Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

McCall v Martin[2017] QCATA 103

 

CITATION:

McCall v Martin & Anor [2017] QCATA 103

PARTIES:

Cameron Hugh McCall

(Applicant)

 

v

 

Cheryl Martin

The Body Corporate for Contessa Condominiums

(Respondents)

APPLICATION NUMBER:

APL198-16

MATTER TYPE:

Appeals

HEARING DATE:

27 February 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member Olding

DELIVERED ON:

22 September 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Appeal allowed;
  2. Order of the adjudicator dated 18 May 2016 set aside;
  3. Matter returned to the adjudicator for reconsideration on the merits and in accordance with these reasons.

CATCHWORDS:

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – appeal from decision of adjudicator – where by law restricted laying of hard flooring – where body corporate resolution authorised laying of hard flooring – whether compliance by lot owner with authorisation – whether by law restricting laying hard flooring unreasonable – whether hard flooring caused a nuisance or unreasonably interfered with the use or enjoyment of another lot – whether adequate reasons given by adjudicator – whether adjudicator took into consideration all relevant considerations – whether adjudicator failed to consider a relevant consideration

Body Corporate and Community Management Act 1997 (Qld) s 167, s 180(7), s 289

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146

Bell v Commissioner of Taxation [2012] FCA 1042

BE v Office of the Adult Guardian & Public Trustee of Queensland [2010] QCATA 24

Body Corporate for Admiralty Towers II v Johnson [2017] QCATA 29

Canada (Director of Investigation and Research) v. Southam Inc [1997] 1 S.C.R. 748

Contessa Condominiums [2008] QBCCMCmr 107

Ericson v Queensland Building Services Authority [2013] QCA 391

Hussain v Minister for Foreign Affairs (2008) 169 FCR 241

McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57

McLeod v Body Corporate for Stradbroke

Miles & Anor v Body Corporate for Solarus Residential Community Titles & Ors [2016] QCATA 130

Miles & Anor v Gough & Ors [2017] QCA 190

Norbury v Hogan [2010] QCATA 27

Tower and Villas [2015] QCATA 146

APPEARANCES:

 

APPLICANT:

Mr McCall represented himself

RESPONDENT:

Ms Martin represented herself

Mr Dwyer, Chairman, represented the Body Corporate for Contessa Condominiums

REASONS FOR DECISION

  1. [1]
    Contessa Condominiums is a 124 lot scheme located on the Gold Coast. Mr McCall is one of the lot owners. Ms Martin is also a lot owner. In late 2012 Ms Martin undertook renovations to her lot. Those renovations included the removal of carpet in the lounge room and living room of the apartment and the laying of ceramic floor tiles on top of an acoustic underlay. Floor tiles in the kitchen were also pulled up, an acoustic underlay put down, and ceramic floor tiles re-laid.
  2. [2]
    The body corporate applied to the Office of the Commissioner for Body Corporate and Community Management for adjudication seeking orders that Ms Martin remove the tiles in the areas in the lot that had been tiled and replace them with carpet. Mr McCall, as he was entitled to do, made a submission to the Commissioner.
  3. [3]
    On 18 May 2016 an adjudicator dismissed the application by the body corporate. Mr McCall has appealed that decision.

The Body Corporate and Community Management Act 1997 (Qld) (‘the Act’)

  1. [4]
    The right to appeal an adjudicator’s decision under the Act to the Appeal Tribunal is set out in s 289 of the Act. An appeal may only be made on a question of law.
  2. [5]
    An aggrieved person may appeal an adjudicator’s decision.[1] An aggrieved person must (for the purposes of an appeal such as the present) be an applicant, a respondent, the body corporate or a person who made a submission about the original adjudication application.[2]
  3. [6]
    In deciding an appeal on a question of law the Appeal Tribunal may: confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter to the Tribunal or other entity who made the decision for reconsideration; or make any other order it considers appropriate.[3]
  4. [7]
    A by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots in the scheme and the use of the common property for the scheme.[4]
  5. [8]
    A body corporate must act reasonably in, among other things, enforcing the community management statement including enforcing any by-laws.[5]

