Baker & Anor v Body Corporate for Elanda on the Park [2018] QCATA 132

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Baker & Anor v Body Corporate for Elanda on the Park CTS3021 [2018] QCATA 132 PARTIES: HAROLD WARREN BAKER and ANGELA JANE MORRIS (applicant/appellant) v BODY CORPORATE FOR ELANDA ON THE PARK CTS3021 (respondent) APPLICATION NO/S: APL272-17 MATTER TYPE: Appeals DELIVERED ON: 6 September 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member King-Scott ORDERS: Appeal dismissed. CATCHWORDS: REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – where decision of committee to implement a Body Corporate decision – where Appellants opposed decision – whether committee meeting valid APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where decision of committee to implement a Body Corporate decision – where Appellants opposed decision – whether denial of natural justice by Adjudicator Body Corporate and Community Management Act 1997 (Qld) Corporations Act 2001 (Cth) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Body Corporate and Community Management (Standard Module) Regulation 2008 (Qld) Carroll & Ors v Body Corporate for Palm Springs Residences CTS 29467 [2013] QCATA 21 -- 1 of 6 -- 2 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission [1997] FCA 1311 Re Body Corporate for Viridian; Kjerulf Ainsworth & Ors v Albrecht &Anor [2014] QCATA 294 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 Ward v McDonald [2014] QCATA 048 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: 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] Elanda On The Park community titles scheme 3021 (‘the Body Corporate’) consists of 12 lots. The Appellants, Harold Warren Baker and Angela Jane Morris are owners of Lot 10 of the complex which is situated at Elanda Street, Sunshine Beach. Derek Caton the owner of Lot 4 in the complex is an ‘affected person’ in the proceedings. [2] The issue concerning this appeal is the decision of the Committee to implement a Body Corporate decision (Motion 8) to construct a proposed handrail, on common property, adjacent to the complex's car park for the benefit of Derek Caton. [3] The reason for the Appellants’ opposition to the Committee's decision was that the positioning of the handrail further restricted access to and from their garage. [4] By Motion 8 at the Annual General Meeting on 10 August 2016, the body corporate resolved ‘that a safety handrail be provided down the slope behind the letterboxes’. [5] The Body Corporate Committee, subsequently, determined that the handrail would commence within a garden bed 300mm from the edge of the concrete driveway and proceed down the slope to the letterboxes. [6] The Appellants submitted that the Body Corporate and the Committee's decisions were unreasonable and rely upon the following grounds of appeal: (a) The Body Corporate and Committee have been in breach of sections 94 (1) & (2) of the [Body Corporate and Community Management Act 1997 (Qld)] (b) The Committee has been a breach Section 100 (5) of the [Body Corporate and Community Management Act 1997 (Qld)]; -- 2 of 6 -- 3 (c) The Committee has been a breach of Section 54 of the [Body Corporate and Community Management (Standard Module) Regulation 2008 (Qld)]; (d) The Committee has been a breach of the Committee Code of Conduct: (e) The Adjudicator was in breach of the requirements of Natural Justice Section 28 [Queensland Civil and Administrative Tribunal Act 2009 (Qld)] & Section 269 of the [Body Corporate and Community Management Act 1997 (Qld)]: [7] They want the interim order of 12 January 2017 and final order of 12 July 2017 set aside. There was no appeal against the interim order which dismissed the Appellants’ application to restrain the Body Corporate from implementing Motion 8. [8] The Adjudicator recognised that the Appellants, initially, accepted the substance of Motion 8 but were unhappy with the way it was being implemented by the Committee. It was not a question of whether the handrail was needed but rather where it should be located. Pursuant to section 100(5) of the Body Corporate and Community Management Act 1997 (Qld) (‘the BCCMA’), the Adjudicator noted that the Committee was to act reasonably when making a decision. He also noted that the question of reasonableness is not whether this decision was correct but whether it was objectively reasonable.1 What was reasonable was a question of fact to be determined by objectively considering all relevant circumstances. When assessing whether the Body Corporate or the Committee had acted reasonably when making a decision, it was not the Adjudicator's role to evaluate the merits of the reasonableness of the decision itself. Rather, the focus of enquiry must be on the reasonableness of the conduct of the Body Corporate and the Committee when arriving