MacDougall v The Body Corporate for House on the Hill
[2021] QCATA 63
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- MacDougall v The Body Corporate for House on the Hill[2021] QCATA 63
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MacDougall v The Body Corporate for House on the Hill[2021] QCATA 63
MacDougall v The Body Corporate for House on the Hill[2021] QCATA 63
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | MacDougall v The Body Corporate for House on the Hill [2020] QCATA 63 | |
PARTIES: | GARY NEIL MACDOUGALL (applicant\appellant) v THE BODY CORPORATE FOR HOUSE ON THE HILL CTS 15620 (respondent) | |
APPLICATION NO: | APL221-19 | |
MATTER TYPE: | Appeals | |
DELIVERED ON: | 16 April 2021 | |
HEARING DATE: | 16 April 2021 | |
HEARD AT: | Brisbane | |
DECISION OF: | Member Richard Oliver | |
ORDERS: | The appeal is dismissed. | |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHERE APPEAL LIES – ERROR OF LAW – where appeal from Adjudicator’s decision only on a question of law – where the respondent a large community title scheme comprising tropical gardens two swimming pools – where committee proposed a motion to engage contractors to remove mature palm trees some 22 years old – where applicant opposed the motion – where the adjudicator dismissed the outcomes sought by the applicant that the Committee of the Body Corporate did not act reasonably in making its decisions – whether applicant’s opposition to the motion reasonable – whether Committee of the Body Corporate acted reasonably in making its decision – whether the adjudicator erred in failing to have regard to s 94 of the Body Corporate and Community Titles Act. Body Corporate and Community Titles Act 1997(Qld) ss, 94, and 100; Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177; Re Body Corporate for Viridian; Kjerulf Ainsworth & Ors v Martin Albrecht & Anor [2014] QCATA 294. | |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) | |
REASONS FOR DECISION
- [1]House on the Hill is a large residential home unit complex comprising of six separate buildings each containing a number of home units. The Community Titles Scheme is described as, and managed by, The Body Corporate for House on the Hill CTS 15620 (‘the Body Corporate’).
- [2]The applicant, Mr MacDougall, is the owner of Lot 64 in the scheme. The six residential buildings are incorporated into a large common area. Within the common property, there are two swimming pools, and a tennis court. The scheme was first registered in 1996 and the complex was constructed at or about that time. A number of Cuban Royal palm trees were planted in various locations around the common property and in the interim, obviously, they have grown to a substantial mature height over about a 23 year period. Their presence has given the common area a tropical ambience.
- [3]There were issues with the palm trees and complaints from residents so on 24 July 2018, the then Committee of the Body Corporate resolved to accept a quote to have 14 large palm trees removed from the common property. It engaged a contractor, Palmers Tree Zone to remove them. Mr MacDougall opposed the removal of six of the palm trees but the removal went ahead despite this opposition.
- [4]Being dissatisfied with the decision and conduct of the Body Corporate Committee, Mr MacDougall sought the intervention of the Office of the Commissioner for Body Corporate Community Management. His complaint went to an adjudication with a decision being delivered on 19 June 2019[1].
- [5]Before the adjudicator, Mr MacDougall sought the following outcomes:
- That the Body Corporate, within 30 days of a BCCM Order, replace the six established 12m high Royal palms that are specifically mentioned in the annual garden maintenance specification and contract, [12] with 6 palms of identical size and type, in keeping with the North Queensland style of the scheme.
- That the Body Corporate uses local qualified and insured tree transplanting company to instal the palms and guarantee them at least 6 months with maintenance as required during that term.
- Alternatively, that the Body Corporate replace those 6 palms with 6 sealing wax palms (in scale with the three level building) at a minimum of 6 to 7 metres high and 400 ltr plus size containers.
- [6]The adjudicator, having considered all submissions by Mr MacDougall, and other owners one of which supported Mr MacDougall’s application, dismissed the outcomes sought by him.
- [7]In the reasons for decision, the adjudicator considered whether the 6 Royal palms were Body Corporate assets, as opposed to being part of the common property; whether the Royal palms were in fact a disposal of common property; and finally, whether the Body Corporate Committee acted reasonably in making the decision to engage contractors to remove the 6 Royal palms that were located between buildings 4 and 6. The resolution approved the removal of 14 palms in total, but it is only the 6 palm trees between buildings 4 and 6 which were the palm trees in contention before the adjudicator.
