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  4. Hronis v Body Corporate for Malibu CTS 22174 - [2022] QCATA 187

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Hronis v Body Corporate for Malibu CTS 22174[2022] QCATA 187

Hronis v Body Corporate for Malibu CTS 22174[2022] QCATA 187

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hronis v Body Corporate for Malibu CTS 22174 & Anor [2022] QCATA 187

PARTIES:

Nicholas Hronis

(applicant/appellant)

v

Body Corporate for Malibu CTS 22174

(first respondent)

MAVIS CHANDLER

(second respondent)

APPLICATION NO/S:

APL067-22

MATTER TYPE:

Appeals

DELIVERED ON:

22 December 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

  1. The application to extend time is refused.
  2. The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – application to extend time to file appeal – factors determining when Tribunal may extend a time limit include the length of delay, adequacy of explanation, merits, prejudice, and the interests of justice – applicant's familiarity with tribunal proceedings – whether applicant demonstrated difficulty in obtaining legal assistance – length of delay – consideration  of the efficient and effective functioning of the Tribunal – whether circumstances sufficiently meritorious to permit extending time to file appeal

Body Corporate and Community Management Act 1997 (Qld), s 159, s 290(1), Schedule 6

Body Corporate and Community Management (Standard Module) Regulation 2020, s 184, s 187

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61(1)(a), s 61(3)

Alternatively WWM & S Pty Ltd t/a Vine 21 v Fenwicks Suppliers Pty Ltd [2016] QCATA 63

Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70

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. [1]
    On 28 January 2022 an adjudicator appointed by the Commissioner for Body Corporate and Community Management dismissed an application by the applicant seeking orders relating to what the applicant said was encroachment on common property by the second respondent, another lot owner in the scheme. 
  2. [2]
    On 28 March 2022 the applicant filed an application to appeal the adjudicator’s decision.
  3. [3]
    An appeal to the appeal tribunal against a decision by an adjudicator must be started within 6 weeks after the aggrieved person receives a copy of the order appealed against.[1] The appellant received the adjudicator’s decision on 28 January 2022. The appeal was required to have been filed by 14 March 2022.
  4. [4]
    On 28 March 2022 the applicant filed an application to extend the time to commence the appeal. It is appropriate to set out in full the applicant’s reasons for seeking the extension of time:

I am requesting an extension of the 6 week time period allowed for appealing in QCAT an adjudicators order from the Office of the BCCM, adjudicators order 1487-2020 was made on 22 January 2022 and is attached as part of my appeal.

The reasons for my request is that I do not have an understanding of these complex matters, the laws and the processes.

I have been represented by Mahoneys Lawyers and now Oracle Law on all communications and matters with the Body Corporate for Malibu CTS 22174 over the past two years.

I am dependent on my lawyer for advice and guidance on all matters, including this response, and although I left several messages for Renaldo Polo over the last weeks regarding this appeal, my lawyer was very ill with COVID as were is (sic) family for weeks. He has only just returned to good health and work and I have now been able to submit my appeal. 

  1. [5]
    The respondents oppose the application to extend time. The parties have filed submissions.
  2. [6]
    The applicant filed further submissions in support of the application on 24 June 2022. In addition to essentially repeating the matters referred to by the applicant in the application to extend time, the applicant makes the further submission that the appeal has merit on the basis that the adjudicator erred in treating ss 184 and 187 of the Standard Module[2] differently and arrived at a decision in conflict with three other adjudicator orders relating to unauthorised encroachments.
  3. [7]
    In opposing the application to extend time the respondents say:
    1. (a)
      The applicant has provided no reasonable explanation for his failure to file the appeal in time;
    2. (b)
      The applicant is an experienced litigant in the tribunal;
    3. (c)
      The applicant has a history in this and other matters of not complying with tribunal directions;
    4. (d)
      The applicant has provided no evidence to support his contention that his legal representative was unwell and unable to provide the applicant with assistance;
    5. (e)
      The second respondent is no longer the owner of a lot in the scheme having sold the lot after the time for filing the appeal had expired;
    6. (f)
      The new owner of the lot will be prejudiced if the extension of time is granted;
    7. (g)
      The applicant’s case in the substantive appeal is not strong.
  4. [8]
    By s 61(1)(a) of the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act), the tribunal may, inter alia, extend a time limit fixed for the start of a proceeding by the QCAT Act or an enabling Act. The tribunal can not extend time for the start of a proceeding if prejudice to another party as a result of extending time cannot be remedied by an appropriate order for costs or damages.
  5. [9]
    In Harper Property Builders Pty Ltd v Queensland Building and Construction Commission[3] the Appeal Tribunal stated:

[26] Whilst recognising that the discretion to extend time is unfettered (except to the extent that s 61 of the QCAT Act precludes such an extension when it would cause prejudice or detriment, that could not be remedied by an appropriate order for costs or damages), the following matters have been recognised in the above cases as particularly relevant considerations in such exercises:

  1. (a)
    the length of the delay;
  1. (b)
    the adequacy of explanation for the delay;
  1. (c)
    the merits of the proceeding sought to be litigated;
  1. (d)
    prejudice to others; and
  1. (e)
    the interests of justice (sometimes expressed as ‘general considerations of fairness’).