The grounds of appeal

  1. [9]
    Mr McCall made a submission in the adjudication application. He is an aggrieved person and is entitled to bring this appeal. 
  2. [10]
    The grounds of appeal relied upon by Mr McCall became somewhat clearer in the course of the hearing and are:
    1. The adjudicator erred in finding that the body corporate committee gave approval for the tiling work and if such approval was given, the body corporate could only give such approval pursuant to the relevant by-law;
    2. The adjudicator erred in finding that Ms Martin’s non compliance with the by-law when providing details of the flooring material was of an insubstantial nature;
    3. The adjudicator erred in finding that a lot owner could not comply with the relevant by-law on the basis that such compliance would require the installation of a false ceiling in a lot below that in which flooring is proposed to be laid;
    4. The adjudicator erred in finding the by-law to be unreasonable;
    5. The decision of the adjudicator was not just and equitable on the basis that the adjudicator found that the applicable standard for noise insulation was that found in the Building Code of Australia and not the highest possible sound insulation between lots;
    6. The adjudicator erred in applying s 167 of the Act by failing to take into consideration the subjective facts and circumstances relevant to the scheme.
  3. [11]
    For the reasons set out, we allow the appeal on the basis of an error of law by the adjudicator, although the error is not one relied upon by Mr McCall in his grounds of appeal. As the reasons make clear, we have concluded that the adjudicator did not err in finding that the by-law was unreasonable. The by-law being found to be unreasonable, the adjudicator was required to make an order that was just and equitable in the circumstances. For this reason, the appeal grounds relating to compliance or otherwise with the by-law (by Ms Martin or the body corporate) consequently fall away. Nevertheless, for the sake of completeness and to assist the adjudicator in reconsidering the matter, we will deal with each of the grounds of appeal raised by Mr McCall.

Questions of law, questions of fact and questions of mixed law and fact

  1. [12]
    As to what are questions of law, questions of fact and questions of mixed law and fact, the Appeal Tribunal has observed:

The distinction between questions of law and fact is not always clear, and courts have not found it easy to formulate a satisfactory test of universal application. A concise and helpful summary appears, in our view, in this passage from a decision of the Supreme Court of Canada:

Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.[6]

  1. [13]
    The grounds of appeal relied upon by Mr McCall raise questions of fact, questions of law and questions of mixed law and fact.

Discussion

  1. [14]
    Mr McCall says that the adjudicator erred in finding that the committee gave approval for the works and that any such approval could only have been given pursuant to the relevant by-law. This ground of appeal contains two grounds. Firstly, that the resolution by the committee on 11 December 2007 was in fact not an approval and that the adjudicator erred in so finding. Secondly, if the committee did approve the flooring works, the adjudicator erred in finding that the committee could approve the works other than in accordance with the by-law.
  2. [15]
    By-law 3.1(j) provided:

3.1  The occupier of a lot must not make or undertake, and the owner of a lot must not permit to be made or undertaken:

...

  1. any removal of carpet and replacement with tiles, marble, wood or other hard flooring material without industry approved noise insulation material being installed to minimise noise transfer to neighbouring lots. In addition, all applications to replace carpet with tiles or any form of hard surface flooring material will require a detailed quote containing the exact specification of the acoustic underlay proposed to be used under tiles or any form of hard surface flooring material and a certification from an acoustic consultant to say he has reviewed the quote and specification of the proposed work and it will not affect the sound proofing and will not allow the transmission of noise to the unit below beyond the current level with the carpet installed; and without the prior permission in writing of the committee.
  1. [16]
    The adjudicator found that the minutes of the meeting of the body corporate committee on 11 December 2007 constituted the committee’s written permission for Ms Martin to proceed with the works. The minutes provided:[7]

These owners [Ms Martin] also requested permission to remove carpet and do some retiling. Response to the owners to advise that even though acoustic underlay could be installed under any new tiles, the owner below can be successful in having an order issued against them causing the new tiles to be removed as they constitute a noise nuisance. Because of the history of re-tiling or tiling issues the committee does not recommend that any areas currently carpeted be tiled. However, should the owners choose to proceed, only approved acoustic underlay can be used, which meets all Australian Standards.[8]

