Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCATA
  3. 2024
  4. Huang v Body Corporate for the Dorchester CTS 10749 - [2024] QCATA 64

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • Appeal Pending

Huang v Body Corporate for the Dorchester CTS 10749[2024] QCATA 64

Huang v Body Corporate for the Dorchester CTS 10749[2024] QCATA 64

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Huang v Body Corporate for the Dorchester CTS 10749 [2024] QCATA 64

PARTIES:

jordan jamie huang

(appellant)

v

BODY CORPORATE FOR THE DORCHESTER CTS 10749

(respondent)

APPLICATION NO/S:

APL226-23

ORIGINATING APPLICATION NO/S:

[2023] QBCCCmr 220

MATTER TYPE:

Appeals

DELIVERED ON:

13 June 2024

HEARING DATE:

6 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

The appeal is dismissed.

CATCHWORDS:

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – EXCLUSIVE USE – WHETHER RESOLUTION REASONABLE – where appellant has exclusive use of part of the rooftop area – where improvements built on the exclusive use area without the approval of the respondent – where by resolution the body corporate retrospectively approved the improvements – where water penetration issues arose on the rooftop area – where body corporate undertook investigations to repair and relied on engineering reports requiring waterproofing of the whole of the rooftop area – where respondent rescinded the resolution approving the improvements – where appellant contends resolution unreasonable and invalid – where referred to adjudication – where adjudicator held the resolution valid – whether resolution unreasonable.

HUMAN RIGHTS – HUMAN RIGHT TO PROPERTY – where adjudication of dispute between the lot owner and the Body Corporate – where adjudicator is a public entity – where act or decision of a public entity unlawful if a person’s human right no considered – where adjudicator did not consider the appellant’s human right to property – whether the Human Rights Act 2019 (Qld) applied to the adjudication – whether the adjudicator was engaging in a function of a public nature – whether error of law not to have regard to the Human Rights Act 2019 (Qld) in the adjudication.

Acts Interpretation Act (Qld), s 36

Body Corporate and Community Management Act 1997 (Qld), s 3, s 4, s 94, s 271, s 272, s 289

Human Rights Act 2019 (Qld), s 4, s 9, s 24, s 48, s 58

Ainsworth v Albrecht (Viridian Residences, Noosa) [2016] 261 CLR 167

Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95

Body Corporate for Lang Business v Green [2008] QSC 318

Compass Marinas Australia Pty Ltd v State of Queensland [2021] QCA 293

Dansur v Body Corporate for Cairns Aquarius CTS 1439 & Anor [2022] QCATA 15

Katsikalis v Body Corporate for The Centre [2009] 2 Qd R 320

Independent Finance Group Pty Ltd v Mytan Pty Ltd [2003] 1 Qd R 374

Miami Recreational Facilities Pty Ltd [2021] QCAT 378

Johnston & Ors v Carroll (Commissioner of the Queensland Police Service & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2

Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273

Privovarova v Michelsen [2019] QCA 256

Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] QCA 73

The Dorchester [2023] QBCCMCmr 220

Thompson v Minogue [2021] VSCA 358

APPEARANCES & REPRESENTATION:

Appellant:

Mr Wacker of counsel instructed by Frigo James Legal Pty Ltd

Respondent:

Mr Sweeny of counsel instructed by Pine Lawyers

REASONS FOR DECISION

  1. [1]
    The appellant is the registered owner of Lot 32 in the Dorchester Apartments community management scheme at Surfers Paradise. Lot 32 is on the top floor of the apartment building. The lot has the benefit of an exclusive use defined area on the rooftop of the building. Sometime prior to 2000 the appellant constructed a closed-in bathroom with toilet/shower facility (‘the amenities annex’)[1] on the exclusive use area without obtaining the approval of the respondent.
  2. [2]
    Although in June 2000 the respondent retrospectively resolved to approve the construction of the amenities annex (‘the 2000 resolution’), that resolution was rescinded at a general meeting on 17 March 2022 (‘the 2022 resolution’). The 2000 resolution was revoked because the respondent required access to the exclusive use area, free of the amenities annex, to address serious water penetration problems from the roof of the building.
  3. [3]
    The appellant sought to challenge the validity of the 2022 resolution and applied to the Office of the Commissioner for Body Corporate and Community Management for an adjudication seeking an order to set aside the 2022 resolution on the grounds it was void. The adjudicator who decided the application concluded it was valid and the application was dismissed. This is an appeal from that adjudication.
  4. [4]
    The appeal is brought under s 289 of the Body Community Title Management Act 1997 (Qld) (‘BCCM Act’). Subsection (2) provides that an appeal to the appeal tribunal can only be on a question of law.
  5. [5]
    This narrows the ambit of the appeal, as the Court of Appeal said recently in Allen v Queensland Building and Construction Commission[2] in relation to an appeal on a question of law:

The distinction between an appeal only on a question of law, on the one hand, and an appeal on a question of fact or on a mixed question of fact and law, on the other hand, is absolutely fundamental in the present context. It goes to the jurisdiction of this Court to entertain an appeal from the Appeal Tribunal. An appeal which must be “only on a question of law” is of a narrower ambit than an appeal in which a question of law is merely “involved”. In order to be an appeal which this Court has jurisdiction to hear, the very subject matter of the appeal must be a question of law.

  1. [6]
    The appellant has raised four grounds of appeal, which he submits involve a question of law. They are:
    1. Failing to construe s 94(2) of the BCCM Act in a way that is compatible with human rights;
    2. Failing to give weight, or sufficient weight, to matters; taking into account extraneous or irrelevant matters;[3]
    3. The Respondent misled owners.
  2. [7]
    In summary, the appellant submits that the adjudicator, as a public entity, failed to have regard to the application of the Human Rights Act 2019 (Qld) (‘HR Act’) in coming to the decision to uphold the 2022 resolution. That is because the decision involved the appellant’s human right to his property, being the amenities annex on the exclusive use area, and the resolution had the effect of arbitrarily depriving him of that property.[4]
  3. [8]
    The primary issues are whether the HR Act applied to the adjudicator’s decision-making process, and following on from that, whether the 2022 resolution was unreasonable and contrary to the respondent’s obligations under s 94(2) of the BCCM Act.