- [8]As a result of the adjudication being dismissed, Mr MacDougall then filed an application for leave to appeal the Adjudicator’s decision in the Tribunal on 8 August 2013. An appeal from an adjudication can only be on a question of law. Section 289 of the Body Corporate Community Management Act (‘BCCM Act”) provides that:
- (2)The aggrieved person may appeal to the Appeal Tribunal, but only on a question of law.
- [9]Section 296 sets out the obligations of the Commissioner when an appeal is filed and that the provision of information to the Tribunal. As part of the Appeal Record Book the Tribunal is also in possession of the file generated by the Commissioner for the adjudication.
- [10]Under s 146 of the Queensland Civil and Administrative Tribunal Act, (the QCAT Act’) where there is an appeal on a question of law only, the Tribunal can confirm or amend the decision, set aside the decision, substitute its own decision, or set aside a decision and return the matter to the Tribunal or other entity who made the decision for reconsideration.
- [11]In the application for leave to appeal, for appeal, the grounds of appeal start with the following:
The BCCM Act ss 94(1)(a) and 152 state that the Body Corporate must administer, manage and control common property reasonably for the benefit of lot owners.
- [12]Thereafter the ‘grounds of appeal’ descend to more of a submission by Mr MacDougall setting out why he says the decision to remove the palm trees was unreasonable. In summary, he contends that the Body Corporate committee acted unreasonably in removing the palms because they were covered by the garden maintenance contract and challenges the finding by the adjudicator that they were unmanageable. They had been maintained for 22 years under the contract and there was no need to change that arrangement. He also complains that the adjudicator ignored allegations of the Body Corporate over-spending on the cleaning contract with the ‘chairman’s best friend’ when comparing that to the cost to maintain the palm trees. He also asserts that the adjudicator did not give due consideration to the fact that the palm trees had been there for 22 years, caused no damage and were regularly maintained and there was no basis for the finding that the Committee held genuine and rational concerns about safety issues. The “grounds” then embark on a critique the adjudicator’s reasons in a very general way and also makes disparaging personal criticisms on some of those who were involved in the decision-making.
- [13]In the grounds of appeal, such as there are, Mr MacDougall does not challenge the finding that the six palm trees were part of the common property. Nor, does he challenge that conclusion that the removal of the six palm trees was a disposal of common property.
- [14]What is therefore apparent from all of the grounds of appeal contended for by Mr MacDougall in his application is that the only question of law raised in the appeal is whether the Body Corporate committee acted reasonably in coming to the decision that they did.
- [15]This, of course, is important because under s 94(1) there was an obligation on the Body Corporate to administer the common property and the Body Corporate assets for the benefit of all owners. It must act reasonably in doing so. The section provides that:
- (1)The Body Corporate for a Community Titles Scheme must –
- (a)administer the common property as Body Corporate assets for the benefit of the owners of the lots included in the scheme; and
- (b)enforce the Community Management Statement (including the portions of any by-laws for the scheme in the way provided under this Act); and
- (c)carry out the other functions given to the Body Corporate under the Act and the Community Management Statement.
- (2)The Body Corporate must act reasonably in anything it does under subsection (1) including making, or not making, a decision for the subsections.
- [16]
- [17]It can be observed that the language of s.94(2) is directed specifically to a duty upon the Body Corporate not the individual lot owners. It is not a duty to make reasonable decisions, it is a duty to “act reasonably” in anything it does under subsection (1), which is referenced to it carrying out the functions given to it under the Act. One of these functions, relevantly for present purposes, is to maintain the common property for the benefit of all lot owners not just one or two. The Act or s.94 does not provide any guidance as to how it is that one is to determine whether the Body Corporate acted reasonably in any given situation. It is necessary to look at all of the circumstances to determine this question.
- [18]Therefore, the question for determination in this appeal is whether the adjudicator fell into error in the determination of whether the Body Corporate acted reasonably in proceeding to accept the quote for the removal of the palms in the face of Mr MacDougall’s opposition.
- [19]The adjudication had regard to these matters and relied on what was said in Body Corporate for Beaches Surfers Paradise v Backshall of the Body Corporate[4].
The BCCM provides no specific criteria or guidance for deciding by-law issues or how it is to be concluded that a committee acted in breach of ss 94(2) or 100(5). Generally speaking, though, whether a CTS-related decision (or resolution) was made reasonably and regularly does not merely depend on whether the body corporate or committee believes it acted reasonably or not in the decision making process.
