Hegyesi v Body Corporate for Aloha - [2024] QCATA 76

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hegyesi v Body Corporate for Aloha [2024] QCATA 76

PARTIES:

ISTVAN HEGYESI

(applicant/appellant)

v

BODY CORPORATE FOR ALOHA CTS 11451

(respondent)

APPLICATION NO/S:

APL192-22

ORIGINATING APPLICATION NO/S:

0199-2022

MATTER TYPE:

Appeals

DELIVERED ON:

12 July 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

1. The appeal is dismissed.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – body corporate and community management – where adjudicator ordered appellant to return property of the respondent – whether denial of procedural fairness – whether adjudicator had jurisdiction to make the order – whether time bar to respondent’s application – whether equitable estoppel – whether error of law in findings of fact

Body Corporate and Community Management Act 1997 (Qld), s 149B, s 224, s 229, s 289

Limitation of Actions Act 1974 (Qld), s 12

Aloha [2022] QBCCMCmr 189
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Firmware Technologies Inc v Asia Platinum Group Ltd (2016) 50 WAR 453
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319
Kioa v West (1985) 159 CLR 550
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1

Rowe v Stoltze (2013) 45 WAR 116

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

This is an appeal from a decision of an adjudicator pursuant to s 289 of the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’). By s 289(2) of the BCCM Act, any appeal is confined to a question of law.
The question before the adjudicator was whether, pursuant to s 224 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Qld) (‘the Regulation’), the appellant was required to comply with a body corporate request to return body corporate property; namely, master keys for scheme land. The adjudicator found that the keys were the property of the body corporate for the purposes of s 224 of the Regulation, the keys were in the possession or control of the appellant, the body corporate served the appellant with a prescribed notice in accordance with s 224(1)(c) of the Regulation (‘the prescribed notice’), and the appellant failed to comply with the statutory obligation arising in relation to the prescribed notice. Accordingly, the appellant was ordered to return the keys within seven days of the date of the order.
The grounds of appeal as set out in the submissions of the appellant may be summarised as follows:
(a)There was a denial of procedural fairness.
(b)The adjudicator did not have jurisdiction because the originating dispute is a complex dispute.
(c)There was time bar to the bringing of the application for return of the keys.
(d)An equitable estoppel arose by virtue of an agreement with the respondent.
(e)The respondent produced false and fabricated evidence.
Procedural Fairness
In relation to the alleged denial of procedural fairness, the appellant submits that he received the prescribed notice and the invitation to send a response by registered post, dated 5 May 2022, and that the given deadline for submitting his response was 22 April 2022. While the appellant acknowledges a phone call from a staff member of the Commissioner, which the adjudicator found occurred on 13 April 2022, he submits that at all times the respondent knew that registered post was required for all communications with him and that the use of email was not a valid form of communication. The phone call from the Commissioner’s office followed receipt of an automatic email response from the appellant, which stated that his email is not monitored and that registered post is required for any communication.
After noting the invitation to make submissions and that the appellant did not make any submissions, the Adjudicator states:[1]
The respondent [the present appellant] did not respond to a request to confirm receipt of the emailed notice inviting submissions. On 13 April a member of the Commissioner’s staff telephoned him, explaining what the dispute was about. He verbally advised he was too busy to check his emails. The staff member confirmed that the email address used was correct, but he also provided a second email address. The notice of the application was resent to both email addresses. Again, the respondent did not acknowledge receipt of the notice. Another staff member telephoned the respondent on 5 May. She also explained the subject matter of the dispute and referred to the emails sent. It appears the respondent claimed not to have received the emails. At the respondent’s request, a copy of the notice was posted to him by registered mail. No further communication was received from the respondent.
[1]Aloha [2022] QBCCMCmr 189, [12] (‘Aloha’).
The adjudicator further states:[2]
Although the respondent has not made a submission, and he has not acknowledged receipt of the notice of the application, I am satisfied that he is on notice of the application. He has not sought further time to make a submission on the application or otherwise attempted to respond to the application.
[2]Aloha (n 1) [15].
Procedural fairness is a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.[3] It includes a requirement, as in the present case, to enable a party to provide material and/or submissions relevant to a matter that directly impacts their rights. However, as noted in Firmware Technologies Inc v Asia Platinum Group Ltd,[4] the rules of procedural fairness do not give an absolute right to a party to adduce evidence when it has failed to take account of that opportunity in accordance with procedural directions made. Also, as noted in Rowe v Stoltze,[5] procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend on the particular circumstances. What is required is that each party be given a reasonable opportunity to be heard and that is to be judged not only with reference to the interests of the parties, but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of a court or tribunal.[6]
[3]Kioa v West (1985) 159 CLR 550, 585.
[4](2016) 50 WAR 453, [45].
[5](2013) 45 WAR 116, [51], citing Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1, [37].
[6](2013) 45 WAR 116, [51], citing International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, [54], [88], [141] and Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
