Brown v Body Corporate for South Bank Towers [ [2019] QCATA 29

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brown v Body Corporate for South Bank Towers [2019] QCATA 29 PARTIES: GILLIAN BROWN (appellant) v BODY CORPORATE FOR SOUTH BANK TOWERS CTS 13224 (respondent) APPLICATION NO: APL 405-17 MATTER TYPE: Appeals DELIVERED ON: 28 February 2019 HEARING DATE: 5 February 2019 HEARD AT: Brisbane DECISION OF: Member Barlow QC ORDERS: Appeal dismissed. CATCHWORDS: REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – whether body corporate liable to repair windows to lot REAL PROPERTY – STRATA AND RELATED TITLES – GENERAL MATTERS – JURISDICTION AND POWERS OF COURTS AND TRIBUNALS – appeal from adjudicator – fresh evidence – whether allowed in appeal – whether adjudicator investigated sufficiently Body Corporate and Community Management Act 1997, s 269 Cox v Body Corporate for Grand Pacific Resort [2007] QCCTBCCM 001 Hablethwaite v Andrijevic [2005] QCA 336 APPEARANCES & REPRESENTATION: Applicant: Mr D Wallace, solicitor, Simmons & McCartney Lawyers Respondent: Mr T C Serafin, solicitor, McCarthy Durie Lawyers -- 1 of 4 -- 2 REASONS FOR DECISION [1] Ms Brown is the owner of a unit on the 14th floor of South Bank Towers. [2] On 27 November 2014, Ms Brown’s unit was damaged by rain water after a severe storm. The damage included sliding glass doors that were cracked and their frame buckled, carpet and curtains that were wet and torn and internal doors and cupboards that were water damaged. As a result of the damage, Ms Brown was unable to let it out. Initial quotes to repair the damage exceeded $36,000, although some lower quotes were later obtained. By late 2017 the unit remained vacant. In the meantime, Ms Brown did not pay body corporate levies for long periods, although she did make payments on some occasions. The body corporate charged and recovered substantial late payment fees and interest. [3] Over the three years since the damage occurred, Ms Brown and the body corporate exchanged a great deal of correspondence and had many discussions about the causes of the damage and who was responsible to rectify it. Some of the damage was repaired, but Ms Brown contends that certain items the responsibility of the body corporate were not repaired, or not adequately repaired, so that water continues to enter the unit during heavy rain and continues to damage internal cupboards in particular. [4] During 2017, Ms Brown sought adjudication of her dispute with the body corporate. The focus of the application by then was on three steps that Ms Brown contended the body corporate should take: to repair water damage on the balcony, to replace leaking kitchen windows and to replace water damaged kitchen cabinets. Additionally, Ms Brown sought orders that the body corporate remit fees and penalties applied due to Ms Brown’s late payment of levies, the body corporate pay her legal fees relating to the ongoing dispute, and the body corporate pay her damages for lost rental since the storm. [5] A lot of information was provided to the adjudicator, who also visited the unit. Expert reports were provided to the adjudicator by both parties. In October 2017, the adjudicator decided the dispute, ordering that the body corporate repair the relevant parts of the balcony, but otherwise dismissing the application.1 [6] Ms Brown now appeals from the adjudicator’s decision. She may only appeal from that decision on a question of law.2 [7] In her notice of appeal, Ms Brown asserts five grounds of appeal. The first is incomprehensible. The second to fifth assert that the adjudicator failed to deal with her claims for legal fees, remission of penalties, loss of rental and repair of the kitchen windows. [8] In accordance with directions by the tribunal, both parties filed written submissions. Ms Brown’s submissions did not specifically address any of the grounds of appeal. Rather, a lengthy chronology was set out, followed by a one paragraph submission that the body corporate had continuously breach its duties under the BCCM Act and under s159 of the Body Corporate and Community Management (Standard Module) 1 South Bank Towers [2017] QBCCMCmr 488. 2 Body Corporate and Community Management Act 1997, s 289(2). -- 2 of 4 -- 3 Regulation 2008, by failing to maintain common property in good condition and in a structurally sound condition and by failing to act with diligence and expedience. [9] Ms Brown’s written submissions did not identify any error of law by the adjudicator. The submissions set out assertions of fact and an assertion that the facts constituted breaches of the Act and Regulations, without stating how the adjudicator made any error of law. They did not address the errors asserted in the notice of appeal. They also referred to events that occurred after the adjudicator’s decision, including three further reports by Ms Brown’s expert engineer. [10] The body corporate’s written submissions addressed each of the grounds of appeal, contending that the first ground sought to introduce new factual issues and that the adjudicator had addressed each of the subject matters of the other grounds of appeal. It submitted that she had not identified, nor demonstrated, any errors of law by the adjudicator. [11] Both parties were represented at the hearing. The solicitor for Ms Brown did not really address me on the grounds of appeal stated in the notice of appeal. Instead, he contended that the