Taubert v Body Corporate for Grenache CTS 29711
[2025] QCATA 61
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- Unreported Judgment
- Taubert v Body Corporate for Grenache CTS 29711[2025] QCATA 61
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Taubert v Body Corporate for Grenache CTS 29711[2025] QCATA 61
Taubert v Body Corporate for Grenache CTS 29711[2025] QCATA 61
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Taubert & Ors v Body Corporate for Grenache CTS 29711 [2025] QCATA 61 |
PARTIES: | STEPHAN TAUBERT (appellant) ROBERT Vandermaat (appellant) SHARON Vandermaat (appellant) v Body Corporate for Grenache CTS 29711 (respondent) |
APPLICATION NO/S: | APL006-24 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 27 June 2025 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Lumb |
ORDERS: | The appeal is dismissed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – QUESTION OF LAW – where s 289(2) of the Body Corporate and Community Management Act 1997 (Qld) allows a person aggrieved by an adjudicator’s order to appeal only on a question of law to Appeal Tribunal – meaning of ‘only on a question of law’ – where motion put to extraordinary general meeting of a body corporate to allocate part of common property for exclusive use parking for two lot owners – where motion opposed by the owners of one lot and motion not passed – where adjudicator found that opposition was not unreasonable in the circumstances – whether denial of procedural fairness – whether adjudicator acted in breach of the Act – whether grounds of appeal raise a question of law only Body Corporate and Community Management Act 1997 (Qld), s 269, s 271, s 276, s 289, s 290, s 294 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146, s 147, s 150 Ainsworth v Albrecht (2016) 261 CLR 167 Allen & Anor v Queensland Building and Construction Commission [2024] QCA 24 Deemal-Hall v Office of the Director of Public Prosecutions [2024] QCATA 131 Pivovarova v Michelsen [2019] QCA 256 |
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
Introduction
- [1]Stephan Taubert and Robert Vandermaat and Sharon Vandermaat (collectively ‘the appellants’) are lot owners in the Grenache Community Titles Scheme 29711 (‘the Scheme’). The Vandermaats are the registered owner of Lot 4 in the Scheme and Mr Taubert is the registered owner of Lot 5 in the Scheme.
- [2]The Respondent (‘the Body Corporate’) is the body corporate for the Scheme.
- [3]The Scheme comprises six lots together with common property, being a residential apartment complex at Broadbeach on the Gold Coast. The Scheme is regulated by the Body Corporate and Community Management Act 1997 (Qld) (‘the BCCMA’) and the Body Corporate and Community Management (Small Schemes Module) Regulation 2020 (Qld). A New Community Management Statement for the Scheme (‘the CMS’) was recorded on 16 March 2023.
- [4]In May 2023, a motion (Motion 2) was proposed at an extraordinary general meeting of the Body Corporate. Motion 2 proposed that ‘Lot 4’ (the Vandermaats’ lot) and ‘Lot 5’ (Mr Taubert’s lot) each be granted exclusive use of a separate area of common property (identified as Areas ‘J’ and ‘K’ respectively) for use as a car parking space in the basement of the complex. Motion 2 did not pass because the owners of Lot 6 in the Scheme voted against the motion.
- [5]The Appellants brought an adjudication application (‘the Adjudication Application’) by filing a Form 15 application with the Office of the Commissioner for Body Corporate and Community Management seeking the following outcome:
The [appellants] seek an order that the opposition to motion 2 at the EGM for Grenache on 17.05.2023 be deemed unreasonable, motion 2 be declared as passed and lots 4 and 5 be granted exclusive use of these car parks. The amended CMS plan of exclusive use (Attachment G) be recorded as the new plan.
- [6]By a decision dated 4 December 2023 (‘the Decision’), an adjudicator appointed under the BCCMA (‘the Adjudicator’) ordered that:
1. The application is dismissed.
- [7]By an Application for leave to appeal or appeal filed on 8 January 2024 (‘the Appeal Application’), the appellants appeal the Decision.
