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Mantle & Anor v The Body Corporate for Coronation Gardens[2019] QCATA 17

Mantle & Anor v The Body Corporate for Coronation Gardens[2019] QCATA 17

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Mantle & Anor v The Body Corporate for Coronation Gardens [2019] QCATA 17

PARTIES:

SUE MANTLE

and

ROGER MANTLE

(appellants)

 

v

 

THE BODY CORPORATE FOR CORONATION GARDENS CTS 24610

(respondent)

APPLICATION NO/S:

APL106-18

ORIGINATING APPLICATION NO/S:

APL1087-2017

MATTER TYPE:

Appeals

DELIVERED ON:

19 February 2019

HEARING DATE:

11 February 2019

HEARD AT:

Brisbane

DECISION OF:

Member Roney QC

ORDERS:

The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where s 289(2) of the Body Corporate Community Management Act 1997 (Qld) allows a person aggrieved by an Adjudicator‘s order to appeal on a question of law to the Queensland Civil and Administrative Tribunal – what is error of law – whether there was an error of law

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL –

BYLAWS – whether committee acted reasonably in denying lot owner’s application – whether body corporate acted reasonably in seeking enforcement of contravention notice concerning non compliant painting of premises

Body Corporate Community Management Act 1997 (Qld), s 276, s 289, s 290, s 559, s 168, s 169, s 182-188

Ainsworth & Ors v Albrecht & Anor (2016) 261 CLR 167; [2016] HCA 40

 

Albrecht v Ainsworth & Ors [2015] QCA 220
 

Commonwealth Bank of Australia v HREOC [1997] FCA 1311; (1997) 150 ALR 1

APPEARANCES & REPRESENTATION:

Appellants:

Self-represented

Respondent:

Pamela Whitcombe, Ronald Griffiths and Nicole Pearson

REASONS FOR DECISION

Background

  1. [1]
    The Appellants are owners of lot 50 (Unit 40) at Coronation Gardens at Paradise Springs Avenue Robina on the Gold Coast. In 2016 they had the exterior of their Unit repainted to colours of their own choosing. The colours they chose are conservative and sympathetic to the colours used on adjoining and other units in the complex. They were not, however, the colours which the Body Corporate had determined were to be applied to all of the residences in the complex and they were not precisely the same colours in some respects as appeared on trim and other features of other residences in the complex, which had adopted the colours which the Body Corporate had determined were to be applied to all of the residences in the complex. It would seem to be a case which proves Plato’s proposition that beauty lies in the eyes of the beholder.
  2. [2]
    By-Law 20.1 for the scheme states that ‘No person is to ... undertake any ... painting ... on any Lot unless that ... undertaking is first approved in writing by the Body Corporate.’
  1. [3]
    The approved colours which the Body Corporate had specified at Coronation Gardens for external areas of private residential lots such as the Appellants’ were two colours that must be used in combination: a lighter cream colour for the main surfaces and a contrasting darker mustard colour on areas such as pillars, cross beams and trims. The approved products are either Taubmans / Dulux ‘Gold Karat’ (lighter) and ‘Cloudy Amber’ (darker) or Rockcote ‘Aramec Armour’ (lighter) and ‘Mustard Magic’ (darker). The Appellants did not use the specified darker mustard colour on the pillars, cross beams and trims, but which are relatively minor trim detail having regard to the totality of the external area of the Unit. In argument, before me, by reference to colour photographs it was broadly possible to identify these areas where the pillars crossbeams and trims had not been painted in the approved colours. In the overall scheme of things they are relatively small areas and would take little by way of effort or expense to repaint. I was told that the cost of the entire repainting exercise which involved a substantially larger area, was the sum of $8,000.00. In the Appellants’ submissions of 8 May 2018 the assertion is made that the Appellants believed they had received verbal approval to paint in their chosen colours and would not have proceeded without that approval, and that to rectify and remediate as required by the Body Corporate would involve a substantial amount of money and time. When challenged on that proposition the Appellants were unprepared to commit to its accuracy, instead suggesting that the real issue was one of principle, rather than cost or effort.
  1. [4]
    When the Appellants decided that they wished to paint their lot exterior in June 2016, they wrote to the Body Corporate manager proposing to undertake that work, asserting incorrectly that the by-laws provided that ‘all external painting is to be carried out by the Body Corporate’, asking about the next appropriate steps, and proposing to paint in one of two named colours (neither of which was an approved colour).
  2. [5]
    By letter dated 8 June 216, the Body Corporate manager replied to the Appellants’ letter, noting that it was not the Body Corporate’s responsibility to carry out painting of the lots. It also stated:

Your request to change the colour of your unit will need to be considered by the Committee of the Body Corporate. In addition, should the change of colour in your lot change the aesthetics of the scheme in general, your request will need to be put forward to a General Meeting for consideration of all owners. I suggest that initially you submit your proposal in as much detail as possible (including quotes, colour swatches, and any additional information) to the Committee via our office.

  1. [6]
    The Appellants informed  the committee that  they would  attend  the meeting  on  21 June 2016 and under cover of an undated letter they submitted further written specifications for the proposed works. The Appellants wrote indicating that:

…we have modified our choice of colour to be more in keeping with the current colour scheme of the complex. We notice that many different shades of colour already exist throughout the units What we are proposing is to paint the walls in colorbond classic cream and the trim in colorbond paperback, (swatches attached).

  1. [7]
    The committee meeting was then held and the minutes of the meeting record that five committee members attended and two others voted by proxy. The minutes also record that the Appellants attended as observers. The minutes record:

Resolved that the owners of [lot 50] be authorised to undertake the proposed maintenance / improvements to their lot as tabled at the meeting and summarised below:

  • Painting – Approved to paint in existing colours
  • Repairs to pergola approved as proposed ...
  • Deck approved as proposed
  • 7 Yes 0 No 0 Abstain Carried
  1. [8]
    The Appellants believed that they were given verbal approval at the meeting to repaint all of the proposed areas in the ‘Gold Karat’ colour. They also say they were told that they would have written confirmation of that approval within a week. The Adjudicator did not so find, on the evidence. After the committee meeting, and before any written approval regarding repainting was issued, the Appellants repainted their lot exterior in what they say was the approved (‘Gold Karat’) colour, including the areas such as pillars, cross beams and trims.
  1. [9]
    On 22 September 2016, 1 December 2016 and 9 January 2017, the Body Corporate requested the Appellants to repaint the pillars, cross beam and trims in one of the approved colours. The requests were not complied with, and on 9 May 2017 the Body Corporate issued a Notice of continuing contravention of a body corporate by-law.
  2. [10]
    The contravention notice set out the text of by-law 20.1 and the grounds for the alleged contravention, namely that the pillars, cross beam and trims were painted in a colour that was not approved in writing by the Body Corporate. It also requested remediation, by repainting those surfaces in an approved colour. The Appellants did not carry out the requested remediation, and the dispute found its way to this Office for resolution.
  3. [11]
    As the Adjudicator properly held, by s 59 of the Body Corporate Community ManagementAct1997 (Qld) (the Act), the community management statement (CMS) for a community titles scheme is binding on each member of a body corporate. Further, sections 168 and 169 of the Act provide that by-laws are provisions that appear in a CMS and provide for, among other things, regulations applying to the use and enjoyment of lots included in the scheme. Section 94 of the Act imposes a duty on a body corporate to enforce the CMS. Sections 182 to 188 of the Act set out the process for pursuing an alleged by-law breach which was invoked here.
  4. [12]
    The Body Corporate had sought an order from an Adjudicator in the following terms:

That the Owners of Lot 50 (unit 40) be ordered to comply with the BCCM Form 10 dated 9 May 2017 and cease the contravention by attending to the repainting of the recently painted pillars, cross beam and trims of Lot 50 (unit 40) facing Paradise Springs Avenue in the approved colours of the Body Corporate, being either Taubmans/Dulux Cloudy Amber or Rockcote Mustard Magic.

