Noosa Shire Council v Owners of Lots 1-40 on SP115731, Lots 41-68 on SP115743 and Lots 69-94 on SP118002 at Noosa Lakes Resort
[2014] QPEC 69
•3rd December 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Noosa Shire Council v Owners of Lots 1-40 on SP115731, Lots 41-68 on SP115743 & Lots 69-94 on SP118002 at Noosa Lakes Resort & Ors [2014] QPEC 69
PARTIES:
NOOSA SHIRE COUNCIL
(applicant)v
OWNERS OF LOTS 1-40 ON SP115731, LOTS 41-68 ON SP115743 & LOTS 69-94 ON SP118002 AT NOOSA LAKES RESORT
(first respondent)and
BODY CORPORATE FOR NOOSA LAKES RESORT CTS 26995
(second respondent)and
SN NOOSA PTY LTD ACN 151341052
(third respondent)FILE NO/S:
152/2012
DIVISION:
Planning & Environment Court
PROCEEDING:
Application in pending proceedings and application pursuant to liberty to apply order seeking finding of fact.
ORIGINATING COURT:
Planning & Environment Court, Maroochydore
DELIVERED ON:
3rd December 2014
DELIVERED AT:
Maroochydore
HEARING DATE:
21 November 2014
JUDGE:
Robertson DCJ
ORDER:
1. Application filed by second respondent on 13.11.14 is dismissed.
2. Application filed by the second respondent on 15.10.14 is dismissed except in relation to the costs of that application.
3. I find, as a matter of fact, that the wireless fire system installed by Mr Huxley’s company at the behest of the body corporate is “equivalent to the one described in the affidavit of Christopher Robert Odgers filed on 17 January 2014, including the works described in paragraph 9 and the notes on page 2 of exhibit CRO-3 (collectively ‘the Wireless Fire System’) to service the Noosa Lakes Resort (which has been designed to provide an equivalent level of fire safety to the occupants of the Resort as the fire separation and egress requirements of a Class 2 buildings (sic) for each lot would provide).
4. I direct the parties to file written submissions in relation to costs.
CATCHWORDS:
PLANNING & ENVIRONMENT ENFORCEMENT PROCEEDINGS : Where Council sought declarations and orders against the first respondents; where Council alleges that Units in the Resort are not fire safe; where all active parties by consent asked the Court to determine 3 preliminary points which was done and not challenged by appeal; where application set for full trial on 13-14 February 2014; where matter was compromised; where Council with consent of all active parties filed by leave a Amended Originating Application; where at hearing on 13.2.14 without demur Orders where made which included and enforcement order (7a.) directed at the second respondent; where it proceeded to carry out the requirements of that order; where a dispute of fact arose as to whether the works done by it enlivened the undertaking given by Council in order7; where second respondent filed a number of applications in pending proceedings which in part challenged the Court’s power to make order 7a.; where it also sought to adjourn the hearing on 21st November; where it also seeks summary judgment against Council
Legislation
Body Corporate and Community Management (Accommodation Module Regulation) 2008.
Sustainable Planning Act 2009
Cases
Sunshine Coast Regional Council v Owners of Lots 1-40 on SP115731 at Noosa Lakes Resorts & Anor [2013] QPEC 13
COUNSEL:
Mr A Sinclair for Applicant
Mr B Codd for Second Respondent
Mr M Nicholson for Third Respondent
Mr Brian Stockwell one of the First Respondents appeared on his own behalf
SOLICITORS:
Applicant – Wakefield Sykes
Second Respondent – Gadens
Third Respondent – Hynes Legal
These proceedings for declarations and enforcement orders, commenced with an Originating Application filed by the Sunshine Coast Regional Council as applicant on 17 August 2012 seeking (relevant to the remaining live issues):
“1. A declaration pursuant to s. 456 of the Sustainable Planning Act 2009 (‘SPA’) that the use of any of Lots 1 - 40 on SP115731, Lots 41 - 68 on SP115743 & Lots 69 - 94 on SP118002 otherwise known as ‘Noosa Lakes Resort’ at 1 - 3 Hilton Terrace, Noosaville (‘the Lots’), is not a lawful use and is a development offence namely a breach of s.582(a) of the SPA, if the ground floor of that Lot has kitchen facilities.
