Body Corporate for Suzanne Court CTA 13248 v Kongas
[2014] QCATA 226
•22 August 2014
| CITATION: | Body Corporate for Suzanne Court CTA 13248 v Kongas [2014] QCATA 226 |
| PARTIES: | Body Corporate for Suzanne Court CTA 13248 (Applicant/Appellant) |
| v | |
| Bill Kongas t/as Sagnok Hanydman Services (Respondent) |
| APPLICATION NUMBER: | APL143-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 22 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where work done for body corporate – where all lots now owned by same person – where claim for defective work – where claim brought outside limitation period – where claim for fraud - whether grounds for leave to appeal Body Corporate and Community Management Act 1997 (Qld) s 81(2)(a) Dearman v Dearman (1908) 7 CLR 549 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Some time prior to March 2006, Mr Kongas did some handyman work at Suzanne Court. He replaced an external staircase and waterproofed external decking. In September 2013, Ms James filed a claim for the cost of repairing defective work. The tribunal dismissed her claim, primarily because the 6-year limitation period for action had expired.
Ms James has filed an application for leave to appeal in the name of the Body Corporate for Suzanne Court CTS 13248. She says that the limitation period has not expired because Mr Kongas acted fraudulently. She says that the learned Adjudicator erred in rejecting her claim because she did not believe Ms James.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1] QCAT Act s 142(3)(a)(i).
[2] Pickering v McArthur [2005] QCA 294 at [3].
Ms James filed fresh evidence with her application for leave to appeal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms James have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[3]
[3] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
Ms James has obtained affidavits which respond to the evidence at the hearing. An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator
There is some doubt about the proper applicant to the hearing before the learned Adjudicator and this appeal. The application filed in September 2013 named both Ms James and the Body Corporate. When the tribunal queried the proper applicant, Ms James chose to proceed in her own name[4].
[4] Transcript page 1-9, lines 15-17.
The evidence about whether the Body Corporate still exists was confused. Ms James told the learned Adjudicator that she owned all units in the building[5] and there was no body corporate as an identity outside[6]. It appears that Ms James was confusing the existence of a body corporate with the existence of a body corporate manager, an entity that is paid to conduct the affairs of the body corporate.
[5] Transcript page 1-9, lines 9-10, 17
[6] Transcript page 1-11, lines 1-2
The learned Adjudicator was concerned that the claim, if it existed, was the Body Corporate’s claim and not Ms James’ claim, because the Body Corporate existed when Mr Kongas did the work. The distinction is not an important one. The right of action, if it existed, was a Body Corporate asset. On the dissolution of a body corporate, the owners of the lots immediately before termination become entitled to the body corporate assets in shares proportionate to the respective interest schedule lot entitlements of their lots immediately before the termination[7]. If Ms James held all the lots before dissolution, then she is entitled to all the benefit of the action.
[7] Body Corporate and Community Management Act 1997 (Qld) s 81(2)(a).
I have read the transcript. The learned Adjudicator did not say that she did not believe Ms James. She told Ms James that she could not accept discussions at mediation as the truth[8]. She told Ms James that her expert evidence was less valuable because it was a letter and not a sworn statement[9]. She said, correctly, that Ms James had the onus to bring evidence to the tribunal[10].
[8] Transcript page 1-32, lines 21-24.
[9] Transcript page 1-33, line 1.
[10] Transcript page 1-33, lines 6-8.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[11] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[12]
[11] Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[12] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The learned Adjudicator preferred Mr Kongas’ evidence. He had copies of the quotes. He had pieces of the staircase. He had a report from a third party. The evidence can support the learned Adjudicator’s findings that she could not be satisfied that Mr Kongas failed to undertake the work as quoted. There is nothing in the transcript that persuades me the learned Adjudicator should have taken a different view of the facts.
For that reason, Ms James’ claim that Mr Kongas acted fraudulently was bound to fail. Fraud is a serious allegation. A party who alleges fraud faces a higher standard of proof[13]. If Ms James could not satisfy the learned Adjudicator on the ordinary onus of proof, there was no possibility she would satisfy a more onerous standard of proof.
[13] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.
There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
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