Jacqueline Clare Hieronymus v Leta Clark Realty Pty Ltd
[2014] QCATA 279
•24 September 2014
| CITATION: | Jacqueline Clare Hieronymus v Leta Clark Realty Pty Ltd [2014] QCATA 279 |
| PARTIES: | Jacqueline Clare Hieronymus (Applicant/Appellant) |
| v | |
| Leta Clark Realty Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL089-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the Papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Rogers |
| DELIVERED ON: | 24 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Appeal dismissed. 2. The decision of the Adjudicator in Grammenos Palms [2014] QBCCMCmr 19 is confirmed. |
| CATCHWORDS: | APPEAL – BODY CORPORATE DISPUTE – where decision by Adjudicator under Body Corporate and Community Management Act 1997 – where tenant indicated intention to make changes to common property – where no general meeting of the body corporate has been held – whether lot owner should be restrained from making changes. Body Corporate and Community Management Act 1997 s 289(2) |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
This appeal concerns the common property surrounding a duplex construction. The appellant, Ms Hieronymus, is the owner of Lot 1. Lot 2 is owned by Leta Clark Realty Pty Ltd, the respondent.
Leta Clark Realty applied to the Commissioner for Body Corporate and Community Management (CBCCM) for an Order to prevent the removal of a fence constructed on common property. It was granted an order prohibiting Ms Hieronymus from altering removing or damaging the fencing that is the subject of the dispute unless the body corporate, or an administrator, passes a resolution authorising the alteration of this fence.[1]
[1]Adjudicator’s Order Grammenos Palms [2014] QBCCMCmr 19 dated 22 January 2014.
The grounds for this appeal against that Order are stated by Ms Hieronymus to be
That the Adjudicator’s order:
a)Is not is the best interests of the parties
b)Denies us adequate access to common ground
c)The land in question is not being used and could be utilised by Unit 1.[2]
[2]Application to QCAT dated 20 February 2014.
This dispute arose when Ms Hieronymus approached Ms Clark, as the owner of Lot 2 to make changes to the use of the common property of the scheme. When no agreement could be reached she sought the assistance of the CBCCM on 29 April 2013. An agreement was reached at Conciliation[3] on 24 June 2013.
[3]Conciliation Certificate Ref No 0429-2013 dated 25 June 2013.
On 8 July 2013 the tenant of Lot 1 advised the tenant of Lot 2 that he intended to remove the dividing fence at the rear left side of the property ‘next week’. Ms Clark lodged an application with the CBCCM on 10 July 2013 seeking an interim and final Order
To stop him destroying Body Corporate property by altering the existing structure without agreement by the Body Corporate (or both owners of Unit 1 and Unit 2).[4]
[4]BCCM application dated 10 July 2013.
An Interim Order was granted on 22 July 2013 and the Final Order, the subject of this appeal, was made on 22 January 2014.
Section 289(2) of the Body Corporate and Community Management Act 1997 gives an aggrieved person the right to appeal but only on a question of law.
Ms Hieronymus has not identified an error of law by the Adjudicator. In paragraphs 1, 2 and 3 of her application she has merely indicated the reasons she is not satisfied with the decision. It is the responsibility of Ms Hieronymus not the appeal tribunal to identify the errors of law relied on to support her application.
In her Submissions at paragraph 4a Ms Hieronymus says the Adjudicator at paragraph 4 has misunderstood her submission and she did not want all three options, only one of them. The Adjudicator summarised the submissions made and then explained why those options could not be considered. If in fact the Adjudicator considered the options to be components of a single proposal rather than alternatives this misunderstanding did not materially impact on the decision, which was restricted to the preservation of the fence.
Further Ms Hieronymus states her husband built the current fence five years ago and it replaced a simple piece of trellis. She says the fence was built without Body Corporate approval and queries whether that entitles her to change the fence to a gate without body corporate approval.
It is not clear whether Ms Hieronymus is challenging the finding of fact by the Adjudicator at paragraph 9 that the fence has been in place for many years. However if she is this appeal is restricted to questions of law and she cannot challenge a finding of fact. In any event the evidence does not support this contention. Ms Hieronymus admits the existing fence replaced a pre-existing trellis fence. There is also evidence of a plan that appears to be from about 1985 which indicates a barrier in the present position of the fence. There was sufficient evidence for the finding of fact to be made.
It is also not clear if the evidence about the construction of the current fence was available to the Adjudicator. The present appeal is limited to evidence that was before the Adjudicator. No new evidence can be considered.[5]
[5]QCAT Act s 146.
Ms Hieronymus’ query about whether she is entitled to unilaterally change the fence is sufficiently answered by the Adjudicator’s decision. This query does not identify an error of law by the Adjudicator.
Ms Hieronymus is aggrieved that attempts to resolve the dispute have been met by procedural outcomes rather than an investigation into the merits of her claim for changes to the use of the common property. In lodging this application the grounds she relies on again seek to argue the reasons why changes should be made.
However the question of the use of the common property was not included in the application made by Ms Clark. The Adjudicator therefore had no jurisdiction to consider the wider question. Indeed the Adjudicator, at paragraph 6 specifically stated
It is not appropriate for an adjudicator to consider proposed changes to exclusive use arrears unless the owners have first considered the proposal at a general meeting of the body corporate.[6]
[6]K.G. Tully & Anor v The Proprietors The Nelson Body Corporate [2000] QDC031 at [14].
It is accepted that no general meeting had been held.
While acknowledging the broader issues raised by Ms Hieronymus the Adjudicator at paragraph 5 identified the issue as a dispute about an alleged threat to alter common property without authorisation. The Adjudicator’s decision responded to the specific application brought by Ms Clark.
Similarly, this appeal tribunal cannot consider what is in the best interests of the parties, what constitutes adequate access to common property or what is the best use of the common property. The only question that can be considered is whether the decision of the Adjudicator demonstrates an error of law. No error of law can be identified.
Accordingly the appeal must be dismissed and the decision of the Adjudicator confirmed.
0
0
0