Kranjcic v Payyappilly - [2014] QCATA 324

CITATION:

Kranjcic & Anor v Payyappilly [2014] QCATA 324

PARTIES:	Dubravka Kranjcic and Mehrudin Poric (Appellants)
v
Rajan Payyappilly (Respondent)

APPLICATION NUMBER:

APL226-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

27 October 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The appeal is dismissed.

CATCHWORDS:

APPEAL – Body Corporate and Community Management Act 1997 – where scheme of two units – where deadlock on body corporate and committee – where retrospective approval of certain structures required – whether reasonable for body corporate to refuse consent to necessary application to Council – where no provision for administration or sinking funds – where application to Office of Commissioner for orders resolving disputes – where orders made by Adjudicator – where appeal to QCAT – where submissions on appeal not within four corners of notice of appeal – whether error of law established

Body Corporate and Community Management Act 1997 (Qld), s 227, s 229, s 276, s 289
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
McIver Bulk Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 258
Scagliotti v Boyd [1962] Qd R 481
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
State of Victoria v Bacon (1984) 4 VR 269
Strbak v Newton [1989] NSWCA 202
W (an infant), In re [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 (QCAT Act).

REASONS FOR DECISION

“Tallong” is a community title scheme at 17 Botanical Drive Labrador, comprising just two units. Lot (“Unit”) 1 belongs to the respondent Payyappilly (“Owner 1”) and the other to the appellants, Kranjcic and Poric (“Owner 2”).
For several years the parties co-existed in what may politely be described as a state of cordial disharmony until, in April 2014, the deadlock-breaking provisions of the Body Corporate and Community Management Act 1997 (“the BCCMA”)[1] were invoked. It then became the duty of an Adjudicator to make orders just and equitable in the circumstances.[2]
[1]BCCMA ss 227 and 229.
[2]BCCMA s 276.

The primary decision

On 9 April 2014 an Adjudicator of the Office of the Commissioner for Body Corporate and Community Management (“the Commissioner”) ordered that:
(i)the body corporate (“BC”) retrospectively authorise the two patio constructions currently on common property in the exclusive use area of Unit 1;
(ii)the BC make any necessary application to the Gold Coast City Council (“GCCC”) for the retrospective…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kranjcic v Payyappilly

Details

AGLC: Kranjcic v Payyappilly [2014] QCATA 324
Case: [2014] QCATA 324
Decision Date: 27 October 2014

CaseChat Overview and Summary

In the case of Kranjcic v Payyappilly, the appeal was brought against orders made by an Adjudicator under the Body Corporate and Community Management Act 1997. The dispute arose between two unit owners, referred to as Owner 1 and Owner 2, in a scheme consisting of two units. The primary issue was whether the body corporate and committee's refusal to consent to an application for retrospective approval of certain structures was reasonable. This refusal related to a necessary application to the Council for changes that would address site coverage issues under the Gold Coast Planning Scheme 2003. Additionally, the appeal questioned whether the orders for the establishment of administration and sinking funds were excessive. The appeal was brought to the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues that the court had to address included whether the Adjudicator failed to consider relevant facts and evidence, leading to unreasonable decisions not based on evidence. The court examined whether the Adjudicator correctly considered the Gold Coast Planning Scheme 2003 and its implications for the site coverage of the exclusive use areas. The court also considered whether the Adjudicator overlooked Owner 1’s lack of maintenance of the improvements and the subsequent damages suffered by Owner 2. Furthermore, the court evaluated the reasonableness of the amounts ordered for the administration and sinking funds.

The court concluded that the Adjudicator's decision did not contain any apparent legal errors. The court found that the Adjudicator had adequately considered the relevant planning scheme and the implications of the proposed changes. The court also held that the Adjudicator's findings regarding the need for the body corporate to give consent to the application to the Council were reasonable. The court noted that the orders for the administration and sinking funds, while modest, were based on professional recommendations and were not excessive given the circumstances of the small scheme. The appeal was dismissed, and the orders made by the Adjudicator were upheld.

