ARV Group as Trustee v Body Corporate for La Terraza Bowen Hills CTS 29629

[2024] QCATA 86

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION

ARV Group as Trustee v Body Corporate for La Terraza Bowen Hills CTS 29629 [2024] QCATA 86

PARTIES:

 ARV GROUP AS TRUSTEE

(applicant)

BODY CORPORATE FOR LA TERRAZA BOWEN HILLS CTS 29629

(respondent)

APPLICATION NUMBER

ORIGINATING APPLICATION

APL290-22

[2022] QBCCMCmr 314

MATTER TYPE:

Other civil dispute matters

DELIVERED ON: 

16 August 2024

HEARING DATE:

30 July 2024

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The appeal is dismissed

CATCHWORDS:

BY-LAWS DISPUTE – community title scheme – common property area – exclusive parking  facilities – where parking area annexed to medical centre – whether contravention of by-laws – whether contravention notice valid – interpretation of Notice – whether Notice inconsistent with Act – operation of Acts Interpretation Act 1954 (Qld) – where submissions on appeal differ from those at trial – whether new submission on appeal open to appellant – where new submission disregarded - where alternative consideration of form of Notice – whether form of Notice compatible with Act – where objections to form of Notice rejected

Acts Interpretation Act 1954 (Qld) s 48A
Body Corporate and Community Management Act 1997 (Qld) s 94, s 182, s 271, s 276, s 289
Queensland Civil and Administrative Tribunal Act 1909 s 142(3)(b), s 146
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Attorney-General (NSW) v Quin (1990) 171 CLR 1
Bluestone Holdings Pty Ltd v Juniper Property Holdings No 14 Pty Ltd [2006] QSC 219
Coulton v Holcombe (1986) 162 CLR 1
D’Orta-Ebenaike v Victoria Legal Aid (2005) 223 CLR 1
Mango Boulevard Pty Ltd v Spencer & Ors [2020] QCA 207

Park v Brothers (2005) 222 ALR 421

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 4

Roma Electric Light & Power Co Ltd v Hair [1955] St R Qd 331

University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481
Water Board v Moustakos (1988) 183 CLR 491 at 497.

APPEARANCES & REPRESENTATION:

Applicant: Mr McDermott of counsel instructed by Herdlaw, solicitors

Respondent: Mr B Strangman of counsel instructed by Nicholsons Solicitors         

REASONS FOR DECISION

INTRODUCTION

1. La Terraza Bowen Hills (‘Terraza’) is a community titles scheme comprising 18 Lots, governed by the Body Corporate and Community Management Act 1997 (Qld) (‘the Act’).

2. The casus belli is a parking space (A 41) reserved to Lot 8 in Terraza. Lot 8 is held in trust by the appellant ARV Group Pty Ltd (‘ARV’).

3. By-laws regulate management of the scheme, and in particular the use of common property for parking of tenants’ cars.  

4. Terraza’s by-law 17.1 governs car parking in the common area of the complex and provides:

   The exclusive use areas referred to in this by-law are car parking spaces and must be used for the purpose of car parking only.

5. The body corporate has a statutory duty to enforce its by-laws.[1]

   [1] The Act s 94(1)(b).

   Car Park Converted

6. However, the car space assigned to ARV, namely Area 41, is not, and for several years has not been used for car parking, but as part of a medical centre operated by ARV or its licensee. Terraza alleges that this has been the case since ‘the second half of 2010’.[2] That is not disputed.

   [2]           Terraza’s submissions 7 March 2023 paragraph 5

   Terraza Serves Contravention Notices

7. It was not until 18 July 2018 that Terraza sent ARV a Contravention of By-law notice, followed on 17 September 2021 by Continuing Contravention Notice (‘the Notice’).[3]

   [3] The Act s 182.

8. No explanation is offered for the delay of some 8 years from the annexure of Area 41 to the medical centre and service of the Notice. At an earlier stage in this dispute[4] ARV raised a defence of laches, but that plea is not now pursued. This is not an equity suit[5], and if some other form of estoppel were raised, it would face the difficulty that estoppel cannot defeat a statutory mandate.[6]

   [4]           ARV’s submissions 7 February 2022 paragraphs 78ff.

