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  4. Altum Properties No. 4 Pty Ltd & Parkridge Management Pty Ltd v Body Corporate for Parkridge Villas - [2024] QCATA 39

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Altum Properties No. 4 Pty Ltd & Parkridge Management Pty Ltd v Body Corporate for Parkridge Villas[2024] QCATA 39

Altum Properties No. 4 Pty Ltd & Parkridge Management Pty Ltd v Body Corporate for Parkridge Villas[2024] QCATA 39

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Altum Properties No. 4 Pty Ltd & Parkridge Management Pty Ltd v Body Corporate for Parkridge Villas [2024] QCATA 39

PARTIES:

Altum properties no. 4 pty ltd

(appellant)

Parkridge management pty ltd

(appellant)

v

body corporate for parkridge villas

(respondent)

APPLICATION NO/S:

APL257-23

MATTER TYPE:

Appeals

DELIVERED ON:

13 March 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Fitzpatrick

ORDERS:

  1. Altum Properties No. 4 Pty Ltd and Parkridge Management Pty Ltd have standing to file an application for appeal as aggrieved persons under s 289(1)(d)(ii)(F) of the Body Corporate and Community Management Act 1987 (Qld).
  2. The time for filing the application for appeal is extended to 8 August 2023.

CATCHWORDS:

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHO MAY EXERCISE RIGHT – PERSON AGGRIEVED – where property developer and letting agent not informed of decision – where developer and letting agent not a party to original proceedings – where developer and letting agent were not invited to make submissions in original proceedings – where commissioner did not include appellants in its section 243 obligations to provide notice to particular persons – whether the developer and letting agent have standing as aggrieved persons – whether the application has been filed within time after receipt of order

Body Corporate and Community Management Act 1997 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Body Corporate for No 9 Port Douglas Road v McEvoy [2011] QCATA 292

Body Corporate for the Reserve CTS 31561 [2017] QCA 153

Busby & Anor v Body Corporate for Balmattum [2016] QCATA 28

Gold Coast Apartment Management P/L v Price & Ors [2017] QCATA 99

McEvoy v Body Corporate for No 9 Port Douglas Road [2013] QCA 168

Rio Villa Pty Ltd v Quay West Brisbane Body Corporate [2018] QCATA 96

Trojan Resorts Pty Ltd v Emprove Holdings Pty Ltd and Body Corporate for the Reserve CTS 31561 [2017] QCA 153

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 8 August 2023 the applicants Altum Properties No.4 Pty Ltd (Altum) and Parkridge Management Pty Ltd (Parkridge) filed an application for appeal from a decision of an Adjudicator appointed by the Commissioner for Body Corporate and Community Management, made on 8 December 2022.
  2. [2]
    Altum and Parkridge say that the decision was received by them on 29 June 2023.
  3. [3]
    The decision comprises two orders:
    1. I declare that at all times since the establishment of the Body Corporate for Parkridge Villas Noosa in August 2019, the regulation module applying to the scheme has been the Body Corporate and Community Management (Standard Module) Regulation 2008, despite anything in the community management statement.
    2. Within 60 days of the date of this order, the Body Corporate for Parkridge Villas Noosa must lodge a request to record a new community management statement for the scheme to identify the Body Corporate and Community Management (Standard Module) Regulation 2008 as the regulation module applying to the scheme.
  4. [4]
    Altum was the original developer of and created the scheme for the body corporate. Parkridge is the caretaker and letting agent for the scheme pursuant to contracts dated 12 August 2019 with the respondent Body Corporate for Parkridge Villas.
  5. [5]
    Two questions arise:
    1. do Altum and Parkridge have standing to bring the appeal as aggrieved persons?;[1] and
    2. has the application been filed within time? That is within 6 weeks after the aggrieved person receives a copy of the order appealed against.[2]

Standing

  1. [6]
    A person aggrieved by an order of an Adjudicator has a right of appeal to the Tribunal on a question of law. Section 289(d)(ii) of the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’) sets out who an aggrieved person is. Relevant to this matter, an aggrieved person is:
    1. a person who, on an invitation under s 243 or s 271(1)(c) made a submission about the application (s 289(1)(d)(ii)(D)); or
    2. a person not otherwise mentioned in this subparagraph against whom the order is made (s 289(1)(d)(ii)(F)).
  2. [7]
    Altum and Parkridge submit that they are persons who should have been, but were not, invited to make a submission about the application under s 243(1)(c) of the BCCM Act, because they are affected persons who are not lot owners. Affected person is defined in Schedule 6 to the BCCM Act as:

