Clarke v Forster [2012] QCATA 252

CITATION: Clarke and Anor v Forster and Ors [2012] QCATA 252 PARTIES: Robert Clarke Debra Clarke (Applicants/Appellants) v Robin James Forster Helen Maree Forster Body Corporate for Second Avenue CTS 5755 (Respondents) APPLICATION NUMBER: APL404-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: K A Cullinane AM QC, Member DELIVERED ON: 3 December 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Appeal refused. CATCHWORDS: REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – where contribution schedule lot entitlement adjusted by order of court or tribunal – where application to revert to pre-adjustment order contribution schedule lot entitlement – whether body corporate consented to adjustment order Body Corporate and Community Management Act 1997, ss 289, 378, 379 Queensland Civil and Administrative Tribunal Act 2009, s 32, Schedule 3 Hallden Pty Ltd and Ors v Body Corporate LA Promenade CTS 9770 [2012] QCAT 109 Osland v Department of Justice (2010) 241 CLR 320 Pearce v Body Corporate for Riparian Plaza -- 1 of 5 -- 2 Apartments CTS 34665 [2012] QCAT 72 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‟). REASONS FOR DECISION [1] This is an appeal pursuant to s 289 of the Body Corporate and Community Management Act 1997 („BCCM Act‟) to the QCAT Appeal Tribunal constituted under the QCAT Act1. [2] The BCCM Act is an enabling Act for the purposes of the QCAT Act. [3] The right of appeal is limited to a question of law. The principles in Osland v Department of Justice (2010) 241 CLR 320 are applicable. [4] The legislative background to the appeal is to be found in the transitional provisions of Chapter 8 Part 9 Division 4 of the BCCM Act, which came into force on the fourteenth of April 2011. In brief summary these provisions apply to existing schemes and confer on an owner whose contribution schedule lot entitlement („CSLE‟) has been adjusted by an order of a court or tribunal a right to revert to the scheme‟s pre-adjustment order CSLE and provides for the procedure to be adopted to achieve this. [5] This appeal concerns the proper construction of the statutory definition of an adjustment order. Section 378 of the BCCM Act defines „adjustment order‟ in the following way: In this division adjustment order- (a) Means an order of a court, tribunal or specialist adjudicator, made before the commencement, for an adjustment of the contribution schedule for an existing scheme; but (b) Does not include an order of a court or tribunal giving effect to a decision that is not made by the court or tribunal or another court or tribunal (including a decision that is not, but is taken to have been made by a court or tribunal). Examples for paragraph (b)-  an order of a court or tribunal giving effect in the terms of the settlement of a dispute between an owner of a lot included in an existing scheme and the body corporate, if the terms provide for the adjustment of the contribution schedule for the scheme.  a written agreement that- (a) is between an owner of a lot included in an existing scheme and the body corporate; and (b) provides for the adjustment of the contribution schedule for the scheme; and 1 Queensland Civil and Administrative Tribunal Act 2009, Schedule 3. -- 2 of 5 -- 3 (c) is filed in the registry of a court or tribunal and is enforceable as an order of the court or tribunal. [6] Section 379 of the BCCM Act provides for the right of an owner to propose a motion to the committee or the body corporate to adjust the contribution schedule to reflect the pre-adjustment order entitlements for the scheme. [7] I have taken the recitation of the facts contained in paragraph 11 of the respondent‟s outline of 24 January 2012. However it is not necessary to set these out here, as the relevant facts are contained in the adjudicator‟s judgment set out below. [8] The order made by the Commercial and Consumer Tribunal („CCT‟) on the seventeenth of September 2009 was in the following terms: …upon consideration of an application filed on 24.8.09 correspondence received on behalf of the respondent dated 11.9.09 and a defence filed on 14.9.09, but noting sections 48(6) and 49(4) of the Body Corporate and Community Management Act 1997 and the report of Leary and partners Pty Ltd dated 11.8.09 and filed on 24.8.09 The Commercial and Consumer Tribunal makes the following orders. [9] The altered contribution lot entitlements schedule was then set out. [10] In this matter the Adjudicator‟s judgment was relatively brief. It is desirable that I set out the relevant parts of the decision: Analysis: Was the adjustment order a consent order? When is an order not an order? [11] Section 378 of the BCCM Act distinguishes between an adjustment order that can now be reversed, in contrast with a consent order that cannot be reversed. The definition of adjustment order does not include an order of a court or tribunal giving effect to a decision that is not made by the court or tribunal. The legislation includes a relevant example. This example is that an order will not be an adjustment order if it is: An order of a court or tribunal giving effect to the terms of the settlement of a dispute between an owner of a lot included in an existing scheme and the body corporate, if the terms provide for the adjustment of the contribution schedule for the scheme. [12] In short, s 378 of the BCCM Act says there is no adjustment order to be reversed if the body corporate agreed to an adjustment and the court order just formalised this agreement. Issues [13] There are two questions to be determined: i) as a matter of fact, did the body corporate consent to the adjustment order? ii) as a matter of law, was there an adjustment order that can be reversed? (i) Did the body corporate agree to the adjustment? [14] There is not much dispute about the circumstances of the previous adjustment. -- 3 of 5 -- 4 [15] I accept the committee, when faced with the original