Mautner v Moor & Store CTS 29793

[2011] QCATA 311

CITATION: Mautner v Moor & Store CTS 29793 [2011] QCATA 311

PARTIES:	Judy Mautner (Applicant/Appellant)
v
Moor & Store CTS 29793 (Respondent)

APPLICATION NUMBER:   APL255-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 15 November 2011

DELIVERED AT: Brisbane

ORDERS MADE:      1.    Application to stay the decision pending the hearing and determination of the appeal is refused.

CATCHWORDS: 

APPEAL – BODY CORPORATE AND COMMUNITY MANAGEMENT – STAY – REASONS – where there is a dispute relating to a scheme for which the lots are comprised of marina berths – where the Body Corporate alleges that Teresina Pty Ltd is breaching the by-laws by permitting its tenant to keep a vessel which breaches the by-laws – where an Adjudicator ordered that Teresina and Ms Mautner provide unimpeded access to a marine surveyor to inspect the vessel – where Ms Mautner sought to stay the Adjudicator’s decision – where the stay was refused – reasons for decision

Body Corporate and Community Management Act 1997, ch 6 pt 9, ss 271, 276(1), 279

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 Act2009 (QCAT Act).

REASONS FOR DECISION

1. The respondent Moor and Store CTS 29793 is a scheme for which the lots are comprised of marina berths.  This proceeding relates to a vessel moored in lot 27.  The Body Corporate alleges that Teresina Pty Ltd is breaching the by-laws by permitting its tenant, the applicant Ms Judy Mautner to keep a vessel on lot 27 which breaches the by-laws because it is, allegedly, not sea worthy and too long.

2. The matter came before an Adjudicator appointed under the Body Corporate and Community Management Act 1997 (BCCMA).  In her decision of 27 June 2011 the learned Adjudicator related, in commendable detail, the history of proceedings between the parties which, ultimately, led to an application by Moor and Store for interim orders that it be permitted to inspect the vessel.

3. The learned Adjudicator was persuaded that she had power to make an order to that effect, and did so.  In particular, she ordered that Teresina and Ms Mautner provide unimpeded access to a marine surveyor, engaged by Moor and Store and paid for by it, to inspect the vessel.  The order included provision for agreement, or an arrangement, for the inspection to take place.

4. Ms Mautner sought leave to appeal that decision and on 5 August 2011 the QCAT Appeal Tribunal ordered an exchange of written submissions, followed by a directions hearing.  Subsequently Ms Mautner also applied for an order staying the Adjudicator’s decision and that was also directed to be determined on the papers, with submissions which the parties then exchanged and filed.  On receipt of those submissions I made an order on 31 August 2011 refusing Ms Mautner’s application for a stay order.  She has sought reasons for that decision.

5. The primary argument advanced for Ms Mautner was that the refusal of a stay would render her appeal nugatory.  It was also said that the balance of convenience favoured the grant of a stay; that she has an arguable case on the appeal; and, that this was an appropriate case in which to grant one.

6. It is clear, from the learned Adjudicator’s reasons (and her orders) that her decision involved what was, in effect, an interlocutory application by the Body Corporate in circumstances where it required, and sought, evidence relative to its complaint about the vessel; but, also, that whether or not the matter progresses to a point at which a finding about the vessel is made, adverse to Teresina or Ms Mautner, could only happen after the inspection directed under the interim order has occurred.

7. The learned Adjudicator was careful to consider, and refer to, her powers under the BCCMA including, in particular, powers under s 276(1) to make orders that are just and equitable in the circumstances; and, under s 279 to make an interim order if satisfied, on reasonable grounds, that the order is necessary because of the nature of the circumstances to which the application relates.

8. Those provisions are to be considered in their context in ch 6, pt 9 of the BCCMA which, in div 2 (Procedural matters about adjudication) requires the Adjudicator to investigate an application and, relevantly here, to require a party, or someone else the Adjudicator considers may be able to help resolve issues, to obtain and give a report or other information to the Adjudicator, and to enter or inspect property: s 271.

9. In this statutory context the learned Adjudicator’s decision was, with respect, entirely reasonable and appropriate in the circumstances which confronted her.  Her order did no more than direct a process by which evidence, relevant to what is patently a more serious dispute between the parties, might be garnered.  The application for a stay was, in those circumstances, without foundation.

[10]  It is also appropriate to remark upon a submission, made on behalf of Ms Mautner, that she ought not to have been a party at the proceedings before the Adjudicator.  That is a matter more properly addressed in the appeal itself.  Certainly, it is not germane in an application for a stay brought by Ms Mautner, in her own name.

[11]  The matter will shortly be considered at a QCAT Directions Hearing, when steps towards the final resolution of the appeal can be clarified.