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O'Sullivan v Roduner[2017] QCATA 50

O'Sullivan v Roduner[2017] QCATA 50

CITATION:

O'Sullivan & Ors v Roduner & Ors [2017] QCATA 50

PARTIES:

Mark O'Sullivan
Susan O'Sullivan

(First Applicants/Appellants)

Robyn Maree Thorn

(Second Applicant/Appellant)

 

v

 

Alfred Roduner
Deanna Roduner
The Body Corporate for Cutters Landing – Cook CTS 31994

(Respondents)

APPLICATION NUMBER:

APL082-16

APL096-16

MATTER TYPE:

Appeals

HEARING DATE:

14 October 2016

HEARD AT:

Brisbane

DECISION OF:

Senior Member O'Callaghan

Member Deane

DELIVERED ON:

21 April 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The appeal is dismissed.

CATCHWORDS:

REAL PROPERTY – STRATA AND RELATED TITLES –  MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – Appeal from Adjudicator – application for consent to install timber floors – where body corporate granted consent subject to conditions – whether conditions satisfied – proper construction of requirements in by-law – whether consent endures lapse of time and where by-laws amended before installation – whether body corporate seeking to amend conditions of consent is unreasonable – whether  further approvals required

Body Corporate and Community Management Act (Qld) 1997, s 94, s 276, s 289, s 294

Albrecht v Ainsworth & Ors [2015] QCA 220

Waterford v The Commonwealth (1987) 163 CLR 54

Australian Broadcasting Commission v Bond (1990) 170 CLR 321

Cutters Landing – Cook [2016] QBCCMCmr 63

APPEARANCES & REPRESENTATIVES:

 

FIRST APPLICANTS/APPELLANTS:

Mark O'Sullivan and Susan O'Sullivan represented by Mr M. O'Sullivan.

SECOND APPLICANT/APPELLANT:

Robyn Maree Thorn in person.

RESPONDENTS:

Alfred Roduner and Deanna Roduner represented by Mr A. Roduner.

The Body Corporate for Cutters Landing – Cook CTS 31994 represented by Mr J O'Connor.

REASONS FOR DECISION

  1. [1]
    Mr and Mrs O'Sullivan, Mrs Thorn and Mr and Mrs Roduner are lot owners in the Cutters Landing – Cook Community Titles Scheme 31994, a 46-lot scheme.  The scheme is part of a larger building complex of some 250 apartments in a number of buildings.  
  2. [2]
    The O'Sullivans’ apartment is directly under the Roduners’ apartment. Mrs Thorn’s apartment is on the same level as the Roduners’ apartment.  The entry doors are opposite each other across a carpeted lobby. 
  3. [3]
    Mr and Mrs O'Sullivan and Mrs Thorn commenced separate appeal proceedings, which rely upon substantially the same grounds and so were heard together.[1]  They seek to appeal the Adjudicator’s orders made 18 February 2016 permitting the installation of timber flooring by the Roduners.[2] The Body Corporate was joined as a respondent to APL082-16.[3] 

Background

  1. [4]
    The Roduners want to install timber flooring to modernise their apartment by replacing some carpet and some tiles. 
  2. [5]
    Under the then scheme by-laws, they applied for and were granted written approval by the Body Corporate in a letter dated 20 November 2013 to install timber flooring in their lot, subject to compliance with by-law 35 (the 2013 Approval). 
  3. [6]
    The Body Corporate must enforce the community management statement (CMS), including the by-laws, and must act reasonably in anything it does in this regard, including making or not making a decision.[4]
  4. [7]
    At the time of the 2013 Approval by-law 35 provided:

An owner or occupier of a lot must not, without the prior approval in writing of the body corporate committee and subject to any conditions the committee may impose:

