Gabrielli v Body Corporate for Nimolanca

[2011] QCAT 34

CITATION:		Gabrielli v Body Corporate for Nimolanca [2011] QCAT 34
PARTIES:	Mr Adrian Gabrielli Mrs Janine Maree Gabrielli
v
Body Corporate for Nimolanca CTS 13318

APPLICATION NUMBER: OCL173-10

MATTER TYPE: Other civil dispute matters

HEARING DATE: Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe, Member

DELIVERED ON: 28 January 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

Leave for Thomas Graeme Penny to be added as a party to the proceeding is refused. Mr Penny may file in the registry and serve on the other parties any material by 4.00 pm on 7 February 2011. The applicant will file any material in reply by 4.00 pm on 14 February 2011. The application will be determined on the papers.

CATCHWORDS : 

JOINDER OF PARTIES – bodies corporate – where application for lot adjustment – where owner applied to be joined as a party to the proceeding

Body Corporate and Community Management Act 1997 s 48(2)

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mr and Mrs Gabrielli filed an application for an adjustment of the lot entitlement schedule for the Body Corporate for Nimolanca CTS 13318 on 3 November 2010.

2. On 9 December 2010, Mr Penny filed an application for leave to be added as a party to the proceeding.  There are 10 lots in the body corporate.  Mr Penny owns one; presumably Mr and Mrs Gabrielli own another.  Mr Penny says that Mrs Gabrielli is the chairperson of the body corporate committee and he wants to be joined to the proceedings to ensure that the interests of all owners are objectively represented before the tribunal.

3. Section 48(2) of the Body Corporate and Community Management Act 1997 provides that despite any other law or statutory instrument, the respondent to an application mentioned in subsection (1) is the body corporate.

4. Although, by its terms, section 48(2) does not preclude an owner being joined as a party to the proceeding, the question of representation in an application of this nature has already been determined by the Commercial and Consumer Tribunal: the proper interpretation of section 48(2) is that the sole respondent to an application such as the one in this proceeding is the relevant body corporate.[1]

   [1] McKinnon, McKinnon, Warat, Travers and Travers v Body Corporate for Northbridge CTS 25815 [2008] CCT Kl007-08 at paragraph 33.

5. Mr Penny has not produced any argument that would persuade me to depart from Mr Dorney’s reasoning.  I have given him an opportunity to make submissions to the tribunal.  I am confident that the member who determines this application will give those submissions appropriate consideration.

6. The directions are:

a)Leave for Thomas Graeme Penny to be added as a party to the proceeding is refused.

b)Mr Penny may file in the registry and serve on the other parties any material by 4.00 pm on 7 February 2011.

c)The applicant will file any material in reply by 4.00 pm on 14 February 2011.

d)The application will be determined on the papers.