Bryson v Withey Street Townhouses CTS 15365
[2025] QCATA 91
•10 October 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Bryson v Withey Street Townhouses CTS 15365 [2025] QCATA 91
PARTIES:
RENATE BRYSON
(APPELLANT)
v
WITHEY STREET TOWNHOUSES CTS 15365 (respondent)
APPLICATION NO/S:
APL402-23
MATTER TYPE:
Appeals
DELIVERED ON:
10 October 2025
HEARING DATE:
22 August 2025
HEARD AT:
Brisbane
DECISION OF:
Member Lumb
ORDERS:
1. The appeal is allowed in part.
2. Order 1 is set aside and the following order is substituted:
It is declared that the Body Corporate for Withey Street Townhouses CTS 15365 must, subject to s 205(3) of the Body Corporate and Community Management Act 1997 (Qld), within 7 days after receiving a written request from Renate Bryson under s 205(1) of the Act, accompanied by the fee prescribed under the regulation module applying to the Withey Street Townhouses Community Titles Scheme 15365, do one of the things set out in s 205(2)(a) and (b) of the Act.
3. The appeal is otherwise dismissed.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – QUESTION OF LAW – where s 289(2) of the Body Corporate and Community Management Act 1997 (Qld) allows a person aggrieved by an adjudicator’s order to appeal only on a question of law to Appeal Tribunal – meaning of ‘only on a question of law’ – where appellant/lot owner in a community titles scheme sought various orders against the body corporate for the scheme including provision of documents pursuant to s 205 of the Act – where adjudicator made some orders in favour of the lot owner – where orders included order for provision of documents but subject to limitations – where lot owner challenged each of the orders made – whether appeal raised grounds only on a question of law – whether order for provision of documents should have been subject to the limitations
Body Corporate and Community Management Act 1997 (Qld), s 205, s 207, s 276, s 280, s 289, s 290, s 294
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 85
Blue Water Co Pty Ltd v Castillo & Anor [2025] QCATA 82
Hartley v Hartley (2022) 10 QR 791
Taubert & Ors v Body Corporate for Grenache CTS 29711 [2025] QCATA 61
APPEARANCES & REPRESENTATIONS:
Applicant:
Respondent:
Self-represented
Self-represented
REASONS FOR DECISION
Introduction
The Applicant (‘Ms Bryson’) is a lot owner in the Withey Street Townhouses Community Titles Scheme 15365 (‘the Scheme’). The Respondent (‘the Body Corporate’) is the body corporate for the Scheme.
The Scheme comprises five lots, together with common property, being residential townhouses at Gympie in the State of Queensland. The Scheme is regulated by the Body Corporate and Community Management Act 1997 (Qld) (‘the BCCMA’).
By an adjudication application (‘the Adjudication Application’) filed with the Office of the Commissioner for Body Corporate and Community Management in April 2023 and updated on 15 May 2023, Ms Bryson sought 12 orders.
By a decision dated 20 November 2023 (‘the Decision’), a departmental adjudicator appointed under the BCCMA (‘the Adjudicator’) made various orders and refused others. These are addressed below. I note that, although not reflected in the formal orders, the Adjudicator stated, at paragraph [59] of the reasons for decision, that save for the orders made, the application was otherwise dismissed.
The substance of Ms Bryson’s complaints below involved the failure of the Body Corporate to provide documents requested under s 205 of the BCCMA (which should have been, but were not, provided to her) and that the Body Corporate Manager had blocked email communications from her so that she was not able to make requests by email.
By an Application for leave to appeal or appeal filed on 1 December 2023 (‘the Appeal Application’), Ms Bryson appeals against each of the orders made.
Requirements and scope of the appeal
Section 289 of the BCCMA (which appears in Chapter 6, Part 11) provides:
(1) This section applies if—
(a)an application is made under this chapter; and
(b)an adjudicator makes an order for the application (other than a consent order); and
(c)a person (the aggrieved person) is aggrieved by the order; and
(d)the aggrieved person is—
(i)for an order that is a decision mentioned in section 288A, definition order—an applicant; or
(ii)for another order—
(A)an applicant; or
(B)a respondent to the application; or
(C)the body corporate for the community titles scheme; or
(D)a person who, on an invitation under section 243 or 271(1)(c), made a submission about the application; or
(E)an affected person for an application mentioned in section 243A; or
(F)a person not otherwise mentioned in this subparagraph against whom the order is made.
