Daish v Body Corporate for Birchgrove CTS 100
[2013] QCATA 13
•16 January 2013 Amended on 26 February 2013.
| CITATION: | Daish v Body Corporate for Birchgrove CTS 100 [2013] QCATA 13 |
| PARTIES: | Alistair Daish (Applicant/Appellant) |
| v | |
| Body Corporate for Birchgrove CTS 100 (Respondent) |
| APPLICATION NUMBER: | APL268-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 16 January 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 16 January 2013 Amended on 26 February 2013. |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Appeal dismissed. |
| CATCHWORDS: | REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – where the Appellant claimed the Body Corporate had inappropriately conducted repairs – where the Appellant claims that he was denied access to Body Corporate documents – where it was found the Body Corporate’s action appropriate – where access to documents was ordered – where the appeal is limited to questions of law – where Appellant requested the Tribunal to make order as to future conduct of the Body Corporate – whether the Tribunal should make orders as to future conduct – whether a further order regarding access to documents should be made Queensland Civil and Administrative Tribunal Act 2009, s 32 Crowbay Pty Ltd v Body Corporate for "Southbank Chambers" [2007] QCA 453 Skafola Pty Ltd v Burnitt Investments Pty Ltd [2010] QCATA 10 Union Bank of Australia Ltd v. McClintock [1922] 1 AC 240 |
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 (‘QCAT Act’).
REASONS FOR DECISION
These proceedings, initiated by Mr Alistair Daish (‘Daish’) against the Respondent Body Corporate (‘the BC’) on 10 April 2012, put three distinct matters in dispute, namely procedure for the calling of BC committee meetings, procedure for the maintenance of unit holders’ property and/or common property and access to BC records in relation thereto.
Daish alleges that the following item of maintenance were irregularly handled by the BC, and that he was wrongly denied access to BC records relating to them:
a) In or about November 2011, an occupant of Birchgrove, David Ward, told the BC’s manager that his (Ward’s) unit was affected by a water leak, apparently caused by an irrigation system located on common property. The manager called a plumber to deal with the problem, and subsequently reported his action to the committee. Daish complains that the manager should have consulted the committee before he engaged the plumber, and further, that no work order was raised, and that the plumber was not licensed to do the work in question: “the Ward repairs”.
b) In a second case, a Mr Geyer, owner of Unit 3, reported a damaged sliding door. Once again the manager, without prior approval of the committee, arranged for repairs to be made at the expense of the BC. Daish says that the bill was Geyer’s responsibility: “the glass door repairs”.
c) In a third case, the manager ordered repairs to a ceiling in Unit 3. Although the manager said that he would refer the account to the BC’s insurers, there is no record of any relevant committee resolution: “Geyer’s ceiling”.
d) Fourth, Daish says that the committee voted informally to ratify a charge of $176 for repairs to the irrigation system, when its approval, if any, should have been prospective: “the extra Ward repairs”.
The matter came before Adjudicator Miskinis on 25 July 2012, when, so far as is now material, Daish sought access to the relevant records, and the relief set out at length in paragraph [4] of the Adjudicator’s reasons for decision, including orders for prior committee approval of expenditure on Geyer’s glass door, for a ban on approval of repairs by the BC’s manager, and for suspension of payment for the plumbing work in Ward’s unit, and to the adjacent irrigation system.
In the event the learned Adjudicator declared that the BC ‘is obliged to comply with Part 4 Division 1 of the Body Corporate and Community Management (Standard Module) Regulation [“the BCCM module”] relating to the calling of committee meetings’. However, more pertinent to this appeal is his order that:
… in accordance with section 204 of the [BCCM module] the body corporate must, if requested, make available to [Daish] any record relating to repairs to the lot 3 glass door, repairs to the lot 3 ceiling and repairs to the irrigation system.
Daish now appeals upon the broad ground that the Adjudicator:
… has not addressed the outcomes [sic] sought in relation to unauthorised maintenance ... did not take into consideration two previous conciliation agreements for the same matter ... [and] did not go far enough to deter future repeated breaches of the [BCCM module] resulting in future conciliations/adjudications.
Daish seeks orders that:
a) maintenance work or spending be approved in the manner prescribed in the BCCM module;
b) that the Adjudicator’s order be amended to provide that the BC comply with sections 203 and 204 of the BCCM module; and
c) that the BC ensure that owners seek approval before conducting works at the scheme and not rely on ratification for reimbursement of expenses.