2. An enforcement order pursuant to s. 604 of the SPA that each of the first respondents are restrained from installing, leaving in place, using, permitting the use of or advertising the availability of kitchen facilities on the ground floor of their Lot or allowing any agent to do so.
3. A declaration pursuant to s. 456 of the SPA that each of the first respondents is committing a development offence namely a breach of s.580(1) of the SPA being a breach of a condition of the development approval requiring that each of the Lots have the fire separation and egress requirements for a Class 2 building.
4. An enforcement order pursuant to s, 604 of SPA that commencing 6 months from the date of this order, each of the first respondents is restrained from using or permitting the use of any of the Lots until either that Lot:
a.has the fire separation and egress requirements for a Class 2 building; or
b.complies with the recommendations for the installation of localized smoke alarm warning on each floor and interconnected heat alarm warnings on each floor and smoke seals fitted to each entry door as contained in the Affidavit of Christopher Robert Odgers sworn 12 June 2012.”
Also before the court are an Application in Pending Proceeding filed by the second Respondent (the Body Corporate) on 15 October 2014 and an Application in Pending Proceeding filed by it on 13 November 2014 for an adjournment. I will refer to these applications later in my reasons.
In support of its application, the Council (which has since changed its name by order to Noosa Shire Council) filed (among others) the affidavit of Christopher Robert Odgers, referred to in paragraph 4.b. above. Mr Odgers is a fire engineer and the affidavit includes as an exhibit his impressive résumé. It has never been contended, nor could it, that he is not an expert in evaluating fire risk, fire safety and engineering and audit undertaking of fire safety in buildings.
He has never been challenged about his opinions (relating to fire safety) expressed in the report filed as an exhibit to his affidavit filed 17.8.12.
As can be seen from the orders sought in the Originating Application, there was no allegation that the (‘the Body Corporate’) had ever committed a development offence. I can infer that the Owners (the First Respondents) have been content to have the Body Corporate look after and protect their interests in the litigation as only one, Mr Brian Stockwell, has ever taken an active part in the proceedings.
The parties ultimately consented to three preliminary points being determined by me. The Third Respondent owns a lot in the resort and also owns and operates the management rights for the resort and is currently the letting agent for 38 of the lots.
Prior to the preliminary hearing on 5 April 2013 the Body Corporate’s solicitors filed an affidavit by Mr Grehan, Building Certifier, who was then and still is the principal of a company trading as Pacific BCQ.
He was asked only to provide a report as a building certification expert, not as a fire safety expert. His report was directly relevant to the declaration sought in paragraph 3 of the Originating Application and to Condition 8.1 of the 1998 permit.
Condition 8.1 is described in my judgment: Sunshine Coast Regional Council v Owners of Lots 1-40 on SP115731 at Noosa Lakes Resorts & Anor [2013] QPEC 13. It is in these terms:
“Condition 8 –
The plans submitted for Building Approval are to comply with the following requirements:
8.1 The accommodation units are to be designed as Class 2 Buildings, with the applicable fire separation and egress requirements.”
The relevance and reasonableness of this condition was one of the issues for preliminary determination but not one advanced by the Body Corporate, no doubt as a result of the report of Mr Grehan annexed to his affidavit filed 14 February 2013. The only party to the proceedings who challenged the relevance and reasonableness of Condition 8.1 was Mr Stockwell.
