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Clarke v Body Corporate for Turner Park Shopping Village[2019] QCATA 51

Clarke v Body Corporate for Turner Park Shopping Village[2019] QCATA 51

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Clarke & Anor v Body Corporate for Turner Park Shopping Village CTS [2019] QCATA 51

PARTIES:

GERRY CLARKE

NEVEKA GOLC-CLARKE

(appellants)

 

v

 

BODY CORPORATE FOR TURNER PARK SHOPPING VILLAGE CTS 15822

(respondent)

APPLICATION NO/S:

APL338-16

MATTER TYPE:

Appeals

DELIVERED ON:

12 April 2019

HEARING DATE:

15 June 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie, Presiding

Senior Member Howard

ORDERS:

The appeal is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where application dismissed by BCCM Adjudicator – where appealing decision of BCCM Adjudicator – where at first instance Appeal Tribunal remitted matter back to another BCCM Adjudicator – whether second BCCM Adjudicator made an error of law – whether findings of fact supported by the evidence – whether irrelevant matters taken into account in applying test of reasonableness – whether second Adjudicator can rely upon findings of fact made by first Adjudicator – whether correct By –laws applied by second Adjudicator – whether allegation of bias properly considered

Body Corporate and Community Management Act 1997 (Qld), s 35(4), s 92 (1), s 92(2), s 92(4), s 94(1), s 94(2), s 146, s 180, s 180(5), s 180(7), s 276, s 276(1), s 276(3),  s 289, s 289(2), Schedule 5

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146, s 147

Ainsworth v Albrecht (2016) 261 CLR 167

Ainsworth v Albrecht [2015] QCA 220

Bakir v Body Corporate for Chevron Renaissance CTS 30946 & Ors [2015] QCATA 164

Bakir v Body Corporate for Chevron Renaissance CTS 30946 & Ors [2017] QCATA 12

Clarke v Turner Park Shopping Village Body Corporate [2016] QCATA 105

Ericson v Queensland Building and Construction Commission [2014] QCA 297

Harrison v Meehan [2017] QCA 315

Morales v Minister for Immigration and Multicultural Affairs (1998) FCR 374

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Mr M T De Waard, instructed by Mills Oakley

REASONS FOR DECISION

  1. [1]
    Gerry Clarke and Nevenka Golc-Clarke (‘the Clarkes’) are the owners of Lot 4 in Turner Park Shopping Village CTS 15822 (‘Turner Park’). Turner Park consists of 14 commercial lots. The Clarkes have been involved in a long-running dispute with the Body Corporate of Turner Park (‘the Body Corporate’) about signage for which they seek consent to erect at the shopping centre. 
  2. [2]
    The signage has been the subject of various applications or proposals for approval by the Clarkes. In March 2013, the first application was considered by the Committee of the Body Corporate (‘the Committee’) for permission to place signs as follows:
  1. Facia board signs on the (then new) roof structure according to a signs concept that (they allege) was already approved by the Body Corporate at the Annual General Meeting (‘AGM’) on 15 October 2012, and at the Extraordinary General Meeting (‘EGM’) on 3 December 2012;
  2. Facia board sign below the awning in front of their lot;
  3. Façade sign at the back of their lot on the east side (similar to the current sign for Lots 2 and 3);
  4. Façade sign at the back of their lot on the south side facing the laneway.[1]
  1. [3]
    The application was refused. The Clarkes requested a review, but the Committee again refused consent.
  2. [4]
    In October 2013, the Clarkes submitted a motion (the second application) at the AGM seeking an ordinary resolution of the Body Corporate for the approval of the signs for Lot 4. That motion was defeated at the 2013 AGM.
  3. [5]
    In July 2014, the Clarkes made another application to the Committee (the third application) for approval of the additional signage. The application was again rejected.
  4. [6]
    In 15 October 2014, the Clarkes lodged an application with the Office of the Commissioner for Body Corporate and Community Management (‘BCCM’) seeking orders from an Adjudicator permitting them as owners of Lot 4 to erect signs as follows:
  1. (a)
     On the corner roof structure fascia board signs appertaining to or immediately in front of their premises with the dimensions 300mm x 940 mm and 300 mm x 3760 mm;
  1. (b)
     Awning fascia board sign appertaining to or immediately in front of their premises with the dimensions 130 mm x 2400 mm;
  1. (c)
     A façade sign at the rear of their premises on the Eastern side with the dimensions 400 mm x 9200mm; and
  1. (d)
     A façade sign at the rear of their premises on the Southern side with the dimensions 400mm x 7600 mm.[2]
  1. [7]
    The Clarkes were unsuccessful in the adjudication application. They appealed the Adjudicator’s decision (the first Adjudicator’s decision) to the Appeal Tribunal in 2015 (the first appeal). That appeal was successful: the first Adjudicator’s decision was set aside and the application referred back to the Commissioner for BCCM for reconsideration.
  2. [8]
    A further decision was made by an Adjudicator on 2 September 2016 (the second Adjudicator’s decision). Again, that decision resulted in the Clarkes’ application being dismissed.
  3. [9]
    The Clarkes have again appealed to the Appeal Tribunal (the second appeal). We are constituted as the Appeal Tribunal for the second appeal.
  4. [10]
    The delay in providing our decision and reasons for it is regretted, due in part to resourcing issues and in part to an unexpected significant period of absence of a member of the Appeal Tribunal.