  1. [13]
    The grounds for the order sought were that the owners of lot 50, the Appellants, are said to have contravened the scheme’s by-law 20.1, by undertaking painting work without approval in writing from the Body Corporate. Their appeal here is from the decision dated 27 March 2018, that within 30 days of the order, the present Appellants comply with a remediation request the subject of, and in the terms required by, BCCM Form 10 dated 9 May 2017, or otherwise take steps as approved by the Body Corporate.
  2. [14]
    The Adjudicator held as follows in relation to the issue of consent:

Was verbal approval given for the painting?

  1. [56]
    The minutes of the meeting record that the approval given was to paint in the ‘existing colours’, which were the approved combination of a lighter and darker tone.
  1. [57]
    The four committee members who were present at the meeting say that verbal approval was not given to paint the pillars, cross beam and trim in the ‘Gold Karat’ colour, and that the meeting minutes accurately record a decision to approve repainting in the ‘existing colours’.
  1. [58]
    The respondents say that verbal approval was given to paint in only the ‘Gold Karat’ colour.
  1. [59]
    There is no material before me upon which I could reasonably find that any of the witnesses is unreliable. I do not consider that it ultimately determines the  truth  of  the  matter  to  say  that  more  witnesses  prefer one version of events than another.
  1. [60]
    I do consider it significant that there is a contemporaneous written record of the purported committee decision, being the meeting minutes. I note also that the motion is recorded as passed by all seven votes in favour of painting in existing colours. I consider it is unlikely that the minutes would record that the decision was an approval to repaint in the existing colours if that were not the intended resolution of the committee.
  1. [61]
    In any event, in light of the foregoing, I am not satisfied on the balance of probabilities that the respondents were in fact given verbal approval by the committee to paint only in the GoldKarat’ colour.
  1. [62]
    For reasons discussed below, I do not consider that it is ultimately relevant to my determination of this matter whether the respondents were told at the committee meeting that they would receive written confirmation of their verbal approval within a week of the meeting. However, in case it becomes relevant, I am not satisfied on the balance of probabilities that the respondents were told that they would receive written confirmation of approval to repaint (in whatever terms) within a week.
  1. [15]
    The Adjudicator held as follows in relation to the issue of whether the committee was acting unreasonably:
  1. [63]
    Having decided that I am not satisfied that the respondents were given verbal approval to paint in only one colour, there are relevantly two steps in this dispute that are subject to the ‘reasonableness’ requirement. The first was by the committee making a decision to not approve the respondents’ application to paint the relevant parts of their lot in a single colour. The second was by the Body Corporate seeking to compel the respondent to remediate the painting.
  1. [64]
    There is material before me that there are some inconsistencies in the eternal painting of various lots. However, the inconsistencies appear to be relatively minor, and what are said by the respondents to be the inconsistent cases are still consistent with a cream and mustard colour scheme. From the evidence of the applicant and submissions in support of the respondent, many of the inconsistencies would likely be referrable to a slight difference between the two manufacturer’s rendering of the original scheme colours and fading and deterioration over time.
  1. [65]