   [5]           See Meagher, Gummow and Lehane Equity Doctrines and Remedies 2^nd edn at [3601]

   [6]The Act s 94(1)(b); Attorney-General (NSW) v Quin (1990) 171 CLR 1 at 18; Roma Electric Light & Power Co Ltd v Hair [1955] St R Qd 331.

   Several Primary Adjudications

9. On three occasions the dispute came before adjudicators appointed under the Act.[7] On 18 February 2019 adjudicator Dowling dismissed ARV’s application to have the Contravention Notice set aside. On 6 November 2019 adjudicator Miskinis rejected ARV’s application ‘in its entirety’, and on 22 August 2022 adjudicator Schmidt confirmed the validity of Terraza’s Notice and ordered the interior of Area 41 to be reinstated as a car parking space.

   [7]           The Act s 236.

   Appeal to QCAT

10. ARV now appeals[8] to QCAT, seeking to have the primary decisions set aside, and for declarations that the Notice is void ab initio, and that its alterations to Area 41 were approved by the body corporate.[9] The appeal is limited to questions of law.[10]

    [8]The Act s 289; leave to appeal is not required: Queensland Civil and Administrative Tribunal Act 1909 s 142(3)(b), s 146; the Act s 289.

    [9]           Notice of Appeal filed 30 September 2022 Part D.

    [10] The Act s 289(2).

    The Contravention Notice

11. The Notice served by Terraza on 17 September 2021 follows Form 10 issued by the Department of Justice and Attorney-General for the purposes of section 182.[11] The operative part[12] reads:

    TAKE NOTICE that the complainant has reasonable grounds to believe that you are contravening the following by-law [17(i)] … and that you have done so in the following manner … Please see annexure A.

    [11]182 (1) This section applies if the body corporate … believes that— (a) a person who is the owner or occupier of a lot … is contravening a provision of the by-laws for the scheme;  and (b) the circumstances … make it likely that the contravention will continue. (2) The body corporate may, by notice  … require the person to remedy the contravention.   

    [12]          Form 10 section 2.

12. Annexure A supplies these particulars:

    Without the authority or consent of the body corporate, you have converted Area 41 from a car parking space to an enclosed treatment room forming part of the medical practice  operated from lot 8.

    The current use of Area 41 contravenes by-law 12.1(d) as it places a strain on the available car parking , also common property, at the scheme.

    By-law 17.1 has also been breached, because that by-law requires Area 41 to be used for  car parking only.

A Semantic Exercise

1. ARV contends[13] that the Notice is void and of no effect because it employs the phrase ‘the complainant has reasonable grounds to believe’, while the Act[14] proceeds: ‘This section applies if the body corporate reasonably believes[15] that … a person is … contravening a provision of the by-laws’.[16]

   [13]          Submissions of ARV

   [14] Section 182(1).

   [15]          Emphases added.

   [16]          Emphases added.

2. On this delicate semantic thread hangs the implicit proposition that, for the time being at least, ARV may continue an arrangement that is prima facie in breach of by-law 17.

3. Form 10 itself, as printed and issued by the State for the purposes of the Act, declares: ‘TAKE NOTICE that the complainant has reasonable grounds to believe that you are contravening the following by-law …’.

4. Nevertheless ARV now contends that the semantic variation in the Notice invalidates the Notice and any action taken  to enforce it.

   ARV’s Cases differ at Trial and on Appeal

5. But before adjudicator Schmidt, in 2022, ARV advanced a different argument. Its contention then was that the Notice was invalid because Terraza’s committee did not expressly resolve, before the Notice was issued, that it believed that ARV was in breach of the By-laws.[17] That submission was rejected at first instance and is not repeated. Instead, a different cause of invalidity is alleged.

   [17]          ARV’s submission to the adjudicator 7 February 2022 paragraphs [43]  - [47].

6. Terraza submits that this ‘change of tack’ debars ARV from advancing on appeal a semantic plea, based on the wording of the Notice, before this Appeal tribunal.