  1. [17]
    The adjudicator placed particular emphasis on the final sentence of the resolution in finding that the committee ultimately left the tiling to the discretion of Ms Martin.[9] It was not argued in this appeal that there was no evidence upon which the adjudicator could make the finding that the committee had approved the flooring works.[10] The finding by the adjudicator that the resolution recorded the committee’s written approval for the works is a finding of fact. Mr McCall is not entitled to appeal against this finding. His right of appeal is limited to questions of law.
  2. [18]
    Mr McCall says that any approval by the committee for the flooring works could only be in accordance with the by-law. We understand this ground of appeal to mean that unless there was strict compliance by Ms Martin with the letter of the by-law, the committee was unable to give approval.  We understand Mr McCall to be saying that the adjudicator erred in failing to find that the committee could only approve the flooring work in accordance with the by-law. This ground of appeal relates not to whether the committee did give approval for the tiling work but rather whether it could give approval. We are not entirely persuaded that this ground of appeal raises a question of law alone. It appears to raise a question of mixed law and fact. A question of mixed law and fact is not a question of law.[11] We will nevertheless address the argument raised by Mr McCall.
  3. [19]
    By-law 3.1(j) required the following in respect of any proposal by a lot owner to replace carpet with tiles or other hard flooring material:
    1. An application to the committee for approval, which application included:
    1. A detailed quote containing the exact specification of the acoustic underlay proposed to be used under tiles or any form of hard surface flooring material; and
    2. Certification from an acoustic engineer that:
      1. The quote and specification in respect of the proposed work have been reviewed; and
      2. The proposed work ‘will not affect the sound proofing’;
      3. The proposed work will not allow the transmission of noise to the unit below beyond the current level with the carpet installed; and
  4. The permission in writing of the committee before the work was carried out. (b)
    The permission in writing of the committee before the work was carried out.
  • [20]
    On a plain reading, the by-law does not contemplate an approval by the committee for a lot owner to undertake flooring work before the lot owner submits an application accompanied by a quote and acoustic certification. A lot owner is required to apply for permission to undertake relevant flooring work, and provide to the committee the information specified in the by-law with the application, and, based upon the application and information, the committee makes a decision whether or not to grant the approval for the work. 
  • [21]
    The evidence before the adjudicator regarding the steps taken by Ms Martin to obtain committee approval was scant. There is an email from Ms Martin to the body corporate manager on 21 November 2007 referring to conversations with (presumably) the scheme caretakers advising of the proposed flooring work. That communication reads in part:

We now advise out of courtesy, that we will undertake a renovation to our unit which will include a repaint, the removal of the kitchen wall, and tiling amongst other things.[12]

  1. [22]
    Perhaps surprisingly, given the way in which the communication was worded, and the general dearth of information provided, the body corporate committee resolved, as found by the adjudicator, on 11 December 2007, to approve the work subject to Ms Martin ‘using only approved acoustic underlay which met all Australian Standards’.
  2. [23]
    The adjudicator found that Ms Martin had failed to provide to the committee the exact specification of the acoustic underlay proposed to be used.[13] The adjudicator found however that Ms Martin had provided to the committee a tax invoice providing the specifications of the acoustic underlay used.[14] This was provided under cover of correspondence from Ms Martin’s solicitors to the body corporate. The letter from the solicitors quoted from the website of the manufacturer of the underlay.[15] The adjudicator found that the body corporate had failed to establish how the information provided by Ms Martin failed to meet the condition of approval by the committee that the acoustic underlay meet all Australian Standards. Although the reasons could be clearer, it seems readily apparent that the adjudicator found that the approval by the committee for the flooring work was conditional upon the work meeting ‘all Australian Standards’.
  3. [24]
    The adjudicator found that the failure by Ms Martin to submit with the application to undertake the tiling work a quote in compliance with the by-law was not a contravention of the by-law. The adjudicator found that the non compliance with the by-law was ‘trivial’ particularly in circumstances where the committee was clearly willing to give its consent to the work in the absence of this information.[16]
  4. [25]
    The adjudicator made no specific finding as to whether the effect of the December 2007 resolution was to waive compliance with by-law 3.1(j). The reasons do not reveal whether the adjudicator considered this issue which was not the subject of submissions by any of the parties.
  5. [26]
    It is not apparent from the reasons whether the adjudicator considered the requirement found in the by-law that Ms Martin provide a detailed quote and acoustic certification at the time she applied for permission to undertake the work, had been waived by the body corporate by the December 2007 resolution. Such a finding might be said to be implicit in the reasons but for the finding by the adjudicator that the failure by Ms Martin to provide the quote and certification at the time of seeking approval for the flooring works was non compliance (with the by-law) of an insubstantial nature.[17] 
  6. [27]
    There is no doubt that the December 2007 resolution is expressed in vague terms. The word ‘approved’ in the resolution should be read in the context of by-law 3.1(j) which prohibited:

… any removal of carpet and replacement with tiles, marble, wood, or other hard flooring material without industry approved noise insulation material being installed to minimise noise transfer to neighbouring lots. (emphasis added)

  1. [28]
    The requirement in the resolution that Ms Martin use ‘approved acoustic underlay’ appears to be a reference to the ‘industry approved noise insulation material’ found in by-law 3.1(j).
  2. [29]
    By-law 3.1(j) is directed at minimising noise transfer from a lot to neighbouring lots in circumstances where a lot owner seeks to install hard flooring. The by-law addresses the issue by requiring the use of approved noise insulation material that has the effect of not allowing the transmission of noise from a lot to the unit below beyond the level with carpet installed. The use of the term ‘approved acoustic underlay’ in the 2007 resolution must be read in this context.
  3. [30]
    As we have found, a plain reading of the by-law required a lot owner to provide to the committee an application to undertake the flooring work accompanied by the specified documents; a consideration by the committee of the application; and a decision by the committee whether to approve or not approve the proposed work. Clearly, this was not the course followed by Ms Martin. Despite this, the committee approved the works without sighting, and considering, the required quote and acoustic expert certification.
  4. [31]
    The adjudicator found that the 2007 resolution recorded the committee’s approval for the flooring work to be undertaken. It follows from this finding that the requirement contained in the by-law that the application be accompanied by the specified documents was waived by the committee.  If the requirement had not been waived, then presumably the committee would not have resolved to approve the works and would have required Ms Martin to lodge an application complying with the by-law.
  5. [32]
    The body corporate was required to enforce the community management statement including enforcing any by-laws for the scheme in the way provided under the Act. In making any decision, including a decision concerning the enforcement of the community management statement, the body corporate was required to act reasonably.  It was open to a lot owner to apply to the Office of the Commissioner for Body Corporate and Community Management for adjudication of a dispute relating to the actions of the body corporate in passing the 2007 resolution authorising Ms Martin to undertake the tiling work. An adjudication application for an order declaring void a resolution of the committee or the body corporate is required to be made within three (3) months after the meeting at which the resolution was passed.[18] There is nothing before us to suggest that an application was made to set aside the December 2007 resolution. The adjudicator was entitled to rely upon the validity of the resolution. The adjudicator did not err in failing to find that the body corporate could not permit the work to be carried out other than in strict accordance with by-law 3.1(j).
  6. [33]
    As we have observed, traversing the grounds of appeal relating to whether the adjudicator erred in his findings as to the compliance or otherwise by Ms Martin and the body corporate with the by-law, and the adequacy or otherwise of the adjudicator’s reasons, is an arid exercise. The adjudicator found that the by-law was unreasonable and, in our view, did not err in so finding. Having found the by-law unreasonable, compliance or otherwise with it was irrelevant.
  7. [34]
    Ms Martin argued before the adjudicator that the acoustic certification requirement in by-law 3.1(j) was unreasonable and contrary to s 180(7) of the Act as it was not reasonably achievable for a tiled floor to deliver the same level of acoustic insulation as carpet with underlay. The adjudicator agreed with this submission and found the by-law to be unreasonable. Mr McCall says that the adjudicator erred in finding the by-law unreasonable.
  8. [35]
    In his reasons, the adjudicator referred to the report by the acoustic specialist Renzo Tonin Ron Rumble (“RTRR”). The adjudicator noted the opinions expressed in the report that in order for a tiled floor to achieve the same level of acoustic insulation as carpet with underlay, a lot owner would be required to undertake specified work both in their lot and in adjoining lots. Firstly, multiple layers of underlay would be required to be installed which would cause a floor build up of 6 millimetres. Secondly, a false ceiling would be required to be constructed in the lot below.[19]
  9. [36]
    The adjudicator found that the requirement for noise transmission found in by-law 3.1(j) was unreasonable and contrary to s 180(7) of the Act on the basis that the requirement was unachievable.[20] The adjudicator found that a lot owner had no right to install a false ceiling in a neighbouring lot. Mr McCall complains about this finding and says that there was no evidence that an adjoining lot owner would not agree to the installation of a false ceiling in their lot. The finding by the adjudicator complained of by Mr McCall is one of fact. Mr McCall may only appeal on a question of law.[21]
  10. [37]
    The function of the adjudicator was to determine whether by-law 3.1(j) was unreasonable and to make a just and equitable order. This did not require a consideration by the adjudicator as to whether the by-law, or whether reliance upon by the by-law by the body corporate, was reasonable. 
  11. [38]
    The issue of whether a by-law imposing conditions upon the installation of hard flooring was unreasonable was considered by the QCAT Appeal Tribunal in Body Corporate for Admiralty Towers II v Johnson.[22] In Johnson, the by-law required that hard floor coverings installed by a lot owner not exceed a specified impact sound pressure level. The adjudicator found that the relevant by-law was unreasonable having regard to the interests of all owners and occupiers of lots in the scheme. The Appeal Tribunal rejected the body corporate’s argument that the adjudicator did not consider the reasonableness of the by-law having regard to the interests of all lot owners. The Appeal Tribunal found that the adjudicator had taken into consideration those interests, finding:

In the light of those circumstances, reasonable minds can differ as to whether or not something is reasonable. It is not for this tribunal to overturn an adjudicator’s decision even if this tribunal disagrees with the adjudicator’s conclusion on reasonableness, provided that the adjudicator reached that conclusion on the basis of objective facts as found by the adjudicator.[23]

  1. [39]
    In allowing the appeal on other grounds, the Appeal Tribunal found that the adjudicator erred in relying upon evidence from an acoustics expert who was not qualified to express opinions regarding the impracticality of installing flooring with the required level of underlay to ensure compliance with the by-law.
  2. [40]
    In considering whether difficulty in compliance rendered the by-law unreasonable, the Appeal Tribunal found in Johnson:

Finally, I do not consider that the by-law is unreasonable simply because the advice obtained by the body corporate, in the light of which it imposed the 45dB requirement, noted that it would be extremely difficult for hard flooring to comply. The evidence before the adjudicator indicated that, although difficult, it was possible to comply using hard flooring. As I have said above, in the light of the inadequacy of the evidence about the effects on the apartment of flooring about 42 to 51mm thick, combined with evidence that other lot owners had installed hard flooring with the body corporate’s consent, the evidence did not go so far as to prove that it was practically so difficult as to be impossible to comply with the by-law.[24]

  1. [41]
    In McLeod v Body Corporate for Stradbroke Tower and Villas[25] the QCAT Appeal Tribunal was required to consider an appeal against a decision of an adjudicator concerning a by-law imposing upon lot owners seeking to install hard-wood flooring a requirement that such flooring achieve a specified minimum noise attenuation level. In McLeod, the adjudicator found that the minimum noise isolation level specified in the by-law was sufficiently high as to render the condition imposed in the by-law unreasonable. The adjudicator found that a lesser noise impact level (proposed by the body corporate) was reasonable and found that the proposed hard flooring did not achieve that lower level. The Appeal Tribunal was required to consider whether the adjudicator erred in finding that the lesser noise impact level proposed by the body corporate was a reasonable condition.
  2. [42]
    The Appeal Tribunal found that the adjudicator had not erred in finding that the body corporate acted reasonably in imposing a sound level requirement less than provided for in the by-law but higher than that contained in the Building Code of Australia. The Appeal Tribunal held that the adjudicator was entitled to find that the level of noise insulation required by the body corporate was not unreasonable.
  3. [43]
    The by-laws for a community titles scheme may only provide for the regulation of the use and enjoyment of lots in the scheme.[26] A by-law must not be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme. Section 169 of the Act permits the regulation of the use and enjoyment of lots however it does not authorise a by-law prohibiting a certain use and enjoyment of lots.[27] 
  4. [44]
    The adjudicator accepted the expert evidence in the RTRR report that, in order to achieve the acoustic amenity of carpet, hard flooring would require multiple layers of underlay to be installed which would cause a floor build up of 6 millimetres and a false ceiling would be required to be constructed in the lot below. Finding that a lot owner had no right to install a false ceiling in an adjoining lot, which was a finding of fact, the adjudicator concluded that a lot owner had no ability to comply with the by-law and thus the by-law was unreasonable.
  5. [45]
