Body Corporate for Nut Tree Hill v Lilley [2012] QCATA 230

CITATION: Body Corporate for Nut Tree Hill v Lilley [2012] QCATA 230 PARTIES: Body Corporate for Nut Tree Hill CTS 27771 (Appellant) v Allison Lilley (Respondent) APPLICATION NUMBER: APL040-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 21 November 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE APPEALS TRIBUNAL – JURISDICTION – where the Applicant Body Corporate brought proceedings against the Respondent for recovery costs for overdue body corporate contributions – where the Respondent alleged that the recovery costs were not reasonably incurred by the Applicant – where the Tribunal found that the costs were not reasonably incurred – where the Tribunal ordered that the Respondent is not liable to pay any other debt recovery costs relating to the application – whether the actions taken in debt recovery were reasonable – whether the Tribunal had jurisdiction to order that the respondent was not liable for any costs relating to application – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, ss 3, 32, 142(3)(a)(i), 142(3)(b) -- 1 of 5 -- 2 Drew v Bundaberg Regional Council [2011] QCA 359 Maloney v NSW National Coursing Association Ltd [1978] 1 NSWLR 161 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 NSW Bar Association v Muirhead (1988) 14 NSWLR 173 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Robinson v Corr [2011] QCATA 302 QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257 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] The Respondent, Allison Lilley (Lilley) is the owner of Unit 74 in „Nut Tree Hill‟ (the „Body Corporate‟), Wynnum West, Brisbane. She has resided in Sydney for several years. She did not inform the Body Corporate of her Sydney address in 2010, but by postal redirection arrangements she continued to receive most of her mail, other than some levy notices from the Body Corporate. [2] The proceedings commenced as a claim by the Body Corporate for $4,622.79 „for overdue levies and other monies‟, including $2,277.72 for „costs in seeking to recover the overdue contributions.‟1 At the commencement of the hearing the amount in dispute was reduced to $2,277.72 for „legal costs.‟2 These proceedings were limited to that head of claim. [3] The „legal costs‟ were claimed in relation to the services of a debt collector (Strata and Corporate Collections Pty Ltd) and a firm of solicitors, Redchip Lawyers, Brisbane. [4] In her Response3, so far as is now material, Lilley asked the Tribunal to dismiss the claim „in relation to all recovery and collection costs.‟ Was the recovery action reasonably taken? [5] The Adjudicator interpreted the defence as a denial that the costs claimed were necessarily and reasonably incurred, „[She] has not specifically 1 Application for Minor Civil Dispute filed at Southport, paragraphs 6 and 9(1). 2 Transcript of hearing 24 November 2011, page 4 (Payne for the Body Corporate). 3 Filed 17 March 2011, Part D item 2. -- 2 of 5 -- 3 alleged that the particular fees are unfairly excessive.‟4 Nevertheless, the Adjudicator proceeded to examine the claim in detail, although, in the light of her eventual rationale that was not strictly necessary. The Body Corporate submits that there was no evidence upon which the quantum of the claim could be questioned5, but that contention overlooks the point that members of a tribunal may use their own special knowledge and experience – in this case legal knowledge and experience – in the decision-making process.6 It is hardly a controversial inference that fees of $133.61 for writing a pro-forma letter of demand, or $408.13 for a „superfluous‟ application for substituted service are not reasonable. However, as we shall see, the decision turned not on the quantum of costs, but on the reasonableness of incurring them at all. [6] Ms Lilley testified that, despite her arrangements for re-direction of mail, she did not receive statements from the Body Corporate in 2009, and that she consequently missed payments for the period 1 October 2009 to 31 January 2010.7 It was her uncontradicted evidence that for six years or more she had always paid her Body Corporate fees on time and within two weeks of a telephone call from the Body Corporate‟s solicitors she paid – indeed overpaid – the levies outstanding.8 Lilley also said, without contradiction and with the support of diary notes, that she made no fewer than 42 attempts to contact the Body Corporate to resolve their differences, but the Body Corporate remained silent and impassive behind its facade of debt collectors and lawyers.9 In her view „the costs incurred by the [Body Corporate] are due to the complexity of the way they do business.‟10 [7] Lilley testified, and the Adjudicator accepted11, that at all material times the Body Corporate had a record of her mobile phone number but made no attempt to contact her until its solicitors used that number to do so on 10 June 2010, several months after these proceedings commenced. Ms Lilley submitted that „a phone call to her would have eliminated all of the issues and problems‟.12 [8] The Adjudicator agreed: While the legislation specifically provides that a body corporate can recover ... any reasonably incurred recovery costs it is not to be construed that the [Body Corporate] can simply refer all outstanding unpaid levies to a debt recovery agency , debt collector, a lawyer or any other party without consideration to the fact that the debt recovery costs that may be incurred are reasonable in the circumstances ... [The Body Corporate] ... should ensure they have made at least some attempt to 4 Body Corporate for Nut Tree Hill v Lilley [2012] QCAT 023 [48]. 5 Application for Leave to Appeal filed 10 February 2012 (“Appeal”) paragraph 31. 