at the decision.2 The Adjudicator found that the Committee acted reasonably in reaching its decision. [9] An appeal from the decision of an adjudicator under s 289(2) of the BCCMA may only be made to the Tribunal on a question of law. [10] The principles in considering such an appeal are succinctly set out in Ward v McDonald.3 There, Member Barlow QC observed: [3]… [The] limitation on the Tribunal’s jurisdiction imposes a significant constraint on the role of the Tribunal in reviewing decisions of an adjudicator. The appealable error of law must arise on the facts found by the adjudicator or must vitiate the findings made or must have led the adjudicator to omit to make a finding she or he was legally required to make. [4] A wrong finding of fact is not sufficient to demonstrate an error of law. Particularly where a decision involves matters of fact and degree, provided that the decision maker applies correct principles of law [Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286] and the final conclusion is not unreasonable, [Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450] no appeal is available under s 289 of the Act. 1 Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission [1997] FCA 1311. 2 Re Body Corporate for Viridian; Kjerulf Ainsworth & Ors v Albrecht &Anor [2014] QCATA 294, [84]. 3 [2014] QCATA 048. -- 3 of 6 -- 4 [5] A concise and helpful summary of the distinction between questions of law and questions of fact is set out in this passage from a decision of the Supreme Court of Canada [Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at [35]]: Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. [11] The Appellant’s submissions comprise 22 pages with annexures. The format is not easy to follow. There are multiple sub-paragraphs that are critical of the evidence that was before the Adjudicator. Obviously, as the appeal is limited to questions of law those references are irrelevant. Doing the best that I can, I have discerned the principal issues that form the basis of the Appellants’ submissions as follows: (a) That the Committee, in its decision to resile from the compromise agreement, to position the handrail elsewhere, relied upon misinformation provided by Derek Caton; (b) The Committee had a duty to obtain expert relevant advice before reaching its decision, and it failed to do so; (c) That the only advice the Committee sought was from the Manager of the Body Corporate and her opinion was irrelevant and provided misleading support to the Committee; (d) That the Committee's decision of 9 December 2016 was invalid as there was no formal motion and the requirements of Section 54 of the Body Corporate and Community Management (Standard Module) Regulation 2008 (Qld) (‘Standard Module Regulation’) were not complied with; (e) That, as the Respondents did not respond to the Appellants’ further submissions of 15 March 2017, the Appellants believe that the Respondents had accepted the report of that date to which the submissions related and that the Respondents, therefore, impliedly accepted the submissions; and, (f) The Committee voted as a block and treated the Appellants’ opposition unfairly and unreasonably. [12] Many of those issues re-agitate matters that were considered by the Adjudicator and rejected. Most of the grounds are questions of mixed fact and law and are not valid grounds of appeal. [13] The Appellants submit that the Committee erroneously accepted Mr Little's advice supporting a compromise position of the handrail at 2 metres down the slope. The Adjudicator found that to be the case. However the Adjudicator went on to find that: … Even though the applicants may be able to show that the committee acted unreasonably by erroneously accepting Mr Caton's account of Mr Little's advice while disregarding the applicants' account, that does not appear to make any difference to the decision the committee ultimately reached. The committee ultimately made its own direct assessment of Mr Caton’s abilities and confirmed -- 4 of 6 -- 5 its decision regarding the location of the hand rail on the basis of that assessment in February this year. [14] The Adjudicator specifically considered expert evidence submitted by the Appellants relating to the position of the hand rails and access to the Appellants’ garage. The Adjudicator found that ‘I have no evidence before me to demonstrate that the committee did not take these factors into account when making its decision’. [15] Although, the Adjudicator found that the Body Corporate Manager was not a voting member of the Committee and was not capable of deciding where the hand rail would be located, he found that the Body Corporate Manager was already sufficiently familiar with the site from previous visits and it was not necessary for her to make an inspection. [16] These findings were