O'Connell v Williams

[2012] QCATA 134

CITATION: O’Connell v Williams [2012] QCATA 134

PARTIES:	Terence O’Connell (Applicant/Appellant)
v
Philip Williams (Respondent)

APPLICATION NUMBER: APL007-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: K Dodds, Member

DELIVERED ON: 6 August 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.   Appeal dismissed.  The decision of the adjudicator is confirmed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – BODY CORPORATE AND COMMUNITY MAMAGEMENT – REVERSION CONTRIBUTION SCHEDULE LOT ENTITLEMENTS – ADJUSTMENT ORDER –where adjudicator made order in relation to adjustment order reversal motion – whether adjudicator misinterpreted meaning of legislation – whether adjudicator erred in fact – whether adjudicator breached rules of natural justice – whether adjudicator erred in law – whether order of District Court was an “adjustment order” as defined

Acts Interpretation Act1954, s 14
Body Corporate and Community Management Act1997, ss 378, 379, 385
Body Corporate and Community Management (Accommodation Module) Regulation 2008, s 42
Queensland Civil and Administrative Tribunal Act 2009, s 32

Raby v Body Corporate for 1 Holman Street KL012-07 16 September 2011

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 (“QCAT Act”).

REASONS FOR DECISION

[1]   On 1 August 2011, the respondent Mr Williams applied for the appointment of an adjudicator, pursuant to the Act.  Mr Williams is the owner of a lot in Magic Mountain Apartments Two Community Title Scheme (“CTS”) 15853 (Magic Mountain).  According to the Community Management Statement (“CMS”) for Magic Mountain, the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (“the Regulation”) applies to Magic Mountain.  The issue Mr Williams put forward to be adjudicated was the failure of the committee of Magic Mountain to progress a motion by him for the reversion of contribution schedule lot entitlements for Magic Mountain to those that had existed prior to an order of the District Court at Southport on 7 July 2003, which had adjusted them.

[2] The adjudication was conducted upon written material. The adjudicator ordered that the body corporate of Magic Mountain must deal with the adjustment order reversal motion under s 385 of the Body Corporate and Community Management Act 1997 (“the BCCM Act”) and that the committee take all steps required by s 385 as quickly as possible.

[3]   The grounds of appeal and orders sought:

Grounds:

• The decision misinterprets the meaning of the legislation;

• The decision makes a finding of fact where there is no evidence to support that finding;

• The adjudicator breached the rules of natural justice in making the decision.

  Orders:

• The decision of the adjudicator is wrong in law;

• The District Court order of July 7 is not an adjustment order for the purposes of BCCM 378.

  [4]   I have considered the submissions by the parties.  The appellant’s submissions enlarge on the grounds.

  Ground of appeal: breach of rules of natural justice

  [5] The appellant’s submissions indicate that this ground refers to the appellant’s assertion that the adjudicator did not properly and correctly identify the true nature of the order of the District Court at Southport and then correctly apply s 378(b) of the BCCM Act, thereby denying the appellant and others natural justice.

  [6]   This ground is linked to the ground about misinterpretation of the legislation.  I will put it to one side for the moment. 

  Ground of appeal: the adjudicator’s decision makes a finding of fact when there is no evidence to support the finding

  [7]   The appellant’s submissions indicate that this ground refers to the adjudicator’s reasons for his decision that indicated there was no evidence that the District Court order gave effect to terms of settlement between the parties (the applicant and Body Corporate) or that it was a consent order.

  [8]   This ground also may conveniently be dealt with in considering the remaining ground of appeal.

  Ground of appeal: the decision misinterprets the meaning of the legislation

  [9] The appellant’s submissions assert that the adjudicator failed to apply the words in s 378(b) of the BCCM Act to the question before him, and that the adjudicator failed to properly consider the meaning of the section. The submissions assert that when considering the exclusionary effect of s 378(b), the adjudicator focussed on whether there was evidence the District Court order was a consent order or there was a settlement to which the order gave effect, rather than considering the actual words of sub-paragraph (b), which reads: “an order of a court --- giving effect to a decision that is not made by the court”. The submission includes a reference to s 14B of the Acts Interpretation Act 1954 and the decision of the President of the Tribunal in Raby v Body Corporate for 1 Holman Street[1].

  [1]        KL012-07 16 September 2011.

  [10] The essence of the appeal involves the 7 July 2003 order of the District Court and amendments made to the BCCM Act by Act 9 of 2011. Act 9 of 2011 came into force on 14 April 2011. Consequent on the amendments, s 379 of the BCCM Act empowered an owner of a lot in a CTS – such as Mr Williams, who had been the subject of an adjustment order as defined – to submit a motion to the committee to change their contribution schedule to that which existed prior to the adjustment order. That is what Mr Williams had sought by his motion. The resolution of the appeal for all practical purposes depends upon whether the adjudicator was correct in finding that the order of the District Court was an adjustment order as defined.

  [11] An adjustment order is defined in the Act to mean (omitting parts which have no bearing on this appeal):

  a)    “--- an order of a court --- made before the commencement” (the commencement of Act No. 9 of 2011) “providing for an adjustment of the contribution schedule for an existing scheme; but

  b)    does not include an order of a court --- giving effect to a decision that is not made by the court --- .