  1. (a)
    remove or install any hard floor surfaces unless it achieves a minimum field impact isolation control of 55 db under relevant Building Code Regulations and is suitably acoustically treated; or
  2. (b)
    Interfere with any ceiling acoustic treatment.
  1. [8]
    The 2013 Approval:
    1. provided that ‘No hard flooring is to be installed to the bedroom areas as identified by the developer in the original plans for your apartment.
    2. set out a number of Committee ‘requests’. 
  2. [9]
    Those requests were:
    1. to obtain from a suitably qualified acoustic engineer a specification for laying the floor that meets or exceeds the standard laid down in by-law 35.  The 2013 Approval expressly describes this standard as ‘FIIC 55 dB’.
    2. to supply a copy of the report to the Committee.
    3. that the installation conform to the specification.
    4. to supply the Committee an assurance that there have been consultations with the owners of adjoining (including apartments below) apartments to ensure minimal negative effects on the amenity of those apartments during the installation period.  It provides that a way of supplying that assurance would be to provide copies of relevant letters or emails.
    5. to commit to meeting all reasonable requirements of the Building Manager during the installation phase.
  3. [10]
    Subsequent to the 2013 Approval and in reliance upon it, the Roduners installed a sample timber floor and paid for an acoustic test.  The evidence is that the sample failed the acoustic testing as a result of 51 dB was recorded.  The test report is not within the material before us. 
  4. [11]
    The flooring was subsequently removed.  The Roduners acknowledge that there was some noise associated with the removal in August 2014 as the sample had been glued to the concrete floor.  It is not disputed that removal involved jackhammering. There is no evidence as to whether or not the Roduners were aware, before the work was undertaken, that the work would involve jackhammering. There was a factual dispute as to how long the noise continued.  The Adjudicator accepted Mrs O'Sullivan’s evidence that it continued for about an hour and 45 minutes.  Mr Roduner contended that:
    1. the contractor advised it would only take 30 minutes; and
    2. the work was scheduled for lunchtime, being a reasonable time of day for such work to be performed.
  5. [12]
    By letter dated 21 October 2014, the Body Corporate acknowledged the 2013 Approval and purported to impose additional conditions, on the basis of alleged breaches set out in a contravention notice, which the committee resolved on 2 October 2014 be issued (the Amended Approval).  The Amended Approval expressly describes the standard required by by-law 35 as ‘FIIC 55 dB’.  The conditions were essentially the same as the ‘requests’ which formed part of the 2013 Approval except that a plan of the area where timber flooring was to be installed was to be provided.  It seems that the additional requirement did not pose any issues for the Roduners and they subsequently provided such a plan on 28 November 2014.
  6. [13]
    The evidence is that the Roduners consulted with another owner in the complex, who had installed timber floors incompliance with the by-laws, and decided to use the same products.  There was evidence that the Roduners purchased the flooring product and paid a 50% deposit in mid November 2014. 
  7. [14]
    The Roduners contend that the same flooring has been installed in several apartments in the complex. 
  8. [15]
    During the hearing before us, Mr O'Sullivan conceded that timber flooring had been installed in other apartments but contended that the space immediately beneath the relevant lots were garages so there was no issue about anyone being adversely affected.  Mr O'Sullivan was unable to advise whether or not any of the adjacent apartments had been tested.[5] Mr Roduner contended that no adjacent apartments had previously been tested. 
  9. [16]
    There was evidence before the Adjudicator that on 26 February 2015 the Committee had allowed timber floor applications by two lot owners subject to post installation acoustic testing to demonstrate compliance with by-law 35.[6]
  10. [17]
    The Roduners installed a second sample timber floor and paid for another acoustic test. The Roduners contend that this sample, tested on 24 November 2014, complied with the by-laws then in place and the conditions imposed by the Body Corporate. On 26 November 2014, the Roduners provided evidence of the testing to the Body Corporate as they had been requested to do in the 2013 Approval (and arguably in satisfaction of the Amended Approval condition).  The Palmer Acoustics report sets out the results.  It records three measurements for each of the timber floor sample and the concrete slab.  The timber floor sample results were:
    1. L’nT,w  46
    2. CI               1
    3. FIIC              55[7]
  11. [18]
    In considering whether the results met the criteria of the then by-law 35, the Palmer Acoustics report stated:

We note that the By Law requests a 55 dB for field impact ‘insulation’ control under “relevant Building Code”. This requirement does not make sense as there is no Building Code that references a 55 dB isolation. We assume the By-Law to require L’nT,w 55, with the terminology, L’nT,w, as references under the Building Code Australia (BCA).