(2) The aggrieved person may appeal to the appeal tribunal, but only on a question of law.
I am satisfied that the Adjudication Application was made under Chapter 6 of the BCCMA; that the Adjudicator made an order for the Adjudication Application (which was not a consent order); that Ms Bryson is aggrieved by the orders; and that Ms Bryson was the applicant to the Adjudication Application. Consequently, I am satisfied that Ms Bryson has satisfied the requirements of s 289(1) of the BCCMA.
Further, the Appeal Application was filed within the six week period required by s 290(1) of the BCCMA.
However, Ms Bryson may appeal to the Appeal Tribunal ‘only on a question of law’ (see s 289(2) of the BCCMA).
I addressed the meaning of, and approach to be adopted in respect of, the phrase ‘but only on a question of law’ in s 289(2) in Taubert & Ors v Body Corporate for Grenache CTS 29711.[1] I adopt the same observations in this matter.
[1][2025] QCATA 61. See also Blue Water Co Pty Ltd v Castillo & Anor [2025] QCATA 82, [42].
In my view:
(a)an appeal under s 289 of the BCCMA must be on a question of law only (or, in other words, on a ‘pure’ question of law);
(b)the very subject matter of the appeal must be a question of law.
Powers on appeal
In deciding an appeal:
(a)the powers exercisable by the Appeal Tribunal on such an appeal are those set out in s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’);
(b)in addition, the Appeal Tribunal may exercise all the jurisdiction and powers of an adjudicator under the BCCMA;[2]
(c)the Appeal Tribunal may amend or substitute an order only if the adjudicator, who made the order being appealed, would have had jurisdiction to make the amended or substituted order or decision.[3]
[2]See BCCMA s 294(1).
[3]BCCMA s 294(2).
Preliminary observations
In my view, Ms Bryson’s challenge to a number of the orders appears to be premised on challenging the Adjudicator’s reasoning notwithstanding that, in substance, the Adjudicator granted the order that was sought by Ms Bryson in the Adjudication Application.
The requirements for an appeal under s 289 include that an adjudicator makes an order for the application (other than a consent order) and a person is aggrieved by the order. An appeal can only be made against an order made by the Adjudicator or the refusal to make an order sought from the Adjudicator. In my view, an appeal ground is not open where it seeks to challenge the reasons of the Adjudicator,[4] although the reasons will be relevant to identifying whether an appeal ground is based only on a question of law.
[4]See Hartley v Hartley (2022) 10 QR 791, [21].
In addition to challenging the orders made, Ms Bryson sought the following additional orders on appeal (I have anonymised the persons named as they are not parties to the proceeding and naming them is unnecessary; and I have also redacted the registration numbers in number 15):
13. A permanent injunction to the tenant, of Lot 2, [AA], not to interfere with common property gardens and the removal of her vehicle, Mazda Hatch rego: 04CAV off common property grounds.
14. Security camera attached to guttering of Lot 2, by [AA], be removed, including signage of such.
15. The owner of Lot 3, [BB] remove her two vehicles, the Toyota Hiace Van rego: [redacted] and Mazda 2 Hatchback rego: [redacted], off common property ground.
16. [BB], reimburse the sum of $330.00, for plumbing works on 24-11-2022 and invoiced to the BC for payment on 29-11-2022.
17.That the rocks and pebbles, the planting of intrusive garden shrubs, on common property, in the vicinity of Lot 2, lot 4 and Lot 5, and the occupiers movable/personal possessions, placed on common property gardens be returned to their original condition.
18. I request that a penalty be imposed on [CC], from team Body Corporate, for failing to provide the requested BC records as required under the BCM term of engagement when performing her secretarial duties and for breaching the code of conduct pursuant to Schedule 2 and sec118(1)(a)(2)(Act1997).
