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Thompson v Body Corporate for Arila Lodge (No 2) QCATA 150
Thompson v Body Corporate for Arila Lodge (No 2)  QCATA 150
Body Corporate for Arila Lodge
On the papers
5 December 2017
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant seeks an extension of time to lodge an appeal against a decision by an adjudicator – whether extension should be granted
Body Corporate and Community Management Act 1997 (Qld), s 289, s 290
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61
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).
Cannon + Co Law
REASONS FOR DECISION
- Emma Thompson was late in appealing to the tribunal from a decision of a Body Corporate and Community Management adjudicator. She now applies to the tribunal for an extension of time to bring the appeal.
- The adjudicator’s decision against which Ms Thompson wishes to appeal was in application 0841-2016 and was given on 6 December 2016. Ms Thompson received it on 8 December 2016. Her application to appeal was received by the tribunal on 4 October 2017.
- The adjudicator’s decision concerned Ms Thompson’s ownership of a lot in Arila Lodge and concerned her breach of a number of by-laws in a number of respects and also a breach of section 167 of the Body Corporate and Community Management Act 1997 (Qld) (the Act) (causing a nuisance or interference with use and enjoyment).
- The adjudicator made a number of orders against Ms Thompson restraining her in various ways and requiring her to do certain things. Within 30 days she was ordered to engage named contractors to repair damage in the car park, and to remove her dog from the unit unless given permission to keep it. She was also ordered to apply to the Body Corporate, attaching certain information, for approval for the alterations to floor coverings and internal walls to her unit failing which, or if the approval was not reasonably given, she was ordered to reinstate the floorings and internal walls within 60 days.
- There is a 6-week time limit for bringing to the tribunal an appeal of this type after receiving a copy of the order. This is by section 290(1) of the Act.
- The tribunal can extend the time for appealing under section 61 of the QCAT Act, but this cannot be done where to do so would cause prejudice or detriment which could not be remedied by an appropriate order for costs or damages.
- In considering whether to extend time to appeal it is necessary to consider whether it is in the interests of justice in the circumstances to extend time, having regard to the length of and reasons for the delay, the prejudice to the other side if time is extended and to the merits of the appeal itself.
- The length of the delay is nearly 37 weeks. As for the reasons for the delay, it is said on Ms Thompson’s behalf that the key reason for the delay was that she genuinely attempted to comply with the adjudicator’s order, but that the Body Corporate placed further onerous and unreasonable conditions on compliance. She exhibits a letter dated 22 December 2016 which refused her applications for approval to her alterations of the floor coverings, internal walls and for her dog. She then made numerous applications to the adjudicator all but one of which has now been withdrawn.
- There is no explanation however, why this appeal could not have been lodged within the 6 weeks allowed. The 6 weeks expired on 19 January 2017 and this date was well after Ms Thompson was aware that the Body Corporate was uncompromising. And there is no explanation why, the 6 week period having been missed, it took nearly 37 weeks to lodge an appeal. It is said that Ms Thompson had health issues as shown by evidence submitted for a similar application in another file before the tribunal. I have looked at that evidence and whilst I am satisfied that she may have more difficulty than most in concentrating, the fact is that she did have lawyers from time to time assisting her with respect to her disputes with the Body Corporate, the first lawyer engaged as early as 3 February 2017. It would appear from this that if she had wished to appeal against the decision in 0841-2016, this could have been achieved much earlier than it was.
- The Body Corporate claims prejudice should the extension be granted, arising from additional legal costs of dealing with the appeal, the loss of finality in the matter, the delay in being able to enforce the order, the continuation of the breaches, and generally the adverse effects of the continued litigation on the other lot owners and their properties. There could be many arguments about whether these types of prejudice could be caused by an extension of time or are relevant at all, but having regard to the merits of the application for an extension of time it is unnecessary to resolve these arguments.
- As for the prospects of success on appeal, it is said that Ms Thompson has been singled out for action and so the Body Corporate has not acted in good faith. It is said that parts of the order made were “bad in law, are not in accordance with the By-laws, disadvantaged her compared to other lot owners, and do not provide certainty”. Although examples of differences between the wording of the by-laws and the terms of the order and of the uncertainty are offered, the overall impression is that the grounds of appeal with some exceptions are not strong, bearing in mind the appeal must be only on a question of law.
- None of the factors which need to be considered in this application are in Ms Thompson’s favour. It is not in the interests of justice to extend time to bring this appeal. In turn this means that the appeal itself should be dismissed.
- The Body Corporate has made a firm application for costs in its submissions. Directions are given for that further issue to be resolved.
- Published Case Name:
Emma Thompson v Body Corporate for Arila Lodge (No 2)
- Shortened Case Name:
Thompson v Body Corporate for Arila Lodge (No 2)
 QCATA 150
05 Dec 2017