Double Bay Properties Pty Ltd v The Body Corporate for The Caribbean Kawana Island [2015] QCATA 30

CITATION: Double Bay Properties Pty Ltd v The Body Corporate for The Caribbean Kawana Island CTS 37569 [2015] QCATA 30 PARTIES: Double Bay Properties Pty Ltd (Appellant) v The Body Corporate for The Caribbean Kawana Island CTS 37569 (Respondent) APPLICATION NUMBER: APL297-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 16 January 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. 1 The appeal is allowed. 2. The decision of the Adjudicator dated 4 June 2014 is set aside. 3. In lieu thereof it is ordered that the time for lodgement of a first subsequent statement particularising the allocations described in the appellant’s letter of 20 June 2008 to the body corporate of Caribbean Kawana Island CTS 37569 be extended to 24 April 2015. 4. It is further ordered that the body corporate of Caribbean Kawana Island CTS 37569 shall, no later than 24 April 2015, lodge in the Land Registry a request to record the aforesaid statement. CATCHWORDS: APPEALS - Appeal from decision of an Adjudicator made under the Body Corporate and Community Management Act 1997 – where original owner allocated additional car places to -- 1 of 6 -- 2 unit held by original owner – where allocation made within time limited by said Act – where body corporate duly notified of the allocation made – where body corporate failed or refused to lodge a request to record first subsequent statement within time – where original owner applied to Commissioner for extension of time for lodgement of request by body corporate – where body corporate consented to application – where application refused for want of jurisdiction under section 174 of Act – where appellant appeals on basis that section 174 not applicable – whether desired extension may be granted under section 175 of Act – whether section 175 discretion should be exercised in favour of appellant Body Corporate and Community Management Act 1997 (Qld) ss 13, 174, 175, 289, 290, 294, Schedule 6 Land Title Act 1994 (Qld) Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 25, 32 Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 Tasmania v Commonwealth and Victoria (1904) 1 CLR 329 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 Double Bay’s allocation [1] In 2007 the appellant (“Double Bay”) established the respondent community titles scheme (“Caribbean”) on Queensland’s Sunshine Coast. -- 2 of 6 -- 3 [2] Double Bay, as original owner,1 retains title to two units in the scheme, namely lots 16 and 55. By letter dated 20 June 2008 Double Bay notified Caribbean’s body corporate of its allocation of extra car spaces to lot 16. [3] In so doing, Double Bay relied on by-law 21 of the relevant Community Management Statement and section 174 of the Body Corporate and Community Management Act 1997 (Qld) (“the Act”). [4] By-law 21 provides: 21.1 The original owner is authorised to allocate part of the Common Property for the exclusive use and enjoyment as a car space ... for the Owners and occupiers of any one or more of the lots for which the allocation is made. 21.2 The Original Owner may make an allocation or allocations and deliver ... an Allocation Plan setting out the details of the allocations to the body corporate within 12 months after the recording of this Community Management Statement. [5] It is now2 common ground that Double Bay gave the Body Corporate details of the subject allocation on 20 June 2008, well within the time limit set out in by-law 21.2.3 The body corporate’s task [6] The next requisite action was lodgement4 by the body corporate of a request for recording5 of the allocation in question.6 [7] Unfortunately, the body corporate never discharged that duty, and it was not until Caribbean’s annual general meeting on 5 December 2013 that the body corporate admitted its receipt of Double Bay’s allocation notice on 20 June 2008.7 [8] By way of repentance the body corporate then resolved to: ... consent to an Order of an Adjudicator being made, on application or request by Double Bay ... that the time for the lodgement of the first subsequent statement8 (required to be lodged by the Body Corporate after delivery of the 20 June 2008 letter) is extended to that date which is three (3) months after the date of the Order of the Adjudicator. Double Bay seeks extension [9] Relying on that resolution, and section 175(3) of the Act, Double Bay applied to the Commissioner for Body Corporate and Community Management on 13 March 2014 for an order that – 1 As defined in s 13 of the Act. 2 But it was a matter of dispute until June 2013. 3 See also s 174(2) of the Act. The base allocation period ended on 17 October 2008. 4 I.e. filing in the Land Registry: the Act Schedule 6; Land Title Act 1994 Schedule 2. 5 “Recording” means recording in the Land Registry: the Act Schedule 6. 6 Section 175(1). 7 Minutes of annual general meeting 5 December 2013; Adjudicator’s decision 4 June 2014 paragraph [6]. 8 The expression “first subsequent statement” means a request to record allocations of car spaces etc made during the base allocation period” of 1 year after the recording of the relevant community management statement: s 174(2)(a). -- 3 of 6 -- 4 The time for the lodgement of the first subsequent statement under section 175(3) of the [Act] for the Caribbean, Kawana Island CTS 37569 [be] extended until that date which is 3 months after the date of [such] order.9 Application dismissed [10] On 4 June 2014 the Commissioner’s Adjudicator dismissed that application on these grounds: [T]he base allocation period ended on 17 October 2008. Therefore an Adjudicator can only extend the base allocation period up to 17 October 2009 – two years after the recording of the first CMS. However, this application seeks an extension in excess of six years ... [Such] an order cannot be made contrary to the