    The adjudicator was clearly entitled to make the finding that the by-law was unreasonable. It is self evident that a lot owner cannot require an adjoining lot owner to agree to the installation of a false ceiling in their lot. Viewed objectively the requirements of the by-law were unachievable and therefore unreasonable. There was no error by the adjudicator.
  6. [46]
    The adjudicator declined to make an order that the by-law was invalid on the basis that it effectively prohibited the laying of hard flooring and was thus beyond the scope of a valid by-law permitted by s 169 of the Act. It was not argued in this appeal that the adjudicator could or should have made an order that the by-law was invalid. We do not propose to consider this issue further.
  7. [47]
    The adjudicator was required to consider whether the flooring installed by Ms Martin caused a nuisance for the purposes of s 167 of the Act. Mr McCall says that the adjudicator erred by applying a ‘generic approach’ in addressing whether the flooring caused a nuisance or unreasonable interference rather than investigating the individual circumstances of the scheme. Mr McCall and the body corporate say that the Building Code of Australia (BCA) minimum requirement for noise transmission is inadequate and that, in any event, the adjudicator did not apply the BCA as it was at the date of his decision.
  8. [48]
    Section 167 of the Act provides:

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—

  1.  causes a nuisance or hazard; or
  1.  interferes unreasonably with the use or enjoyment or another lot included in the scheme; or
  1.  interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.
  1. [49]
    The adjudicator referred to previous decisions relating to the scheme noting that in each of those decisions a finding had been made that the flooring installed by the lot owner did not offer a level of acoustic insulation consistent with a building offering a 4 to 5 star AAAC rating.[28] The adjudicator referred to the RTRR report and the opinion expressed in the report that the flooring installed by Ms Martin scored a 2 star AAAC rating.[29]
  2. [50]
    The adjudicator found that the AAAC star rating system was not an appropriate measure of nuisance for the purposes of s 167 of the Act.[30] The adjudicator considered the BCA/National Construction Code a more appropriate objective threshold for determining a contravention of s 167.[31]
  3. [51]
    The adjudicator found that as the noise levels from Ms Martin’s lot met the requirements of the BCA, there was no contravention of s 167 of the Act.[32]
  4. [52]
    In this appeal, Mr McCall seeks to rely upon a letter from Ron Rumble Pty Ltd.[33] The letter was not before the adjudicator and there has been no application by Mr McCall to rely upon new evidence. Even if such an application had been made, the evidence was available at the time of the adjudication application and there is no explanation provided by Mr McCall as to why it did not form part of his submissions to the adjudicator. In any case, evidence not before the adjudicator is unlikely to be relevant to or indicate any error of law arising out of the adjudicator’s decision. We are therefore not prepared to allow Mr McCall to rely upon the letter and we do not have regard to it. 
  5. [53]
    Both Mr McCall and the body corporate rely upon previous adjudication decisions as evidence of the 4 to 5 star rating of the Contessa scheme. Mr McCall says that the adjudicator erred in not following the decision in Contessa Condominiums[34] where an adjudicator agreed with previous adjudication decisions that the scheme attracted a 4 to 5 star rating. The adjudicator referred to the previous decisions[35] and to the body corporate’s submissions that:

The acoustic testing in lot 13 returned results that would be poor for a building rated as two stars by the Association of Australian Acoustical Consultants (AAAC), whereas previous rulings have accepted that an appropriate rating for the scheme is four-to-five stars. The results are also below the Building Code of Australia (BCA) requirements.[36]

