Body Corporate for Lakeview Manor v Beasley [2025] QCATA 67

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Body Corporate for Lakeview Manor v Beasley [2025] QCATA 67 PARTIES: BODY CORPORATE FOR LAKEVIEW MANOR CTS 10368 (applicant/appellant) v CHRISTOPHER BEASLEY (respondent) SARAH BEASLEY (respondent) APPLICATION NO/S: APL230-24 ORIGINATING APPLICATION NO/S: MATTER TYPE: DELIVERED ON: HEARING DATE: HEARD AT: BCCM Order 1107-2023 Appeals 27 June 2025 On the papers Brisbane DECISION OF: Senior Member Aughterson Member Kent ORDERS: The appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – body corporate and community management – where adjudicator ordered appellant to repair termite damage and reinstate garage door lock – whether denial of procedural fairness – whether no evidence to support findings – whether failure to take account of relevant consideration – whether misinterpretation of legislation Body Corporate and Community Management Act 1997 (Qld), s 149B, s 281, s 289 Body Corporate and Community Management (Standard Module) Regulation 2020 (Qld), s 180 Land Titles Act 1994 (Qld), s 10 Lobban v Minister for Justice [2016] FCAFC 109 University of Wollongong v Metwally (No 2) (1985) 60 ALR 68 -- 1 of 6 -- 2 Whitecrests by the Sea [2003] QBCCMCmr 21 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 Background [1] This is an appeal from a decision of an adjudicator pursuant to s 289 of the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’).1 By s 289(2) of the BCCM Act, any appeal is confined to a question of law. [2] The questions before the adjudicator were, first, whether the appellant was responsible for the termite damage to the roof and stud walls of Lot 5, owned by the respondents, and second, whether it was the responsibility of the appellant to reinstate the missing lock from the garage door of Lot 5. [3] It was evident that the termite damage had been subject to repairs in 2012, but the attempts at repair did not meet Australian Standards. In particular, it remained that the structural capacity of the trusses and roof valley beams and the internal timber stud walls were compromised. There is no suggestion on appeal that the affected area is not common property. Rather, the focus is on the question of who is responsible, given the appellant’s position that the damage was caused by flying termites that gained entry by the wrongful removal of a common property fly screen on a Lot 5 window. As to the garage door lock, it was submitted that this was on the inside of the garage door and as such was the responsibility of the respondents. [4] The Adjudicator held that in a building format plan subdivision the body corporate must maintain the common property roof in a good and structurally sound condition and that the damage arose from the appellant’s failure to undertake appropriate pest prevention measures. In relation to the missing lock, it was found that the body corporate has an obligation under a building format plan subdivision to maintain doors situated along a boundary wall separating the lot from common property. [5] Accordingly, the appellant was ordered to repair the termite damage and reinstate the missing lock.2 [6] In summary, the grounds of appeal are that the Adjudicator erred by: (1) failing to take account of relevant considerations; (2) making a finding in the absence of any evidence; (3) denying procedural fairness; and (4) misinterpreting the legislation [7] Potentially, each of those grounds raises a question of law. They are discussed separately in relation to the two issues: termite damage (grounds 1, 2 and 3) and the missing garage door lock (grounds 2, 3 and 4). 1 As to the powers of the Tribunal on appeal, see 294 of the BCCM Act. 2 The BCCM Act, at s 281, gives power to an adjudicator to issue orders for the carrying out of repairs. -- 2 of 6 -- 3 Termite Damage Ground 1 [8] It is submitted that there was a failure to take into account the following relevant considerations: (a) the maintenance responsibilities of lot owners; (b) the failure to provide a flyscreen on a window of Lot 5, which allowed termites to access the damaged area; (c) the evidence of the appellant as to the probable source of the termite issue; (d) current building industry constraints, in the context of the three-month time frame allowed by the order to rectify the termite damage. [9] In relation to points (a) and (b), it is said that, in breach of their duty as lot owner, the previous owner had removed a flyscreen on a window of Lot 5, said to be common property, and that opening could have allowed the termites to enter and cause the damage. [10] The Adjudicator did in fact discuss the responsibilities of lot owners in a building format plan and the claims of the appellant in relation to the flyscreen. The Adjudicator found that it had not been established that the termite damage was caused by the absence of the flyscreen. Reference was made to a ‘poor-quality’ photograph of the alleged window and to the absence of any evidence or expert opinion that this was the cause of the damage. The Adjudicator also referred to a 2013 common property pest report that indicated several common property items that might attract termites, including garden mulch, plants and timber items against the exterior walls of the building. It was further found that there was no evidence that the appellant undertakes pest control or termite barrier maintenance, as advised in the common property pest report. It