MARTIN ALBRECHT (applicant) v KJERULF AINSWORTH (first respondent) LISA MARTOO (second respondent) JOHN MORRIS (third respondent) MARK LANG (fourth respondent) JOHN MAINWARING (fifth respondent) BODY CORPORATE FOR VIRIDIAN NOOSA RESIDENCES (not a party to the appeal)
FILE NO/S:
Appeal No 10847 of 2014 QCAT No 418 of 2013
DIVISION:
Court of Appeal
PROCEEDING:
Application for leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:
Queensland Civil and Administrative Tribunal at Brisbane – [2014] QCATA 294
DELIVERED ON:
6 November 2015
DELIVERED AT:
Brisbane
HEARING DATE:
19 May 2015
JUDGES:
Margaret McMurdo P and Morrison JA and Martin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
1. Application for leave to appeal granted and appeal allowed with costs.
2. The decision of QCATA is set aside and instead it is ordered that the appeal to QCATA is dismissed.
CATCHWORDS:
PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE APPEAL TRIBUNAL – where the applicant and the respondents are owners of homes in an architectural award-winning multi-dwelling complex, Viridian – where the applicant wanted to extend the deck area of his home – where the applicant could do so only if the body corporate, in an extraordinary general meeting, approved the proposal in his motion without dissent and granted him exclusive use of the common property airspace between his existing deck spaces – where at the extraordinary general meeting, seven of the 23 owners voted for the motion, seven voted against, one abstained, and the remainder did not vote – where the applicant applied for a referral to an adjudicator and sought orders that effect be given to his motion – where the question for the adjudicator was whether the respondents’ opposition to the motion was unreasonable in the circumstances and whether the body corporate acted reasonably in refusing to give its approval – where the adjudicator granted his application and made the relevant orders, giving effect to the motion – where the respondents appealed from those orders to QCATA – where QCATA allowed the appeal and set aside the adjudicator’s orders – where the applicant has applied for leave to appeal to this Court contending that the appeal to QCATA should have been dismissed – where the appeal to QCATA was on a question of law only, and not an appeal by way of rehearing – where the applicant contends that QCATA erred in not clearly identifying the errors of law allegedly made by the adjudicator – where the applicant contends that questions of reasonableness and unreasonableness were questions of fact and it was not open to QCATA to review the correctness of the adjudicator’s fact finding, except on orthodox administrative law grounds – where the applicant contends that QCATA conducted an impermissible merits review – whether QCATA erred in identifying errors of law in the adjudicator’s reasons – whether the application for leave…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Albrecht v Ainsworth [2015] QCA 220
Case
[2015] QCA 220
Decision Date
CaseChat Overview and Summary
In Albrecht v Ainsworth, the applicant sought to extend the deck area of his home in an award-winning multi-dwelling complex, Viridian. Approval for the extension required the body corporate, comprising 23 owners, to approve the applicant's motion without dissent at an extraordinary general meeting. At the meeting, seven owners voted in favour, seven voted against, one abstained, and the remaining owners did not vote. The applicant applied for a referral to an adjudicator, seeking orders that effect be given to his motion. The adjudicator found that the respondents' opposition to the motion was unreasonable and the body corporate acted unreasonably in refusing to approve the extension, granting the applicant's application. The respondents appealed the adjudicator's decision to the Queensland Civil and Administrative Tribunal (QCATA), which allowed the appeal and set aside the adjudicator's orders. The applicant now seeks leave to appeal to the Court of Appeal, contending that the appeal to QCATA should have been dismissed and that QCATA erred in not clearly identifying the errors of law allegedly made by the adjudicator.
The legal issues in this case revolve around the scope of review by QCATA of the adjudicator's decision. The applicant argues that QCATA should not have reviewed the adjudicator's factual findings unless they were made on orthodox administrative law grounds. The applicant contends that QCATA should not have considered the merits of the adjudicator's decision but should have confined its review to questions of law. The applicant further argues that the appeal to QCATA was on a question of law only and not an appeal by way of rehearing, and that QCATA should have dismissed the appeal.