In my respectful view, these orders are misconceived. They are outside the scope of any orders that could be properly made by the Appeal Tribunal on this appeal. Each raises substantive matters which would need to be the subject of a separate application brought at first instance by Ms Bryson (subject to issues of jurisdiction). The orders sought are refused.
Consideration of grounds of appeal
As noted above, there are 12 grounds of appeal. These correspond with the orders sought below. At the hearing, Ms Bryson confirmed that some of the orders were ‘partially accepted’. It is convenient to address Ms Bryson’s appeal by reference to each of the orders sought at first instance.
Order 1
The order sought by Ms Bryson below (and in substance again on appeal) was: ‘That the body corporate does not block an owner the right to access copies of body corporate records’.
The Adjudicator made the following order, being Order 1 of the Decision:
The [Body Corporate] is required to accept written communications from [Ms Bryson] provided that:
I. The correspondence is addressed only to the postal or email address nominated for that purpose by the Body Corporate.
II. A maximum of one piece of written communication may be sent by [Ms Bryson] each fortnight (addressed to the secretary of the body corporate), unless there is an invitation for additional written communications.
The Adjudicator’s reasons for making Order 1 included the following:
[19] The first outcome sought by the applicant is that the body corporate does not block an owner the right to access copies of body corporate records.
[20] A body corporate and its committee must act reasonably in undertaking its functions, including in making decisions. Receiving and responding to correspondence from owners is a normal part of the administration of a body corporate. However I consider that, providing it acts reasonably in doing so, a committee is entitled to set conditions on how owners communicate with the body corporate to ensure that correspondence is handled efficiently and to minimise the resource impacts and costs. For example, committees commonly specify an address for correspondence, a primary point of contact for queries, or request communication in writing so that there is a record of the issue.
[21] In the present case it is evident from the application and attachments that the applicant has previously sent a large number of emails to the body corporate manager, and from December 2022 the applicant’s emails to the body corporate manager were blocked. Unfortunately the body corporate and body corporate manager have chosen not to make submissions regarding this application so I do not have concise information regarding the quantity and frequency of email communications from the applicant.
[22] I would point out that whether they are volunteer committee members or paid agents of the Body Corporate, the Body Corporate cannot reasonably expect the recipients of correspondence to be exposed to voluminous and repetitive requests and is entitled to impose restrictions on unreasonable and excessive communications. However this does not mean that the body corporate is entitled to refuse all correspondence from the applicant, whether by physical mail or email. Section 205 of the Act contemplates that a lot owner is entitled make a request for inspection and / or copies body corporate records and failure to allow inspection or provide copies of records is an offence carrying a maximum penalty of 20 penalty units.
(footnotes omitted, emphasis added)
Subsection 205(2) of the BCCMA provides:
Within 7 days after receiving a written request from an interested person accompanied by the fee prescribed under the regulation module applying to the scheme, the body corporate must do either or both of the following as requested by the interested person—
(a) permit the person to inspect the body corporate’s records;
(b) give the person a copy of a record kept by the body corporate.
Maximum penalty—20 penalty units.
The Adjudicator identified (at Reasons [17]) various records that must be kept by the Body Corporate.
The Adjudicator ordered that the Body Corporate is required to accept written communications from Ms Bryson but imposed the limitations set out in Order 1 of the Decision. Further, the Adjudicator imposed the limitations in circumstances where not only such orders were not sought by the Body Corporate but where neither the Body Corporate nor the Body Corporate Manager made submissions in response to Ms Bryson’s application (and the Adjudicator did not have ‘concise information regarding the quantity and frequency of email communications from [Ms Bryson]’).
In such circumstances, I am of the respectful view that Ms Bryson was denied procedural fairness or natural justice in the making of such orders. The orders made were inconsistent with the order sought by Ms Bryson. They were not sought by the Body Corporate. Further, I consider that, in the terms expressed, the Order made was inconsistent with the operation of s 205 of the BCCMA. Section 205 is expressed in mandatory terms and does not contemplate the limitations imposed on Ms Bryson by the Adjudicator’s order. It may be that it is open to an Adjudicator to make orders in circumstances where, for example, a lot owner is acting oppressively in making numerous requests for information from the Body Corporate. However, it is unnecessary to decide this issue in the present case. The fact is, as noted, no such order had been sought by the Body Corporate. In my view, the Adjudicator erred in law in making Order 1.
