Jasen v The Body Corporate for Sunseeker Holiday Apartments CTS618
[2014] QCAT 7
•13 January 2014
| CITATION: | Jasen v The Body Corporate for Sunseeker Holiday Apartments CTS618 [2014] QCAT 007 |
| PARTIES: | Carol Diane Jasen (Appellant) |
| v | |
| The Body Corporate for Sunseeker Holiday Apartments CTS618 (Respondent) |
| APPLICATION NUMBER: | APL416-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 13 December 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Forbes, Member |
| DELIVERED ON: | 13 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | BODY CORPORATE AND COMMUNITY MANAGEMENT – unpaid levies – penalty interest thereon – whether Adjudicator erred in findings of fact – whether preference for evidence of body corporate a reasonably arguable ground of appeal – whether leave to appeal should be granted – no appellable error Queensland Civil and Administrative Tribunal Act 2009 ss 3, 4, 20, 32, 100, 142 Robinson v Corr [2011] QCATA 302 Briginshaw v Briginshaw (1938) 60 CLR 336 In Re W (an infant) [1971] AC 682 |
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.
REASONS FOR DECISION
Carol Diane Jasen (the appellant) owns Unit 6 in a 10-unit complex at 7 Garrick Street, Port Douglas, North Queensland, known as Sunseeker Holiday Apartments.
The respondent (the BC) initially alleged[1] that the appellant owes it $15,613.06 in unpaid levies and (as at 28 March 2011) penalty interest of $2,820.86 on the principal sum claimed.
[1]Claim filed in the Magistrates Court Mossman on 28 March 2011, subsequently transferred to this Tribunal.
It is further alleged that, since 11 March 2011 penalty interest has accrued at the rate of $12.83 per diem, pursuant to the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (the Module)[2], and a resolution of the BC dated 24 May 2002.
[2]Module s 142: The body corporate may, by ordinary resolution, fix a penalty to be paid by owners of lots if a contribution, or instalment of contribution, is not received by the body corporate by the date for payment fixed in notices of contribution given to the owners. The penalty must consist of simple interest at a stated rate (of not more than 2.5%) for each month the contribution or instalment is in arrears.
By way of defence the appellant says that she has paid in full all levies due for the period 1 September 2008 to 28 February 2011, and denies that any penalty interest is payable. She disputes the BC’s right to apply two payments, each of $1,221.50, made on 28 February 2010 and 28 March 2010 respectively to defray interest.
Two other items are no longer in issue – namely a counterclaim by the appellant for $4,129 (abandoned) and a claim[3] by the BC for costs. The latter claim was dismissed as not being a liquidated amount, and therefore not recoverable as part of an action for debt.[4]
[3]Under s 143(1)(c) of the Module.
[4]Decision 21 August 2013, at [31] - [33].
The matter was heard and determined by Mr Bertelsen on 21 August 2013. The learned Adjudicator found in favour of the BC, awarding it the sum of $11,051.05 for levies and penalty interest due and owing from 1 September 2008 to 1 June 2013.
From that decision Ms Jasen now seeks leave to appeal.[5]
[5]Leave is required in this case by s 142(3)(a)(i) and s 142(3)(b).
Grounds of Appeal
The Application for leave to appeal (the appeal) filed on 20 September 2013, Part C, declares: ‘I am appealing the decision of the QCAT dated 21 August 2013 on questions of both law and fact’.
That declaration is elaborated in a 12 page annexure to the appeal, containing 42 paragraphs, consisting largely of assertion, argument – often repetitive - and unsworn evidence that may or may not have been tendered at the hearing.
The annexure begins with a complaint of unfairness and inequity and ‘fail[ure] to observe the rules of natural justice’. That serious allegation is utterly devoid of particulars. As it stands, it signifies no more than disappointment and dissatisfaction with the decision in question. That is not a recognised ground of appeal.[6] Unfortunately a failure to appreciate the true meaning of ‘natural justice’, as a legal expression, too often causes it to be used as a synonym for unsatisfying litigation.
[6]Robinson v Corr [2011] QCATA 302 at [7].