The appeal process

  1. [11]
    An appeal from a BCCM Adjudicator’s decision to the appeal tribunal may be made on a question of law only.[3] It is an appeal in the strict sense.[4] Therefore, the appeal tribunal does not have power to conduct a rehearing. In deciding an appeal on a question of law only, the appeal tribunal must proceed according to s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). That is, if the appeal is allowed on the basis of error of law, the appeal tribunal may only substitute its own decision if the error of law disposes of the proceeding entirely or it may do so based on the findings of fact made by the decision-maker whose decision is appealed.[5]
  2. [12]
    For the reasons later explained, the second appeal is dismissed.

The grounds of appeal

  1. [13]
    As discussed, an appeal from a BCCM Adjudicator to the appeal tribunal may be made on a question of law only. The Clarkes originally articulated seven grounds of appeal. At the oral hearing, they abandoned two of the grounds of appeal. We granted leave for the Clarkes to amend of their appeal reducing the grounds to five.
  2. [14]
    The Clarkes remaining grounds of appeal may be paraphrased and summarised as follows:
  1. The Adjudicator did not properly apply the test of reasonableness leading to incorrect interpretation of s 94(2) of the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’);
  2. The Adjudicator erred in relying on findings of fact made in Turner Park Shopping Village [2015] QBCCMCmr 167 by wrongfully holding that res judicata applied to findings of fact in that proceeding;
  3. The Adjudicator erred in relying upon By-laws that did not exist as at the date of the requests;
  4. The Adjudicator wrongfully based his decision on the applicants not occupying the lot at the time of the third request; and
  5. The Adjudicator erred by failing to take into account the Body Corporate’s bias in refusing the requests.
  1. [15]
    Each of the grounds of appeal is considered below.
  2. [16]
    It must be said that some of the Clarkes’ submissions lack clarity. However, we have made every effort to understand and address them. In this regard, we clarified with the Clarkes at the commencement of the hearing which of their submissions are relied upon by them in the appeal. The submissions filed on 31 January 2017 are relied upon, (rather than those filed on 24 January 2018).
  3. [17]
    Further, we record that since the oral hearing, we received some further submissions from the Body Corporate in response to a question at the oral hearing for clarification concerning a particular submission made. The Clarkes also then provided additional submissions in reply (although those had not been requested or directed). Subsequently, the Clarkes filed a miscellaneous application seeking a direction to the effect that they be entitled to file the submissions (that they had already provided in reply). Although we did not issue any further directions, as the Body Corporate did not object at any stage, we have considered the additional submissions.

Ground 1: Did the Adjudicator properly apply the test of reasonableness?

  1. [18]
    Despite the framing of this ground of appeal, it is tolerably clear that the Clarkes’ argument is that the Adjudicator erred in law in that he/she made findings of fact that were not available on the evidence and considered circumstances that were not relevant in applying the test.[6] These are dealt with by us in the paragraphs that follow under the headings employed by the Clarkes.
  2. [19]
    Section 94 of the BCCM Act provides that the Body Corporate for a Community Titles Scheme must administer the common property and Body Corporate assets for the benefit of owners; enforce the community management statement (including any By-laws); carry out other functions given to the Body Corporate under the BCCM Act and the community management statement: s 94(1). The Body Corporate must act reasonably in anything it does under subsection (1), including making or not making a decision for the subsection: s 94(2).[7] Generally, (the exceptions not being relevant here), a decision of the committee is a decision of the Body Corporate.[8]
  3. [20]
    It is also relevant to note that pursuant to s 276 of the BCCM Act, an Adjudicator may make an order that is just and equitable to resolve a dispute in the context of a community titles scheme, inter alia, about the exercise of rights or powers or performance of duties under the BCCM Act or the Community Management Statement.[9] This includes but is not limited to those orders set out in Schedule 5.

The concept of advertising on the corner roof structure

  1. [21]
    The second Adjudicator stated as follows:[10]

[17] The applicants’ primary argument is that the Body Corporate (including the committee) has not acted reasonably deciding their requests to install signs.

[18] It is uncontested that the applicants have requested approval to install signs on common property. The Body Corporate must administer common property for the benefit of owners and it must enforce scheme By-laws.[8] The Body Corporate must act reasonably in anything it does under section 94(1) including making a decision.[9] The committee must act reasonably making a decision.[10]

[19] What is reasonable is a question of fact to be determined by objectively considering all relevant circumstances.[11] What is relevant in determining reasonableness (or unreasonableness) will vary from case to case, depending on the issues raised in the relevant material.[12]

Footnotes:

[8] Act, s 94(1)(a) and (b).

[9] Act, s 94(2).

[10] Act, s 100(5).

[11] Albrecht v Ainsworth & Ors [2015] QCA 220 [82].

[12] Albrecht [82].

  1. [22]
    At all times, when the applications were made, including the third application in July 2014, the then By-laws provided as follows:

Section 13(c)

A proprietor or occupier of a lot shall not, except with the consent in writing of the Body Corporate, display any sign, advertisement, placard, banner, pamphlet or like matter in or about the common property provided that such request shall not be unreasonably withheld to the using or exhibiting of any advertisement or sign customary and/or incidental to the proprietor or occupiers type of business.

