Kranjcic v Payyappilly
[2014] QCATA 324
•27 October 2014
| 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 Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 |
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 approval of the [said] constructions, the subject of a Council show cause notice on 22 August 2012;
(iii)the BC consent to an application required to be made [to] the Council by [Owner 1] in respect of the two constructions, that is, the consent of the committee is to be given on the appropriate application form;
(iv)the BC consent to any application required to be made [to] the Council by [Owner 1] in respect of the use now made of the garage of Unit , the subject of an enforcement notice sent by the Council on 21 March 2013, that is, the consent of the committee is to be given on the application form if required;
(v)it was unreasonable for the BC not to carry Motions 3, 4 and 5 of a general meeting held on 1 October 2013, and that the BC is deemed to have consented to those motions;
(vi)Motion 2 is also deemed to be carried although the amount proposed for the administrative fund budget is varied in accordance with this order;
(vii)Kelly Borell, office manager of Tower Body Corporate Administration Pty Ltd is appointed as an administrator of this scheme with all the powers of the committee to perform certain specified tasks as follows [6 heads of power specified].
A stay of the Commissioner’s orders was refused on 18 June 2014.
Owner 2 appeals[3] from the Commissioner’s decision on these grounds[4]:
a)The decision maker did not take into consideration relevant facts and provided [sic] evidence;
b)The decision maker made unreasonable decisions not based on evidence;
c)The decision make did not take into consideration my argument about the abuse of the process by [Owner 1] in the original application as he applied 4 times for the same orders regardless of the fact that the matter had already been determined in our favour;
d)The BC should not be ordered to consent to the application to the GCCC unless the BC consents to the approval of the patio and porch on our side, provided that such consent does not exceed the permitted site coverage and put us in a detrimental position;
e)The appointment of an administrator is unnecessary; and
f)The amount ordered for the administrative fund and sinking fund is excessive.
[3]BCCMA s 289. The appeal is on questions of law only.
[4]Application for appeal filed 20 May 2014.
Ambit of Notice of Appeal
Strictly speaking, only items (a) to (c) above appear in that part of the notice of appeal designated for grounds of appeal.[5] However, I have included as grounds of appeal three items described as “Orders sought”; they appear to be further assertions of error, not merely argumentative material.
[5]Form 39, Part C.
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].
No particulars of loss and damage are given. The Adjudicator noted the absence of a sinking fund to pay for maintenance and repairs.[13] The Adjudicator found that the two lot owners have made improvements and done repairs over the years as if each were the sole owner of their respective lots as well as of the exclusive use areas of the common property.[14] It has not been shown that this finding involves legal error, or that the Adjudicator’s discretion so miscarried as to amount to legal error.[15] Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[16] Where reasonable minds may differ, a decision is not erroneous, simply because one conclusion has been preferred to another possible view.[17]
[13]Decision paragraph [44].
[14]Ibid paragraph [51]. See also [60] – [62].
[15]House v The King (1936) 55 CLR 499 at 504 – 505.
[16]Fox v Percy (2003) 214 CLR 118 at 125 – 126.
[17]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
Ground (c): Abuse of process?
No submission is made in support of this assertion. In any event, it is answered in paragraph [22].
Ground (d): Application to GCCC to be subject to consent to patio and porch on Unit 2, and to permitted site coverage requirements
The Adjudicator has already ordered the BC to make any necessary application to the GCCC for retrospective approval of two constructions specified in a show cause notice issued by the Council on 22 August 2013.[18] The decision also notes that the Council is no longer concerned about this structure [in the exclusive use area] of Lot 2 ... since the roofing sheeting was removed.[19] With respect to the coverage requirements, they are matters for the Council, as the Adjudicator noted.[20]
[18]Order 1.
[19]Order 1; Decision paragraph [14].
[20]See paragraph [10], above.
Ground (e) Appointment of administrator unnecessary?
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.
ORDER
The appeal is dismissed.
6
0