Body Corporate for 33 Elkhorn Avenue Surfers Paradise v Minimaxi Investments Pty Ltd

[2013] QCATA 352

CITATION: Body Corporate for 33 Elkhorn Avenue Surfers Paradise v Minimaxi Investments Pty Ltd [2013] QCATA 352

PARTIES:	Body Corporate for 33 Elkhorn Avenue Surfers Paradise CTS 35211
v
Minimaxi Investments Pty Ltd

APPLICATION NUMBER: APL052 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 8 July 2013

DELIVERED AT: Brisbane

ORDERS MADE:

The application to dismiss/strike out a proceeding is granted. The application for leave to appeal/appeal is dismissed. Material filed in this application is to be material filed in any further application for extension of time and leave to appeal the decision of the Adjudicator dated 20 December 2012.

CATCHWORDS:

BODIES CORPORATE – where application for leave to appeal adjudicator’s order – where no resolution for application to the tribunal – whether application beyond power – whether application should be dismissed.

Body Corporate and Community Management Act 1997 (Qld) s 100
Body Corporate and Community Management (Commercial Module) Regulation 2008 (Qld) s 18

Oceana on Broadbeach Community Title Scheme 24163 v Searles & ors [2003] QCA 238

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. As the submissions from Minimaxi Investments Pty Ltd record, these parties have been fighting about the apportionment of charges for air-conditioning costs for years. On 20 December 2012, an adjudicator appointed by the Commissioner for Body Corporate and Community Management ordered the body corporate to remove any charges for air-conditioning costs from Minimaxi’s account. The body corporate filed an application for leave to appeal that decision.

2. Minimaxi filed an application to dismiss or strike out that application for leave to appeal. It says the body corporate had no authority to file the appeal because it does not have a resolution from a general meeting.

3. The body corporate says that, because it received the adjudicator’s decision just before Christmas, it had no time to call a body corporate meeting and comply with the tribunal’s appeal time frames. It says that it is aggrieved by the adjudicator’s decision and, therefore, has sufficient grounds to lodge an application for leave to appeal. It asks the tribunal for further time to obtain the necessary authority to lodge the application.

4. Section 100 of the Body Corporate and Community Management Act 1997 (Qld) states that a decision of the committee is a decision of the body corporate unless it is a decision on a restricted issue. This body corporate is regulated by the Body Corporate and Community Management (Commercial Module) Regulation 2008. “restricted issue” is defined in s 18 of the Commercial Module. The effect of s 18 is that a decision to appeal an adjudicator’s decision is a restricted issue. Therefore, the committee‘s decision to file the appeal was not the body corporate’s decision.

5. The body corporate referred me to the Court of Appeal decision in Oceana on Broadbeach Community Title Scheme 24163 v Searles & ors[1] as authority for the proposition that the committee can obtain retrospective approval for its decision to file the application. That proposition is correct but the body corporate provided no evidence that it has take the step of calling a general meeting to give the committee that authority. On the contrary, the body corporate’s submissions appear to be that, because it can get retrospective approval, there is an implied approval, but it will get that approval when it next calls a general meeting.

   [1] [2003] QCA 283.

6. That cannot be the intention of the legislation. The committee has incurred costs in lodging this application. The members of the body corporate are entitled to be informed of the costs and the committee’s intentions. They are entitled to have a say about whether the committee pursues an appeal. The ability to have a say about the future conduct of the appeal is particularly important because this is a long running dispute and the members of the body corporate are entitled to finality. It is not good enough for the committee to pursue a path on the assumption that, if and when it is put to a vote, the committee will receive support for its actions.

7. The application to strike out or dismiss the body corporate’s application should be granted, as it had no power to make the application. It follows that the application for leave to appeal/appeal should be dismissed. However, the orders in Oceana give guidance to this tribunal, which has a mandate to ensure proceedings are conducted speedily, with a minimum of expense and inconvenience. Therefore, I order that material filed in this application is to be material filed in any further application for extension of time and leave to appeal the decision of the Adjudicator dated 20 December 2012.