Further Background

  1. [9]
    When the scheme was established, a by-law to the community management statement provided:
  1. 19.
    Exclusive use of Roof top area – Lot 32
  1. 19.1
    The owner for the time being of Lot 32 shall with his occupiers and for so long as he shall continue to care for and maintain the same good order and condition [sic], be entitled to the exclusive use of the roof top area identified in Schedule E and the Plan annexed thereto, including the stairs leading to that area from the lot.
  1. “exclusive use area”
  1. [10]
    Subsequently, the owner of lot 32 constructed the amenities annex on the exclusive use area. There was no approval sought, nor gained, from the respondent at the time of construction of the amenities annex. A floor plan of the amenities annex can be seen in the engineering report of GH Consulting Engineers at page 103 of the appeal book.
  2. [11]
    To remedy the lack of formal approval, at an extraordinary general meeting on 29 June 2000 it was resolved that:
  1. 4.
    Authorisation of the bathroom extension of Lot 32
  1. Resolved by special resolution.
  1. That the Respondent approve the construction of a toilet/shower facility on the exclusive use roof top area of lot 32 on the grounds that this structure does not damage or deface the common property, neither does it alter the external appearance or modify the structure or destroy the view….
  1. [12]
    In recent years some water penetration issues have arisen with the rooftop area. This has been investigated by engineers and a number of reports[5] have been provided to both parties to determine how the water penetration problem can be addressed. There is a dispute as to methodology for repair, mainly whether it is necessary to completely remove the amenities annex or work around it. The respondent’s position is that it wants to repair/replace the waterproof membrane over the whole of the rooftop area. To achieve the best possible outcome, it wants the amenities annex completely removed on the exclusive use area so as to ensure the integrity of the waterproofing. It is also necessary to gain access to the utility infrastructure beneath the exclusive use area.[6] Also, access is required for ongoing maintenance.
  2. [13]
    The appellant contends that the waterproofing can be successfully achieved with the amenities annex in situ. That contention is supported by Booth Engineers & Associates, with qualification.
  3. [14]
    To achieve the outcome sought by the respondent, a resolution was passed at the annual general meeting held on 17 March 2022 that:

Motion 10. Rescindment of Approval for the Placement of an Amenities Structure on the Exclusive Use Rooftop Area above Unit 32 (Special Resolution)

RESOLVED that the retrospective approval given by special resolution on 29 June 2000 for the amenities structure (bathroom) to be placed on the exclusive use area above Unit 32 be rescinded.

  1. [15]
    It is accepted by the parties that the respondent had the power to pass the 2022 resolution.
  2. [16]
    However, the appellant disputed the validity of the 2022 resolution and as a result of the dispute it was referred to the Office of the Commissioner for Body Corporate and Community Management[7] and the dispute was adjudicated. The Appellant contended in the adjudication that, in summary:
    1. The respondent misled the lot owners in relation to Motion 10 by encouraging the owners to support the motion because in an earlier adjudication the adjudicator encouraged, or “paved the way”, for the owners to adopt this course. That is because having found the respondent approved the 2000 resolution, the appellant had continuing and ongoing rights to have the improvements on the exclusive use area and would require a resolution of equal value to rescind that resolution.
    2. The respondent put a position to the owners that was inconsistent, or at odds with, the expert reports that were obtained for the purposes of undertaking the waterproofing. In other words they were misled as to the true facts.
    3. The respondent did not act reasonably as it is required to do under s 94(2) of the BCCM Act by not giving the appellant sufficient time to obtain his own expert report to put before the meeting.
    4. It was unreasonable for the respondent to rescind the 2000 resolution in circumstances where he was prepared to allow access to the area underneath the exclusive use area upon the waterproofing work being carried out or reinstallation of the improvements. Also, that there was reliance on the expert report from GH Consulting Engineers that it would be a “serious mistake” to reinstate the annex to its former footprint. That is because the improvements on the exclusive access area “prevents access to critical infrastructure, including high pressure lines, valves, and water supply pipes and the only legal point of drainage available for the North Tower”.[8]
  3. [17]
    On 9 June 2023, an adjudicator dismissed the appellant’s application. The adjudicator was not satisfied that any of the above contentions were established. It is accepted that there was no contention raised before the adjudicator in relation to the application of the HR Act. It is self-evident from the reasons, and conceded, that the adjudicator did not turn his mind to a consideration of whether the HR Act applied to the decision-making process.

The Human Rights Act

  1. [18]
    Section 24 of the HR Act relates to property rights. The section provides that:
  1. All persons have the right to own property alone or in association with others.
  2. A person must not be arbitrarily deprived of the person’s property.
  1. [19]
    Section 58 makes it unlawful where a public entity makes a decision and fails to give proper consideration to a human right relevant to the decision. A public entity is defined in s 9 of the Act. The respondent concedes that the adjudicator appointed under the BCCM Act is a public entity.
  2. [20]
    In considering the application of the Act, the appellant refers to s 48 of the Act which relates to interpretation and provides that:

All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.

  1. [21]
    Reliance is placed on what Martin J said in Owen-D’Arcy v Chief Executive, Queensland Corrective Services[9] that the HR Act:

……falls within the category of legislation described as beneficial and remedial. As such, the provisions bestowing, protecting, or enforcing rights should be construed as widely as their terms permit.

