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  4. Thompson v Body Corporate for Arila Lodge - [2018] QCATA 56

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Thompson v Body Corporate for Arila Lodge[2018] QCATA 56

Thompson v Body Corporate for Arila Lodge[2018] QCATA 56

CITATION:

Thompson v Body Corporate for Arila Lodge & Anor; Thompson v Body Corporate for Arila Lodge & Anor [2018] QCATA 56

PARTIES:

In APL441-16:

Emma Thompson

(Applicant)

 

v

 

Body Corporate for Arila Lodge

(First Respondent)  

Lyn McClelland

(Second Respondent)

 

In APL075-17:

PARTIES:

Emma Thompson

(Applicant)

 

v

 

Body Corporate for Arila Lodge

(First Respondent)  

SGR Prop Invest 01 Pty Ltd

(Second Respondent)

APPLICATION NUMBER:

APL441-16; APL075-17

MATTER TYPE:

Appeals

HEARING DATE:

22 February 2018

HEARD AT:

Brisbane

DECISION OF:

Member P Roney QC

DELIVERED ON:

26 April 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

The appeals are dismissed.

CATCHWORDS:

CORPORATIONS – BODIES CORPORATE OTHER THAN COMPANIES AND ASSOCIATIONS – OTHER MATTERS – whether power to order or nominate a party to perform repair works

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where reliance on argument not advanced at first instance

Body Corporate and Community Management (Standard Module) Regulation 2008 (Qld), s 60, s 170, s 171

Body Corporate and Community Management Act 1997 (Qld), s 163, s 171, s 276, s 271,
s 281, s 284

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

Keswick Developments Pty Ltd v Keswick Island Pty Ltd  [2012] 2 Qd R 114

Mango Boulevard Pty Ltd v Spencer & Ors [2010] QCA 207

APPEARANCES:

 

APPLICANT:

Mr W Thomas of Counsel instructed by Cannon & Co Law for the Applicant

RESPONDENT:

Mr B Strangman of Counsel instructed by Grace Lawyers for the Body Corporate for Arila Lodge

Ms S Hynes, Solicitor of Hynes Legal, for Lyn McClelland

Mr S Reid self-represented SGR Prop Invest 01 Pty Ltd

REASONS FOR DECISION

Introduction3

The Grounds of Appeal6

Ground 1 - The absence of power to order or nominate a party to perform repair works7

Grounds 2 and 3 - Failure to take into account evidence about the status of contractor quotes12

Ground 4 – Irrelevant considerations13

Ground 6 – Error in applying the duty under s. 170 of the Standard Module14

Ground 7 – Absence of probative evidence for the conclusion that the Applicant caused all of the damage found14

Ground 8 – Absence of reasons for what caused damage15

Ground 9 – Probative evidence that all tiling and plasterboard damage was caused by the Applicant16

Ground 10(b) – Denial of an opportunity to inspect the property of the Respondents16

