Conset Investments Pty Ltd, Re [1992] QSC 189 [1993] 2 Qd R 244

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor, The Law Courts, George Street, BRISBA.'I\fE. 0. 4000 Tel. (07) 227.4360 (Copyright in this tran..~ript is vested in the Crovm. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION RYAN J Motion No 280 of 1992 IN THE MATTER OF The Building Units and Group Titles Act 1980 and ··,___ .. IN THE MATTER OF The By-Laws of The Body Corporate The Proprietors "Imperial Surf" Building Units Plan No. 5457 and i~~- IN THE MATTER OF The Appeal of Con~et Investments Pty Ltd BRISBANE DATE 20/5/92 1 -- 1 of 8 -- 200592 JUDGMENT HIS HONOUR: I hold that the appeal is incompetent. In the circumstances, I decline to decide the substantive matters argued as to the merits of· the appeal. I publish my reasons. 10 10 I order that the appellant pay the costs of the respondent to be taxed. 20 20 30 30 40 40 so so i 60 1 60 Govt. Printer, Old. I 2 I I -- 2 of 8 -- IN THE SUPREME COURT OF QUEENSLAND Motion No. 280 of 1992 IN THE MATTER of the Building Units and Group Titles Act 1980 - and - IN THE MATTER The Body Proprietors Building Units of The By-Laws of Corporate The "Imperial Surf" Plan No. 5457 - and - IN THE MATTER of The Appeal of CONSET INVESTMENTS PTY. LTD. JUDGMENT - RYAN, J. Delivered the Twentieth day of May, 1992. Counsel: Mr. B. O'Donnell for Applicant Mr. M. Hinson for Respondent Solicitors: Thynne Macartney, Solicitors T I A for Primrose Couper Cronin Rudkin, Solicitors, Southport for Applicant Corrs Chambers Westgarth for Respondent Hearing Date: 1st May, 1992. -- 3 of 8 -- IN THE SUPREME COURT OF QUEENSLAND Motion No. 280 of 1992 IN THE MATTER of the Building Units and Group Titles Act 1980 - and - IN THE MATTER The Body Proprietors Building Units of The By-Laws of Corporate The "Imperial Surf" Plan No. 5457 - and - IN THE MATTER of The Appeal of CONSET INVESTMENTS PTY. LTD. JUDGMENT- RYAN, J. Delivered the Twentieth day of May, 1992. Application has been made on behalf of Conset Investments Pty. Ltd. for an order that the order made by a Stipendiary Magistrate sitting as the Tribunal constituted under the Building Units and Group Titles Act 1980 (the Act) at Southport on 16 August 1991 whereby the Tribunal dismissed the appeal of Conset Investments Pty. Ltd. against an order made by the Referee on 27 March 1991 in relation to Lot 159 in Building Units Plan No. 5457 purporting to be an order which he was empowered by the Act to make be set aside and that the appeal against the decision of the Referee be allowed. The application was filed on 23 April 1992, more than eight months after the order was made by the Tribunal. Section 108 of the Act provides that an appeal lies to the Court (defined as the Supreme Court of Queensland) from an order made by a tribunal under s. 107 on the ground that the order is erroneous in law but -- 4 of 8 -- 2 on no other ground. No time limit is expressed within which the appeal must be instituted. By way of contrast, s. 106 provides that an appeal to a tribunal against the order of a referee must be lodged not later than 21 days after the order takes effect. It was submitted on behalf of the respondent that s. 38(5) of the Acts Interpretation Act 1954 applied and required that an appeal be instituted "with all convenient speed". That provision is in these terms:- "Where no time is prescribed or allowed within which anything shall be done, such thing shall be done with all convenient speed, and as often as the prescribed occasion arises." In Attorney-General v. Tichy [1982] 30 S.A.S.R. 84 to which my attention was very properly directed by counsel for the appellant, it was held that as a provision in an Act which permitted the Attorney-General with leave of the Full Court to appeal against a sentence did not prescribe any time within which an appeal was to be brought, the appeal must in accordance with the provisions of the Acts Interpretation Act (S.A.) be brought "with all convenient speed". Section 27(3) of that Act is in identical terms to s. 38(5) of the Queensland Act. Wells J., with whose judgment King C.J. and Cox J. agreed, said that the "act to be done" to which s. 27 refers was "the institution of the appeal, and if no express