It follows that Order 1 should be set aside. On the basis of the findings made by the Adjudicator, I consider that the following order should be substituted pursuant to s 146(b) of the QCAT Act, and ss 294(1) and 276(1) of the BCCMA:
It is declared that the Body Corporate for Withey Street Townhouses CTS 15365 must, subject to s 205(3) of the Body Corporate and Community Management Act 1997 (Qld), within 7 days after receiving a written request from Renate Bryson under s 205(1) of the Act, accompanied by the fee prescribed under the regulation module applying to the Withey Street Townhouses Community Titles Scheme 15365, do one of the things set out in s 205(2)(a) and (b) of the Act.
Order 2
The order sought by Ms Bryson below (and in substance again on appeal) was: ‘That I receive a copy of voting paper of motion of the VOCM dated, 5 May 2022, for the engagement of a new service contractor.’
The Adjudicator made the following order being Order 2:
Within 30 days of the date of this order, the [Body Corporate] is to provide [Ms Bryson] with copies of any voting papers relating to the vote outside committee meeting dated 5 May 2022.
The Adjudicator addressed this Order at Reasons [23]–[26].
Ms Bryson alleges various errors of law in relation to this Order in paragraph [03] of the ‘QCAT Appeal Document’ attached to the Appeal Application.
In substance, Ms Bryson appears to attack the legal reasoning of the Adjudicator. In my view, the submissions are, with respect, misconceived. Ms Bryson sought a specific order and, in my view, the Adjudicator made an order that gave Ms Bryson the substantive relief sought by her (and I consider that the terms of the order made were appropriate, rather than the specific terms of the order sought by Ms Bryson).
Ms Bryson has failed to establish that the Adjudicator erred in law in failing to make the Order sought.
Order 3
The order sought by Ms Bryson below (and again on appeal) was: ‘That I receive a copy of voting paper and notice of meeting of the withdrawal of engagement of previous service contractor, Mr & Mrs Property Maintenance.’
The Adjudicator made the following order being Order 3:
Within 30 days of the date of this order, the [Body Corporate] is to provide to [Ms Bryson] copies of any documents relating to the termination of the contract with ‘Mr & Mrs Property Maintenance’.
The Adjudicator addressed this Order at Reasons [27]–[29]. As the Adjudicator observed, correctly in my view, the order sought was based on the assumption that the termination of the contractor was voted on at a general meeting, and that if such a document existed it should be provided but if no such document was in existence, it could not be provided. The order made by the Adjudicator reflected that position.
Ms Bryson says that Order 3 is ‘partially accepted’ but alleges various errors of law in relation to this Order in paragraph [04] of the ‘QCAT Appeal Document’ attached to the Appeal Application.
In my respectful view, the only contention of Ms Bryson which raises an arguable error of law was that the Adjudicator should have ordered the Body Corporate to provide any such document within 7 days of the date of the order, consistently with the requirements of s 205(2) of the BCCMA. However, I consider that, given the elapse of time, there would be no utility in substituting an order in the same terms save for specifying period of 7 days rather than 30 days. The challenge to Ground 4 is rejected.
Order 4
The order sought by Ms Bryson below was: ‘That I receive a copy of the motion of general meeting that ratified the allocations of common property to four owners/occupiers for their personal use.’
On appeal, Ms Bryson below seeks the following order: ‘To receive a copy of motion of general meeting that ratified allocations of common property to four owner [sic] and a tenant, for their personal use.’
The Adjudicator refused the Order sought.
The Adjudicator addressed this Order at Reasons [29]–[34]. The Adjudicator observed that it would appear that Ms Bryson was making an assumption that the owners of the other four lots in the Scheme had been granted exclusive use of areas of common property (other than those areas over which exclusive use was granted by the community management statement executed on 13 October 1997 concerning the use of the courtyard areas identified) and there was no further evidence of exclusive use being granted by way of resolution without dissent. Although not stated expressly, it was plain that the Adjudicator was not satisfied that there was any motion falling within the scope of Order 4.
