Bell v Body Corporate for Juanita Court [2011] QCATA 94

CITATION: Bell v Body Corporate for Juanita Court CTS 3339 [2011] QCATA 94 PARTIES: Jennifer June Bell (Applicant/Appellant) v Body Corporate for Juanita Court CTS 3339 (Respondent) APPLICATION NUMBER: APL203-10 MATTER TYPE: Appeals HEARING DATE: 16 February 2011 HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President Susan Gardiner, Member DELIVERED ON: 3 May 2011 DELIVERED AT: Brisbane ORDERS MADE: Appeal dismissed. CATCHWORDS : APPEAL – BODY CORPORATE AND COMMUNITY MANAGEMENT – where an exclusive use by-law was granted to the applicant/appellant over an area of common property – where a special adjudicator declared that the grant of exclusive use was invalid – where the applicant/appellant alleged that the Adjudicator made errors of law by failing to consider the Commissioner’s Practice Direction Number 7 and the legal impact of a conciliation agreement, and by applying incorrect law – whether the appeal should be allowed Body Corporate and Community Management Act 1997, ss 233, 248, 252I, 289 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 -- 1 of 5 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT : Jennifer Bell RESPONDENT: Body Corporate for Juanita Court represented by Mr Turner REASONS FOR DECISION President: [1] I have had the benefit of reading the reasons of Ms Gardiner, QCAT Member, in draft. I agree with her reasons, and her conclusions, and the order she proposes. [2] I note that, at the hearing of this matter on 16 February 2011, Ms Bell sought and the Appeal Tribunal granted her an extension of time to file her appeal, which was slightly out of time. Member Susan Gardiner: [3] Ms Jennifer Bell owns a unit in the Juanita Court Community Title Scheme. The unit is Lot 4 in the scheme of 12 Lots and Ms Bell resides there. At a general meeting on 1 August 2001, the Body Corporate of Juanita Court CTS voted to grant an ‘exclusive use’ by-law to Ms Bell over an area of 85m2 of common property previously used as a clothes drying area. Exclusive use was also granted to other Lots but that use did not involve what was a community amenity, such as a clothes drying area. [4] In January 2009 the owner of Lot 8 applied to the Commissioner for Body Corporate and Community Management for an order against the Juanita Court Body Corporate seeking to reverse the exclusive use given to Lot 4, and that the Body Corporate revert to the conditions and regulations of the Brisbane City Council’s approved plan in place prior to the exclusive use given to Lot 4. The applicant also sought that a new community management statement be registered, in accordance with Brisbane City Council rules and regulations. [5] The matter was referred to adjudication by a specialist adjudicator1 whose decision was delivered on 3 September 2009. The decision declared that the grant of exclusive use to Ms Bell by the Body Corporate on 1 August 2001 was invalid, and ordered that a new community management statement deleting the exclusive use area be lodged with the Land Titles registry and that the drying area of 40m2 shown on a plan dated October 1991 be reinstated. 1 Body Corporate and Community Management Act 1997, Chapter 6, Part 9. -- 2 of 5 -- 3 [6] On 14 September 2010 Ms Bell appealed the Adjudicator’s decision to the QCAT Appeal Tribunal.2 The appeal can only be on a question of law.3 [7] The distinction between questions of law and fact is, at times, blurry and Courts have traditionally found it difficult to formulate a ‘satisfactory test of universal application’.4 A useful explanation of the distinction is, in my respectful view, set out in the following passage from a decision of the Supreme Court of Canada:5 Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.6 [8] Ms Bell’s submissions make it clear that she seeks to: (a) Determine if a conciliation agreement, dated 4 August 2008 and yet to be acted upon by the parties, stopped the Commissioner of Body Corporate and Community Management from making a dispute resolution recommendation under s 248 of the Body Corporate and Community Management Act 1997; (b) Ensure that the correct law was applied by the learned Adjudicator. [9] Ms Bell raised other matters in her submissions in support of this appeal but they were directed to matters of fact, not law, and (for the reasons just discussed) have no relevance, or force or effect. [10] Turning then to each of Ms Bell’s submissions, the first is that the determination by the Commissioner of Body Corporate and Community Management to proceed to adjudication in this dispute appears not to have complied with the Commissioner’s own published Practice Direction Number 7. Ms Bell’s submission concerns, in particular, the legal impact of a conciliation agreement between the original applicant and the Body Corporate. [11] A conciliation agreement was signed on 4 August 2008 by Mr Darryl Elliott and the representative of the Juanita Court Body Corporate. Mr Elliott (at that time another lot holder in this community scheme) was the original applicant to the Commissioner of Body Corporate and Community Management, seeking to overturn the exclusive use grant. [12] It is not the task of this Appeal Tribunal to determine the validity of the agreement but, rather, to consider whether the Commissioner of Body 2 Body Corporate and Community Management Act 1997, s 289(1). 