  1. [54]
    The adjudicator made no finding as to a AAAC star rating for the scheme. Rather, he found that the AAAC star ratings system was not an appropriate measure of nuisance under s 167 of the Act. In any event, the adjudicator was not bound to follow what may have been found as to the AAAC star rating for the scheme in previous adjudication applications involving different parties and a consideration of different evidence at different times.
  2. [55]
    The adjudicator relied upon the decision in Norbury v Hogan[37] as support for his conclusion that the AAAC star ratings system was not an appropriate measure in considering nuisance under s 167 of the Act and that an objective standard should be applied.
  3. [56]
    Norbury was concerned with whether a lot owner who smoked on the balcony of his lot thereby unreasonably interfered with the use and enjoyment of another lot owner with a particular sensitivity to cigarette smoke. The President of the Tribunal held that the test for unreasonable interference is objective. Consequently, for the smoke emanating from the unit to constitute unreasonable interference it would have to be such that it would interfere unreasonably with a lot owner of ordinary sensitivity. 
  4. [57]
    The QCAT Appeal Tribunal has held that:
    1. the term “nuisance” in s 167(a) carries the common law meaning of private nuisance;
    2. the test for “nuisance” under s 167 is the same as the test for nuisance at common law – the nuisance must result in a substantial degree of interference according to what are considered reasonable standards for the enjoyment of those premises;
    3. the test for “nuisance” is an objective one;
    4. the phrase “interferes unreasonably” in s 167(b) is to be construed according to the normal meaning of the words;
    5. the test for “unreasonable interference” does not involve any notion of substantiality;
    6. The test for “unreasonable interference” is an objective one.[38]
  5. [58]
    The adjudicator found that Ms Martin had not contravened s 167 of the Act. The reasons however refer only to nuisance, which is found in the first limb of s 167. Section 167 prohibits a lot owner from using their lot in such a way that causes a nuisance or hazard[39] (the first limb) or that interferes unreasonably with the use or enjoyment of another lot[40] (the second limb). The test for nuisance, relevant to the first limb of s 167, requires a substantial degree of interference according to what are considered reasonable standards for the enjoyment of the premises. The second limb of s 167 is concerned with interference that is something less than nuisance. Unreasonable interference does not require substantiality.
  6. [59]
    The reasons make no reference to the separate limbs in ss 167(a) and (b) nor does the adjudicator make any finding as to whether the flooring created an unreasonable interference with the use and enjoyment of another lot included in the scheme. Whilst we note that the adjudicator referred to Norbury v Hogan the reasons do not expressly address the second limb of s 167 and the question of unreasonable interference. If the adjudicator did consider the question of unreasonable interference separate to the issue of nuisance, it is not apparent from the reasons that he did so. If the adjudicator did not consider the question of unreasonable interference, he failed to properly consider both limbs of s 167. Either way, there is an error of law. 
  7. [60]
    Mr McCall and the body corporate say that the adjudicator failed to apply the relevant BCA standard applicable at the date of his decision. They say the changes to the BCA that came into effect on 1 May 2016 and that the adjudicator erred in not applying the Code as at that date.
  8. [61]
    The adjudicator found that the flooring work involving the replacement of carpet with hard flooring was limited to the lounge and dining rooms of Ms Martin’s lot.[41] Other tiling work was undertaken involving the replacement of existing tiles with new tiles in the kitchen, hallway and bathrooms. The evidence before the adjudicator regarding the BCA was found in the RTRR report. The RTRR report, dated 5 August 2015, referred to the BCA minimum sound impact rating of 62. In the RTRR report, the minimum sound impact rating measured in the entry and living areas of Ms Martin’s lot were 58 and 57 respectively, compliant with the BCA criterion of 62.[42] The adjudicator handed down his decision on 18 May 2016. On 1 May 2016, say Mr McCall and the body corporate, the BCA minimum sound impact requirements were amended. 
  9. [62]
    There is nothing before us about the changes in the BCA relied upon by Mr McCall and the body corporate. Neither Mr McCall nor the body corporate say anything about whether the adjudicator was entitled to apply the BCA as at the date Ms Martin undertook the flooring work. The adjudicator was required to make an order that was just and equitable in the circumstances.[43] Without expressing any concluded view, it seems to us that it was open to the adjudicator, in making an order that he considered just and equitable, to consider the BCA as it applied at the time the flooring was laid by Ms Martin. In any event, it seems that the adjudicator was unaware of the changes to the BCA and neither Mr McCall nor the body corporate brought the changes to his attention. The parties will have the opportunity to address this issue upon the re-hearing of the matter by the adjudicator. 
  10. [63]
    We have found that the adjudicator erred in not considering both limbs of s 167 of the Act. In deciding an appeal on a question of law, the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter to the decision maker for reconsideration. However it is only if the determination of the question of law on the appeal is capable of resolving the matter as a whole in the appellant’s favour that the appeal tribunal will be in a position to substitute its own decision.[44]  Otherwise, the matter must be remitted to the Tribunal for re-hearing.[45] 
  11. [64]
    In light of our findings as to the failure by the adjudicator to properly consider s 167 of the Act it is appropriate that the matter is returned to the adjudicator for reconsideration. The adjudicator will be assisted in that task by the recent judgment of the Queensland Court of Appeal in Miles & Anor v Gough & Ors.[46]
  12. [65]
    We order that the appeal be allowed, the order of the adjudicator be set aside and that the matter be returned to the adjudicator for a decision on the merits, in accordance with the law and these reasons.

