Body Corporate for Society House v Partington [2016] QCATA 168

CITATION: Body Corporate for Society House v Partington [2016] QCATA 168 PARTIES: Body Corporate for Society House CTS 14784 (Appellant) v Susan Partington ATF Partington Family Trust (Respondent) APPLICATION NUMBER: APL439-15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott Member Gordon DELIVERED ON: 7 November 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The Adjudicator’s order dated 7 September 2015 in application 0290-2015 is set aside. 2. The application is referred back to the Commissioner for Body Corporate and Community Management for reconsideration. 3. It is directed that, if the application is referred by the Commissioner for adjudication, it shall be determined by a different Adjudicator. CATCHWORDS: REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – RIGHTS AND OBLIGATIONS OF PROPRIETORS – where lot owner sought access to financial and other records from body corporate – where Adjudicator allowed the application - where body corporate now appeals from Adjudicator’s decision – where Adjudicator requested information from the body corporate “as soon as possible” – where Adjudicator made decision soon after - whether body corporate was afforded natural justice -- 1 of 8 -- 2 Body Corporate and Community Management Act 1997 (Qld) ss 100, 269, 271, 289 Body Corporate and Community Management (Commercial Module) Regulation 2008 (Qld) s 18 McEvoy & Anor v The Body Corporate for No 9 Port Douglas Road [2013] QCA 168 mentioned APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] This appeal concerns whether a department Adjudicator in the Office of the Commissioner for Body Corporate and Community Management afforded natural justice to the body corporate when dealing with an application by a lot owner. [2] In her application to the Commissioner, the lot owner Ms Partington, sought access to certain financial and other records held by the body corporate. The Commissioner referred this application to a department Adjudicator. The issues before the Adjudicator [3] The main issues before the Adjudicator concerning the requested records were whether the body corporate had already sent some of them, whether Ms Partington had paid the correct fee for them and whether some of them were unavailable. [4] The Adjudicator made an order declaring that the body corporate had failed to supply the records requested, an order reimbursing Ms Partington the copying costs she had paid, and an order requiring the body corporate to provide an audit report and financial statements when available. The appeal [5] The body corporate now appeal against that decision. The governing law for these matters is in the Body Corporate and Community Management Act 1997 (Qld). By section 289(2) of that Act an appeal to the Appeal Tribunal can only be on a question of law. [6] In her submissions on the appeal, Ms Partington challenged the body corporate’s authority to bring the appeal, saying that a decision to appeal requires a resolution to be passed at a general meeting. She says that -- 2 of 8 -- 3 here a decision to appeal was made only by the committee of the body corporate. [7] The Appeal Tribunal agrees that the committee was unable to make a decision to appeal against a decision of an Adjudicator. This is the combined effect of section 100 of the Body Corporate and Community Management Act 1997 (Qld) and section 18(1)(d) and section 18(2) of the Body Corporate and Community Management (Commercial Module) Regulation 2008 (Qld) which is the module which applies to this community titles scheme. [8] Because of this, the Appeal Tribunal gave time to the body corporate to ratify in a general meeting the committee’s decision to bring the appeal.1 The body corporate did so at an extraordinary general meeting on 21 June 2016. [9] Ms Partington then applied to the Adjudicator seeking a declaration that all the motions passed at the meeting of 21 June 2016 were void. Because of that application, the Appeal Tribunal stayed this appeal until the Adjudicator had made her decision. [10] The Adjudicator made her decision on 7 October 2016. She declared that one of the motions passed at the meeting was void, but of significance for this appeal, she found that the resolution to ratify the committee’s decision to bring the appeal was valid. Upon receiving this decision the Appeal Tribunal proceeded to hear this appeal. Grounds of appeal [11] In the body corporate’s appeal application the grounds of appeal are given very generally as:- (1) denial of natural justice on the grounds of procedural unfairness; (2) a question of law that there was a finding of fact which was not supportable on the evidence; (3) a question of law that there was a reasonably arguable case that the primary decision maker made an error; (4) to correct a substantial injustice to the applicant caused by the error(s). [11] The appeal application explains each ground in detail. This means that the grounds of appeal can be recast as follows:- 1 This was in accordance with the procedure suggested in McEvoy & Anor v The Body Corporate for No 9 Port Douglas Road [2013] QCA 168 at paragraph [42]. -- 3 of 8 -- 4 (1) the Adjudicator failed to give the body corporate sufficient time to answer her request for information and made a decision before the answers were received; (2) the