Based on Mr Grehan’s then unchallenged evidence, as my later reasons reveal, the Body Corporate pursued only Question 2 in the preliminary points, namely:
“Whether the development approval is for;
(i)94 Lots (each has an additional permitted use, the use of the downstairs area for the accommodation of parties unrelated to the users of the upstairs area); or
(ii)188 self contained dwellings.”- it contended for (ii).
The Body Corporate argued that the approval was for 188 self contained dwellings.
All active parties made written and oral submissions and I gave judgment on 26 April 2013. In relation to the issue agitated by the Body Corporate I ruled against it and found that:
“The development approval current for Noosa Lakes Resort is for:
a.94 lots (each having as an additional permitted use, the use of the downstairs area for the accommodation of parties unrelated to the users of the upstairs area); and
b.Not for 188 self-contained dwellings.”
My decision was not appealed.
The parties continued to negotiate. On 4 October 2013 with the agreement of all active parties a Directions Order was made culminating in a trial being listed for 13 and 14 February 2014. I infer that thereafter the parties continued to negotiate.
On 17 January 2014, the Council filed by leave given on that day a Further Amended Originating Application (the FAOA), which contained for the first time in paragraph 6 a reference to the Order which became paragraph 7 in the order made by me on 13 February 2014. At no time has the Council alleged that the Body Corporate has committed or is likely to commit a development offence.
I was informed in advance of the hearing date that the matter was settled and ultimately the Order of 13 February 2014 which is in fact the final judgment, was made by me on that date with the agreement of all active parties.
As the order requires an exercise of discretion it could not be drafted in the form of consent order but significantly no party opposed its terms or sought to proceed with the trial listed for that day.
Relevantly to the issue now before me are the following parts of the order:
“IT IS DECLARED THAT:
6.Pursuant to s 456 of the SPA, each of the First Respondents who is not complying with Order 7(b) is committing a development offence namely a breach of s 580(1) of the SPA being a breach of a condition of the development approval requiring that each of the Lots have the fire separation and egress requirements for a Class 2 building.
IT IS ORDERED THAT:
7.On the Applicant undertaking to pay for the installation of a wireless fire detection system, equivalent to the one described in the affidavit of Christopher Robert Odgers filed on 17 January 2014, including the works described in paragraph 9 and the notes on page 2 of exhibit CRO-3 (collectively ‘the Wireless Fire System’) to service the Noosa Lakes Resort (which has been designed to provide an equivalent level of fire safety to the occupants of the Resort as the fire separation and egress requirements of a Class 2 buildings (sic) for each Lot would provide), such undertaking extending to paying for the work completed within three months of this order:
a.The Court makes an enforcement order pursuant to s 604 SPA that the Second Respondent, as soon as possible, arrange for installation and the ongoing maintenance of the Wireless Fire System, as utility infrastructure servicing more than one Lot, throughout the scheme land including each of the First Respondent’s Lots;
b.The Court makes an enforcement order pursuant to s 604 SPA that each of the First Respondents, commencing three months from the date of this order, is restrained from using or permitting the use of any of the Lots unless that Lot:
i.is used by or let exclusively to a single related group of people; or
ii.has installed, maintained (by the Second Respondent) and operational within it, the relevant components of the Wireless Fire System (for example a wireless detection unit).
8.Liberty to apply on the giving of three days notice in writing.”
Relevantly to the Body Corporate’s attack now on Order 7a, is its own written submission dated 13 February 2014 filed as document 62 in the court file by its present solicitors in support of the 13.2.14 Order including 7a. It is worth noting from that submission and in particular paragraphs 6 and 7:
“Order 6
6.The commission of a development offence is likely to have not insignificant consequences for the Second Respondent, including by virtue of its statutory obligation to insure the buildings containing the First Respondent’s Lots (pursuant to s 177 of the Body Corporate and Community Management (Accommodation Module Regulation) 2008).