  1. [22]
    This is consistent with how the objects of the HR Act are achieved as set out in s 4, particularly s 4(f):

requiring courts and tribunals to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights…

  1. [23]
    With these principles in mind, the appellant submits that the adjudicator, being a public entity, should have considered his human right to property in the adjudication. Further, the conduct of the respondent in passing the 2022 resolution deprived him of his property rights in the amenities annex on the exclusive use area which was arbitrary, unpredictable, unjust and unreasonable conduct. The conduct was not proportionate to the legitimate aim sought, where there is no “appropriate relationship between the means and the ends”.[10] That is, his loss of property to achieve the waterproofing when another solution was available.
  2. [24]
    Save for the last paragraph the respondent does not challenge the approach to the interpretation and application of the above principles for beneficial and/or remedial legislation.

Is the amenities annex Mr Huang's property?

  1. [25]
    Central to the appeal is whether the effect of the 2022 resolution deprives the appellant of property, or an interest in property. There is no suggestion that the appellant’s interest in the exclusive use area will be affected by the resolution. However, he submits that the removal of the amenities annex and the infrastructure within it, being the shower, toilet, wash basin etc, will result in a loss of his property. It is irrelevant for the discussion whether the respondent, by a further resolution, may approve the replacement by the appellant or the respondent of the amenities annex after the waterproofing work is done. That is because this leads to a fact finding process beyond the scope of the appeal.
  2. [26]
    Presently the appellant has exclusive use to the rights and enjoyment of that part of the common property on the rooftop, to the exclusion of other lot holders.[11] He was authorised to make improvements to the exclusive use area by the construction of the amenities annex. Lot 32 has had the exclusive benefit of the amenities annex for many years, and still does.
  3. [27]
    The appellant submits that the right granted to Lot 32 by the exclusive use by-law and the 2000 resolution is a right in property as defined in the Acts Interpretation Act 1954 (Qld):[12]

property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.

  1. [28]
    As is apparent, the definition is very wide and clearly includes the appellant’s interest in the exclusive area. This is a beneficial interest that attaches to and runs with the owner’s legal interest in Lot 32 even though the legal interest of the exclusive use area is part of the common property, of which it forms part, and remains with the respondent. That is, of course, so long as he or any owner of Lot 32 complies with the conditions in the by-law.
  2. [29]
    The appellant then contends that the right given to him to improve the exclusive use area with the amenities annex creates an interest in property to those items constituting the amenities annex, being the structure and the items in the annex, the toilet system, shower and hand basin. All of these items are fixed to the exclusive use area, which is part of the common property.
  3. [30]
    In Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads,[13] Sorrento claimed compensation in respect of land resumed by the Department of Main Roads over which Sorrento had car parking rights for its medical centre pursuant to a lease with the registered owner of the carpark, Malchada Pty Ltd. In deciding whether Sorrento had a right to compensation for the resumption, the Court of Appeal considered s 36 of the Acts Interpretation Act 1954 (Qld) which defined “interest, in relation to land or other property” which included, inter alia:

A right, power or privilege over, or in relation to, the land or other property

  1. [31]
    The Court held[14] that although Sorrento did not have an “interest in the land” it had a right or power over or in relation to the land by virtue of its lease with Malchada. Therefore it was entitled to compensation for the resumption.
  2. [32]
    The respondent disputes the appellant’s claim he had any property interest in relation to the amenities annex fixed to the exclusive use area. It accepts the application of the definition of “property” in the Acts Interpretation Act 1954 (Qld), but by virtue of the exclusive use by-law the appellant is restricted to the “use of” the exclusive use area and by implication the “use of” the amenities annex. He has no proprietary interest in the annex as constructed and the internal fixtures.
  3. [33]
    Having regard to the history, it is also submitted that the appellant built the amenities section and included the toilet, shower and wash basin which was retrospectively approved. The approval was not granted in perpetuity and did not, as it were, run with the by-law for exclusive use. The respondent submits that the appellant did not have a property right but had a right to use the amenities annex consistent with the use granted in the by-law.
  4. [34]
    The respondent further submits that the amenities annex is now a fixture upon, and connected to the common property. Therefore, the fixtures are now common property owned by all the lot owners in proportion to their lot entitlements, including the appellant.[15] By reference to the definition the respondent argues that by virtue of the fixtures becoming common property the amenities annex is therefore owned in “association with others” being the other lot owners in the scheme. This means that any deprivation for the purposes of s 24(2) of the HR Act is imposed on all lot owners. The respondent also contends that the rights created by the by-law do not create any property interest but grant the occupier of the lot, for the time being, exclusive use to the rights and enjoyment of part of the common property, not a demise to part of the common property.[16]
  5. [35]
    However, the appellant is not claiming a property right in respect of the exclusive use area but just the infrastructure on the exclusive use area for which he was given permission, albeit retrospectively, to construct. In a similar vein, the appellant is not trying to convert something into property which it is not, e.g. the exclusive use interest.[17] Finally, it is not the by-law that confers on the appellant any title to the annex or any unconditional right to “have and retain” the amenities, it is the 2000 resolution which approved his entitlement to the use of the amenities annex on the exclusive use area. That gave him an entitlement or interest in relation to the property in the annex.
  6. [36]
    Put another way, the respondent is contending that despite the appellant buying all the materials for the constructing the annex, and then buying and installing all of the bathroom items, once constructed and fixed to the common property, his title in the materials and bathroom items automatically passed to the respondent.
  7. [37]
    The corollary to that argument is that if the amenities annex becomes part of the common property, there is nothing to prevent the respondent from simply removing the fixtures providing there is a resolution permitting it to do so, without dissent.[18] It did not need to rescind the 2000 resolution. On the respondent’s argument, once fixed to the common property, and with approval (by the 2000 resolution) or without it, the amenities annex becomes common property and the 2022 resolution does not change that characterisation.
  8. [38]
    The respondent has never claimed ownership of the amenities annex as part of the common property under the scheme, and it would be unreasonable for it to do so. In other words, by resolving to grant approval of the amenities annex on the exclusive area constructed by the appellant, the 2000 resolution is inconsistent with the notion of ownership, as is now submitted by the respondent.
  9. [39]
    Also, when the 2000 resolution is considered, there is nothing in the wording of that resolution which would suggest that property in the amenities annex, toilet/shower, or washbasin in the exclusive use area passed to the Body Corporate and became part of the common property. In fact, the wording of the resolution is to the contrary because the construction of the facility is conditional upon there being no damage to the common property, etc.
  10. [40]
    Section 36 of the Acts Interpretation Act 1954 (Qld) defined “interest, in relation to land or other property” which included, inter alia:

A right, power or privilege over, or in relation to, the land or other property.