Footnotes

[1]  The Act, s 289(1)(c) and (d).

[2]  Ibid, s 289(1)(d)(ii).

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), s 146.

[4]  The Act, s 180(7).

[5]  Ibid, ss 94(1) and (2).

[6] BE v Office of the Adult Guardian & Public Trustee of Queensland [2010] QCATA 24, 2 [5] citing Canada (Director of Investigation and Research) v Southam Inc [1997] 1 S.C.R. 748.

[7]  Reasons, [15].

[8]  Ibid, [13].

[9]  Ibid, [15].

[10]  See Bell v Commissioner of Taxation [2012] FCA 1042.

[11] Hussain v Minister for Foreign Affairs (2008) 169 FCR 241.

[12]  Email C Martin to Sargent Strata dated 21 November 2007.

[13]  Reasons, [17].

[14]  Ibid, [18].

[15]  Ibid.

[16]  Ibid.

[17]  Reasons, [18].

[18]  The Act, s 242(2)(b).

[19]  Reasons, [20].

[20]  Ibid, [23].

[21]  A decision-maker may make an error of law by making a finding of fact unsupported by evidence. However, the adjudicator’s finding that lot owners “have no right to install false ceilings in their neighbour’s lots” was both self-evident, as we conclude at paragraph 45, and open to the adjudicator in the absence of evidence of any such right.

[22]  [2017] QCATA 29.

[23]  Ibid, 9 [31].

[24]  [2017] QCATA 29, 13 [47].

[25]  [2015] QCATA 146.

[26]  The Act, s 169(1)(b)(i).

[27] McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57.

[28]  Reasons, [27].

[29]  Ibid.

[30]  Reasons, [30].

[31]  Ibid, [31].

[32]  Ibid, [32].

[33]  Letter Ron Rumble Pty Ltd to Applicant dated 8 February 2017.

[34]  [2008] QBCCMCmr 107.

[35]  Reasons, [2].

[36]  Ibid, [3].

[37]  [2010] QCATA 27.

[38] Miles & Anor v Body Corporate for Solarus Residential Community Titles & Ors [2016] QCATA 130, upheld on appeal: Miles & Anor v Gough & Ors [2017] QCA 190.

[39]  The Act, s 167(a).

[40]  Ibid, s 167(b).

[41]  Reasons, [9].

[42]  RTRR Report, Table 1.

[43]  The Act, s 276(1).

[44] Ericson v Queensland Building Services Authority [2013] QCA 391.

[45]  QCAT Act, s 146(c).

[46]  [2017] QCA 190; in particular [12]-[13].

Close

Editorial Notes

  • Published Case Name:

    McCall v Martin & Anor

  • Shortened Case Name:

    McCall v Martin

  • MNC:

    [2017] QCATA 103

  • Court:

    QCATA

  • Judge(s):

    Brown, Olding

  • Date:

    22 Sep 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.