Molier v The Body Corporate for Q1 CTS 34498

[2012] QCATA 8

CITATION: Molier v Body Corporate for Q1 CTS 34498 [2012] QCATA 8

PARTIES:	John Hendrik Molier (Applicant)
v
Body Corporate for Q1 CTS 34498 (Respondent)

APPLICATION NUMBER:   APL323-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Kenneth Barlow SC, Member

DELIVERED ON: 2 February 2012

DELIVERED AT: Brisbane

ORDERS MADE:     The application to extend time limit and the application for leave to appeal or appeal be dismissed.

CATCHWORDS:

Body Corporate and Community Management – extension of time for filing appeal – where adjudicator dismissed application nearly 12 months before appeal filed – whether sufficient reason shown to extend time for filing appeal

Body Corporate and Community Management Act1997, s290
Queensland Civil and Administrative Tribunal Act2009, s 61

APPEARANCES and REPRESENTATION (if any):

This proceeding was heard on the papers in the absence of the parties.

REASONS FOR DECISION

Introduction

1. The applicant, Mr Molier, was at relevant times the owner of a lot in the community titles scheme of which the respondent is the body corporate. 

2. By early 2009, Mr Molier had fallen behind in payment of his lot entitlement contributions.  As a consequence, he lost the advantage of timely payment discounts and the body corporate sought from him penalty interest and recovery costs pursuant to s 145 of the Body Corporate and Community Management Standard Module Regulation, which applies to the Scheme.

3. Mr Molier applied to the Body Corporate for reinstatement of the discounts and waiver of penalty interest but, on 8 April 2010, the committee of the body corporate resolved to refuse his application and instead to take legal action to recover all outstanding contributions and penalties.

4. Mr Molier sought to have the committee’s decision reviewed by an adjudicator on the ground that it was unreasonable, contrary to s 100(5) of the Body Corporate and Community Management Act1997.  The adjudicator dismissed Mr Molier’s application on 21 September 2010.  In essence, he found that, although the committee’s decision may be considered harsh, it was not objectively unreasonable for the body corporate to refuse to waive the relevant amounts.  Therefore, in making its decision, it did not act unreasonably.

5. On 9 September 2011, Mr Molier filed in the Tribunal an application to appeal and an application pursuant to s 61 of the Queensland Civil and Administrative Tribunal Act2009, by which he apparently seeks an order extending the time limit for commencing the appeal (although that is not specifically stated in the application).  Those applications are before me now.

Principles

1. Section 289 of the BCCM Act relevantly provides that a person who is aggrieved by an adjudicator’s order may appeal to this Tribunal, but only on a question of law. Section 290 provides that an appeal to this Tribunal must be started within six weeks after the aggrieved person receives a copy of the order appealed against.

2. Section 61 of the QCAT Act provides relevantly that the Tribunal may, by order, extend a time limit fixed for the start of the proceeding by an enabling act. The BCCM Act is an enabling act.

3. In his application to appeal, Mr Molier says that he received a copy of the adjudicator’s order on 23 September 2010. As I have said, he commenced this proceeding by filing the application to appeal on 9 September 2011. I must therefore consider whether to order that the time limit fixed by s 290 of the BCCM Act for starting this proceeding be extended.

4. The discretion given to this Tribunal under s 61 of the QCAT Act is limited only by subsection(3), which relevantly provides that the Tribunal cannot extend a time limit if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party to the proceeding.

5. The factors which a court or tribunal should take into account in considering the exercise of a discretion to extend time have generally been held to include the following:

   a)whether a satisfactory explanation or good reason is shown for the delay in taking the relevant step;

   b)the likelihood of success of the proceeding if leave to commence it is granted;

   c)any prejudice to other parties;

   d)the length of the delay, noting that a short delay is usually easier to excuse than a lengthy one;

   e)overall, whether it is in the interests of justice to grant the extension, which usually calls some analysis of the above factors considered in combination.[1] 

   [1]Crime and Misconduct Commission v Chapman [2011] QCAT 229, at [9]-[10]; Body Corporate for No 9 Port Douglas Road v McEvoy [2011] QCATA 292 at [12].

Consideration

1. The delay in this case was lengthy.  Having received the order on 23 September 2010, Mr Molier was entitled to commence an appeal in this Tribunal provided that he did so by 4 November 2010.  He did not do so until 9 September 2011, over 10 months later. 

2. Mr Molier filed a detailed (32 page) submission with his applications, in which he set out the reasons for his default in paying his contributions on time, and why he considered the body corporate’s behaviour in declining to waive the penalties and other charges to be unreasonable.  It is difficult to discern from that document the reasons for the delay.  It appears that he considered the adjudicator’s reasons to be difficult to understand and that he needed to get some outside help and an independent view and opinion about that decision.[2]  He does not clearly state, however, that he did get such help.  He then says that he started typing his application or his appeal document and after much work lost the entire document from his computer.  It appears also that he filed a fresh application for conciliation and adjudication in December 2010 and exchanged correspondence with the Commissioner’s office between February and sometime around the middle of 2011, when he was apparently told by the Commissioner or his office that it would not accept his new application, but he may be entitled to appeal to the Tribunal from the adjudicator’s decision.  Mr Molier says that before he was advised of that he had no idea that he had a right of appeal to QCAT. 

   [2]        This is stated at page 11 of his document.

3. Two problems arise from this submission.  First, the adjudicator’s order was served under a notice in BCCM Form 17, which expressly explains in clear language that aggrieved persons may appeal the order to the QCAT on a question of law and that the appeal must be started within six weeks after the date of the order.  Mr Molier appears to have read the reasons for the adjudicator’s decision, but does not explain why he did not take account of the rights of which he was advised in the notice of the order. 

4. Secondly, Mr Molier does not clearly explain the delay, from about the middle of 2011 to September 2011, in filing the documents by which he sought to commence this appeal. 

5. The body corporate has filed a response to the application to appeal and, it would seem, the application to extend time, in which it states that the application should be dismissed and leave to appeal should be refused.  Among other things, it contends that no question of law on which to appeal has been raised in Mr Molier’s submissions. 

6. In his submissions, Mr Molier is critical of the adjudicator’s decision, but principally, it seems, because of its length and the fact that the adjudicator went to some lengths to explore whether he had jurisdiction or whether the dispute was a “debt dispute”, as defined in s 229A of the BCCM Act.  If it was a debt dispute then he had no jurisdiction to deal with it.  He concluded that it was a not a debt dispute and, although it may be a “related dispute”, he should nevertheless deal with it.  He then analysed whether the committee and the body corporate were acting reasonably in making the relevant decision. 

7. Mr Molier does not specifically contend that the adjudicator made an error of law in his analysis of whether or not the decision was reasonable in accordance with s 100 of the BCCM Act.  Nor can I discern any error in the adjudicator’s reasoning. 

8. Mr Molier clearly has a deep sense of grievance and may not have understood his rights to appeal for some time, notwithstanding that he was informed of them at the time that he received the order.  However, he has demonstrated no basis upon which an appeal might be successful.  Furthermore, the delay in attempting to commence this appeal was extensive and is not sufficiently explained. 

9. In the circumstances, I do not consider that it is in the interests of justice to extend time for the filing of the appeal. 

10. I therefore dismiss the application to extend time and, to the extent necessary, dismiss the application for leave to appeal or appeal.