Cook v Principal Body Corporate of Royal Pines Resort & Anor [2013] QCAT 481

CITATION: Cook v Principal Body Corporate of Royal Pines Resort & Anor [2013] QCAT 481 PARTIES: Marion Jeanette Cook and Terrence Vincent Cook (Applicants) v Principal Body Corporate of Royal Pines Resort (First Respondent) South Shields Village Body Corporate [GTP 2995] (Second Respondent) APPLICATION NUMBER: OCL091-11 INITIATING APPLICATIONS: 1. Application by Applicants to transfer the proceeding. 2. Application by First Respondent to dismiss the July 2011 application. MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: R M Clifford, Member DELIVERED ON: 11 September 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to transfer the proceeding to the Queensland Anti- Discrimination Commission is dismissed. 2. The original application by Mr and Mrs Cook dated July 2011 is dismissed. 3. The hearing listed for 20 September 2013 is delisted. 4. Any outstanding applications or directions are overtaken by the decision to dismiss the July 2011 application. CATCHWORDS: Dispute concerning contravention of Development Control By-Law – building work not approved – approval given retrospectively – whether dispute now resolved – Tribunal discretion. -- 1 of 8 -- 2 Request to transfer proceeding - whether discrimination matters sufficiently identified – time delays - Tribunal discretion Integrated Resort Development Act 1987; section Queensland Civil and Administrative Tribunal Act 2009; section 179B(1) APPEARANCES and REPRESENTATION (if any): These matters were heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Marion and Terence Cook are residents of Lot 31, South Shields Village [GTP 2995] in the Royal Pines Resort on the Gold Coast. They have resided in the property since 2005. Mrs Cook is the owner of the property. Mr Cook is attorney in regards to all matters relating to the property pursuant to a Power of Attorney dated 14 November 2007. [2] In July 2011 Mr and Mrs Cook made an application to the Tribunal, to resolve a complex dispute pursuant to the Body Corporate and Community Management Act 1997.1 [3] Mr and Mrs Cook broadly claim that the Respondents have, since around early 2008, engaged in a variety of actions and behaviour including; fraud of power, breach of contract, persecution, discrimination, victimisation, defamation, abuse of power, harassment and a failure to comply with 1 Notwithstanding the Application form, the Tribunal’s jurisdiction to deal with a matter concerning a Development Control By-Laws in this particular property, is derived from the Integrated Resort Development Act 1987. Specifically, Section 179B(1) states QCAT may deal with a matter relating to— (a) the application of a development control by-law for an approved scheme to a person mentioned in subsection (2)(b) or (c); or (b) a contravention or alleged contravention of a development control by-law for an approved scheme. (2) Each of the following persons may apply to the QCAT, as provided under the QCAT Act, to deal with a matter under subsection (1) if the person has standing to make the application— (a) the principal body corporate for the approved scheme; (b) a subsidiary body corporate of the principal body corporate; (c) a proprietor or occupier of, or a person having an estate or interest in, a lot in a residential precinct in the approved scheme. (3) For subsection (2), a person has standing to make the application if the person is directly and materially affected by the matter to which the application relates. (4) This section is subject to section 179C. -- 2 of 8 -- 3 legislation. Moreover, Mr and Mrs Cook claim the Respondents have conspired over the past years to get them to move out of the property. [4] Specifically, Mr and Mrs Cook claim Mrs Cook is the only owner who has not been able to undertake alterations/modifications to her property without approval/application. [5] In particular Mr and Mrs Cook claim that they have been requested to replace their en-suite bi-fold windows and either move or screen their air- conditioner, whereas other Lot owners, have not been required to make changes to alterations/modifications that have been undertaken without application or approval. [6] Since receipt of the original application, and other proceedings outside the Tribunal proceedings, Mr and Mrs Cook and the Respondents have been involved in a number of compulsory conferences to attempt to resolve this matter. Application to transfer matters to the Queensland Anti-Discrimination Commission/Tribunal [7] On 23 April 2013 Mr and Mrs Cook, made an application seeking that the Tribunal transfer ‘other matters’ referred to in the original application to the Queensland Anti-Discrimination Commission/Tribunal. In particular Mr and Mrs Cook request transfer of the matters QCAT does not have jurisdiction to hear and are believed to be of a discriminatory nature and are referenced as so in the original application. [8] The application is made pursuant to section 52 of the Queensland Civil and Administrative Act 2009. [9] Mr and Mrs Cook submit that on lodging the original application in July 2011 they did not know whether the Tribunal would be able to adjudicate on all matters. [10] In this application for transfer Mr and Mrs Cook claim that since 2008 various actions of the Respondents and their members constitute discrimination based on the ‘political activity’ of Mr Cook and Mrs Cook by ‘association/married’ to Mr Cook. Further Mrs Cook claims that the actions of an executive committee member (described as ‘gave me the finger’) constitutes sexual harassment. [11] In response to the application for transfer the South Shields Body Corporate submits this application is a re-hash of everything that has been brought up previously and answered by everyone including the insurance company. [12] Principal Body Corporate of Royal Pines Resort submits that