    I am not satisfied that the committee’s decision was arbitrary or capricious, or that the committee approved or knowingly ignored to a substantial degree painting in unapproved colours by other lot owners. Further, I am not satisfied that the committee’s decision unduly discriminated against the respondents, or was otherwise not made in good faith. I note that:
  1. On the applicant’s own evidence, committee members were sympathetic to the respondents’ dislike of the darker colour and have been complimentary of the respondents’ efforts to improve their lot.
  1. The committee approved the respondents’ two other proposals for lot improvements and maintenance.
  1. In my view, the respondents’ proposed darker colour is similar to but noticeably different from the approved darker colours. Evidently, the respondents hold that view, too.
  1. The committee decision is consistent with a scheme by-law that written committee approval is required for repainting, and a policy to maintain visual consistency of lot exteriors.
  1. It is reasonable for the applicant to require a significant degree of uniformity in things such as paint colours, as the visual amenity of the scheme, and hence the values of the individual lots, depends in significant part on it. This also is consistent with practices in other schemes.
  1. [66]
    In light of the forgoing, I am not satisfied that it was unreasonable for the committee to decide to deny approval for the respondents to paint all of their external surfaces in only the lighter colour.
  1. [67]
    The question remains whether it is unreasonable for the Body Corporate to insist on strict compliance with the by-law, now that the painting has been done. It could for example retrospectively authorise it. There is no dispute that the respondents properly sought permission to repaint, and their proposal received approval in part. There does not seem to be any dispute that the authorised and unauthorised painting was done to a good standard. Other submissions compliment the respondents on their improvements to the lot.
  1. [68]
    One might argue that, if some committee members themselves agree with the respondents that the darker colour is unattractive, it is unreasonable to insist on it being used. However, it is not for members of the committee, acting ad hoc, to approve non-compliance with by-laws and other accepted standards (such as colour schemes) simply on the basis they also do not like them – that would  disregard  the  rights  and  expectations  of  other  lot  owners,  to whom the committee also owes a duty to act reasonably.
  1. [69]
    One can point to matters of principle and common experience to support the general argument for strict enforcement of the by-laws concerning the requirement for prior approval. Firstly, a body corporate has a statutory obligation to enforce by-laws. Secondly, in a relatively large scheme such as Coronation Gardens, a failure by the Body Corporate to apply by-laws reasonably strictly, especially those dealing with the external appearance of private lots, could conceivably lead to arguments to the effect that the Body Corporate was discriminatory in enforcement. Further, if that were true, it would be a basis for lot owners to resist complying with the Body Corporate’s other efforts to enforce by-laws.
  1. [70]
    In light of the foregoing, I am not persuaded that the Body Corporate’s decision to seek orders for compliance with the Contravention Notice was unreasonable.
  1. [16]
    In discussing the test for reasonableness the Adjudicator stated that the test was not whether the decision of the Body Corporate was ‘correct’ but rather whether it was objectively reasonable. For that proposition reference was made to Commonwealth Bank of Australia v HREOC [1997] FCA 1311 ; (1997) 150 ALR 1, pp 34, 38. It wassaid that the test was considered by the Queensland Court of Appeal in Albrecht v Ainsworth & Ors [2015] QCA 220 and that:

…although that decision was overturned by the High Court in Ainsworth & Ors v Albrecht & Anor [2016] HCA 40, the High Court’s decision did not disturb the Court of Appeal’s decision in regard to the test for reasonableness in regard to the decision of a body corporate.

  1. [17]
    I do not agree that the Court of Appeal postulated such a test nor that is was untouched by the High Court. That case concerned the reasonableness of a Body Corporate voting in general meeting. It was not about the decisions of committees about enforcing bylaws. The Court of Appeal said:

...the obligation on bodies corporate in carrying out their general functions to act reasonably under s 94 BCCM Act, was to determine whether she was satisfied the body corporate did not pass the applicant’s motion because of opposition from the respondents that was in the circumstances unreasonable. This was a question of fact to be determined by objectively considering all relevant circumstances: Commonwealth Bank v Human Rights and Equal Opportunity Commission. What is relevant in determining reasonableness (or unreasonableness) will vary from case to case, depending on the issues raised and the relevant material: Waters v Public Transport Corporation. Contrary to the respondents’ contentions, the adjudicator was not limited to determining whether the respondents’ opposition to the motion could have been reasonably held. She was required to reach her own conclusion after considering all relevant matters.

  1. [18]
    In the judgement of the majority in the High Court in Ainsworth & Ors v Albrecht & Anor (2016) 261 CLR 167, what was said at [51]-[53] was as follows:

The reliance by the Court of Appeal and by the first respondent in this Court upon the judgments in Waters v Public Transport Corporation was misplaced. That case was concerned with the duty of a decision-making body to reach a reasonable decision taking into account competing considerations. A lot owner voting his or her opposition to a motion is not a decision-maker of this kind. The adjudicator's task under Item 10 of Sched 5 is not to determine whether the outcome of the vote of the general meeting of the Body Corporate was a reasonable balancing of competing considerations, but whether the opposition of lot owners to the proposal was unreasonable. Given that the adjudicator's concern with s 94(2) led her to address the wrong question, namely whether the Body Corporate's decision was reasonable, her ultimate conclusion was inevitably affected by an error of law. The same error infected the approach of the Court of Appeal. Once the Court of Appeal accepted, as it did, that the grounds of opposition to the proposal considered by the adjudicator raised questions in respect of which reasonable minds may differ as to the answer, it is impossible to see how opposition to the first respondent's proposal based on those grounds could be found to be unreasonable. (emphasis added)

  1. [19]
    That conclusion by the High Court serves to emphasise that the test for unreasonableness is not whether someone objectively considered all relevant circumstances, except perhaps in the context of there being a duty on a decision- making body to reach a reasonable decision taking into account competing considerations. Moreover committees, like bodies corporates, generally have their own interests to consider and that informs the way in which their decisions are to be

viewed in terms of their reasonableness. It is timely to note that as the High Court has said, the question is whether conduct of a body corporate is objectively unreasonable, not whether an adjudicator is satisfied it is reasonable.

  1. [20]
    Hence as the majority the High Court said in Ainsworth at [55]:

It is no light thing to conclude that opposition by a lot owner to a resolution is unreasonable where adoption of the resolution will have the effect of: appropriating part of the common property to the exclusive use of the owner of another lot, for no return to the body corporate or the other lot owners; altering the features of the common property which it exhibited at the time an objecting lot owner acquired his or her lot; and potentially creating a risk of interference with the tranquillity or privacy of an objecting lot owner. In the circumstances of the case, the Tribunal was correct to hold that the adjudicator erred in law in reaching that conclusion; and the Court of Appeal erred in concluding otherwise.

  1. [21]
    The ultimate finding of the Adjudicator was as follows:
  1. [74]
    This is an unfortunate dispute. I note that there is no material before me to suggest that the respondents acted under anything but an honest mistaken belief that they had received approval to do what they did. Having then acted upon that honest belief, at some  effort  and  expense,  it  is  not  surprising  that  they resisted the remediation requests.
  1. [75]
    Membership of a community titles scheme comes with both benefits and burdens. One of the burdens is the obligation to comply with by-laws. One of the benefits is that other members also must comply.
  1. [76]
    In the circumstances, I consider that it is just and equitable to make an order to the effect that the respondents remediate the painting of the exterior of their lot in the manner sought. I have also left open the opportunity for some other acceptable compromise to be reached.
  1. [22]
    The decision of the Adjudicator was given under s 276 of the act. Section 276 provides as follows:

276 Orders of adjudicators

  1. (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
  2. (b)
    the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or
  3. (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
  2. (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
  2. (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
  2. (b)
    must not include matters that are inconsistent with this Act or another Act.
  1. [23]
    The appeal to this Tribunal is governed by s 289 of the Act, which provides:

289 Right to appeal to appeal tribunal

  1. (1)
    This section applies if—
  1. (a)
    an application is made under this chapter; and
  2. (b)
    an adjudicator makes an order for the application (other than a consent order); and
  3. (c)
    a person (the aggrieved person) is aggrieved by the order; and
  4. (d)
    the aggrieved person is—
  1. (i)
    for an order that is a decision mentioned in section 288A, definition order—an applicant; or
  2. (ii)
    for another order—
  1. (A)
    an applicant; or
  2. (B)
    a respondent to the application; or
  3. (C)
    the body corporate for the community titles scheme; or
  4. (D)
    a person who, on an invitation under section 243 or 271(1)(c), made a submission about the application; or
  5. (E)
    an affected person for an application mentioned in section 243A; or
  6. (F)
    a person not otherwise mentioned in this subparagraph against whom the order is made.
  1. (2)
    The aggrieved person may appeal to the appeal tribunal, but only on a question of law.
  1. [24]
    Section 290 of the Act provides:

290 Appeal

  1. (1)
    An appeal to the appeal tribunal must be started within 6 weeks after the aggrieved person receives a copy of the order appealed against.
  1. (2)
    If requested by the principal registrar, the commissioner must send to the principal registrar copies of each of the following—
  1. (a)
    the application for which the adjudicator's order was made;
  2. (b)
    the adjudicator's order;
  3. (c)
    the adjudicator's reasons;
  4. (d)
    other materials in the adjudicator's possession relevant to the order.
  1. (3)
    When the appeal is finished, the principal registrar must send to the commissioner a copy of any decision or order of the appeal tribunal.
  1. (4)
    The commissioner must forward to the adjudicator all material the adjudicator needs to take any further action for the application, having regard to the decision or order of the appeal tribunal.
  1. [25]
    Section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides:

146 Deciding appeal on question of law only

In deciding an appeal against a decision on a question of law only, the appeal tribunal may—

  1. (a)
    confirm or amend the decision; or
  2. (b)
    set aside the decision and substitute its own decision; or
  3. (c)
    set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration—
  4. (i)
    with or without the hearing of additional evidence as directed by the appeal tribunal; and
  5. (ii)
    with the other directions the appeal tribunal considers appropriate; or
  6. (d)
    make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c)
  1. [26]
    Hence, pursuant to s 146, in deciding an appeal against a decision on a question of law, the Appeal Tribunal is not engaged in a rehearing of the matter.
  2. [27]
    The specified grounds for seeking to appeal the Adjudicator’s order is set out in a lengthy document which is annexed to the application to review the decision. The annexure identifies correctly that the Appellants may only appeal on a question of law and identified that the two grounds of appeal were that:
  1. (a)
    The Adjudicator erred in its [sic] decision that they were not given verbal approval to paint the exterior surfaces in a lighter colour; and
  2. (b)
    The Adjudicator erred in its decision that the body corporate committee was not unreasonable to strictly comply with the by-law to repaint.
  1. [28]
    The first ground seeks to mount an attack upon the Adjudicator’s acceptance of evidence as contained in part in statutory declarations by committee members, but also of other objective evidence consistent with that testimony, that the appellants were not given verbal approval to paint the exterior services in a lighter colour, or in colours different from those which were the approved colours.
  2. [29]
    In their contentions in support of the first ground, the Appellants submit that they informed the Body Corporate committee that they proposed to paint the walls and the trim of their lot in a ‘choice of colour to be keeping with the current colour scheme of the complex’. They maintain the position in argument before me, that this request was in essence a request for them to paint in any colour they choose if they themselves thought it was in keeping with the colour scheme of the complex, rather than identifying that the colours to be chosen were in fact those which were the prescribed colours.
  3. [30]
    It is clear from the nature of the language used by the Appellants in seeking that approval, and the response from the Body Corporate which in terms indicated the committee provided its consent for the appellants to repaint the exterior ‘using the same paint colour as the existing’ and going on to describe the precise colours which were required to be used, that whilst the Appellants may have believed that they communicated that they would to be permitted to pain in a colour of their choice, the response clearly understood that they would be painting in the approved colours specifically identified.
  4. [31]
    In the reasons, the Adjudicator clearly gave proper and due consideration to all of the evidence about what in fact had occurred at the committee meeting and whether verbal approval had been given for alternative paint colours to be used, and concluded on that evidence that the Adjudicator was not satisfied that the respondents had been given verbal approval by the committee to paint in the alternate colours. The Adjudicator also concluded that it was not ultimately relevant to the question whether they were told they would get a written confirmation of the verbal approval but in any event concluded that one could not be satisfied on the balance of probabilities that the respondents were told that they would receive that confirmation.
  5. [32]
    It was submitted before to the Adjudicator and on this appeal that there were some inconsistencies in terms of whether every other villa in the scheme was painted in precisely the same colours as appeared in the approved scheme. The Adjudicator was entitled to conclude, as indeed was concluded, that these inconsistencies were relatively minor and broadly the colours used were still consistent with the approved colour scheme.
  6. [33]
    No serious attempt was made to articulate how it was that the making of these findings of fact on the evidence by the Adjudicator involved an error of law, or identified what that error of law was. In essence, the challenge to the findings was to suggest that the Appellants’ evidence on various aspects of the issues in dispute which was not preferred by the Adjudicator, ought to have been preferred. There was clearly