Rather, it “involves an evaluation of the known facts, circumstances and considerations” that tend to have a rational bearing on the issue at hand including predictable future possibilities and risks. In practice, this requires that all relevant matters to be taken into consideration and irrelevant ones left out. It is a question to be determined when the decision in issue was made.
- [20]However, as Member Roney said in Perrin v Body Corporate for Billington Court[5] the decision in Backshall does not add anything to what the High Court said in Ainsworth & Ors v Albrecht & Anor[6] about the tests to be applied. Although, Backshall was a decision of the committee, because the committee has the same obligations to act reasonably, any challenge to a committee decision on the basis it did not act reasonably now must now be read in light of Ainsworth. The majority of the High Court articulated the test to be applied 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.
- [21]In Ainsworth, Nettle J put it more succinctly in the context of factual matrix where Mr Albrecht’s motion for exclusive use of the air space between two balconies was considered by the Body Corporate. He said:
…the first error was the adjudicator’s determination of the matter on the basis that “[o]n balance” she was “not satisfied that the Body Corporate acted reasonably in deciding not to pass [the motion]. As the Tribunal stated, that was not the correct test. The correct test was whether the adjudicator was satisfied that Albrecht’s motion was not passed because of opposition which was in the circumstances unreasonable.[7]
- [22]Applying the above statement to this case, the question is whether the adjudicator was satisfied that the committee acted reasonably in passing the motion to engage the contractors despite Mr MacDougall’s opposition which was in the circumstances unreasonable. If that is correct then the committee acted reasonably.
- [23]There is no doubt that the adjudicator gave due consideration to the considerations undertaken by the committee and Mr MacDougall’s position in the reasons for adjudication. The following is set out:
[31] In response to the applicant’s claim, the committee submits: the palms were removed because of reported incidents of damage or near damage to property and persons on common property notwithstanding the Body Corporate had engaged professionals to monitor the palms; and the palms were becoming unmanageable and difficult to maintain, and if not removed, there would be an ongoing, and an unacceptable risk of serious injury and damage.
[32] The owners of Lot 13, 15, 17, 18, 31, 53, 60, 68 and 70 submit: fronds and seeds from the palms were a nuisance and a danger to residents and property; the continual need to engage specialist tree croppers meant additional expenses; replacement trees will provide more benefits; and the applicant’s proposal would be unnecessary and unnecessary expense for owners.
- [24]The adjudicator then considered the submissions of Mr MacDougall that the agreement with the maintenance contractor for the common property, Palmers Tree Zone, covered the issues raised by the Committee and that “the removal of the palms was a vindictive and vexatious exercise and devalues surrounding apartments”. He does not specifically address the issues raised by the committee or the individual lot owners.
- [25]In his further submissions in support of the appeal he reiterates the generalisations referred to above. The adjudicator’s reference to vindictive and vexatious, is again, picked up in the appeal submissions which do not directly address the issue of error of law or how Mr MacDougall’s position in opposition to the motion can be said to be reasonable. A personal attack on individual members of the Body Corporate is of no assistance.
- [26]Mr MacDougall also asserted that the removal of the palms devalued the property the property, which is an important consideration. The adjudicator made a finding of fact there was no evidence to support this contention. Because it is a factual finding the appeal tribunal will not interfere with because it does not raise a question of law.
- [27]Mr MacDougall in the appeal submissions also raises complaints about not obtaining local authority approval for the removal and factual disputes about the palm trees maintenance. However, apart from a consideration of whether it is best to remove the palm trees or continue with a maintenance programme, it cannot be said that Mr MacDougall’s opposition is reasonable so as to demonstrate that the committee did not act unreasonably in light of all the circumstances.
- [28]The learned Adjudicator having considered all of the circumstances surrounding the committee’s decision to remove the palms concluded that the Body Corporate committee, consistent with its obligation under s.94 acted reasonably in proceeding with the removal of the palms. In other word Mr MacDougall’s objection to the removal, was not reasonable. Also, simply because one or two lot owners object to a decision of the committee for the Body Corporate, or the Body Corporate at general meeting, does not render the decision ipso facto unreasonable.
- [29]The submissions of the Body Corporate assert that Mr MacDougall has not clearly identified any alleged errors of law. He does contend the committee did not act reasonably when making the decision in view of his opposition. This does raise a question of law but this was duly considered by the adjudicator and I see no grounds disturbing the decision.
- [30]The Appeal Tribunal is not satisfied that Mr MacDougall has demonstrated that there is an error of law and therefore the appeal is dismissed.