The field floor impact insulation test reference in the current Building Code is L’nT,w rating. FIIC rating has not been in the Building Code for more than ten (10) years.[8]

  1. [19]
    The report thus concludes that the sample tested has performed better than the assumed limit of L’nT,w 55. The relevance of this observation will be considered later in these reasons.
  2. [20]
    There is evidence that, on 28 November 2014, the Roduners complied with the Amended Approval condition to supply a plan showing the area where they intended to install the timber flooring.  This plan showed it was to be installed in the living areas and not in any of the bedrooms, in compliance with the condition specified in the 2013 Approval.[9]
  3. [21]
    There is also evidence, that on 28 November 2014, Mrs Thorn requested the Committee impose additional conditions.[10]  On 2 December 2014, Mr Thorn requested the Committee to defer consideration of the application until field impact insulation tests had been conducted with their apartment being the receiving room and again requested the Committee to impose additional conditions.[11]  On 2 December, 2014, the O'Sullivans’ solicitors also urged the Body Corporate not to approve installation.
  4. [22]
    By letter dated 10 December 2014, the Body Corporate advised that the committee was not in a position to approve the application for installation of the proposed timber floor because it considered that the acoustic report did not test the proposed materials and so was irrelevant and did not show how the proposed flooring would comply with by-law 35.  It seems there was a misunderstanding as to the product the Roduners proposed to use.
  5. [23]
    Despite the terms of the 2013 Approval (and the Amended Approval), which did not require a ‘final approval’ after provision of the report, unlike the amended by-law, there is evidence that on 28 January 2015 the Roduners’ project manager requested ‘approval’ to install the flooring and acoustic underlay as tested by Palmer Acoustics.[12]  Since that time, the Body Corporate has asserted either that, it was unable to approve the installation or has refused to consent to the floor installation.
  6. [24]
    By letter dated 17 March 2015, the Body Corporate advised that the Committee met on 26 February 2015 to consider the Roduners’ application for installation of a timber floor and decided not to approve the installation.    The letter sets out the matters apparently informing this decision.  They essentially relate to allegations of inconsiderate and noisy behaviour by the Roduners, failure to respond to issues raised by the O'Sullivans’ solicitors, failing to respond to a notice of contravention relating to the noise associated with removal of the first sample and failing to respond to a noise complaint set out in a letter dated 13 January 2015.  It also refers to a belief that noise transference to other apartments would increase due to replacement of carpet with timber flooring in contravention of section 167 of the Act.
  7. [25]
    The Roduners contend that they have resided in the complex since 2005 and have not received any noise complaints until they sought approval to install timber flooring.  There are specific allegations as to noise created from wearing hard soled footwear on the tiled and carpeted areas.  There is a factual dispute as to this as the Roduners contend that they remove their footwear before they enter the unit so that they don’t bring outside dirt into their unit. The Adjudicator did not seek to resolve this conflict of evidence, although he did note that there had been no noise complaints prior to 20 November 2013.
  8. [26]
    On 22 July 2015, a motion to amend by-law 35 was passed at the Body Corporate’s Annual General Meeting (‘AGM’).  The evidence is that a new CMS incorporating the amendment was registered on or about 2 September 2015.
  9. [27]
    The relevant by-law was changed to require a higher level of noise insulation i.e. a level of floor impact isolation of L’nT,w 40 or less and stipulating that written advice as to a preliminary floor impact isolation test from a recognised acoustic consulting company is required to be sourced prior to installation and provided to the Body Corporate Committee before the Body Corporate’s final approval is given for installation.
  10. [28]
    By letter dated 13 November 2015 the Body Corporate advised that the Roduners’ ‘timber flooring application….has not been approved’ as the Palmer Acoustics report previously supplied showed the proposed flooring produced a result of L’nT w 46, which failed to meet the requirements of the amended by-law.
  11. [29]
    The Roduners applied under the Body Corporate and Community Management Act (Qld) 1997 (the Act) to the Commissioner for Body Corporate and Community Management (‘the Commissioner’) seeking orders ‘that they can have hard flooring installed’, and ‘that they can remove tiles in the kitchen and entrance and replace …them with timber floor’.[13]   The Roduners submit that because they wish to replace tiling (as well as carpet) with timber flooring that the acoustic performance will be enhanced, as there would be no insulation under the tiling at present.  The Palmer Acoustics report does not address this contention.
  12. [30]
    The Adjudicator decided in favour of the Roduners, and made orders:
    1. that the Applicants Alfred Roduner and Deanna Roduner may install timber flooring to all areas of Lot 4613 save for the bedroom areas as identified by the developer in the original plans for the apartment, provided that the floor and installation specification is the same as the product and specification described in a report dated 25th November 2014 by Palmer Acoustics Australia Pty Ltd and which tested to a level equivalent or superior to a “Field Impact Isolation Control of 55 dB” as interpreted by a suitably qualified acoustic engineer.
    2. that the approval is subject to the conditions set out in a letter dated 20th November 2013 from the body corporate to Mr and Mrs Roduner and as more particularly described at paragraph 43 of the Adjudicator’s reasons.
    3. that the body corporate might as part of “condition (a)” set out at paragraph 43 herein require the Applicants to demonstrate that the standard of a “Field Impact Isolation Control of 55 dB” as interpreted by a suitably qualified acoustic engineer is met after installation of the floor.
  13. [31]
    The O'Sullivans and Ms Thorn seek to have the Adjudicator’s orders set aside.  They contend that the Adjudicator:
    1. gave weight to irrelevant matters, failed to give weight to relevant considerations and made mistakes as to the facts warranting the orders being set aside. 
    2. ought to have concluded that the application to install hard timber flooring pursuant to an old by-law be dismissed and/or alternatively that the application to install the timber flooring be granted subject to the respondents complying with the new by-law 35 that provided for better noise insulation protection to the neighbours of the respondents.
  14. [32]
    The Body Corporate takes essentially a neutral position and noted that ‘habitability, value, attractiveness and so on of the community residence relies on compliance with the by-laws by residents and a wider commitment to living cooperatively with fellow residents.’[14] The Body Corporate explained the by-law change as clarifying the technical requirements for hard flooring in the context that the buildings were about 10 years old and there was an increasing tendency for owners to wish to replace flooring, which had created anxiety in the complex. 