this application, along with the original application, should be dismissed and submits that; the Applicants show no need nor basis for transfer and that it -- 3 of 8 -- 4 is a matter for the Applicants to institute proceedings within the jurisdiction of any Court or Tribunal in which they allege an entitlement to relief. Decision [13] The QCAT Act provides, in summary, that the Tribunal may, by order, transfer a proceeding or part of a proceeding to another tribunal, court or other entity if it either considers it may be more appropriately dealt with by the relevant entity or if the Tribunal considers it does not have jurisdiction to hear all the matters in a proceeding. If the Tribunal transfers a matter then the proceeding to the relevant entity is taken to have started at the time the proceeding started with the Tribunal.2 In this matter the starting date would be 13 July 2011. [14] The Anti-Discrimination Act 1991, amongst other things outlines the definition of discrimination3 and the ‘attributes’4 and areas in which discrimination is proscribed as unlawful and also outlines the complaint process to assess, investigate and where possible resolve complaints alleging unlawful discrimination.5 Subject to Commissioner discretion a person is only entitled to make a complaint within 1 year of the alleged contravention.6 [15] If a complaint cannot be resolved by conciliation a complainant may require that the complaint be referred7 to the Tribunal to hear and decide the complaint. 8 Prior to the establishment of this Tribunal in 2009, the relevant Tribunal was the now former Anti-Discrimination Tribunal. [16] The Tribunal agrees that it does not have the jurisdiction to deal with ‘discrimination’ matters referred to in the original application. The Tribunal is satisfied it is clear from the Anti-Discrimination Act that a complaint alleging unlawful discrimination should be lodged with the Anti- Discrimination Commission within 12 months of the alleged act and be subject to the Commission’s processes before this Tribunal has the jurisdiction to hear and decide if a contravention has been made out. [17] Furthermore the Anti-Discrimination Commission is in essence the only entity that can deal with a complaint of discrimination in its initial phase. [18] A transfer of a proceeding, or part of a proceeding, by the Tribunal is discretionary. Whilst it is clear the Tribunal doesn’t have the jurisdiction to deal with the matter at the initial phase the question for the Tribunal is why should it exercise its discretion in the circumstances of this matter. 2 Queensland Civil and Administrative Tribunal Act 2009 section 52 (1)(2)(3)(4). 3 Anti-Discrimination Act 1991; sections 10 and11 4 Ibid ; section 7 5 Ibid; Chapter 7 Part 1. 6 Ibid; section 138. 7 Ibid; section 165 8 Ibid; section 174A (1) -- 4 of 8 -- 5 [19] Mr and Mrs Cook submit they did not know what matters the Tribunal could deal with when they lodged their original application in July 2011 but submit that they did raise the issues of discrimination and sexual harassment in the original application. [20] Whilst the Tribunal agrees Mr and Mrs Cook did claim the actions of the Respondents, including not approving their building work, was ‘discriminatory’ in their original application to the Tribunal they did not claim any particular ground/attribute for the alleged discriminatory behaviour, and the alleged sexual harassment of Mrs Cook, was described in attached correspondence as an executive member ‘gave me the finger’ when driving past in a buggy in January 2010. [21] It was not until this application for transfer in April 2013 Mr and Mrs Cook identified that the basis of the alleged discrimination was the attribute of ‘political activity’ by Mr Cook and the ‘association’ of Mrs Cook with Mr Cook. [22] Given Mr and Mrs Cook’s original application lacked specificity in relation to any alleged discrimination by the Respondents and that the alleged actions/decisions of the Respondents mostly concerned actions that had taken place more than 12 months before their original application was lodged with this Tribunal, the Tribunal is not persuaded that it should exercise its discretion and transfer the proceeding to the Anti- Discrimination Commission. [23] Whilst the Tribunal acknowledges the matter was subject to other proceedings prior to the Tribunal that may have delayed the original application, Mr and Mrs Cook appear not to have sought any legal advice as to the relevant body that could deal with the various aspects of the dispute. [24] The Tribunal agrees with the Respondents that Mr and Mrs Cook have not persuaded the Tribunal of the need for transfer and are in essence seeking to ‘rehash’ or re-agitate the same dispute through a different and new characterisation of the matter when the subject matter, of the dispute, albeit not the underlying conflict between the parties, has been resolved through the approval of the building work. [25] In all the circumstances the application for transfer of proceedings is dismissed. Application to dismiss original July 2011 application [26] On 4 March 2013 the Tribunal received an application from the First Respondent, Principal Body Corporate of Royal Pines Resort, seeking that the original application of July 2011 be dismissed. [27] The First Respondent, whilst noting the multiplicity of orders Mr and Mrs Cook sought in their original application, submits that the Tribunal only has the jurisdiction to deal with a matter relating to the application of a -- 5 of 8 -- 6 development control by-law or a contravention or alleged contravention of such a by-law. [28] The First Respondent submits that on 10 September 2012 the Second Respondent, South Shields Village Body Corporate, requested the First Respondent to give retrospective approval to building alterations identified in the schedule attached to the letter requesting