[27] In the context of extending time for an appeal or review, commonly the central question addressed is whether there is any reasonable prospect of success in the proposed appeal. (footnotes omitted)

Does the applicant have an arguable case on appeal?

  1. [10]
    The applicant is lot owner in an 8 lot community titles scheme. The applicant says that the second respondent is responsible for the unauthorised occupation of common property and using that area for their exclusive benefit.
  2. [11]
    The dispute is about a deck constructed on a lot facing a canal. The deck extends over common property.   The second respondent had resided at the scheme for many years. She was unaware that approximately 2.52 square metres of the deck, which had been constructed before she purchased the lot, encroached on common property. In 2019, after being informed that part of the deck encroached on common property, the second respondent owner took steps to lodge with the Gold Coast City Council an application to approve the deck structure. The second respondent submitted two motions for consideration at an EGM. The first motion, motion 36, sought permission to replace the deck, like for like, and to construct a new deck structure, identical to the size and layout, on body corporate land. The motion submitted by the second respondent noted that the lot owner was not seeking exclusive use of the common property but rather permission to have a deck structure of the same size and shape constructed on the common property. The motion was carried unanimously.
  3. [12]
    A further motion, motion 37, was submitted with a view to opening discussion among the lot owners regarding consideration of granting the lot exclusive use of that part of the deck situated on common property. The motion sought only that the body corporate consider whether to grant exclusive use of part of the common property. The motion, motion 37, was approved by seven lot owners. One lot owner voted against the motion.
  4. [13]
    The present applicant applied to the Commissioner for Body Corporate and Community Management for orders that the second respondent remove any structures located on the common property and reinstate the common property in respect of any damage caused to it.
  5. [14]
    The adjudicator decided that, acting in reliance on motion 36, the second respondent  had replaced the deck. The adjudicator found that the lot owner had not contravened the scheme by-laws prohibiting the making of improvements to the common property without body corporate approval. The adjudicator found that the improvements to the common property, being the deck, did not present an unreasonable interference with the use and enjoyment of common property. The adjudicator dismissed the application.
  6. [15]
    In the present appeal, the applicant raises various grounds of appeal. Many of the grounds raise questions of fact or mixed law and fact. An appeal to QCAT from an adjudicator’s decision is confined to questions of law. The applicant asserts that the adjudicator did not afford him procedural fairness. Having considered the grounds of appeal, the applicant’s submissions, and the appeal book comprising the Body Corporate and Community Management Commissioner’s file, there appears to be little merit in these assertions.
  7. [16]
    The applicant says that the adjudicator erred in treating s 187 of the Standard Module separately in effect from s 184 of the Standard Module and that an improvement to common property for the exclusive use and benefit of a lot owner amounts to a disposition of common property for an indefinite period.
  8. [17]
    Having voted in favour of motion 36 which permitted the owner of the lot to construct the deck partially on common property, the applicant now seeks to have the deck removed. The applicant’s change of heart is unexplained. Presumably in voting in favour of the motion, the applicant accepted that the body corporate was not disposing of the common property, but rather that the lot owner was authorised to make an improvement to the common property for the benefit of the owner’s lot in accordance with s 187(1) of the Standard Module. 
  9. [18]
    Section 159 of the BCCMA provides that the regulation module applying to a community titles scheme (in this case the Standard Module) may provide for making improvements to the common property, including making improvements for the benefit of the owner of a lot included in the scheme. ‘Improvement’ is defined as including the erection of a building.[4] A ‘building’ includes a fixed structure.[5]
  10. [19]
    I accept that it is arguable that the effect of motion 36 was to grant a right of exclusive use to the second respondent of that part of the common property on which deck was located. This was the view taken in Malibu [2019] QBCCMCmr 425 where the adjudicator found that authorisation by a body corporate was required not only for making an improvement to common property but also for the consequent disposition or exclusive use of common property.
  11. [20]
    In the present case, the second respondent has not applied for a grant of exclusive use of that part of the common property on which the deck is situated. It seems to me that if such an application was to be made and if the present applicant opposed the application, such opposition might well be found to be unreasonable. I make this observation in light of the unanimous approval of motion 36 and the steps then taken by the second respondent to act upon the basis of the resolution and undertake the rebuilding of the deck. It would, in my view, have been entirely obvious to the applicant that in approving motion 36, the lot owners (of which the applicant was one) agreed that the second respondent would not only be permitted to construct the deck partially on common property but that the deck was for the benefit of the second respondent’s lot in effect giving the second respondent exclusive use of that part of the common property which, it should be added, was a relatively small area.
  12. [21]
    In summary while I accept that the applicant’s case in the present appeal is arguable his ultimate prospects of success in the dispute are modest. 

