Body Corporate for Drift Palm Cove v Drift Palm Cove (Management) Pty Ltd [2013] QCAT 333

CITATION: Body Corporate for Drift Palm Cove v Drift Palm Cove (Management) Pty Ltd [2013] QCAT 333 PARTIES: Body Corporate for Drift Palm Cove CTS 36253 (Applicant) v Drift Palm Cove (Management) Pty Ltd (Respondent) APPLICATION NUMBER: REO005-13 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Sandra G Deane, Member DELIVERED ON: 8 July 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for miscellaneous matters for leave to file affidavits is allowed. 2. The application for extension of time is dismissed. 3. The application to re-open is dismissed. CATCHWORDS: APPLICATION TO RE-OPEN – APPLICATION FOR EXTENSION OF TIME - application brought well out of time – whether extension warranted in the circumstances – no real explanation of delay – reliance on the decision Queensland Civil and Administrative Tribunal Act 2009 ss 28, 61, 137, 138, 139, 142 Queensland Civil and Administrative Tribunal Rules 2009 Rule 92, Schedule Dictionary Body Corporate and Community Management Act 1997 ss 130, 132 Hunter Valley Developments Pty Ltd v The Honourable Barry Cowan, Minister for Home Affairs Environment [1984] 3 FCR 344 Gallagher v QBSA [2010] QCAT 383 CMC v Chapman & Or [2011] QCAT 229 -- 1 of 6 -- 2 CS v Department of Communities, Child Safety and Disability Services [2012] QCAT 385 APPEARANCES and REPRESENTATION (if any): This matter was 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] On 30 November 2011 the Tribunal made a decision in relation to a review of terms of a service contract with Drift Palm Cove (Management) Pty Ltd (the Caretaker) under the Body Corporate and Community Management Act 1997 (‘BCCM Act’). The Body Corporate seeks to re- open that decision.1 [2] The time for making an application to re-open the decision has long ago expired.2 The Body Corporate has therefore made an application to extend the time limit.3 [3] The Tribunal cannot extend time if it would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages to a party to a proceeding.4 [4] The following principles apply to an application for an extension of time5: a) whether there has been a reasonable explanation for the delay in filing the application for re-opening; b) whether granting an extension is fair and reasonable in all the circumstances; c) whether there has been any prejudice suffered as a result of the delay; d) that the substantive application has some merit. [5] The Caretaker opposes the applications. 1 Drift Palm Cove (Management) Pty Ltd v Body Corporate for Drift Palm Cove [2011] QCAT 605 (the Decision); Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 138. 2 QCAT Act s 139(2). 3 QCAT Act s 61(1). 4 QCAT Act s 61(3). 5 Hunter Valley Developments Pty Ltd v The Honourable Barry Cowan, Minister for Home Affairs Environment [1984] 3 FCR 344; Gallagher v QBSA [2010] QCAT 383 -- 2 of 6 -- 3 Miscellaneous Matters application [6] The Body Corporate applied for leave to file additional affidavits. The substantive affidavit is an affidavit of Mr Huelin sworn 23 May 2013. It seeks to provide additional information in relation to some matters raised in the Caretaker’s material relating to the proposed sale of the Caretaker’s interests in the complex. [7] The Caretaker objects on the grounds that the application before the Tribunal is the application for an extension of time; the affidavit is not relevant to that application and amounts to a reply submission which the Body Corporate “is not entitled to file”. [8] The Tribunal’s directions made on 26 April 2013: a) did not contemplate submissions in reply; b) contemplate that the Tribunal would determine the application to extend time and “if necessary, the application for reopening”. [9] If the application to extend time fails so must the application for re- opening. However if the application to extend time succeeds I propose to immediately consider the application to reopen based on the submissions filed. [10] In the circumstances I grant leave to file the affidavits. [11] The Tribunal must act with little formality and technicality6 and must ensure so far as is practicable that all relevant material is disclosed.7 [12] A factor in considering whether to grant an extension of time is the merits of the substantive application and prejudice. The affidavits provide additional information which may be relevant to my determination of the merits and prejudice. Extension of Time [13] I am not satisfied that the requirements of section 61(3) of the QCAT Act to permit an extension of time have been met by the Body Corporate. [14] I find that it is not in the interests of justice to grant the application for extension of time given the significant delay in bringing the application, the need for certainty and in particular the reliance on the Decision by the Caretaker since the re-opening and appeal periods expired. Delay [15] The Tribunal has previously noted that a short delay is usually easier to excuse than a lengthy one.8 6 QCAT Act s 28(3)(d). 