Todd v Edgecombe[2003] QDC 45

CITATION: Todd v Edgecombe & Anor [2003] QDC 045

PARTIES:

v

And

DIVISION:

PROCEEDING: Civil

ORIGINATING COURT: Brisbane

DELIVERED ON: 3 March 2003

DELIVERED AT: Brisbane

HEARING DATE:3 March 2003

JUDGE: Samios DCJ

ORDER:

CATCHWORDS:

Appeal from an Adjudicator - Power of Adjudicator - costs Body Corporate and Community Management Act 1997 - s 220, s 223, s 227, s 241, s 242

Uniform Civil Procedure Rules - r 689, r 766, r 785

Barmuncol Proprietary Ltd v Maroochy Shire Council (1983) 2 Qd R 639Gold Coast Carlton. Proporietary Limited v Council of the Shire of Beaudesert (1986) 1 Qd R 414 at p 415 Logan v Wangarra Shire Council (1983) 2 Qd R 689 at 691

Ridgewood Development Proprietary Limited v Brisbane City Council (1985) 2 QdR 48 at p 53

R v Holder; ex parte Jenner (1988) Qd R 58.

CIVIL JURISDICTION

JUDGE SAMIOS

and

and

BRISBANE

..DATE 03/03/2003

ORDER

HIS HONOUR: This is an appeal against the order made by an adjudicator appointed pursuant to the Body Corporate and Community Management Act 1997. The adjudicator made his order on 22nd May 2002. It is in these terms:

The Act provides for a right of appeal from an adjudicator's decision under section 227 subsection 2 on questions of law only. The parties to this appeal are Mr and Mrs Todd who are the appellants and Mr and Mrs Edgecombe who are the respondents. I will refer to them as Mr and Mrs Todd and Mr and Mrs Edgecombe.

The adjudicator was called upon to resolve a dispute that had arisen between the parties. That dispute relates to improvements that have been constructed upon the common property of Dutton View. Dutton View comprises of lots 1 and 2 on group title plan 105165. Mr and Mrs Todd are the owners of lot 1 and Mr and Mrs Edgecombe are the owners of lot 2.

The common property comprises an area of driveway of approximately rectangular shape 4.5 metres and 25.73 metres long running from a public road, Dutton Street, to lot 2. Lot 2 is set back 25.73 metres from Dutton Street behind lot 1.

Before the adjudicator it was accepted by Mr and Mrs Todd that the improvements which were in issue before the adjudicator namely pool fencing, a retaining wall, concrete living area and fencing were constructed by Mr and Mrs Todd. However, Mr and Mrs Todd maintained they were made in error as to the correct boundary but in good faith.

However, the information before the adjudicator showed that Mr and Mrs Todd were the original proprietors of lots 1 and 2. Mr and Mrs Todd had proposed, based on the unimproved capital value of their property assessed at $66,000 that the area of the common property that was enclosed by the fence being approximately 19.5 square metres be transferred to Mr and Mrs Todd by way of subdivision therefore increasing the area of their land or alternatively that they have the exclusive use of that fenced in area of 19.5 square metres and that they pay $2,500 to the body corporate which was based on the $128.9 per square metre of value of land for 19.5 square metres.

Mr and Mrs Todd also submitted that there was no interference with the general utility of the common property. However, these proposals were not acceptable to Mr and Mrs Edgecombe and Mr and Mrs Edgecombe had also informed the adjudicator that they had difficulty reversing from this property.

When coming to consider the issues the adjudicator considered the requirements of section 223 subsection 1 of the Act. This provides that an adjudicator may make an order that this is just and equitable in the circumstances including a declaratory order to resolve a dispute in the context of a community title scheme and referred to the specific matters including a claim for anticipated contravention of the Act or the community management statement or the exercise of rights or powers or the performance of duties under the Act or the community management statement.

