Mrs Barry applied to an adjudicator for orders to the effect that the body corporate obtain access to the balcony of lot 51 and repair the membrane at its cost.
- The adjudicator made her decision on 8 May 2015. In effect, she ordered that the body corporate repair the membrane, the owners of lot 51 allow access to the balcony of that lot for that purpose and, after the repairs had been effected, the body corporate rectify damage to lot 50 caused by leaking water. Of most relevance to this application, she also ordered that Mr and Mrs Triguboff reimburse the body corporate 50% of the costs of removal of existing tiles and bedding and replacing and laying the tiles on the balcony of lot 51, while the body corporate bear 100% of the cost of replacing the membrane.
- Mr and Mrs Triguboff seek leave to appeal the adjudicator’s decision on the grounds that:
- the decision was based on incorrect facts because, by the time it was made, the works had already been completed under an agreement that had been reached between themselves and the body corporate; and
- they were never given an opportunity to make submissions about the order that they share the cost of removing and replacing the tiles and bedding.
Legal basis for appeal
- The application for leave to appeal and the submissions filed on behalf of Mr and Mrs Triguboff do not specify the legal basis on which leave is sought. The tribunal’s jurisdiction to hear appeals from decisions of adjudicators is granted under section 289 of the Body Corporate and Community Management Act 1997. Subsection 289(2) provides that “The aggrieved person may appeal to the appeal tribunal, but only on a question of law.” Each of Mr and Mrs Triguboff is clearly an “aggrieved person”, as they are both persons who, on an invitation under s 243 or s 271, made a submission on the application to the adjudicator.
- Although the application states that leave is sought to appeal on a question of fact, Mr and Mrs Triguboff’s submissions assert that, as the works had been completed before the decision was made, the adjudicator failed to take into account a relevant fact. Presumably (although it is not stated) that contention is intended to raise a ground of legal error arising from failing to take that fact into account.
- Insofar as the application seeks to appeal the order for division of the costs of the works, it appears to assert a failure to accord natural justice, as the application asserts that no notice was given to Mr and Mrs Triguboff that such an order was being contemplated or made.
- I do not consider that the appeal is properly constituted insofar as it seeks to set aside the orders to undertake the repairs. Although it is now asserted that, by the time the decision had been made, the repairs had been completed, there was no evidence to that effect before the adjudicator. Although there was evidence that the body corporate and Mr and Mrs Triguboff had apparently reached an agreement on the terms (as between them) on which the body corporate would undertake the works and be allowed access to do so, that was as far as the evidence went.
- It appears from the file of the office of the Commissioner for Body Corporate and Community Management that, on 1 May 2015, an officer of the Commissioner telephoned the solicitor who had made submissions on behalf of Mr and Mrs Triguboff. During that conversation, the solicitor informed the officer that the works had been completed and she did not know if the applicants were still pursuing the application. A file note of that conversation was passed on to the adjudicator. Although the adjudicator did not take that conversation into account in making her decision, and it is perhaps regrettable that she did not make further enquiries as a result, I do not consider that the conversation itself amounted to evidence on which she could act.
- An appeal under s 289 of the Act can only be on a question of law. When an appeal is permitted only on a question of law, that question is not merely a qualifying condition to ground the appeal, but is the sole subject matter of the appeal, to which the ambit of the appeal is confined. An appeal restricted to a question of law is an appeal in the strict sense, in which the sole question is whether the original decision was right at the time, having regard to the law at that time and the evidence before the primary decision maker.
- The limitation of the tribunal’s jurisdiction to the resolution of questions of law imposes a significant constraint on the role of the tribunal in reviewing decisions of an adjudicator. The appellable error of law must arise on the facts found by the adjudicator or must vitiate the findings made or must have led the adjudicator to omit to make a finding she or he was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law. Where the decision of the administrator involves matters of fact and degree, then provided she or he applies correct principles of law, no appeal will lie.
- The appeal against the orders for repairs is really an appeal on a question of fact, rather than on a question of law.
- Furthermore, the “mistaken” fact in this case was not in evidence before the adjudicator, and to prove it before this tribunal would require further evidence. Mr and Mrs Triguboff have filed an affidavit with their application and rely on it in their written submissions, although they have not sought leave to rely on it. Leave may be granted to adduce fresh evidence in an appeal where the evidence was not reasonably available at the hearing; had it been, an opposite result was likely; and the new evidence is credible.
- In this case, it was open to Mr and Mrs Triguboff to inform the adjudicator, before the decision was made, that the works had been carried out. Neither they, Mr and Mrs Barry, nor the body corporate did so in any formal manner. No reason has been given to this tribunal for that failure. If Mr and Mrs Triguboff’s application is treated in part as an application for leave to adduce further evidence, in the circumstances I consider that it should be declined. In that case, the adjudicator’s decision was not in error in this respect.