7.Accordingly the Second Respondent says that given that performance of Order 7 is intended to address both:
(i)The underlying danger arising from the development offence detailed within Order 6; and
(ii)The causes of that development offence, being the level of fire safety compliance of the Lots in the Scheme;
that provided Order 7 is made, enlivened (by the undertaking being given), and performed (both initially and on an ongoing basis), then no Lot owner is committing a development offence and ought thus not liable to be prosecuted for the commission of that offence.”
Nowhere in that submission did the Body Corporate challenge this Court’s jurisdiction to make Order 7a. It is completely contrary to the stance now taken by the Body Corporate. During the hearing on 19 November 2014, Mr Codd was good enough to provide me with a copy of the transcript of the proceedings on 13 February 2014 before me. Unfortunately a copy of that transcript was not on the Court file.
It is clear that I was concerned about whether or not the court had jurisdiction to make Order 7a. I raised this with Mr Sinclair and with Mr Kleinschmidt who was and still is the solicitor with carriage of the matter on behalf of the Body Corporate. Mr Kleinschmidt informed me that he had not turned his mind to the issue of jurisdiction. Mr Sinclair then took me to some provisions in the SPA and convinced me despite my obvious concerns that the jurisdiction was wide enough to make order 7a.
The Body Corporate’s position now is that this Court never had jurisdiction to make order 7a. and the order should now be set aside. The Application in Pending Proceeding filed by the Body Corporate on 15 October 2014 is relevantly in these terms:
“The Second Respondent applies to the Planning & Environment Court at Maroochydore for the following orders:
1.The applicant pay the second respondent the sum of $125,492.55 by 23 October 2014.
2.That upon the undertaking of the second respondent to cause any further work to the ‘Wireless Fire System’, referred to in the order made by the Court on 13 February 2014, required by the applicant to be completed, the applicant pay the amount of all invoices from a supplier or building contractor to the second respondent in respect of the second respondent’s compliance with the aforesaid undertaking, within seven days of the second respondent serving any such invoice upon the applicant.
3.The proceeding be stayed until such time as item 2 herein has been complied with.
4.Paragraph 7a. of the order of this court of 13 February 2014 is cancelled.
5.That upon compliance with the undertaking and payment of all invoices under item 2 herein, and upon the filing of an affidavit from the solicitor of the second respondent verifying the aforesaid compliance, summary judgment be entered in favour of the second respondent on the originating application.
6.The applicant pay the second respondent’s its costs of and incidental to the proceeding.”
The argument advanced in relation to order 7a. can be disposed of very quickly. I agree that on a proper construction of relevant provisions in Chapter 7 Part 3 Division 5(2) (s. 601(1)(a); s. 604(1) for example) of the SPA, this Court, which is a creature of statute, does not have jurisdiction to make an enforcement order against an entity that has not committed or is not likely to commit a development offence. To that extent the argument advanced by Mr Sinclair at the hearing on 13 February 2014 was without merit.
It follows that order 7a. was made without jurisdiction and probably has no legal effect in the sense that the Body Corporate could never be prosecuted for committing a development offence by failing to comply with 7a. It is however far too late to ask this Court to set aside that order.
Of course the setting aside or the “cancelling” of the order as the Body Corporate now seeks completely lacks utility, as the whole thrust of the Body Corporate’s argument is that it has complied with order 7a. Consistent with its stance taken at and prior to 13 February 2014 and since, the Body Corporate says that it has complied with that order.
Indeed in none of the applications filed since the order by the Body Corporate (e.g. 21.5.14, 7.7.14), to seek extensions of the times referred to in the February Order for carrying out the works because of difficulties identified in the material, did the Body Corporate challenge the jurisdiction of the Court to make the order.
The complaint is that the Court erred in law in making that order, and in my opinion the only avenue open to the Body Corporate is and was to appeal to the Court of Appeal against what was clearly an error of law and this it has not done.
