Manricks v Williams
[2012] QCATA 133
•6 August 2012
| CITATION: | Manricks and Anor v Williams [2012] QCATA 133 |
| PARTIES: | Camilio Manricks Jeanette Manricks (Applicant/Appellant) |
| v | |
| Philip Williams (Respondent) |
| APPLICATION NUMBER: | APL457-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | K Dodds, Member |
| DELIVERED ON: | 6 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Appeal dismissed. The decision of the adjudicator is confirmed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – BODY CORPORATE AND COMMUNITY MAMAGEMENT – REVERSION CONTRIBUTION SCHEDULE LOT ENTITLEMENTS – ADJUSTMENT ORDER –where adjudicator made order in relation to adjustment order reversal motion – whether adjudicator misinterpreted meaning of legislation – whether adjudicator breached rules of natural justice – whether order of District Court was an “adjustment order” as defined Acts Interpretation Act1954, s 14 |
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
This appeal filed 8 December 2011 is against the decision of an adjudicator appointed under the Body Corporate and Community Management Act1997 (“the BCCM Act”).
The matter before the adjudicator
On 1 August 2011, the respondent Mr Williams applied for the appointment of an adjudicator, pursuant to the BCCM Act. Mr Williams is the owner of a lot in Magic Mountain Apartments Two Community Title Scheme (“CTS”) 15853 (Magic Mountain). According to the Community Management Statement (“CMS”) for Magic Mountain the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (“the Regulation”) applies to Magic Mountain. The issue Mr Williams wished adjudicated was the failure of the committee of Magic Mountain to progress a motion by him for reversion of contribution schedule lot entitlements for Magic Mountain to those which had existed prior to an order of the District Court at Southport on 7 July 2003, which had adjusted them.
The adjudication was conducted upon written material. The adjudicator ordered the body corporate of Magic Mountain must deal with the adjustment order reversal motion under s 385 of the BCCM Act and that the committee take all steps required by s 385 as quickly as possible.
The grounds of appeal and orders sought
The grounds of appeal and orders sought:
Grounds:
The decision misinterprets the meaning of the legislation;
The adjudicator breached the rules of natural justice in the making the decision.
Orders sought
The order of the adjudicator be set aside;
A declaration that the order of the District Court at Southport application 227/03 made on 7 July 2003 was not an adjustment order as defined in s 378 of the Body Corporate and Community Management Act 1997.
I have considered the submissions by the parties to the appeal.
The ground of appeal that the adjudicator breached the rules of natural justice in making his decision
It is not clear to me what this ground was about. It may be intended to encompass that the adjudicator did not in his reasons for his decision deal with submissions advanced by the owners of lots in the CTS about contribution lot entitlements in the existing scheme being just and equitable contrary to contribution lot entitlements in the CTS pre-existing the court’s order. Some owners were apparently opposed to what Mr Williams was trying to achieve by his motion and some owners were supportive.
If that was its focus then it is sufficient to say that this was not relevant to matters the adjudicator was required to address. The matter before the adjudicator was whether the 2003 decision was or was not an adjustment order as defined. Rightly or wrongly, like it or not, the 2011 amendment to the Act by the Body Corporate and Community Management and other Legislation Act 2011 (Act 9 of 2011) provided that if the 2003 order was an adjustment order as defined,
“[an] owner of a lot may submit a motion proposing the adjustment of the contribution schedule for the existing scheme to reflect the pre-adjustment order entitlements for the scheme --- ”
whereupon the body corporate must do certain specified things, and within a limited time,
“lodge a request to record a new community management statement incorporating a change to the contribution schedule lot entitlements for the lots included in the existing scheme to [the pre-adjustment order entitlements].”[1]
If the 2003 order was not an adjustment order as defined, Mr Williams’ application to the adjudicator failed. If it was, then the legislation I have referred to inevitably meant Mr Williams would succeed, although many of the orders he sought in his application were not made by the adjudicator.
[1] Body Corporate and Community Management Act1997, ss 379(2) and 385(6).
There is reference in submissions made in this appeal which may indicate that this ground of appeal focuses on the fact that Mr Williams’ adjudication application to the Office of the Commissioner for Body Corporate and Community Management went directly to a hearing before an adjudicator and not first to mediation. Regarding this: Mr Williams’ motion pursuant to s 379 of the BCCM Act had not been progressed by the committee and his adjudication application sought to achieve progress. The issue was whether the 2003 order was an adjustment order. If it was, then the body corporate had no choice but to take the steps mandated by the Act resulting in the contribution lot entitlements reverting to the pre-adjustment order entitlements.
In my opinion there was no breach of the rules of natural justice. There was nothing to be gained by mediation nor was any owner prejudiced by the lack of one. There was only one issue to be addressed: was the 2003 order of the District Court an adjustment order?