Requirements and scope of the appeal
- [8]Section 289 of the BCCMA (which appears in Chapter 6, Part 11) provides:
- This section applies if—
- (a)an application is made under this chapter; and
- (b)an adjudicator makes an order for the application (other than a consent order); and
- (c)a person (the aggrieved person) is aggrieved by the order; and
- (d)the aggrieved person is—
- for an order that is a decision mentioned in section 288A, definition order—an applicant; or
- for another order—
- (A)an applicant; or
- (B)a respondent to the application; or
- (C)the body corporate for the community titles scheme; or
- (D)a person who, on an invitation under section 243 or 271(1)(c), made a submission about the application; or
- (E)an affected person for an application mentioned in section 243A; or
- (F)a person not otherwise mentioned in this subparagraph against whom the order is made.
- The aggrieved person may appeal to the appeal tribunal, but only on a question of law.
- [9]I am satisfied that the Adjudication Application was made under Chapter 6 of the BCCMA; that the Adjudicator made an order for the Adjudication Application (which was not a consent order); that the appellants are aggrieved by the order; and that each of the appellants was an applicant to the Adjudication Application. Consequently, I am satisfied that the appellants have satisfied the requirements of s 289(1) of the BCCMA.
- [10]Further, the Appeal Application was filed within the six week period required by s 290(1) of the BCCMA.[1]
- [11]However, the Appellant may appeal to the Appeal Tribunal ‘only on a question of law’ (see s 289(2) of the BCCMA). What does this phrase mean?
The proper construction of s 289(2)
- [12]
- This section applies if—
- an application for an order of an adjudicator is made under this chapter; and
- an adjudicator makes an order for the application (other than an order made with the consent of all parties to the application); and
- a person (the “aggrieved person”) is aggrieved by the order; and
- the aggrieved person is—
- the applicant; or
- the body corporate for the community titles scheme concerned; or
- a person against whom the order is made; or
- a person who made a written submission to the adjudicator on the application in response to the adjudicator’s invitation.
- The aggrieved person may appeal to a District Court, but only on a question of law.
(emphasis added)
- [13]Whilst then providing for an appeal to a District Court, s 237(2) contained the phrase ‘but only on a question of law’ which is now found in s 289(2).
- [14]Section 242 of the BCCMA (as enacted) provided:
- In deciding an appeal, a District Court may—
- confirm or amend the order under appeal; or
- set aside the order and substitute another order or decision; or
- through the commissioner, refer the order back to the adjudicator with appropriate direction having regard to the question of law the subject of the appeal.
- The court may amend or substitute an order only if the adjudicator would have had jurisdiction to make the amended or substituted order or decision.
(emphasis added)
- [15]In my view, upon the proper construction of sections 237 and 242 of the BCCMA (as enacted), it was intention of the legislature that an appeal from an order of an adjudicator was on a question of law only (and that the appeal would be an appeal in the strict sense, not by way of rehearing).
- [16]I consider that this conclusion is confirmed by extrinsic material comprising the Explanatory Notes to the Body Corporate and Community Management Bill 1997 (‘the Bill’). Section 237 of the BCCMA reflected clause 236 of the Bill. The Explanatory Notes provided, relevantly:[3]
Clause 236 sets out the right of appeal to the District Court and allows an aggrieved person to appeal to a District Court on a question of law only.
(emphasis added)
- [17]Section 289 first provided for an appeal to be made to the Appeal Tribunal[4] in Reprint 5E of the BCCMA as in force on 1 December 2009.
- [18]At that time, the BCCMA did not contain an analogue of s 242 (as enacted). Rather, s 294(1) of the BCCMA then provided (as it still does):
In deciding an appeal, in addition to the jurisdiction and powers of the appeal tribunal under the QCAT Act, the tribunal may also exercise all the jurisdiction and powers of an adjudicator under this Act.
- [19]As at 1 December 2009, s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) provided (as it still does):
In deciding an appeal against a decision on a question of law only, the appeal tribunal may—
- confirm or amend the decision; or
- set aside the decision and substitute its own decision; or
- set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration—
- with or without the hearing of additional evidence as directed by the appeal tribunal; and
- with the other directions the appeal tribunal considers appropriate; or
- make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c).
(emphasis added)
- [20]Section 147 of the QCAT Act provided for appeals against a decision ‘on a question of fact only or a question of mixed law and fact’.
- [21]In my view, despite the change from a self-contained provision setting out the powers of the District Court to decide an appeal to one incorporating the powers (and jurisdiction) of the Appeal Tribunal by reference to the QCAT Act, I cannot discern any indication that an appeal to the Appeal Tribunal is to be other than on a question of law only.
