Knight v Body Corporate for Jabiru Place
[2023] QCATA 46
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- Unreported Judgment
- Knight v Body Corporate for Jabiru Place[2023] QCATA 46
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Knight v Body Corporate for Jabiru Place[2023] QCATA 46
Knight v Body Corporate for Jabiru Place[2023] QCATA 46
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Knight v Body Corporate for Jabiru Place CTS 19169 [2023] QCATA 46 |
PARTIES: | CLEMENT EDWIN KNIGHT & ELIZABETH GWYNETH MAY KNIGHT (appellant) v BODY CORPORATE FOR JABIRU PLACE CTS 19169 (respondent) |
APPLICATION NO/S: | APL001-22 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 26 April 2023 |
HEARING DATE: | 1 December 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: | Leave to appeal is refused |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FINDINGS OF FACT – where applicant and respondent are adjoining neighbours – where the respondent gave the applicants a notice to contribute to fence – where applicants refused to contribute – where tribunal made orders for contribution – whether the adjudicators finding of fact open on the evidence – whether denial of procedural fairness – whether grounds for a grant of leave – whether any error of law or fact demonstrated. Queensland Civil and Administrative Tribunal Act section 142(3)(a)(i) Terera & Anor v Clifford [2017] QCA 181. |
APPEARANCES & REPRESENTATION: | Applicants appeared in person No appearance for the respondent |
- [1]The Mr and Mrs Knight filed an application for leave to appeal or appeal in relation orders made by the tribunal, in the civil minor disputes jurisdiction, that they should contribute $1,200 towards the construction of a fence on the common boundary with the respondent (“the Body Corporate”). The payment was to be made in fortnightly instalments of $50. There were a number of applications heard together by residents along Bridge St who shared a common boundary with the common property of the Body Corporate. Save for Mr & Mrs Knight they ordered to pay $1,200, however these orders were made with the consent of those parties. The applicants did not consent.
- [2]The appeal was listed for hearing on 1 December 2022. Hearing notices were sent to the parties. Mr Knight appeared in person with authority to act for this wife, but there was no appearance by any representative for the Body Corporate. Despite this, I decided to proceed with the appeal to see if Mr Knight could identify any basis upon which leave to appeal might be granted. If he did, I would then consider the consequences of the absence of the Body Corporate. In doing so I was mindful of objects of the QCAT Act.
- [3]At the commencement of the hearing, I read into the record Mr Knight’s grounds of appeal and the points provided in a handwritten document annexed to the application. I also read his brief submission if support of the appeal filed in the tribunal as follows:
- The judge didn’t listen to what I had to say & I don’t agree with the decision made on 14 December 2021
- Quote for roll top fence and fittings as the fence is 200mm inside Jabaroo (sic) property room for me to replace original on boundary line;
- Jabaroo (sic) address should be McAuliff Place not Bridge St, as they are crossing a government reserve
- Photo1 – picture shows the fence is 200m of boundary;
- Photo 2 – shows where they pulled out stormwater drainage;
- They were asked about sandbagging stormwater under bridge…be a good idea if we could have gates fitted;
- The wooden fence they pulled out was still satisfactory.
- [4]The only document filed by the respondent was a letter of demand for $1,200 with an invoice attached.
- [5]I purposely read out the contents of the documents to ensure that Mr Knight was cognisant of the material before the appeal tribunal. I also advised him that a transcript of the hearing was on the file and that this was an accurate record of what was said by him and the learned adjudicator during the hearing.
- [6]I explained to him that the appeal was not a rehearing of the original matters before the tribunal adjudicator and that Mr Knight had to demonstrate some error of law or finding of fact that was not open on the evidence at the original hearing.[1] In other words I had to decide if there was some basis upon which the appeal could proceed.[2]
- [7]This was difficult for Mr Knight to comprehend as a lay person trying to do his best in the hearing. I told him that I had read through the transcript of the proceeding and the conclusions reached by the tribunal, that each of the neighbours to the Body Corporate had to contribute new fence because the old one needed replacing, was clearly a finding of fact open on the evidence. I invited Mr Knight to again point to some reason why I should disturb those findings.
- [8]His response was that the respondent removed the old fence without his knowledge, the new fence was not built on the boundary but 200mm inside the common boundary and his stormwater pipe had not been replaced. In respect of the location of the new fence, he relied on the alignment of the old fence to assert this point. Although I accept he believes this to be the case, to be certain of this a survey would need to be undertaken to establish the fact. More importantly, this does not go to a basis upon which the decision below was made. Even if I accept this to be the case it does not infect the original decision and provide a ground upon which to interfere with it. Similar considerations relate to the stormwater pipe. As for the demotion of the old fence, this was canvassed in the hearing below but once there was a finding a new fence was necessary, this ground such as it is, also falls away.
- [9]Having canvassed all these issues with Mr Knight and it being apparent that there was no basis upon which leave to appeal could be granted, I decided to conduct the appeal in the absence of the Body Corporate. It would not have been called upon in any event.
- [10]Mr Knight is seeking to re-argue the same case he put before the learned adjudicator to achieve a different outcome. That is not a basis for a grant of leave to appeal. There is nothing to support a conclusion that the learned adjudicator’s findings of fact are demonstrably wrong.
- [11]Mr Knight also submitted, as he did in the primary hearing, that he and his wife are pensioners and have no financial resources to pay a contribution. That submission was considered by the learned adjudicator and therefore he allowed a time payment programme over a 12-month period. Mr Knight reiterated that submission before me and that he has no disposable income from the pension. Although there was no evidence of impecuniosity there is no reason not to accept Mr Knight’s evidence about this. Be that as it may, that is still not a ground upon which leave to appeal could be granted.
- [12]Finally, Mr Knight contends that he was not listened to. To the contrary, the transcript of the hearing demonstrates that he was given every opportunity to put forward his case, the same one as articulated above. He was listened to, and although there were some direct verbal exchanges with Mr Knight threatening to appeal, he was certainly not ignored in what he had to say. Mr Knight was clearly not happy with the outcome, but that does not mean he was denied procedural fairness. This ground of appeal, which involves a question of law, was not established.
- [13]Therefore, in the circumstances, leave to appeal is refused.
- [14]I note there has been no stay of the original decision so therefore I assume Mr Knight is complying with the order and therefore it is unnecessary to make any further order with respect to the instalment payments.