Ms Bryson alleges various errors of law in relation to this Order in paragraphs [05] and [06] of the ‘QCAT Appeal Document’ attached to the Appeal Application. As best I understand Ms Bryson submissions, they assert that the Adjudicator erred in failing to have regard to various statutory provisions and that, amongst other matters, the Adjudicator ‘failed to make an order that owners submit a motion to a general meeting to use common property gardens as their own, requiring a resolution without dissent’. In substance, Ms Bryson appears to be seeking substantive relief in relation to what appears to be an allegation of wrongful use of areas of common property. However, the order sought was merely for provision of the relevant motion (if it existed).
Ms Bryson has failed to establish that the Adjudicator erred in law in failing to make the Order sought.
Order 5
The order sought by Ms Bryson below was: ‘That I receive a copy of voting paper motion of plumbing works on 24/11/2022 and invoiced on 29/11/2022.’
On appeal, Ms Bryson seeks the following order: ‘To receive a copy of voting paper of VOCM, of plumbing works ($330.00) on 24/11/2022 and invoiced on 29/11/2022.’
The Adjudicator made the following order, being Order 4:
Within 30 days of the date of this order, the [Body Corporate] is to provide [Ms Bryson] with copies of any documents relating to the engagement of “Newk’s Plumbing” to undertake plumbing work which was invoiced to the [Body Corporate] on 29 November 2022.
The Adjudicator addressed this Order at Reasons [35]–[38].
Ms Bryson says that Order 5 is ‘partially accepted’ but submits, amongst other matters, that the committee secretary does not have the power to take $330.00 from body corporate funds and the committee secretary should reimburse the Body Corporate the sum of $330.00 (see paragraph [07] of the ‘QCAT Appeal Document’ attached to the Appeal Application).
In my view, the submissions are, with respect, misconceived. Ms Bryson sought a specific order concerning provision of a specified document and, in my view, the Adjudicator made an order that gave Ms Bryson the substantive relief sought by her (and I consider that the terms of the order made are appropriate, rather than the specific terms of the order sought by Ms Bryson).
Ms Bryson has failed to establish that the Adjudicator erred in law in failing to make the Order sought.
Order 6
The order sought by Ms Bryson below (and in substance again on appeal) was: ‘That I receive a copy of the Work Order processed on 14/11/2022.’
The Adjudicator made the following order being Order 5:
Within 30 days of the date of this order, the [Body Corporate] is to provide to [Ms Bryson] a copy of the work order processed on 14 November 2022.
The Adjudicator addressed this Order at Reasons [39]–[40].
Ms Bryson says that Order 6 is ‘partially accepted’ but contends that the Adjudicator erred in law in his reasons for decision (see paragraph [08] of the ‘QCAT Appeal Document’ attached to the Appeal Application).
Once again, the Adjudicator made an order that gave Ms Bryson the substantive relief sought by her (and I consider that the terms of the order made were appropriate, rather than the specific terms of the order sought by Ms Bryson).
Ms Bryson has failed to establish that the Adjudicator erred in law in failing to make the Order sought.
Order 7
The order sought by Ms Bryson below (and in substance again on appeal) was: ‘That I receive a copy of voting paper motion of VOCM dated 17/10/2022, approval of quote for the sum of $715.00.’
The Adjudicator made the following order being Order 6:
Within 30 days of the date of this order, the [Body Corporate] is to provide [Ms Bryson] with copies of any documents such as notice of motion and voting papers relating to the committee decision on 17 October 2022 to engage “Garden and Yard Maintenance” to undertake mould removal work at a cost of $715.
The Adjudicator addressed this Order at Reasons [41]–[43].
Ms Bryson says that Order 7 is ‘partially accepted’ but contends that the Adjudicator erred in law in his reasons for decision (see paragraph [09] of the ‘QCAT Appeal Document’ attached to the Appeal Application).
Ms Bryson sought a specific order and, in my view, the Adjudicator made an order that gave Ms Bryson the substantive relief sought by her (and I consider that the terms of the order made appropriate, rather than the specific terms of the order sought by Ms Bryson).
Ms Bryson has failed to establish that the Adjudicator erred in law in failing to make the Order sought.
