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Thompson v Body Corporate for Arila Lodge[2017] QCATA 151

Thompson v Body Corporate for Arila Lodge[2017] QCATA 151

CITATION:

Thompson v Body Corporate for Arila Lodge & Anor [2017] QCATA 151

PARTIES:

Emma Thompson

(Appellant)

 

v

 

Body Corporate for Arila Lodge

(First Respondent)

SGR Prop Invest 01 Pty Ltd

(Second Respondent)

APPLICATION NUMBER:

APL075-17

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

DELIVERED ON:

5 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

Pursuant to section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the time in section 290(1) of the Body Corporate and Community Management Act 1997 (Qld) for appealing the Adjudicator’s decision in 0683-2016 is extended to the date when the appeal was started, that is 9 March 2017.

CATCHWORDS:

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

APPEARANCES:

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

 

REPRESENTATION:

 

APPELLANT:

Maxwell M Walker counsel, instructed by Spranklin McCartney Lawyers

FIRST RESPONDENT:

Grace Lawyers

SECOND RESPONDENT:

Self-represented

REASONS FOR DECISION

  1. [1]
    Emma Thompson was late in appealing to the tribunal from a decision by the Body Corporate and Community Management adjudicator in application 0683-2016.  She applied to the tribunal for an extension of time to do so and on 11 October 2017 I granted this.  I have now been asked for my reasons for extending time.
  2. [2]
    In these types of applications which the tribunal deals with under section 61(1) of the QCAT Act, the tribunal does not have to give reasons upon deciding to grant an extension of time[1], nor if asked to do so if a request is made for written reasons.[2]
  3. [3]
    However, since a distinction can be made with another similar application in adjudicator’s decision in application 0841-2016, which was given the application number APL315-17 in the tribunal, I have exercised my discretion to give my reasons in this instance.

The adjudicator’s decision

  1. [4]
    Ms Thompson owns an apartment on the third floor of Arila Lodge (Lot 3).  The owners of the apartment immediately below (Lot 2) and the apartment below that one (Lot 1) believed that there was a leak of water emanating from Ms Thompson’s apartment causing damage to their premises.
  2. [5]
    In separate applications they, and the Body Corporate, applied to the Commissioner of Body Corporate and Community Management for emergency orders to deal with the leak, and for an order that Ms Thompson engage named contractors to repair their apartments.
  1. [6]
    The applications were:

0880-2016 Lyn McClelland, owner of lot 1

0683-2016 Body Corporate, and SGR Prop Invest 01 Pty Ltd owner of lot 2

  1. [7]
    The adjudicator received submissions from the parties, and from the Body Corporate in both applications.  She then determined the two applications concurrently.  She made an emergency order on 21 July 2016 and gave orders with reasons on the remainder of the applications on 8 December 2016.  She decided that there had been a leak from Ms Thompson’s apartment which had caused damage to the lots below. 
  2. [8]
    The order made in 0880-2016 was:

Within seven days of the date of this order, and at her own cost, Emma Thompson must engage Advanced Buildings (Queensland) Pty Ltd to carry out repairs to the bathroom of Lot 1 as provided for in Quotation No. 8385-3 dated 29 August 2016 and also provide written confirmation of that engagement to the applicant.

  1. [9]
    The order made in 0683-2016 was:

Within seven days of the date of this order, and at her own cost, Emma Thompson must engage Advanced Buildings (Queensland) Pty Ltd to carry out repairs to the bathroom of Lot 2 as provided for in Quotation No. 7874-3 dated 4 August 2016 and also provide written confirmation of that engagement to the applicants.

  1. [10]
    Ms Thompson wished to appeal.  By section 289 of the Body Corporate and Community Management Act 1997 (Qld) (the Act) appeals from the adjudicator of this type come to the tribunal.
  2. [11]
    There is a time limit for bringing such appeals.  By section 290(1) the time limit is 6 weeks after receiving a copy of the order.
  3. [12]
    Ms Thompson brought an appeal within time.  This was in 0880-2016.  That appeal was received by the tribunal on 21 December 2016, and in it Ms Thompson said that she received the decision concerned on 8 December 2016.  The respondent named in that appeal was the Body Corporate despite not being a party to that application to the adjudicator.  
  4. [13]
    The grounds of appeal were briefly stated in the application to the tribunal as follows:

The Adjudicator’s Order dated 8 December 2016 regarding BCCM 0880-2016 does not identify how I failed to keep my apartment “in good condition” and how a “water leak” resulted from caused the alleged damage in apartment 1 and 2.

It would therefore seem that a gross error of law has been made.