For an application, means a person, other than a party to the application, who would be directly and materially affected by the outcome sought by the application.[3]

  1. [8]
    It is a ground of appeal that the Adjudicator did not invite Altum and Parkridge to make submissions in the course of investigating the application, as anticipated by s 271(1)(c) of the Act.
  2. [9]
    The Body Corporate submits that Altum and Parkridge are not affected persons because they are not directly and materially affected by the Order. It is said that only the lot owners in the Scheme at the time the Adjudication Application was made were directly and materially affected by the outcome sought in the Adjudication Application.
  3. [10]
    In reply Altum and Parkridge assert that they have been threatened with the following consequences of the order.
  4. [11]
    As against Altum:
    1. under s 112 of the BCCM Act liability for failing to exercise reasonable skill, care and diligence and act in the best interests of the body corporate; and
    2. breach of fiduciary duty it owed to the body corporate and the purchasers of lots “off the plan”; and
    3. breach of s 140(1) of the Module.
  5. [12]
    The consequences for Parkridge are said to be that there may be recovery of caretaking fees in the event the caretaker’s agreement is void, and there has been mistaken payment of the caretaking fees under the agreement. Further, there may be a loss of value of the caretaker’s agreement if it is invalid or its term is reduced from 25 years to 10 years.
  6. [13]
    Despite these prospects the fact is that neither Altum nor Parkridge were given notice and invited to make submissions about the application. They did not make submissions. On that basis they cannot fall within the ambit of s 289(1)(d)(ii)(D) of the BCCM Act.
  7. [14]
    Is it possible that they might fall within the ambit of s 289(1)(d)(ii)(F) of the BCCM Act?
  8. [15]
    A similar circumstance has been considered by the Appeal Tribunal in Gold Coast Apartment Management P/L v Price & Ors.[4] Justice Carmody dismissed an appeal by a lot owner and manager of property management rights for Condor CTS13200. The question of law raised in that case was whether an adjudicator’s decision nullifying a resolution passed at an extraordinary general meeting for non-compliance with the standard module was valid. His Honour found that the putative appellant was not an aggrieved person under s 289 of the BCCM Act. Addressing s 289(1)(d)(ii)(F) he said that appellant was not a person against whom the Adjudicator’s order was made as distinct from a person aggrieved at the making of the order.
  9. [16]
    I invited submissions from the parties in relation to the effect of that decision.
  10. [17]
    Altum and Parkridge submit that they are affected persons within the definition in the BCCM Act[5] as persons directly and materially affected by the outcome sought by the application.
  11. [18]
    As affected persons they say they should have been given notice of the application by the Commissioner, under s 243(1) or invited to make submissions under s 271(c) of the Act so that they might make a submission about the application. They were not given notice and could make no submission.
  12. [19]
    Altum and Parkridge say that if they had been given such notice or received an invitation, they would then have fallen into the class of persons clearly described as “aggrieved” in s 289(1)(d)(ii)(D).
  13. [20]
    Altum and Parkridge submit that an unjust outcome will result from being denied appeal rights where they would have enjoyed those rights as affected persons if the Commissioner had acted in accordance with the Act.
  14. [21]
    They say that s 289(1) is intended to facilitate an affected person being able to appeal a decision that materially affects them. It is submitted that is the point of s 289(1) establishing a broader than normal group of appellants.
  15. [22]
    An interpretation of s 289(1)(d)(ii)(F) is offered that because it refers to a person against whom the order is made, in the context of the wording of the section, this contemplates a person other than a party to the application as it would usually only be the applicant or respondent against whom an order is made. I take it the upshot of that submission is that the distinction drawn by Justice Carmody as to an aggrieved person under s 289(1)(d)(ii)(F) being one who is aggrieved by an order as opposed to aggrieved at the making of the order is not apposite.
  16. [23]
    Altum and Parkridge submit that s 289(1)(d)(ii) should be read expansively so that if a person has suffered detriment due to a decision of an Adjudicator a right to appeal that decision arises because the decision has been made against them.
  17. [24]
    The respondent says that the language of s 289 is clear and unambiguous and that consistent with the decision of Justice Carmody, s 289 does not mean that each person who alleges they are “affected persons” has a right to appeal an adjudicator’s decision to the appeal tribunal.

