Drift Palm Cove Body Corporate CTS 36253 v Drift Palm Cove Management Pty Limited [2014] QCATA 5

CITATION: Drift Palm Cove Body Corporate CTS 36253 v Drift Palm Cove Management Pty Limited [2014] QCATA 005 PARTIES: Drift Palm Cove Body Corporate CTS 36253 (Applicant) v Drift Palm Cove Management Pty Limited (Respondent) APPLICATION NUMBER: APL331-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Oliver Dr Cullen, Member DELIVERED ON: 10 January 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is refused and the application is dismissed. CATCHWORDS: APPEALS – APPLICATION TO APPEAL FROM REFUSAL TO REOPEN – leave refused as s 139(5) QCAT Act provides that there is no entitlement to appeal from a refusal to reopen – leave to appeal refused. Queensland Civil and Administrative Tribunal Act 2009 ss32, 139(5) Drift Palm Cove Body Corporate v Drift Palm Cove Management Pty Ltd [2013] QCATA 249 Body Corporate for Drift Palm Cove v Drift Palm Cove (Management) Pty Ltd [2013] QCAT 333 Drift Palm Cove (Management) Pty Ltd v Body Corporate for Drift Palm Cove [2011] QCAT 605 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 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION Mr Oliver, Senior Member [1] In this matter the Appeal Tribunal consisted of Dr Cullen, Member, and me. I have had the benefit of reading her reasons in draft. I agree with her reasons and conclusions, and the order she proposes. REASONS FOR DECISION Dr Cullen, Member [1] Community living is not without challenges. In this matter, the caretaking service contractor (Management) and the Body Corporate for the Drift Palm Cove Community have found themselves locked in an intractable dispute. Sadly, this is so despite the Tribunal having made a decision on 8 July 20131 in relation to the matters brought before it. [2] The 8 July 2013 decision was not the first decision made by the Tribunal in relation to the matters in dispute between the parties. On 30 November 2011, the Tribunal made orders amending the reviewable terms for a caretaking agreement between the parties.2 [3] Briefly, the 30 November 2011 decision was made following an application to the Tribunal by Management. Management sought an increase to its remuneration for caretaking duties, following a motion for an increase failing at the Annual General Meeting. Management‟s application was unsuccessfully resisted by the Body Corporate. The Tribunal determined that Management was entitled to an increase in remuneration for its caretaking duties, together with interest, but declined to make a costs order. [4] It is of importance to indicate here that the Tribunal‟s 30 November 2011 decision has not been appealed. At this point, more than 2 years later, it would be fair to say that any appeal would be well and truly out of time, and not allowed. [5] Although there was no appeal from the 30 November 2011 decision, the 8 July 2013 decision (and application therein), related to the same matters. There, the Tribunal determined 3 applications brought by the Body Corporate. The applications were to (1) extend the time for filing of an application to reopen the proceedings; (2) for leave to file further material; and (3) an application to reopen the proceedings. [6] Briefly, the Body Corporate argued that the affidavit material identified new information that was not before the Tribunal when the 30 November 2011 decision was made, and further that there would be no prejudice or 1 Body Corporate for Drift Palm Cove v Drift Palm Cove (Management) Pty Ltd [2013] QCAT 333. 2 Drift Palm Cove (Management) Pty Ltd v Body Corporate for Drift Palm Cove [2011] QCAT 605. -- 2 of 4 -- 3 detriment to Management, but that “material hardship” would befall the Body Corporate if the proceeding was not reopened or redetermined. [7] In the 8 July 2013 decision, the learned Member allowed the application to file further material; but then refused the application to extend time to make the reopening application. Consequently, the learned Member then refused the Body Corporate‟s application to reopen the proceedings that were the subject of the decision made by the Tribunal on 30 November 2011. [8] In the matter now before me, the Body Corporate now seeks (1) leave to appeal in relation to the 8 July 2013 decision; and (2) an application to stay the earlier decision of the Tribunal made 30 November 2011. The Stay Application [9] It is not necessary for me to address the application for a stay, for the reason that Acting Senior Member Howard has already determined that matter on 12 September 2013.3 Correctly, she dismissed the Body Corporate‟s application for a stay on the basis that the Tribunal has no power to stay a decision that has not been appealed against. There is no right to appeal from a refusal to reopen [10] The Body Corporate now desires to appeal from the Tribunal‟s 8 July 2013 decision refusing to allow it to reopen the 30 November 2011 proceedings. [11] The Body Corporate, in its current application, asserts that: they were never legally advised of legal rights to appeal the original decision of November 30 2011, we submit this is an injustice and severely disadvantages the Body Corporate in this matter and the decisions made; and Member Dean‟s [sic] refusal to allow an extension of time to review evidence submitted which supports our position of a wrong decision of 30 November 2011 because its based on the wrong formula and cannot be managed which is no corrected will continue for a further 18 years to the term of the agreement. [12] The Tribunal is limited in its decision making powers by the legislation applicable to it: the Queensland Civil and Administrative Tribunal Act 2009. In other words, the Tribunal cannot ignore the legislative parameters set for it by parliament. [13] Here, s 139(5) of the QCAT Act quite clearly proscribes that the Tribunal‟s decision on an application to reopen „is final and can not be challenged, appealed against, reviewed, set aside, or called into question in any other way’. The Body Corporate, in this application, is applying for leave to appeal the Tribunal‟s decision of 12 September 2013 (in Application Number REO005-13) refusing to allow it to reopen. [14] Simply put, the Tribunal has no power under the QCAT Act to grant the relief sought irrespective of the merits of the application therefore the 3 Drift Palm Cove Body Corporate v Drift Palm Cove Management Pty Ltd [2013] QCATA 249. -- 3 of 4 -- 4 application for leave to appeal must be refused, and the application in APL331-13 is dismissed. QCAT cannot, and should not, provide legal advice [15] In relation to the grounds stated by the Body Corporate, and in the event that this decision is read by other prospective appellants, I think it prudent to comment further. Whilst the Tribunal is obliged to create procedural fairness for parties that appear before it, there is no obligation on the part of the Tribunal to provide any form of legal advice to parties. This is the domain of the legal profession, of which there are many well-qualified members practicing in the area of body corporate law. [16] Further, it is important to also appreciate that there are reasons why the Tribunal cannot apprise parties of legal rights, the most important perhaps being that the Tribunal, as a neutral decision maker, cannot be seen to advantage any party through the giving of legal advice. [17] Finally, it is the practice of the QCAT Registry to send information relating to appeal rights along with all decisions made by the Tribunal. Even if this was not done, the information is readily available in print from the Registry, and via electronic means on-line. Order Leave to appeal is refused and the application is dismissed. -- 4 of 4 --