  1. [41]
    Applying this section, I find that although the appellant does not have legal ownership in the sense that the amenities annex forms part of the exclusive use area under the by-law, he does have an interest in relation to “other property’ by virtue of his financial investment in the annex, and therefore has a “right or privilege over” that property as defined.
  2. [42]
    Therefore, I have come to the conclusion that, like in Sorrento, the appellant did have a proprietary interest in the amenities constructed on the exclusive use area.

The Human Rights Act not considered in the adjudication

  1. [43]
    The adjudicator did not give any consideration to the application of the HR Act in his reasons for decision. Neither the appellant nor the respondent relied on, or made any submissions about, its application to the validity of the 2022 resolution. The Appellant certainly did not, and as much is conceded, take the point that the passing of the 2022 resolution “arbitrarily deprived” him of his property rights in the amenities on the exclusive use area as he now argues on appeal.
  2. [44]
    It is contended by the appellant that under the HR Act it was incumbent on an adjudicator to have regard to the Act whether the point was raised by him or not. If this is correct then that is an error of law.
  3. [45]
    In support of that contention, he submits that an adjudicator’s function to resolve disputes falls within Chapter 6 of the BCCM Act which is the responsibility of the Commissioner. An adjudicator is a “public entity” for the purposes of s 58 of the HR Act, and as such is bound by s 58 of the HR Act which provides:
  1. (1)
    It is unlawful for a public entity –
  1. (a)
    to act or make a decision in a way that is not compatible with human rights;
  1. (b)
    in making a decision, to fail to give proper consideration to a human right relevant to the decision.
  1. ……
  1. (5)
    For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to –
  1. (a)
    identifying the human rights that may be affected by the decision; and
  1. (b)
    considering whether the decision would be compatible with human rights.
  1. [46]
    The respondent on the other hand submits that because the appellant did not rely on the HR Act in the adjudication, it is now too late to do so. The respondent relies on the general principle that on appeal, an argument not put before the original decision maker should not be considered in the appeal. In Compass Marinas Australia Pty Ltd v State of Queensland[19] the Court of Appeal said:

A party ordinarily should not be permitted to raise new points on appeal if, had the points been raised at trial, they might possibly have been met by additional evidence at the trial or the opponent might have conducted its case differently: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; Coulton v Holcombe (1986) 162 CLR 1 at 7-9; Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly trading as Stork Food Systems Australasia Pty Ltd) (2009) 254 ALR 661 per Fraser JA at 698-699 [149].

  1. [47]
    There is of course some force to the submission because the HR Act point is entirely new and involves a consideration of whether the appellant’s interest in the amenities annex is property under s 24 of the HR Act. Deciding whether the HR Act applied to the dispute does not involve a question of fact.
  2. [48]
    An important consideration here is that there is no dispute of fact as to the history involving the amenities annex in the complex. The new issue for determination involves a question of legal interpretation, to identify whether the appellant has an interest in relation to property. If that is the case, based on the undisputed facts, and it is decided that the HR Act applies, then clearly it is in the interests of justice for the new point to be considered. In these circumstances it is difficult to see how the respondent would be prejudiced.
  3. [49]
    Another consideration is that an adjudication is not necessarily adversarial in the determination of the dispute, it can also be inquisitorial. In addition to what the parties might say or rely on, the adjudicator, under s 271 of the BCCM Act, can consider additional matters. An example is ss (1)(d) which permits the adjudicator to enter and inspect common property. This is not dependant on the parties requiring or requesting the adjudicator to investigate. It is for the adjudicator to exercise any of the powers conferred under the Act to assist in resolving the dispute.
  4. [50]
    Therefore, on an appeal from an adjudication, points not taken about an adjudicator’s exercise of the powers under s 271 would not attract the same general criticism as those not taken in an adversarial setting.
  5. [51]
    It is apparent, from the way the adjudication was conducted and this appeal argued, that the implications of the HR Act on the adjudication were simply not appreciated by the parties or the adjudicator. That is not really surprising as the HR Act was only introduced in 2019 and its full application in the public sector is still evolving.
  6. [52]
    For these reasons, the fact that no point was taken about the application of the HR Act below is not fatal to the appeal.

Reasonableness

  1. [53]
    Section 94 of the BCCM Act requires the Body Corporate to act reasonably in carrying out the functions of the Body Corporate. The question of law raised in the appeal is whether, by revoking the 2000 resolution, it acted arbitrarily without regard to the appellant’s property interest in relation to the amenities annex. The reasonableness of the conduct, the appellant submits, must be construed having regard to the appellant’s human rights.
  2. [54]
    The s 94 obligations were considered by the adjudicator:[20]

The body corporate must act reasonably in the exercise of its functions, including when making decisions. The terms “reasonably” and “act reasonably” have their ordinary meanings. Reasonable action ought to be evidence-based and rational. The question of reasonableness is not whether the decision was correct but whether the body corporate acted reasonably when arriving at it. There will often be a range of decisions, including opposite decisions, that can reasonably be reached on the same body of evidence.