3 Body Corporate and Community Management Act 1997, s 289(2). 4 See Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389 at 394. 5 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748. 6 Ibid, at [35] per Iacobucci J. -- 3 of 5 -- 4 Corporate and Community Management was estopped by its terms from referring this matter to specialist adjudication. [13] Practice directions governing internal dispute resolution and the dispute resolution service are issued by the Commissioner under s 233 of the Body Corporate and Community Management Act 1997. The preamble to Practice Direction 7 entitled the ‘Conciliation Process’ advised that: Its purpose is to provide further information on the policies and procedures applying to dispute resolution applications lodged with the Commissioner’s Office. Nothing in this Practice Direction supersedes or overrides the requirements of the legislation and the Commissioner retains the discretion provided for in the legislation in the case management of dispute resolution applications. [14] Section 233(4) of the Body Corporate and Community Management Act 1997 further states: ‘To remove any doubt, it is declared that a practice direction is not subordinate legislation’. [15] The conciliation agreement dated 4 August 2008 is yet to be acted upon by the parties. Mr Elliott is no longer a lot holder in this scheme, and the Body Corporate has yet to hold the general meeting required by the agreement. Further, for an agreement to be legally binding on the parties, the agreement must be referred to an adjudicator to make a consent order.7 This did not occur. There was no concluded agreement by way of consent order, and no action by any party to bring the agreement into effect (Practice Direction 7 says, at paragraph 12, that an adjudication application may be lodged if the terms of a conciliation agreement are not carried out). [16] On 21 April 2009 the Commissioner’s delegate notified Ms Bell that the application would be subject to departmental adjudication. There is nothing in the legislation or practice directions that prevents or prohibits the Commissioner from determining to send the matter to adjudication. By April 2009 there was no conclusion of the matter by the parties. The process undertaken by the Commissioner discloses no demonstrated or discernable error of law and, on that basis, Ms Bell’s first submission must fail. [17] Ms Bell’s second submission seeks to ensure that the correct law was applied by the Adjudicator. An original order provided by the Adjudicator to the parties set out, in its first paragraph, an incorrect date for the original extraordinary general meeting of the Body Corporate granting Ms Bell’s exclusive use. [18] The date was originally shown, by the order of the Adjudicator, as 21 August 2003. After the error was identified the order was amended pursuant to the slip rule to show the correct date, 1 August 2001. [19] Ms Bell submits that because of this error, the correct legislation may not have been applied by the Adjudicator. 7 Body Corporate and Community Management Act 1997, s 252I. -- 4 of 5 -- 5 [20] The Adjudicator’s determination records that, after investigations, she found that the facts of this matter were agreed and that ‘the dispute revolves only around a question of law’.8 The Adjudicator then proceeded to consider the law applicable to the agreed facts. [21] Examination of this process of the application of the relevant law by the Adjudicator, in her decision, discloses no confusion about the date of the original extraordinary general meeting, or in the application of the existing law to the grant of exclusive use arising from that meeting. Nor does it show any error in the proper and correct application of the law in effect as at the right date, 1 August 2001. [22] There is, then, no demonstrated or discernable error in the learned Adjudicator’s decision. There was an acknowledged mistake in the order arising from the determination but, when identified, this error on the face of the order was corrected using the appropriate method – in this case, the application of the slip rule. [23] There being no question of law identified in this matter (nor any error of law) this appeal must be dismissed. 8 Determination dated 3 September 2009, page 6. -- 5 of 5 --