  1. [23]
    The Clarkes do not suggest that the test articulated by the second Adjudicator is incorrect. However, the Clarkes submit that the second adjudicator did not properly apply the test of reasonableness for several reasons.
  2. [24]
    Firstly, they argue the second Adjudicator incorrectly found that there was no Body Corporate resolution deciding to allow or approve signs on the structure. They refer to the statement in paragraph [25.2] in the reasons for decision as follows:

…In these circumstances, there is no evidence the Body Corporate had formulated a view about signage on either structure. Therefore, the committee’s consideration of the request was not subject to a body corporate decision. There is nothing to suggest the committee formed a view contrary to a lawful body corporate decision.[11]

  1. [25]
    In making this finding, the Adjudicator relied upon statements in the AGM 2012 decision and the EGM 2012 decision, regarding the acceptance of the motion for building the corner roof structure. The Clarkes’ shop is situated on one of the two corners affected by the roof structure. They point out that the quote for the construction works for the roof structure explicitly mentions signage, referring to it being able to accommodate signage.[12] They submit that this means that because the signage was an integral part of the structure accepted by the Body Corporate, that the second Adjudicator was wrong in concluding as follows:

… it is significant that there is nothing in the minutes of the above meetings that establishes the Body Corporate considered or approved, in a way contemplated by the Act, a relevant advertising practice or policy that the committee was bound to put into effect. Moreover, the body corporate did not decide that a purpose of a structure was to enable advertising signage for a lot.[13]

  1. [26]
    The Clarkes have directed our attention to a variety of correspondence which, in effect, they contend, demonstrates that the second Adjudicator’s finding is incorrect.
  2. [27]
    Irrespective that the quote and plan referred to the structure being able to accommodate the signage, the documents do not suggest that a decision was made to allow signage as the Clarkes suggest. The relevant (amended) Motion,[14] does not seek approval for or refer to signage, (notwithstanding that the explanatory note contained in the text that follows refers to previous discussions about signage and incorporates what are described as ‘signage ideas’). The minutes of the 2012 AGM,[15] record that by a majority decision, the Body Corporate resolved to approve ‘a flat roof five sided structure’ in accordance with schedules provided.[16] This does not suggest or indicate any explicit or implied approval that future proposals or motions for signage on the structure will be approved, notwithstanding that it could potentially be accommodated.
  3. [28]
    The minutes of the 2012 EGM,[17] confirm that the Body Corporate accepted a particular quote for the construction of the ‘two roof structures above the sitting areas at the complex’.[18] Although the quote refers to construction that would accommodate signage, signage was not the subject of the motion or approval decision. There is no basis on which to read the approval in the manner contended for by the Clarkes, (that is, that acceptance of the quote included acceptance of the ‘contents’ of the quote as they related to signage).
  4. [29]
    Accordingly, the relevant findings of fact made by the Adjudicator were open on the evidence.

The ‘wants’

  1. [30]
    Secondly, under this ground of appeal, the Clarkes contend that the second Adjudicator erred in considering it relevant whether at the relevant time other lot owners wanted signage on the fascia board.[19] They argue that there is no evidence that others have said they do not want signs. They submit that the absence of other applications, or installation by others of such signage does not support the Adjudicator’s finding that the ‘evidence shows that only the applicants from Lot 4 want signage on the fascia board’.
  2. [31]
    They appear to submit that whether or not others wanted signs was irrelevant, and, also that in considering this, the second Adjudicator impermissibly had regard to an irrelevant matter in determining whether their application for signs was unreasonably rejected by the Body Corporate. Further, they contend that the Adjudicator made an error of logic in referring to this matter.[20] Finally, they contend that there is evidence to suggest that the tenant in Lot 5 wished to advertise on the corner structure.
  3. [32]
    The second Adjudicator concluded that the evidence does not suggest the Body Corporate acted inconsistently in refusing the Clarkes’ application. In relation to the tenant in Lot 5, in email correspondence, the tenant suggests that she is concerned about the potential for other signage on the premises to mislead, noting that when the tenants moved in they were told signage on the awning was not allowed as it was common property.[21] She asks whether this has changed.
  4. [33]
    In relation to the issues raised here, it is sufficiently clear that there had not been other relevant applications for approval of signage. To the extent that it is relevant, the email from Lot 5’s tenant suggests the Body Corporate discouraged applications for signage on the awning on the basis that it was not generally allowed. Each application must be considered on its merits, but that aside, the impression given to the tenant is consistent with the rejection of the Clarkes’ proposal. This suggests consistency of approach which supports the finding that the Body Corporate did not act unreasonably.
  5. [34]
    We do not accept the argued error of logic emerges from the second Adjudicator’s reasons for decision. The email from the tenant in Lot 5 expresses concern that advertising may be placed, rather than seeking approval for advertising. We reject the Clarkes’ arguments. The Adjudicator was entitled to consider it was relevant whether others had sought approval for fascia board signs, concluding that as they had not, that therefore, other lot owners did not want fascia board signs and that there had been no inconsistency in decision-making.

The ‘package’

  1. [35]
    Thirdly, the Clarkes submit that the Adjudicator erred in considering the signs as a package of signs. They submit that this course was also taken by the Body Corporate and goes to whether or not it acted reasonably in rejecting the applications for the signage.
  2. [36]
    They submit that whether permission should be given for any or all of the signs involves considering them individually. In this regard, they note that they presented the second Adjudicator with evidence that they had offered an alternative to the Body Corporate of significantly smaller signs in order to resolve the matter.[22] The Body Corporate’s failure to accept that proposal, they say, demonstrates that the Body Corporate’s refusal does not relate to the packaging, as this would have ensured that the amount of signage was under 6m2 (an allocation contended for by the Body Corporate, but with which the Clarkes take issue).
  3. [37]
    They submit that the Adjudicator’s failure to consider this issue is an error in taking into account all relevant considerations. Further, they say that the Adjudicator did not take into account other evidence about the signage calculations for each of the lot owners.[23]
  4. [38]
    The Clarkes proposal was for 4 signs. They do not suggest that they proposed them in the alternative. They were presented as a package. The second Adjudicator was not in error about this. The Adjudicator did not ‘hint’ at possible bias as they allege in noting the Beerwah Electronics signage at the rear: rather it was an acknowledgement that prima facie this may appear to indicate inconsistency by the Body Corporate. The second Adjudicator then went on to explain why he/she was satisfied that it did not do so.[24]