Ground 11 – Interpreting the bylaws17

Disposition and Orders18

Introduction

  1. [1]
    There are two appeals before this Tribunal. Each seeks to appeal decisions by an Adjudicator dated 8 December 2016 which arose out of water damage caused to Lots 1 and 2 of the premises known as Arila Lodge, and which the Adjudicator held had been caused by a water leak emanating from the bathroom of the Applicant’s lot since April or May 2016 and which had penetrated areas of the two lots below it.
  2. [2]
    Arila Lodge Community Titles Scheme 14237 comprises eight lots, each lot comprising an entire floor of the building. There is common property in different parts as well. The lots progress numerically from Lot 1 on the lowest level through to Lot 8 at the highest level. The Respondent McClelland is the owner of Lot 1 which is on the lowest level. The Respondent SGR Prop Invest 01 Pty Ltd is the owner of the unit immediately above McClelland’s unit, and the Applicant’s unit, Lot 3 is on the third floor.
  3. [3]
    The issues which enliven this appeal arise out of circumstances in which the Respondent lot owners contend that water has leaked from an improperly fitted washing machine connection from the bathroom of the Applicant’s Lot 3 to Lot 2 below, and eventually to Lot 1. These leaks had occurred when the Applicant started renovations to the bathroom in her unit.
  4. [4]
    Principally, the Respondents asserted before the Adjudicator that the Applicant breached s. 60 of the Body Corporate and Community Management (Standard Module) Regulation 2008 (the Standard Module) by failing to maintain her lot in good condition, including utility infrastructure, within the boundaries of the lot, and bylaw 7(a) by failing to use utility infrastructure for the purpose intended.
  5. [5]
    Initially, the Body Corporate and the owner of Lot 2 sought some emergency orders due to the damage then being caused to Lots 1 and 2, and what was identified as the risk of further damage.
  6. [6]
    The application which initiated the making of those orders was lodged under the Body Corporate and Community Management Act 1997 (the Act) on 15 July 2016.
  7. [7]
    The application, insofar as it was by the Body Corporate as co-applicant, had been the subject of a resolution passed by the Body Corporate committee. At that stage, the applicants sought four orders.
  8. [8]
    The orders sought were as follows:
    1. The Respondent, must, within 24 hours of being given written notice from the Body Corporate to her email address at [email protected] pursuant to section 163 of the Body Corporate and Community Management Act 1997, provide unobstructed access to lot 3 to the Body Corporate and its authorised persons for so long as it is reasonably necessary to perform such work as is reasonably required to the bathroom of lot 3, and any utility infrastructure within the bathroom, to stop the water leak.
    2. Pursuant to section 171(2) of the Body Corporate and Community Management (Standard Module) Regulation 2008 the Body Corporate may recover the reasonable costs of those works from the Respondent as a debt.
    3. The Respondent must, within 2 days of the date of this order, remove the washing machine from the bathroom of lot 3 and is prohibited from connecting any washing machine to the utility infrastructure within the bathroom unless first approved by the Body Corporate; and
    4. The Respondent, within 2 days of the date of this order, must arrange at her cost for Advanced Buildings (Queensland) Pty Ltd to carry out repairs to lot 2 as stated in Quotation No. 7874-1 and 7874-2 dated 7 June 2016.
  9. [9]
    On 21 July, the Adjudicator made the following emergency orders:
    1. An order that, providing that 24 hours written notice has been given by the Body Corporate for Arila Lodge to her email address ([email protected]) and hand-delivered to Lot 3, the respondent Emma Thompson must provide unobstructed access to Lot 3 to any persons authorised by the Body Corporate for Arila Lodge for as long as it is reasonably necessary to perform such work in or associated with the bathroom of Lot 3 and any utility infrastructure for that bathroom as is reasonably required to stop water leaking from Lot 3 to the lots below;
    2. A declaration that, pursuant to section 171 of the Act, the Body Corporate for Arila Lodge is entitled to recover from the respondent Emma Thompson the reasonable cost of carrying out work necessary to stop water leaking from the bathroom of Lot 3 as a debt;
    3. An order that, subject to any further orders made in respect of this application, the respondent Emma Thompson must immediately cease use of and disconnect the washing machine in the bathroom of Lot 3 and must not connect or reconnect any washing machine to the utility infrastructure within the bathroom of Lot 3 without the prior written consent of the Body Corporate for Arila; and
    4. A further order that, unless otherwise resolved, the remainder of this application will be determined following further investigation of the dispute pursuant to section 271 of the Act, including the provision of a further opportunity for the respondent to make submissions on the application.
  10. [10]
    After the initial hearing based on emergency circumstances, the matter came back before the Adjudicator, and further submissions were made in considerable detail in relation to the remnant, outstanding issue in (d) above, namely whether the owner of Lot 3, the Appellant here, should be ordered by a specified date of the order, to arrange at her cost for Advanced Buildings (Queensland) Pty Ltd to carry out repairs to Lots 1 and 2 in a specific quotation obtained from Advanced Buildings (Queensland) Pty Ltd dated 7 June 2016.
  11. [11]
    In separate reasons, each delivered on 8 December 2016, the learned Adjudicator made orders that within seven days of the date of the order, at her own cost, the Applicant in the proceeding must engage Advanced Buildings (Queensland) Pty Ltd to carry out repairs to the bathrooms of Lots 1 and 2 as provided for in respect of quotations dated, in the case of the Lot 1 bathroom, 29 August 2016, and in the case of Lot 2, dated 4 August 2016, and also provide a written confirmation of the engagement to the Body Corporate, and the affected lot owners.
  12. [12]
    The Adjudicator provided detailed written reasons for her decision in making those orders. [1]
  13. [13]
    I will refer to the appeal in respect of the orders in relation to Lot 1 as the first appeal, and that in relation to Lot 2 as the second appeal.
  14. [14]
    It is common ground that the Appellant may appeal an Adjudicator’s order, but only on a question of law.[2] The assertion was confidently made in written submissions for the Applicant in both appeals that all the grounds of appeal related to questions of law. However little, if any consideration appears to have been given to the question of whether in fact the grounds, as articulated, did in fact raise any question of law, or raised an issue which demonstrated an error of law by the Adjudicator. I shall deal shortly with the individual grounds and whether they do in fact raise questions of law.
  15. [15]
    Broadly speaking, the second difficulty with some of the appeal points is that they were not issues which were raised in evidence or in submissions made on the basis of that evidence before the Adjudicator. Three of the grounds of appeal which were in corresponding terms in each of the grounds of appeal, namely those in paragraphs 1, 2 and 3 of the grounds of appeal fell into that category.
  16. [16]
    The third difficulty is that the second appeal was commenced out of time, and an application was made for an extension of time in which to file the appeal. Absent demonstrated prejudice to the granting of such an indulgence, were the grounds of appeal otherwise meritorious, the usual course would be to allow an extension of time for the filing of the appeal notwithstanding its lateness.

