Clemens v Henville

[2003] QCA 215

[2003] QCA 215

COURT OF APPEAL

McMURDO P

Appeal No 10486 of 2001

WILLIAM CLEMENS	Applicant/Appellant
and
GEOFFREY CHARLES HENVILLE	Respondent/Respondent
and
SYLVIA TRANKALIS	Respondent/Respondent
BRISBANE ..DATE 23/05/2003
ORDER

THE PRESIDENT: This is an application for leave to appeal

from an order of a District Court Judge confirming the order

of an adjudicator under the Body Corporate and Community

Management Act 1997 (Qld). The order appealed from was

delivered on 25 October 2001 and confirmed the order of the	10
proper authorisation to the co-owners of Lot 61 "Edgewater
adjudicator in each case determining that there had been no property.
20
The application for leave to appeal was filed on 22 November
2001. The matter was placed in abeyance by the consent of all
parties pending the determination of a related matter in the
District Court. That matter was heard on the 11th of April
2002 but judgment was not delivered until 21 March 2003. The	30
District Court Judge who heard that appeal dismissed the
appeal and also confirmed the order of the adjudicator, a
decision favouring the respondents in this application. There
has been no application for leave to appeal from the decision
delivered on the 21st of March 2003.	40
The second respondent, Ms Trankalis, who appears for herself,
was, she says, expecting the applicant to withdraw the
application for leave to appeal if it was unsuccessful in the
more recent related District Court decision. If that is so,	50
she is understandably distressed that the applicant has now indicated he intends to pursue this application for leave to appeal. She asks that the application for leave to appeal be struck out.

2 ORDER 60

At an earlier mention of this matter the issue arose as to whether either respondent to this application for leave to appeal had ever been properly served under the Rules.

Material now filed, and I note filed late and not in	10
compliance with my orders at the last mention, indicates that
Ms Trankalis was not served in this appeal until the 10th of
March 2002. Under the Rules, service should have been
effected within a reasonable time and as soon as practicable.
The applicant now asks for an extension of the time for	20
service under the Rules and says that in any case Ms Trankalis has waived her right to object to the non-compliance for service because of her agreement for the matter to go into abeyance.
30
Ms Trankalis at the prior mention of this matter did raise
with me that she had not been served and she has raised the
issue of service in the past with the solicitors for the
applicant. Ms Trankalis first became aware that there was an
application for leave to appeal on the 14th of January 2002	40
when she made inquiries at the Appeal Court Registry and
purchased copies of documents. She has represented herself in
this matter and is not a lawyer. She did not know that she
could take objection to the non-compliance with the Rules and
she informs me today that had she known that she could have	50
relied on the non-compliance she would have applied to strike out the application earlier and would not have agreed to the matter being placed on the abeyance list.

3 ORDER 60

In all those circumstances I am not persuaded that her reluctant involvement in this matter should be treated as a waiver of the Rules or that the applicant should be given an extension of time for service.

10

In the matter of the first respondent, Geoffrey Charles

Henville, it seems that he has sold his interests in the

Edgewater Garden complex because of tension resulting from

this litigation and moved elsewhere. He has not been served

with this application and he understandably has no desire to	20
be a respondent in this matter. He has asked that his name be removed from this appeal and indeed the applicant supports that application.
In all the circumstances and after reviewing the history of	30
this matter, I am persuaded that non-compliance with the Rules in terms of service warrants the striking out of this application for leave to appeal with costs to be assessed and that is the order of the Court.
40

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50

4 ORDER 60