evidence before the Adjudicator that was preferred over that of the Appellants’, which founded the Adjudicators’ decision, and there was no error of law involved in treating the evidence in the way it was treated in this case.

  1. [34]
    The second ground of appeal concerns whether the decision of the Body Corporate to strictly comply with the by-laws was unreasonable.
  2. [35]
    I have already set out the Adjudicator’s reasoning in arriving at the conclusion that it was not shown to be unreasonable. The Appellants argued that the decision was unreasonable because:
  1. (a)
    They had been given verbal approval to paint in colours of their choice;
  2. (b)
    Many different shades of colour already existed in the complex and the Appellants had drawn that that to the attention to the Body Corporate when they wrote seeking approval;
  3. (c)
    The committee had provided the Appellants with a list of existing colours in the scheme from which they were free to choose and they were not required to use the darker colours if they chose not to;
  4. (d)
    They would be prejudiced if the decision of the Body Corporate was given effect to;
  5. (e)
    There were examples of other lot owners generally not being ordered to rectify alterations where there was no prior written consent from the Body Corporate; and
  6. (f)
    There would be costs to rectify and remediate the existing painted areas if the order stood.
  1. [36]
    Many of these submissions are founded upon a factual basis which was contrary to the findings made by the Adjudicator, or seek to place a different complexion upon the facts from those upon which the Adjudicator proceeded.
  2. [37]
    The Adjudicator gave proper consideration to the arguments about unreasonableness, but in the end the Adjudicator placed precedence on the duty of the Body Corporate to enforce its by-laws, and particularly by-laws which dealt with the external appearance of private lots with a function of achieving consistency, and avoiding arguments within the Body Corporate about whether some owners were perceived to have been given advantages over others.
  3. [38]
    In submissions before me, the secretary of the Body Corporate contended that the reason why the Body Corporate here was insisting on compliance with the approved colour scheme and requiring repainting of the affected areas was because it saw the importance of achieving consistency in the colour scheme throughout the site. Views may differ as to whether such consistency is necessary, however it is another thing to say that requiring consistency is unreasonable. It is yet another thing to suggest that enforcing a by-law by requiring compliance with the scheme is unreasonable.
  4. [39]
    I have already indicated earlier in these reasons that there is no substance to the suggestion that a requirement to rectify and remediate the non-conforming areas would involve any substantial amount of money, or the expenditure of time.
  1. [40]
    In my view, the Adjudicator made no error of law in concluding that the decision to seek orders for compliance with the contravention notice was not unreasonable, or rather that it could not be concluded that that decision was unreasonable.
  2. [41]
    It follows, that in my view, none of the grounds of appeal is made out.
  3. [42]
    Accordingly, the appeal is dismissed.
Close

Editorial Notes

  • Published Case Name:

    Sue & Roger Mantle v The Body Corporate for Coronation Gardens CTS 24610

  • Shortened Case Name:

    Mantle & Anor v The Body Corporate for Coronation Gardens

  • MNC:

    [2019] QCATA 17

  • Court:

    QCATA

  • Judge(s):

    Member Roney QC

  • Date:

    19 Feb 2019

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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