The Grounds of Appeal

  1. [17]
    Grounds 1, 2, 3 and 4 of the grounds of appeal in both appeals were in the following terms:
  1. Pursuant to s. 281 of the BCCM Act the Adjudicator did not have power to make the Order to which the Decision relates.
  1. Further and alternatively, the Adjudicator failed to take into account that:
  1. (a)
    Quotation 8385-3 dated 29 August 2016 (quote) to which the order refers, had expired by the time the Orders were made;
  1. (b)
    The quote contained contingency items without a mechanism for adjustment if those items were not required; and
  1. (c)
    The quote was an offer from Advanced Buildings (Queensland) Pty Ltd to Lyn McClelland, and not to the Applicant, to enter into an agreement to perform services.
  1. Further and alternatively, there was no probative evidence that Advanced Buildings (Queensland) Pty Ltd would enter an agreement with the applicant pursuant to the quote.
  1. In circumstances where s. 281 applies to the decision, the Adjudicator took into account an irrelevant consideration at [12], namely the powers in s. 276 and 284(1) of the BCCM Act.
  1. [18]
    Ground 6 in the first appeal is materially the same as Ground 10 in the second appeal, namely whether the Adjudicator erred in applying the duty on a lot owner under s. 170 of the Standard Module.
  2. [19]
    Ground 7 in the first appeal was in these terms:
  1. There was no probative evidence to support a finding that the applicant caused all of the damage referred to in paragraph 12 of the Honkanen report dated 29 August 2016, and accordingly there was no probative evidence to support the conclusion that the applicant caused all of the damage (in the form of necessity for repairs) set out in the quote.
  1. [20]
    This was materially identical to Ground 6 in the second appeal.
  2. [21]
    Ground 8 in the first appeal was in these terms:
  1. Further and alternatively, the Adjudicator did not provide adequate reasons to explain why the particular damage referred to in paragraph 12 of the Honkanen report, or in the quote, was caused by the Applicant.
  1. [22]
    This was materially identical to Ground 7 in the second appeal.
  2. [23]
    Ground 9 in the first appeal was in the following terms:
  1. Further and alternatively, there was no probative evidence to support a finding that the replacement of wall tiling and charges for plasterboard/sheeting as set out in the quote were a form of damage caused by the Applicant.
  1. [24]
    This was materially identical to Ground 8 in the second appeal.
  2. [25]
    Ground 10(b) in the first appeal, the only remnant ground in that paragraph of the grounds of appeal still pressed, was in these terms:

10(b) Further and alternatively, determined the question of damage in circumstances where the Applicant was denied natural justice by being unable to enter and inspect the property of the respondent.

  1. [26]
    Ground 10(b) was materially identical to Ground 9(b) in the second appeal.
  2. [27]
    Ground 11 in the second appeal was in these terms:

11 The adjudicator erred at [81] to [87] in:

  1. (a)
     interpreting the relevant bylaw;
  1. (b)
     applying the relevant bylaw to the facts; and
  1. (c)
     placing an onus on the applicant to prove that the washing machine was adequately connected.
  1. [28]
    There is no equivalent ground of appeal to this ground in the first appeal.

Ground 1 - The absence of power to order or nominate a party to perform repair works

  1. [29]
    Ground 1 in both appeals relies upon a contention that the Adjudicator did not have the power to make the order that was made, namely that the Applicant must engage at her own cost a particular contractor to carry out repairs to Lots 1 and 2.
  2. [30]
    The Applicant’s argument in support of this ground is that whilst s. 276 of the Act empowers an Adjudicator to make an order that is just and equitable in relation to a claimed contravention of the Act and authorises an order that requires a person to act in a way stated in the order, there is no power to make an order of the kind made here that the Applicant engage a particular contractor to carry out repairs to someone else’s lot. The submission is made that whilst it might have been within power to make an order that particular repairs be carried out by the Applicant, it was beyond jurisdiction to direct that a particular contractor be engaged by her.
  3. [31]
    Section 276 of the Act provides as follows:

276  Orders of adjudicators

(1) An adjudicator to whom the application is referred may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about—

  1. (a)
    a claimed or anticipated contravention of this Act or the community management statement; or
  1. (b)
    the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or
  1. (c)
    a claimed or anticipated contractual matter about—
  1. (i)
    the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
  1. (ii)
    the authorisation of a person as a letting agent for a community titles scheme.
  1. (2)
    An order may require a person to act, or prohibit a person from acting, in a way stated in the order.
  1. (3)
    Without limiting subsections (1) and (2), the adjudicator may make an order mentioned in schedule 5 .
  1. (4)
    An order appointing an administrator—
  1. (a)
    may be the only order the adjudicator makes for an application; or
  1. (b)
    may be made to assist the enforcement of another order made for the application.
  1. (5)
    If the adjudicator makes a consent order, the order—
  1. (a)
    may include only matters that may be dealt with under this Act; and
  1. (b)
    must not include matters that are inconsistent with this Act or another Act.
  1. [32]
    Section 281 of the Act provides as follows:

281 Order to repair damage or reimburse amount paid for carrying out repairs

  1. (1)
    If the adjudicator is satisfied that the applicant has suffered damage to property because of a contravention of this Act or the community management statement, the adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for the contravention—
  1. (a)
    to carry out stated repairs, or have stated repairs carried out, to the damaged property; or
  1. (b)
    to pay the applicant an amount fixed by the adjudicator as reimbursement for repairs carried out to the property by the applicant.