If a “water leak” caused the alleged damage then the Body Corporate should make an insurance claim:

  • against Conrad Martens if a “water leak” prior to 20 May 2016 caused the alleged damage, or
  • against Williams Plumbing Services if a “water leak” after 20 May 2016 caused the alleged damage as I did not consent to the work done by Williams Plumbing Services in my apartment, or
  • against the Body Corporate’s insurer if the building defects identified in the “expert” reports caused or contributed to the alleged damage.
  1. [14]
    The appeal in 0880-2016 was given the application number APL441-16 by the tribunal.  At the same time as bringing that appeal Ms Thompson applied to the tribunal for a stay of the adjudicator’s decision.  During the progress of APL441-16 through the tribunal various orders were made. Of relevance to this application, the application for a stay was refused on 20 February 2017.  Lyn McClelland was joined as a respondent on
    6 March 2017.   The respondents applied to strike out the appeal on two occasions on 2 February 2017 and on 10 May 2017.  The first application to strike out was based on various technical failures on Ms Thompson’s part and failures to comply with directions which had unnecessary disadvantaged the only respondent at that time, the Body Corporate.  This was dismissed at an oral hearing on 6 March 2017.  The second strike out application of 10 May 2017 was again based on actions and omissions which had unnecessarily disadvantaged the respondents.  But it was also on the basis that there was no error of law demonstrated in the grounds of appeal.  This application was considered at an oral hearing on 1 June 2017 but no order was made.
  2. [15]
    There was however, no appeal against the decision in 0683-2016 within the required time limit.  When Ms Thompson submitted the appeal in 0880-2016 she was not represented.  She said she had intended to include 0683-2016,[3] but had erroneously omitted to do so.[4]  She says that she became aware of the error at a directions hearing on 6 March 2017.[5]
  3. [16]
    Ms Thompson says that for medical reasons which are set out in her affidavit she has a disadvantage.  Having looked at the medical information provided I am satisfied that she may have difficulty concentrating.  This may well have been a factor in her error when bringing the appeal.
  4. [17]
    Although Ms Thompson engaged solicitors to assist her with respect to the disputes with the Body Corporate as early as 3 February 2017, it is not clear exactly what those solicitors were engaged to do.  It would appear on the information available to me that the absence of an appeal in 0683-2016 was not realised by the solicitors at that time.  Three days after the directions hearing on 6 March 2017 an appeal application was lodged with the tribunal in respect of 0683-2016.  The speed with which this was done is in Ms Thompson’s favour in this application.
  5. [18]
    In the appeal application for APL075-17 Ms Thompson stated that the issues are similar or the same as those in APL441-16 and it seemed appropriate for both matters to be joined. 
  6. [19]
    The original grounds of appeal in APL075-17 were the same as the pre-amended grounds in APL441-16.  Amended grounds of appeal in APL441-16 were received by the tribunal on 22 June 2017, leave having been given to amend on 1 June 2017.  There are also amended grounds of appeal in APL075-17 on the file in similar terms to those in APL441-16 but there has not been a formal order giving leave to amend.  I shall assume for the purpose of extending time that such an order will be made.

Should time be extended?

  1. [20]
    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.

Section 61(3) prejudice or detriment

  1. [21]
    The tribunal can extend the time for appealing under section 61 of the QCAT Act, but by section 61(3) 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.
  2. [22]
    The respondents expressly say that section 61(3) is “not applicable” because although they would suffer prejudice and detriment if an extension were granted this could be corrected by an appropriate costs order.[6]
  3. [23]
    My consideration of this issue leads me to the same conclusion that section 61(3) is not engaged, but through a different route.  I am satisfied that extending time to bring this appeal does not itself cause prejudice or detriment, so as to engage section 61(3) of the QCAT Act.  It is true that it can be contemplated that granting an extension will delay enforcement of the adjudicator’s order for lot 2 if Ms Thompson is successful in her stay application.  The current position here is that on 10 October 2017 there was an interim order suspending the operation of the decision of the adjudicator.  The stay application itself is yet to be heard on the papers.  Section 152(1) of the QCAT Act provides that bringing an appeal does not itself act as a stay.  Any prejudice arising from being unable from enforce the adjudicator’s order does not therefore arise from being able to bring the appeal, but may arise from the tribunal’s decision on the stay.
  4. [24]
    At the directions hearing on 1 June 2017 Steve Reid, who is the sole director and shareholder of SGR Prop Invest 01 Pty Ltd which is the owner of lot 2, at first told the tribunal that he was unable to live in the apartment and unable to sell it because of the damage, but subsequently accepted that someone else was living there.[7]  In his later written submissions[8] he says he was misinterpreted about this, and explained that the reason he was not living in the apartment was because of the behaviour to which he had been subjected.  On that basis there does not seem to be any prejudice suffered by SGR Prop Invest because of delays in resolving this matter.
  5. [25]
    Even if there is any such prejudice, it could be removed by SGR Prop Invest simply having the repairs done, and claiming the cost of this from Ms Thompson.[9]  There is no suggestion that SGR Prop Invest cannot do this.

