Forster v Body Corporate for 2nd Ave - [2014] QCAT 9

CITATION:

Forster & Anor v Body Corporate for 2^nd Ave [2014] QCAT 009

PARTIES:	Mrs Helen Maree Forster and Mr Robin James (Don) Forster (Applicant)
v
Body Corporate for 2^nd Ave CTS 5755
(Respondent)

APPLICATION NUMBER:

OCL045-13

MATTER TYPE:

Other Civil Dispute

HEARING DATES:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Quinlivan

DELIVERED ON:

3 January 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.
2. The parties have leave to make any further submissions with respect to costs within 28 days.

CATCHWORDS:

Body Corporate – natural justice

Body Corporate and Community management Act (Qld) 1997

Forster v Body Corporate for Second Avenue [2010] QCAT 281

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

The applicants, Robin Forster and Helen Forster are the owners of a unit in a high-rise residential apartment building known as Second Avenue Apartments, Community Titles Scheme 5755, situated in Burleigh Heads. They seek the following orders from the Tribunal:
1. … a legal injunction should be put in place against the Body Corporate Committee for 2^nd Avenue Apartments preventing them from proceeding with the reversion process motion of 9.5.13 on the grounds of NATURAL JUSTICE DENIED to 50 other unit owners.
2. … a determination from QCAT that in view of the procedural irregularities and denial of NATURAL JUSTICE apparent throughout the approval process, the Body Corporate committee for 2^nd Ave Apartments be directed to have the Leary Report of 2009 reviewed and made compliant with the current legislation by the inclusion of the RELATIVITY PRINCIPLE (Market Value) in the revised report
In support of their application, the applicants have provided a supporting statement dated 6 June 2013 that they assert is based “on the fact that the principles of NATURAL JUSTICE have been disregarded in the(sic) the process and decisions which have been made in this matter”.
The statement attaches a number of documents. There is a copy of a brochure from the Victorian Institute of Teaching that sets out a version of the Rules of Natural Justice, as they might apply to administrative decision makers in an educational context in Victoria.
There is an uncompleted document from Sargeantstrata titled “Notice of motion to be voted on outside Committee Meeting” – 2^nd Avenue CTS 5755 closing date: Thursday, 9 May 2013;
There are three pieces of correspondence directed to the Hon. Jarrod Bleijie, Attorney General, dated 1 October 2012, 6 August 2012 and an undated letter.
A document attached to the letter to the Attorney General ((6 August 2012) titled “2^nd Avenue Apartments CTS 5755 – Supporting Statement dated 5 July 2011” provides a synopsis aimed at having the contribution schedule lot entitlements varied to return to the pre-adjustment order entitlement as provided for under the Transitional Provisions of the 2011 Amendment. The applicant contends that this document provides details of the flawed appeal process and the absence of fairness in the appeal process.
A statement by the applicants dated 5 May 2010 that they claim provides details of the secret submission and the procedural irregularities involved in the original decision of the Commercial and Civil Tribunal (31 August 2009).
An undated document “Sargeant Strata - Re CTS 5755 Notice of objection” was also provided.
The applicants submitted to the Tribunal on 18 September 2012 that the Committee members do not dispute the facts identified by them but simply respond by saying their actions are within the law. They contend, however, that the respondent’s actions do not accord with the principles of natural justice or the maxim that justice “must be seen to be done”. They point out that theirs is a genuine application and that they are defending their right to seek justice. They deny that their submission is unmeritorious, vexatious, frivolous or an abuse of process.
The respondents are the Body Corporate for 2^nd Avenue CTS 5755. They have produced a very detailed submission in an attempt to address the matters raised by the applicants. They seek to have the application dismissed or struck out and an order for costs against the applicants.
The respondents contend that at all times they have acted within the spirit and intent of the Body Corporate and Community management Act (Qld) 1997.
The respondents provided submissions (5 September 2013) in which they outline some of the background to this dispute. They say that in April 2013 the Committee of the Body Corporate received a formal request from a unit owner to revert the contribution schedule lot entitlements and commence the process under the amendments to the BCCM Act. All lot owners were notified of the formal request and were invited to make submissions in relation to the proposed reversion. Eight submissions were received including two submissions from one of the current applicants.
At the beginning of July 2013 the Committee acting on legal advice, determined that the submissions did not comply with the provisions of the legislation and as a result the Committee agreed to revert the CSLE as ordered by the Commercial and Civil Tribunal on 16 October 2009. The respondents notified all owners of the decision on or about 8 July 2013.
The respondents say that the effect of the decision was that the CLSE were to be adjusted to reflect the 2009 CCT decision incorporating the just and equitable principle as outlined in the BCCM Act[1]. They submit that they are required to progress an adjustment of CLSE via the prescribed process laid out in the BCCM Act.
[1] Section 46(7)(a).
The respondents acknowledge that the applicants may have mistakenly followed the wrong procedure by apparently proceeding under the provisions of section 412(1)(b) of the BCCM Act when they might have applied for an order under section 413.
The respondents argue that the applicant’s submissions do not address any of the relevant amendments in the BCCM Act and therefore they have no grounds to argue that the lot entitlements should not go back to the 2009 CCT decision.
With respect the allegations by the applicants that there has been a failure to provide natural justice, the respondents assert that they gave all lot owners the appropriate notice of the proposed decision and in fact received multiple submissions in response. They note that none of the submissions addressed the relevant sections of the BCCM Act.
Further the respondents contend that they complied with their statutory obligations. They also argue that references by the applicants to the 2009 CCT decision being “illegal” and “unfair” are inappropriate because they amount to an attempt by the applicants to raise again an argument that has already been heard and decided[2].
[2] Forster v Body Corporate for Second Avenue [2010] QCAT 281.

The outcome?

In proceedings such as these, the onus is on the applicants to establish their case. The applicants have raised issues of natural justice, bias, detachment, conflict of interest, procedural irregularities, secrecy and commissions. These are all very serious matters but the applicants have failed to articulate their claims effectively.
The applicants purport to act on behalf of 50 other unit owners but they provide no evidence to support that claim.
The respondents have replied by contending that they have simply acted in accordance with the provisions of the BCCM Act.
The difficulty for the Tribunal is that the material provided by the applicants appears to be based solely on their own opinions as to the matters they have raised. The Tribunal has carefully considered all of the material and finds that it is vague, contains unsupported statements and lacks specific detail and context. The attachments to the application are largely irrelevant, dated, repetitious and self-serving. As strongly pointed out by the respondents the applicants have not made any reference to the relevant provisions of the BCCM Act.
The applicants have provided no information that would convince the Tribunal to grant the relief that they seek. Therefore the application is dismissed.
The respondents, in their submissions dated 5 September 2013, have sought an order for costs. In order to ensure procedural fairness to the applicants, the Tribunal grants leave to the parties to make any further submissions relating to the issue of costs within 28 days.