The ground of appeal that the adjudicator’s decision misinterpreted the meaning of the legislation
[10] The essence of the appeal involves the 7 July 2003 order of the District Court and amendments made to the Act by Act 9 of 2011. Act 9 of 2011 came into force on 14 April 2011. Consequent on the amendments, s 379 of the Act empowered an owner of a lot in a CTS, such as Mr Williams, which had been the subject of an adjustment order as defined, to submit a motion to the committee to change their contribution schedule to that which existed prior to the adjustment order. That is what Mr Williams had sought by his motion. The resolution of the appeal for all practical purposes depends upon whether the adjudicator was correct in finding that the order of the District Court was an adjustment order as defined.
[11] An adjustment order is defined in the Act to mean (omitting parts which have no bearing on this appeal):
a) “--- an order of a court --- made before the commencement” (the commencement of Act No. 9 of 2011) “providing for an adjustment of the contribution schedule for an existing scheme; but
b) does not include an order of a court --- giving effect to a decision that is not made by the court --- .
Examples for paragraph (b) –
· an order of a court --- giving effect to the terms of a settlement of a dispute between an owner of a lot included in an existing scheme and the body corporate if the terms provide for the adjustment of the contribution schedule for the scheme
· a written agreement that –
a) is between an owner of a lot included in an existing scheme and the body corporate; and
b) provides for the adjustment of the contribution schedule for the scheme; and
c)is filed in the registry of a court --- and is enforceable as an order of the court --- ”
[12] I have looked at the settled and filed order of the District Court. It was applied for by a lot owner of Magic Mountain against the Body Corporate. The order made was in the following terms:
“THE ORDER OF THE COURT IS THAT:
1. Pursuant to Section 46(1)(a) of the Body Corporate and Community Management Act 1997 with respect to the Magic Mountains Apartments Two Community Title Scheme 15853 the contribution schedule of lot entitlements be adjusted in accordance with the recommendations made in the report dated 17 April 2003 by Tim Sheehan of Stewart Silver King and Burns Strata Title Consulting Pty Ltd.”
[13] The application to the District Court was supported by:
an affidavit of Timothy Francis Sheehan sworn 29 April 2003, a consultant employed by Stewart Silver King and Burns Strata Title Consulting Pty Ltd to which was exhibited a contribution schedule lot entitlement report dated 17 April 2003 prepared by him at the request of the applicant’s solicitors;
an affidavit of Michael Thomas Goodman sworn 12 May 2003, the applicant’s solicitor;
a further affidavit of Mr Goodman sworn 3 July 2003 exhibiting a letter from Mr Williams dated 13 June 2003 and a copy of Mr Goodman’s reply dated 16 June 2003.
[14] The body corporate filed no material.
[15] Mr Williams’ letter of 13 June made it plain that he disagreed with certain aspects of Mr Sheehan’s report. Mr Goodman’s reply of 16 June advised Mr Williams that he was entitled to be joined as a party to the proceeding if he wished to do so. It advised that a copy of his letter would be exhibited to an affidavit filed in the court prior to the matter proceeding.
[16] The definition of an adjustment order would include the 2003 order of the District Court so long as that order was not one that gave effect to a decision that was not made by the court. The order does not record that it was made by consent. There is no evidence the body corporate consented to the order. Nor is there any evidence it opposed the order. Consent by the Body Corporate to a new Community Management Statement required a resolution of the body corporate without dissent. The committee of the Body Corporate had no power to consent to the order made. Fixing or changing a contribution to be levied by the Body Corporate or a decision that may only be made by resolution without dissent of the Body Corporate were restricted issues for the committee.[2]
[2]Body Corporate and Community Management (Accommodation Module) Regulation 2008, s 42(1)(b).
[17] The only view open on the evidence is that the Body Corporate neither consented to nor opposed the order being sought. That does not translate into the Body Corporate making a decision to adjust the contribution entitlement in the manner the application and its supporting material sought. The decision was the court’s to be made on the material then before it. The report exhibited to Mr Sheehan’s affidavit was evidence before the court for it to consider in deciding whether to make the order sought. The court’s power to adjust the contribution lot entitlement was not unrestricted. It was governed by s 46 of the Act which required the court in the circumstances of this application to ensure any adjustment of lot entitlements in the contribution schedule was just and equitable if they were other than equal.
[18] The examples in s 378 of the Act are available to assist in interpretation. Section 14D of the Acts Interpretation Act 1954 provides:
“Examples:
If an Act includes an example of the operation of a provision –
a) The example is not exhaustive; and
b) The example does not limit but may extend the meaning of the provision; and
c) The example and the provision are to be read in the context of each other and the other provisions of the Act but if the example and the provision, so read, are inconsistent the provision prevails”.
[19] They do not supplant the words of the section.
[20] The exclusionary operation of subparagraph (b) only has effect where the court order under consideration gave effect to a decision that was not made by the court. There is no evidence there was any decision by the respondent to the application to alter the contribution schedule of lot entitlements in the manner the court order did.
[21] In my opinion the adjudicator was correct in finding the 2003 order of the District Court was an adjustment order as defined.
[22] The appeal is dismissed. The adjudicator’s decision is confirmed.
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