Doing the best one can with the annexure, the following grounds of appeal can be distilled:
a) The BC’s claim failed to give credit for payments of $2,458, and for consequent reductions of interest.
b) Outstanding levies of $15,613.06 were paid in the period 25 November 2010 to 17 April 2011, discharging all debts then owed to the BC, other than levies for the March and June quarters of 2011, for which the appellant received no levy notices.[7]
[7] Module s 140.
c) Interest has been incorrectly charged on the levies of $15,613.06, referred to in [11](b), above.
d) The Adjudicator erred in his calculation and allowance of interest payable on the sum mentioned in [11](c), above, contrary to the true meaning of section 142 of the Module. The Adjudicator ‘ignored’ the appellant’s evidence of a proper calculation of interest due.
e) The Adjudicator failed to take into account evidence, including documentary material, showing that the BC failed to serve levy notices upon the appellant, as alleged in [11](b), above.
f) The Adjudicator failed to take account of evidence that the appellant, at all material times, kept the BC informed of her current address for notices.
g) The Adjudicator failed to consider the appellant’s claim for costs, including costs of adjournments sought by the BC, to the disadvantage of the appellant.
h) The Adjudicator erroneously stated that the appellant’s counterclaim for $4,129 was withdrawn.
i) The Adjudicator did not correctly apply section 143(5) of the Module.
j) The BC’s representative, an accountant and secretary to the BC, ‘knowingly and deliberately misled the [Tribunal] and ... fraudulently claimed that the body corporate is entitled to monies that he ... knows that [it] is not entitled to’.[8]
k) The Adjudicator failed to consider a relevant report of the BC’s auditor dated 19 July 2010.
l) The Adjudicator misinterpreted a related judgment of Newton DCJ on 18 June 2009, without hearing evidence from the appellant of ‘substantial errors of fact’ in that judgment, which was given in default of the appellant’s appearance, when the District Court failed to serve notice of the hearing upon her. The judgment of Newton DCJ, it is alleged, ‘repeats verbatim unwarranted and untrue disparaging statements made by the [BC’s] lawyers ... designed solely to discredit and vilify the [appellant]’.[9]
[8] Annexure to notice of appeal [33]; see also 36.
[9] Annexure to notice of appeal [41].
Two further documents submitted by the appellant to the Tribunal should be briefly noted. A letter dated 10 November 2013 objects to ‘the Body Corporate having legal representation for the QCAT appeal’. However, the appeal is to be conducted on the papers, not orally, and nothing in the Act prevents a party from having legal assistance in the preparation of written material.[10]
[10]Kilpatrick v Tighnabruaich Properties Pty Ltd [2011] QCATA 208 at [19]; Sweeney v Translink Transit Authority [2011] QCAT 318 at [7]; McClelland v Gold Coast City Council [2013] QCATA 240 at [6]; Brown and Anor v Noosa Constructions Pty Ltd [2012] QCATA 194 at [85].
A letter dated 25 November 2013 asserts that, while the appellant paid all overdue levies by 17 April 2011, interest (subject to a recent, minor adjustment in her favour) continues to be improperly charged. It adds that ‘all documentation ... for my appeal’ has been sent to ‘the Office of the Qld Attorney General’.
The Respondent’s Submissions
The BC submits that the Tribunal correctly assessed the principal and interest payable, and that it properly rejected the appellant’s claim that certain notices of levies were not duly served upon her. It refers to the non-specific character of her complaint that documentation supporting her case was not taken into account.
On the issue of costs, the BC submits that the Tribunal should not depart from the principle in section 100 of the QCAT Act. It registers a strong objection to the appellant’s aspersions upon the integrity of its witness, Mr Toma.
Natural Justice
As I have already indicated, the natural justice ground is without substance. It discloses no appellable error.
The District Court Judgment
The appellant’s criticisms of the District Court’s judgment and her unsubstantiated claim that it reflects submissions of the BC ‘designed solely to discredit and vilify’ her does nothing to advance her appeal from the decision of this Tribunal. As she admits, the District Court refused to set its default judgment aside.
The Allegation of Fraud
An allegation of this kind must be supported by full particulars, and the party making it must attain a particularly high standard of proof.[11] Those criteria are certainly not met in this case. The gratuitous allegation, like the natural justice complaint, seems to be merely an expression, albeit more virulent, of disappointment at the result of the hearing. It does not enhance the weight of the appellant’s case. It is firmly denied by the respondent.