was concluded that the evidence suggested that was the source of the termite problem. [11] In relation to point (c), it is submitted that while the appellant provided the only evidence as to the source of the termite issue (that is, access via the window), the Adjudicator did not refer to that evidence and inferred that the source of entry was at ground level. However, as noted above, the Adjudicator did refer to the evidence of the appellant in relation to access of the termites via the window. Further, contrary to the submissions of the applicant, that was not the only evidence. As noted, the Adjudicator also referred to a common property pest report as indicating a potential source of the termites. [12] In addition, the appellant submits that the Adjudicator wrongly inferred that the source of entry was at ground level, failing to accept that all exterior walls, slab floors and first level flooring are concrete internally with masonry exterior. However, that does not address the Adjudicator’s findings as to the potential source of the termites and the lack of pest control maintenance on the part of the appellant, regardless of the precise point of entry of the termites into Lot 5. The appellant’s submissions on this issue go to the question of which evidence should be preferred; that is, of the weight to be given to particular evidence. The Adjudicator’s findings were open on the evidence and no error of law arises. [13] Point (d) relates to the time frame allowed by the Adjudicator for compliance with the order for rectification of the termite damage as set out at Order 2 of the decision. -- 3 of 6 -- 4 However, there is no indication that any such practical constraint was raised before the Adjudicator, such that it might have been considered. In any event, the appellant has not made any submissions in relation to this issue and it is not apparent what error if any has arisen. [14] There was no failure on the part of the Adjudicator to consider these matters. No error of law arises. In relation to the alleged absence of the flyscreen, it is evident that the appellant simply seeks to have the Appeal Tribunal reconsider this issue afresh. The first ground of appeal is rejected. Ground 2 [15] It is submitted that the Adjudicator’s finding that there was no confirmation that termites are presently inactive within the Lot or that damage has not taken place since 2012 was not supported by the evidence. However, the primary issue before the Adjudicator was damage caused by termites at that earlier time, in relation to which it was held the appellant was responsible. The Adjudicator expressly stated that there was no suggestion that there are active termites within the Lot, but, ‘for completeness’, considered who would be responsible for any termite damage that might have arisen since 2012. [16] In that context, the Adjudicator expressed the view that ‘it is likely the body corporate would be responsible’. That is because the common property pest report of 2013 provided advice as to necessary pest inspections and maintenance of the termite barrier and the Adjudicator found that there ‘is no evidence the body corporate undertakes pest control or termite barrier maintenance’. [17] In other words, the Adjudicator was simply reflecting on the ‘likely’ responsibility if active termites were present and contributed to further damage. No error of law arises. [18] In relation to the termite issue, the second ground of appeal is rejected. Ground 3 [19] It is submitted that there was a denial of procedural fairness by: (a) the Adjudicator misinterpreting facts and not accepting the appellant’s evidence of flyscreen removal when no counter-evidence was supplied; (b) the Adjudicator relying on false and misleading evidence in relation to the Engineer’s Report concerning termite damage; (c) in relation to the finding that it had not been substantiated that the termite damage was caused by the absence of a flyscreen, not asking the appellant to provide further evidence on this issue; (d) finding that the roof was not in a good or structurally sound condition and that the appellant is prima facie responsible for the repairs; (e) finding that the window in relation to which it is said there was no flyscreen was common property. [20] The submission of denial of procedural fairness is misconceived. In relation to point (a), as noted in relation to Ground 1 of the appeal, the Adjudicator did not accept that the absence of the flyscreen was the cause of the termite damage. There is no suggestion that the appellant was not given an opportunity to be heard on this issue or that it was not considered by the Adjudicator. -- 4 of 6 -- 5 [21] The false and misleading evidence referred to in point (b) is said to relate to a photo that was attached to the Engineer’s Report, which Report was taken into account by the Adjudicator. In the reasons for decision, the Adjudicator addressed other criticisms made of the Report by the appellant, but makes no reference to any allegation of false and misleading evidence. There is nothing to indicate that such an allegation was argued before the Adjudicator3 or that the Adjudicator denied the appellant an opportunity to do so. [22] Point (c) relates to the finding of the Adjudicator that it had not been substantiated that the termite damage was caused by the absence of the flyscreen. It is submitted that there was a denial of procedural fairness in that the Adjudicator did not ask the appellant to