  1. [55]
    On a reading of the whole of the adjudicator’s decision, his conclusion was reasonable when comparing the expert evidence as to the methodology of waterproofing the rooftop, saying it was reasonably open to the body corporate to remove the annex and keep it away. The alternate proposal was also considered, leaving the adjudicator with a choice. Choosing one over the other could not be considered unreasonable in the context of the methodology of addressing the water penetration issue. This is further discussed below.
  2. [56]
    If that was the only basis for contending that the body corporate’s decision was unreasonable, and as that is factually based, there would be no substance to the appeal. The question of reasonableness then comes down to the application of the HR Act.
  3. [57]
    Turning then to the grounds of appeal, they must be considered in light of the findings made above. Firstly, that the appellant has a property interest in relation to the amenities annex. Secondly, the fact that the point about the application of the HR Act not taken in the adjudication is not fatal to the appeal. Thirdly, there is nothing to impugn the reasons of the adjudicator as to reasonableness having regard to the ambit of the issues to be decided in the adjudication.[21]

Ground 1 - Failing to construe s 94(2) of the BCCM Act in a way that is compatible with human rights

  1. [58]
    Because the appellant’s human right to property was not considered in the adjudication, the contest related to whether the passing of the 2022 resolution was reasonable having regard to the engineering reports and the manner in which the waterproofing issue could be best addressed. If the ambit of the adjudication was confined to this issue, it could not be said that the resolution was unreasonable, as the adjudicator found.
  2. [59]
    However, if the HR Act does apply and should have been considered by the adjudicator, and was not, then it may be that the 2022 resolution could be said to be unreasonable. That is not for me to decide.
  3. [60]
    That then raises the question as to whether, despite the findings about property, the HR Act applied to the dispute before the adjudicator in any event.
  4. [61]
    This dispute about the validity of the 2022 resolution is between a lot owner and the body corporate for the scheme. Therefore, that dispute is one of a private nature and insofar as the members of the scheme passed the resolution, it was in reliance on the engineering reports about the methodology of addressing the waterproofing of the rooftop. There was no obligation on the body corporate committee or other lot owners at the meeting, when supporting the resolution, to consider the appellant’s human right to property.[22]
  5. [62]
    Turning then to the adjudication, Chapter 6 of the BCCM Act deals with dispute resolution. The meaning of “dispute” is, relevantly here, a dispute between:
    1. The body corporate for a community titles scheme and the owner or occupier of a lot included in the scheme[23]
  6. [63]
    Pursuant to s 228, the Chapter’s purpose is as follows:
  1. (1)
    This chapter establishes arrangements for resolving, in the context of community titles schemes, disputes about –
  1. (a)
    ………………..
  1. (b)
    the exercise of rights or powers, or the performance of duties under this Act or community management statements
  1. [64]
    As between the body corporate and an owner of a lot, the HR Act does not fall within the “context” of the community title scheme, and Chapter 6. Nor is the dispute one of a public nature.
  2. [65]
    The reference to “context” is also referred to in the orders that the adjudicator can make under s 276 of the BCCM Act. which provides:
  1. (1)
    An adjudicator to whom the application is referred may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –
  1. (a)
    …………….
  1. (b)
    The exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or
  1. (c)
    …….
  1. [66]
    Although the appellant agrees that the HR Act did not impose an obligation on the respondent to consider the appellant’s human right about property when the 2022 resolution was passed, he submits that the adjudicator was required, when determining the dispute, “to act and make a decision in a way that is……compatible with human rights”.[24] The appellant relies on what Martin SJA said in Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor about the application of s 58 of the HR Act[25] which imposes two obligations on the decision maker:
    1. A substantive obligation: not to make a decision in a way that is incompatible with human rights; and
    2. A procedural obligation: not to fail to give proper consideration to a relevant human right in making a decision.
  2. [67]
    Although in Johnston the respondent primary decision maker was a public entity, the Commissioner for Police who made the decision, that is not the case here. In making the original decision, one of the issues raised was whether the Commissioner considered the appellants’ human rights in making directions requiring serving police officers to be vaccinated for Covid 19.
  3. [68]
    Here the resolution the subject matter of the adjudication between the appellant and the respondent was of a private nature. But, the appellant submits, once a consideration of that decision by the respondent was referred to a public entity, the adjudicator, section 58 of the HR Act is engaged and it is not necessary to consider the relationship between the parties when the decision the subject of the adjudication was made. The adjudicator’s function in respect of the dispute is to “act” and make a “decision” compatible with human rights. The appellant contends that this is a function of a public function.
  4. [69]
    In other words the appellant submits that it is the making of a decision by the adjudicator, that attracts the application of the HR Act, not the nature of the original dispute as between the appellant and the respondent.
  5. [70]
    That is relevant here because in respect of dispute resolution, the adjudicator’s function is governed by the provisions of the BCCM Act, even though it is accepted that the adjudicator is a public entity.
  6. [71]
    Because under the BCCM Act the ambit of dispute resolution is in the context of the Act and the community titles schemes, the effect of the appellant’s contention would mean that all adjudications of private disputes would necessarily include the obligations under s 58(1) of the HR Act. Therefore disputes of a private nature between lot owners and body corporates would become disputes of a public nature under s 10 of the HR Act. Dispute resolution is not then confined only to the context of the BCCM Act and the scheme, but another layer is added, that being a statutory imposition of a consideration of a party’s human right under the HR Act.
  7. [72]
    To address this question, the parties were invited to file further submissions. The appellant submitted, similar to what is set out at [49] above, that the adjudicator’s task can be more than just considering the arguments of the parties. The adjudicator can also “investigate the application and decide whether it would be appropriate to make an order on the application”.[26] Also “make an order that is just and equitable in the circumstances…to resolve a dispute”.[27] It follows that the adjudicator, in coming to a decision, will not only have regard to what the parties say about the dispute but also rely on the adjudicator’s own independent inquiry, if necessary. Therefore, in doing so, the adjudicator must act or make a decision that is compatible with human rights, and s 58(4) does not apply because then the adjudicator’s function must then be one of a public nature.
  8. [73]
    There is no guidance in the HR Act as to what might be an act or decision of a private nature but the purpose of sub-s (4) is to limit the scope of the application of the HR Act to the public sector. This is consistent with the objects of the Act which are aimed at building “a culture in the Queensland public sector[28] that respects and promotes human rights”.[29] This case has nothing to do with human rights in the public sector. It is a dispute of a private nature between a lot owner and the body corporate that has been referred to adjudication for resolution.
  9. [74]
    The respondent submits the adjudicator, although a public entity:
    1. Was not performing functions of a public nature;
    2. Was acting in a judicial capacity (as a tribunal) in making the adjudication orders;
    3. The act or decision was “of a private nature”; and
    4. The adjudicator could not reasonably have made a different decision “because of a statutory provision”.
  10. [75]
    In considering whether the adjudicator is engaging in a function of a public nature under the BCCM Act, it is relevant to have regard to the substance of the dispute the public entity/adjudicator is required to make a decision about. Unlike Johnston, this is not a decision by a public entity about an issue occurring in the public sector. Bearing in mind the factual issues under consideration in Johnston was the imposition of requirements on police officers to be vaccinated. With respect to the meaning of “private”, Justice Martin said:

The meaning of “private” is not defined in the HRA. It is used as a means of distinguishing between acts of a public service employee in the employee’s private capacity and those acts which are a part of, or connected with, the work done by that person as a “public entity”. How public service employees decide what to do in their personal time are decisions of a private nature. A decision by a public service employee to engage someone to paint that employee’s private residence would not come within s 58. A decision by the same person to engage someone to paint a government school building would.[30]

  1. [76]
    Both parties relied on this statement to contend for different outcomes. The appellant submitted that the decision of the adjudicator was made in his capacity as a public entity and was not made in the adjudicator’s personal time nor was it a decision of a personal nature, therefore he is performing a function of a public nature. Clearly, in that sense the adjudicator’s decision was not of a personal nature, nor could any decision that was made in an adjudication under the BCCM Act be of a personal or private nature.
  2. [77]
    The respondent submits, having regard to the underlying issue before the adjudicator, he was not “performing functions of a public nature” even though a public entity. Section 10 of the HR Act sets out the matters that might be considered when deciding whether “a function of an entity is of a public nature”. Although the function of the adjudicator may satisfy one or more of that criteria is ss 1, ((a) and (d)), it is also necessary in my view, to consider the actual functions to be performed. Some guidance can be gained from ss (3) which sets out the various services which are of a public nature and include: emergency services; public health services; public disability services; public education, including public tertiary education and public vocational education; public transport; and a housing service by a funded provider or the State under the Housing Act 2003 (Qld). It is evident from this list that dispute resolution between private parties under the BCCM Act does not fall within any of these characterisations.
  3. [78]
    Although the circumstances here may engage ss (4) because the dispute the subject of the adjudication is of a private nature, which may mean the HR Act does not apply, it is still necessary to establish the adjudicator’s function was of a public nature. He was performing a specific role under the BCCM Act that required him to make a decision in the context of that Act and the community titles scheme, unrelated to the public sector. As the substance of the adjudication was in relation to a private dispute, it did not involve him performing a function of a public nature, that is, whether the passing of the 2022 resolution was valid.
  4. [79]
    In short, I find that the adjudication is not a function of a public nature under s 10 of the  HR Act and the Act does not apply to the adjudication.
  5. [80]
    That conclusion can be further tested in this way. Section 3 of the BCCM Act sets out the primary objects of the Act one of which is the “operation and management of community titles schemes”. Under s 4 the secondary objects are set out which include:
  1. (a)
    To balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes;
  1. ……………………
  1. (e)
    to ensure that bodies corporate for community titles schemes have control of the common property and body corporate assets they are responsible for managing on behalf of owners of lots included in the schemes;
  1. ……………………..
  1. (i)
    to provide an efficient and effective dispute resolution process.
  1. [81]
    In discharging the dispute resolution process, any adjudication will involve disputation between only those that have rights and obligations under the BCCM Act.[31] The appellant’s contention, as I said, adds another layer to that process that goes beyond the practicality of resolving disputes between private entities. In this case the adjudicator was making a decision about a private dispute between the appellant and the respondent.
  2. [82]
    Although I have come to the conclusion that the HR Act did not apply to the adjudication, the respondent advanced alternate submissions in case the HR Act did apply. I will briefly address those submission.
  3. [83]
    The respondent further submits that s 58(1) still has no application because s 9(4) provides that a “public entity” does not include “a court or tribunal, except when acting in an administrative capacity”. It equates the function of adjudication under the BCCM Act as a quasi-judicial function to determine the dispute between the parties and therefore it is a “tribunal”. The adjudication is certainly a vehicle for dispute resolution, like mediation, but as already outlined above, the adjudicator has inquisitorial powers to investigate the substance of the dispute independently to assist in the decision making process. This is clearly an administrative function available to the adjudicator whether used or not. I therefore conclude that the adjudication does not fall within the ambit of a “tribunal” for the purposes of s 9(4).[32]
  4. [84]
    In further support of this contention the respondent also relies on the fact that an order made by an adjudicator can be filed and registered in Magistrates Court for enforcement under s 287 of the BCCM Act. The Court then has various powers under sub-section (3) to appoint an administrator to perform any obligations under the adjudicator’s order.  This, in my view, does not mean that the adjudication is the same as a tribunal. Section 287 merely provides an administrative vehicle to give effect to any orders.
  5. [85]
    Also because any appeal can only be on a question of law from an adjudication does not change its characterisation into a tribunal. These last two contentions do not assist the respondent.
  6. [86]
    As the HR Act does not apply to the adjudication, there is no basis as a matter of law that the adjudicator’s decision was not reasonable because of a failure to have regard to the HR Act.

