Ayliffe v Cross [2011] QCATA 263

CITATION: Ayliffe v Cross [2011] QCATA 263 PARTIES: Vicki Ayliffe (Appellant) v Neale Cross (Respondent) APPLICATION NUMBER: APL038-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President Kenneth Barlow SC, Member DELIVERED ON: 5 August 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The body corporate for “Pacific Place” Community Title Scheme 10530 must pay to Neale Cross, the owner of lot 1, the sum of $3,126. 2. The appeal is otherwise dismissed. CATCHWORDS: APPEAL – Body Corporate and Community Management – Appeal from order of adjudicator – Whether appeal on question of law – Whether lot owner ought reinstate common property that had been replaced Body Corporate and Community Management Act 1997, ss 276, 289, 294 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 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 5 -- - 2 - REASONS FOR DECISION JUDGE FLEUR KINGHAM – DEPUTY PRESIDENT [1] I have read the reasons of Mr Barlow SC in draft and agree with them and the orders he proposes. MR BARLOW SC – MEMBER Introduction [2] This is an appeal, pursuant to s 289 of the Body Corporate and Community Management Act 1997 (the Act), from an order of an adjudicator made under Part 9 of Chapter 6 of that Act. [3] The body corporate to which this appeal relates is the body corporate for a building units plan comprising two lots and common property. The appellant, Ms Ayliffe, (who was the applicant before the adjudicator) is the owner of lot 2 and the respondent, Mr Cross, is the owner of lot 1. The application before the adjudicator [4] In short, in her application Ms Ayliffe sought a direction that Mr Cross replace the staircase from the ground to the front of his unit, which he had recently had rebuilt, with a staircase of identical design to the original staircase. [5] To make sense of this, it should be said that the two units were originally mirror images of each other (at least externally). Each has a staircase from the ground to the upper floor at the front of the building. The staircases are part of the common property. As originally constructed, each staircase had concrete steps and a balustrade made of concrete, with decorative concrete balusters between the steps and the balustrade. The staircase which Mr Cross had built has wooden steps and a wooden handrail. [6] Before the adjudicator, Ms Ayliffe relied upon by-law 5 of the body corporate by-laws in support of her application. That by-law relevantly provides as follows: “Damage to common property A proprietor or occupier of a lot shall not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property except with the consent in writing of the body corporate…”. There is then an exception for locking or safety devices and screens to prevent the entry of animals or insects, none of which must detract from the amenity of the building. [7] The history of the matter is that the local council, having inspected the premises at the request of Ms Ayliffe, directed Mr Cross to “replace the unsafe concrete step treads situated at the front stairs”. The letter was incorrectly directed to Mr Cross, as it should have been directed to the body corporate. It is the body corporate who is responsible for maintaining the stairs, as they are part of the common property. -- 2 of 5 -- - 3 - Nevertheless, Mr Cross took steps to repair the stairs and was advised by builders that it would be better to replace them. In accordance with that advice, the original concrete staircase was replaced with the wooden staircase. [8] Ms Ayliffe objects to the wooden staircase, as it does not accord with the original design and, in her submission, detracts from the amenity of the building. [9] The adjudicator dismissed the application so far as it related to replacement of the staircase. On the basis of the evidence before her, she found that it was necessary to replace the staircase and she appears to have accepted Mr Cross’ submission that it was not possible, at least at a reasonable cost, to do so in the original style. [10] The adjudicator went on to say that she was of the view that the full cost of replacing the staircase should have been met by the body corporate as part of its legislative responsibility to maintain the common property in good condition. She proposed that, at an annual general meeting, which [he/she] ordered to be held, Mr Cross might consider submitting a motion that Ms Ayliffe reimburse him half of his costs of replacing the staircase. Of course, such a motion was bound to be defeated, as Ms Ayliffe is unlikely ever to have voted in favour of it. The appeal [11] Ms Ayliffe sets out two grounds for her appeal. [12] First, she complains that the adjudicator made no reference to by-law 5 in making the decision to dismiss her application. She maintains that, had that been taken into account, the proper findings would have been that, as the Council only required the replacement of damaged stair treads, it was unnecessary to replace the whole staircase and it should now be rebuilt in accordance with the style of the original. [13] Her second ground is that there are several facts stated in the adjudicator’s order that are wrong. [14] Subsection 289(2) of the Act provides that an aggrieved person may appeal to the appeal tribunal, but only on a question of law. In my view, the second of Ms Ayliffe’s grounds of appeal does not raise a question of law. She is simply asserting that the adjudicator made several errors of fact. [15] A wrong finding of fact is not sufficient to demonstrate an error of law. Particularly where a decision involves matters of fact and degree, provided that the decision maker applies correct principles of law1 and the final conclusion is not unreasonable,2 no appeal is available under s 289.3 [16] In my view, although Ms Ayliffe considers that the adjudicator erred in some of the findings of fact, the purported errors do not demonstrate an 1 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 286. 2 Vetter v Lake Macquarie City Council (2001) 202 CLR 439, 450. 3 Body Corporate and Community Management Act 1997. -- 3 of 5 -- - 4 - error of law. The findings were not unreasonable, based on the evidence before the adjudicator. Therefore, the second ground of appeal discloses no question of law and is not competent. [17] However, the first ground does assert an error of law. While it is not an error of law for a decision maker not to deal specifically with every submission made to him or her, by-law 5 was the very nub of Ms Ayliffe’s submission before the adjudicator. It may well be an error of law, therefore, for the adjudicator not to have considered it in reaching her conclusions. [18] However, even if by-law 5 is taken into consideration, in my view the adjudicator’s decision was correct. That by-law concerns defacement of common property, not its complete destruction and replacement. To my mind, it has no application to the circumstances of this case. [19] Rather, this case concerns the body corporate’s obligation to maintain common property. [20] The adjudicator found that it was necessary to replace the staircase. That obligation was an obligation of the body corporate, not Mr Cross. The body corporate ought to have carried out that work and, in the process, to have determined whether it was reasonable and necessary to replace the entire staircase and, if so, to do so in the original style or in the style adopted by Mr Cross. [21] It seems unlikely, given the history of dispute between the parties, that they (and therefore the body corporate) could have agreed on the necessary repairs or replacement. Ultimately it may well have been a matter for an adjudicator to decide and the practical effect of the decision below is that such a decision has been made. The adjudicator has found that it was not reasonable to repair or replace it in the original style and therefore that the staircase that has replaced the original is an appropriate one. [22] In my opinion, the adjudicator made no error of law in reaching those conclusions and reference to by-law 5 would not have affected the outcome. [23] I do consider, however, that it was inadequate for the adjudicator to leave to the annual general meeting the question of whether Mr Cross should be reimbursed for some or all of the costs of replacing the staircase. [24] In my opinion, as the obligation to repair or replace the staircase was that of the body corporate, it ought bear the cost of the replacement. It ought reimburse Mr Cross for those costs, either from the administrative fund or from the sinking fund (the latter would appear to be appropriate). In my opinion, an order that it do so is just and equitable in the circumstances to resolve the dispute: see s 276(1).4 As the tribunal 4 Body Corporate and Community Management Act 1997. -- 4 of 5 -- - 5 - has all the powers of an adjudicator (s 294(1)),5 I consider it appropriate to make such an order. Otherwise the appeal should be dismissed. 5 Body Corporate and Community Management Act 1997. -- 5 of 5 --