Duffy v Body Corporate for Park Square - [2025] QCATA 22

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Duffy v Body Corporate for Park Square [2025] QCATA 22

PARTIES:

MARIA ROSA ARCURI DE DUFFY

(appellant)

v

THE BODY CORPORATE FOR PARK SQUARE

(respondent)

APPLICATION NO/S:

APL029-23

MATTER TYPE:

Appeals

DELIVERED ON:

27 February 2025

HEARING DATE:

20 January 2025

HEARD AT:

Brisbane

DECISION OF:

Member Roney KC

ORDERS:

1. The appeal is dismissed.

2. I grant liberty to apply in respect of the costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where s 289(2) of the Body Corporate Community Management Act 1997 (Qld) allows a person aggrieved by an Adjudicator’s order to appeal on a question of law to the Queensland Civil and Administrative Tribunal – what is error of law – whether there was an error of law in ordering an application be dismissed as vexatious, misconceived and without substance

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES –

BODY CORPORATE AND COMMUNITY MANAGEMENT – Adjudicator’s investigation – extent of obligation to investigate matter – whether failed properly to investigate or make enquiries of a party

Body Corporate Community Management Act 1997 (Qld), s 269, s 270(1)(c), s 276, s 289, s 290
Justice and Other Legislation (COVID-19 Emergency Response) Amendment Act 2020 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146

Australian Postal Corporation v D'Rozario (2014) 222 FCR 303
Body Corporate for Grand Pacific Resort v Cox [2012] QCATA 14
Enfield City Corporation v Development Assessment commission (2000) 199 CLR 135
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Hablethwaite v Andrijevic [2005] QCA 336
Kioa v West (1985) 159 CLR 550
Kranjcic & Anor v Payyappilly [2014] QCATA 324

Park Square [2023] QBCCMCmr 7

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION
Background

The appellant is the owner of Lot 16 in a development called Park Square, which was established in September 2002. It comprises 16 lots in seven 2-storey buildings, in a building format plan of subdivision.
The appellant brought an application before the Office of the Commissioner for Body Corporate and Community Management alleging that the respondent body corporate had acted improperly in a multiplicity of ways including in ways that went to the validity of the 2021 AGM, responsibility for maintenance (fence and gate repairs, pest control, utility infrastructure), sinking fund contributions, expenditure on legal fees, the adequacy of the scheme’s insurance and alleged breaches of parking by-laws.
Section 270(1)(c) of the Body Corporate Community Management Act 1997 (Qld) (‘the BCCM Act’) provides an Adjudicator with the power to dismiss an application if satisfied that the application is frivolous, vexatious, misconceived or without substance. Where such an application is dismissed on that basis, an Adjudicator can award costs incurred by a respondent in defending the application up…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] QCATA 22
Decision Date: 27 February 2025

CaseChat Overview and Summary

The appeal before the court involved the respondent, Body Corporate for Park Square, and the appellant, Mr. Duffy. The dispute originated from an Adjudicator's order under the Body Corporate and Community Management Act 1997 (Qld). The appellant contested the Adjudicator's decision to dismiss his application as vexatious, misconceived, and without substance. The Queensland Civil and Administrative Tribunal was the appellate body tasked with reviewing the Adjudicator's decision.

The primary legal issue before the court was whether the Adjudicator erred in law by dismissing the appellant's application. Specifically, the court had to determine the nature and scope of the error of law required for an appeal under section 289(2) of the Act. The appellant argued that the Adjudicator failed to properly investigate his application, which constituted an error of law warranting an appeal. The court considered whether the Adjudicator's decision to dismiss the application was flawed due to inadequate investigation.

The tribunal found that the Adjudicator did not err in law by dismissing the appellant's application. The court concluded that the Adjudicator had a reasonable basis for concluding that the application was vexatious, misconceived, and without substance. The tribunal did not find any procedural error or failure to adequately investigate on the part of the Adjudicator that would constitute an error of law. Consequently, the appeal was dismissed, and the tribunal granted liberty to apply regarding the costs of the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. I grant liberty to apply in respect of the costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Duffy v Body Corporate for Park Square [2025] QCATA 22
PARTIES:	MARIA ROSA ARCURI DE DUFFY (appellant)
v
THE BODY CORPORATE FOR PARK SQUARE (respondent)
APPLICATION NO/S:	APL029-23
MATTER TYPE:	Appeals
DELIVERED ON:	27 February 2025
HEARING DATE:	20 January 2025
HEARD AT:	Brisbane
DECISION OF:	Member Roney KC
ORDERS:	1. The appeal is dismissed. 2. I grant liberty to apply in respect of the costs of the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where s 289(2) of the Body Corporate Community Management Act 1997 (Qld) allows a person aggrieved by an Adjudicator’s order to appeal on a question of law to the Queensland Civil and Administrative Tribunal – what is error of law – whether there was an error of law in ordering an application be dismissed as vexatious, misconceived and without substance APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – BODY CORPORATE AND COMMUNITY MANAGEMENT – Adjudicator’s investigation – extent of obligation to investigate matter – whether failed properly to investigate or make enquiries of a party Body Corporate Community Management Act 1997 (Qld), s 269, s 270(1)(c), s 276, s 289, s 290 Justice and Other Legislation (COVID-19 Emergency Response) Amendment Act 2020 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146 Australian Postal Corporation v D'Rozario (2014) 222 FCR 303 Body Corporate for Grand Pacific Resort v Cox [2012] QCATA 14 Enfield City Corporation v Development Assessment commission (2000) 199 CLR 135 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Hablethwaite v Andrijevic [2005] QCA 336 Kioa v West (1985) 159 CLR 550 Kranjcic & Anor v Payyappilly [2014] QCATA 324 Park Square [2023] QBCCMCmr 7
APPEARANCES & REPRESENTATION:		This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)