The appeal is limited to questions of law.[1]
[1]Body Corporate and Community Management Act 1997 (“BCCM Act”) s 289(2); Crowbay Pty Ltd v Body Corporate for "Southbank Chambers" [2007] QCA 453 at [15]; Skafola Pty Ltd v Burnitt Investments Pty Ltd [2010] QCATA 10 at [12]; Bell v Body Corporate for Juanita Court CTS 3339 [2011] QCATA 94 at [6].
The Adjudicator’s decision dealt in detail with the Ward repairs, the door repairs, and Geyer’s ceiling. He observed that Birchgrove is a relatively small scheme, comprising 9 units, and indicated that in such a case, application of the ‘highly prescriptive requirements of the legislation’ could reasonably be more flexible than in high rise schemes involving many more units, and correspondingly impersonal relationships among owners, committee members and managers. He noted, without comment, that the BC described Daish as given to ‘vexatious’ and ‘nit-picking’ queries and complaints.
The Ward Repairs - Ratification
In relation to the Ward repairs, the committee claimed, and the Adjudicator accepted that it authorised the expenditure of $770, and that when it became evident that a small additional sum was needed the committee ‘quite reasonably’ ratified the expenditure of a further $176 - not a ‘significant item of expenditure’.
Glass Door Repairs
The Adjudicator found no fault in the committee’s handling of the glass door repairs. The BC’s insurer paid the bulk of the claim, the unit owner paid the excess, and the BC itself incurred no liability.[2]
[2] Decision dated 25 July 2012 (‘Decision’), at [33].
Geyer’s Ceiling
The evidence did not enable the Adjudicator to decide whether Geyer’s ceiling was primarily the responsibility of the Mr Geyer or the BC. However, it appears that, once again, the BC’s insurer paid for the repairs.[3] Repairs to some exposed electrical wiring were an emergency measure that could properly be ratified later.[4] ‘Common sense dictates that prompt action needs to be taken to remove hazards’.[5] None of the ratified expenditures exceeded the ‘relevant limit’ for committee outlays without reference to a general meeting.[6] In general, when authority to do an act exists in principle, the person or persons with that authority may exercise it by ratification.[7]
[3] Decision at [34].
[4] BCCM module s 151(1)(c).
[5] Decision at [35].
[6] BCCM module, Schedule: in this case 9 x $200 = $1,800.
[7] Union Bank of Australia Ltd v McClintock [1922] 1 AC 240 at 248; Davison v Vickery's
Motors Ltd (In Liq) (1925) 37 CLR 1 at 21; Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 at [131]; Adams, Paul Andrew v Elphinstone, Wayne [1993] TASSC 67at [15].
The Adjudicator was entitled to make those findings upon the evidence. They involve no error of law.
Orders in futuro against non-parties
There was no need to consider Daish’s demand for an order that future maintenance expenditures be approved in the manner prescribed in the BCCM module. That is already mandated in the legislation. Besides, the Tribunal’s function is to resolve existing disputes, not to make unnecessary orders about possible future events.
Similarly, it was not within the Adjudicator’s jurisdiction to order, in futuro, that owners must not rely on ratification for reimbursement of expenses. The owners (other than Daish) are not parties to these proceedings, and again, it is not the Tribunal’s function to deal with hypothetical future disputes.
It would be even less appropriate for the Tribunal to decree prospectively that ‘owners seek approval before conducting works at the scheme’. Any such order would invalidly purport to deal with a non-existent dispute, and owners (not parties to this case) might well choose to ‘conduct works’ at their own expense, without seeking reimbursement by the BC.
So far as access to BC records is concerned, the Adjudicator has made an order for access, under section 204 of the BCCM module. In so far as documents about the disputed transactions are concerned, he had no jurisdiction, under section 203 or any other part of the legislation, to order the committee to generate documents ex post facto.
I am satisfied that the Adjudicator’s declaration and order provide Mr Daish with all the relief that could be provided in this case, within the proper and lawful limits of the adjudicative function. In effect, Mr Daish asks the Tribunal to adopt a legislative role, issuing sweeping commands as to future conduct, not only to the BC, but also to persons who are not parties to the proceedings. That is a role that the Tribunal could not possibly assume, even if it ever desired to do so.
Questions of fact, or mixed fact and law, cannot be raised in this appeal. I can discern no error of law in the decision under appeal. It must be dismissed.
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