Burrell & Ors v Body Corporate for Boulevard North Cts [2009] QDC 113

[2009] QDC 113 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 1590 of 2007 CHRISTOPHER THOMAS BURRELL, MARGARET WELLS AND THOMAS ROSS BURRELL Appellants and BODY CORPORATE FOR BOULEVARD NORTH CTS 9833 Respondent BRISBANE ..DATE 29/01/2009 ORDER CATCHWORDS: Body Corporate and Community Management Act 1997 s 289 - appeal to District Court against adjudicator's determination that appellant penthouse owners vacate possession of a second car space and storage area on the basis no resolution without dissent authorised exclusive use of them - whether appeal (on the eve of the hearing date) should be adjourned, with a view to being transferred to the Commercial and Consumer Tribunal and being heard with a foreshadowed appeal against a new decision of another adjudicator upon a related matter -- 1 of 7 -- 29012009 D.1 T(3)15/VMC(BNE) M/T BRIS21 (Robin DCJ) 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: In this situation I think that the Court ought to make no order for the moment but rather adjourn to a date to be fixed the appellants' application filed the 22nd of January 2009. They are in a now long-standing dispute with the body corporate in respect of a residential building which I understand has something like 58 units over entitlement to exclusive use of two separate parts of common property, one of which is a car park, the other a storage area. There appears to be an undisputed entitlement in the appellants to another car park and perhaps to another storage area. The Court understands that when the project was originally designed there were to be two units on the top level, each of which would enjoy exclusive use of a car park and a storage area. The notion emerged of combining the two areas on the top floor into a single larger unit that might be regarded as a penthouse whereas that reduced the numbers of units in the scheme but not the numbers of car parks and storage areas. What I say is subject to correction because a great deal of mystery, so far as I'm concerned, surrounds the way things were done but it seems that when there was an allocation of car parks, et cetera, of the kind that traditionally occurred while matters were still under the control of the developer there may have been no allocation by a resolution without dissent or such means of the now surplus car park and storage area. -- 2 of 7 -- 29012009 D.1 T(3)15/VMC(BNE) M/T BRIS21 (Robin DCJ) 1-3 ORDER 1 10 20 30 40 50 60 The Court's given to understand that as a matter of history the use of it became, in practice, a perquisite of the penthouse owners. Matters proceeded for decades in that way until the issue was raised whether the penthouse owners were entitled to exclusive use of the second car park and storage area. At that point the appellants determined to do something about it, about obtaining security of tenure, by seeking the passing of a resolution without dissent by the body corporate. Although they may have had majority support for recognition of what they saw as their entitlement in light of the way it was offered for sale when it was advertised and the like, they weren't able to get a resolution without dissent passed. The body corporate then brought proceedings before an adjudicator seeking orders that the appellants vacate the contentious areas. The body corporate succeeded and the adjudicator's decision made in April 2007 became the subject of an appeal to this Court under section 289 of the Body Corporate and Community Management Act 1997. The appellants made at least one further attempt to obtain a resolution without dissent within the body corporate with an outcome similar to the previous one and reacted to their disappointment by bringing in an adjudicator who was asked to do what they contended the body corporate ought to have done -- 3 of 7 -- 29012009 D.1 T(3)15/VMC(BNE) M/T BRIS21 (Robin DCJ) 1-4 ORDER 1 10 20 30 40 50 60 and enact a resolution without dissent, establishing a secure entitlement to exclusive use of the contentious areas. That matter before the adjudicator was on foot when a certificate of readiness in respect of the current appeal, which was instituted back in 2007, was signed by the appellants and perhaps under some pressure from the body corporate. Nevertheless they did it. The appeal is ready for hearing and indeed listed for tomorrow. Yesterday the second adjudicator, who was a different person, issued a decision rejecting what the appellants had sought by way of resolution without dissent being imposed on the body corporate by the adjudicator. There are appeal rights which now lie to the Commercial and Consumer Tribunal rather than the District Court, given that the