Ciriello & Ciriello v Owens, Platt & Platt

[1998] QSC 180

IN THE SUPREME COURT  

OF QUEENSLAND  No. 6181 of 1998

Brisbane

[Ciriello & Ciriello v Owens, Platt & Platt]

BETWEEN:

ANTONIO COSIMO CIRIELLO
 and LORENZA MARIA CIRIELLO

Applicants

AND:

CHRISTOPHER OWENS, the Stipendiary
Magistrate at Southport

First Respondent

AND:

ARTHUR LAWRENCE PLATT and
MARY PLATT

Second Respondent

REASONS FOR JUDGMENT - WILSON J

Judgment delivered 10 September 1998

1. The applicants are co-proprietors of lot 6 in Building Units Plan 3894 under the Building Units and Group Titles Act 1980 (“the 1980 Act”). The second respondents are co-proprietors of lots 1 - 4. The premises comprise a commercial shopping centre known as the Panitz Centre. There was a dispute between the applicants and the second respondents about an air-conditioner on the common property roof above lot 6.

2. The second respondents invoked the dispute resolution scheme contained in Part 5 of the 1980 Act.  Broadly it provides for applications for orders to be made to a referee, from whom there is an appeal to a tribunal (constituted by a magistrate).  From the tribunal there is an appeal only on questions of law to the Supreme Court.  Applications for orders may be made by a body corporate, a body corporate manager, a proprietor, a person having an estate or interest in a lot or an occupier of a lot.  Sections 75 - 94B deal with the various orders a referee may make:  these include orders for settlement of disputes, orders for rectification of complaints, and orders for the exercise, performance or failure to exercise or perform a power, etc.  They may be orders affecting common property, orders varying contributions, orders relating to the amendment or validity of bylaws, etc.

3. On 18 December 1996 the second respondents made an application for an order by the referee.  On 29 April 1997 the referee ordered the removal of an air-conditioner from the common property roof above lot 6 and the restoration of the common property as nearly as possible to its former state.  He gave the respondents to that application (the present applicants) three months within which to comply.  At the expiration of the three months there had been non-compliance

4. Division 6 of Part 5 contains provisions dealing with the effect and enforcement of orders.  If the referee declares that an order is to have effect as a decision of the body corporate, it is deemed to be a resolution passed by the body corporate in respect of the plan to which the order relates (s 111).  The Registrar of Titles must record certain orders on the registered plan (s 112).  Contravention of an order is an offence:  s 113(1) and (3).  Subsections (4) - (6) of s 113 provide:

   “(4)Proceedings for an offence under subsection (1) or (3) of contravening an order may only be taken by the applicant for the order or body corporate concerned.

(5)In proceedings under this section–

(a)the imposition of a penalty operates as a judgment under the Magistrates Courts Act 1921 against the defendant and in favour of the prosecutor for the amount of the penalty; and

(b)an order for a person to pay an amount of costs operates as a judgment for that amount under that Act against that person and in favour of the person whose costs are ordered to be paid.

(6)A penalty imposed under this section or costs referred to in subsection (5)(b) shall not be enforceable or recoverable except as provided in subsection (5).”

1. On 16 April 1998 the second respondents made a complaint under s 113(4) of the 1980 Act, and on 15 June 1998 a magistrate entered a conviction and imposed a penalty including a daily penalty, the amount of which was payable to the complainants (the present second respondents).

2. The present application seeks orders removing the magistrate’s decision into this Court and quashing it or setting it aside.

3. On 13 July 1997 the Body Corporate and Community Management Act 1997 (“the 1997 Act”) commenced to operate. It established a community titles scheme in place of the building units plans and group titles plans under the 1980 Act. The 1997 Act amended the 1980 Act by providing:

   “Limited operation of Act on commencement of Ch 8, pt 1 of BCCM Act

5A.(1)  On and from the commencement of chapter 8, part 1 of the BCCM Act[1] this Act applies only for–

[1]Chapter 8 (Savings and transitional provisions and amendments of other Acts), part 1 (Transition from 1980 Act)

(a)the operation of a specified Act; and

(b)the registration of a future 1980 Act plan under the transitional provisions of the BCCM Act; and

(c)any other matter under the transitional provisions of the BCCM Act required to be effected under this Act.

(2)       For anything not mentioned in subsection (12)(a), (b) or (c), the Acts Interpretation Act 1954, sections 19, 20 and 20A apply to this Act as if this Act had been repealed by the BCCM Act.