Adjudicator found that the requested records had not been given to Ms Partington by the body corporate and this finding was contrary to the evidence; (3) the Adjudicator decided that GST should not be added by the body corporate to the fee for making a request for records; this decision was wrong in law and was decided without receiving submissions on the matter; (4) the Adjudicator decided that a lot owner may use a “credit system” (rolling account) for the purposes of requesting records; this decision was wrong in law and was made without submissions from Ms Partington, and only partial submissions from the body corporate. [12] The Appeal Tribunal has decided on appeal ground 1 that the matter should be remitted back to the Commissioner for reconsideration, and if it is referred by the Commissioner for department adjudication this should be dealt with by a different Adjudicator. In the circumstances the Appeal Tribunal propose to deal solely with appeal ground 1 as recast above. Appeal ground (1): dealing with the matter without answers to the request [13] This ground of appeal refers to the Adjudicator’s letter of 4 August 2015 to the body corporate requesting further information including a. Evidence that the bank statements were sent to the applicant. b. A copy of the bank statement. c. Any evidence that the body corporate had communicated that records were unable to be supplied until further fees were paid, or detailing any unpaid fees for records. d. Details of the applicant’s committee membership in 2014 and 2015, and any records fees charged to the applicant while she was a committee member. e. Details of any communication informing the applicant that the body corporate did not have the QFRS report or reports or statements from the auditor or accountant. [14] The letter asked for the answers to be given by 17 August 2015. [15] The information that the Adjudicator requested from the body corporate was pertinent to the issues in the application and was properly requested pursuant to the Adjudicator’s investigative powers and duties.2 2 In sections 269 and 271 of the Act. -- 4 of 8 -- 5 [16] In her reasons for decision the Adjudicator stated that the body corporate had asked for an extension of time to give the answers which was granted, and then asked for a second extension of time which was refused. Apart from that, she stated that she had not received a response to her queries and the secretary of the body corporate had not responded to telephone calls or correspondence from her office.3 [17] In this appeal, the body corporate say that it was denied natural justice in that it was not given a reasonable opportunity to answer the request for information in the letter of 4 August 2015. It says a lot of time was needed to investigate and collate the answers, and most of the requests required “full details of all verbal communications, copies, clarifications”, yet the original letter gave only two weeks for a reply. Due to work commitments of the various committee members an extension was requested and one week was provided. The body corporate then requested a further week’s extension which was refused. [18] The body corporate argue that in deciding the matter without its answers to the request the Adjudicator had effectively decided the application on a “win by default” basis. [19] In her submissions on this ground of appeal Ms Partington points to the difficulties she has had in obtaining the records, and argues that the body corporate has been in contravention of the Act. She also expresses concern about the delay in having the matter dealt with. [20] In disputing the Adjudicator’s statement in the reasons for decision that the secretary of the body corporate had not responded to telephone calls or correspondence from her office, the body corporate provides a table which lists the communication between the body corporate and the office, and also provides copies of the relevant letters and emails. The Appeal Tribunal has been provided with a copy of the Adjudicator’s file by the Commissioner including telephone attendance notes. [21] From the totality of the material it can be seen that the chronology is:- 4 August 2015 (Tuesday) – letter from Adjudicator requesting the information and asking for answers by Monday 17 August 2015. This was emailed at 2.15pm that day to the secretary of the body corporate and it was also posted. 15 August 2015 (Saturday) – email from the secretary of the body corporate asking for “a short extension (of perhaps one week)” because she had been unable to get a quorum of the committee to finalise the response. 18 August 2015 (Tuesday) – telephone call from the Adjudicator’s office to the secretary of the body corporate. A message is left on voicemail asking for a call back. 18 August 2015 - email from the secretary of the body corporate to the Adjudicator’s office apologising for missing the telephone call. She explains that she is in transit 3 Paragraph [16]. -- 5 of 8 -- 6 and asks for an email response or a telephone call on her return. 19 August 2015 (Wednesday) – email from the Adjudicator’s office to the secretary of the body corporate stating that the Adjudicator has granted an extension of time to Monday 24 August 2015. 