While the appellant states that the ‘subject matter of a dispute’ was not explained over the phone, he does not deny the fact of that communication. Also, he does not deny the giving of a second email address, which might in itself suggest a readiness to receive communication by email. Further, he does not say that he did not receive or read the emails, only that in the phone conversation he ‘did not confirm receipt’ and that he required communication by registered mail. Even if he did not read the emails, the appellant knew of the attempts at email communication by the Commissioner’s staff and yet, whether in the course of the admitted phone conversation or otherwise, made no attempt to enquire as to their content. It is evident that the appellant sought to avoid the prescribed notice and the invitation to send a response, insisting instead on being notified by registered post. Also, when that was received, he made no attempt to seek an extension of time so that a response might be made.
In those circumstances there has been no denial of procedural fairness and the first ground of appeal is rejected.[7]
[7]The respondent also submits that pursuant to the BCCM Act a person submitting an adjudication application must provide the responding person’s address and the address for service is the address recorded in the records of the body corporate. Further, by s 206 of the Regulation if the service address includes an email address the owner of the lot is taken to have consented to be served by email. It is then submitted that the service address for the appellant included his email address. It is then stated: ‘The respondent can provide the relevant page of its roll if required’. It is evident that it was not before the adjudicator and has not been taken into account in the present decision.
Complex dispute
The appellant asserts that the adjudicator did not have jurisdiction as the present matter is a ‘complex dispute’, so that by s 229(2) of the BCCM Act resolution of the dispute must be by order of one of the specified entities, which does not include the present adjudicator. A ‘complex dispute’ is defined in the Schedule to the BCCM Act as:
(a)a matter for which an application mentioned in section 47AA(3)(a), 47B(3)(a), 48(1)(a), 81G, 385(8)(a), 387(6)(a), 405(2)(a) or 412(2)(a) is, or may be, made; or
(b)a dispute mentioned in section 133, 149A, 149B or 178.
The appellant relies upon s 149B, which is headed ‘Specialist adjudication or QCAT jurisdiction’ and which provides:
(1) This section applies to a dispute about a claimed or anticipated contractual matter about—
(a) the engagement of a person as a body corporate manager or caretaking service contractor for a community titles scheme; or
(b) the authorisation of a person as a letting agent for a community titles scheme.
(2) A party to the dispute may apply—
(a) under chapter 6, for an order of a specialist adjudicator to resolve the dispute; or
(b) as provided under the QCAT Act, for an order of QCAT exercising the tribunal’s original jurisdiction to resolve the dispute
The appellant submits that the respondent was seeking to claim property that was subject to a past contractual matter, involving authorisation to use the keys of a prior letting agent and/or caretaking service contractor.
The short answer is that the present matter is not a dispute in relation to a contractual matter about the engagement of a body corporate manager or caretaking service contractor or the authorisation of a person as a letting agent. It is not a contractual dispute at all. The appellant purchased the lot in question from the former owner, which previously had been the caretaking and letting agent for the scheme. That agreement had expired some 5 years prior to the purchase of the lot by the appellant. The appellant was not a party to any such agreement. While the appellant refers to the caretaking and letting agreement as having expired some eight years ago, he does not explain why it is necessary to have reference to that agreement to determine the present questions as to property and possession.
In terms of s 224 of the Regulation, the present question is whether the keys are the respondent’s property and whether they are in the appellant’s possession. Though the appellant states that he disagrees with the findings of the adjudicator as to the ownership and possession of the master keys, he does not say that he does not have the keys or explain why they are not the property of the respondent.
The adjudicator found that the keys are the property of the body corporate and that the appellant is in possession of them and it is not submitted that there was an absence of any evidence in that regard or that the finding was legally unreasonable. There is no error of law. This ground of appeal also is rejected.
Time bar to bringing application
The appellant refers to s 12 of the Limitation of Actions Act 1974 (Qld), which is headed ‘Actions in cases of successive conversions and extinction of title of owners of converted goods’ and provides a limitation period of six years in relation to causes of action in respect of the conversion or wrongful detention of a chattel, where a further conversion of wrongful detention takes place.
Leaving to one side the applicability of s 12 in the present case, the adjudicator found that the appellant took over the lot in question, and hence the keys, in 2019. This is not disputed by the appellant. Accordingly, any six year limitation period has not expired and this ground of appeal is rejected.
Equitable estoppel
The applicant’s submission on this ground is headed ‘equitable estoppel’. It refers to three separate communications sent in 2021 and 2022 by the appellant to the respondent and others, in relation to which it is said that there was no reply. It seems that the submission of the appellant is that because the respondent was given three opportunities ‘to prove their claims’, which opportunities it is said were not taken, there was a ‘default agreement’ between the parties.
However, in those circumstances there is no agreement between the parties or promise made by the respondent such that might give rise to an estoppel. This ground of appeal is rejected.
Evidence
The final ground of appeal is that the respondent made misleading submissions and brought false and fabricated evidence. There are also allegations of misrepresentation, of making false allegations against the appellant and of defamation. The allegations are extensive and occupy several pages of the submissions. It is difficult to relate the allegations to the issues before the adjudicator, other than the general assertion that the evidence of the respondent was false. In making findings of fact in relation to the central issues in this matter, the adjudicator accepted the evidence of the respondent. On the available material, it was open to the adjudicator to do so. No error of law arises and this ground of appeal also is rejected.
The appeal is dismissed.