He also appreciated he had power under section 223 subsection 2 to require a person to act or prohibit a person from acting in a way stated in the order. When referring to the submissions the adjudicator concluded that with the reduction of the common property being reduced by 1.02 metres in width and with regard to vehicular access to the lots that the reduction severely limited the amenity of the common property particularly for any vehicles greater in size than ordinary motor vehicles especially with regard to turning space and manoeuvrability. He also said that the solution proposed by Mr and Mrs Todd being not acceptable to Mr and Mrs Edgecombe led him to conclude that there was no point in pursuing either proposal any further.

He considered that Mr and Mrs Edgecombe's opposition to those proposals was fatal to those ideas being implemented regardless of the other problems which were inherent in the proposals. He came to the conclusion that regardless of whether the encroachment occurred accidentally or not the point was that a significant encroachment had taken place through no fault of Mr and Mrs Edgecombe. Further that Mr and Mrs Todd had gained an appreciable benefit to the detriment of Mr and Mrs Edgecombe.

He also appreciated that while the improvements constructed comprised of the pool fencing, retaining wall, concrete living area and fencing, whatever proportion of those improvements were located on the encroaching section was the responsibility of Mr and Mrs Todd and a direct result of an error on their part.

He concluded that before improvements could be built on common property - he referred to the requirement of Section 114 of the Act, which provides that for improvements to be built on common property the prior authorisation of the Body Corporate is required.

He concluded no such authorisation had been given. As a result, he concluded that the only order that was appropriate in the circumstances was to require Mr and Mrs Todd to remove those improvements, which encroached upon the common property within 30 days of the date of the order.

Mr and Mrs Todd appeal on a number of grounds: firstly, that the adjudicator erred at law by finding that no consent had been given for the encroachments, on the ground that he had no evidence from either party on that question.

Further, the adjudicator erred by concluding in his reasons that the opposition of Mr and Mrs Edgecombe to the alternatives proposed by Mr and Mrs Todd, was fatal to an order to a different order.

Further, the adjudicator erred in his finding, that the relevant encroachment severely limited the amenity of the common property, when there was no evidence before him to that effect.

Further, that the adjudicator erred by concluding that the only order appropriate in the circumstances, was the one that he ultimately made and finally, that the order was not just and equitable within the meaning of Section 223 of the Act. On the hearing of an appeal of this kind, it is relevant to note that the appeal is not an appeal by way of re-hearing. I take it to be that what must be shown is that an error be identified as a question of law which vitiates the decision from which the appeal is brought - see Barmuncol Proprietary Limited v. Maroochy Shire Council (1983) 2 QdR 639.

This principle has been referred to in other judgments, for example, Logan v. Wangarra Shire Council (1983) 2 QdR 689 at 691; Gold Coast Carlton Proprietary Limited v. Council of the Shire of Beaudesert (1986) 1 QdR 414 at page 415; Ridgewood Development Proprietary Limited v. Brisbane City Council (1985) 2 QdR 48 at page 53.

While those authorities referred to the City of Brisbane Town Planning Act and an appeal from the Planning and Environment Court as it now is, I cite those authorities in support of the proposition of what is required to be considered on the hearing of this appeal.

Regarding the grounds of appeal, in my opinion, with respect to the ground that the adjudicator erred at law by finding that no consent had been given for the encroachment, the evidence supported the drawing of an inference on the part of the adjudicator that there had been no consent given. If it needed to be determined upon whom the onus rested, in my opinion it rested upon Mr and Mrs Todd. They did not in any submission assert that there had been consent for these improvements. Mr and Mrs Todd asserted that the improvements were made in error, but in good faith, but did not claim there was consent, nor adduce any evidence otherwise. I consider in the circumstances that it was open to the adjudicator to come to the conclusion that he did.

It is also necessary to note that the adjudicator was not bound by the Rules of Evidence. Nevertheless, of course, the adjudicator could not speculate or guess. His obligation was to inform himself properly and observe natural justice and to act as quickly and with as little formality and technicality, as was consistent with a fair and proper consideration of the application - see Section 220, subsection 3 of the Act.