24 August 2015 (Monday) – email from the secretary of the body corporate to the Adjudicator’s office asking for an extension of one week because Ms Partington’s reply had only been received that day (24th): “to make a proper submission to the Adjudicator the committee will need additional time to fully consider all the relevant materials, including importantly, the material received of even date”. The reference here to Ms Partington’s reply was to her reply to the body corporate’s own submissions in the application. 26 August 2015 (Wednesday) – three telephone calls from the Adjudicator’s office to the secretary of the body corporate. A message is left with the Chair and also on voicemail for the secretary to call back. 26 August 2015 - email (after the above calls) from the secretary of the body corporate to the Adjudicator’s office saying that she is not available that afternoon and asking how she can assist. 27 August 2015 - email from the Adjudicator’s office to the secretary of the body corporate stating that the Adjudicator has refused the request for an extension of time and that the body corporate “is requested to provide its response as soon as possible”. The reasons given for this decision are that 1 there has already been one extension and the Adjudicator is not satisfied that the body corporate has established a need for a further extension 2 there is no statutory right for a respondent to reply to an applicant’s reply to submissions and 3 the letter of 4 August 2015 did not invite a response on the applicant’s reply to submissions – the body corporate was only requested to respond to the 10 questions in the letter. [22] The Adjudicator then proceeded to make her decision and it was signed and dated on 7 September 2015. [23] Section 269 of the Act requires an Adjudicator to investigate the application to decide whether it would be appropriate to make an order. The section requires the Adjudicator to “act quickly” but also to “observe natural justice”. [24] Even without this statutory provision, all parties in such proceedings are entitled to natural justice, which includes a fair chance to present their case. -- 6 of 8 -- 7 [25] In this appeal, the body corporate says that it was led to believe from the email of 27 August 2015 requiring a response “as soon as possible” that it was being given some sort of time relief. It says that it started to prepare its response at that point but a few days later unexpectedly it received the Adjudicator’s decision. [26] The Appeal Tribunal considers that the email of 27 August 2015 requesting answers to the request for information “as soon as possible” was capable of being read by a reasonable person as some sort of additional time to provide the information requested, despite the rejection of the formal application for an extension of time and despite all that had happened before. [27] Had the email stated that the Adjudicator was now proceeding to make a decision, or that the Adjudicator was going to proceed to make a decision by 7 September 2015 then the body corporate would have been made aware that unless it acted immediately its submissions were not going to arrive on time. If such a thing had been said in the email, the Adjudicator’s decision to proceed to decide the matter on 7 September 2015 could not have been impugned because the decision to refuse the second application for an extension of time was correct for the reasons given by the Adjudicator in that email. [28] The result however, is that it was not clear from the email that the Adjudicator would proceed to decide the application without waiting for the answers from the body corporate. [29] The body corporate also complains that the Adjudicator stated in the reasons for decision that the secretary of the body corporate had not responded to telephone calls or correspondence from her office. This statement in the reasons for decision was incorrect. Whilst it is true that the secretary of the body corporate had not called back the Adjudicator’s office when asked to do so in the voicemails and in the message left with the Chair, she did respond to the telephone calls by email. Conclusion [30] The Appeal Tribunal concludes that the body corporate was not afforded natural justice in this matter because in the totality of the events which happened it was not given a fair chance to give the answers to the Adjudicator’s request for information. [31] The question arises what should be the result of this finding. Firstly, since this is an error of law there is no alternative but to allow the appeal. The decision must be set aside. Although it is open to the Appeal Tribunal when deciding an appeal to decide the application, it is more appropriate for it to be referred back to the Commissioner for reconsideration. [32] We make no direction as to how the Commissioner should deal with the application except that if it is referred for adjudication it should be dealt with by a different Adjudicator. One of the reasons for this is that the body corporate requests it, seemingly because it is aggrieved by certain things said in the reasons for decision by the Adjudicator, in particular that the secretary of the body corporate had not responded to telephone -- 7 of 8 -- 8 calls or correspondence from the Adjudicator’s office. We have found that this statement was incorrect. In our view therefore it is appropriate for another Adjudicator to hear the matter if it is referred for adjudication. -- 8 of 8 --