The Legal framework for the appeal

  1. [33]
    A person aggrieved by an adjudicators order may appeal under section 289 of the Act to the Appeal Tribunal on a question of law.
  2. [34]
    An appeal to the Appeal Tribunal from the decision of an adjudicator is an appeal in the strict sense.[15] In deciding an appeal, in addition to the jurisdiction and powers of the Appeal Tribunal under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), the Appeal Tribunal may exercise the adjudicator’s powers and substitute its own decision based on the material before the adjudicator, consistent with the adjudicator’s undisturbed factual findings.[16] An adjudicator may make orders that are just and equitable to resolve the dispute[17] and include, without limitation, those orders set out in schedule 5 to the Act.
  3. [35]
    The Roduners included a short statement with their submissions from a graduate engineer, which sought to explain that difference between a decibel value and a L’nT,w rating.  The statement was not before the Adjudicator.  At the commencement of the hearing, Mr O'Sullivan sought to rely upon this evidence in support of the appellants’ submissions that the conclusions in the Palmer Acoustics report as to the interpretation of by-law 35 were not valid.  No application was made for leave to adduce new evidence not before the Adjudicator. No reason was given why such evidence could not have been given to the Adjudicator. 
  4. [36]
    It is not appropriate for this Appeal Tribunal to take into account this additional evidence.

The grounds of appeal

  1. [37]
    The O'Sullivans and Mrs Thorn raise a number of grounds of appeal.  We consider each of these in turn.

Failing to find that the applicable by-law was the new by-law/ Finding that the new by-law was irrelevant

