Capri Gardens Villas v Purtill-King [2011] QCATA 156

CITATION: Capri Gardens Villas CTS 21998 v Purtill- King [2011] QCATA 156 PARTIES: Capri Gardens Villas CTS 21998 v Ms Rosemary Purtill-King APPLICATION NUMBER: APL266-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Peta Stilgoe, Member DELIVERED ON: 30 June 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 25 May 2010 is set aside. 4. Leave for legal representation refused. 5. The proceeding is referred to the tribunal for hearing by a different Adjudicator subject to the following directions: a) The appellant, Capri Gardens, shall file and serve all material on which it relies within 21 days of receipt of this decision. b) The respondent, Ms Purtill-King shall file and serve all material on which she relies within 21 days of receipt of material from the appellant. CATCHWORDS: MINOR CIVIL DISPUTE APPEAL – where no reasons for decision given – whether grounds for appeal PROCEDURE – where respondent appeared by power of attorney – whether appropriate -- 1 of 4 -- 2 Queensland Civil and Administrative Tribunal Act 2009, s 43(4) Attorney-General v Kehoe [2001] 2 Qd R 350 Tully v McIntyre [2001] 2 Qd R 338 Drew v Makita (Australia) P/L [2009] QCA 66 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION Mr Oliver [1] In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes. Ms Stilgoe [2] Ms Purtill-King owns a unit in Capri Gardens Villas CTS 21998. The body corporate brought an action for recovery of body corporate fees in the amount of $1,306.10. On 25 May 2010, the learned Adjudicator dismissed the body corporate‟s claim. [3] Capri Gardens has appealed the learned Adjudicator‟s decision on the grounds that: a) Mr Simpson had no right to appear as Ms Purtill-King‟s agent at the hearing. b) Ms Purtill-King cannot support her claim to offset expenses allegedly incurred by Mr Simpson against outstanding body corporate levies. [4] Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [5] In filing the application for leave to appeal, Capri Gardens‟ lawyers make the point that the learned Adjudicator did not give reasons for his decision. -- 2 of 4 -- 3 [6] The nature and extent of the obligation to provide full reasons varies according to the nature of the case.1 In QCAT‟s Minor Civil Disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the QCAT Act. Those decisions will not be exposed to criticism which fails to acknowledge the circumstances in which they are given, or the pressure of the adjudicator‟s caseload. That proposition is not exclusive to the Minor Civil Disputes jurisdiction or the work of adjudicators; as Spigelman CJ remarked in Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at [49]: „It is not appropriate to parse and analyse judgments given on an ex tempore basis by judges of the District Court, who have a considerable caseload‟. [7] That does not mean, however, that a busy Adjudicator is relieved of the obligation to provide reasons. As the Court of Appeal has pointed out2: The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with "a justifiable sense of grievance" through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide "the foundation for the acceptability of the decision by the parties and the public" and to further "judicial accountability". [8] The learned Adjudicator‟s failure to provide reasons is a failure of a fundamental requirement of the tribunal to provide procedural fairness and natural justice. Leave to appeal should be granted and the decision of the learned Adjudicator set aside. [9] I note Capri Gardens‟ complaint about Mr Simpson‟s appearance. There is a process for a party seeking leave to be represented at a hearing3 and that should have been followed. Mr Simpson should turn his attention to the requirements for any future appearances. [10] Upon reading the transcript, I find the evidence of both parties is unclear. I suspect the reference to “offsets” in Capri Gardens‟ application is a little misleading but the general thrust of the dispute appears to be: a) On 24 July 2006, there was a credit to Ms Purtill-King‟s account of $1,101.10 for “Rpr Toilet Ppe/Tiles”. There is a debit for the same amount on 13 November 2006. b) Capri Gardens can find no record or reason for the credit; Ms Purtill- King says it refers to broken pipes that were Capri Gardens‟ responsibility and was the subject of an insurance claim. She says that they were properly deducted from her levy account. c) On 18 August 2006, Capri Gardens authorised $200 to be spent on garden mulching. Ms Purtill-King says that she paid this amount and 1 Attorney-General v Kehoe [2001] 2 Qd R 350 at 356; Tully v McIntyre [2001] 2 Qd R 338. 2 Drew v Makita (Australia) P/L [2009] QCA 66. 3 Queensland Civil and Administrative Tribunal Act, s 43(4). -- 3 of 4 -- 4 it should be credited against her body corporate levies; Capri Gardens says that this is not the way bodies corporate should deal with expenditure. [11] Ms Purtill-King also says that the calculation of the interest in incorrect. [12] The material filed to date does not have a proper accounting of Ms Purtill- King‟s payment history; does not properly show how or when interest was calculated or credited; and does not deal with the alleged credits. It may be that the learned Adjudicator did receive evidence of this nature but it is not apparent from the file. Therefore, I am unable to craft a different decision from a reading of the transcript. [13] Capri Gardens has applied for leave to be legally represented in the application for leave to appeal. As the appeal has been granted, there is no need for leave to be granted. [14] The proceeding should be returned to a different adjudicator for determination by the tribunal subject to these directions: a) Capri Gardens shall file and serve all material on which it relies within 21 days of receipt of this decision. b) Ms Purtill-King shall file and serve all material on which she relies within 21 days of receipt of material from Capri Gardens. -- 4 of 4 --