(3)       In this section–

“BCCM Act” means the Body Corporate and Community Management Act 1997.

“specified Act” means-

(a)the Integrated Resort Development Act 1987; or

(b)the Mixed Use Development Act 1993; or

(c)the Registration of Plans (H.S.P. (Nomineees) Pty.  Limited) Enabling Act 1980; or

(d)the Registration of Plans (Stage 2) (H.S.P. (Nominees) Pty.  Limited) Enabling Act 1984; or

(e)the Sanctuary Cove Resort Act 1985.

“transitional provisions”, of the BCCM Act, means the provisions of the BCCM Act, chapter 8, part 1".

(Underlining added)

1. The present applicants contend that the complaint was invalid as there was no offence existing as at 16 April 1998 when the complaint was made.  Further or alternatively, they contend that the daily penalty and order for the payment of penalties to the complainants were not authorised by legislation operating as at 15 June 1998 when the penalties were imposed.

2. The 1997 Act contains a new and quite different scheme for the resolution of disputes:  Chapter 6.  During submissions, it was agreed by counsel for the applicants and counsel for the second respondents that the enforcement provisions of the 1997 Act are not applicable.  Either the enforcement provisions of the 1980 Act apply or there is an omission in the legislation and, in the applicants’ submission, since the proceedings are criminal in nature, they should have the benefit of that omission.

3. Chapter 8 Part 1 (s.270-294) of the 1997 Act provided for transition from the 1980 regime.  The approach adopted is set out in s.271 as follows:

   “(1)     The approach adopted in this part is–

   (a)on the commencement of this part, community titles schemes are established in place of building units plans and group titles plans under the 1980 Act; and

(b)building units plans and group titles plans are no longer to be registered under the 1980 Act, and instead, community titles schemes are to be established under this Act.

(2)       However, the 1980 Act continues in force for -

(a)building units plans and group titles plans registered under the 1980 Act, if their registration under the 1980 Act was for a specified Act; and

(b)building units plans and group titles plans registered after the commencement, if their registration is for a specified Act; and

(c)the registration of building units plans and group titles plans lodged for registration before the commencement, or within a limited time after the commencement, except that, once registered, community titles schemes are established in place of building units plans and group titles plans.”

1. The Panitz Centre was an existing 1980 Act plan.  With respect to such plan s.276 provides:

   “(1)     On the commencement, a community titles scheme (the “new scheme”)  is established for the existing plan.

(2)       The new scheme is a basic scheme.

(3)       Each lot in the existing plan becomes a lot included in the new scheme.

(4)The scheme land for the new scheme is all the land included in the parcel for the existing plan.

(5)Each item of additional common property under the 1980 Act, part 2, division 2 for the existing plan (other than an item of additional common property acquired as freehold land and incorporated into the parcel for the existing plan) becomes a body corporate asset for the new scheme, and an exclusive use by-law applying to the item and having continued effect under this part is taken to apply to the item as a body corporate asset.

(6)The body corporate under the 1980 Act for the existing plan is taken to be, without change to its corporate identity, the body corporate for the new scheme.

...”

1. Section 292 provides:-

   “(1)This section applies if, before the commencement, an application was made to a referee under the 1980 Act, part 5 for the purpose of an existing 1980 Act plan.

(2)The 1980 Act, part 5 continues to apply for the completion of all matters relating to the application.

(3)An order made under a provision of the 1980 Act, part 5 has effect for the new scheme established for the existing 1980 Act plan.”

(Underlining added)

1. Thus the question is whether the enforcement of an order by prosecution for an offence is a matter relating to the application for the order:  s 292(2).  Counsel for the applicants submitted that in the circumstances the application and all matters relating to it were completed at the time of the order by the referee.  He conceded that where there is an appeal, such matters would be completed at the end of the appeal process.  Counsel for the respondent submitted that the enforcement of an order is a matter relating to the application.

2. There is no warrant for including proceedings on appeal as a matter relating to an application for an order, but not including proceedings for enforcement of the order. “Matter” is not used in the technical sense in which it is used in s 241 of the Supreme Court Act 1995 (formerly s 1 of the Judicature Act 1876).  “All matters relating to the application” means all aspects of the application for an order by the referee and all circumstances surrounding it.  It includes the procedures adopted by the referee, the making of orders by the referee, any appeal against those orders (to the tribunal or to the Supreme Court), and the enforcement of those orders.

3. The magistrate was correct in entering a conviction for an offence under s 113 and in imposing a penalty under that section.

4. Accordingly the present application is dismissed.