  1. [38]
    The O'Sullivans and Mrs Thorn submit that the Adjudicator erred in law as:
    1. he failed to find that the applicable by-law, governing the installation of timber flooring, was the new by-law carried by special resolution on 22 July 2015 and recorded on 7 September 2015, which required new hard flooring to meet a higher standard of noise insulation between the apartments.
    2. he wrongly determined that the new by-law was irrelevant to the application by the Roduners to the Committee.
  2. [39]
    We are not satisfied that there is a demonstrated error of law.
  3. [40]
    The Adjudicator found that:
    1. the Body Corporate’s approval, subject to conditions, including those matters described as requests, had been given to the installation of the timber flooring on 20 November 2013;
    2. there was no complaint about the Roduner’s noisy behaviour prior to that approval being granted;
    3. the approval became effective on 26 November 2014 as the Roduners provided a copy of compliant test results that day and there was no other relevant condition requiring satisfaction prior to installation;
    4. it was not reasonable for the Body Corporate to change its mind on the pre-existing approval because the Roduners subsequently caused loud noise. 
  4. [41]
    Essentially, the O'Sullivans and Mrs Thorn contend that the Roduners applied for Body Corporate consent on 28 January 2015[18] and that in refusing the request for further approval it was reasonable to take into account:
    1. noise complaints received;
    2. adjacent neighbours’ requests that testing be performed with their apartments as receiving rooms;
    3. taking steps to amend the by-laws to clarify the requirements;
    4. the new by-law, which was registered by the time of the decision in November 2015.[19] 
  5. [42]
    It is clear from the Adjudicator’s reasons that he considered the subsequent ‘renewal’ but that he considered the approval became effective on 26 November 2014, prior to the ‘renewed’ request and prior to the amendment of the by-law and therefore the new by-law was not relevant.
  6. [43]
    We find that the Adjudicator’s finding was open on the evidence and does not demonstrate an error of law. 
  7. [44]
    Even if the Amended Approval was a valid subsequent approval, the evidence before the Adjudicator shows that it became effective on 28 November 2014, prior to the ‘renewed’ request and prior to the amendment of the by-law.    
  8. [45]
    During the hearing, Mr O'Sullivan contended that because the Roduners did not install the timber floor prior to the by-law changing that any prior approval is no longer applicable and that the new by-law governs the installation because the Body Corporate could not approve something that was inconsistent with a current by-law.  However, as found by the Adjudicator, in our view correctly, the Body Corporate had already granted approval subject to conditions and those conditions had been satisfied. 
  9. [46]
    Mr O'Sullivan submits that ‘it would be a curious and unsatisfactory circumstance that any old approval remained effective, indefinitely, notwithstanding amendment of the by-laws.’[20] (emphasis added)  As an example, he said that it would clearly be wrong for a lot owner to rely upon a 10 year old approval where an amended by-law had been registered in the meantime.  We agree.  However, there is no evidence of significant delay by the Roduners.  It is clear that the Roduners had been working towards complying with the 2013 Approval and had expended money in doing so.  The substantive terms of that approval were reconfirmed on 21 October 2014, a matter of a few weeks before the testing was undertaken and the report provided. 
  10. [47]
    Mr O'Sullivan conceded that if the Roduners were relying upon the previous approval then they need not have sought further approval.  He points to the Roduners failure to attempt to install the flooring before or after the AGM in support of the contention that they were not relying upon the previous approval. 
  11. [48]
    In our view, the Roduners were entitled to act cautiously because of the stance taken by the Body Corporate that the committee was not in a position to approve the application for installation of the proposed timber floor, including by letter dated 10 December 2014, apparently due to a misunderstanding as to the product the Roduners proposed to use.
  12. [49]
    It is clear that the terms of the 2013 Approval (and the Amended Approval) did not require a ‘final approval’ after provision of the report, unlike the terms of the amended by-law. 
  13. [50]
    The Adjudicator’s finding that it was unreasonable for the Body Corporate to change its mind on an approval already granted was open on the evidence.  The relevant circumstances were that:
    1. no ‘final approval’ was required; and
    2. despite this the Body Corporate asserted after the conditions were satisfied either that it was unable to approve the installation or it refused to consent to the floor installation, including by letters dated 10 December 2014, 17 March 2015 and 13 November 2015.