- [22]I consider that, on the proper construction of s 289 (and having regard to s 294(1) of the BCCMA and the history of s 289), the phrase ‘but only on a question of law’ in s 289(2) means that an aggrieved person may appeal to the Appeal Tribunal on a question of law only.
What constitutes a question of law only?
- [23]Section 150 of the QCAT Act deals with appeals from the Appeal Tribunal to the Court of Appeal. Such an appeal may be brought ‘only on a question of law’. In my view, observations of the Court of Appeal concerning the operation of s 150 (and s 153 of the QCAT Act) provide guidance to the meaning of the phrase ‘on a question of law only’ generally and, more specifically, as adopted in s 146 of the QCAT Act.
- [24]
- [4]In my view s 150(3)(a) of the QCAT Act should be read as if “pure” or “only” does qualify “question of law”. The meaning of that provision is influenced by contextual matters which had no counterpart in the statutes considered in Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd or Haritos v Commissioner of Taxation. Section 150 is in Division 2 of Part 8 of the QCAT Act, which concerns appeals to the Court of Appeal. It is significant that s 150(3)(a) applies only to appeals against decisions of the QCAT appeal tribunal, which will have considered and refused either an application for leave to appeal (s 150(1)) or an appeal (s 150(2)). That an applicant for leave to appeal to the Court of Appeal already has had one opportunity to challenge an adverse decision makes it seem more likely that the legislative intent was to narrowly confine the grounds of such an appeal.
- [5]Furthermore:
…
The contrast between the expressions “a question of law” and “a question of fact, or question of mixed law and fact” makes clear the legislative policy to confine the ambit of an appeal for which the Court of Appeal may give leave under s 150 to an appeal on a question of law which does not involve any question of fact or of mixed law and fact of the kind described in ss 149(3)(b) and 142(3)(b). In a similar statutory context, Rothman J held in Bagumya v Kakwano that the expression “only on a question of law” must mean “on a question of law alone”.
- [6]That s 151(2)(a) of the QCAT Act provides that an application for leave to appeal or an appeal to the Court of Appeal must be made under the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) does not suggest any different view either of the ambit of the appeal or its nature as a strict appeal rather than an appeal by way of rehearing; as to the latter point, the provision in r 765(1) of the UCPR that an appeal to the Court of Appeal under Chapter 18 of the UCPR is an appeal by way of rehearing applies only to an appeal from the Supreme Court constituted by a single judge: UCPR r 745(2).
- [7]The legislative policy is reinforced by the statement in s 153(1) of the QCAT Act that s 153 (which confers powers upon the Court of Appeal in deciding appeals) “applies to an appeal before the Court of Appeal against a decision of the tribunal on a question of law only”. In that provision the word “only” qualifies “a question of law”, whereas s 150(3)(a) allows an appeal to be made “only on a question of law”. The latter expression, if considered in isolation from its context, is open to the construction that the only kind of appeal that may be made is an appeal “on a question of law”, rather than a construction that the appeal is confined to “a question of law only” (which is a pure question of law). Because s 153 is plainly designed to comprehend an appeal under s 150, the implication is that, consistently with the statutory context already discussed and Rothman J’s conclusion in Bagumya v Kakwano, an appeal under s 150 is confined to one made on a question of law only.
- [8]The absence of any factual component in such an appeal is consistent with the contrast between the powers conferred on the Court by s 153 in an appeal on a question of law only and the powers given to the Court by s 154 in an appeal on a question of fact or mixed law and fact. As to the former, s 153(2) provides that in deciding the appeal the Court of Appeal may confirm or amend the decision, set aside the decision and substitute its own decision, set aside the decision and return the matter to QCAT for reconsideration (with or without the hearing of additional evidence and with other directions the Court considers appropriate), or make any other order it considers appropriate. The powers conferred by s 153 upon the Court in an appeal on a question of law only do not include any analogue of the power conferred by s 154(2) in relation to an appeal on a question of fact or a question of mixed law and fact that the appeal proceeds “with or without the hearing of additional evidence as decided by the Court of Appeal”. The absence of such a power in an appeal under s 153 is consistent with a legislative intent to confine appeals to the Court of Appeal to pure questions of law.
(citation omitted)
- [25]The distinction between s 153 and s 154 of the QCAT Act in respect of the hearing of additional evidence is also evident in s 146 and s 147 of the QCAT Act which concern the deciding of appeals on a question of law only and a question of fact or mixed law and fact respectively.