  Examples for paragraph (b) –

  ·     an order of a court --- giving effect to the terms of a settlement of a dispute between an owner of a lot included in an existing scheme and the body corporate if the terms provide for the adjustment of the contribution schedule for the scheme

  ·     a written agreement that –

  a)    is between an owner of a lot included in an existing scheme and the body corporate; and

  b)    provides for the adjustment of the contribution schedule for the scheme; and

  c)is filed in the registry of a court --- and is enforceable as an order of the court --- ”

  [12] Section 14D of the Acts Interpretation Act1954 (Qld) provides;

  “Examples:

  If an Act includes an example of the operation of a provision –

  a)    The example is not exhaustive; and

  b)    The example does not limit but may extend the meaning of the provision; and

  c)    The example and the provision are to be read in the context of each other and the other provisions of the Act but if the example and the provision, so read, are inconsistent the provision prevails”.

  [13] The adjudicator stated that there was:

  “no evidence that the order of the court gave affect to the terms of a settlement between the parties or that the order of the court was a consent order”

  This reference does not, in my view, indicate he failed to properly consider the words of s 378(b) of the BCCM Act. The reference is a part only of the adjudicator’s consideration of the question before him, whether the District Court order “was an order giving effect to a decision that is not made by a court”.

  [14] The adjudicator had regard to the examples in the section and concluded that it was evident from them that the section,

  “says there is no adjustment order to be reversed if the Body Corporate agreed to an adjustment and the court order merely formalised this agreement”. 

  This does not in my view indicate the adjudicator was ignoring the actual words in sub-paragraph (b).  It seems to me, rather, that he had regard to the examples to assist in interpreting the words of the sub-paragraph.  In the end he came to the view, correctly I think, that the District Court order was not “giving effect to a decision that is not made by the court”.  His approach to what he had to decide was consistent with what Wilson J said in Raby, explaining sub-paragraph (b):

  “The exception in the definition is rather intended to apply to a different circumstance where parties reach agreement before any determination is made by the Tribunal and simply seek that the Tribunal make an order giving effect to their agreement.  That conclusion is supported by the two examples given for it”.

  [15] The application to the District Court was supported by:

  a.an affidavit of Timothy Francis Sheehan sworn 29 April 2003, a consultant employed by Stewart Silver King and Burns Strata Title Consulting Pty Ltd to which was exhibited a contribution schedule lot entitlement report dated 17 April 2003 prepared by him at the request of the applicant’s solicitors;

  b.an affidavit of Michael Thomas Goodman sworn 12 May 2003, the applicant’s solicitor; and

  c.a further affidavit of Mr Goodman sworn 3 July 2003 exhibiting a letter from Mr Williams dated 13 June 2003 and a copy of Mr Goodman’s reply dated 16 June 2003.

  [16] The body corporate filed no material.

  [17] Mr Williams’ letter of 13 June made it plain that he disagreed with certain aspects of Mr Sheehan’s report.  Mr Goodman’s reply of 16 June advised Mr Williams that he was entitled to be joined as a party to the proceeding if he wished to do so.  It advised that a copy of his letter would be exhibited to an affidavit filed in the court prior to the matter proceeding.

  [18] The order of the District Court does not record that it was made by consent.  There is no evidence the body corporate consented to the order.  Nor is there any evidence it opposed the order.  Consent by the Body Corporate to a new Community Management Statement required a resolution of the body corporate without dissent.  The committee of the Body Corporate had no power to consent to the order made.  Fixing or changing a contribution to be levied by the Body Corporate or a decision that may only be made by resolution without dissent of the Body Corporate were restricted issues for the committee.[2]

  [2]Body Corporate and Community Management (Accommodation Module) Regulation 2008, s 42(1)(b). 

  [19] The only view open on the evidence is that the Body Corporate neither consented to nor opposed the order being sought. The decision was the court’s to be made on the material then before it. The report exhibited to Mr Sheehan’s affidavit was evidence for the court to consider in deciding whether to make the order sought. The court’s power to adjust the contribution lot entitlement was not unrestricted. It was governed by s 46 of the BCCM Act, which required the court to ensure any adjustment of lot entitlements in the contribution schedule was just and equitable if they were other than equal.

  [20] The appellant submitted that the words in sub-paragraph (b) “a decision that is not made by the court” had the result that if the decision to alter the contribution schedule was made by some person or entity other than the court and the court made an order according to that decision then the court order was not an adjustment order.  He submitted that Mr Sheehan had made the decision in his contribution schedule lot entitlement report dated 17 April 2003, and this decision was given effect to in the court order.  The court’s order was therefore not an adjustment order.

  [21] I do not agree with this submission.  Mr Sheehan in investigating and compiling his report for his employer, the lot owner making the application to the District Court, may be regarded as having reached certain conclusions and formed opinions.  It may be appropriate to say that he made a decision that the then existing contribution schedule was not just and equitable.  However that is not a decision sub-paragraph (b) is concerned with.  The decision sub-paragraph (b) is concerned with is a decision to adjust the contribution schedule.  Mr Sheehan did not decide that.  His report was evidence the court had regard to in making any decision about adjustment of the contribution schedule.  Any decision to adjust was a decision the court made.  Mr Sheehan’s report was evidence to which the court had regard in making its order.  The other party to the application was the Body Corporate.  The relevant “decision” for the purposes of sub-paragraph (b) is the decision of the Body Corporate.  The examples make this clear. 

  [22] The meaning of the words in subparagraph (b) are the essential question.  The exclusionary operation of subparagraph (b) only has effect where the court order under consideration gave effect to a decision that was not made by the court.  There is no evidence there was any decision by the respondent to the application to alter the contribution schedule of lot entitlements in the manner the court order did.

  [23] In my opinion the adjudicator’s decision was correct. The order made by the District Court at Southport in 2003 was an adjustment order as defined in s 378 of the BCCM Act. That being so, the grounds of appeal about a denial of natural justice and the adjudicator making a finding of fact when there was no evidence supporting such a finding are not made out.

  [24] The appeal is dismissed.  The adjudicator’s decision is confirmed.