adjudicator had failed to give Ms Brown natural justice because, instead of waiting for further expert reports to be obtained after a period of heavy rain, the adjudicator made the decision at a time when the competing experts had not been able to review and report on the outcome of such rain. Therefore, he contended, the adjudicator had not properly investigated Ms Brown’s complaints. [12] An appeal from an adjudicator is an appeal in the strict sense, rather than by way of rehearing.3 Ordinarily, in such an appeal the tribunal will not have regard to evidence that was not before the adjudicator. The appeal must be decided on the basis of the findings of fact made by, and the evidence that was before, the adjudicator. It is not appropriate for this tribunal, in the appeal, to take into account additional evidence unless it can be shown that it is credible, it could not have been obtained with reasonable diligence for use in the adjudication and it probably would have had an important impact on the result of the case.4 [13] I understand Ms Brown’s solicitor to have contended that the new reports meet these tests. They are credible, they may have made a difference and they could not have been obtained earlier because there had not been a sufficiently powerful rain storm to enable the causes of the ongoing damage to be considered further by the experts. [14] In essence, therefore, Ms Brown’s solicitors submitted that: (a) the adjudicator erred in law by not waiting to complete the investigation until such a rain event had occurred and further engineering reports could be obtained; and (b) in the circumstances, the tribunal should allow the appeal and (I infer) either take the new reports into account in overturning the decision and making the orders Ms Brown seeks, or return the case to the adjudicator for a fresh decision taking account of the new evidence. 3 River City Apartments v McGarvey [2012] QCATA 047, at [11]-[16]; Harrison v Meehan [2017] QCA 315 at [18]. 4 Colston v McMullen [2011] QCA 164 at [10]-[11]. -- 3 of 4 -- 4 [15] I accept that the new evidence is credible and may have had an impact on the result of the adjudication. However, I am not convinced that similar evidence could not have been obtained before the decision was made. I am sure that there were heavy rain events between 2014 and 2017. But even if there were not, Ms Brown’s solicitor did not refer me to any request to the adjudicator to defer making a decision until such an event had occurred, nor did the engineer, in his earlier reports, make clear that that was necessary before he gave his opinions. [16] In any event, even if the evidence were appropriate to take into consideration, it would not be open to the tribunal to make a decision based on it. It would be necessary to refer the matter back to the adjudicator, so that the respondent could have an opportunity (presumably after yet another serious rain event) to put in its own further expert evidence. [17] As I have said, Ms Brown’s solicitor submitted that the adjudicator did not sufficiently investigate the facts before making a decision. I shall consider this issue even though it was not a ground of appeal stated in the notice of appeal. [18] I considered the extent of an adjudicator’s obligation to investigate an application in Body Corporate for Grand Pacific Resort v Cox [2012] QCATA 14 at [36] to [42]. In my reasons at [38], I referred to a decision of the Court of Appeal in which Jerrard JA said that an adjudicator is not obliged to seek clarification or further information from a party once that party has responded, apparently sensibly, to an invitation to make submissions to the adjudicator.5 I consider that that approach applies equally to evidence provided after an invitation to provide it, or in response to evidence provided by the other party to a dispute. Furthermore, there is no principle that, where further investigations could have been made but were not, there is necessarily an error of law in the approach of the adjudicator to the resolution of a question of fact.6 [19] In this case, as I have said, Ms Brown made no submission to the adjudicator, at least to which my attention has been drawn, that the completion of the investigation should await further expert reports after another major rainfall event. Both Ms Brown’s and the body corporate’s expert engineers had provided several reports. Having taken those into account, the adjudicator was not satisfied that damage to the kitchen cabinets had been caused by rain entering the unit on an ongoing basis, let alone that any rain entering the unit was a result of the body corporate failing to maintain the external areas for which it was responsible. [20] I do not consider that the adjudicator made any error of law in making the decision when it was published. Ms Brown had had sufficient opportunity to provide such evidence and to make such submissions as she thought appropriate. An adjudicator is required to must act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the application.7 There was no reason for the adjudicator in this case not to resolve the dispute at that time, after the parties had provided considerable evidence and submissions. [21] Therefore, in my view the appeal should be dismissed. 5 Hablethwaite v Andrijevic [2005] QCA 336, [17]. 6 Cox v Body Corporate for Grand Pacific Resort [2007] QCCTBCCM 001 (Mr Dorney QC). 7 BCCM Act, s 269(3)(b). -- 4 of 4 --