The exclusivity

  1. [39]
    Fourthly, the Clarkes submit that the second Adjudicator erred in equating their application with an application for exclusive use rights over common property.[25] They submit that the second Adjudicator confused the exclusive usage of common property with exclusive usage of their own property, that is, the signs.[26] By way of explanation, they assert that the signs do not become property of the Body Corporate.
  2. [40]
    The Clarkes’ argument is not borne out by the second Adjudicator’s statements. The Adjudicator said in respect of their submission, that (although there had been no fascia board signs since 2010), in 1996 the original owner had given them permission to install a particular sign, as follows:[27]

The original owner may have approved a sign to be installed on common property. However, there is no evidence the applicants have a legal right to use and enjoy common property for an indefinite period through, for example, an exclusive use By-law or a lease. Therefore, a prior approval does not, in and of itself, limit the Body Corporate’s powers about administering the signs on common property. Nor does it obligate the Body Corporate to, in perpetuity, allow a sign in a previously approved location. In these circumstances, an owner cannot expect to have a perpetual right to use common property to the exclusion of another owner or occupier. The owner’s continuing right is subject to ongoing review by the Body Corporate.

  1. [41]
    The second Adjudicator found that the previous approval for signs to be installed on common property does not confer binding rights henceforth to place signs in accordance with the approval. In explaining why this was so, the second Adjudicator distinguished between the approval given for signs to be installed on common property from exclusive use of common property. There is no suggestion by the second Adjudicator that the signs themselves became common property. The comments made concern the approval to use (that is, by placing signs on) common property.
  2. [42]
    Also, the second Adjudicator considered that the Clarke’s application in effect sought a right for Lot 4 to use common property, (for purposes of displaying signage) for an indefinite period and which attached to Lot 4, which he/she described observed would be akin to seeking approval for exclusive use for Lot 4.[28] The Clarkes say that the Adjudicator drew an incorrect inference from the evidence because they did not apply for exclusive use of common property.

We do not accept that the Adjudicator incorrectly understood the Clarkes’ application to be an application for exclusive use in order to have the signs approved. The Adjudicator did no more than explain the effect of the submissions made by the Clarkes.

Other

  1. [43]
    The second Adjudicator is said to have erred, it seems for noting that the Clarkes’ first request recognised that ‘the installation of signs was regulated by a scheme By-law and at the discretion of the Body Corporate’.[29] The Clarkes suggest that this statement means the Adjudicator misread their request seeking confirmation of approval for their signs under the By-laws, because there was no absolute discretion or absolute power of the Body Corporate referred to: it was obliged to act reasonably. They submit this amounts to the drawing of an incorrect inference.
  2. [44]
    We disagree. The second Adjudicator’s statement is to the effect that the Clarkes’ request was an acknowledgment that placement of the signs required approval under the By-laws. Absolute discretion and power are not mentioned, nor is there any suggestion that s 94(2) of the BCCM Act does not apply.

Was the Adjudicator entitled to rely upon findings of fact made by the first Adjudicator?

  1. [45]
    In the first appeal, the first Appeal Tribunal found errors of law and set aside the first Adjudicator’s orders. It referred the application back to the Commissioner for BCCM for reconsideration. The second Adjudicator in the decision now appealed in paragraph [25.5.a] of his/her reasons for decision adopts various findings of the first Adjudicator, saying as follows:[30]

The issues of relevance of the SCRC laws and distribution of signage have been determined by the Adjudicator in the 2015 order.

On these matters, the tribunal said the challenge could not be made against findings of fact and ‘the difficulty with this challenge is that it is an attempt to re-argue what has already been decided as a fact by the Adjudicator’.

As the Adjudicator’s determination was not disturbed on appeal, both issues cannot be determined again by an Adjudicator under chapter 6 of the Act.[31]