Grounds 2 and 3 – failing to give weight, or sufficient weight, to matters; taking into account extraneous or irrelevant matters

  1. [87]
    In considering this ground of appeal it is necessary to keep in mind that one does not delve into factual issues in deciding whether there was an error of law in the conclusions reached by the adjudicator. As I have mentioned above at [32], the adjudicator gave consideration to the competing opinions of the engineers briefed to provide reports about the rectification of the water penetration problems.
  2. [88]
    The appellant submits that there was a failure to consider the alternate proportionate solution and that is to leave the amenities in place and provide an ongoing access to an area of 1200 x 1500 mm within the exclusive access area for future maintenance. This outcome would be a reasonable balance in addressing the water penetration problem and preserving the entitlement to the property he has in the fixtures on the exclusive use area.
  3. [89]
    The appellant submits[33] that there was a failure to give weight, or sufficient weight, to the following:
    1. The repair works that the body corporate wish to undertake on the common property within the appellant's exclusive use area on which the amenities annex is located could be undertaken without the revocation of the 2000 resolution;
    2. The works could be undertaken without the need to remove the amenities annex;
    3. The appearance expert engineer had opined that it was not necessary to completely remove the amenities annex to undertake the works;[34]
    4. The body corporate’s own expert had opined that only an area of unimpeded access of 1200 x 1500 mm was required “for inspection and maintenance of gate and pipes… and not complete removal of the entire amenities annex;[35]
    5. The body corporate had not afforded the appellant the opportunity to obtain, and put before the owners at the annual general meeting held on 17 March 2022, an expert report in response to the expert report obtained by the body corporate from its expert dated 22 February 2022
  4. [90]
    The irrelevant matters said to be taken into account by the adjudicator include the contradictory comments that the annex prevents access to critical infrastructure which cannot be tolerated but access of or inspection and maintenance should be sufficient. Also, it would be a serious mistake to leave the amenities annex in place during and after the remediation work was carried out.
  5. [91]
    What is apparent when reading the decision is that the adjudicator took great care in identifying not only the issues that were put before the members at the meeting, by reference to the GHCE report, but also the report obtained by the appellant from Booth Engineers and Associates of 21 October 2021, although not before the meeting.[36] The author said with respect to the efficacy of removal of the amenities annex for rectification work:

It is my opinion that it will be possible to undertake rectifications to the slab waterproofing membrane below it without removing the structure, although it is likely that this would be tedious and thus more costly. I also note that the potential success of such a strategy could only be confirmed during the works, when the membrane/posts below the steel frame structure are better exposed further noting that any repairs to potentially corroded steel elements/ancillary items would then need to be repaired simultaneously so as not to damage any membrane repairs.[37]

  1. [92]
    The opinion expressed in the Booth report was by no means conclusive about the effectiveness of the waterproofing with the annex in place. That was an important feature of the adjudication because motion 10 was for the benefit of all lot owners in the scheme to ensure that repair works were appropriate, permanent and able to be monitored in the future. Any water ingress to the complex, particularly its location on the ocean foreshore, is a very serious matter.
  2. [93]
    Any preference to the approach adopted by GHCE is supported by the inconclusiveness of the Booth report and also the cost which would be borne by the lot owners through the respondent’s administrative fund or sinking fund.
  3. [94]
    It is evident from the reasons that the adjudicator gave consideration to both the background to the putting forward of motion 10, and the opinions of the engineering experts in concluding that the passing of motion 10 reasonable. He said at [30] of the reasons that:

In these circumstances, it was reasonably open to the body corporate to prefer to remove the existing annex altogether and keep it away, notwithstanding that Mr Huang might be amenable to permitting access beneath it on condition of its subsequent reinstatement.

  1. [95]
    Applying what Nettle J said in Ainsworth v Albrecht (Viridian Residences, Noosa):[38]

Reasonableness is not something about which informed views are likely to, or should, differ. Reasonableness does not mean whatever the adjudicator considers to be just an equitable and it does not involve the application of discretionary considerations of the kind that were essayed in Norbis v Norbis. The standard of reasonableness is objective and it is to be applied in this case at the time of rejection of (the defeated) motion taking into account all relevant factors including factors which were extent but which the parties may not have identified or appreciated at the time, as is implied by the words “in the circumstances…”

There is no apparent basis to say that having regard to the material before the adjudicator his decision was unreasonable.

Ground 4: The body corporate misled lot owners

  1. [96]
    This ground relates to the information given to lot owners about the proposed motion 10 to be voted on. The information by way of a memorandum to lot owners included the following:

If any Lot Owner considers that Mr Huang should be given additional time to respond to the [body corporate’s expert] report dated 22 February 2022, and therefore they cannot vote on the Motion, then they are of course, free to abstain.

  1. [97]
    The complaint is that the memo did not inform the lot owners they could vote against the motion and therefore it was misleading. I see nothing misleading in the memorandum. It contained two options, either to “vote” or to “abstain”. It is reasonable to assume that lot owners in the scheme have enough common sense to know that to “vote” means to vote in the positive or the negative. The memo simply highlighted the fact that there was a third option, that is to abstain. There is no error of law here.

Summary

  1. [98]
    The principal issue of contention, as a matter of law, was whether the adjudicator should have had regard to the HR Act in coming to his decision. For the reasons stated above I have come to the conclusion that because the adjudicator is a public entity and this decision related to an act or decision of a private nature between the appellant and the body corporate, the HR Act did not apply to the adjudication. Therefore the decision was not infected by an error of law. Furthermore the adjudicator’s decision on the evidence before him could not be said to be unreasonable for the purposes of s 289 of the BCCM Act
  2. [99]
    As for the balance of the grounds for appeal I have come to a similar conclusion about reasonableness.
  3. [100]
    The appeal is dismissed.

Footnotes

[1]  By-law at page 551 of the Appeal Book, and floor plan at page 103 of the Appeal Book.

[2]  [2024] QCA 24; following Privovarova v Michelsen [2019] QCA 256.

[3]  This incorporates grounds 2 & 3.

[4]  HR Act, s 24.

[5]  GH Consulting Engineers Report dated 22 February 2022; Booth Engineers & Associates Pty Ltd dated 21 October 2022 and commentary on the reports.

[6]  The area is marked in green in the GHCE report – Appeal book page 103.

[7] The Dorchester [2023] QBCCMCmr 220.

