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Koya v The Body Corporate for Southbank Holiday Suites CTS 24606[2025] QCATA 68

Koya v The Body Corporate for Southbank Holiday Suites CTS 24606[2025] QCATA 68

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Koya v The Body Corporate for Southbank Holiday Suites CTS 24606 [2025] QCATA 68

PARTIES:

Muhammed Mushtaq Koya

(applicant/appellant)

v

The body corporate for southbank holiday suites cts 24606

(respondent)

APPLICATION NO/S:

APL061-24

MATTER TYPE:

Appeals

DELIVERED ON:

14 July 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Fitzpatrick

ORDERS:

  1. The decision made on 24 January 2024 is set aside.
  2. The matter is returned to the Commissioner for Body Corporate and Community Management for an Adjudicator to reconsider the dispute with the benefit of any other submissions and evidence as the Adjudicator may consider necessary to decide the matter according to law.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where lot owner in a body corporate scheme appeals the decision made by the Office of the Commissioner for Body Corporate and Community Management – where the Adjudicator determined the matter on the basis of whether the body corporate was obliged to return the money paid – whether an error of law that the Adjudicator made no concluded finding in relation to the body corporate’s power to recover the Queensland Fire and Emergency Services charge as a debt from the lot owner

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where a question of fact arises whether payment was voluntary and not made under compulsion – whether error of law that the Adjudicator failed to give procedural fairness to the parties because he did not call for submissions in relation to the legal basis on which he intended to determine the dispute

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – INSURANCE, FIRE SAFETY AND FINANCIAL MATTERS – where body corporate demanded payment for invoice from lot owner relating to a Queensland Fire and Emergency Services charge – where lot owner paid invoice under protest – where lot owner sought restitution of the sum paid in a dispute adjudication process – where Adjudicator dismissed lot owner’s claim because he found that the payment was voluntary – whether the body corporate has power to recover the charge as a debt from a lot owner – whether the lot owner pay the charge under protest and pursue adjudication or whether the lot owner bear the consequences of non-payment whilst pursuing adjudication

Body Corporate and Community Management Act 1997 (Qld), s 180, s 289

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353

Dockside Hotel [2006] QBCCMCmr 291

Ericson v Queensland Building and Construction Commission [2014] QCA 297

Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225

Mason v New South Wales (1959) 102 CLR 108

Schwede v Admiralty Towers CTS 16440 [2004] QBCCMCmr

Solaris Residential [2023] QBCCMCmr 487

Sibelco v Right to Information Commissioner [2017] QCATA 59

The Body Corporate for The Grove CTS9356 v Comerford [2019] QCATA 172

The Esplanade Trilogy – One [2006] QBCCMCmr 407

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    Mr Koya is a lot owner in the South Bank Holiday Suites CTS 24606. On 3 October 2022 the Body Corporate for South Bank Holiday Suites CTS 24606 (‘Body Corporate’) demanded payment of an invoice it received from the Queensland Fire and Emergency Services (‘QFES’) in an amount of $1,373.95 for an unwanted alarm activation at his unit.
  2. [2]
    Mr Koya paid the invoice on 10 March 2023 under protest that he had no legal obligation to pay the invoice. Mr Koya’s position was consistently maintained and he sought restitution of the sum paid in a dispute adjudication process conducted by the Office of the Commissioner for Body Corporate and Community Management.
  3. [3]
    In a decision made on 24 January 2024 the Adjudicator dismissed Mr Koya’s claim. The Adjudicator expressed a view, but made no finding, that the Body Corporate may have acted in contravention of s 180(6) of the Body Corporate and Community Management Act 1997 (Qld) by seeking to recover the QFES charge from Mr Koya. The Adjudicator approached the matter on the basis that the issue before him is not the Body Corporate’s entitlement to recover the money from Mr Koya, but rather whether Mr Koya had established the Body Corporate’s obligation to return it.
  4. [4]
    The Adjudicator said that this was not a case where Mr Koya had made a payment under a mistake and was entitled to restitution on that basis. The Adjudicator found that Mr Koya paid the money to avoid incurring interest on the sum even while maintaining that the Body Corporate was not entitled to the payment.  As a result, the payment was found to have been voluntary and was not recoverable. The Adjudicator relied on the reasoning in The Body Corporate for The Grove CTS9356 v Comerfordi[1] (‘Comerford’).
  5. [5]
    Mr Koya appeals the decision. An appeal to this Tribunal from an Adjudicator’s decision may only be on a question of law.[2]
  6. [6]
    An appeal on a question of law does not involve a rehearing. A hearing on a question of law alone involves no determination of a question of fact by the Appeal Tribunal. Unless an error of law decides the matter in its entirety in the applicant’s favour the proceeding must be remitted to an Adjudicator for reconsideration.[3]
  7. [7]
    Unfortunately, this matter involves submissions made to the Adjudicator of limited relevance to the factors bearing on his determination and submissions made in the appeal which canvass the complex area of the law of restitution, but do not come to grips with the limited scope of an appeal on a question of law only.
  8. [8]
    The matter involves a relatively small amount of money but raises important and difficult issues for the parties and more generally for the conduct of Bodies Corporate.
  9. [9]
    I observe that the question of whether a Body Corporate can recover a QFES charge from a lot owner has been addressed on a number of occasions by Adjudicators in the Office of the Commissioner for Body Corporate and Community Management. Outcomes have varied and reasons for the conclusions reached have varied.[4] I note two themes:
    1. whether the Body Corporate has any power to recover a QFES charge from a lot owner under the BCCM Act and its by-laws; and
    2. if a lot owner objects to payment - what is the correct process to adopt in achieving an adjudicated decision to resolve the dispute between the parties. That is should the lot owner pay the charge under protest and pursue adjudication or should the lot owner bear the consequences of non-payment whilst pursuing adjudication.
  10. [10]
    Both these issues arise in this matter.