  1. [46]
    The final sentence referenced by the second Adjudicator purports to be founded upon the legal doctrine of res judicata. The Clarkes submit that as their first appeal was successful, there was not a determination that could be subject to res judicata or alternatively, issue estoppel. They argue essentially that the second Adjudicator was obliged to determine the matter afresh, and was not confined by the findings of fact made in the first adjudication decision, notwithstanding that the appeal was successful only on a question of law. Therefore, they submit the second Adjudicator erred in law in performing his function. In particular, they contend that he/she therefore failed to consider all relevant matters, and in particular, whether the letter from the Sunshine Coast Council to the Body Corporate dated 8 June 2011,[32] ‘was presented by the Body Corporate in good faith or not’.[33]
  2. [47]
    The Clarkes contend that this ground of appeal reveals the second Adjudicator’s main error. They criticise the second Adjudicator for not explaining how or why he/she relied upon res judicata, arguing, in effect, that such reliance results here in an injustice, whereas the main purpose of issue estoppel is to avoid abuse of process. Further, they argue that the second Adjudicator exceeded his/her role in raising it, as there had been no final determination on the issues between the parties.
  3. [48]
    As discussed earlier, an appeal to the appeal tribunal is available only on a question of law. It is an appeal in the strict sense. The Appeal Tribunal for the first appeal, set aside the first Adjudicator’s order and referred the application back to the Commissioner for BCCM for reconsideration. It directed that if the Commissioner referred the application for adjudication, it must be determined by a different Adjudicator.
  4. [49]
    The term reconsideration arises from s 146 of the QCAT Act. When an appeal is decided on a question of law only, the appeal tribunal may confirm or amend the decision; set aside the decision and substitute its own decision or set it aside and refer the matter to, here, the other entity who made the decision for reconsideration with or without additional evidence or such other directions as the appeal tribunal may consider appropriate.[34] The appeal tribunal is not permitted to perform a rehearing under s 146.[35]
  5. [50]
    The question that arises, concerns the nature of the task for the second Adjudicator in reconsidering the matter. The first Appeal Tribunal made no specific directions, other than that a different Adjudicator should determine the application. There can be in our view, no application of the doctrine of res judicata or issue estoppel. The first appeal was successful. The first Adjudicator’s order was set aside and ‘the application’, (that is, the application for adjudication), was referred back for ‘reconsideration’ by a ‘different Adjudicator’.
  6. [51]
    It is the case that the first Appeal Tribunal, in determining the appeal observed correctly that it could not consider an appeal on questions of fact. That said, this is not determinative of whether the second Adjudicator was entitled or obliged to adopt the factual findings of the first Adjudicator in his/her determination on the reconsideration. A reconsideration, depending upon the statutory context may connote a hearing de novo or it may connote a rehearing making any additional findings of law and fact as may be deemed necessary by the decision-maker, but otherwise adopting the undisturbed findings of another decision-maker. Here, the first Appeal Tribunal’s order is determinative of the task to be performed by the Adjudicator.
  7. [52]
    We conclude that it is relevant that the application was remitted for reconsideration. The first Appeal Tribunal did not direct that the reconsideration be limited to particular matter/s or direct that further evidence could not be received. It was not remitted for determination according to law on the facts as found by the first Adjudicator. If that had been its intention, there is no apparent reason for directing that the application be reconsidered by another Adjudicator.
  8. [53]
    The second Adjudicator’s reasons for decision suggest some confusion as to task that he/she undertook. The second Adjudicator specifies the issues to be determined,[36] and then proceeds to consider each of them. In doing so, he/she does not adopt all of the factual findings of the first Adjudicator. Issues are considered afresh and fresh findings are made, except in paragraph [25.5.a] and confirmed in [52], when a conclusion is drawn that because the first Appeal Tribunal could not consider an argument on appeal about alleged error of fact, that the Adjudicator could not make his/her own conclusions about those particular facts based on the evidence that he/she had before them, (which may have been more extensive than the evidence before the first Adjudicator).
  9. [54]
    We have concluded, and as appeared ultimately to be conceded by the Body Corporate, that the reference back for reconsideration mandated a rehearing of all issues, not only those which the second Adjudicator discerned as having been disturbed by the Appeal Tribunal’s decision on the appeal. Therefore, the second Adjudicator’s task was to consider all of the evidence and applicable law, make his or her own findings of fact having regard to the evidence, and then apply the law and determine the matter afresh or anew.[37] (That said, we observe that, it would have been permissible for the second Adjudicator to adopt the factual findings, as well as the reasons for them, of the first Adjudicator as part of his/her own reasons for decision, if consistent with his/her own conclusions and reasons for them).
  10. [55]
    In view of our conclusions on this issue, we do not need to further consider the detailed submissions of the parties about res judicata, issue estoppel, and the circumstances in which each may arise.
  11. [56]
    We accept that the second Adjudicator erred in law in adopting the findings of fact made by the first Adjudicator. However, for other reasons explained later, that error was immaterial to the outcome of the reconsideration.

Did the Adjudicator rely on By-laws that did not exist at the date of the request?

  1. [57]
    It is uncontroversial that the By-laws were amended after the Clarkes’ application for approval for the signs was made. The old By-law 13 provided, inter alia, under the heading of ‘Appearance of Building’, as follows:

13(b)  a proprietor of a lot shall be permitted to display any sign, advertisement, banner, pamphlet or like matter on any part of his lot in such a way as to be visible from outside the building;

13(c) a proprietor or occupier of a lot shall not, except with the consent in writing of the Body Corporate, display any sign, advertisement, placard, banner, pamphlet or like matter in or about the common property, provided  that such consent shall not be unreasonably withheld to the using or exhibiting of any advertisement or sign customary and/or incidental to the proprietor or occupier’s type of business.[38]

13(d) Notwithstanding anything to the contrary in these By-laws any signage, advertisement, placard, banner, pamphlet or like matter shall strictly comply with the By-Laws of the local authority or any other authority having jurisdiction over same.