ORDERS:
The appeal is dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Owner 2’s submissions[6] in support of the appeal range well beyond the grounds of appeal, albeit liberally interpreted. No application has been made to amend the notice of appeal. Submissions in support of an appeal are not a proper substitute or supplementary notice of appeal. The ambit of an appeal is defined by the notice as served, and subsequent submissions should be an exposition of the grounds, not a proliferation of them. I shall take into account so much of the parties’ submissions as are pertinent to the grounds originally filed and served.Grounds (a) and (b): Failure to consider relevant facts and evidence ... unreasonable decisions not based on evidence.[6]Submissions of the appellants filed 11 July 2014. This allegation, as it stands, is so general and devoid of particulars as to require no response. The notice of appeal itself should contain an explicit statement of the reason or reasons why the appeal should be entertained.[7] However, it may be charitably assumed that Ground (a) implies these submissions:[7]Scagliotti v Boyd [1962 Qd R 481 at 494; McIver Bulk Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 581; State of Victoria v Bacon (1984) 4 VR 269 at 285. Submission: The Adjudicator has ... failed to take into consideration the Gold Coast Planning Scheme 2003 ... [setting out] the percentage of site coverage allowable for a particular Lot ... The additional structures built on the exclusive use are for [Owner 1] will mean that ... the site coverage for the Common Property has been exceeded, thereby causing an inequity ... If the use now made of the garage of Lot 1 is approved ... it will be a requirement ... that an additional car port ... be built. This would again increase the site coverage of the exclusive use area of [Owner] and ... prejudice [Owner 2].[8][8]Appellants’ submissions paragraphs [4] and [5]. The Adjudicator noted the absence of submissions by Owner 2 that the change of use of Owner 1’s garage would be detrimental to their own use of Lot 2.[9] The decision recognises that if the garage is used as living accommodation, then the Council will require another car space to be created out of the common property.[10] The decision implicitly recognises that this may create a difficulty under the Council’s planning scheme. No concluded opinion on that point is expressed. The adjudicator simply decides that Owner 1 should have the opportunity to make the necessary application so that the Council can assess it. The decision clearly recognises that this is a matter for Council.[11] I do not discern legal error in these findings.[9]Adjudicator’s reasons for decision 9 April 2014 (“decision”) page 8 paragraph [74].[10]Ibid.[11]Ibid paragraph [75]. Submission: The Adjudicator made no reference to [Owner 1’s] lack of maintenance of the improvements ... The facts ... indicate that that [Owner 2] suffered severe loss and damage ... due to the poor construction of the structures. The Adjudicator is obliged to make orders that are just and equitable ... [12].[12]Appellant’s submissions paragraph [4].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The reasons for a primary tribunal’s decision are not to be construed finely and minutely with an eye keenly attuned to the perception of error:[24] The standard expected must be adjusted to the circumstances,[25] including the nature of the question to be decided and the functions, attributes of the member or members.[26] [I]t is going too far to suggest that in every case a judge [and a fortiori a tribunal] must submit the material to the most meticulous analysis ... of every aspect of the evidence and the arguments ... Trial judges [and Adjudicators] must always endeavour to balance their duty to explain with their duty to be brief.[27][24]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 258 at 272.[25]Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 at [60].[26]Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 485.[27]Strbak v Newton [1989] NSWCA 202 per Samuels JA.Conclusion I am not persuaded that the grounds of appeal, or the submissions which fall within the four corners of them, disclose any error of law warranting interference with the orders seeking to resolve intractable deadlocks in the governance of “Tallong”. It now rests with the parties to endeavour, in good faith, to give full effect to those orders. The appeal will be dismissed.ORDERThe appeal is dismissed.

Ratio Decidendi

Legal Principle Established

There is no submission in support of this ground, and no legal error is apparent.Ground (f): Amounts ordered for administration and sinking fund are excessive Submission: [T]he amount set by the Administrator was not calculated with a range of administration budget estimates. ... [T]he amount set by the Adjudicator was not calculated with a range of sinking budget estimates. Therefore [these decisions are] not just and equitable in the circumstances. Manifestly, there was an urgent need for these funds to be established. The respective amounts were based on recommendations of the former administrator Ian D’Arcy,[21] a professional body corporate administrator, subject (in the case of the administration fund) to certain reductions, at the discretion of the present Adjudicator.[22] In relation to the sinking fund, the Adjudicator made the eminently reasonable observation that $3,000 is a very modest sum where there is nothing in the kitty to cover such likely outlays as roof repairs or painting.[23] Owner 2 complains that the funds endorsed require greater individual contributions than similar funds in much larger schemes. However, after due allowance for different building sizes, it is not unreasonable to suggest that the fewer the helpers, the heavier the load.[21]Appointed by order of Adjudicator Schmidt on 16 August 2012.[22]Decision paragraphs [39] – [41]. [23]Ibid [44].Tribunal decisions: process of review The reasons for a primary tribunal’s decision are not to be construed finely and minutely with an eye keenly attuned to the perception of error:[24] The standard expected must be adjusted to the circumstances,[25] including the nature of the question to be decided and the functions, attributes of the member or members.[26] [I]t is going too far to suggest that in every case a judge [and a fortiori a tribunal] must submit the material to the most meticulous analysis ... of every aspect of the evidence and the arguments ... Trial judges [and Adjudicators] must always endeavour to balance their duty to explain with their duty to be brief.[27][24]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 258 at 272.[25]Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 at [60].[26]Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 485.[27]Strbak v Newton [1989] NSWCA 202 per Samuels JA.Conclusion I am not persuaded that the grounds of appeal, or the submissions which fall within the four corners of them, disclose any error of law warranting interference with the orders seeking to resolve intractable deadlocks in the governance of “Tallong”. It now rests with the parties to endeavour, in good faith, to give full effect to those orders. The appeal will be dismissed.ORDERThe appeal is dismissed.