Delay

  1. [22]
    The applicant attributes the delay in filing the appeal to his lack of understanding of the relevant processes and procedures relating to appealing adjudicator decisions and his inability to obtain legal assistance.
  2. [23]
    It is in my view disingenuous for the applicant to paint himself as lacking an understanding of body corporate disputes. It is apparent from a reading of the various published adjudicator decisions relating to the scheme that:
    1. (a)
      The applicant was, at some time, the secretary of the body corporate and would, presumably, have been involved in committee decision making relating to disputes involving the body corporate and lot owners;
    2. (b)
      The applicant made submissions in an application to an adjudicator for the appointment of an administrator to the scheme committee;[6]
    3. (c)
      The applicant and his wife were respondents in a proceeding involving an application to remove a balcony and patio structure and to repair damage to common property caused by such removal. The applicant and his wife were ordered to remove the offending structures.[7]
  3. [24]
    The respondents say that the applicant has previously appealed a decision by an adjudicator which appeal was subsequently withdrawn. In fact, the applicant and his wife appealed the decision of the adjudicator referred to above relating to encroachments on common property. Noting that the present appeal involves what the applicant says is an encroachment by the second respondent on common property it seems highly unlikely that the applicant does not have an understanding of, at the very least, tribunal processes and procedures and the relevant time limits relating to an appeal from adjudicator’s decision.
  4. [25]
    The applicant says that he was dependent on his lawyer for advice and guidance on all matters, that his lawyer was suffering from COVID and that he was only able to file the appeal when his lawyer returned to health and was able to provide him with legal assistance.
  5. [26]
    Attached to an affidavit by the applicant is a letter under the hand of Mr Renaldo Polo, principle of Oracle Law, who states:
    1. (i)
      He was approached by the applicant ‘with his application to QCAT relating to his residence and body corporate dispute’;
    2. (ii)
      The applicant was not Mr Polo’s client;
    3. (iii)
      Mr Polo was unable to provide assistance to the applicant has a result of Mr Polo suffering from COVID;
    4. (iv)
      Mr Polo is unaware whether the applicant obtained independent advice or assistance.
  6. [27]
    It is unclear from Mr Polo’s letter precisely when he was approached by the applicant, what the ‘approach’ was and what exactly he was approached to do. What is clear is that the applicant did not retain Mr Polo and Mr Polo did not consider the applicant his client. The applicant is conspicuously silent about these matters. Why the applicant was ostensibly waiting for Mr Polo to recover from COVID before he could take steps to file the present appeal in circumstances where Mr Polo says he was not retained by the applicant is not clear. Also unclear is the reference in Mr Polo’s letter to his not being remunerated for ‘any work or assistance provided’. There is no explanation as to what that work or assistance may have been, if any.
  7. [28]
    Attached to the body corporate’s submissions is a copy of a letter from their solicitors to the applicant and his wife in which the solicitors state, ‘I am writing to you directly because I have received notice today that Mr Renaldo Polo no longer acts for you...’ (emphasis added). The date of this letter is 7 April 2022. The applicant does not address the possible significance of this letter in his submissions. I note however that the letter is dated after the time had expired for the filing of the appeal and the contents of the letter would appear to be at odds with Mr Polo’s assertion that the applicant was not his client.
  8. [29]
    There is, in my view, a distinct lack of transparency around the actions of the applicant during the time between the adjudicator’s decision and the filing of the appeal. One would expect to see, in an application to extend time, at least some attempt to provide a rudimentary chronology of events explaining the actions of the applicant. There has been no such attempt in the present case. Indeed, one is left with the distinct impression that the applicant has been deliberately vague in his explanation for the delay in filing the appeal.
  9. [30]
    The length of the delay in filing the appeal was 14 days. This is, in my view, not an insignificant delay. In Alternatively WWM & S Pty Ltd t/a Vine 21 v Fenwicks Suppliers Pty Ltd[8] the Appeal Tribunal said the following:

(1) Rules of practice and procedure are made for the efficient and effective functioning and management of the business of the Tribunal.

(2) They are expected to be obeyed by most litigants most of the time to avoid chaos.

(3) Reasonable time limits are fixed to assist the Tribunal in administering justice and meeting the stated objects of the QCAT Act. Clearly lax enforcement is likely to be misread as a weakness to be exploited which unless corrected will eventually undermine the Tribunal’s authority and then its ability to dispense timely justice to its affairs economically in the overall public interest by, in particular, maintaining clearance rates and avoiding back logs.