  1. [58]
    The amended By-law 13 differs in some respects. By-law 13(b) now provides that an occupier may display any sign, advertisement, banner or like material on any part of his Lot in such a way as to be visible from outside the building. By-law 13(c) is in similar terms to the old 13(c), except that now, a proprietor or occupier shall not except with the written consent of Body Corporate display any sign, advertisement, banner or like matter in or about common property, but that such consent shall not be unreasonably withheld to the using or exhibiting of any advertisement or sign customary and/or incidental to the occupier’s type of business. By-law 13(d), provides that any advertisement, sign, banner or the like in or about the common property must pertain to a business or activity operating in Turner Park.[39] The requirement previously contained in 13(d) remains, although it is re-numbered.
  2. [59]
    The second Adjudicator considered the six reasons given for refusing of the July 2014 request for approval. In discussing the reasons, the second Adjudicator considered the Committee’s assertion that the signage was not detailed and unable to be compared with other signage, as against the Clarke’s contention that the position and dimensions proposed were detailed, and that signage would be consistent with their livery or that of any tenant.[40] The second Adjudicator considered that the committee did not explain the alleged inadequacy.[41] However, the second Adjudicator went on to refer to the Clarkes’ acknowledgement that they did not then occupy the lot and the wording of the signage may change.[42] The Clarkes had asserted that from February 2014 to December 2014 their lot was tenanted, but that they maintained a business presence through existing signage.
  3. [60]
    In context, the second Adjudicator’s reasons for decision observe that ‘a new By-law 13’ was made on 20 October 2014 (and later registered in January 2015). However, the dispute resolution application under consideration was made on 15 October 2014. At paragraph [44], the second Adjudicator refers to the then applying By-law 13(c), as empowering the Body Corporate to regulate an owner or occupier displaying signs or the like on common property and providing for the using or exhibiting of signage customary and/or incidental to the occupier’s type of business. The second Adjudicator states that the Body Corporate’s general powers relating to administering the common property for the benefit of lot owners and the then applying By-law was sufficient basis for signage detail to be considered relevant in making the decision.[43]
  4. [61]
    Although not clearly so, the reference by the second Adjudicator to signs customary or incidental to an occupier’s type of business, without reference also to the proprietor’s type of business may suggest that he/she considered the amended By-law even though it post-dated the Clarkes’ advertising proposals, motion and application in determining whether the Body Corporate acted reasonably.
  5. [62]
    The Body Corporate argues that even if the Adjudicator erred as alleged the error is ultimately immaterial to the decision. The Body Corporate argues that even if there was an error in this regard, it is an error of fact and cannot be the subject of appeal.
  6. [63]
    The question concerning which By-law applied in considering the application is arguably a matter of law. Irrespective, By-laws, to the extent that they are inconsistent with the BCCM Act, are invalid.[44] In this regard, s 35(4) of the BCCM Act provides that if the occupier is not the lot owner, a right of the owner under the BBCM Act to occupation or use of common property is enjoyed by the occupier.
  7. [64]
    Further, we observe that By-laws must not discriminate between types of occupiers,[45] and must not be unreasonable having regard to the interests of all owners and occupiers and the use of common property.[46]
  8. [65]
    Having regard to these matters, although the second Adjudicator did not consider the issue, to the extent that the earlier By-law 13 may appear to suggest that ‘proprietors and occupiers’ may extend to include owners who were not occupiers, if it did so, although it is not clear that it did so extend, it would be invalid having regard to s 35(4) and 180(1). Unless an occupier, an owner’s rights to use of common property were exercisable (only) by the occupier.

Did the Adjudicator wrongfully base his/her decision on the Clarkes not occupying the lot at the time of the request?

  1. [66]
    The Clarkes’ ground of appeal contends that the Adjudicator erred in finding that they did not occupy Lot 4 at the time of the third request. That said, their submissions concede (and the evidence supports) that they did not occupy Lot 4. The arguments made on appeal focus on their alleged right as legal owners of a lot, whether they physically occupy the shop or not to apply for approval for signage on the common property. They submit that they have ‘a right to advertise any and or all of our operating businesses in the scheme according to their livery’.[47] This argument is based on the contention that the second Adjudicator erred by separating their interest in the common property from their ownership of the lot, inconsistently with s 35(3) of the BCCM Act and By-law 13(c) as it then was.
  2. [67]
    The Body Corporate submits that the finding made, that is, that the Clarkes were not occupying their lot cannot be raised on appeal, as it is a finding of fact. That is clearly so, and is not controversial. They proceed to argue that issue estoppel applies in any event, but for the reasons already explained, we do not accept this is so.
  3. [68]
    However, the argument is not that the Adjudicator erred in finding that they were not in occupation, but that whether or not they were occupiers was irrelevant because their interest in the common property could not be separated from their ownership of their lot. This submission ignores s 35(4) of the BBC Act which provides in effect that if a lot occupier is not the owner, the owner’s right to occupation and use of the common property is enjoyed by the occupier.
  4. [69]
    The Adjudicator observed that the first Appeal Tribunal concluded that it was ‘correct for the Adjudicator to find a relevant consideration for the Body Corporate was that it could only approve signage for businesses operating at the scheme’.[48] He/she found that it was reasonably open for the Committee to decide that the Clarkes were not occupiers at the time of the July 2014 request. He/she did not then go on to explicitly make a conclusion about whether it was reasonably open for approval to be therefore refused on that basis. However, it is nevertheless sufficiently clear on a fair reading of the reasons for decision that he/she did so in respect of the July 2014 request. Although s 35(4) has not been agitated on appeal on this occasion, its application was a specific ground of appeal in the first appeal. The second Adjudicator does not directly address or refer to the effect of s 35(4) in relation to the issues raised here. That said, it is sufficiently clear that this was the subject of his/her comments as referred to earlier in this paragraph.
  5. [70]
    Further, as discussed earlier, s 180 of the BBCM Act clearly states that if a By-law is inconsistent with the Act, the By-law is invalid to the extent of the inconsistency. Here, the old By-law to the extent that it might be interpreted to permit a proprietor who was not also an occupier to display any advertisement on common property (albeit with written consent) would be inconsistent with s 35(4) of the BBCM Act and therefore invalid.
  6. [71]
    No error is revealed.