approval. [29] The First Respondent submits that the alterations, subject of this dispute on Lot 31, are included in that schedule. [30] The First Respondent further submits that, following a resolution of its executive committee, the Second Respondent was advised by letter dated 23 January 2013 that the alterations it identified in the schedule that were previously non-compliant with the by-laws were now authorised. [31] The First Respondent submits that given this there is no dispute remaining within the jurisdiction of the Tribunal. [32] The First Respondent further seeks that the Tribunal restrain Lot 31 owner from any further application arising out of the same subject matter set out in the application. [33] In response Mr and Mrs Cook submit, in summary, that the First Respondent’s application should be dismissed as it provided no evidence it was given the necessary approval by the Body Corporate Committee to make such an application. Mr and Mrs Cook question the bona fides of the First Respondent and submit it is seeking to create a false impression that they did not follow due process to start off with in relation to the alterations, which they deny. [34] Mr and Mrs Cook further submit that the First Respondent in seeking to approve the minor building alteration in Lot 31, and thus reversing the earlier decision, justifies their own actions seeking decisions from the Tribunal that the First Respondent’s original decision rejecting their application for alterations/modifications was incorrect. [35] Mr and Mrs Cook further submit that there are inconsistencies in the decisions of the Respondents, to approve the alterations, because of the processes and conditions that are necessary following the decision. [36] Finally, Mr and Mrs Cook submit, subject to the Respondents proposals for approval being valid and appropriately documented, they view the outcome as favourable but seek the Tribunal dismiss the application and order that detailed proposals on how the Respondents intend to approve the minor alterations to Lot 31 be provided. Decision [37] In the original application Mr and Mrs Cook made broad claims against the Respondents. It is apparent there has been a long-standing enmity between Mr and Mrs Cook and various members of the Respondents -- 6 of 8 -- 7 executive groupings or committees. The conflict between the parties generally relates to management decisions or actions of the Respondents. [38] The Royal Pines Resort is a large and complex development. The Principal Body Corporate is administered pursuant to the Integrated Resorts Development Act. There are 18 Villages within the Resort and each has a Village Body Corporate they operate pursuant to the Building Unit and Group Title Act. The residents and relevant Bodies Corporate therefore have a number of avenues to seek resolution of disputes. [39] Mr and Mrs Cook reside in Lot 31 of the South Shields Village. [40] Building work within the Villages is administered by the Principal Body Corporate of Royal Pines Resort in accordance with the Development Control By-Laws of the Royal Pines Resort. The Development Control By- Laws regulate the quality of design and development within the precinct. [41] No person is to alter or change a Lot unless the Principal Body Corporate determines they are permitted. In deciding whether to approve building works the Principal Body Corporate obtains views from the relevant Village Body Corporate, Design Review Committee and an architect. The Principal Body Corporate approves or objects to the application for building works. [42] This matter essentially relates to a dispute about a building application Mr and Mrs Cook made to the Principal Body Corporate in July 2007 and an application for minor amendments in June 2008. Along with concerns about the initial decision-making and dispute-resolution processes the subject of the dispute specifically relates to the style of ensuite windows and the placement or screening of an air-conditioner in Lot 31. [43] The Integrated Resort Development Act provides that the Tribunal may deal with a matter (my emphasis) relating to a contravention or alleged contravention of a development control by-law for an approved scheme. [44] The Tribunal is satisfied that the issue over which it has jurisdiction only relates to the application or alleged contravention of the Development Control By-Law in relation to the style/size of the ensuite windows and placement or, screening of the air-conditioner in Lot 31. [45] The First Respondent in its application submits that no dispute now exists because approval has now been given for the previously unapproved building work in Lot 31 and therefore the Tribunal should dismiss the original application. [46] Mr and Mrs Cook acknowledge this approval, albeit subject to validity and documentary conditions, is a favourable outcome. [47] The Tribunal also notes that use of the words may deal with a matter in the Act suggests the Tribunal has a discretion whether to deal with or not -- 7 of 8 -- 8 deal with a matter concerning an application or alleged contravention of a Development Control By-Law. [48] Given the building work has now been given retrospective approval the Tribunal is persuaded in these circumstances, notwithstanding the history of tension between the parties and that some process specifics following the approval need to be completed, that the original application by Mr and Mrs Cook in July 2011should be dismissed as the essential dispute over which the Tribunal has jurisdiction has been resolved through the retrospective approval of the building work on Lot 31. [49] Accordingly the Tribunal orders that the Application by Marion Jeanette Cook and Terrence Vincent Cook dated 11 July 2011 is dismissed. [50] The hearing listed for 20 September 2013 is delisted. [51] Any outstanding application or direction is overtaken by this decision. -- 8 of 8 --