- [26]
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.
(citation omitted)
- [27]These observations were adopted by the Appeal Tribunal in Deemal-Hall v Office of the Director of Public Prosecutions[9] in the context of an appeal under s 132 of the Information Privacy Act 2009 (Qld) which ‘may only be on a question of law’.
Summary
- [28]In summary, I am of the view that:
- an appeal under s 289 of the BCCMA must be on a question of law only (or, in other words, on a ‘pure’ question of law);
- the very subject matter of the appeal must be a question of law; and
- the powers exercisable by the Appeal Tribunal on such an appeal are those set out in s 146 of the QCAT Act.
The Reasons for Decision
- [29]The Adjudicator considered three issues: first, what were the existing rights to the scheme land in the basement of the scheme as per the registered survey plan and the CMS; second, whether there was a mistake or error in the CMS relating to Areas ‘J’ and ‘K’ of the common property; and, third, the ‘main question’ of whether the opposition to Motion 2 was unreasonable in the circumstances.
- [30]The Adjudicator:
- concluded that Areas J and K were unallocated areas of common property in the Scheme;[10]
- was not satisfied that the CMS mistakenly omitted an allocation of areas of basement common property for the exclusive use of Lots 4 and 5;[11] and
- was not satisfied that Motion 2 failed to pass because of opposition that in the circumstances was unreasonable.[12]
- [31]The appellants do not challenge the findings in [30](a) and (b) above.
- [32]The appellants do challenge the conclusion in [30](c) above. The Adjudicator primarily addressed this issue at Reasons [60]-[80]. In relation to the opposition of the Lot 6 owners in respect of Motion 2, the Adjudicator said:[13]
- [70]I now turn to the grounds of opposition raised by dissenting voters. Examining those reasons and applying the principles articulated by the High Court in Ainsworth, I find as follows.
- [71]Some of the stated reasons for the dissenting vote were objectively unreasonable in the circumstances. For example, where Areas J and K have been used for parking for many years, including by the owners of Lot 6 for parking their own vehicles and boats, basing a decision to vote “No” on the grounds it would remove two turn around points is unreasonable.
- [72]The owners of Lot 6 also say a grant of exclusive use for Area K would adversely affect access to their exclusive use storage cage. I am inclined to the view that this is also objectively unreasonable. I am satisfied Lot 6 could continue to access its storage space even when vehicles are parked in Area K. Moreover, Motion 2 specifically included a condition providing for access to the storage space.
- [73]However, I am satisfied some of the reasons given by the owners of Lot 6 for voting “No” were not objectively unreasonable in the circumstances.
- [74]The owners of Lot 6 also say they voted against Motion 2 because they have a right to use and enjoy common property. It is not necessarily unreasonable for a lot owner to vote to conserve their property interest. The owners of Lot 6 are also entitled to vote in their own self-interest especially where the exclusive use is reasonably viewed as adverse to their interest.
- [75]In the present case, owners of Lot 6 thought they had a right to use the common property for visitor parking and wanted to continue to exercise that right. They now understand Areas J and K are areas of unallocated common property and that, technically, no-one is permitted to park on them. In my view, although it may seem unfair to the applicants, it is not objectively unreasonable for the owners of Lot 6 to vote “No” because they prefer that Areas J and K be allocated to visitor parking rather than exclusively for Lots 4 and 5.
- [76]For the above reasons I am not satisfied Motion 2 failed to pass because of opposition that in the circumstances was unreasonable.
(citations omitted)
The grounds of appeal
- [33]There are four stated Grounds of Appeal:
- 1.Failure of the adjudicator to observe procedural fairness and carry out duties during the investigation as per S 269 BCCM Act
- 2.The adjudicator’s orders are in breach of S 276 of the BCCM Act in failing to make an order that is just and equitable in the circumstances by not objectively judging all provided information in making the decision to dismiss the application.
- 3.The adjudicator’s orders are in breach of S 276 1(a) a claimed or anticipated contravention of this Act or the community management statement. There is an Adjudicator Order 1293-2021 – “Grenache QBCCMCmr276” that is evidence of noncompliance with the Community Management Statement and has a direct impact on this case but was not carefully considered and taken into account.
