Lawand Property Management Pty Ltd v Body Corporate for Paradise Palms

[2013] QCATA 261

CITATION: Lawand Property Management Pty Ltd v  Body Corporate for Paradise Palms [2013] QCATA 261

PARTIES:	Lawand Property Management Pty Ltd ATF Lawand Property Family Trust (Applicant/Appellant)
v
Body Corporate for Paradise Palms CTS 23869 (Respondent)

APPLICATION NUMBER: APL046-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Hon K Cullinane QC, Judicial Member

DELIVERED ON: 20 September 2013

DELIVERED AT: Brisbane

ORDERS MADE: The time for the filing of an appeal in this matter be extended to 1 February 2013.

CATCHWORDS:

PROCEDURE – APPEAL – FIXED TIME LIMIT – RELIEF FROM PROCEDURAL REQUIREMENTS – where s 143(4)(b) of the Queensland Civil and Administrative Act 2009 provides that an appeal must be filed in the Registry within 28 days of the relevant day – where the notice of appeal was filed outside that time period – where s 61(1) of the QCAT Act confers a general power to extend time limits fixed by the Act – where a time limit may not be extended or shortened if to do so would cause prejudice or detriment to another party, not able to be remedied by an order for damages or costs – where the respondent does not raise any question of prejudice or detriment – whether the time for filing the appeal should be extended in the circumstances

Acts Interpretation Act 1954 (Qld) s 39A
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. The Appellant has filed an appeal against a decision of the Tribunal delivered on 19 December 2012.

1. The Tribunal refused to grant an injunction sought by the Appellant and declared that parts of a by-law were invalid.

1. The question arises whether the notice of appeal was filed outside of the prescribed time and is therefore ineffective and, if so, whether an extension of the time for filing a notice of appeal should be granted.

1. Section 143(4)(b) of the Queensland Civil and Administrative Act 2009 (the Act) provides that an appeal must be filed in the Registry within 28 days of the relevant day which in turn is defined as the day on which the person concerned is given written reasons for the decision being appealed against.

1. Section 121 of the Act imposes on the Tribunal the obligation to give its final decision in writing to each party to the proceeding.

1. These provisions require attention to be given to s 39A of the Acts Interpretation Act 1954. That Act provides (so far as is relevant here):

(1) If an Act requires or permits a document to be served by post, service–

(a)may be effected by properly addressing, prepaying and posting the document as a letter; and

(b)is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post unless the contrary is proved.

1. The Appellant contends that the requirements of subsection 1(a) have not been established.

1. The Appellant’s solicitors’ office (to which the decision was sent) was closed between 21 December 2012 until the morning of 2 January 2012. The decision had not been received by the first of these dates.

1. On returning to work on 2 January 2012 a copy of the decision was given to the person in charge of the matter by another member of the firm.

1. The Appellant contends that the only evidence available is that service was effected on 2 January 2012 and that the notice of appeal was filed in time.

1. The Respondent points out that the file of the Tribunal relating to the matter states that a copy of the decision was posted to the solicitor for the Appellant on 19 December 2012.  The Appellant objects to this as being a bare assertion not supported by evidence.

1. It seems to me that this Tribunal is entitled to have regard to the endorsement on the file: see s 28(3)(a),(b),(c) and (d) of the Act.  The endorsement shows that the decision was sent to both solicitors on 19 December 2012.  The decision was received and prepayment can be inferred from these facts.

1. In my view it is clear that the notice of appeal is out of time by some 7 or 9 days.

1. Section 61(1) of the Act confers a general power to extend time limits fixed by the Act.

1. Subsection (3) provides that the Tribunal can not extend or shorten a time limit if to do so would cause prejudice or detriment to another party, not able to be remedied by an order for damages or costs.

1. The Respondent does not raise any question of prejudice or detriment.

1. The extension sought is for a very short period.  For a part of the relevant time the Appellant’s solicitors were closed over the holiday period.

1. The litigation involves substantial property rights and concerns the effect of dealings between the parties and the legal consequences of these as well as the legal effect of a purported by-law.  The Appellant raises what I think should be regarded as serious matters.  It is not necessary to say anything beyond this on the prospects of success.

1. I think an extension of time should be granted.

1. The formal order is that the time for the filing of an appeal in this matter be extended so that it expires on 1 February 2013.