6 Maloney v NSW National Coursing Association Ltd [1978] 1 NSWLR 161; NSW Bar Association v Muirhead (1988) 14 NSWLR 173 at 211. 7 Body Corporate for Nut Tree Hill v Lilley [2012] QCAT 023 [21]. 8 Body Corporate for Nut Tree Hill v Lilley [2012] QCAT 023 [21], [28]-[29]. 9 Body Corporate for Nut Tree Hill v Lilley [2012] QCAT 023 [33]. 10 Response, part D paragraph 2. 11 Body Corporate for Nut Tree Hill v Lilley [2012] QCAT 023 [59], [65]. 12 Body Corporate for Nut Tree Hill v Lilley [2012] QCAT 023 [32]. -- 3 of 5 -- 4 contact the lot owner prior to referring the matter through a formal debt recovery process. In this case I find that the [Body Corporate] did not.13 [9] The debt collector‟s resort to lawyers was a second superfluity: I do not accept that a debt recovery agency should be required to instruct solicitors to undertake particular works that they could have undertaken themselves ... should they choose to do so ... those costs are not reasonably incurred and should not be paid by the lot owner. ... [There was] a double handling of a simple debt recovery matter.14 [10] The Adjudicator concluded: I have considered all these matters and I find that the simple act of the [Body Corporate] telephoning Ms Lilley on her mobile phone could have alleviated the need for any arrears of levy payments and any debt recovery costs whatsoever.15 Order within jurisdiction? [11] However, there is another question raised by the appeal that requires consideration. The Adjudicator‟s first order begins: „[T]he Respondent is not liable to pay for the debt recovery costs in the sum of $2,277.72.‟ To that point the order is clearly consistent with the findings set out above. [12] The order then proceeds: „[T]he Respondent is not liable to pay... any other debt recovery costs relating to this application.‟ The Body Corporate submits16 that there was no jurisdiction to make that order. But this submission overlooks a fact noted in the Body Corporate‟s own submissions, namely that the Body Corporate „applied to the Tribunal to deal with ... debt recovery costs of $2,277.72, filing fee $90.00, service fee of $55.00 and the CITEC fee of $12.05.‟17 When due attention is paid to the modifying phrase ‘relating to this application‟, it is tolerably clear that the Adjudicator was merely absolving Lilley from paying the amounts of $90, $55 and $12.05 which, as the Body Corporate itself recognises, remained „alive‟ for adjudication. They are typical “out of pockets”, incidental to, and integral with a claim for costs. [13] However, the decision includes some dicta about the original claim for interest. Those dicta are not reflected in the orders made.18 There is no order for payment of any amount by Ms Lilley to the Body Corporate. With respect, interest was not in issue at the hearing, and no such claim appears in the Body Corporate‟s submissions on appeal, or in the transcript, where the Body Corporate‟s representative announced a reduction of the amount in dispute.19 Leave to appeal? 13 Body Corporate for Nut Tree Hill v Lilley [2012] QCAT 023 [44]-[45]. 14 Body Corporate for Nut Tree Hill v Lilley [2012] QCAT 023 [55]. 15 Body Corporate for Nut Tree Hill v Lilley [2012] QCAT 023 [59], [65]. 16 Body Corporate‟s submissions 27 March 2012, paragraph 26 ff. 17 Ibid, paragraph 37, emphasis added. See also Reasons paragraph 12 18 Body Corporate for Nut Tree Hill v Lilley [2012] QCAT 023 [62] and [65]. 19 Transcript of Proceedings, page 4, lines 3-5. -- 4 of 5 -- 5 [14] This not an appeal as of right; therefore leave is necessary.20 Leave is not to be given simply because a party desires to re-argue a case rejected at first instance. It is not nearly enough to express disappointment at the original decision, or a subjective feeling that justice has not been done.21 One must examine the proceedings at first instance to see whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.22 It is not appellable error to prefer one version of the facts to another, or to attribute more weight to the submissions of witness “A” than to those of witness “B”. Findings of fact will not be disturbed if they have rational support in the evidence.23 Where reasonable minds may differ, a decision cannot properly be called erroneous simply because one conclusion has been preferred to another possible view.24 [15] This is precisely the kind of dispute that the legislature wishes to see resolved speedily, informally, economically, and finally.25 It is simply a decision on the facts as found. It does not raise any point that calls for a judgment on appeal.26 There is no question of law. The decision turned, in the end, upon a finding that the Body Corporate did not incur the disputed costs reasonably because it did not use a simple and readily available means of contacting the Respondent. Lilley‟s record of payments, on this occasion and in the past, did not warrant an assumption that she would ignore a reminder of the arrears in question. The Adjudicator‟s findings of fact, and the decision based upon them, were findings that she was entitled to make. It is not for this Appeal Tribunal to disturb findings of fact that were clearly open to the Adjudicator. [16] I am unable to find any appellable error in the primary decision. Leave must be refused. There will be no order for costs. 20 Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i), 142(3)(b). 21 Robinson v Corr [2011] QCATA 302 at [7]. 22 QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2011] QCA 359 at [18]-[19]. 23 Fox v Percy (2003) 214 CLR 118. 24 Minister for Immigration and Citizenship v SZMDS & Another [2010] HCA 16 at [131]. 25 Queensland Civil and Administrative Tribunal Act 2009, s 3(b). 26 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578. -- 5 of 5 --