Order 8
The order sought by Ms Bryson below (and in substance again on appeal) was: ‘That I receive a copy of the voting paper motion that $156.75 be paid to [the Body Corporate Manager] to approve a quote.’
The Adjudicator made the following order being Order 7:
Within 30 days of the date of this order, the [Body Corporate] is to provide [Ms Bryson] with copies of any documents relating to the committee decision engagement pay [sic, to pay] the sum of $156.75 to the body corporate manager to approve Quote WS102202 from Garden & Yard Maintenance.
The Adjudicator addressed this Order at Reasons [44]–[46].
Ms Bryson says that Order 8 is ‘partially accepted’ but contends that the Adjudicator erred in law in his reasons for decision (see paragraph [10] of the ‘QCAT Appeal Document’ attached to the Appeal Application).
In substance, Ms Bryson appears to attack the legal reasoning of the Adjudicator. In my view, the submissions are, with respect, misconceived. Ms Bryson sought a specific order and, in my view, the Adjudicator made an order that gave Ms Bryson the substantive relief sought by her (and I consider that the terms of the order made were appropriate, rather than the specific terms of the order sought by Ms Bryson).
Ms Bryson has failed to establish that the Adjudicator erred in law in failing to make the Order sought.
Order 9
The order sought by Ms Bryson below (and in substance again on appeal) was: ‘That I receive a copy of the previous committee meeting/VOCM that were to be attached to Minutes of Committee Meeting of the 26/05/2022.’
The Adjudicator refused the Order sought.
The Adjudicator addressed this Order at Reasons [47]–[49]. The Adjudicator observed:[5]
[Ms Bryson] believes that these minutes should refer to a motion to confirm the minutes of the preceding meeting. I have reviewed these minutes and note that there is no reference to such a motion, nor is there a reference to attach minutes. On the material at hand it would therefore appear that these minutes are incomplete and I believe that the body corporate committee should ensure that an amended version of these minutes prepared and distributed to lot owners.
[5]Reasons [49].
Ms Bryson alleges various errors of law in relation to this Order in paragraph [11] of the ‘QCAT Appeal Document’ attached to the Appeal Application.
In substance, Ms Bryson appears to attack the legal reasoning of the Adjudicator. In my view, the submissions are, with respect, misconceived. The Adjudicator found no evidence of the motion sought. This is a factual matter. There was no basis for the making of the Order sought by Ms Bryson.
Ms Bryson has failed to establish that the Adjudicator erred in law in failing to make the Order sought.
Order 10
The order sought by Ms Bryson below (and in substance again on appeal) was: ‘That I receive a copy of the voting sheet of motions submitted by the four owners/occupiers to be allocated parts of common property for the personal use.’
The Adjudicator refused the Order sought.
The Adjudicator addressed this Order at Reasons [50]–[52]. On its face, Order 10 appears to be interrelated with Order 4.
Ms Bryson alleges various errors of law in relation to this Order in paragraph [12] of the ‘QCAT Appeal Document’ attached to the Appeal Application. The thrust of the submissions were that the Adjudicator ‘used his discretion to arrive at a decision that is not a just and equitable [sic] when an owner’s proprietary rights and interest in the common property is denied.’ The Order sought was ‘a copy of the voting sheet of motions submitted by the four owners/occupiers …’. I adopt my observations in relation to Order 4 at [41] and [42] above.
Ms Bryson has failed to establish that the Adjudicator erred in law in failing to make the Order sought.
Order 11
The order sought by Ms Bryson below (and in substance again on appeal) was: ‘That I receive a copy of the Form 1 notice, submitted to effect a breach.’
The Adjudicator refused the Order sought.
The Adjudicator addressed this Order at Reasons [53]–[54]. The Adjudicator stated that: ‘The material at hand does not indicate that a Form 1 exists.’
Ms Bryson alleges various errors of law in relation to this Order in paragraph [13] of the ‘QCAT Appeal Document’ attached to the Appeal Application. None of the submissions challenged the Adjudicator’s finding of fact.
Ms Bryson has failed to establish that the Adjudicator erred in law in failing to make the Order sought.