Example: A waterproofing membrane in the roof of a building in the scheme leaks and there is damage to wallpaper and carpets in a lot included in the scheme. The membrane is part of the common property and the leak results from a failure on the part of the body corporate to maintain it in good order and condition. The adjudicator could order the body corporate to have the damage repaired or to pay an appropriate amount as reimbursement for amounts incurred by the owner in repairing the property.

  1. (2)
     The order can not be made if—
  1. (a)
    for an order under subsection (1) (a) — the cost of carrying out the repairs is more than $75,000; or
  1. (b)
    for an order made under subsection (1) (b) — the amount fixed by the adjudicator would be more than $10,000.
  1. [33]
    Section 284 of the Act provides as follows:

284 Ancillary provisions

  1. (1)
    The adjudicator’s order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.
  1. (2)
    The adjudicator’s order may fix the time—

 (a) when the order takes effect; or

 (b) within which the order must be complied with.

  1. (3)
    If the adjudicator’s order does not fix the time when it takes effect, it takes effect when served on the person against whom it is made or, if it is not made against a particular person, when it is served on the body corporate.
  1. (4)
    The adjudicator’s order may provide that the order is to have effect as a resolution without dissent, special resolution or ordinary resolution.
  1. [34]
    Independently of the operation of s. 281, the Applicant contends that s. 284 of the Act authorises ancillary orders, but is only engaged if the Adjudicator considered that they are necessary or appropriate. She contends that the Adjudicator did not refer to the specific powers in s. 284, and since that did not occur, there was no reasoning indicating why it was necessary to make such an ancillary order.
  2. [35]
    The Applicant did not address in submissions what specifically the scope of operation of s. 284 is, or reference any authority from either this or any other jurisdiction, which might throw light upon the issue.
  3. [36]
    In this case, the Adjudicator has clearly been satisfied that the Applicant had contravened s. 170 of the Act and caused damage to the property of the Respondent lot owners. The applicant lot owners and the Body Corporate had made clear in their submissions in the adjudication application that they sought orders of the kind which were eventually made. Reliance was specifically placed upon the powers in s. 281 of the Act for the making of such an order.
  4. [37]
    The Adjudicator’s Reasons in the first appeal specifically reference the operation of s. 281 of the Act, and found that if satisfied that an applicant had suffered damage to property due to a breach of the Act or the CMS, that an order could be made that the person responsible carry out stated repairs to the damaged property. No specific reference was made to the operation of s. 284, and those powers, however their terms are well known and commonly applied. I was not taken to any authority in relation to what interpretation had been placed upon the terms of s. 284, however the language in it which contemplates the making of “ancillary and consequential” orders is in wide use in statutory and other contexts in the law in Australia.[3]
  5. [38]
    A consequential order in its ordinary dictionary meaning is an order following from the judgment which makes the principal order effective and effectual or which follows necessarily as being incidental to the principal order in the matter. An ancillary order is one, which applying dictionary definitions is one which provides necessary support to the primary findings or orders.
  6. [39]
    In Smith v Smith [1925] 2KB 144 at 149, CA Bankes LJ held that the right to grant relief which a court had under s. 89 of the then Judicature Act was “ancillary, that is to say, supplemental. It is an additional remedy, for making more effective a remedy for the one cause of action”.
  7. [40]
    In circumstances in which there was no basis to contend that the Applicant herself was prepared to engage a contractor to perform the work that was required to be performed, and where the performance of that work was necessary to overcome the effect of what the Adjudicator held to have been damage suffered in consequence of a contravention by the Applicant of the Act, there can be no doubt that making an order that the offending party engage the particular contractor who had provided a quote and had shown willingness to perform the work in a timely way, was appropriate to ensure that the work proceeded, and proceeded in a timely way, in accordance with what were recognised to be the necessary works.
  8. [41]
    The particular contractor that the Applicant was required to engage was the preferred contractor for the lot holders, and the content of those quotations was the subject of evidence before the Adjudicator. The evidence appears to suggest that two companies provided quotations for the performance of the works, and those quotations were in substantial agreement about what the required work was.
  9. [42]
    In my view the Adjudicator did have power to make the orders which were made.
  10. [43]
    As an additional basis for the rejection of this ground of appeal might be notwithstanding the fact that the Applicant was on clear notice that such an order was being sought against her in the hearing before the Adjudicator, and that both argument and evidence was directed to that issue, she elected not to make a submission that the Adjudicator had no such power.
  11. [44]
    It is well accepted that in appellate proceedings, “the importance of finality pervades the law”, Mango Boulevard Pty Ltd v Spencer & Ors [2010] QCA 207 at [16] and D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1. The High Court has made clear on numerous occasions that the finality principle applies to appeals, so that “except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had opportunity to do so” per Brennan CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 309-110.
  12. [45]
    In Keswick Developments Pty Ltd v Keswick Island Pty Ltd [2012] 2 QdR 114, Muir JA, with whom the other members of the Court agreed, said:
  1. The respondents also seek to rely on an argument not pleaded or advanced at first instance.