Other considerations

  1. [26]
    It is possible that progress of the first appeal APL441-16 through the tribunal process has been slowed by the need for this application, but any such could have been avoided if the Body Corporate had agreed to Ms Thompson’s application to extend time.  A reasoned judgment has to be made as to whether it is worth resisting such an application if it might result in delay in resolving disputes.
  2. [27]
    The issues in the amended grounds of appeal in APL441-16 and the prospective amended grounds in APL075-17 are largely the same.  All parties, and the tribunal, have always contemplated that they should be heard together, should time to bring the appeal be extended in APL075-17. 
  3. [28]
    Whilst it cannot be said that the merits of the appeal obviously stand out either from the original grounds of appeal or from the amended grounds, it may well be found that the adjudicator’s order was inappropriate at the time it was made either on jurisdictional or practical grounds and therefore it cannot be said that the appeal is unarguable.
  4. [29]
    Obviously if the merits of the appeal were poor then an extension of time would not be granted.  When seeking to strike out the allied case of APL441-16 in an application dated 10 May 2017 the Body Corporate submitted (amongst other things) that the merits of the appeal were poor.  However, the senior member who heard that application on 1 June 2017 made no order on that application. 
  5. [30]
    Extending time in this application however, means that an additional party, SGR Prop Invest 01 Pty Ltd, will be added to the dispute.  I do not think adding this party will enlarge the overall costs of the dispute.  Most of the costs are being incurred by the Body Corporate who have instructed solicitors to deal with this dispute.  Even the need for additional copying for the director of SGR Prop Invest, Mr Reid, is minimised because he is Chair of the Body Corporate and is involved in giving instructions to the solicitors.[10]
  6. [31]
    I have dealt with any prejudice to SGR Prop Invest when considering section 61(3) of the QCAT Act above.
  7. [32]
    The effect of joining SGR Prop Invest as a party must also be considered in the light of the constructive knowledge of its director about the extent of the appeal.  I do not think that the appeal in 0683-2016 would have come as a surprise either to the officers of the Body Corporate or SGR Prop Invest.  This is because in the appeal against 0880-2016 Ms Thompson refers to the decision being wrong with respect both to apartments 1 and 2.
  8. [33]
    It has been pointed out that Ms Thompson took a different route from that expected in bringing at appeal against 0683-2016.  At the directions hearing of 6 March 2017 in APL441-16 when it emerged that she needed to apply for an extension if she wished to appeal in 0683-2016, an order was made that she “must file an amended application by 20 March 2017”.  It is said that Ms Thompson was in breach of that direction and this should be held against her in this application for an extension of time.  I do not agree.  The order that she must file an amended application was clearly intended to make sure that if she wished to add 0683-2016 to her existing appeal then there was a time limit to do it.  The tribunal would have no power to require a party to file an application if they did not wish to do so.  As it turned out, Ms Thompson was perfectly entitled to choose the different route of starting a fresh appeal, provided of course it was within the deadline of 20 March 2017, which it was.
  9. [34]
    I think it is of importance that APL441-16 is proceeding to a hearing anyway, and that if an extension is granted for APL075-17, this will cover closely similar ground but will not significantly enlarge the overall costs.  If an extension of time were not to be granted and Ms Thompson was successful in her appeal in APL441-16, she would be prejudiced in not having her appeal heard in APL075-17.
  10. [35]
    The factors which need to be considered in this application tend to be in Ms Thompson’s favour.  Overall it is in the interests of justice to extend time for the appeal application to be made.

Footnotes

[1] Because it is not a “final decision” under section 121(4).

[2]Decisions made under section 61(1) are excluded from the provisions of section 122 “request for written reasons” – see section 122(4).

[3]Paragraph 12 of her affidavit of 22 June 2017.

[4] This is said in the body of appeal application APL075-17.

[5] Paragraph 16 of the affidavit.

[6]Submissions 11 July 2017, paragraph 14.

[7] About 1.22pm and 1.35pm.

[8]Received by the tribunal on 11 July 2017.

[9] In the circumstances pertaining here, the adjudicator could then have ordered Ms Thompson to reimburse the cost of repairs: section 281 of the Act.

[10]This can be seen from the bill of costs submitted for an interlocutory matter in APL441-16.

Close

Editorial Notes

  • Published Case Name:

    Emma Thompson v Body Corporate for Arila Lodge and SGR Prop Invest 01 Pty Ltd

  • Shortened Case Name:

    Thompson v Body Corporate for Arila Lodge

  • MNC:

    [2017] QCATA 151

  • Court:

    QCATA

  • Judge(s):

    Member Gordon

  • Date:

    05 Dec 2017

Appeal Status

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

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