The Court of Appeal considered the relevant provisions of the Civil and Administrative Tribunal Act 2009 (Qld), which allow an appeal to the Court on a question of law only if leave is granted. The Court noted that the appeal to QCATA was on a question of law only, and not an appeal by way of rehearing. The Court found that the appeal to QCATA was not confined to questions of law, but rather included a review of the merits of the adjudicator's decision. The Court held that the appeal to QCATA should have been dismissed and that the applicant's application for leave to appeal should be granted. The Court set aside the decision of QCATA and dismissed the appeal to QCATA.
The final orders of the Court were that the application for leave to appeal was granted and the appeal was allowed with costs. The decision of QCATA was set aside and it was ordered that the appeal to QCATA was dismissed.
Orders
Orders of the court
1. Application for leave to appeal granted and appeal allowed with costs.
2. The decision of QCATA is set aside and instead it is ordered that the appeal to QCATA is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Division 2, Appeals to Court of Appeal, relevantly provides:“150 Party may appeal—decisions of appeal tribunal…(2)A party to an appeal under division 1 may appeal to the Court of Appeal against the following decisions of the appeal tribunal in the appeal—…(b) the final decision.(3)However, an appeal under subsection (1) or (2) may be made —(a) only on a question of law; and(b) only if the party has obtained the court’s leave to appeal.”The proceedings before the adjudicator In determining the dispute the adjudicator considered extensive submissions from the applicant and respondents, together with submissions from other Viridian home owners.[11] Some submissions attached architects’ reports. The adjudicator requested and was supplied with the minutes of the extraordinary general meeting of August 10 2012, related explanatory material, and extensive landscaping and architectural information including plans, drawings, diagrams and a letter from the local Council stating the proposed deck extension did not contribute to site cover and was within the present planning approval.[12][11]Wayne Michelson and Mark Winter and Heather Coyne.[12]AB, 623. In her reasons the adjudicator first set out the extraordinary general meeting’s consideration of the applicant’s motion to extend his decks, noting that it did not achieve the required resolution without dissent.[13][13]Viridian Noosa Residences [2013] QBCCMCmr 351, [2]. She then set out the applicant’s submissions. The motion was unreasonable as the proposed alteration was objectively minor in scope and effect; utilised only a small volume of airspace which could never be of use to any other owner; would improve the safety and amenity of the decks; was designed by Viridian’s original architect; was consistent with the existing architectural design for the scheme; would not impede the view, aspect, privacy or use and enjoyment of any lot; and would comply with the conditions of approval for the scheme. The objections that it compromised Viridian’s architectural integrity and would set a precedent for other like alterations were without substance.[14][14]Above, [3]. The adjudicator identified the issue for her determination as “whether the opposition to [the] motion was unreasonable in the circumstances and whether the Body Corporate acted reasonably in refusing to give approval.”[15][15]Above, [4]. The adjudicator noted that the matter was referred to her under s 248 BCCM Act.[16] She investigated the dispute by reviewing all submissions and seeking additional clarification and documentation from the applicant.[17] When the applicant’s submissions introduced new evidence, she distributed that material to the other owners so that they had an opportunity to comment. Five owners reviewed their submissions and the applicant responded with further submissions.[18] The adjudicator accurately summarised the history of the dispute;[19] the competing submissions;[20] and the architectural opinions both supporting (Noel Robinson of NRA Architects, Andrew Gutteridge of Arckhefield Architects, and Tom McKerrell of Tom McKerrell Architects) and opposing it, (the original Viridian architect, John Mainwaring of JMA Architects Qld Pty Ltd, Lindsay and Kerry Clare of ClareDesign, and Shane Thompson of Shane Thompson Architects).[21][16]Above, [10].[17]Above, [11].[18]Above, [12].[19]Above, [13].[20]Above, [14] – [16].[21]Above, [18] – [20].