Regarding the second ground of appeal, that to a certain extent, I consider is relevant to be considered with the third ground of appeal. In my opinion, there was ample evidence available to the adjudicator to come to the conclusion that, as to what he described as amenity, which I consider ought to, in the context of this application be considered as equivalent to usefulness, there was a significant impact on the usefulness of the common property, particularly, as he said, for vehicles accessing Lot 2.

It is submitted that there was no evidence from which he could come to this conclusion. In my opinion, he had evidence of the width of the common property as originally provided for. He had the width of the common property as it is, with the fence constructed and he had the photographs and in my opinion those photographs would allow the adjudicator to draw inferences about the difficulty of manoeuvring a vehicle.

He also had the information from Mr and Mrs Edgecombe of the difficulty for reversing. That, in my opinion, was something the adjudicator could confirm from his own observations of the photographs. The photographs, in my opinion, were sufficient evidence for the adjudicator in all the circumstances, to draw the conclusion he did.

Having come to that conclusion then, in my opinion, with respect to the second ground, again it was open to the adjudicator to conclude that the alternatives suggested by Mr and Mrs Todd were not acceptable. Although he may have expressed himself in a way that has led to the argument that the adjudicator was indicating that there was no other alternative to be considered, I consider, in the proper context of this adjudication and on the information available, the adjudicator was merely indicating no more than in all the circumstances, in his opinion, it was not just and equitable to pursue the alternatives proposed by Mr and Mrs Todd.

Clearly, if the property was difficult to access, and it is open on the photographs to come to that conclusion, that in itself might be sufficient to support the adjudicator's opinion; alternatively, the adjudicator may not have been satisfied that it was proper to proceed on the Valuer General's valuation of the land and do some proportionality calculation.

In my opinion there may be other considerations relevant to what was proper to be paid by way of compensation. It does not follow, merely because alternatives were put forward by Mr and Mrs Todd those alternatives had to be accepted, nor does it follow in my opinion from the adjudicator's reasons in all the circumstances, that he rejected those out of hand.

I consider he considered those alternatives in the context of the adjudication. In my opinion, it was open to him to come to the conclusion he did.

Now, regarding the final two grounds of appeal, I consider that in the overall context of the information available to the adjudicator, he could come to the conclusion that the order he made was the one that was appropriate in the circumstances. It does not follow, in my opinion, that he limited himself or thought that he was limited, in his jurisdiction.

Further, I consider it was open to him to conclude in all the circumstances, that it was just and equitable to make the order that he did.

Therefore, in my opinion, the appeal ought to be dismissed. The one matter that should be placed on the record is that during submissions made by Mr Cronin, who appears on behalf of the appellants, a reference was made to a Bennett and Bennett plan, showing a swimming pool. I pointed out to Mr Cronin that on the material that has been forwarded to me from the Commission, it would appear that when the submissions were made by Mr and Mrs Todd, the Bennett and Bennett plan showing the swimming pool, which is one dated 27 March, was not put forward as a matter in dispute between the parties. That is, it was not put forward on the adjudication that the swimming pool may have been encroaching into the common area.

I consider that was not an issue before the adjudicator. The adjudicator has adjudicated on the issues that were before him, which was namely the pool fencing, a retaining wall, concrete living area and fencing. The swimming pool, in my opinion, is a matter that is to be resolved at another time and by others.

At this point in time, I do not see that the swimming pool is part of this adjudication nor this appeal. I do not consider that I can take that into account on the hearing of this appeal. The plan that appears to have been before the adjudicator is the group title plan, which sought to delineate the encroachment by the fence into the common area. It did not provide or show the swimming pool.

Therefore, perhaps in the correct language, referring to Section 242, subsection 1 of the Act, the appropriate order ought to be then to confirm the order made by the adjudicator on the 22nd of May 2002.

...