...

  1. There are two reasons which militate against permitting the point to be raised now:
  1. (a)
    the principle that a party is bound by the conduct of his case at first instance and should not, after the case has been decided against him, except in most exceptional circumstances, be permitted “to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing…” University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; and
  1. (b)
    the strong public interest in the finality of litigation. [Coulton v Holcombe (1986) 162 CLR 1 at 7, 8 and D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1.
  1. It is unnecessary to explore at any length the rationale for the principle referred to in paragraph (a) above. It was discussed in Coulton v Holcombe. In that case, Gibbs CJ, Wilson, Brennan and Dawson JJ observed that:

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

  1. [46]
    Ordinarily I would be slow to apply these principles in circumstances in which there were appeals to this Tribunal from decisions of Adjudicators, particularly where those parties might be unsophisticated, or not legally represented. This is not such a case. Since the issue is one which goes to the question of whether the Member had jurisdiction under the Act to make the order, it seems to me that if there was an error of law in making an order of the kind which was made, it would be appropriate to entertain this ground of appeal.
  2. [47]
    That said, for the reasons I have already expressed, the ground fails because it is without substance.

Grounds 2 and 3 - Failure to take into account evidence about the status of contractor quotes

  1. [48]
    The Applicant contends in her written submissions that the Adjudicator failed to take into account certain evidentiary issues that related to the quotations which were the subject matter of the orders. The three things that the Adjudicator allegedly failed to take into account were:
    1. That the validity of the quote dated 29 August 2016 was in question because it expired on 3 September 2016 and the order which was made about it was not made until December 2016. This, it was contended meant that there was no offer capable of acceptance by the Applicant.
    2. The fact that the quotation was an offer made not to the Applicant, but to the affected lot owners.
    3. That the quote had prime cost supply elements, and an exclusion for latent conditions without any mechanism for adjustment.
  2. [49]
    It was suggested in written submissions, which were developed in oral submissions, that since the Adjudicator failed to take these matters into account, the order was “hopelessly prejudicial to the bargain theory of contract”.
  3. [50]
    In my view, this ground of appeal is entirely misconceived. First of all, there is no evidence whatsoever that the Adjudicator failed to take account of what was in the quotations, or as to whether the contractors were willing and able to carry out the work which was referred to in the orders consequentially made. There is nothing in the evidence in this Tribunal, and there was nothing before the Adjudicator below to suggest that whatever technical complaints might be made about the dating of the quotations, or the fact that elements of them contained contractual exclusions or prime cost elements that they rendered the orders which were made uncertain or equivocal. There has been no attempt made below to set aside those orders on the basis that they are incapable of being given effect to, or futile.
  4. [51]
    The second issue is that this ground of appeal does not raise an issue of law and is therefore incompetent.
  5. [52]
    Thirdly, this ground was not raised below. It differs from that under Ground 1, because it concerns evidentiary matters, and were there to be any kind of challenge made to the making of the sorts of orders that were made about, for example, whether the contractors were still willing to perform the work when the orders were made and thereafter, those matters could have been met by evidence on that issue.
  6. [53]
    The Applicant had ample opportunity to make these arguments below, and if they had any validity they could have been appropriately answered. There is no explanation put forward for the failure by the Applicant to raise these complaints below. This is given particular significance in this case because of the fact that the Applicant herself is a person of some considerable sophistication. The evidence before the Adjudicator, and also before me, was that she was the holder of a number of undergraduate degrees from tertiary institutions in Queensland, was in the course of undertaking a Bachelor of Laws at the time of the adjudication, and was herself the holder of an open builder’s licence with then Building Services Authority. She set out her professional experience as including activities in construction project management. She contended that she was the holder of a Queensland Construction Management award. Against that background, it can be scarcely imagined that the Applicant was not fully cognisant of the significance of what was contained in the quotations, and notwithstanding that fact, elected not to take the kinds of objections that were now raised under Ground 2 when the matter was before the Adjudicator.
  7. [54]
    Ground 2 must, for the reasons expressed above, also fail.
  8. [55]
    Ground 3 raises an ancillary issue about whether there was evidence that the contractor would enter into an agreement with the Applicant. For the same reasons as I have dismissed Ground 2, I would reject Ground 3. There was no evidence to suggest that the contractor was in fact unwilling to enter into an agreement in accordance with the terms of the quotation, and there was no evidence to query whether the contractor would be willing to contract with the Applicant. It would have been incumbent upon the Applicant to raise some evidentiary basis to challenge the suggestion that such an order could be made, on the basis that it was not capable of being given effect. She did not do so and has not done so since.

