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- Unreported Judgment
Melloy v Body Corporate for the Rocks Resort CTS 9435 QCATA 2
Melloy & ors v Body Corporate for the Rocks Resort CTS 9435  QCATA 2
Gregory Robert Melloy
Susan Louise Withers
Vernon Edgar Cook
Peter James Dettrick
Christine Elizabeth Kenward
Body Corporate for the Rocks Resort CTS 9435
On the papers
Senior Member Stilgoe OAM
19 January 2017
APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – where interim order – where appeal against interim order – where final order overtook interim order – where application to strike out appeal
REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – where owners sought access to documents relating to costs of litigation – where EGM to consider settlement of litigation costs claim – where documents subject to legal professional privilege withheld – where application for access refused – where EGM took place before application refused – where EGM approved settlement – where settlement the subject of tribunal order - whether utility in appeal proceeding
Body Corporate and Community Management Act 1997 (Qld) s 279(2)(d)(iii)
Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507
Walden v Broadwater Tower Body Corporate  QCATA 131
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
- The Body Corporate for the Rocks Resort CTS 9435 was engaged in a five-year dispute with its building manager which did not end well for the body corporate. On 11 February 2016, the tribunal ordered, by consent, that the body corporate pay the building manager’s costs of the litigation agreed to be $150,000.
- The appellants are owners of lots in Rocks Resort. They wanted access to all records relating to legal advice obtained by the Chairman relating to the negotiations about the building manager’s costs. By application 1010-2015, they applied to the Commissioner for Body Corporate and Community Management for an interim order:
That the Committee and the Chairman makes a full disclosure of Correspondence, documents, emails, legal briefings, legal opinions and summaries, consultants reports and any relevant information regarding the costs claim matter for QCAT case no. OCL190-10 to all committee members and any interested owner entitled to review them, without reservations or conditions as per Section 205 of the Act, for review by all committee members and interested owners, within 30 days of the order and prior to any EGM being scheduled to enable consideration by an owner vote on the options for defending a claim for costs.
- By order of 2 December 2015, the Adjudicator refused the application for an interim order. By order of 6 May 2016, the Adjudicator dismissed the application by final order.
- By order of 6 May 2016, in application 0096-2015, the Adjudicator also dismissed an application for an interim order that two motions of the EGM not be implemented until final orders were made by the Commissioner in this dispute and in 1010-2015.
- The appellants appealed these three decisions. In the interim, the Adjudicator handed down a final decision in 0096-2015, dismissing the application.
- The Body Corporate has applied to strike out the appeal.
The interim orders
- The Body Corporate points out that s 279(2)(d)(iii) of the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act) states that an interim order lapses when a final order is made. The Body Corporate submits that, even if the appellants had a valid ground of appeal, there is no utility in the appeal because any new interim order would immediately lapse and merge into their respective final orders.
- The appellants, of course, want the appeal to proceed. In support of that position, they have reiterated their view that the Adjudicator’s review was inadequate and wrong in law. They set out, at length, the history of their requests for access to documents, their complaints about the access they were given, the adjudication process, the QCAT process and the significant division that the litigation has created within the Rocks Resort. All of that may be true. It is certainly an unfortunate result of the owners but it does not address the point: what is the utility of proceeding?
- As the appeal tribunal, of which I was a member has previously stated, once a final order is made, the interim order no longer continues in force. As it no longer continues in force, having been subsumed by the final order, there is nothing to appeal.
- To the extent that the appeal relates to the interim orders, it should be dismissed.
The final order in 1010-2015
- The Body Corporate points out that application is, by its terms, limited in time. It says that the appellants wanted disclosure of documents prior to the EGM. But the EGM was held on 1 February 2016. The Body Corporate says that, if the appeal succeeds, any new order, when the EGM had already occurred, lacked utility because the opportunity for a lot owner to change the way s/he would vote had passed.
- Once again, the appellants’ submissions do not address this problem.
- The Body Corporate’s submissions are persuasive. The EGM has been held. The tribunal made an order, by consent:
An exercise of judicial power, it has been held, involves "as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charterby reference to which that question is in future to be decided as between those persons or classes of persons". The rendering of a final judgment in that way "quells" the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they "merge" in that final judgment.
- The objective of the application has passed. There is no utility in the appeal and it should be dismissed.
- “There is a time for everything, and a season for every activity under the heavens.” The time for spending Body Corporate money on legal costs is over. The time for healing rifts in the Rocks Resort community must begin.
- Published Case Name:
Gregory Robert Melloy, Anthony Merlo, Susan Louise Withers, Vernon Edgar Cook, Peter James Dettrick and Christine Elizabeth Kenward v Body Corporate for the Rocks Resort CTS 9435
- Shortened Case Name:
Melloy v Body Corporate for the Rocks Resort CTS 9435
 QCATA 2
Senior Member Stilgoe
19 Jan 2017