Grounds of appeal

  1. [11]
    Mr Koya raises the following grounds of appeal:
    1. the law as to mistake has not been properly construed;
    2. construing payment of the levy as voluntary was an error;
    3. failure to consider other vitiating factors such as compulsion, coercion, illegality;
    4. failure to consider unjust enrichment;
    5. the statutory object of the Adjudicator’s function, being an equitable outcome, has not been achieved.

Material before the Adjudicator

  1. [12]
    The file of the Commissioner for Body Corporate provided to the Tribunal contains the application for adjudication including, relevantly:
    1. the by-laws of Southbank Holiday Suites CTS24606 which make no reference to recovery from lot owners of QFES claims related to attendance at an unwanted alarm activation.
    2. submissions from Mr Koya that:

“The Body Corporate had no right under the CMS to impose any debts on me in relation to the QFES charges and therefore unlawfully invoiced me and included that amount on their online billing system which would calculate and accumulate interest. To avoid the additional interest charges, I was forced to pay the amount and then pursue matters via the BCCM conciliation/adjudication process…The QFES charges imposed on me by the Body Corporate is unlawful…It has unlawfully solicited money from me and is therefore an amount owing to me from the date they were in possession of it…”

  1. an email dated 31 January 2023 from the Manager Strata4u, acting on behalf of the Body Corporate to Mr Koya, copied to the Body Corporate Committee, providing a link to The Esplanade Trilogy – One [2006] QBCCMCmr 407 (‘The Esplanade Trilogy – One’). Extracts from the decision were quoted:

…Previous disputes before this Office have considered the power of a body corporate to pass on fire alarm costs in circumstances where there was no by-law specifically authorising the cost recovery.  These disputes note that different schemes deal with such issues differently, with some paying for charges out of body corporate funds and others passing them on to the owner deemed or considered to be responsible.

These decisions have noted that the installation and monitoring of fire safety equipment is not voluntary and that a body corporate has no choice over the terms of the monitoring arrangement with QFRS. QFRS will only enter into a monitoring arrangement with a body corporate (rather than an owner), but clearly this is for reasons of practicality only.  The decisions have accepted that it is legitimate for a body corporate to determine how to deal with charges invoiced to it by QFRS.

…

The appropriate course of action for any owner who disputes a body corporate charge is to pay the disputed amount (to preserve their voting rights and avoid the imposition of overdue charges and debt recovery costs) and then to challenge the amount first with the body corporate and then through this Office if necessary.

The Manager went on to say: “I am tasked with undertaking lawful decisions of the committee as instructed. Any further correspondence on this matter needs to be resolved by way of the dispute resolution process contained in the legislation as I have previously suggested to you.”

  1. the Body Corporate made submissions to the Adjudicator however those submissions were irrelevant to his consideration, as they related to the position taken by the parties in the preceding conciliation.
  1. [13]
    Mr Koya clearly challenged the power of the Body Corporate to recover the QFES charge from him. Otherwise, Mr Koya gave the factual underpinning for his claim and an explanation as to why the charge was paid to the Body Corporate. Mr Koya did not set out the legal basis for his claim for recovery of money. For example, Mr Koya did not say that he sought recovery of the charge from the Body Corporate on the ground of unjust enrichment because it was paid under a mistake, or under compulsion, so as to justify restitution.
  2. [14]
    The Adjudicator made no concluded finding in relation to the Body Corporate’s power to recover the QFES charge from Mr Koya. Despite having no submissions on the legal basis for recovery of the charge, the Adjudicator determined the matter by reference to the concepts of mistake and voluntary payment.