I agree with Mr Sinclair that s 606(3) is not engaged because 7a. is not severable from Council’s undertaking, nor is it severable from 7b. which was clearly within the jurisdiction of this Court to make. As he notes, the power to cancel an enforcement order pursuant to s 606(3) assumes that this Court had jurisdiction to make such an order in the first place which the Body Corporate argues (probably correctly) it did not; therefore the only avenue is by way of appeal to the Court of Appeal pursuant to s. 498(1)(a), (b) or (c). Section 498(2) requires the Body Corporate to obtain leave to appeal from that Court or a Judge of that Court.
The real issue joined between the parties is whether or not the system installed at the direction of the Body Corporate fits the description of the Wireless Fire System in order 7 or not. This is a question of fact. The parties at my specific request have agreed to me determining this question of fact pursuant to order 8 of the February order.
In accordance with his company’s earlier retainer, Mr Grehan was “responsible for superintending the installation of the Wireless Fire Detection System at the Resort”. He was not provided with a copy of the Order dated 17 February 2014. He retained Mr Dean Huxley of Ignition Fire and Electrical Pty Ltd to install the system. He obtained a quote dated 25 February 2014 from Mr Huxley which is Exhibit DPH-1C to his affidavit filed 20 November 2014. It is in exactly the same terms as the quotation exhibited to Mr Odgers’ affidavit filed 17 January 2014 and marked CRO-3 which is dated 22 October 2013 and which is taken up in Order 7.
It is common ground that the system installed is the system described in Exhibit DPH- 1C to Mr Huxley’s affidavit. It is common ground that the system does not provide for “the smoke alarms in each townhouse to be interconnected, so that if a smoke alarm activated in any part of the townhouse (upstairs accommodation area, downstairs accommodation area or common area), the alarm would sound at least in each of the other areas in that townhouse.”
This is a reference to paragraph 4 of Mr Odgers’ affidavit sworn 19.11.14 and filed by leave at the hearing on 21 November 2014. He asserts (by reference to paragraphs 3 and 5 of that affidavit) that when he received the quote (CRO-3 to his affidavit filed 17.1.14), i.e. sometime after 22 October 2013 and before 14 January 2014 when he signed his affidavit, he telephoned Mr Huxley “to clarify exactly what the system comprised”, and that he “specifically asked Mr Huxley if the system provided for interconnection within the whole of the townhouse. Mr Huxley confirmed that it did … ”
Mr Huxley denies on oath that there was ever such a conversation. He describes the system installed (in accordance with the quotation given by his company to Mr Grehan) in paragraph 10 of his affidavit filed on behalf of the Body Corporate on 20 November 2014:
“10.The wireless fire detection system described in the quotation contains the following key features:
(a)the installation of a wireless fire smoke detectors (sic) in the upstairs and downstairs floors of all units, which would alert a central fire indicator panel upon the detection of smoke; and
(b)the installation of a central fire indicator panel located in or near the reception of the Resort, which would indicate the location of any smoke alarm that had been triggered and (if necessary) alert the Queensland Fire and Rescue Service; and
(c)the installation of other devices and infrastructure necessary for the operation of the components described above.”
Both Mr Odgers and Mr Huxley gave oral evidence and were cross-examined. I am specifically asked not to determine issues of credibility. Mr Odgers was recalling this conversation from memory and not from notes made at the time. Critically to the only issue for me to determine is what Mr Odgers said in his affidavit filed 17 January 2014 i.e. the affidavit that is referred to in Order 7:
“5.I have examined this proposal (this is a reference to Exhibit CRO-3 to his affidavit) and contacted the people at Ignition Fire, who I know very well, to discuss it. I am satisfied that the solution it proposes will meet the necessary fire safety objectives and provide an equivalent or greater level of fire safety to the occupants of the Resort as the fire separation and egress requirements of a Class 2 Building for each lot would provide.
6.If this solution is adopted, no other fire safety measures or building modifications will be required to give the required fire safety factor.”