- In their submissions, Mr and Mrs Triguboff complain that, if the orders stand, they and the body corporate will be required to re-do all the works given that the orders take effect from the date that they were made.
- In my view, that is not correct. The orders clearly concern the works that were the subject of the application. If those works have been done, they have been done and the orders (which were of course, based on evidence that the works had not been done) have been complied with.
A failure of natural justice?
- However, the appeal against the order to divide the costs of the works between the body corporate and Mr and Mrs Triguboff is another matter. A failure to accord natural justice is an error of law. As the appeal in this respect asserts a failure to accord natural justice to Mr and Mrs Triguboff, it is an appeal on a question of law, for which no leave is required. I proceed now to consider that appeal.
- In the application before the adjudicator, Mr and Mrs Barry sought orders that the repair works (including all tiling works) be carried out at the expense of the body corporate. The body corporate agreed that it should bear the costs. So did Mr and Mrs Triguboff. The adjudicator even recorded that “the Body Corporate agrees that all costs of the works in compliance with the order will be borne by them and that this is not disputed.” In no submissions to the adjudicator that were given to Mr and Mrs Triguboff did anyone submit that they should bear any part of the expense.
- However, Mr and Mrs Barry did make such a submission in their submissions in reply to Mr and Mrs Triguboff’s submissions. In those submissions, Mr and Mrs Barry relevantly asserted that, “the only cost for which the Body Corporate should be responsible … is the cost of removal and disposal of the original tiles and waterproofing. …Lot 51 should be responsible for the entire cost of removal and disposal of the overlaid tiles and bedding and the supply and installation of new tiles.”
- The adjudicator decided that Mr and Mrs Triguboff should pay for 50% of the costs of removing and replacing the tiles because Mr and Mrs Barry had provided a copy of an engineering report in which the author had concluded that the leaking was partly caused by tiling work, apparently carried out by the owners of lot 51 after completion of the building, that had blocked drainage holes at the foot of the sliding doors to the balcony. This caused water, which should have drained onto the tiles and therefore outside the building, to pool below the door frame and eventually to seep through to the lower floor. The leak was also partly caused by failure of the original waterproof membrane.
- The adjudicator therefore considered that Mr and Mrs Triguboff had contributed to the leaking by laying the additional tiles incorrectly.
- Unfortunately, Mr and Mrs Barry’s submissions in reply, in which they made the relevant submission for the first time, were not provided to the body corporate or, more importantly, to Mr and Mrs Triguboff. Although it appears that, in the conversation on 1 May to which I have referred above, the Commissioner’s officer informed Mr and Mrs Triguboff’s solicitors that the Commissioner had received submissions in reply and asked whether the solicitor wished to respond, no indication was given that a fresh submission (which was not strictly in reply) had been made. The solicitor is recorded as having indicated that, as the works had been completed, any issues in the response will have been resolved.
- In my view, it was necessary that the submissions in “reply” be provided to Mr and Mrs Triguboff so that they would have had full notice of the contents of that document and would have been able to make an informed decision on whether to respond. The failure to provide the submissions to them was a clear breach of natural justice and therefore an error which this tribunal should correct.
- I consider that the adjudicator’s decision in this respect should be set aside.
- Although regrettable, given the nature and content of the submissions made by Mr and Mrs Barry on this point (including as to whether the balcony is or is not part of the common property or otherwise the responsibility of the body corporate to maintain and repair), I consider it necessary to refer the matter back to the adjudicator for reconsideration of this issue (after receiving submissions). Obviously the body corporate (which has not been made a respondent to this appeal, although clearly it should have been as its interests may be affected by the outcome) should also be given an opportunity to make submissions on this issue.
- In my view, therefore, the appropriate orders in this appeal are that:
- Order 6 of the original decision be set aside.
- The matter be remitted to the adjudicator for a fresh decision on the question of who should bear the costs of the works the subject of order 1 of the original decision.
 Whether it is part of the common property appears now to be in contention, although it was not apparently in contention before the adjudicator until Mr and Mrs Barry filed submissions in response to Mr and Mrs Triguboff’s submissions. For the purpose of this application it is unnecessary to decide the question.
 Silverpoint  QBCCMCmr 217.
HIA Insurance Services Pty Ltd v Kostas  NSWCA 292, at . See also, in QCAT, River City Apartments v McGarvey  QCATA 047, at -.
Ponnama v Arumogam  AC 383 at 388; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619; Logan v Woongarra Shire Council  2 QdR 689.
 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 286.
 Council of the City of Wollongong v Cowan (1955) 93 CLR 435.
- Published Case Name:
Triguboff v Barry
- Shortened Case Name:
Triguboff v Barry
 QCATA 58
14 Mar 2016