Did the Adjudicator properly consider the issue of the Body Corporate’s bias against them?

  1. [72]
    The second Adjudicator briefly considered the Clarkes’ allegations of bias against them in the committee’s decision-making about their request.[49]
  2. [73]
    On appeal, the Clarkes’ contend that the Adjudicator erred in law by failing to properly consider the issue of bias, (notwithstanding the framing of the ground of appeal) by not only the Body Corporate, but the Committee, and on our reading of their lengthy submissions,[50] individual members of the Committee and the Body Corporate. The events traversed in their submissions, as allegedly relevant, date back to at least 2011 and are said to support findings of negativity, inconsistency in decision-making to the Clarkes’ detriment and bias against them. They include submissions concerning previously decided adjudication applications, including another application decided by the second Adjudicator, in respect of which they contend he should have taken his prior knowledge into account in deciding the issue. The complaint is that it does not appear he did so, when assessing negativity towards us and bias,[51] in deciding the most recent application before him.
  3. [74]
    There is no doubt that there is a lengthy history of unhappiness between the Clarkes and at least some other members of the Body Corporate and the Committee as elected from time to time. Indeed, the extent of the distrust the Clarkes have for some of the persons concerned may indeed be the genesis for the multiple adjudication applications over the years. This is not to say that members of the Body Corporate may not be equally distrustful of the Clarkes. Irrespective of any distrust, the Body Corporate was obliged to act reasonably as required by s 94(2) of the BCCM Act.
  4. [75]
    It is unnecessary for us to traverse the lengthy history set out by the Clarkes of alleged indications or examples of negativity and bias towards them. We observe that the first Appeal Tribunal allowed the appeal in respect of the ground of appeal relating to bias. It held that in respect of the approval for the erection of the canopies which could accommodate signage as per the plans presented by the Clarkes for approval, the reasonableness of later the refusing to approve signs on the canopies, was not considered by the Adjudicator because he found there was no basis to suggest the meeting agreed to the extent of the signage proposed by the Clarkes. It was said he did not therefore consider the reasonableness of the change of position ‘which was the real question to be decided’. Further, it criticised the findings that because the Adjudicator found the Body Corporate’s decision was reasonable, there was no basis to conclude conflict had resulted in bias towards the Clarkes. They said the question was whether the effect of any bias made the decision unreasonable.[52] This appears in effect, once an allegation of bias is made, to place a reverse burden of proof on the Body Corporate to establish that any prior conflict with an applicant could not possibly have affected a decision made, no matter how reasonable it may appear to be be taking into account relevant considerations.
  5. [76]
    With respect, the test is whether the decision is objectively reasonable, not whether it could be considered unreasonable because of bad blood between the parties. Evidence of inconsistent decisions in favour of other owners in similar circumstances may of course support a finding of bias. In this regard, some reliance was placed on an approval given to the owner of Lot 14 for a teardrop advertising banner on common property. The second Adjudicator considered it did not assist because it predated the decisions here sought to be impugned. Further, he/she considered it was difficult to accept that the committee was biased since the Body Corporate in general meeting was ‘of the same mind’.[53]
  6. [77]
    In any event, given that an Adjudicator may effectively remake the decision in deciding the application, and make an order that is just and reasonable in the circumstances to resolve the dispute including making an order giving effect to a motion as proposed or a variation of a motion as proposed,[54] if the Adjudicator considers the decision is not reasonable, it may make its own decision. Having found it objectively reasonable, the second Adjudicator dismissed the application.
  7. [78]
    The second Adjudicator expressed the following reasons for reaching the conclusion that the applicants had not ‘established that, in the circumstances, there was an inconsistency in the approach taken by the Body Corporate demonstrating bias making the decision unreasonable’:

In conclusion, I am satisfied that the committee had no reasonable basis for deciding that the applicants’ request was inconsistent with the original discreet generic advertising signage and was not adequately detailed. However, I consider it was reasonably open for the committee to find that: it was relevant that the applicants did not operate a business at the complex and did not occupy Lot 4; the Body Corporate had not considered the concept of signs or signage on the new structures; and the proposed signage, as a package, would have an adverse effect on the amenity of the complex.[55]

  1. [79]
    The Clarkes argue in the appeal that as the second Adjudicator was also the Adjudicator in what they refer to as the ‘2012 adjudication’ which related to signage in respect of another lot, the Adjudicator was cognisant of and should have taken into account his/her knowledge of documents and information provided at the time of the earlier adjudication. The applicants argue had he done so, once the Adjudicator considered the letter they relied upon confirming they had not sought a sign audit prior to 26 August 2012,[56] the Adjudicator could have reached no other conclusion than that the Body Corporate members and others were dishonest and had acted unfairly towards the applicants. However, that argument does not appear to have been made in the Clarkes’ submissions to the Adjudicator.[57] The 2012 adjudication must necessarily have been in relation to signage that did not include fascia board signage (because the structure on which the Clarkes seek to have fascia board signs erected as part of the signage package for which approval was sought was not approved for construction until late 2012). Therefore, it is not a comparable example.
  2. [80]
    In any event, the reasons for decision given by the second Adjudicator support his/her conclusion that the decision of the committee was objectively reasonable. We observe that as a matter of course, the second Adjudicator’s involvement in the 2012 adjudication does not disqualify him/her from determining the relevant application fairly. It was decided on the evidence before it. The application here was determined some years later, based on different evidence. The Clarkes do not suggest the second Adjudicator made a previous adverse determination against them.
  3. [81]
    We conclude that the second Adjudicator properly considered and dealt with the issue of alleged bias. Even if we were wrong about that, any such error would be immaterial. Having regard to the effect of s 35(4) and s 180 of the BCCM Act, the outcome of the adjudication and this appeal would be unchanged.