open on the evidence. No question of law arises from these grounds of appeal. [17] The fact that the Respondents did not respond to the new evidence contained in the Appellants’ further submissions of 15 March 2017 does not elevate that evidence to an unchallengeable position. The Adjudicator considered it and made findings contrary to it, which he was entitled to. Objections to the Adjudicator having done so are not a grounds for appeal as, again, his findings relate to mixed facts and law issues. [18] The one question of law that I am required to determine is the issue of irregularity of the Committee's decision of 9 December 2016. In the written outline of argument the Appellants make the following submissions: The Chair’s email Motion 9/12/16 & email responses to the Committee Members (not sighted by the Appellants) as Vote supporting a Resolution were invalid and should be revoked. [19] I note, in passing, that the email was actually sent to Mr Baker. [20] The Appellants’ submission is that the chairman of the Committee did not comply with the Requirements of Standard, module sections 44 to 55 in that the alleged motion of 9 December 2016 was not reached at a meeting where the formalities of a meeting had been complied with. There was no notice of meeting, no agenda and no motions put or voted on. [21] The Adjudicator sought further information from the Committee. The information provided by the Committee, in its interim and final submissions, did not show that any motions were put or voted on. Nor, did the Adjudicator, find any evidence, that any of the other requirements of section 54 of the Standard Module concerning votes outside committee meetings had been met. Nevertheless, he went on to find: … The committee's position on the handrail is clear in the application and in submissions, and it is obviously clear to all parties to this dispute. No one has argued that no relevant committee decisions have been made. All parties clearly appreciate that the committee seeks to install the handrail starting 300 mm from the edge of the concrete driveway in the garden bed at the apex of the left turn (as one enters the property) into the applicants' garage, and proceeding from there down the slope to the letterboxes. For the purpose of the deciding this application I will treat that position as a decision of the committee. Otherwise I -- 5 of 6 -- 6 may have to find that the application is misconceived as no committee decisions about handwriting be made, which would be unhelpful to all concerned. [22] In Carroll & Ors v Body Corporate for Palm Springs Residences CTS 29467,4 Dr Forbes, Member, in considering an adjudicator’s dismissal of allegedly invalid decisions by the committee, said: [22] The BCCMA is a lengthy, technical and complex instrument, with no fewer than six sets of subordinate and similarly complex ‘module regulations’. It cannot be the case that the legislature expected all, or even most committee members of a body corporate, small, large or very large, to be experts in corporate law, or masters of community management. Indeed, the BCCMA implicitly recognises that, if this legislation were at all times, and in all circumstances applied with the utmost rigour and most precious attention to detail, its objects and policies would be retarded by endemic disputation, rather than advanced. [23] The direction that a ‘body corporate must act reasonably’ in the performance of its ‘general functions’ does not suggest that every minor irregularity should be pounced on to impede or paralyse the normal conduct of business. The Code of Conduct for committee members does not demand administrative perfection, but simply directs them to ‘take reasonable steps’ to comply with the BCCMA. If people ‘honestly and reasonably believe’ that they are validly elected members of a committee, their decision, which would otherwise be void, are not to be set aside. [24] There is no good reason to suppose that the BCCMA is intended to be more draconian than the Corporations Act 2001 (Cth), which provides: A proceeding under this Act is not invalidated because of any procedural irregularity unless the Court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the Court… [25] This remedial provision has been construed liberally, as remedial legislation should be. It is capable of excusing the invalid appointment of a director, or the failure to assemble a quorum. It seems to me that the provisions of the BCCMA should be approached in a similar way. (citations omitted) [23] I am of the opinion that the Adjudicator has not erred in law in reaching the decision he did. I am satisfied that the Appellants have not been prejudiced by the procedural irregularities of the Committee’s decision. They have not been denied natural justice. [24] I dismiss the appeal. 4 [2013] QCATA 21. -- 6 of 6 --