Mr Koya’s submissions

  1. [15]
    In his submissions Mr Koya raises the following factual matters to support his submissions on the errors of law he has raised
  2. [16]
    Mr Koya submits that he paid the money to the Body Corporate under a mistake as to the appropriate process to adopt when disputing liability to pay the invoice. Mr Koya made the payment in reliance on the Esplanade Trilogy – One case as the proper process in the circumstances as referred to him by the Body Corporate manager.
  3. [17]
    Mr Koya says that he paid the money to avoid interest and other costs, whilst protesting his obligation to pay and seeking adjudication of the dispute. He says that in these circumstances the payment made by him was misconstrued as voluntary.
  4. [18]
    It is submitted that the payment could not be construed as voluntary, as discussed in David Securities Pty Ltd v Commonwealth Bank of Australia[5] (‘David Securities’):
    1. because it was not made as an alternative to contesting the claim for payment, it was in fact made in the course of contesting the claim as part of the BCCM dispute resolution process; and
    2. he felt forced to make the payment to avoid interest charges.
  5. [19]
    Mr Koya raises an argument that the payment was the result of coercion or economic duress and that this was not considered as a ground for restitution by the Adjudicator.
  6. [20]
    Further, Mr Koya says that the Body Corporate acted in contravention of s 180(6) of the BCCM Act so that the claim for payment of the QFES charge was illegal, providing a ground for restitution which was not addressed by the Adjudicator.
  7. [21]
    Finally, it is submitted that the circumstances of this case are different to those in the decision of Comerford relied upon by the Adjudicator. In Comerford’s case the Appeal Tribunal was satisfied that the payment by Mr Comerford fell within the second limb of the circumstances in which payments are voluntary as identified in David Securities, that is payment was made on the basis Mr Comerford was prepared to assume the validity of the obligation rather than contest the matter.

Body Corporate Committee submissions

  1. [22]
    The Committee made no submissions, leaving the outcome to the Tribunal. The Committee indicated that matters of law were involved to which only a lawyer could respond. I observe that the Body Corporate Committee could have taken legal advice at any time.

Consideration

  1. [23]
    Mr Koya made submissions to the Adjudicator that the Body Corporate had no legal entitlement to treat the QFES charge as a debt owed by him to the Body Corporate which attracted interest. The Adjudicator treated that issue as irrelevant and proceeded only on the basis of whether the Body Corporate had an obligation to return the money.
  2. [24]
    I consider that the Adjudicator was bound to determine whether or not the Body Corporate was legally entitled to recover the QFES charge from Mr Koya under the BCCM Act. Having treated the matter as raising a question of whether the payment was made voluntarily or under a mistake, the Adjudicator should have addressed the underpinning question of unjust enrichment related to the lawfulness or otherwise of the Body Corporate seeking recovery of the charge as a debt. It is an error of law for the Adjudicator to have failed to do so.[6]
  3. [25]
    As to whether the Adjudicator erred in his treatment of the issue of mistake, the Adjudicator did not explore the nature of the mistake made by Mr Koya. That is because there were no submissions made on that point. It is only in the appeal proceeding that Mr Koya has explained that his mistake was in following the Esplanade Trilogy – One case. I do not consider it open to me in this proceeding to find that Mr Koya was mistaken as to whether he should pay the disputed money first and contest the payment later. Because I must decide the appeal on a question of law alone, it is not possible to make findings of fact in relation to matters not before the Adjudicator. 
  4. [26]
    However, I consider that the Adjudicator failed to give procedural fairness to the parties because he did not call for submissions in relation to the legal basis on which he intended to determine the dispute. That is, he did not ask the parties to address whether the Body Corporate had an entitlement to recover the charge from Mr Koya, whether there had been any relevant mistake entitling restitution or whether the payment of the QFES charge was voluntary so as to disentitle restitution.
  5. [27]
    This lack of procedural fairness is an error of law.[7]
  6. [28]
    As to whether the Adjudicator reached a wrong conclusion that payment of the QFES charge was voluntary, the Adjudicator’s reliance on the Comerford decision is misplaced. The Adjudicator appears to assume that if a payment is made for a reason other than a mistake (in this case to avoid interest charges) then it will be a voluntary payment which negatives any claim for restitution. That reasoning takes the Comerford decision too far. It does not, for example, take into account a payment made under compulsion.
  7. [29]
    A difficulty in this case is that even if it is concluded payment of the charge was not voluntary – that will not mean the payment was made because of a mistake entitling restitution. Any finding in this case that the payment was made because of a mistake rests on findings of fact not made by the Adjudicator and which the Appeal Tribunal cannot make.
  8. [30]
    Mr Koya has raised illegality and coercion or duress as grounds the Adjudicator should have considered to justify restitution. I have dealt with the effect of possible illegality (or unlawfulness) of the Body Corporate’s conduct by concluding it is a matter which should have been determined by the Adjudicator after calling for submissions on the point.
  9. [31]
    As to the second ground of coercion or duress, Mr Koya is asserting that because of his exposure to interest and other penalties the payment was made under a compulsion rather than voluntarily. That is an arguable position, but it requires findings of fact including as to whether the coercion or duress is sufficient to influence the conduct of a prudent person.
  10. [32]
    In Mason v New South Wales[8] their Honours considered whether payment of certain road transport permit fees were recoverable. The decision is authoritative in relation to whether a payment is voluntary or made under compulsion so as to entitle its recovery. The fact of payment being made under protest was said to be some evidence when accompanied by other circumstances that the payment was not voluntarily made to end the matter.[9] The nature of a voluntary payment was expressed in varying ways by their Honours including that the payment was made “to get rid of a liability (scil. asserted by the payee though not sustainable in law), made with a free exercise of the will, where no advantage is taken of the position of the person or the situation of his property.”[10]
  11. [33]
    Whether a payment is voluntary and not made under compulsion is a question of fact.[11]

