Leberayte Pty Ltd v Body Corporate for Quoin Harbour Views CTS 19042

[2016] QCATA 57

CITATION:

Leberayte Pty Ltd v Body Corporate for Quoin Harbour Views CTS 19042 [2016] QCATA 57

PARTIES:

LEBERAYTE PTY LTD
(Applicant/Appellant)

v

BODY CORPORATE FOR QUOIN HARBOUR VIEWS CTS 19042
(Respondent)

APPLICATION NUMBER:

APL378-15

MATTER TYPE:

Application and Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

DELIVERED ON:

16 May 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

1.     Leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL  –  BODY CORPORATE – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal took into account irrelevant considerations – whether the Tribunal miscalculated the amount awarded

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

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

1. This is an application to appeal the decision of a Tribunal sitting in Gladstone in a minor civil dispute claim.

2. As characterised in the notice, the alleged legal mistakes have the appearance of appealable errors but, on analysis, are mere figments.

Ground 1: failure to consider

1. The basic premise of this ground is that the respondent contradicted its statutory duty to act reasonably by going to court to recover unpaid levies from the applicant without first contacting its manager to try to come to some negotiated agreement. The corollary is that the Tribunal must have wrongly ignored or overlooked the respondent’s unreasonable conduct because, otherwise, it could not have given judgment in its favour.

2. First, alleged unreasonableness is a question of fact, not law.

3. Second, the challenged finding is based on a reasonable inference open on the evidence.

4. Third, the point of contact relied on is a landline telephone number the applicant’s agent sent in an email to the respondent on 15 July 2009, that is; more than five years before the proceedings were taken. In the meantime, the Tribunal found that the applicant had raised the same specious objections whenever the recovery of unpaid levies was threatened.

5. Fourth, the current contention does not appear to have been advanced at first instance, but even if it was, it was doomed to fail. The circumstances here are nothing like those in the Nut Tree Gully case cited in support.

6. It was clearly reasonable for the respondent to litigate rather than negotiate in the circumstances.

Grounds 2 & 3: acting on irrelevant facts

1. The Tribunal found that, on 2 March 2011, the respondent offset monies held in trust since 2009 against the outstanding balance of the applicant’s levy account in response to verbal (telephone) instructions given by the applicant’s agent.

2. The applicant claims this amounts to error because the phone call “never occurred”. Whether the 2011 phone call took place or not is a question of fact. The Tribunal resolved it against the applicant on credit grounds. She rejected the agent’s untested denial for internal contradiction, inconsistency with documentary evidence and because he did not attend for cross-examination.[1]

   [1] See reasons of that decision at pp 3-6.

3. It is not an error of law to act on a finding of fact, supported by sufficient evidence, just because it is unfavourable to the applicant’s case.

4. The applicant also complains the Tribunal wrongly allowed recovery costs to the extent they included legal fees for advice about the applicant’s director’s threats to personally sue each of the respondent committee members.

5. Again, the reasonableness of the disputed items is a pure question of fact and its status as a cost of recovery is a mixed question of law and fact. The Tribunal’s reasoning is at page 10 of its published decision. It is unassailable on appeal.

Ground 4: failure to consider

1. The applicant contended that it provided adequate instructions to the respondent about how to apply the so-called June 2009 funds by email on 15 July 2009.

2. The applicant denies liability for the disputed levies because it says it reasonably believed that emailed instructions to apply the $1,200 held in trust to “future levies” had been acted on and that it did not receive any notices to the contrary because they were sent to the wrong postal address.

3. The Tribunal rejected the factual basis of this ground at pp 6-7. She found that the applicant’s asserted mistaken belief that its levy account was in credit was inconsistent with the found facts. The reasoning is unimpeachable.

Ground 5: miscalculation

1. The applicant submits that it was unreasonable for the respondent to institute recovery action on 20 August 2014, because (a) at that time its levy account was $48.43 in credit, and (b) demanded recovery costs were over $216.84, which any reasonable tribunal discharging its functions properly would have taken into account and refused to award claimed recovery costs in full as unreasonable.

2. The applicant alleges, but does not demonstrate, that the facts at paragraph 5.9 of its written submissions were not considered, or how they would have changed the result and to what extent in dollar terms.

Conclusion

1. There is no better than reasonably arguable case of appealable error needing correction on appeal to cure any potential substantial injustice to the applicant.

2. The application for leave to appeal is, therefore, refused.