- 4.The adjudicator’s orders are in breach of S 271 (c): “invite persons the adjudicator considers may be able to help resolve issues raised by the application to make written submissions to the adjudicator within a stated time;’ The attached supporting information deals with this issue in depth.
(citation omitted)
Grounds 1 and 4
- [34]In my view, these two grounds concern one core complaint, namely that the Adjudicator invited the owners of Lot 6 to make a ‘late’ submission in the Adjudication Application.
- [35]The threshold question is whether these Grounds raise a question of law only.
- [36]
It may be accepted that a denial of procedural fairness by an inferior tribunal will generally involve an error of law. But as was explained at [19] above, 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”. The very subject matter of the appeal must be only on a question of law. The subject matter of the present appeal ground could not be so regarded. To the contrary, it is a ground by which the applicants invite this Court to analyse the facts of the proceeding; the entirety of the procedural record of the conduct of the proceeding before the Appeal Tribunal; then to apply the legal standards required by the statutory prescriptions concerning proper process in the conduct of proceeding; and to reach an evaluative judgment contrary to that reached below. The questions being agitated would at least be mixed question of fact and law.
(citation omitted)
- [37]In my view, these observations are apposite to the present case having regard to the appellants’ submissions at pages 1-3. I consider that Grounds 1 and 4 raise a mixed question of fact and law.
- [38]Even if the either Ground could be considered to raise a question of law only, I conclude that there is no substance in the complaints.
- [39]It is undisputed that the Office of the Commissioner allowed 28 days for the lodgement submissions from all interested parties closing on 28 July 2023 and that no submissions were received from the owners of Lot 6 by that date.
- [40]The Adjudication Application was then referred to the Adjudicator for determination.
- [41]As to the circumstances in which the Adjudicator invited a response from the owners of Lot 6, the Adjudicator’s Reasons set out the following:[15]
- [10]In August 2023, after the application was referred to adjudication, the owners of Lot 6 – the only owners to vote in dissent against Motion 2 – wrote to the BCCM Office asserting they were not aware of this application and had not received an invitation to make a submission. They said they had instructed the body corporate manager to send all correspondence to them, except for levy notices, by mail. Although one of the owners of Lot 6 said she had not seen the email at the time because she was overseas, after checking her account she verbally confirmed to the BCCM Office she had received the email with the invitation.
- [11]I investigated the dispute, including reviewing the application the survey plan, and the current and a former CMS for the scheme. As part of my investigation of the dispute, and in the interests of procedural fairness, I asked the owners of Lot 6 to provide me with their reasons for voting against Motion 2. I also asked them to provide a copy of their response to the applicants and to the body corporate.
- [12]After receiving the information from the owners of Lot 6, I gave the applicants an opportunity to respond.
- [42]The appellants assert that the owners of Lot 6 ‘falsely’ claimed that they had not received the initial communication advising of the opportunity to respond to the application.[16] This plainly raises a question of fact.
- [43]Regardless, the import of the appellants’ submissions appears to be that, assuming their contention to be true, procedural fairness required the Adjudicator to refuse to seek (or permit) a response from the owners of Lot 6. I reject any such contention.
- [44]Upon referral, the Adjudicator was required to investigate the application to decide whether it would be appropriate to make an order on the application.[17]
- [45]In investigating the application, the Adjudicator was:[18]
- required to observe natural justice;
- required to act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the application;
- not bound by the rules of evidence.
- [46]An adjudicator has broad investigative powers. Pursuant to s 271(1) of the BCCMA, an adjudicator may do all or any of the following:
- require a party to the application, an affected person, the body corporate or someone else the adjudicator considers may be able to help resolve issues raised by the application—
- to obtain, and give to the adjudicator, a report or other information; or
Example—
an engineering report
- to be present to be interviewed, after reasonable notice is given of the time and place of interview; or
- to give information in the form of a statutory declaration;
- require a body corporate manager, service contractor or letting agent who is a party to the application or an affected person to give to the adjudicator a record held by the person and relating to a dispute about a service provided by the person;
- invite persons the adjudicator considers may be able to help resolve issues raised by the application to make written submissions to the adjudicator within a stated time;
- inspect, or enter and inspect—
- a body corporate asset or record or other document of the body corporate; or
- common property (including common property the subject of an exclusive use by-law); or
- a lot included in the community titles scheme concerned.