Conclusion

  1. [34]
    This is not a matter where, by application of principles of law the decision made by the Adjudicator can be corrected and another decision made in its place. It is necessary to make many findings of fact to arrive at an order which is just and equitable in the circumstances. The matter must be remitted to an Adjudicator to reconsider the matter.

Order

  1. [35]
    The Appeal Tribunal orders under s 146(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that:
  1. The decision made on 24 January 2024 is set aside.
  1. The matter is returned to the Commissioner for Body Corporate and Community Management for an Adjudicator to reconsider the dispute with the benefit of any other submissions and evidence as the Adjudicator may consider necessary to decide the matter according to law.

Footnotes

[1][2019] QCATA 172 [83].

[2]Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’) s 289(2).

[3]Ericson v Queensland Building and Construction Commission [2014] QCA 297 [10].

[4]Schwede v Admiralty Towers CTS 16440 [2004] QBCCMCmr (7 June 2004); Dockside Hotel [2006] QBCCMCmr 291 (6 June 2006); Solaris Residential [2023] QBCCMCmr 487 (18 December 2023); The Esplanade Trilogy – One [2006] QBCCMCmr 407 (31 July 2006).

[5](1992) 175 CLR 353.

[6]Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225; Sibelco v Right to Information Commissioner [2017] QCATA 59 [31].

[7]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

[8](1959) 102 CLR 108.

[9]Ibid [3] (McTiernan J).

[10]Ibid [4] (Kitto J).

[11]Ibid [12] (Windeyer J).

Close

Editorial Notes

  • Published Case Name:

    Koya v The Body Corporate for Southbank Holiday Suites CTS 24606

  • Shortened Case Name:

    Koya v The Body Corporate for Southbank Holiday Suites CTS 24606

  • MNC:

    [2025] QCATA 68

  • Court:

    QCATA

  • Judge(s):

    Senior Member Fitzpatrick

  • Date:

    14 Jul 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
2 citations
Jump To
Cite 1 - (1990) 170 CLR 321
Cite 2 - (1990) 170 CLR 321
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
2 citations
Jump To
Cite 1 - (1992) 175 CLR 353
Cite 2 - (1992) 175 CLR 353
Dockside Hotel [2006] QBCCMCmr 291
2 citations
Jump To
Cite 1 - [2006] QBCCMCmr 291
Cite 2 - [2006] QBCCMCmr 291
Ericson v Queensland Building and Construction Commission [2014] QCA 297
2 citations
Jump To
Cite 1 - [2014] QCA 297
Cite 2 - [2014] QCA 297
Mason v The State of New South Wales (1959) 102 CLR 108
2 citations
Jump To
Cite 1 - (1959) 102 CLR 108
Cite 2 - (1959) 102 CLR 108
Sibelco Australia Ltd v Right to Information Commissioner [2017] QCATA 59
2 citations
Jump To
Cite 1 - [2017] QCATA 59
Cite 2 - [2017] QCATA 59
Solaris Residential [2023] QBCCMCmr 487
2 citations
Jump To
Cite 1 - [2023] QBCCMCmr 487
Cite 2 - [2023] QBCCMCmr 487
The Body Corporate for The Grove CTS9356 v Comerford [2019] QCATA 172
2 citations
Jump To
Cite 1 - [2019] QCATA 172
Cite 2 - [2019] QCATA 172
The Esplanade Trilogy - One [2006] QBCCMCmr 407
3 citations
Jump To
Cite 1 - [2006] QBCCMCmr 407
Cite 2 - [2006] QBCCMCmr 407
Cite 3 - [2006] QBCCMCmr 407
Western Australia Inc. v Minister for Health, Housing and Community Services (1992) 39 FCR 225
2 citations
Jump To
Cite 1 - (1992) 39 FCR 225
Cite 2 - (1992) 39 FCR 225

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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