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Bodies Corporate for East Village Ridges and The Ridge v Ridges Peregian Springs[2017] QCATA 51

Bodies Corporate for East Village Ridges and The Ridge v Ridges Peregian Springs[2017] QCATA 51

CITATION:

Bodies Corporate for East Village Ridges and The Ridge v Ridges Peregian Springs [2017] QCATA 51

PARTIES:

Bodies Corporate for East Village Ridges CTS 41995 and The Ridge CTS 39799

(Applicant/Appellant)

 

v

 

Ridges Peregian Springs CTS 39713

(Respondent)

APPLICATION NUMBER:

APL426-16

MATTER TYPE:

Appeals

HEARING DATE:

27 February 2017

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

DELIVERED ON:

12 April 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

  1. The application is refused.

CATCHWORDS:

APPEAL – STAY – where the applicant sought a stay of the decision of the adjudicator – whether a stay should be granted – where no controversy left to quell on appeal – where orders in issue fully implemented before stay application filed

Body Corporate and Community Management Act 1997 (Qld) s 94

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 9, 114, 145

Wu v Ling (No. 4) [2017] NSWCA 59

APPEARANCES and REPRESENTATION (if any):

 

APPLICANT/APPELLANT

Self-represented.

RESPONDENT

Self-represented.

REASONS FOR DECISION

  1. [1]
    This is a stay application pending an appeal from an adjudication decision confirming the validity of AGM motions. The challenge to the decision is based on the alleged misapplication of s 94(2) of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA).

The context

  1. [2]
    The applicants suspect that the respondents improperly extended service contracts by 2016 AGM resolutions later confirmed by an adjudicator.
  2. [3]
    The respondents implemented the disputed resolution by executing a deed of variation sometime after the applicants filed its appeal from the adjudicator’s decision on 28 October 2016. The stay application was not filed until 7 December 2016.
  3. [4]
    The effect of a stay is to delay a successful party’s enjoyment of the fruits of victory. Good reasons and proper basis need to be shown before the tribunal will do so. Examples are preserving disputed subject matter or maintaining the status quo pending the filing or disposal of an appeal so that it is not rendered nugatory or makes substitute orders ineffective. Mere inconvenience to the applicant or a good arguable case of error is not sufficient justification for staying final orders.
  4. [5]
    The respondent submit that the deed destroyed the subject matter of the appeal and makes appeal proceedings otiose and futile.
  5. [6]
    Undaunted the applicants pressed on with the application on the basis of the proposition that the decision is affected by legal error and that the deed should be set aside on appeal for breach the respondents alleged duty not to take pre-emptive action to give practical expression to the disputed motion, at least, until the appeal is decided.
  6. [7]
    Filing a notice of appeal does not operate as a bar to enforcement action on a final adjudication order[1] nor does it impose any enforceable obligation on the winning party to stay its hand for a short period to give the unsuccessful opponent a sporting chance of overruling an adverse order unless specific conditions to that effect are placed on execution under the powers conferred by QCAT Act ss 9(4) or 114(a).
  7. [8]
    The adjudication decision had instant effect.  The applicants could have but for some unexplained reason did not apply for an immediate stay or interim injunction to prevent them from doing so pending appeal.[2]  The respondents have not reneged on any implied undertaking not to implement the resolution.
  8. [9]
    The horse has bolted and there is no point in shutting the gate now. There is nothing left to stay or, for that matter, to prevent or correct on appeal. The situation may seem unethical or morally dubious from the applicant’s viewpoint but it is not legally wrong.

Orders

  1. [10]
    The application is refused.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145(1).

[2]cf Wu v Ling (No. 4) [2017] NSWCA 59.

Close

Editorial Notes

  • Published Case Name:

    Bodies Corporate for East Village Ridges and The Ridge v Ridges Peregian Springs

  • Shortened Case Name:

    Bodies Corporate for East Village Ridges and The Ridge v Ridges Peregian Springs

  • MNC:

    [2017] QCATA 51

  • Court:

    QCATA

  • Judge(s):

    Carmody J

  • Date:

    12 Apr 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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