(emphasis added)
- [47]In my view, the Adjudicator was entitled to seek a response from the owners of Lot 6 regardless of whether or not they provided a response within the initial time limit set by the Office of the Commissioner. In exercising the investigative powers under s 271, the Adjudicator was entitled to seek a response from the owners of Lot 6 if the Adjudicator considered that the response may be able to help resolve issues raised by the Adjudication Application. There is nothing to suggest this was not the case.
- [48]Further, having sought a response from the owners of Lot 6, the Adjudicator gave the appellants an opportunity to respond, and the appellants availed themselves of that opportunity.
- [49]In my view, in the circumstances, there is no reasonable argument that the appellants were denied procedural fairness (or natural justice) by the Adjudicator.
Ground 2
- [50]As Ground 2 as framed, I am of the view that it raises a mixed question of fact and law and, consequently, is not amenable to an appeal pursuant to s 289 of the BCCMA.
- [51]The appellants’ approach to the appeal is exemplified by the following submissions:
- ‘The applicants do not believe the adjudicator objectively assessed, and judged all provided information that was specifically related to this case informing their opinion that the NO vote by a lot owner against the motion was reasonable. Furthermore, the adjudicator did not make a “just and equitable” decision, while balancing interests in considering “fairness”. In making the decision to dismiss the case the Adjudicator has failed to address the consequences of this decision which is inequitable to the applicant and endorses the continuation of bylaw breaches of lot 6 owner and his tenants.’[19]
- ‘He [the male Lot 6 owner] has also acted for his own benefit and not with respect of living in a community with regards to numerous bylaw breaches and unauthorised installations and changes that were subject of an Adjudicator’s order July, 2022 ...’[20]
- ‘The applicants believe the submitted evidence for consideration and compelling in highlighting the material facts and that lot 6’s objection was unreasonable and request as such the application is reviewed again.’[21]
- [52]The questions of fact (or mixed questions of law and fact) include contentions concerning the proportion of levies paid having regard to the contribution schedule lot entitlements and the number of respective car parks;[22] that (one of) the owners of Lot 6 acted out of ‘spite’ or ‘ill-will’ towards the appellants in opposing Motion 2;[23] and the viability of visitor parking in the basement.[24]
- [53]In the context of visitor parking, the appellants submit that:
The adjudicator stated it was a reasonable idea that the area proposed for exclusive use parking for lots 4 and 5 be left as common property due to the future potential to be visitor car parking and largely on this view dismiss the application.
- [54]The appellants provide no citation for this asserted statement by the Adjudicator and I can find no reference to it in the Reasons. The Adjudicator addressed this topic at Reasons [75] (extracted at [32] above). That paragraph provides no support for the appellants’ contention.
- [55]Motion 2 would have had the effect of, to adopt the words of the High Court in Ainsworth, ‘appropriating part of the common property to the exclusive use of the owner of another lot, for no return to the body corporate or the other lot owners’.[25]
- [56]Whilst the appellants have set out various observations of the High Court in Ainsworth,[26] the appellants’ submissions appear not to reflect the following observations of the Court:
- ‘A person with a property interest may reasonably insist on conserving that interest even if it is not presently being employed to that person’s material advantage. That is so, if for no other reason than that he or she may, reasonably expect to be offered something in return for agreement to part with it to another lot owner.’[27]
- ‘Nothing in the BCCM Act suggests that an opponent to a proposal acts unreasonably in failing to act sympathetically or altruistically towards a proponent who seeks to diminish the property rights of the opponent. The BCCM Act does not contemplate that the rights of a lot owner genuinely opposed to the reduction of his or her rights to common property attached to his or her lot may be overridden where that might be thought by an adjudicator to be a reasonable course to adopt, having regard to some standard of sympathy or altruism applicable between lot owners.’[28]
- [57]The appellants seek, in essence, to address the appeal as if it involves a rehearing of the matter, rather than an appeal in the strict sense. This is not permitted by s 289 of the BCCMA.
- [58]However, it is arguable that the appellants have raised one pure question of law, namely whether, having regard to the decision in Zenith,[29] the Adjudicator erred in law by failing to balance the respective factors involving the interests of the ‘majority’ (the appellants) and ‘minority’ (the owners of Lot 6).[30] If this is the appellants’ contention, I reject it. The Adjudicator observed that the role of the Adjudicator was not to balance competing interests, and that the Adjudicator did not have power to substitute their own subjective view of what is fair and equitable.[31] These observations reflect those made in Ainsworth.[32] The Adjudicator correctly focused was on whether the reasons for the dissenting vote of the owners of Lot 6 were objectively unreasonable in the circumstances.[33] I am satisfied that there was no error in the approach adopted by the Adjudicator.