[11]Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362; Watson v Foxman (1995) 49 NSWLR 315.
Service of Levy Notices
At the hearing the appellant claimed that certain levy notices did not reach her because they were posted to an incorrect address. The Adjudicator rejected that submission, and preferred the BC’s evidence that the notices in question were properly sent to the last address for service provided by the appellant. It was the appellant’s duty to inform the BC of any change to that address. An allegation of inefficiency on the BC’s part was rejected.
The appellant now seeks to re-litigate that issue, complaining that the Adjudicator ignored (unspecified) documentation supporting her case. The position is simply that, having heard each party on the issue, the Adjudicator preferred the evidence of the BC to that of the appellant. That was a matter for the Adjudicator, as the judge of credit and fact, and it is not open to the appeal Tribunal, on an application for leave, to conduct a re-trial of that issue.
Assessment of amount owing
The same comment applies here. The BC tendered an exhaustively detailed statement of the appellant’s account.[12] The matter was then adjourned to give the appellant an opportunity to consider that document and to file her own set of calculations. After considering each set of submissions, the Adjudicator preferred the evidence of the BC. Preferring one version of a case to another is not an appellable error. An unsubstantiated allegation of fraud at this stage of proceedings does not dispose of a finding that the primary tribunal was entitled to make.
[12] Decision 21 August 2013, at [20].
A legitimate process of fact-finding is not transmuted into appellable error by repeated, bald assertions that certain evidence was ‘not considered’:
It is plainly unnecessary for a judge to refer to all the evidence ... or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the finding made depends, as the duty to give reasons does, on the circumstances of the individual case.[13]
It is going too far to suggest that in every case a judge must submit the material ... to the most meticulous analysis and carry into judgment a detailed exposition of every aspect of the evidence and the arguments. Trial judges [and a fortiori tribunals[14]] must always endeavour to balance their duty to explain with their duty to be brief.[15]
The reasons for a decision are not to be construed finely and minutely with an eye keenly attuned to the perception of error.[16]
[13] Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA..
[14] QCAT Act ss 3(b), 4(c).
[15] Strbak v Newton [1989] NSWCA 202 at page 7.
[16]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, quoted with approval Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.
Withdrawal of the Counterclaim
This contention is merely a distraction. If, as the appellant says, this claim is now in another forum, well and good. That does not affect the factual observation that it has been withdrawn from the Tribunal’s jurisdiction, which is all that the Adjudicator implied.
Costs
In view of the result of these proceedings the question of costs for a litigant in person is academic. Suffice it to say that, apart from the formidable hurdle of section 100 of the QCAT Act, Australian authority confines the discretion to order costs (as distinct from court filing fees) to amounts paid for professional legal services.[17]
[17]Willing v Hollobone (1972) 3 SASR 532; Moore-McQuillan v SA Police (No 2) [2000] SASC 69; Cachia v Hanes (1994) 179 CLR 403 at 409.
The Limitations of an application for leave to appeal
An application for leave to appeal is not an occasion for a retrial de novo, or for “second guessing” issues of fact or credit that are the province of the primary adjudicator. On an application for leave to appeal the question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.[18] It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[19] Indeed, the very requirement to obtain leave is to preclude attempts to retry cases on the merits,[20] or to introduce evidence or arguments that might have been led in the first place, but were not. It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should have received. Findings of fact will not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available.[21] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[22] With respect to decisions that are essentially decisions on the facts -
It appears to me that a factual conclusion cannot be treated as infected by legal error unless it is supported by no evidence whatever or unless it is clear, beyond serious argument, that it is wrong. That this Court merely disagrees with a factual view of a tribunal does not show that a decision based on it is legally erroneous.[23]
[18]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19]; International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332.
[19]Robinson v Corr [2011] QCATA 302 at [7].
[20]Distinguish QCAT Act s 20 (review jurisdiction).
[21]Fox v Percy (2003) 214 CLR 118 at 125-126.
[22]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
[23] JM v QFG [2000] 1 Qd R 373 at 391 per Pincus JA.
I can find no reasonably appellable error in the primary decision. Leave to appeal will be refused.
ORDER
Leave to appeal is refused.
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