(4) Waiver of procedural irregularity is an indulgence for deserving cases – not a right for the tardy or uninformed.

(5) The winning party is entitled to the fruits of success without undue delay and, generally speaking, the Tribunal needs to be able to close and archive finalised matters when the time allowed for appealing has expired.

(6) Routinely overlooking non-compliance encourages some litigants to ignore them and aggrieves the majority of those who respect and faithfully adhere to the Tribunal practices and procedures.

(7) The delay was too long to be excused without a satisfactory explanation. There is none.

(8) Ignorance of procedural time limits is not a good enough reason. If it was, everyone would use it with predictable results…

  1. [31]
    I am not persuaded that the applicant has provided a reasonable explanation for the failure to file the appeal within time. The comments in Alternatively WWM & S Pty Ltd t/a Vine 21 v Fenwicks Suppliers Pty Ltd are directly relevant in the present case, particularly in circumstances where the applicant’s explanation for the delay is not persuasive.

Prejudice

  1. [32]
    Before turning to a consideration of the possible prejudice to the respondents should the extension of time be granted, it is not contentious that the second respondent has sold the lot. No application has been made by the applicant to join the new owner of the lot. The relief sought by the applicant in the appeal cannot be granted. The second respondent, no longer being the owner of the lot, cannot remove the structure situated on the common property or make good the common property after such removal. This raises the issue of the joinder of the new owner of the lot as a party to the appeal and the removal of the second respondent as a party. The applicant has not taken any steps to address the issues arising out of the sale by the second respondent of the lot in the scheme.
  2. [33]
    It follows from the foregoing that extending time will result in prejudice to the second respondent. She will be exposed to the cost and delay of responding to an appeal filed out of time in circumstances where she is no longer a lot owner. The new owner of the second respondent’s lot is a potential party to the proceeding. Section s 61(3) of the QCAT Act permits the joinder of a person as a party to a proceeding if the person should be bound by or have the benefit of decision of the tribunal in the proceeding or whose interests may be affected by the proceeding. The new lot owner will be prejudiced if joined as a respondent in being required to respond to an appeal in circumstances where, as the second respondent submits, the second respondent sold the lot after the passing of the original deadline to appeal the adjudicator’s decision. The second respondent also says that at the time of settlement of the contract, the applicant had not complied with the Appeal Tribunal directions to serve a copy of the appeal, the application to extend time and written submissions in support of the extension of time application. The first respondent will be prejudiced if time is extended in being required to respond to the appeal particularly in circumstances where the respondents proceeded on the basis that motion 36 had been passed unanimously and the applicant subsequently appears to have changed his mind about agreeing to the construction of part of the deck on common property.
  3. [34]
    However the issue of prejudice to the respondents and the new lot owner is not of itself determinative of the application to extend.

Determination and orders

  1. [35]
    Ultimately, in view of the length of the delay and the failure by the applicant to adequately explain the delay, I am not persuaded that it is in the interests of justice to exercise my discretion in favour of the applicant and allow the extension of time to file the appeal.
  2. [36]
    The application to extend time is refused. The consequence of this order is that the appeal has been filed out of time and must be dismissed.

Footnotes

[1] Body Corporate and Community Management Act 1997 (Qld), s 290(1) (BCCMA).

[2] Body Corporate and Community Management (Standard Module) Regulation 2020.

[3]  [2018] QCATA 70.

[4]  BCCMA, schedule 6

[5]  Ibid.

[6] Malibu [2020] QBCCMCmr 402 (5 August 2020).

[7] Malibu [2019] QBCCMCmr 425 (26 August 2019).

[8]  [2016] QCATA 63.

Close

Editorial Notes

  • Published Case Name:

    Hronis v Body Corporate for Malibu CTS 22174 & Anor

  • Shortened Case Name:

    Hronis v Body Corporate for Malibu CTS 22174

  • MNC:

    [2022] QCATA 187

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown

  • Date:

    22 Dec 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Alternatively WWM & S Pty Ltd v Fenwicks Suppliers Pty Ltd [2016] QCATA 63
2 citations
Jump To
Cite 1 - [2016] QCATA 63
Cite 2 - [2016] QCATA 63
Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70
2 citations
Jump To
Cite 1 - [2018] QCATA 70
Cite 2 - [2018] QCATA 70
Malibu [2019] QBCCMCmr 425
2 citations
Jump To
Cite 1 - [2019] QBCCMCmr 425
Cite 2 - [2019] QBCCMCmr 425
Malibu [2020] QBCCMCmr 402
1 citation
Jump To
Cite 1 - [2020] QBCCMCmr 402

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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