McLeod v PMV Court Body Corporate CTS 7323
[2014] QCATA 178
•15 July 2014
| CITATION: | McLeod v PMV Court Body Corporate CTS 7323 [2014] QCATA 178 |
| PARTIES: | Frances Mary McLeod (Applicant/Appellant) |
| v | |
| PMV Court Body Corporate CTS 7323 (Respondent) |
| APPLICATION NUMBER: | APL552-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 15 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Appeal dismissed. 2. The decision of the Adjudicator in McLeod v PMV Court Body Corporate CTS 7323 [2013] QBCCMCmr 464 is confirmed. |
| CATCHWORDS: | APPEAL – BODY CORPORATE DISPUTE – where decision by Adjudicator under Body Corporate and Community Management Act 1997 – determination of issues raised before adjudicator – appeal confined to evidence and issues already raised – where unit owner made renovations to bathroom – where renovations involved plumbing work to common property – whether body corporate liable for costs of same – whether common property in good condition – whether evidence to the contrary adduced – where unit owner bears onus of proof – whether common property easement unreasonably interfered with unit owner’s rights Body Corporate and Community Management Act 1997 (Qld), s 68, s 152, s 289 Ballada Pty Ltd v North Point Brisbane & Anor [2013] QCATA 184 |
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
The appellant, Ms McLeod, owns Unit 3 in a block of 8 units in Paddington, Brisbane.
McLeod is in dispute with the respondent body corporate (“the BC”), concerning an amount of $1,600. She spent that amount on part of alterations to her bathroom, and now claims that the BC is liable to refund it. She says – and the BC does not dispute – that the work was necessitated by her physical disabilities.
The position of the BC is that the alterations are entirely a private expense, and not its responsibility.
The primary proceedings
The dispute came before an Adjudicator of the Body Corporate and Community Management Commission on 21 November 2013.
The particular part of the work for which a refund is claimed is a repositioning of a waste pipe and water pipe servicing Unit 7, immediately above Ms McLeod’s unit. It is clear that those pipes are on common property, which, as a general rule, the BC is obliged to maintain in good condition.[1]
[1]Body Corporate and Community Management Act 1997 (Qld) (“the BCCMA”) s 152.
But Ms McLeod maintains that they were not in good condition – an allegation denied by the BC. No doubt she realised that it was necessary to her case to assign some reason for interference with common property, other than her private renovations.
The Adjudicator found that there was no evidence to support that allegation,[2] and that the only reason for relocating the pipes was the appellant’s decision to install a shower recess.[3] There being no other basis upon which liability could be attributed to the BC, he dismissed the claim.
[2]Adjudicator’s decision 21 November 2013 at [23].
[3]Ibid at [19].
From that decision Ms McLeod appeals to the Tribunal. Jurisdiction to entertain the appeal depends on section 289 of the BCCMA. It is limited to questions of law.[4]
[4]BCCMA, s 289(2).
Grounds 1 and 2: The condition of the pipes
By her first ground of appeal, Ms McLeod contends that it was ‘never proven by objective assessment’ that the subject pipes were in good condition.[5] But this misconceives the onus of proof. The assertion is hers. More than an assertion is needed. Primarily it is for her to establish that they were not in good condition, not for the BC to prove the contrary.
[5]Ground of appeal No 1, application filed 17 December 2013; submissions accompanying that application, page 1, penultimate paragraph. See also pages 2 and 3.
Probably because of this misconception, no evidence of pipe defects is offered in further submissions in support of the appeal.[6] No error of law is discernible in the Adjudicator’s finding that there is no evidence to support the allegation that the work done on the subject pipes was necessitated by the BC’s failure to maintain them in good condition: Ground 2. Accordingly the first and second grounds of appeal are insubstantial.
[6]Submissions of appellant 28 February 2014. It is not apparent that an attached email dealing with loose tiles in a stairwell is relevant to this case.
Ground 3: Are the pipes an unreasonable interference?
The third ground of appeal is as follows:
That an easement (such as service water/waste pipes) must not be exercised in a way that unreasonably interferes with a lot owner’s use, enjoyment and derivation of benefits of a lot.
As it stands, this is a general observation rather than an allegation directly related to this case. However, that lack of specificity is cured by this passage in the appellant’s original submissions:
As lot 3 utility duct is an easement taking up 20% of the measurable volumetric area of the combined “bath recess + duct” it is unfair and inequitable to expect that those lot 7 pipes should have also been allowed to encroach on the original space of the other 80% of “bath recess + duct”, thus unreasonably[7] interfering with my use, enjoyment and ability to derive benefits from my lot by including a shower replacing the old bath.[8]
[7]The reference is to BCCMA, s 68(1) and Land Title Act 1994 (Qld), s 115O(2).
[8]Submissions 17 December 2013, page 4.
The ‘verbal opinion of two body corporate authorised plumbers’ is offered as hearsay support for Ground 3.
It is not clear that this particular argument was addressed to the Adjudicator, who merely notes a submission that ‘the pipes were illegally located within [Ms McLeod’s unit]’.[9] The present appeal is governed by section 146 of the QCAT Act. Such an appeal, on a question of law only, is confined to the evidence that was obtained by or presented to the Adjudicator.[10]
[9]Adjudicator’s decision 21 November 2013 at [19].
[10]Ballada Pty Ltd v North Point Brisbane & Anor [2013] QCATA 184 at [9].
The building in question was erected in 1987. The Adjudicator was satisfied that the plumbing work complied with the relevant laws then in force, and that it was duly inspected, and approved by a competent engineer.[11] That finding necessarily implies that there was no unreasonable interference with the right and title of the proprietor of Unit 3. Reasonableness is question of fact and degree, and I find no legal error in the Adjudicator’s decision on that issue.
[11]Ibid at [18].
Besides, unreasonable interference, if any, has no bearing on an issue of defective maintenance, and there is no action properly before the Tribunal (if indeed there could be one) for relief against an unnamed person who caused such interference, if any.
There is no substance in Ground 3 as a basis for the present claim for refund by the BC of the cost (or part of the cost) of the appellant’s alterations to her bathroom.
The fourth ground of appeal is simply an expression of dissatisfaction with the primary decision and, as such requires no further comment.
As indicated above, and on the evidence before the Adjudicators, no error of law has been shown. Arguments about facts reasonably found by the primary tribunal are not maintainable in these proceedings.[12]
[12]BCCMA s 289(2); Coles v Body Corporate for Evolution Apartments CTS 38033 [2014] QCATA 21.
Accordingly the appeal must be dismissed, and the decision of the Adjudicator confirmed.
ORDERS
1 Appeal dismissed.
2 The decision of the Adjudicator in McLeod v PMV Court Body Corporate CTS 7323 [2013] QBCCMCmr 464 is confirmed.
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