The Body Corporate ( at least by inference) argues that, on the proper reading of the notes to Exhibit CRO-3; the Exhibit itself, and the affidavit in particular paragraphs 5 and 6 , the system installed is indeed “equivalent to the one described in (that affidavit)”.
Council argues to the contrary. As I apprehend the argument advanced by Council (if you discount the disputed conversation between Mr Huxley and Mr Odgers after receipt of the 22.10.13 quotation as I must); when the affidavit of 17.1.14 is read as a whole, it is clear that interconnectedness, in the sense described in paragraph 4 of the affidavit of Mr Odgers filed 21.11.14, was required as an essential component to achieve fire safety when units are being occupied upstairs and downstairs by unrelated groups of people.
This submission is in part a reference to paragraph 7 and 8 of the 17.1.14 affidavit:
“7.Each lot owner will only have to permit the installation of the wireless smoke alarms in their lot. These would look and function like ordinary smoke alarms except that they would be connected back to a central facility so that warning of a fire detection in one lot could be given in other lots in the same building, to the manager and to other family groups staying in the same lot either above or below the point of detection.
8.In addition, should any one lot be used only for one family group, that lot would not require the wireless smoke detection system in order to protect its occupants from those of other lots or vice versa and despite that lot not having the fire separation and egress requirements of a Class 2 Building, it would have those appropriate to its use (effectively as a Class 1 Building).”
In my opinion, these statements do not clearly and unequivocally emphasise the critical need for interconnectedness in the way in which this is described in paragraph 4 of Mr Odgers’ 19.11.14 affidavit. It is also not in the clear and unambiguous terms of the Order sought in paragraph 4.b. of Council’s Originating Application filed on 17 August 2012.
Council also rely on paragraph 2 of the 17.1.14 affidavit of Mr Odgers which is in these terms:
“2.I refer to my affidavit filed in these proceedings on 17 August 2012 and to my report being exhibit CRO-1 thereto which contains my assessment of the premises at 1-3 Hilton Terrace Noosaville, known as Noosa Lakes Resort (‘the Resort’) with respect to building classification and fire safety issues.”
This is a reference back to his affidavit filed on 17.8.12 in support of Council’s Originating Application filed that day. That in turn refers to his report dated 22 May 2012 annexed as CRO-1 to that affidavit. As an acknowledged fire expert, he provided a “fire engineering evaluation of existing building conditions where unrelated persons may be accommodated on separate floors within the confines of a single dwelling unit”. He set out at paragraph [11] in tabular form a summary of that evaluation. He then wrote:
“13. I consider the worst credible fire to likely to occur to be one starting in the downstairs part of the dwelling at night when there are unrelated occupants upstairs.
14. It can be gleaned from Table 1 that if a developing fire occurs whilst occupants are sleeping, it is probable that occupants will suffer illness and/or injury or possible loss of life resulting from a worst credible fire scenario. This is because each unit entry door and/or penetrations through the ceiling lining installed under the first floor will fail early causing hot gases from a developing fire to migrate to the upper level inside the dwelling unit or to smoke fill the area in front of each entry door with hot gases thus preventing safe passage to outside the building.
15.Most deaths in fires result from smoke inhalation.
16. Note also that localised smoke alarms will only sound within the enclosure where these are installed. This may lead to very lengthy response times for occupants located on the upper level of the townhouse.