Ground 4 – Irrelevant considerations

  1. [56]
    Under this ground of appeal the Applicant contends that in the Adjudicator’s Reasons, she irrelevantly took into account powers under s. 276 and 284(1) of the Act in circumstances in which it was contended, the provisions of s. 276 were irrelevant to the exercise of powers under s. 281. As an ancillary contention, it is suggested that the Adjudicator provided no reasons or “explanation” for her findings when she made an order that required the Appellant to notify the Respondents when the contractor had been engaged.
  2. [57]
    There may be circumstances in which a failure to provide adequate reasons for a finding could constitute an error of law. In this case, however it seems to me that there is no substance to the argument that the Adjudicator erred in law in taking into account what are said to be irrelevant considerations, namely the specific powers provided to her under s. 276 and s. 284 of the Act. Her recitation of the operation of those provisions in context are unremarkable.
  3. [58]
    In her Reasons at paragraphs [12] and [14] there are a generalised statements of the basis for the Adjudicator’s jurisdiction, and in the Reasons at [79] she makes clear that the orders being made are under s. 281, and appropriate factual findings have been made to enliven the operation of that section. I have already said all that I propose to say about the power to make ancillary orders under s. 284 in those circumstances.
  4. [59]
    It therefore follows that Ground 4 of the grounds of appeal fails.

Ground 6 – Error in applying the duty under s. 170 of the Standard Module

  1. [60]
    This ground of appeal complains about a finding by the Adjudicator that the Applicant “has had (and continues to have) an obligation under s. 170 of the Standard Module to maintain Lot 3, including its bathroom and the utility infrastructure within the boundaries of the lot, in good condition”.
  2. [61]
    The Applicant’s argument under this head has two elements. The first struggles to be meaningfully stated in any of the submissions which have been made about it. It appears to be a complaint about there being no evidence to establish that there was utility infrastructure which was not kept in good order, other than water appearing to rise through the floor waste, and the suggestion is that this is insufficient evidence that it was consequential upon a failure to maintain infrastructure in good condition.
  3. [62]
    This contention is an oblique challenge to factual findings which the Adjudicator made, and was entitled to make, on the largely unchallenged material before her about the damage which was caused to the premises. This ground is not based upon any error of law.
  4. [63]
    The second aspect of this ground again challenges a factual finding of the Adjudicator, by contending that the only evidence was that the Applicant, a licensed builder, was maintaining the utility infrastructure. Again this is an oblique attack on the findings of fact made by the Adjudicator and does not raise an issue of law. The Adjudicator’s Reasons at [73] to [75] in relation to Lot 1 contain a clear summary of her findings of fact in this regard and they demonstrate no legal or other error.

Ground 7 – Absence of probative evidence for the conclusion that the Applicant caused all of the damage found

  1. [64]
    This ground of appeal is another which was not raised below and is really an attack upon whether the evidence was sufficient for the Adjudicator to expressly or impliedly conclude that the cause of the damage which was the subject matter of orders for rectification was, in its entirety, caused by the Applicant’s contraventions of s. 170 of the Standard Module. It is really concerned with the sufficiency and extent of the evidence to establish a conclusion which was not directly challenged by the Applicant below. In my view it cannot be raised at this time either.
  2. [65]
    It was not contested below that at least some of the damage which had been identified in expert reports was directly caused by the Applicant’s conduct. The Adjudicator’s findings which led to the orders being made depended upon a careful reading of the expert reports about what damage existed, what its nature was, and its causal connection to the leaking hose connection in the Applicant’s bathroom. There was no plausible alternate hypothesis put to explain how else the damage might have been caused were it not caused by the Applicant’s conduct. It is true that at a generic level the Applicant argued that she was not the person causing the damage, and was not responsible for the leaks, however these contentions are contrary to the findings of the Adjudicator and indeed are contrary to the evidence which the Adjudicator was prepared to accept. Again, the Applicant’s extensive building qualifications and relative sophistication would mitigate against any suggestion that she was unaware of the necessity to produce evidence to demonstrate that water leaking from her premises was not the cause of the damage, or not the cause of all of it.
  3. [66]
    This ground of appeal must fail.

Ground 8 – Absence of reasons for what caused damage

  1. [67]
    This ground of appeal is related to that in Ground 7, but this time complains that there were not adequate reasons given by the Adjudicator to explain why the particular damage referred to in paragraph 12 of the Honkanen report, or in the quote, was caused by the Applicant.
  2. [68]
    In the Reasons in relation to Lot 1 at [62] and [63], the Adjudicator references an expert report which she identified as having detailed:

The observed damage to the lining and finishes of the lots 1 and 2 bathrooms. He also says there is a high likelihood that the water ingress has caused waterproofing in the two bathrooms, such that the integrity of the waterproofing can no longer be guaranteed. The Respondent has not refuted the claim of water damage to the bathrooms below Lot 3. She does not specifically refute Honkanen’s description of the damage.