Consideration

  1. [25]
    Two questions arise. Are Altum and Parkridge affected persons in that they are directly and materially affected by the outcome? Are they persons against whom the order is made?
  2. [26]
    The submissions made as to ramifications of the decision involve concern as to liability if proceedings are taken against Altum or that the caretaker’s agreement with the Body Corporate could be rendered invalid or reduced from 25 years to 10 years.
  3. [27]
    The lot owners who made submissions to the Adjudicator certainly flag that they wish to bring the caretaker’s agreement to an end, although that was not stated to be an object of the application to the Adjudicator. The Adjudicator did not address the issue.
  4. [28]
    I conclude that the potential liability of Altum and consequences for Parkridge are not remote given the position of the Body Corporate as set out in the letter from its solicitors dated 18 April 2023 and its clear reservation of rights.
  5. [29]
    The threats to Altum and Parkridge are sufficient to justify a finding that they are directly and materially affected by the adjudicator’s decision.
  6. [30]
    As to whether they are persons against whom the Adjudicator’s order is made, I am troubled by Justice Carmody’s determination as to who might be an aggrieved person under s 289(1)(d)(ii)(F), that is, a person against whom an order is made as opposed to a person against whose interests an order is made.
  7. [31]
    Altum and Parkridge distinguish the Gold Coast case on the basis that the appellant in that case had an opportunity to make submissions but did not do so. His Honour said that was decisive against the appellant. In this case Altum and Parkridge had no opportunity to make submissions. I consider the Gold Coast case turns on its own facts in terms of its conclusion that the appellant was a person against whose interests an order was made, rather than a person against whom an order was made.
  8. [32]
    I conclude that Altum and Parkridge fall within the category of person intended to have a right of appeal because they are directly and materially affected by a decision and would, but for a decision not to invite submissions from them, have fallen within the scope of s 289(1)(d)(ii)(D). It is a small step to then conclude that the catchall in s 289(1)(d)(ii)(F) anticipates persons who are directly and materially affected by the decision falling within an expansive meaning of “against whom the order is made”.
  9. [33]
    I consider it is possible to construe s 289(1)(d)(ii)(F) broadly yet consistently with the balance of the section, in that persons who are not named as the subject of an order against them may be aggrieved persons.
  10. [34]
    That being the case, as contended by Altum and Parkridge, it would be unjust for them to have no right of appeal because they fall outside one category of aggrieved person through no fault of their own, but could otherwise fall within a catchall provision in the definition of aggrieved person.
  11. [35]
    I conclude that Altum and Parkridge are aggrieved persons for the purpose of s 289(2) of the BCCM Act.

Has the application to appeal been filed within time?

  1. [36]
    Altum and Parkridge say that the application was filed within 6 weeks of receipt of the Adjudicator’s order. The order was not provided to them after it was made. Their solicitors obtained a copy and provided it to them on 29 June 2023. The application was filed on 8 August 2023.
  2. [37]
    In the alternative it is submitted that the Tribunal should grant leave to extend the time for filing. It is said that the application has merit, that there is no prejudice to the Body Corporate and that it is in the interests of justice that an extension is granted.
  3. [38]
    The Body Corporate submits that Altum and Parkridge acknowledge receipt of a letter dated 18 April 2023 advising the terms of the order and that the 6-week time frame should run from that date. It is said that the decision was available by a public search. On that basis it is said that the application was filed some three months out of time.
  4. [39]
    The point is made that no adequate explanation is given for this delay.
  5. [40]
    As to the merits of the matter, reliance is placed on the argument that Altum and Parkridge are not aggrieved persons. That point has now been decided. Next it is said that the Adjudicator’s findings of fact as to the lots not being predominantly accommodation lots cannot be disturbed on appeal, and that any appeal can only be on a question of law. Finally, it is said that there is prejudice to the Body Corporate in further delay and that the Body Corporate, its committee and any owner, potential owner or interested person has been relying on the Standard Module as the regulation module applying to the Scheme and have made decisions as a result of that understanding since 10 February 2023.
  6. [41]
    In reply Altum and Parkridge say that their grounds of appeal provide a sufficient basis on which to find a reasonably arguable case. They say that they were denied natural justice in being denied the benefit of making submissions to the Adjudicator, pointing to the Adjudicator failing to use his investigative powers as required by s 269 of the BCCM Act.[6] It is submitted that if given the opportunity to make submissions evidence could have been given as to the intention that lots would be predominantly accommodation lots, that the Noosa Council development condition required a letting pool service promoting and managing short term accommodation. Further, expensive resort style facilities are included in the development consistent with that intention.
  7. [42]
    Apart from the natural justice question they say that the other question of law relates to the legal meaning of relevant parts of the BCCM Act.
  8. [43]
    As to prejudice Altum and Parkridge say that they have incurred cost and are exposed to extreme prejudice and financial loss as a result of the Adjudicator’s decision.
  9. [44]
    In a case where an aggrieved person is not a party to proceedings but is entitled to appeal a decision, it is a barren exercise to determine the date from which time to appeal should run when they are not given a copy of the relevant order and have to obtain the order by their own efforts.
  10. [45]
    The best that can be done in the circumstances is for the aggrieved person to act diligently and reasonably promptly to obtain the order and file the application for appeal. I am satisfied that has occurred in this case.
  11. [46]
    Because there is doubt as to whether filing the application for appeal on 8 August 2023 fell within the prescribed 6-week time frame, I am prepared to consider granting an extension of time under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). In Body Corporate for No 9 Port Douglas Road v McEvoy,[7] confirmed by the Court of Appeal[8] it was determined that the 6-week time frame is procedural, and it may be extended with leave of the Appeal Tribunal.[9]
  12. [47]
    I conclude that a reasonable explanation has been given for the delay in filing the application for appeal.  Altum and Parkridge raise an arguable case of a failure to give them natural justice. That is an error of law. I note that no concrete examples of prejudice to the Body Corporate are given in their submissions. I find that there is no significant prejudice which should stand in the way of a comprehensive determination of the issues. Finally, I conclude that it is in the interests of justice that the Altum and Parkridge are heard on an appeal from the decision of the Adjudicator.
  13. [48]
    Accordingly, the following orders are made:
    1. Altum Properties No. 4 Pty Ltd and Parkridge Management Pty Ltd have standing to file an application for appeal as aggrieved persons under s 289(1)(d)(ii)(F) of the Body Corporate and Community Management Act 1987 (Qld).
    2. The time for filing the application for appeal is extended to 8 August 2023.