Order 12
The order sought by Ms Bryson before the Adjudicator was: ‘Requiring the BC manager to comply with the terms of their engagement and authorisation’. The reference to the ‘BC manager’ is a reference to the Body Corporate Manager engaged by the Body Corporate. The Order sought was framed in the broadest of terms.
The Adjudicator refused the Order sought.
On appeal, Ms Bryson seeks the following order:
The [Body Corporate Manager] to comply with the mandated statute, including, the terms of their engagement when performing the secretarial duties for this BC scheme.
In my view, Ms Bryson has failed to demonstrate any question of law in respect of which the Adjudicator arguably erred in refusing to make the Order sought.
First, on the face of the order sought, Ms Bryson was seeking an order directly against the Body Corporate Manager. In my view, it was not a ‘dispute’ within the meaning of s 227 of the BCCMA,[6] and the Adjudicator had no jurisdiction to make any Order in favour of Ms Bryson against the Body Corporate Manager.
[6]See also s 226.
Second, if contrary to the above view, the dispute could be characterised as one between the Body Corporate and the Body Corporate Manager (as referred to by the Adjudicator in the Reasons for Decision at [55]), the Adjudicator observed that it would be a dispute about a claimed or anticipated contractual matter about the engagement of the person as a body corporate manager and such a dispute would be required to be dealt with by the Tribunal or a specialist adjudicator by virtue of s 149B of the BCCMA. Ms Bryson has not raised any challenge to this conclusion.
Third, the apparent kernel of the complaint in relation to the Body Corporate Manager concerns the blocking Ms Bryson’s emails which is directly related to the subject matter of Order 1. I consider that, even if Order 12 could be agitated on appeal, the Body Corporate’s obligation in relation to the provision of information has been addressed in the substituted order made in respect of Order 1.
Costs
Ms Bryson seeks both the costs of the adjudication fee below and the costs of the filing fee of the Appeal Application in the appeal.
As to the adjudication fee below, s 280 of the BCCMA provides:
(1) This section applies if—
(a) the applicant for an adjudication application made a conciliation application for the same dispute; and
(b) the respondent to the adjudication application was the respondent to the conciliation application; and
(c) the commissioner ended the conciliation application under section 252K because the respondent failed, without reasonable excuse, to participate in the department conciliation.
(2) If asked by the applicant, the adjudicator may order the respondent to pay to the applicant the amount paid by the applicant under section 239(1)(c) as fees for the conciliation application and adjudication application
I have not been able to identify the evidence that s 280(1)(c) was satisfied or that Ms Bryson made a request as contemplated by s 280(2). In those circumstances, Ms Bryson has not established that the Adjudicator erred in failing to make such an order in her favour.
As to the filing costs of the Appeal Application, the Appeal Tribunal has power to award costs for a proceeding under the QCAT Act.[7]
[7]BCCMA s 294(3).
Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.[8] However, the Tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.[9] In deciding whether to award costs, the Tribunal may have regard to the factors set out in s 102(3) of the QCAT Act. Further, if the Tribunal makes an order against a respondent in a proceeding, other than a proceeding for a minor civil dispute, the Tribunal may order the respondent to pay to the applicant the amount of any prescribed fee paid by the applicant on filing the application or referral for the proceeding.[10] In circumstances where Ms Bryson challenged all 12 orders made below and succeeded in overturning only one of them (and, in addition, sought additional orders which have been refused), I consider that it is not in the interests of justice to order, nor should the Tribunal’s discretion under r 85 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) be exercised in favour of ordering, that the Body Corporate pay Ms Bryson’s filing fee on appeal.
[8]QCAT Act s 100.
[9]Ibid s 102(1).
[10]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 85.
Order
For the reasons set out above, the following orders are made:
1.The appeal is allowed in part.
2.Order 1 is set aside and the following order is substituted:
It is declared that the Body Corporate for Withey Street Townhouses CTS 15365 must, subject to s 205(3) of the Body Corporate and Community Management Act 1997 (Qld), within 7 days after receiving a written request from Renate Bryson under s 205(1) of the Act, accompanied by the fee prescribed under the regulation module applying to the Withey Street Townhouses Community Titles Scheme 15365, do one of the things set out in s 205(2)(a) and (b) of the Act.
3.The appeal is otherwise dismissed.
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