  1. [69]
    The Adjudicator then goes on to recite the fact that the Respondent complained that she was not permitted to inspect the damage and concludes that in the circumstances here, where there was such animosity between the parties, it was reasonable for the Applicants to prevent the Respondent from inspecting their lots to verify the existence of the damage and obtain alternative quotes. But the fact was, as the Adjudicator held, that the Applicant was invited to send her own expert to inspect the damage but chose not avail herself of the opportunity.
  2. [70]
    The Applicant’s submissions to the effect that there was an absence of reasons do not condescend to identifying why, with the reasons which were present here, there was an error of law in not providing different reasons or more expanded reasons. On their face, the reasons provided explain the conclusions of fact which were arrived at.
  3. [71]
    In the end, the Applicant contended that the error was that there was no “indication in the reasons that suggests that the learned adjudicator turned her mind to the correct enquiry of whether, on the balance of probabilities, the body corporate had proven that there was a leak in lot 3 that caused the damage set out in Honkanen report 2”. The submissions then go on to make another oblique attack on the factual findings. In my view, even if this submission were correct, it is not necessary that the Adjudicator specifically reference issues such as identifying where the onus of proof lay, and what the standard of proof to be met was. It is implicit in her findings that it was proven that there was a leak in Lot 3 that had caused the damage set out in the report referred to.
  4. [72]
    This ground of appeal also fails. Additionally it is not an appeal on a question of law.

Ground 9 – Probative evidence that all tiling and plasterboard damage was caused by the Applicant

  1. [73]
    This ground of appeal seems to be masquerading as an argument that there was “no evidence” to show a causal link between two types of damage, and any contravention by the Applicant. In oral submissions, the Applicant was content to assert that this was really a subcategory of Ground 7, as to whether there was probative evidence to support the conclusion that the Applicant caused all the damage. For the same reasons as Ground 7 fails, this ground also fails. The necessity to replace wall tiling and plasterboard sheeting arose because of water damage. The only water damage identified as having been caused was that which was caused by the Applicant’s conduct. This ground is without substance.

Ground 10(b) – Denial of an opportunity to inspect the property of the Respondents

  1. [74]
    This ground alleges a denial of natural justice to the Applicant by her being “unable to enter and inspect the alleged damage”.
  2. [75]
    This ground of appeal is misconceived because the failure to enter and inspect the damage did not result from any order of the Adjudicator or any denial by the Adjudicator of a right to inspect. As has been identified above, the Applicant had an opportunity to have an expert of her choosing inspect the damage, and elected not to avail herself of that opportunity. The condition that was imposed was that her expert had to be one who was approved by the Body Corporate, however she concedes that this condition was not one which she objected to at the time, and that the opportunity for her to send someone arose after the adjudication had commenced. The Applicant did not seek to sustain this ground of appeal by reference to any case authority concerning alleged denials of natural justice in such circumstances. Ground 10(b) also fails.

Ground 11 – Interpreting the bylaws

  1. [76]
    The final ground of appeal is what was Ground 11 in appeal number 2 in relation to Lot 2. The Applicant contends that the Adjudicator erred in construing bylaw 7 and in concluding that bylaw 7 was shown to have been contravened in this case and further in placing an onus placed on the Applicant to prove that the washing machine was adequately connected.
  2. [77]
    In her Reasons at [81] to [87], the Adjudicator found as follows (footnotes omitted):

[80] The CMS for Arila Lodge recorded on 4 May 2016 provides the following By-law 7:

7. Utility Infrastructure

(a) An Occupier must use the Utility Infrastructure for the purpose for which it was designed for and not for any other purpose.

(b) If an Occupier becomes aware of any defect or damage to the Utility Infrastructure, the Occupier must promptly give notice to the Committee of the defect or damage.

(c) An Occupier shall ensure all water taps in a Lot are properly turned off after use.

[81] The Body Corporate asserts that the respondent has breached this by-law by connecting the washing machine to in the bathroom. It says laundry taps are designed for the purpose of connecting washing machines so as to discharge water effectively.

[82] It says that even when not in use, the faulty connection of the washing machine in the bathroom will leak because water is still being supplied through the faulty connection and the discharge line cannot be connected to appropriate discharge infrastructure.

[83] Usually an application alleging a by-law breach cannot be lodged unless a by-law contravention notice has been given to a respondent. However, that step can be dispensed with in the case of an interim order where there are special circumstances warranting urgency, or where the by-law dispute is incidental for a claim pursuant to section 281 of the Act. The later applies in this case.

[84] The respondent says the applicants’ statement that “laundry taps are designed for the purpose of connecting washing machines so as to discharge water effectively” seems intended to mislead and deceive. However she does not explain what is misleading or deceptive about this statement. The respondent has not provided argument or evidence that the washing machine was able to be adequately connected in the bathroom or that the manner of connection was adequate.

[85] The respondent says she has moved the washing machine back to the laundry in July. However the respondent does not dispute that the washing machine was installed in the bathroom for some months prior to that. She does not explicitly refute the assertion that the washing machine was incorrectly connected – but says it was installed by a plumber in February. It was clearly installed in the bathroom at her request.

[86] The respondent continued to use the washing machine in the bathroom for some two months after Williams purportedly informed her that the connection was defective. Even if Williams did not tell the respondent that, as she claimed, it was explicitly repeated in the Body Corporate’s letter of 14 June. Despite that, the respondent does not dispute that she continued to use the washing machine in the bathroom until the initial order was made.

[87] I am satisfied on the material provided that the respondent has breached By-law 7 by connecting her washing machine to utility infrastructure in the Lot 3 bathroom that was not designed to have a washing machine connected to it. I am also satisfied that the breach of By-law 7 contributed to the damage caused to Lot 2.