matter is not "complex" in terms of the Body Corporate and Community Management Act 1997 as it now stands. While in general terms it strikes me that it is indeed complex the statutory definitions allocate complexity, or otherwise, depending on the section of the legislation which is in issue. The appellants have given instructions to their lawyers to appeal (and of necessity this has to be to the Tribunal) against yesterday's decision. -- 4 of 7 -- 29012009 D.1 T(3)15/VMC(BNE) M/T BRIS21 (Robin DCJ) 1-5 ORDER 1 10 20 30 40 50 60 In advance of that decision being handed down on the 22nd of January 2009, that is a week ago, they filed an application seeking a stay of the hearing fixed for tomorrow until 28 days after the adjudicator's determination which, as I've just recounted, came yesterday. Alternatively, the adjournment of the hearing to a date to be fixed was sought. Mr Basten (for the appellants) made an oral application (of which little or no notice was given) to have this appeal transferred to the Tribunal, where it is possible that it may be determined together with the foreshadowed appeal against yesterday's decision. My principal reason for declining to make any order today is that there seems to be some uncertainty about what might happen tomorrow and in particular uncertainty as to whether a Judge listed in civil would be available to entertain the matter at all. In my view, if no Judge is available, so that the matter presently in this Court goes off for some weeks or months, matters would bear a rather different complexion. Advice from the list manager has apparently been, until today, that it was unlikely a Judge would be available. Now things are more hopeful. In my view, advantage ought to be taken of the opportunity of having a Judge available for the day to look at this matter in a more leisurely way than can be done now. It may be that if the matter, which is supposedly ready for hearing, is heard -- 5 of 7 -- 29012009 D.1 T(3)15/VMC(BNE) M/T BRIS21 (Robin DCJ) 1-6 ORDER 1 10 20 30 40 50 60 the parties' dispute can finally be resolved. It seems to me that is very likely to happen if the appellants succeed. That will involve this Court rejecting the body corporate's claim to be entitled to possession of the contentious areas against the appellants. There is scope for estoppels arising and the like. It would be surprising if a determination of the kind I've just described could be defeated by some subsequent order by an adjudicator or by the Tribunal which, speaking generally, is a body from which an appeal lies to this Court. There is a regrettable scope in the present context for technicalities of the legislation (which is now very different from that under which the Community Title Scheme was established) to complicate matters. If there are to be further disputes - and some means would have to be found of accommodating yesterday's decision of the adjudicator - it's regrettable that what is a readily understandable situation on the ground regarding entitlement to the car parking and storage facilities has to be resolved in such a convoluted way by multiple proceedings. It's difficult for the Court to be critical of any of the participants at this stage. Ms Moody, for the body corporate, wishes tomorrow's hearing to go ahead. She made it clear that she was not in a position to argue fully any application for transfer of this appeal to the Tribunal. However, she pointed out that it was far from clear the transfer should or could be ordered. It was some time after institution of the appeal -- 6 of 7 -- 29012009 D.1 T(3)15/VMC(BNE) M/T BRIS21 (Robin DCJ) 1-7 ORDER 1 10 20 30 40 50 60 that the Act was amended to create an option to appeal from and thereafter to the Tribunal, rather than to the court. A further complication, she submits, is that there may be no question of law to authorise the appeal in any event. I have the clear view that the Judge tomorrow would be in a better position than I am to attempt to bring about a resolution which is both legally correct and just. It remains to be seen whether that resolution can be achieved as a result of a hearing tomorrow or whether there has to be an adjournment of the kind the appellants are seeking so that, if necessary, yesterday's decision can be accommodated. If there is no Judge available tomorrow then I indicate my willingness to revisit this matter. That's the whole point of my making the order that I do, adjourning the application filed the 22nd of January to a date to be fixed. I'd reserve the costs. MR BASTON: Thank you, your Honour. I'll be heard about that. HIS HONOUR: Sorry it's unsatisfactory but you might get somewhere tomorrow. MR BASTON: Thank you, your Honour. ----- -- 7 of 7 --