Finding that the proposed flooring complied with the old by-law 35  

  1. [51]
    The O'Sullivans and Mrs Thorn contend that the Adjudicator erred in law in concluding that the proposed flooring complied with the old by-law.  
  2. [52]
    We are not satisfied that there is a demonstrated error.
  3. [53]
    The O'Sullivans and Mrs Thorn contend that the Palmer Acoustic report did not demonstrate compliance with by-law 35 as it then was. This is primarily because the Palmer Acoustic report stated that it was technically nonsensical and no testing was done in the adjacent apartments.
  4. [54]
    In the absence of other evidence, the Adjudicator accepted the interpretation of the suitably qualified acoustic engineer that the product had tested to a level equivalent or superior to the rating required in the by-law.  To the extent that the acoustic engineer assumed the requirement referred to L’nT,w 55 and that the Adjudicator relied upon it, that was an error. 
  5. [55]
    We accept that a finding of fact which is wholly unavailable on the evidence is an error of law.[21]
  6. [56]
    Mr O'Sullivan submitted that the acoustic engineers in the Palmer Report ‘have simply transferred one value for another’, and sought to rely on a  report of a graduate engineer to show that FIIC and L’nT,w are different, non-transferable values.[22] Although we have not accepted the report of the graduate engineer in evidence on the appeal, we accept this submission.
  7. [57]
    However, in our view, the Adjudicator’s conclusion that the rating required by by-law 35 had been satisfied is correct, although for different reasons. We do not find, as submitted by Mr O'Sullivan, that the old by-law is ‘nonsensical’ and that it ‘wasn’t possible… to comply with’.[23]
  8. [58]
    We find that the preferred construction of by-law 35 was that the rating required was the former Building Code of Australia requirement of FIIC 55 dB.
  9. [59]
    The O'Sullivans and Mrs Thorn contend that the Palmer Acoustic report and the Adjudicator’s reasons in construing by-law 35 did not attempt to explain the assumption that ‘Building Code Regulations’ in by-law 35 was a reference to the Building Code of Australia (BCA).  The BCA is a uniform set of technical provisions for design and construction of buildings and other structures.  Legal effect is given to the BCA through the Building Act (Qld) 1975, in this sense they are in the nature of regulations.  
  10. [60]
    The report noted that Field Impact Insulation Class (FIIC) ratings had not been in the BCA for more than 10 years and therefore the acoustic consultant assumed, wrongly in our view, the rating referred to the current Building Code requirements of L’nT,w.[24]
  11. [61]
    The Palmer Acoustics report demonstrates the product had tested to a level equivalent to the rating required by the by-law i.e. FIIC 55 dB.  The express terms of the 2013 Approval (and the Amended Approval), the terms of which were before the Adjudicator, described the relevant measurement required as FIIC 55 dB.
  12. [62]
    There was also evidence before the Adjudicator that at least some members of the Body Corporate accepted that the relevant noise measurement required by by-law 35 was FIIC 55 dB and that the test result was FIIC 55 dB.[25] That evidence stressed the importance of correct installation and post installation testing to ensure the floor as installed met the required conditions. It also noted, contrary to some other evidence, that there was little or no noise intrusion from the Roduners’ apartment.
  13. [63]
    We are not satisfied that the failure to test adjacent apartments is a deficiency in the report.
  14. [64]
    The glossary of the report notes that a receiving room is a room below or adjacent to the floor specimen under test.  However, FIIC is described as providing an estimate of the sound insulating performance of a floor-ceiling assembly and associated support structures.[26] It is clear that the focus of such measurement is performance of a floor-ceiling assembly and therefore the most relevant receiving room for this measure is one below the source room as distinct from an adjacent room.
  15. [65]
    The O'Sullivans and Mrs Thorn also contend that the old by-law required that it meet the measurement rating ‘and is suitably acoustically treated’.  They contend there was no evidence of any acoustic treatment.
  16. [66]
    In our view, the finding that it met the second limb of the requirements of the by-law, was open on the evidence and does not demonstrate an error of law. 
  17. [67]
    The evidence before the Adjudicator was that the flooring was to be installed with acoustic impact underlay and was to be laid strictly in accordance with the manufacturers recommended procedures to ensure acoustic performance.  
  18. [68]
    We are satisfied that the Palmer Acoustic report did demonstrate that the product tested met the requirements of the by-law and that all conditions required before installation had been met, at the latest, by 28 November 2014, having regard to:
    1. the terms of the 2013 Approval (and the Amended Approval), which state that the relevant noise limit under by-law 35 is FIIC 55 dB;
    2. the evidence that the by-law had been in place for many years, the complex having been established about 10 years prior to the test.  We find that it is more likely than not that the by-law referred to the FIIC rating previously set out on the BCA at or about the time the by-law was established.
  19. [69]
    The time for compliance with the balance of the conditions had not yet arisen because they relate to the installation. 
  20. [70]
    We find that it was unreasonable for the Body Corporate to continue to maintain that it had any role in further approving the installation and that this prevented the Roduners from completing the installation prior to the change in the by-law in accordance with the pre-existing approval. 
  21. [71]
    In such circumstances, the Roduners are entitled to install the timber flooring in accordance with the 2013 Approval and the Adjudicator’s orders despite the amendment to by-law 35.    

