Douglas v Pegasus Equity Pty Ltd as Trustee

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CITATION: Douglas  v Pegasus Equity Pty Ltd as Trustee [2015] QCATA 184
PARTIES: Alex & Gail Douglas as Trustee for Kingfisher Super Fund
(Appellant)
V
Pegasus Equity Pty Ltd as Trustee for Pegasus Property Trust
(Respondent)
APPLICATION NUMBER: APL166-15
MATTER TYPE: Appeals
HEARING DATE: 4 November 2015
HEARD AT: Brisbane
DECISION OF: Senior Member Stilgoe OAM
Member Hughes
DELIVERED ON: 16 November 2015
DELIVERED AT: Brisbane
ORDERS MADE:

1.    The appeal is dismissed.

2.    Alex & Gail Douglas will file submissions on costs by 30 November 2015; and

3.    The Tribunal will determine the issue of costs on the basis of the material filed and without an oral hearing not before 1 December 2015.

CATCHWORDS:

APPEAL – BODY CORPORATE AND COMMUNITY MANAGEMENT – STANDING - NATURAL JUSTICE - whether standing to appeal – whether appellant ‘aggrieved by the order’ – whether appellant as individual lot owner affected over and beyond other lot owners - where appellant’s lot not adjacent to nor affected by awnings – whether body corporate had obligation to maintain common property – whether improvements made by lot owner - where findings open on evidence - whether orders ‘just and equitable’ – where orders went further than those sought and do not reflect conclusion from evidence – where Tribunal unable to change orders because appellant did not have standing - whether reasons adequate – where reasons set out grounds for findings - whether requirements of natural justice met – where matter of statutory construction – where Adjudicator allowed Appellant to make submissions consistent with objects of Act and nature and demands of low cost jurisdiction   

Body Corporate and Community Management Act 1997 (Qld), ss 4, 36, 269, 271, 289
Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld), ss 157, 162
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Brisbane City Council v Valuer General of Queensland (1978) 140 CLR 41
Drew v Bundaberg Regional Council [2011] QCA 359
Edwards (Inspector of Taxes) v Bairstow & Anor [1955] 3 All ER 48
Fox v Percy (2003) 214 CLR 118
Hurley & Anor v Body Corporate for Chelsea Coolum Beach [2011] QCATA 067
Kioa v West (1985) 62 ALR 321
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 QdR 41
Slater v Wilkes [2012] QCATA 12
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Surace v Rita Commisso Enterprises Pty Ltd & Anor [2011] QCATA 271
Waterford v The Commonwealth (1987) 163 CLR 54

APPEARANCES:               

APPELLANT:  Mr Alex Douglas appeared in person

RESPONDENT:                 Ms Rachel De Luchi of Robinson Locke Litigation Lawyers appeared for Pegasus Equity Pty Ltd as Trustee for Pegasus Property Trust

REASONS FOR DECISION

What is this appeal about?

  1. On 27 February 2015, an Adjudicator ordered the Body Corporate of Stanley Point CTS 32639 to engage a contractor to cover exterior awnings to protect lot 4 from weather and prevent the ingress of rainwater into the lot. The learned…

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Details
Case
[2015] QCATA 184
Decision Date

CaseChat Overview and Summary

Alex and Gail Douglas appealed against a decision of the Civil and Administrative Tribunal which dismissed their appeal against a decision of the body corporate of a strata scheme. The appellants, who own Lot 1 of a strata scheme, objected to the construction of awnings on other lots and sought orders under the Strata Schemes Management Act 1996 (NSW) to have the awnings removed. The body corporate found that the appellants did not have standing to appeal, that the awnings were not in breach of the strata plan and that there was no requirement to remove them. The appellants appealed to the Tribunal which found that they had standing, but dismissed their appeal on the merits. The appellants then appealed to the Supreme Court.

The legal issues in the case were whether the appellants had standing to appeal, whether the findings of the Tribunal were open on the evidence, whether the orders made by the Tribunal were just and equitable, and whether the requirements of natural justice were met. The appellants argued that they had standing as they were affected over and beyond other lot owners, and that the Tribunal erred in finding that the awnings did not breach the strata plan and in making orders that went further than those sought. The respondents argued that the appellants did not have standing, that the findings of the Tribunal were open on the evidence, and that the orders were just and equitable and did not breach natural justice.

The Court held that the appellants did not have standing to appeal as they were not affected over and beyond other lot owners, and their lot was not adjacent to or affected by the awnings. The Court found that the appellants' submissions did not establish that they had a separate interest in the dispute, and that their concern was with the general management of the scheme rather than their individual lot. The Court also found that the findings of the Tribunal were open on the evidence, and that the orders were just and equitable and did not breach natural justice. The Court held that the Adjudicator allowed the appellants to make submissions consistent with the objects of the Act and the nature and demands of the low cost jurisdiction.

The appeal was dismissed, and the appellants were ordered to file submissions on costs by a specified date. The Tribunal was ordered to determine the issue of costs on the basis of the material filed and without an oral hearing.

Orders

Orders of the court

1. The appeal is dismissed.

2. Alex & Gail Douglas will file submissions on costs by 30 November 2015; and

3. The Tribunal will determine the issue of costs on the basis of the material filed and without an oral hearing not before 1 December 2015.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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