application to adjust the lot entitlements, passed a resolution stating: Whilst the Body Corporate Committee consider that they may not have the authority to consent they are not prepared to actively defend this application and further agree that they have no objection to an order being made by the Commercial and Consumer Tribunal and that any such order be made on the papers. I have also viewed a copy of a letter dated 11.9.09 from the body corporate manager to the Commercial and Consumer Tribunal. The letter says the committee had voted not to defend the application. I am satisfied from this information that the body corporate did not agree to an adjustment of the lot entitlements. This information confirms the committee simply chose not to defend the application. The committee did not reach a settlement with the applicant or consent to any specific order. Indeed, the committee could not have agreed to the adjustment because such a decision was a restricted issue for the committee. (ii) Was there an adjustment order? [16] The body corporate did fail to defend the application and the CCT did grant an adjustment. However, the body corporate did not decide the lot entitlements should be adjusted or agree to adjust the contributions. [17] This order was therefore not merely „giving effect to a decision that is not made by the court‟ or „giving effect to the terms of the settlement of a dispute between an owner …. and the body corporate.‟ [18] An adjustment order is defined to mean an order, made before the commencement of the new provisions, providing for an adjustment of the contribution schedule. The CCT order falls within this definition. [19] The body corporate submissions effectively concede that there are no impediments to the committee taking the required action to reverse the CCT order if it falls within the definition of an adjustment order. I am satisfied the CCT order was an adjustment order. The applicants are therefore entitled to seek to reverse this adjustment order. [20] The decision was handed down on 15th September 2011. [21] On 8 February 2012 the Appeal Tribunal (constituted by three members) delivered its decision in Pearce v Body Corporate for Riparian Plaza Apartments CTS 34665 [2012] QCAT 72 („Pearce‟). [22] The Appeal Tribunal had to consider the effect of s 378 of the BCCM Act. Member Barlow SC (with whom the other members agreed) stated at [41] to [46] the following: 41. The crucial question is whether an order of a tribunal or court adjusting a contribution schedule, which is made without dissent by the respondent to the application, but in circumstances where that respondent does not specifically consent to the order and there is no agreement between the parties resolving the application by consenting to agreed orders, is an order that gives effect to a decision that is not made by that court or tribunal. 42. It is correct to say that one form of consent to an order is to offer no resistance to the orders sought by the applicant. That is recognised by the authorities to which Mr Williams refers in his submissions. -- 4 of 5 -- 5 43. An order can be described as a consent order if it is a true consent order made by the court in accordance with an agreement reached between the parties or if it is one made without opposition, in the sense that one party (or indeed all parties) submits to the order. But there is a substantial difference between the legal effects and consequences of these two types of consent order. A court will not generally set aside a consent order that is based on an agreement unless there are grounds to set aside the agreement. In contrast, a court may set aside a consent order that has been “submitted to” in the same circumstances as it would set aside any order made without the parties consent. 44. There is therefore a difference, in substance and in legal effect, between: (a) an agreement as to the order to be made; (b) one party saying that it will consent to the orders sought by the other, without any agreement between them to do so; and (c) one party not opposing, but not consenting to, the order sought and therefore putting the other side to the task of persuading the court or tribunal that the orders sought should be made. 45. In my opinion, example (a) above would clearly fall within the exception set out in paragraph (b) of the definition of “adjustment order” in s 378. Example (b) may do, although it is unnecessary to decide that in this case. But, in my opinion, example (c) does not fall within the exception, as the court or tribunal still has to deal with the submission that it should make the orders sought and be persuaded that it should do so. The court or tribunal‟s decision is its own and is not simply giving effect to somebody else‟s decision. 46. I do not consider that an order made without dissent by one party, but also without the consent of all parties, is an order that is giving effect to the decision of one party not to dissent to the orders sought by the other. [23] This approach was also adopted in Hallden Pty Ltd and Ors v Body Corporate LA Promenade CTS 9770 [2012] QCAT 109 („Hallden‟). [24] I, with respect, adopt the approach of the Tribunal in Pearce. It seems to me that there is a great deal of similarity between Pearce (and also Hallden) and this. There is no distinction in principle between them. The appellant has contended otherwise but I reject this submission. This matter falls within the third category in [44] of the judgment of Barlow SC in Pearce. [25] There are a number of grounds of appeal, but each of these comes back to an allegation that in one way or another or for one reason or other the Adjudicator has wrongly construed s 378 of the BCCM Act. [26] In my view it has not been demonstrated that the Adjudicator erred. I am satisfied that the approach of the Adjudicator is correct and consistent with the judgments in Pearce and Hallden. Orders [1] The appeal is dismissed. -- 5 of 5 --