  1. [78]
    Section 276(1)(a) allows as a ground for intervention, a contravention of a CMs. This, of course, is merely an ancillary issue to the other bases which the Adjudicator contended provided that appropriate jurisdictional basis to make the orders, namely contravention of s. 170 of the Standard Module. Therefore even were Ground 11 to succeed, it would not have a material result on the outcome. For the Applicant, it is contended that “taps are taps” and the Adjudicator ought not to have embarked on enquiry about whether connecting a washing machine to an outlet not designed for such connections was use of a utility outside of the design for it.
  2. [79]
    There is no demonstrated error in the reasoning of the Adjudicator, and there is certainly no articulated or actual basis for any finding that the Adjudicator’s analysis constituted any error of law. Her discussion at Reasons [84] recited above does not indicate any reversal of onus in the way that the Applicant contends for.
  3. [80]
    Ground 11 must also fail.

Disposition and Orders

  1. [81]
    In the result, the orders that I make are that the appeals in each matter be dismissed insofar as leave was sought to extend the time in which to file the appeal in appeal 075 of 2017, that leave is refused.
  2. [82]
    I grant the parties liberty to apply.

Footnotes

[1] Arila Lodge [2016] QBCCM Cmr 563, in respect of Lot 1, and Arila Lodge [2016] QBCCM Cmr 562, in respect of Lot 2.

[2]  Section 289(2) of the Act.

[3]  For example, under the National Consumer Protection Act 2009.

Close

Editorial Notes

  • Published Case Name:

    Thompson v Body Corporate for Arila Lodge & Anor; Thompson v Body Corporate for Arila Lodge & Anor

  • Shortened Case Name:

    Thompson v Body Corporate for Arila Lodge

  • MNC:

    [2018] QCATA 56

  • Court:

    QCATA

  • Judge(s):

    Member Roney

  • Date:

    26 Apr 2018

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2018] QCATA 5626 Apr 2018Appeals from decision of an Adjudicator dated 8 December 2016 which arose out of water damage caused to Lots 1 and 2 of the premises known as Arila Lodge; appeals dismissed: Member Roney QC.
Primary Judgment[2018] QCATA 13306 Sep 2018Costs judgment of [2018] QCATA 56: appellant ordered to pay the first and second respondent's costs: Roney QC DCJ.
Primary JudgmentQCATA441/16; QCATA75/17 (No Citation)26 Jul 2019Orders made as a consequence of the process of costs assessment: Member Roney QC.
Notice of Appeal FiledFile Number: Appeal 9215/1928 Aug 2019Application from decision of Member Roney QC made on 26 July 2019 and the Orders made on 6 September 2018 and 26 November 2018.
Appeal Determined (QCA)[2019] QCA 26722 Nov 2019Applications for an extension of time within which to apply for leave to appeal; applications dismissed: Sofronoff P.
Appeal Determined (QCA)[2019] QCA 29613 Dec 2019Appeal costs judgment: Sofronoff P.
Special Leave Refused (HCA)[2020] HCASL 9116 Apr 2020Special leave refused: Keane and Edelman JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Arila Lodge [2016] QBCCM Cmr 563
1 citation
Jump To
Cite 1 - [2016] QBCCM Cmr 563
Arila Lodge [2016] QBCCM Cmr 562
1 citation
Jump To
Cite 1 - [2016] QBCCM Cmr 562
Autodesk Inc v Dyason (1993) 176 CLR 300
2 citations
Jump To
Cite 1 - (1993) 176 CLR 300
Cite 2 - (1993) 176 CLR 300
Coulton v Holcombe (1986) 162 CLR 1
1 citation
Jump To
Cite 1 - (1986) 162 CLR 1
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
3 citations
Jump To
Cite 1 - (2005) 223 CLR 1
Cite 2 - (2005) 223 CLR 1
Cite 3 - (2005) 223 CLR 1
Keswick Developments Pty Ltd v Keswick Island Pty Ltd[2012] 2 Qd R 114; [2011] QCA 379
2 citations
Jump To
Cite 1 - [2012] 2 Qd R 114
Cite 2 - [2012] 2 Qd R 114
Mango Boulevard Pty Ltd v Spencer [2010] QCA 207
2 citations
Jump To
Cite 1 - [2010] QCA 207
Cite 2 - [2010] QCA 207
Smith v Smith [1925] 2 KB 144
1 citation
Jump To
Cite 1 - [1925] 2 KB 144
University of Wollongong v Metwally (1985) 59 ALJR 481
1 citation
Jump To
Cite 1 - (1985) 59 ALJR 481

Cases Citing

Case NameFull CitationFrequency
Reef Terraces (Two) CTS 18180 v The Body Corporate for Reef Terraces CTS 888 [2023] QCAT 3262 citations
Thompson v Body Corporate for Arila Lodge [2018] QCATA 1331 citation
Thompson v Body Corporate for Arila Lodge [2019] QCA 2673 citations
Thompson v Body Corporate for Arila Lodge [2019] QCA 2961 citation
1

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