McCall v Martin - [2017] QCATA 103

CITATION:

McCall v Martin & Anor [2017] QCATA 103

PARTIES:	Cameron Hugh McCall (Applicant)
v
Cheryl Martin The Body Corporate for Contessa Condominiums (Respondents)

APPLICATION NUMBER:

APL198-16

MATTER TYPE:

Appeals

HEARING DATE:

27 February 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member Olding

DELIVERED ON:

22 September 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Appeal allowed;

2. Order of the adjudicator dated 18 May 2016 set aside;

3. Matter returned to the adjudicator for reconsideration on the merits and in accordance with these reasons.

CATCHWORDS:

REAL PROPERTY – STRATA AND RELATED
TITLES – MANAGEMENT AND CONTROL –
BODY CORPORATE: POWERS, DUTIES AND
LIABILITIES – appeal from decision of adjudicator – where by law restricted laying of hard flooring – where body corporate resolution authorised laying of hard flooring – whether compliance by lot owner with authorisation – whether by law restricting laying hard flooring unreasonable – whether hard flooring caused a nuisance or unreasonably interfered with the use or enjoyment of another lot – whether adequate reasons given by adjudicator – whether adjudicator took into consideration all relevant considerations – whether adjudicator failed to consider a relevant consideration
Body Corporate and Community Management Act 1997 (Qld) s 167, s 180(7), s 289
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146

Bell v Commissioner of Taxation [2012] FCA 1042
BE v Office of the Adult Guardian & Public Trustee of Queensland [2010] QCATA 24
Body Corporate for Admiralty Towers II v Johnson [2017] QCATA 29
Canada (Director of Investigation and Research) v. Southam Inc [1997] 1 S.C.R. 748
Contessa Condominiums [2008] QBCCMCmr 107
Ericson v Queensland Building Services Authority [2013] QCA 391
Hussain v Minister for Foreign Affairs (2008) 169 FCR 241
McKenzie v Body Corporate for Kings Row Centre CTS 11632 [2010] QCATA 57
McLeod v Body Corporate for Stradbroke
Miles & Anor v Body Corporate for Solarus Residential Community Titles & Ors [2016] QCATA 130
Miles & Anor v Gough & Ors [2017] QCA 190
Norbury v Hogan [2010] QCATA 27
Tower and Villas [2015] QCATA 146

APPEARANCES:

APPLICANT:	Mr McCall represented himself
RESPONDENT:	Ms Martin represented herself Mr Dwyer, Chairman, represented the Body Corporate for Contessa Condominiums

REASONS FOR DECISION

Contessa Condominiums is a 124 lot scheme located on the Gold Coast. Mr McCall is one of the lot owners. Ms Martin is also a lot owner. In late 2012 Ms Martin undertook renovations to her lot. Those renovations included the removal of carpet in the lounge room and living room of the apartment and the laying of ceramic floor tiles on top of an acoustic underlay. Floor tiles in the kitchen were also pulled up, an acoustic underlay put down, and ceramic floor tiles re-laid.
The body corporate applied to the Office of the Commissioner for Body Corporate and Community Management for adjudication seeking orders that Ms Martin remove the tiles in the areas in the lot that had been tiled and replace them with carpet. Mr McCall, as he was entitled…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McCall v Martin

Details

AGLC: McCall v Martin [2017] QCATA 103
Case: [2017] QCATA 103
Decision Date: 22 September 2017

CaseChat Overview and Summary

In the matter of McCall v Martin, the dispute arose from a contentious situation involving strata management and control within an apartment complex. The parties, McCall and Martin, were involved in a disagreement over the enforcement of strata rules and the interpretation of relevant legislation. The case was heard in the Supreme Court of New South Wales, which was tasked with resolving the legal issues that emerged from the adjudicator's decision.

The central legal issue before the court was whether the adjudicator correctly exercised their discretion when determining the enforceability of the strata rules. The court was also required to examine whether the adjudicator had considered all relevant factors and applied the correct legal principles in reaching their decision. Furthermore, the court needed to determine if the adjudicator's decision was made in accordance with the applicable legislation and if it was open to the adjudicator to set aside the decision on the grounds of unfairness or injustice.

The court found that the adjudicator had failed to properly consider certain key factors and had not applied the correct legal principles in making their decision. As a result, the adjudicator's discretion was exercised improperly. The court held that the adjudicator's decision was not in accordance with the relevant legislation and that it was open to the adjudicator to set aside the decision on the grounds of unfairness or injustice. Consequently, the appeal was allowed, and the order of the adjudicator dated 18 May 2016 was set aside. The matter was returned to the adjudicator for reconsideration on the merits and in accordance with the court's reasons.

Orders

Orders of the court

1. Appeal allowed;

2. Order of the adjudicator dated 18 May 2016 set aside;

3. Matter returned to the adjudicator for reconsideration on the merits and in accordance with these reasons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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