Failed to take the Roduners’ behaviour into account in assessing whether or not it was appropriate that the Roduners install hard timber flooring/Took into account the alleged failures by the Body Corporate to follow up the Roduners noisy behaviour when such failures were irrelevant/Took into account the alleged decision by the Body Corporate not to attend a conciliation session when such alleged decision was irrelevant/Failed to observe natural justice

  1. [72]
    The O'Sullivans and Mrs Thorn submit that the Adjudicator erred in law in failing to take into account relevant matters, taking into account irrelevant matters and failing to observe natural justice. 
  2. [73]
    We accept that failing to take into account relevant matters and taking into account irrelevant matters constitute errors of law. 
  3. [74]
    We also accept that that failing to observe natural justice constitutes an error of law.  Natural justice entitles a party to know the case made against them and to be provided a chance to respond.
  4. [75]
    We are not satisfied that an error is demonstrated.  The adjudicator clearly considered the complaints of noise, both the jackhammering on 20 August 2014 and the log of noise issues maintained by Mrs O'Sullivan,[27] but considered that they were not a justification for the Body Corporate to rescind a prior approval.[28] The adjudicator observed, correctly in our view, that noise concerns could be responded to with contravention notices, and non-compliance with those notices enforced at the Magistrate’s Court.[29] We are not satisfied that any failure in these regards impacted on the outcome.
  5. [76]
    Mr O'Sullivan conceded during the hearing that these grounds are only relevant if there was an error by the Adjudicator in finding that the approval had already been given and satisfied prior to the application on 28 January 2015, and thus that subsequent noise concerns were irrelevant to that approval.[30] 
  6. [77]
    In view of our findings in respect of the earlier grounds, it is not necessary to consider these grounds further.
  7. [78]
    The appeal is dismissed.

Footnotes

[1]  APL082-16 and APL096-16 respectively.

[2] Cutters Landing – Cook [2016] QBCCMCmr 63.

[3]  Direction 15 March 2016.

[4]Body Corporate and Community Management Act (Qld) 1997 (the Act), s 94.

[5]  Transcript, 1-18 at line 6 – 16.

[6]  Statement of Patricia Palmer, attachment page 24.

[7]  L’nT,w is described as a Weighted Standardised impact sound pressure level; a measurement of impact sound transmission between rooms. CI is described as a spectrum adaptation term compensating for the effect of floor coverings when applied to bare floors under test. FIIC is described as Field Impact Insulation Class, an estimate of sound insulating performance of a floor-ceiling assembly and associated support structures. Palmer Acoustic Report, pg 4.

[8]  Palmer Acoustic Report, pg 3.

[9]  Statement of Patricia Palmer, page 5, paragraph (f).

[10]  Ibid, attachment page 7 - 8.

[11]  Statement of Patricia Palmer, attachment page 9 -10.

[12]  Ibid, attachment page 17.

[13]  Reasons for Adjudicators Orders, Cutters Landing – Cook [2016] QBCCMCmr 63 at [1].

[14]  Transcript, 1-18 at [44] – [46].

[15] Albrecht v Ainsworth & Ors [2015] QCA 220.

[16]  Ibid; the Act, s 294(1).

[17]  Ibid, s 276.

[18]  Statement of Patricia Palmer, attachment page 17.

[19]  Ibid, attachment page 34.

[20]  Written submissions on behalf of the applicants, filed 3 June 2016, at [7].

[21] Waterford v The Commonwealth (1987) 163 CLR 54 at 77; Australian Broadcasting Commission v Bond (1990) 170 CLR 321 at 341.

[22]  Transcript, 1-17, L9-17.

[23]  Transcript, 1-17, L14-17.

[24]  Palmer Acoustic Report, dated 25 November 2014, pg 3.

[25]  Statement of Patricia Palmer, attachment page 20.

[26]  Palmer Acoustic Report, dated 25 November 2014, pg 4.

[27]  Mrs O'Sullivan, in her statement dated 6 December 2015, records a list of 17 alleged excessive noise incidents between 6 April 2015 and 25 November 2015.

[28]  Reasons for Adjudicators Orders, Cutters Landing – Cook [2016] QBCCMCmr 63 at [35]-[38].

[29]  Ibid at [34]-[37], [41].

[30]  Transcript, 1-12, L8-23.

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Editorial Notes

  • Published Case Name:

    Mark O'Sullivan, Susan O'Sullivan and Robyn Maree Thorn v Alfred Roduner, Deanna Roduner and The Body Corporate for Cutters Landing - Cook CTS 31994

  • Shortened Case Name:

    O'Sullivan v Roduner

  • MNC:

    [2017] QCATA 50

  • Court:

    QCATA

  • Judge(s):

    Senior Member O'Callaghan, Member Deane

  • Date:

    21 Apr 2017

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