7 QCAT Act s 28(3)(e). -- 3 of 6 -- 4 [16] The time prescribed for applying for a re-opening is 28 days after the party is given notice of the decision.9 The delay in this case is well in excess of a year, it is approximately 15 months after the prescribed time expired. [17] The Body Corporate simply claims that the delay is ‘not inordinate and is attributable to the gathering of the further evidence’. [18] There is no real explanation as to why similar evidence was not reasonably available when the proceeding was first heard and decided and if it was why this evidence should be entertained. [19] I find that there is no real explanation of the quite lengthy delay. Fair and reasonable [20] The Body Corporate contends that unless the re-opening is allowed the Tribunal will have ‘constructively failed to exercise the jurisdiction conferred’10. It contends that the Tribunal failed to determine and make orders ‘bearing upon the nature and extent’ of the Caretaker’s duties despite that being an issue in dispute and that this is a jurisdictional error. [21] The Body Corporate contends that it will suffer hardship as a consequence of the Tribunal’s failure to improve the description of the services and duties to be provided in exchange for the increased remuneration; given the length of the term of the contract; the difficulty in enforcement of the uncertain obligations; and in light of the ‘new evidence’ that it contends demonstrates that the Caretaker is not performing the duties to the extent contemplated by the Tribunal in the Decision. [22] The Caretaker denies that the nature and extent of the Caretaker’s duties was an issue in dispute and requiring determination. It asserts that a list of duties was agreed by the parties. [23] I accept the Caretaker’s submission that if it was an issue in dispute that the Body Corporate’s submission goes to a right to appeal the Decision for an error of law11. Such a course could have been taken immediately upon reviewing the Decision. The Body Corporate chose not to appeal. There is no explanation given as to why the Body Corporate did not appeal within the prescribed time and have this issue determined. [24] I accept the Caretaker’s submission that it is well accepted that as a matter of public policy there ought to be finality to litigation. Re-opening and appeal periods are specified to give certainty to parties and therefore an extension of time should not be granted lightly where parties have relied upon the decision. 8 CMC v Chapman & Or [2011] QCAT 229. 9 Queensland Civil and Administrative Tribunal Rules 2009 Rule 92, Schedule Dictionary. 10 Body Corporate and Community Management Act 1997 s 133(2)(b). 11 QCAT Act s 142. -- 4 of 6 -- 5 Prejudice [25] The Caretaker contends it will suffer prejudice if the extension of time is granted and the matter is permitted to be re-opened in that on 1 March 2013 it commenced Court proceedings against the Body Corporate seeking to recover unpaid moneys, including amounts determined by the Decision. A re-opening would cause prejudice in relation to this litigation and that could not be adequately remedied by an order for costs or damages. [26] There is no express reason set out as to why the latter contention is so. I accept that if the proceedings are re-opened that this will impact upon the Court proceedings. [27] The Caretaker also contends that its ability to successfully negotiate a sale of its business is being impacted by the application to re-open. There is evidence in relation to the prospective purchaser and its attitude to these proceedings. I accept that it is possible that the sale may not proceed in the event that the proceedings are re-opened but that there may be other reasons why the sale might not proceed e.g. the Body Corporate’s consent has not yet been obtained. The Caretaker has not addressed whether its prejudice, should the sale not proceed, could be adequately remedied by an order for costs or damages. [28] There is evidence before the Tribunal which suggests that the Body Corporate’s financial position is not particularly healthy due to significant arrears of levies being owed to it by lot owners. There must therefore be some question over the Body Corporate’s ability or willingness to pay damages. The Body Corporate in its submissions does not canvas this issue. [29] The Caretaker has relied upon the Decision being final and prejudice to it is a significant factor which weighs against allowing the application to extend time. Merit [30] A relevant consideration is whether a re-opening ground exists.12 [31] The Tribunal has power to re-open a proceeding if a reopening ground exists.13 Relevantly ‘reopening ground’ is defined to mean “the party would suffer substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided”.14 [32] The ‘new evidence’ sought to be relied upon is evidence of the duties actually performed by the Caretaker. It goes to the tasks being performed 12 CS v Department of Communities, Child Safety and Disability Services [2012] QCAT 385. 13 QCAT Act s 138(1). 14 QCAT Act s 137. -- 5 of 6 -- 6 and number of hours taken by the Caretaker to perform those tasks and to the reasonable remuneration for that extent of work. This evidence has been collected during the period April 2012 to February 2013. There is no explanation as to why it was not possible to collect similar evidence of such matters before the final hearing on 20 November 2011 and if it was why this evidence ought to be entertained. [33] The Body Corporate also contends that the usage profile of the complex has altered since the Decision and that this is a reason to re-open the Decision because this results in the remuneration being higher than is now appropriate. [34] The review provided for by the BCCM Act which was undertaken by the Tribunal is a once only review15. The BCCM Act does not contemplate that if circumstances change after the review the contract may be further reviewed. [35] I am not satisfied that the Body Corporate has demonstrated that there are good prospects that there is a reopening ground. Interests of Justice [36] The Tribunal is required to assess whether overall “it is in the interests of justice to grant the extension. This usually calls for some analysis of the above factors considered in combination”16. [37] This involves a balancing of the interests of the parties. Most of these factors are not in favour of an extension. Re-opening [38] The re-opening application must be dismissed as time has not been extended. 15 Body Corporate and Community Management Act 1997 s 130(6). 16 CMC v Chapman [2011] QCAT 229. -- 6 of 6 --