[8]  Ibid at [29].

[9]  [2021] QSC 273 at [118]-[120] and followed in Johnston & Ors v Carroll (Commissioner of the Queensland Police Service & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 at [268] (‘Johnston’).

[10]  Appellant’s submissions at [32] citing Thompson v Minogue (2021) VSCA 358 at [55].

[11]  BCCM Act, s 170.

[12]  Appellant’s submissions paragraph 23.

[13]  [2007] QCA 73 (‘Sorrento’).

[14]  Per McMurdo P and Chesterman J.

[15]  Transcript page 36 lines 5-25.

[16] Independent Finance Group Pty Ltd v Mytan Pty Ltd [2003] 1 Qld R 374 at [86].

[17] Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95 at [325]-[333].

[18] Katsikalis v Body Corporate for The Centre [2009] 2 Qd R 320; Dansur v Body Corporate for Cairns Aquarius CTS 1439 & Anor [2022] QCATA 15.

[19]  [2021] QCA 293 at [27].

[20]  Adjudicator reasons [26].

[21]  Specifically considered under Grounds 3 & 4 below.

[22]  HR Act, s 58(4).

[23]  BCCM Act, s 227(1)(b).

[24]  Appellant’s submission in reply at [4].

[25]  [2024] QSC 2 at [67].

[26]  BCCM Act, s 269(1).

[27]  Ibid, s 276(1).

[28]  My emphasis

[29]  HR Act, s 3(b).

[30] Johnston at [237].

[31] Body Corporate for Lang Business v Green [2008] QSC 318 at [30]-[31].

[32]  An example is in Member Gordon’s decision in Miami Recreational Facilities Pty Ltd [2021] QCAT 378 from [49].

[33]  Appellant’s submissions [59].

[34]  Appeal Book [566]-[589]; [581].

[35]  Appeal Book [103]; [110].

[36]  Appeal Book [566] at [581].

[37]  Adjudicator’s Reasons [27(e)] Appeal Book [27].

[38]  (2016) 261 CLR 167.

Close

Editorial Notes

  • Published Case Name:

    Huang v Body Corporate for the Dorchester CTS 10749

  • Shortened Case Name:

    Huang v Body Corporate for the Dorchester CTS 10749

  • MNC:

    [2024] QCATA 64

  • Court:

    QCATA

  • Judge(s):

    Member Richard Oliver

  • Date:

    13 Jun 2024

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QCATA 6413 Jun 2024-
Notice of Appeal FiledFile Number: CA9058/2411 Jul 2024-

Appeal Status

Appeal Pending

Cases Cited

Case NameFull CitationFrequency
Ainsworth & Ors v Albrecht & Anor (2016) 261 CLR 167
2 citations
Jump To
Cite 1 - (2016) 261 CLR 167
Cite 2 - (2016) 261 CLR 167
Allen v Queensland Building and Construction Commission [2024] QCA 24
1 citation
Jump To
Cite 1 - [2024] QCA 24
Austin BMI Pty Ltd v Deputy Premier(2023) 16 QR 377; [2023] QSC 95
2 citations
Jump To
Cite 1 - [2023] QSC 95
Cite 2 - [2023] QSC 95
Body Corporate of the Lang Business CTS 5941 v Green [2008] QSC 318
2 citations
Jump To
Cite 1 - [2008] QSC 318
Cite 2 - [2008] QSC 318
Compass Marinas Australia Pty Ltd v State of Queensland(2021) 9 QR 703; [2021] QCA 293
2 citations
Jump To
Cite 1 - [2021] QCA 293
Cite 2 - [2021] QCA 293
Cook's Construction Pty Ltd v SFS 007.298.633 Pty Ltd (2009) 254 ALR 661
1 citation
Jump To
Cite 1 - (2009) 254 ALR 661
Coulton v Holcombe (1986) 162 CLR 1
1 citation
Jump To
Cite 1 - (1986) 162 CLR 1
Dansur v Body Corporate for Cairns Aquarius CTS 1439 [2022] QCATA 15
2 citations
Jump To
Cite 1 - [2022] QCATA 15
Cite 2 - [2022] QCATA 15
Independent Finance Group Pty Ltd v Mytan Pty Ltd[2003] 1 Qd R 374; [2001] QCA 306
2 citations
Jump To
Cite 1 - [2003] 1 Qd R 374
Cite 2 - [2003] 1 Qd R 374
Johnston v Commissioner of Police [2024] QSC 2
3 citations
Jump To
Cite 1 - [2024] QSC 2
Cite 2 - [2024] QSC 2
Cite 3 - [2024] QSC 2
Katsikalis v Body Corporate for “The Centre”[2009] 2 Qd R 320; [2009] QCA 77
2 citations
Jump To
Cite 1 - [2009] 2 Qd R 320
Cite 2 - [2009] 2 Qd R 320
Miami Recreational Facilities Pty Ltd [2021] QCAT 378
2 citations
Jump To
Cite 1 - [2021] QCAT 378
Cite 2 - [2021] QCAT 378
Owen-D'Arcy v Chief Executive, Queensland Corrective Services(2021) 9 QR 250; [2021] QSC 273
2 citations
Jump To
Cite 1 - [2021] QSC 273
Cite 2 - [2021] QSC 273
Pivovarova v Michelsen(2019) 2 QR 508; [2019] QCA 256
2 citations
Jump To
Cite 1 - [2019] QCA 256
Cite 2 - [2019] QCA 256
Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads[2007] 2 Qd R 373; [2007] QCA 73
2 citations
Jump To
Cite 1 - [2007] QCA 73
Cite 2 - [2007] QCA 73
Suttor v Gundowda Pty Ltd (1950) 81 C.L.R., 418
1 citation
Jump To
Cite 1 - (1950) 81 C.L.R., 418
Thompson v Minogue [2021] VSCA 358
2 citations
Jump To
Cite 1 - [2021] VSCA 358
Cite 2 - [2021] VSCA 358

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.