7. If this submission is accepted, as in my view it should be, the ‘defective Notice’ argument must now be rejected.

   Principle of Finality

8. This conclusion evokes the common law principle ut sit finis litium: finality of litigation is to be sought. It is neither fair nor efficient to confront an opponent, on appeal, with what is effectively a new case, for which he has not prepared.  That is conducive to delay, additional costs and complexity.[18]

   It is fundamental to the due administration of justice that the substantial issues … are ordinarily settled at the trial. If it were not so the main arena … would move from the court of first instance to the appellate court, tending to reduce the proceedings [there] … to little more than  a preliminary skirmish.[19]

   It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances it would be contrary to all principle to allow a party, after a case had been decided against him,  to raise a new argument which … he failed to put during the hearing, when has had an opportunity to do so.[20]

   [18]D’Orta-Ebenaike v Victoria Legal Aid (2005) 223 CLR 1; Mango Boulevard Pty Ltd v Spencer & Ors [2020] QCA 207 at [16]; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217; Park v Brothers (2005) 222 ALR 421 at [47].

   [19]Coulton v Holcombe (1986) 162 CLR 1 at [9]; see also Aon Risk Services Australia v Australian National University (2009) 239 CLR 175.

   [20]          University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483.

9. It is true that in an exceptional case a court of appeal may waive the finality principle to consider a pure question of law[21], but I do not see this case as one that presents ‘most exceptional circumstances’[22] that warrant a concession in the interests of justice. Throughout this protracted dispute each party has had the benefit of legal advice.

   [21]          Water Board v Moustakos (1988) 183 CLR 491 at 497.

   [22]          University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483.

10. For these reasons the appellant’s attack upon the form of Notice may not be entertained at this stage. It was not aired at the trial.

    Semantic Case Contingently Considered

11. However, if that conclusion is not accepted, the present challenge to the form of the Notice calls for consideration.   

12. In the circumstances of this case I am not satisfied that there is a material difference between professing reasonable grounds to believe and simply believing. The Acts Interpretation Act adopts a commonsense approach to statutory forms that do not precisely reproduce the words the wording of the statute which generates them:

    If a form is prescribed or approved under an Act, strict compliance with the form is not  necessary and substantial compliance is sufficient.[23]

    [23]          Acts Interpretation Act 1954 (Qld) s 48A(1). The contents of the Notice satisfy the proviso in s 48A(2).

13. In QUYD Pty Ltd v Marvass Pty Ltd,[24]for example, the use of an obsolete form was disregarded. In Bluestone Holdings Pty Ltd v Juniper Property Holdings No 14 Pty Ltd[25] the Chief Justice dismissed objections to the form of a statutory notice as mere quibbles.

    [24][2009] 1 Qd R 4.

    [25] [2006] QSC 219 page 1.

14. In this particular case it was glaringly obvious that, rightly or wrongly, a ‘parking only’ area had been absorbed into a medical centre.  That was the one and only issue of the moment.  The centre’s annexation of the car space was a simple fact that no one disputed. and belief in which required no debateable inferences.  In those circumstances, ‘I have reasonable grounds to believe that you are contravening’ is merely a slightly stilted way of saying ‘I reasonably believe that you are contravening’. It is hardly surprising that ARV passed over the fact of annexation to seek solace in fine semantic analysis of the Notice’s wording.

15. Accordingly the proposition that the slight variation in wording renders the Notice (or official form 10) void is rejected.

    Nuisance or Parking Stress?

16. The adjudicator’s comments on the ‘straining’ of parking facilities and nuisance are findings of fact, not questions of law. Furthermore, the adjudicator was not bound by the rules of evidence, and the Act explicitly awards him an investigative role.[26]

    [26] The Act s 271.

    Adjudicator’s Discretion

17. ARV challenges the jurisdiction of the adjudicator to make an order overriding the body corporate’s past authorisation of a door enclosing the subject parking space.[27]  However, the adjudicator had a wide discretion to make ‘[any] order that is just and equitable in the circumstances.[28] There is no substance in this submission.

    [27] ARV’s submissions paragraph [53].

    [28] The Act s 276(1).

    Conclusion

18. I discern no error of law in the decision under appeal. The appeal must therefore be dismissed.

    Costs

19. Terraza wishes to be heard on the question of costs.[29] I reserve that question for written submissions. Terraza may file and serve submissions on costs within 14 days  of delivery of this decision. In that event ARV must file and serve its reply, if any. within 14 days of service of Terraza’s submissions.

    [29] Terraza’s submissions paragraph [53].

    ORDER

    The appeal is dismissed.