provide further evidence on this issue. However, it is not for the Adjudicator to conduct a party’s case.4 There is nothing to suggest that the appellant was denied the opportunity to present evidence relevant to its case. It was the appellant’s case that the termites gained access through the window and it was for the appellant to substantiate that case and to discount other possible avenues for access. [23] Point (d) also relates to issues that were dealt with before the Adjudicator. Again, there is no suggestion that the appellant was denied the opportunity to be heard on this issue or that it was not considered by the Adjudicator. [24] The same can be said for point (e). In any event, whether or not the window is common property is not to the point. As discussed at [10] above, the Adjudicator found that it had not been established that the termite damage was caused by the absence of the flyscreen. [25] In effect, the appellant seeks to argue or reargue these issues before the Appeal Tribunal. In relation to the termite issue, the third ground of appeal is rejected. Garage door lock Ground 2 [26] The issue before the Adjudicator was whether the garage door and the locking mechanism were part of the common property and the responsibility of the respondent. It was held that it was common property. The appellant submits that the Adjudicator’s finding, that the photos and survey plans confirm the garage door is situated on a boundary wall separating the Lot from the common property, is not supported by the evidence. However, the appellant simply points to evidence it gave in relation to the survey around entry boundaries and garages, said to indicate that the relevant door was not common property. The survey plans were before the Adjudicator, so that it is not a case of there being no evidence or of a finding not being supported by the evidence, but rather a matter of disagreement by the appellant as to the conclusion drawn from that evidence. That does not give rise to an error of law. In relation to the door lock issue, the second ground of appeal is rejected. 3 Generally, in relation to where a party seeks to raise grounds not argued at first instance, see Lobban v Minister for Justice [2016] FCAFC 109, [64]; University of Wollongong v Metwally (No 2) (1985) 60 ALR 68, 71. 4 As to the discretionary powers of an adjudicator, see s 271 of the BCCM Act. See also, for example, FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 71, [6]-[13], in relation to the duties of courts and tribunals where there are unrepresented litigants. -- 5 of 6 -- 6 Ground 3 [27] It is submitted that the Adjudicator did not offer procedural fairness to the appellant by allowing into evidence photographs of the location of the garage door. This ground is not developed in the appellant’s submissions and it is not clear how that gives rise to a denial of procedural fairness. There is no suggestion that the appellant was not permitted to lead other evidence in relation to the status of the garage door. In relation to the door lock issue, the third ground of appeal is rejected. Ground 4 [28] It is submitted that the Adjudicator failed to consider the Registrar of Title Directions for the Preparation of Plans (‘the Directions’). Other than that bald assertion and references to cl. 9.6.1 of the Direction and a decision in Whitecrests by the Sea,5 (‘Whitecrests’) where that clause was referred to, it is not said what impact any such failure might have had on the Adjudicator’s decision. It appears that the Direction is a statutory instrument, issued pursuant to s 10 of the Land Titles Act 1994 (Qld). Clause 9.6.1 lists the ‘structural elements’ for the purpose of the Direction, including walls and doors. [29] In Whitecrests, reference was made to the Direction in the process of ascertaining whether shutters and vergolas on a balcony were part of the common property. It was found that the shutters and vergolas were not a ‘door’ or ‘window’, but were part of the ‘boundary’ for the purposes of cl. 9.6 of the Direction. Consistent with cl. 9.6.1 of the Direction, it was concluded that the boundary of the lot with common property was the centre of the wall and as the shutters and vergolas were on the outer edge they were common property. [30] In the present case, the issue is whether the door lock was the responsibility of the appellant. The appellant submits that because the lock is to the inside of the door, it is the responsibility of the owner of the Lot. However, in Whitecrests the Direction was relied upon for the purpose of ascertaining responsibility for a boundary wall. As noted, it was specifically found that the shutters and vergolas were not a ‘door’. [31] While the Adjudicator did not make express reference to the Direction, reference was made to s 180(2)(a)(ii) of the Body Corporate and Community Management (Standard Module) Regulation 2020 (Qld), which provides that the body corporate is responsible for maintaining ‘doors, windows and associated fittings situated in a boundary wall separating a lot from common property’. [32] From a review of the survey plans and photographs, it was concluded that the garage door is situated on a boundary wall separating the Lot from common property and that the locking mechanism would be a fitting associated with the door. [33] No error on the part of the Adjudicator has been demonstrated and the fourth ground of appeal is rejected. [34] The appeal is dismissed. 5 [2003] QBCCMCmr 21. -- 6 of 6 --