Gavin v Lakehills Body Corporate

[2011] QCAT 657

CITATION: Gavin v Lakehills Body Corporate [2011] QCAT 657

PARTIES:	Mr Paul Gavin
v
Lakehills Body Corporate

APPLICATION NUMBER:   OCL122-11  

MATTER TYPE: Other civil dispute matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Kerrie O'Callaghan, Senior Member

DELIVERED ON: 2 November 2011

DELIVERED AT:      Brisbane

ORDERS MADE: Leave is granted for the respondent to be legally represented in the proceedings.

CATCHWORDS:

Legal representation – complex legal issues

Queensland Civil and Administrative Tribunal 2009, s 43

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. The respondent in this matter (the Body Corporate) made application for legal representation in the proceedings.  Submissions were filed by both parties and on 2 November 2011 I ordered that leave was granted for the respondent to be legally represented in the proceedings.  The applicant has sought reasons for that decision.

1. The starting point in any application for legal representation in QCAT is section 43 of the QCAT Act. It provides that the main purpose of the section is to have parties represent themselves unless the interests of justice require otherwise.

1. Subsection (3) sets out criteria that the Tribunal may consider when considering whether leave should be granted.  One of the criteria is that “the proceeding is likely to involve complex questions of fact or law”.

1. This application is an application made under section 395(8)(b) of the Body Corporate and Community Management Act 1997 (BCCM Act).  The application is based on amendments to the lot entitlement provisions of the Act which came into effect in April 2011.

1. The lot entitlement adjustment procedures were extensively amended in the new legislation.

1. The Body Corporate in its application for legal representation submit that complex issues need to be determined by the Tribunal under section 384 of the Act namely:

(1)whether the scheme has been affected by a material change that happened after the pre-adjustment order entitlements for the scheme were decided: and if so

(2)how the change entitlements for the scheme must take account of the material change; and

(3)based on the Tribunal’s findings whether the Committee motion of 19 August 2011 was reasonable in the circumstances.

1. The Body Corporate point out that in order to decide if the material change has affected the scheme the Tribunal must identify whether any alleged change at the scheme is a “material change” as defined by the Act.

1. They say that there is no judicial guidance or Tribunal decision in determination of this issue and how the material change should be accounted for and as such the Tribunal will be dependant upon submissions of the parties in this regard.

1. Mr Gavin opposes any order for legal representation and in his submissions says that the application is not complex and that there has been some determination of the issue of what is meant by material change by an Adjudicator appointed under the BCCM Act.

[10]  The Body Corporate also submits that not only does the application involve a complex question of law but that the issues in these proceedings are novel as there has been no decision dealing with the application of these provisions.  They further submit that any determination involving these issues may have the potential to affect several community title schemes who are in the process of changing lot entitlements.

[11]  I accept that the issue to be determined in this application is novel and complex and does have the potential to affect other title schemes.

[12]  For those reasons I considered that it was in the interests of justice to permit legal representation in the proceedings.