17. Where one unrelated household lives above another, the fire alarm systems between them should be interconnected.”
Paragraphs [16] and [17] clearly raise interconnectedness in the scenario there described. It was Council which settled upon the words in Order 7 of the 13 February Order when it obtained my leave to file its FAOA on 17.1.14. Obviously, the Body Corporate agreed with that terminology. If instead of using the equivocal wording which found its way into Order 7 on 13 February, Council had referred to CRO-3 and used the words quoted above from paragraph [4] of Mr Odgers’ affidavit filed 21.11.14, there could have been no confusion. Clearly, the Body Corporate should have provided Mr Grehan with both of Odgers’ affidavits (17.8.12 and 17.1.14), and the 13.2.14 Order, but, in my opinion, in the absence of the clear requirement now articulated by Mr Odgers in [4] of his most recent affidavit, even in that situation Mr Grehan may not have understood the importance of that requirement. If, as Mr Odgers now asserts, that interconnectedness was so important to fire safety where one unrelated household lives above another, it is almost inconceivable that he did not make it clear to Council that Exhibit CRO-3 referred to in Order 7 does not refer to that issue. It would have been simple to insert the words now set out in [4] of his most recent affidavit so that everyone would have known exactly what was required.
It follows that, in my opinion, the Body Corporate has installed, and paid for, a wireless fire system that satisfies the description in Order 7. As I noted in the hearing on 21 November 2014, I would expect Council, as a model litigant, to now honour its undertaking. For that reason, I intend to adjourn this aspect of the matter to a date to be fixed to enable the parties to respond to my finding of fact.
I should also note to add to the confusion, the affidavit of Mr Odgers referred to Order 7 of the 13.2.14 Order was filed by leave on the day I granted leave to Council to file its FAOA, that is 17.1.14. It is document 48 on the file. For some reason, another copy of the same affidavit was filed by Council’s solicitors on 30.1.14 and became document 57 on the file. No-one has made any point about this, but it is unfortunate, given that it is the document which was intended to give clear meaning to the order I made on 13.2.14.
I do wish however to make a number of observations for the benefit of the parties, but also for the assistance of any person or persons who may be occupying a single dwelling unit in circumstances in which another unrelated person or persons may be accommodated on the other floor of that unit. I also need to deal with the Body Corporates’ applications in pending proceedings.
Having regard to the affidavit of Mr Peter Sweeney filed by leave on behalf of the Third Respondent on 21 November 2014, 93 out of the 95 lots can be let on a dual letting basis; and the third respondent is currently the letting agent for 38 of those 93 lots. However, I am unable to otherwise say which of the lots are in fact “used by or let exclusively to a single related group of people”.
As the evidence stands, the only fire safety expert to provide evidence, Mr Odgers, is of the opinion that, in the absence of interconnectedness between the smoke alarms on each floor with each other and a central unit or units, such that the situation referred to in paragraph 4 of his affidavit filed 21.11.14 pertains, there is a fire danger to people occupying the Lots.
It is suffice for me to note that the Body Corporate is aware of this evidence, as is Mr Wheeler who is the principal of the Body Corporate manager engaged by the Body Corporate and who, in conjunction with the Committee of the Body Corporate, has been responsible for “the care and conduct of the matters the subject of these proceedings.” The Third Respondent is also aware of this evidence but it is a manager (except for the Lot it owns) and presumably is contracted by the Body Corporate.
In preparation for the hearing, the Body Corporate obtained a quotation from Ignition Fire which is Exhibit 2 in the proceedings. It may show that it was uncertain that the system installed by it pursuant to 7a. was not such as would adequately protect occupants in the dual letting scenario. As I understand it, the second part of the quotation dated 17 November 2014 is to upgrade the present system installed, but I do not understand that it would necessarily lead to interconnectedness. Having regard to the first quotation contained in Exhibit 2, it seems now to be prohibitively expensive for the Body Corporate to provide the interconnectedness that Mr Odgers says is vital for fire safety.
Mr Stockwell, the only one of the first respondents to take an active role in the proceedings, tells me he is also the chair of the Committee of the Body Corporate. It will be a matter for the Body Corporate to take what steps it thinks is necessary to ensure the safety of persons in the situation described above, and to appropriately inform its relevant insurer and to advise other interested persons.
