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JM Family Holdings Pty Ltd & Anor v Owltown Pty Ltd & Anor  
Unreported Citation: [2018] QCA 260
EDITOR'S NOTE

In this recent matter, an interesting jurisdictional issue involving the correct interpretation of s150(2) of the Queensland Civil and Administrative Tribunal Act 2009 arose: whether the Court of Appeal had jurisdiction to entertain an application for leave to appeal a decision of a single, non-judicial tribunal member constituting an appeal tribunal under s 289 of the Body Corporate and Community Management Act 1997 (or whether there must first be an appeal to the appeal tribunal of QCAT). The Court held that it did have jurisdiction.

Fraser and Mc Murdo JJA and Bond J

9 October 2018

The applicants, the owners of a lot within a Community Title Scheme, were aggrieved by a decision of the appeal tribunal which had found in the first respondent’s favour and declared that resolutions which the body corporate had made, specifying that the maintenance costs associated with a lift on the common property should be met by all lot owners in accordance with their respective contribution entitlements, were void. The effect of that order was that the applicants were required to solely bear the costs. [4], [6]. Querying the decision of the appeal tribunal, the applicants sought leave to appeal to the Court of Appeal. The first respondent argued that the Court of Appeal lacked jurisdiction to hear the appeal, on the basis that, properly construed, s 150(2) of the QCAT Act did not apply to the applicants. [8]. It relevantly provides:

150 Party may appeal—decisions of appeal tribunal

(1)    A person may appeal to the Court of Appeal against a decision of the appeal tribunal to refuse an application for leave to appeal to the appeal tribunal.

(2)    A party to an appeal under division 1 may appeal to the Court of Appeal against the following decisions of the appeal tribunal in the appeal—

(a) a cost-amount decision;

(b) the final decision.

The essence of the first respondent’s submission was that, properly construed, the word “under” in s 150(2) of the QCAT Act (which gives a party to an “appeal under division 1” an avenue of appeal to the Court of Appeal), ought be read as meaning “pursuant to” or “by virtue of”. Accordingly, the section should be taken as distinguishing between cases in which the right of appeal is conferred by Div 1 and cases in which the right of appeal is conferred by another statute. The first respondent submitted that since the right of appeal was conferred by the BCCM Act, hence the appeal did not amount to an appeal “under” Div 1. [34].

A primary difficulty with that argument was that s 25 of the QCAT Act provides that the tribunal’s appeal jurisdiction is twofold: (a) the jurisdiction conferred on the tribunal by s 26; and (b) the jurisdiction conferred on the tribunal by an enabling Act to hear and decide an appeal against a decision of another entity under that Act. Noting that according to s 25, the BCCM Act is an enabling act conferring appeal jurisdiction on the tribunal, the court did not accept the construction proposed by the first respondent. [37]. It also made the following further comments:

  1. The ordinary and natural meaning of the phrase “appeal under division 1” is that the phrase is intended as a reference to a decision of the tribunal exercising the appeal jurisdiction referred to in ss 25 to 27, and regulated by Div 1. [41]
  2. That construction accords with the direction contained in sch 1 to the Acts Interpretation Act 1954. [42].

As a result, the court held that an appeal could be brought direct as provided for in s 150(2). [43].

In the result, the appeal was allowed and the orders made by the appeal tribunal were set aside. [85].

A de Jersey