Conclusions and orders

  1. [82]
    For the reasons explained, the appeal must fail. Accordingly, we make orders dismissing it.

 

Footnotes

[1]  Applicant’s appeal book, p 63.

[2]  Applicant’s appeal book, p 46.

[3] Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’) s 289(2).

[4] Ainsworth v Albrecht [2015] QCA 220 (subsequently appealed in Ainsworth v Albrecht (2016) 261 CLR 167, but not in relation to this point); Ericson v Queensland Building and Construction Commission [2014] QCA 297 [3], [13], [16]. See also Bakir v Body Corporate for Chevron Renaissance CTS 30946 & Ors [2015] QCATA 164 [16]; Bakir v Body Corporate for Chevron Renaissance CTS 30946 & Ors [2017] QCATA 16 [67].

[5]Harrison & Anor v Meehan [2017] QCA 315, [18].

[6]  See Applicants’ submissions filed 31 January 2017, Ground 1 especially at [19]-[23] and [33].

[7] Ainsworth v Albrecht (2016) 261 CLR 167.

[8]  BCCM Act s 100.

[9]  BCCM Act s 276(1).

[10]Turner Park Shopping Village [2016] QBCCMCmr 405 [17]–[19].

[11] Turner Park Shopping Village [2016] QBCCMCmr 405  [25.2].

[12]  Applicants’ appeal book, p 329.

[13] Turner Park Shopping Village [2016] QBCCMCmr 405 [25.2].

[14]  Ibid 61.

[15]  Applicants’ appeal book, pp 212–215.

[16]  Ibid p 214, Motion 7.

[17]  Ibid p 229, Motion 2.

[18]  Ibid.

[19]  Ibid [25.3]. In this regard, as set out in [25.4], there had not been fascia board signs since 2010 when Turner Park was repainted.

[20]  Applicants’ submissions filed 31 January 2017, [37] –[39].

[21]  Applicants’ appeal book, p 517.

[22]  Ibid, p 579.

[23]  Ibid, p 425, Attachment ‘B33’; p 463, Attachment ‘B34’.

[24] Turner Park Shopping Village [2016] QBCCMCmr 405 [5].

[25]  Applicants’ submissions filed 31 January 2017, [45].

[26]  Ibid [46].

[27]Turner Park Shopping Village [2016] QBCCMCmr 405 [25.4].

[28]  Ibid, [46].

[29]  Ibid [26].

[30]  Ibid [25.5.a].

[31]  Footnotes omitted, but the final sentence is footnoted in relying on the legal doctrine of res judicata.

[32]  Applicants’ appeal book, pp 409–410.

[33]  Applicants’ submissions filed 31 January 2017, [54].

[34]  Cf: QCAT Act s 147: The process in an appeal in the strict sense on a question of law may be contrasted with an appeal on a question of fact only or mixed law and fact, which must proceed by way of rehearing under s 147.

[35]  The Court of Appeal has clarified the nature of the process required, pursuant to s 146 and s 147 of the QCAT Act. See Ericson v Queensland Building and Construction Commission [2014] QCA 297; Albrecht v Ainsworth [2015] QCA 220; and Harrison v Meehan [2017] QCA 315.

[36]Turner Park Shopping Village [2016] QBCCMCmr 405, [16].

[37]Morales v Minister for Immigration and Multicultural Affairs (1998) FCR 374.

[38] Applicants’ appeal book, p 187.

[39]  Ibid, p 486.

[40] Turner Park Shopping Village [2016] QBCCMCmr 405, [36-42].

[41]  Ibid [43].

[42]  Ibid.

[43]  Ibid [44].

[44]  BCCM Act s 180(1).

[45]  Ibid s 180(5).

[46]  Ibid s 180(7).

[47]  Applicants’ submissions filed 31 January 2017, [70].

[48] Turner Park Shopping Village [2016] QBCCMCmr 405, [46].

[49]  Ibid [55-56].

[50]  Applicants’ submissions filed 31 January 2017, pp 20–30; Applicants’ submissions in reply dated 21 March 2017, pp 20–33.

[51]  Applicants’ submissions filed 31 January 2017, p 23 [86].

[52] Clarke v Turner Park Shopping Village Body Corporate [2016] QCATA 105 [103].

[53]Turner Park Shopping Village [2016] QBCCMCmr 405,  [55].

[54]  BCCM Act s 276(1), (3).

[55] Turner Park Shopping Village [2016] QBCCMCmr 405, [56].

[56]  Applicants’ appeal book, p 577.

[57]  Applicants’ appeal book pp, 237–244, in particular at p 244; pp 535–561; p 547–548 [3d(ii)].

Close

Editorial Notes

  • Published Case Name:

    Gerry Clarke and Neveka Golc-Clarke v Body Corporate for Turner Park Shopping Village CTS 15822

  • Shortened Case Name:

    Clarke v Body Corporate for Turner Park Shopping Village

  • MNC:

    [2019] QCATA 51

  • Court:

    QCATA

  • Judge(s):

    Member Guthrie, Member Howard

  • Date:

    12 Apr 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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