The other matter I have to deal with is the balance of the Body Corporates’ Applications in Pending Proceedings. As I commented to Mr Codd, the October application in its form does not comply with the Rules as it does not nominate the section or Rule pursuant to which the orders sought in paragraphs 1-5 relate. It is suffice to say that my opinion as to the jurisdictional issue, and the finding of fact in relation to Order 7, disposes of 1 (assuming that is the amount sworn to by Messrs Grehan and Wheeler – Mr Sinclair made no submission to the contrary), 2, 3, 4 and 5. As my observations above record, it will be a matter for the Body Corporate to decide if it needs to do any further work in the installed wireless system in response to Mr Odgers’ opinion.
The basis for the orders sought becomes clearer when the grounds are read in conjunction with a 19-page written outline dated 20 October 2014 prepared by Mr Codd but not provided to me until I requested it on 20 November 2014.
There is the jurisdictional issue which I have already determined against the Body Corporate. There is an issue ventilated about the original classification of the building when the town planning permit issued. This refers to the affidavits of Mr Grehan and the cross-examination of Mr Odgers in part. This is an issue that should have been ventilated prior to 13.2.14. If that was then the position of the Body Corporate, it should have made it clear prior to agreeing to the February Order.
It is far too late to re-litigate in these proceedings an issue that (a) could have been determined as a preliminary point in the proceedings the subject of my 26.4.13 decision, or (b) could have been litigated at the trial set for 13-14 February 2014, but was not because the order of that date was made without demur from the Body Corporate.
The argument misapprehends the limited scope of my role now in relation to this discrete issue, which was simply to determine as a matter of fact whether the system installed since the 13.2.14 order fits the description of the system in Order 7.
The application for “summary judgment” pursuant to r 293 UCPR at this stage of the proceedings is totally misconceived. It refers back to the jurisdictional issue. There is no doubt that this Court does have the power to award summary judgment, but not in the circumstances where the party seeking relief already is the subject of a final order in the proceedings in which it seeks summary judgment.
The written outline substantially expands upon the grounds articulated in the Application in Pending Proceedings filed 15 October 2014. The construction argument directed at Condition 8 was not an argument advanced by the Body Corporate at the preliminary hearing or at any time prior to the 13.2.14 order. For the same reasons expressed above, it is far too late for this to be argued now. It appears from the written submission, that Mr Codd’s argument in this regard is directed at the jurisdictional issue which I have determined against his client in the sense that the only court that has jurisdiction to determine that issue now is the Court of Appeal. The reference to r 900 UCPR is unhelpful.
Instead of embarking on a largely futile frolic into legal principle, Mr Codd and his client should have concentrated on the real issue, which I have determined in their favour. Nowhere in his written or oral submission could I find any analysis of the factual matters set out above, apart from stating that his client had complied with its obligations in 7a (which it impugns, in any event). An example of this is paragraphs 17-18 of his written outline.
The only live issue remaining is costs, which I will refer to later. Apart from the application for costs in paragraph 6 of the Application in Pending Proceedings filed 15.10.14, that application is otherwise dismissed. The application for an adjournment of the hearing filed 13.11.14, and mentioned before Judge Long SC who referred it to me to be argued at the hearing on 21.11.14, was not pursued by the Body Corporate and should also be dismissed.
I direct that the parties file written submissions in relation to costs. In relation to Mr Nicholson’s client, the effect of my findings will mean that 7b. will come into effect on 13 December, and for the reasons set out above, 7b.ii. has been complied with.
To make it clear, I find, as a matter of fact, that the wireless fire system installed by Mr Huxley’s company at the behest of the Body Corporate is “equivalent to the one described in the affidavit of Christopher Robert Odgers filed on 17 January 2014, including the works described in paragraph 9 and the notes of page 2 of exhibit CRO-3 (collectively ‘the Wireless Fire System’) to service the Noosa Lakes Resort (which has been designed to provide an equivalent level of fire safety to the occupants of the Resort as the fire separation and egress requirements of a Class 2 buildings (sic) for each Lot would provide), …”.
Order 8 of the 13.2.14 order relating to liberty to apply remains in force.
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