HIS HONOUR: Yes, well that will be the order. I confirm the order made by the adjudicator, dated 22nd May 2002.

...

HIS HONOUR: On the question of costs it was submitted by Mr Cronin of counsel who appears on behalf of the appellants that I had no jurisdiction to order that the appellants pay the respondents' costs. Mr Clarke of counsel who appears on behalf of the respondents submitted I do have that power.

Mr Cronin's submission, I consider, finds its genesis in section 242 of the Act which does not expressly deal with the questions of costs. That is, it does not expressly state that one of the powers the District Court has on an appeal from an adjudicator is to make an order as to costs. Mr Cronin may not have been confining himself to that section and may have also based his submission generally upon the provisions of the Act dealing with appeals from an adjudicator on a question of law that do not expressly state that I have power to make an order as to costs on the hearing of the appeal.

However, I consider Part 12 of the Act and the specific provisions dealing with an appeal on a question of law do provide the power to make an order as to costs. That is because section 238, subsection 1, refers to an appeal to this Court under this part being made in accordance with any relevant Rules of Court.

Further, section 241 provides that the procedure at the hearing for an appeal to the District Court is to the extent it is not dealt with in Part 12 of the Act to be in accordance with the rules under the District Court Act 1967 or in the absence of relevant rules directions of the Court.

Therefore, these provisions I have referred to make reference to the relevant Rules of Court. The relevant Rules of Court are the Uniform Civil Procedure Rules. These rules provide a power to order costs in a proceeding (see Rule 689). Also see R v. Holder; Ex parte Jenner (1988) QdR 58 in which Connolly J held that an application for compensation for injuries suffered by the victim of a crime, brought pursuant to s 663B of The Criminal Code, was properly made by motion pursuant to R.S.C. O.2 r.1 and O.62 r.1 and was, accordingly, a proceeding in the court within O.91 r.1 so that costs were in the discretion of the court. Section 663B of the Criminal Code did not expressly provide that on an application to the court for compensation the court had power to award costs.

If I were wrong in that respect that there was a specific power based on the Rules of Court, in my opinion, the Uniform Civil Procedure Rules dealing with appeals would also provide the power to make an order as to costs. That is, Rule 766 states what are the general powers of the Court of Appeal. In that respect that includes the power to order costs as may be appropriate, see sub-rule 1(a) of Rule 766. That Rule, I consider, can be applied on the hearing of appeals in the District Court. That is because Rule 785 of the Uniform Civil Procedure Rules provides that Rule 766(1)(a) applies to appeals with necessary changes to the District Court (see Rule 782).

Therefore, I consider that I do have power to make an order as to costs on the hearing of this appeal.

A further submission was made by Mr Clarke who appears on behalf of the respondents. That further submission was that I should order that the costs of this appeal be paid by the appellants on an indemnity basis. That is because of a letter dated 15 July 2002 soon after the institution of the appeal in which the respondents offered to settle the matter on the basis that the appellants withdraw their appeal and each party pay their own costs.

In this instance the respondents have done better than that offer. The question arises whether I ought to, in all the circumstances, order that firstly the appellants pay the respondents' costs and secondly if I make that order that the costs be assessed on the indemnity basis rather than the standard basis.

I consider the letter is a significant factor in the exercise of my discretion. It did offer to resolve the matter and the respondents clearly have been successful. On general principles costs ought to follow the event. Further, in this instance, the respondents predicted the outcome and used the letter dated 15 July 2002 to find a way to limit costs and to retain the adjudicator's decision. The adjudicator's decision has been confirmed. In all the circumstances I consider it is appropriate that the appellants pay the respondents' costs of the appeal to be assessed on an indemnity basis.

The order therefore is that the appellants in this instance, which are Mr and Mrs Todd, will be ordered to pay the respondents', which in this instance is Mr and Mrs Edgecombe, costs of the appeal to be assessed on an indemnity basis. The letter will be Exhibit 1.