Act, regardless of a body corporate resolution agreeing otherwise.10 [11] In so deciding, the Adjudicator treated Double Bay’s application as one based on section 174 of the Act. But that section deals, not with the recording process contemplated in section 175, and sought by Double Bay, but with the initial step of allocation and notification to the body corporate. That initial step must normally be completed within 1 year of the recording of the community management statement, (“the founding date”)11 but an Adjudicator may extend that time limit for up to 2 years from the founding date.12 Double Bay appeals [12] Double Bay appeals to this Tribunal,13 contending that the Adjudicator’s decision is affected by an error of law. I am satisfied that the appeal raises a question of law only,14 and that it was lodged within the time limited by the Act.15 [13] Double Bay did not seek an extension under section 174. There was no need to do so, simply because it made its allocation within 1 year of the recording of the community management statement.16 Instead, pursuant to section 175(3), Double Bay explicitly sought an extension of time for the body corporate to record the allocation in the Land Registry. Two distinct discretions [14] The discretion to grant an extension under section 175 differs significantly from the discretion to enlarge the time for making an allocation under section 174. While section 174 limits the discretion to 2 years, the section 175(3) discretion is at large: The request to record the first subsequent statement must be lodged17 within 3 months, or a longer time stated in the order of an adjudicator 9 Application of appellant to Commission dated 13 March 2014, paragraph [35]. 10 Reasons for decision paragraphs [12]-[13]. 11 Section 174(2). 12 Sections 174(2), 174(3)(a). 13 Section 289. 14 As provided in s 289(2). 15 Section 290(1). 16 Section 174(2)(a). 17 By the body corporate: s 175(1). -- 4 of 6 -- 5 under the dispute resolution provisions, after the end of the base allocation period.18 [15] The Explanatory note to the bill for the Act offers no explanation for this difference, and I have found no judicial discussion in point. It may not have arisen before, and it may seldom arise in future. The draftsman may have taken the view that, while an allocator must accept responsibility for notifying the body corporate, he may be treated more liberally if the body corporate fails to perform its part of the process, which (absent a judicial order) is beyond his control. If the legislature intended otherwise, it could easily have applied to section 175(3) the same, or a similar restriction to that in section 174(3)(a). It did not do so. The silence is significant.19 As it is, the latter time limit refers specifically and only to an order mentioned in subsection 2(b) of section 174. [16] In principle, an extension under section 175 is not so limited. The subject decision to the contrary, based on section 174, is wrong in law, and should therefore be set aside. Should the section 17 discretion be exercised? [17] It remains to consider whether the Tribunal, invested as it is with the powers of the Adjudicator20, should exercise the section 175 discretion in favour of the appellant. [18] Fault in this case may not be entirely unilateral. While the responsibility to record the allocation was clearly the body corporate’s, Double Bay gave no evidence of efforts on its part to induce the body corporate to do its duty.21 However, there is uncontradicted evidence that, from late 2010 until 5 December 2013 the body corporate not only neglected its statutory duty, but persisted in denials that it received Double Bay’s notice of allocation, dated and delivered on 20 June 2008.22 [19] I respectfully agree with the Adjudicator that the body corporate’s long delayed admission, and its consent to Double Bay’s application are not, per se, sufficient reasons for granting an extension.23 Nevertheless, it is in the interests of justice that the negligent or pertinacious refusal of the body corporate to do its duty should not prevent Double Bay from regularising its position. There may be another, more complex, uncertain and time- consuming solution available24, but that is no reason why the present half- finished process should remain in administrative limbo. I shall make the order sought. 18 Emphasis added. 19 Tasmania v Commonwealth and Victoria (1904) 1 CLR 329; Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473 at 488-489; Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94. 20 Section 294(1); QCAT Act s 25(b). 21 Reasons for decision 4 June 2014 paragraph [5]. 22 Double Bay’s submissions to the Commission, 13 March 2014, paragraphs 22, 24-25. The body corporate made no submission: Reasons for decision 4 June 2014 paragraph [9]. 23 Reasons for decision 4 June 2014 paragraph [13]. 24 Reasons for decision 4 June 2014 paragraph [14]. -- 5 of 6 -- 6 [20] Apart from Double Bay, only one person made a submission to the Commission. On 9 April 2014, Janita Gai Smith contended, in effect, that, if Double Bay were confirmed as holder of 19 car parks, its contribution to the Caribbean complex should be increased. However, as the appellant points out, that is an argument for another day.25 ORDERS 1. The appeal is allowed. 2. The decision of the Adjudicator dated 4 June 2014 is set aside. 3. In lieu thereof it is ordered that the time for lodgement of a first subsequent statement particularising the allocations described in the appellant’s letter of 20 June 2008 to the body corporate of Caribbean Kawana Island CTS 37569 be extended to 24 April 2015. 4. It is further ordered that the body corporate of Caribbean Kawana Island CTS 37569 shall, no later than 24 April 2015, lodge in the Land Registry a request to record the aforessaid statement. 25 Supplementary submission on appeal dated 14 May 2014. -- 6 of 6 --