- [59]Otherwise, I consider that Ground 2 raises either mixed questions of law and fact or questions of fact which, by operation of s 289(2) of the BCCMA, may not form the subject matter of an appeal under that provision.
Ground 3
- [60]
- [61]Nevertheless, the contention is that a previous adjudicator’s order in Grenache [2022] QBCCMCmr 276 ‘is evidence of noncompliance with the Community Management Statement and has a direct impact on this case but was not carefully considered and taken into account’.[36] The adjudicator in that case ordered that the owners of Lot 6 do a number of things including removing a shed installed on one of the exclusive use car parks for Lot 6 and removing an air-conditioning unit installed without approval under the common property clothesline.
- [62]In the present case, the Adjudicator made the following observations:[37]
- [79]… To the extent the owners of Lot 6 have not complied with an order of an adjudicator, the body corporate may take steps to enforce that order. Failure to comply with an adjudicator’s order is an offence, and a penalty may be applied.
- [80]In addition, where the CMS includes a by-law permitting parking on common property only if authorised in one of the ways described in the by-law, the applicants may seek such authorisation. In addition, if the body corporate reasonably believes an occupier is breaching the vehicle by-law, the body corporate may take steps to enforce that by-law. The body corporate must enforce the by-laws in the way provided under the Act.
(citations omitted)
- [63]These observations demonstrate that the Adjudicator did consider the issue of alleged non-compliance. The Adjudicator observed, correctly in my view, that the Body Corporate may take steps to enforce compliance with an order of an Adjudicator.[38] These observations were made in the context of the finding that it was not objectively unreasonable in the circumstances for the owners of Lot 6 to vote ‘No’ to Motion 6 for the reasons identified at [74] and [75] of the Reasons. The appellants have not established that the Adjudicator failed to consider the issue of non-compliance with the order of a previous adjudicator. Ground 3 fails. For completeness, insofar as the appellants maintain that the alleged non-compliance was material to some ‘balancing’ of the interests of the appellants and the owners of Lot 6,[39] the contention is misplaced having regard to the matters addressed at [58] above.
Order
- [64]For the reasons set out above, the appeal is dismissed.
Footnotes
[1] The Decision was received on 4 December 2023 and the Appeal Application was filed on 8 January 2024.
[2] The substantive provisions commenced on 13 July 1997.
[3] I consider that recourse can be had to this extrinsic material by virtue of s 14B of the Acts Interpretation Act 1954 (Qld).
[4] See s 372 of the Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009 (Qld).
[5] [2019] QCA 256.
[6] Ibid [4]-[8] (Boddice J (as his Honour then was) agreeing, [14]).
[7] [2024] QCA 24, [16]-[18].
[8] Ibid [19].
[9] [2024] QCATA 131, [2] (Judicial Member DJ McGill SC).
[10] Reasons [47].
[11] Ibid [59].
[12] Ibid [76].
[13] Ibid [70]-[76].
[14] Allen [117].
[15] Reasons [10]-[12].
[16] Appellants’ submissions, p 2.
[17] BCCMA s 269(1).
[18] Ibid s 269(3).
[19] Appellants’ submissions, p 3.
[20] Ibid.
[21] Ibid p 5.
[22] Ibid pp 6-7.
[23] Ibid pp 9-10.
[24] Ibid pp 7-8.
[25] Ibid [55].
[26] Appellants’ submissions, pp 4-5.
[27] Ainsworth [62]. See also [55].
[28] Ibid [57].
[29] [2007] QBCCMCmr 423.
[30] Appellants’ submissions, pp 4, 7.
[31] Reasons [78].
[32] See [48]-[51], [85].
[33] Reasons [71]-[76].
[34] See also appellant’s submissions, pp 3-5.
[35] Ainsworth [26]-[27].
[36] See also Appellant’s submissions, p 3.
[37] Reasons [79]-[80].
[38] And also take action in relation to a breach of a by-law.
[39] Appellants’ submissions, p 4.