Clemens v Henville & Anor [2003] QCA 215

1 [2003] QCA 215 COURT OF APPEAL McMURDO P Appeal No 10486 of 2001 WILLIAM CLEMENS Applicant/Appellant and GEOFFREY CHARLES HENVILLE Respondent/Respondent and SYLVIA TRANKALIS Respondent/Respondent BRISBANE ..DATE 23/05/2003 ORDER -- 1 of 4 -- 2 ORDER 1 10 20 30 40 50 60 THE PRESIDENT: This is an application for leave to appeal from an order of a District Court Judge confirming the order of an adjudicator under the Body Corporate and Community Management Act 1997 (Qld). The order appealed from was delivered on 25 October 2001 and confirmed the order of the adjudicator in each case determining that there had been no proper authorisation to the co-owners of Lot 61 "Edgewater Gardens", CTS 10507 to erect an enclosing structure on common property. The application for leave to appeal was filed on 22 November 2001. The matter was placed in abeyance by the consent of all parties pending the determination of a related matter in the District Court. That matter was heard on the 11th of April 2002 but judgment was not delivered until 21 March 2003. The District Court Judge who heard that appeal dismissed the appeal and also confirmed the order of the adjudicator, a decision favouring the respondents in this application. There has been no application for leave to appeal from the decision delivered on the 21st of March 2003. The second respondent, Ms Trankalis, who appears for herself, was, she says, expecting the applicant to withdraw the application for leave to appeal if it was unsuccessful in the more recent related District Court decision. If that is so, she is understandably distressed that the applicant has now indicated he intends to pursue this application for leave to appeal. She asks that the application for leave to appeal be struck out. -- 2 of 4 -- 3 ORDER 1 10 20 30 40 50 60 At an earlier mention of this matter the issue arose as to whether either respondent to this application for leave to appeal had ever been properly served under the Rules. Material now filed, and I note filed late and not in compliance with my orders at the last mention, indicates that Ms Trankalis was not served in this appeal until the 10th of March 2002. Under the Rules, service should have been effected within a reasonable time and as soon as practicable. The applicant now asks for an extension of the time for service under the Rules and says that in any case Ms Trankalis has waived her right to object to the non-compliance for service because of her agreement for the matter to go into abeyance. Ms Trankalis at the prior mention of this matter did raise with me that she had not been served and she has raised the issue of service in the past with the solicitors for the applicant. Ms Trankalis first became aware that there was an application for leave to appeal on the 14th of January 2002 when she made inquiries at the Appeal Court Registry and purchased copies of documents. She has represented herself in this matter and is not a lawyer. She did not know that she could take objection to the non-compliance with the Rules and she informs me today that had she known that she could have relied on the non-compliance she would have applied to strike out the application earlier and would not have agreed to the matter being placed on the abeyance list. -- 3 of 4 -- 4 ORDER 1 10 20 30 40 50 60 In all those circumstances I am not persuaded that her reluctant involvement in this matter should be treated as a waiver of the Rules or that the applicant should be given an extension of time for service. In the matter of the first respondent, Geoffrey Charles Henville, it seems that he has sold his interests in the Edgewater Garden complex because of tension resulting from this litigation and moved elsewhere. He has not been served with this application and he understandably has no desire to be a respondent in this matter. He has asked that his name be removed from this appeal and indeed the applicant supports that application. In all the circumstances and after reviewing the history of this matter, I am persuaded that non-compliance with the Rules in terms of service warrants the striking out of this application for leave to appeal with costs to be assessed and that is the order of the Court. ----- -- 4 of 4 --