provision is made by enactment or rule for some procedure by which this is to be done, the Court has all the necessary inherent powers to approve some appropriate means of institution". It was then submitted that an appeal instituted eight months after the decision the subject of the appeal could not be -- 5 of 8 -- 3 described as having been instituted "with all convenient speed" iri this case. For the appellant, it was submitted that the words "shall be done" in the first clause of s. 38(5) were apt to d~scribe an act in performance of a statutory duty or obligation rather than the doing of an act in exercise of a right or entitlement. Likewise, the concluding words "and as often as the prescribed occasion arises" were not apt in the context of the exercise of a right or an entitlement. Here the relevant act, the institution of an appeal, was in the nature of an entitlement conferred by the legislation. It was submitted further that the argument for the respondent involved the word "shall" being read as "may" where it first appeared in the sub-section, but not where it appeared the second time. This is, in my opinion, too restrictive an interpretation of s. 38(5). The words in the first clause of s. 38(5) are, I consider, sufficiently comprehensive to include a situation where no time is prescribed within which any appeal must be instituted. Nobody is, of course, required to institute an appeal, though certain persons may do so. But if a person exercises his entitlement to appeal, no time is prescribed by the Act within which the appeal is to be instituted, and s. 38(5) is therefore applicable. It was next submitted for the appellant that as a matter of fact the appeal was instituted "with all convenient speed". A notice was sent by the Body Corporate to Conset Investments Pty. Ltd. on 25 September 1989 directing removal of an aluminium glass structure installed on a balcony. It had been -- 6 of 8 -- 4 there for seven years. This structure was referred to as "a screen 11 • On 5 November 1990, an application was made by the appellant to a referee under s. 77(1) of the Act for permission to retain the screens or that ratification of the act of installation of the screens be given. On 25 January 1991, the Body Corporate made an application to the referee that Conset Investments Pty. Ltd. remove the screens. On 27 March 1991 the referee ordered the proprietor of Lot 159 (that is, the appellant) forthwith to remove the screens. On 22 April 1991, Conset Investments Pty. Ltd. appealed against the referee's order. On 16 August 1991, the Tribunal dismissed an appeal by Conset Investments. He affirmed the referee's order that the application by Conset Investments Pty. Ltd. be dismissed, and varied the referee's order so as to order that the proprietor of Lot 159 remove the screens within 14 days. The question whether an act is done with all convenient speed is an issue of fact, and must be answered having regard to the circumstances in which the act is to be done. Decisions as to whether all convenient speed was observed in. the case of a direction to a trustee to convert trust property with all convenient speed (Buxton v. Buxton (1835) 1 My. & C. 80; 40 E.R. 307), or in the case of a charterparty requiring that a ship should proceed with all convenient speed (McAndrew v. Chapple (1861) 1 L.R. C.P. 643); or in the case of notice of claim of charge being required to be given with all convenient speed (~ Austco Pty. Ltd. (1985) 2 Qd.R. 1) provide little guidance in the instant case. I have regard to the fact that the screens had -- 7 of 8 -- 5 been in place for several years before a direction was given for their removal, and that no prejudice is suggested by the respondent as having resulted to it though the delay in instituting the appeal. But I am unable to see any factor which would lead me to conclude that the appeal had been instituted with all convenient speed. Not only was the institution of the appeal not made with all convenient speed; there was no explanation given for what I consider to be a very tardy application. Accordingly, I hold that the appeal is incompetent. In the circumstances, I decline to decide the substantive matters argued as to the merits of the appeal. -- 8 of 8 --