Footnotes

[1]Body Corporate and Community Management Act 1997 (Qld) s 289 ('BCCM Act’).

[2]Ibid ss 290 (1), 289(2).

[3]BCCM Act (n 1) sch 6 (definition of ‘affected person’).

[4][2017] QCATA 99 ('Gold Coast case').

[5]BCCM Act, Schedule 6 definition of affected person.

[6]Section 271(c) BCCM Act is noted, which entitles an Adjudicator conducting an investigation to require submissions from any person who may be able to resolve matters.

[7][2011] QCATA 292, [11].

[8]McEvoy v Body Corporate for No 9 Port Douglas Road [2013] QCA 168, [62].

[9]See also Busby & Anor v Body Corporate for Balmattum [2016] QCATA 28; Rio Villa Pty Ltd v Quay West Brisbane Body Corporate [2018] QCATA 96.

Close

Editorial Notes

  • Published Case Name:

    Altum Properties No. 4 Pty Ltd & Parkridge Management Pty Ltd v Body Corporate for Parkridge Villas

  • Shortened Case Name:

    Altum Properties No. 4 Pty Ltd & Parkridge Management Pty Ltd v Body Corporate for Parkridge Villas

  • MNC:

    [2024] QCATA 39

  • Court:

    QCATA

  • Judge(s):

    Senior Member Fitzpatrick

  • Date:

    13 Mar 2024

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
Body Corporate for No 9 Port Douglas Road v McEvoy [2011] QCATA 292
2 citations
Jump To
Cite 1 - [2011] QCATA 292
Cite 2 - [2011] QCATA 292
Busby v Body Corporate for Balmattum [2016] QCATA 28
2 citations
Jump To
Cite 1 - [2016] QCATA 28
Cite 2 - [2016] QCATA 28
Gold Coast Apartment Management P/L v Price [2017] QCATA 99
2 citations
Jump To
Cite 1 - [2017] QCATA 99
Cite 2 - [2017] QCATA 99
McEvoy v Body Corporate for No 9 Port Douglas Road [2013] QCA 168
2 citations
Jump To
Cite 1 - [2013] QCA 168
Cite 2 - [2013] QCA 168
Rio Villa Pty Ltd v Quay West Brisbane Body Corporate [2018] QCATA 96
2 citations
Jump To
Cite 1 - [2018] QCATA 96
Cite 2 - [2018] QCATA 96
Trojan Resorts Pty Ltd v Emprove Holdings Pty Ltd [2017] QCA 153
2 citations
Jump To
Cite 1 - [2017] QCA 153
Cite 2 - [2017] QCA 153

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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