Orknie Pty Ltd v Body Corporate for Paloma CTS 9524
[2010] QCATA 52
•21 September 2010
| CITATION: | Orknie Pty Ltd v Body Corporate for Paloma CTS 9524 [2010] QCATA 52 |
| PARTIES: | Orknie Pty Ltd (Applicant/Appellant) |
| v | |
| Body Corporate for Paloma CTS 9524 (Respondent) |
APPLICATION NUMBER: APL059-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 21 September 2010
DELIVERED AT: Brisbane
ORDERS MADE: Dismiss the appeal
| CATCHWORDS : | BODY CORPORATE – OBLIGATIONS OF BODY CORPORATE AND LOT OWNERS – APPEAL – where the Body Corporate resolved to accept responsibility for rectification, consequential repairs and maintenance for certain lots through an extraordinary generally meeting – where Body Corporate adjudicator determined that resolutions were void – where adjudicator found that the obligation for repairs of the lots rested with the lot owners – where the applicant alleges adjudicator erred by denying it procedural fairness and failing to find that the Body Corporate was estopped from declining to act on a previously accepted obligation to make the repairs to the lots – whether the applicant was denied procedural fairness – whether the Body Corporate should be estopped from declining to undertake the repairs – whether error of law PROCEDURAL FAIRNESS – where adjudicator directed the parties to provide written submissions – where the applicant was away overseas and did not provide written submissions upon return – where the applicant alleges it was denied opportunity to make proper submissions – whether decision tainted by lack of procedural fairness ESTOPPEL – where applicant alleges Body Corporate previously accepted obligation to make repairs and is therefore estopped from declining to undertake those repairs – whether estoppel arises in the face of the legislation Body Corporate and Community Management Act 1997, ss 269(3), 290, 294 Kok Hoong v Leong Cheong Kweng Mines Ltd (1964) AC 993, cited Muin v Refugee Review Tribunal [2002] HCA 30, cited Yaxley v Gotts (2000) Ch 162, applied |
REASONS FOR DECISION
This proceeding concerns a block of home units at Albatross Avenue, Mermaid Beach and, in particular, units 9, 10, 11 and 12 and their eastern decks; and, frames and sliding doors on the eastern side of the building in units 9, 11.
At an extraordinary general meeting of the Body Corporate on 11 September 2009 it was resolved that the Body Corporate would continue to accept responsibility for the rectification and consequential repairs and maintenance of the eastern decks, including their walls and balcony entrances; and, would replace the frames and sliding doors on the eastern side of the building for units 9, and 11.
The owner of another unit, Ms Nanette Blair, was unhappy with these resolutions and filed an adjudication application under the Body Corporate and Community Management Act 1997 (BCCMA). The Commissioner for Body Corporate and Community Management referred the application to an adjudicator who, after investigating the matter and seeking submissions from the owners of all lots, determined that both resolutions were void and of no effect.
The learned adjudicator’s reasons are contained in the Commissioner’s file in the matter[1], and clearly explain the basis for the decision: that the balconies, and the doors leading to them, are within the boundaries of the respective lots and the obligation to maintain them falls, then, upon the lot owners and not upon the Body Corporate.
[1]Provided to QCAT under s 290 of the BCCMA
Orknie Pty Ltd, the owner of lot 11, filed an application in QCAT to review that decision through its director Mr McCallum. Strictly speaking the correct process involves an appeal to QCAT’s Appeal Tribunal[2]. The Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), however, allows the Tribunal to waive compliance with procedural requirements[3] and, indeed, exhorts it not to be bound up with excessive formality and technicality[4].
[2]BCCMA, Chapter 6, Part 11
[3]QCAT Act, s 61(1)(c)
[4]QCAT Act, s 28(3)(d)
At a directions hearing it was determined that the matter would be dealt with by written submissions from the parties and, thereafter, on the papers. Because the current secretary of the Body Corporate had supported the original motions, leave was given for other unit owners to provide written submissions[5].
[5]Submissions were received from Ms Nanette Blair, and Mr Peter Rowell
In an appeal from an adjudicator’s decision under the BCCMA, this Appeal Tribunal may exercise all the jurisdiction and powers of the adjudicator but the appeal may only be brought on a question of law: BCCMA, Chapter 6 Part 11.
Mr McCallum’s submissions advanced two grounds for appeal:
(a) that the adjudicator did not accord procedural fairness to him;
(b) that the adjudicator erred in failing to find that the Body Corporate was estopped from refusing to correct previous deficiencies in the work it had performed on the balconies and the doors, because it had previously accepted that obligation.
Both involve questions of law.
The first allegation rests on a history of the proceedings before the adjudicator, set out in a lengthy affidavit Mr McCallum filed with his original application to QCAT. In particular, it is alleged that because of his absence from Australia in September 2009, about which he had informed the adjudicator, he was denied the opportunity to make proper submissions.
The allegation does not withstand the scrutiny. In a letter of 15 September 2009 to the Commissioner’s office Mr McCallum communicated his ‘initial concerns’ and, also, requested ‘…the opportunity to present detailed submissions in due course after I have received further advice from my barrister who is also absent from Australia until 2 October 2009’. On 21 September 2009 the Commissioner’s office sent all lot owners an invitation to make a submission, and associated papers. The adjudicator’s order was not made until 4 March 2010. Mr McCallum’s affidavit says his ‘…mail remained uncollected until after my return to Australia on 20 October 2009’.
No adequate explanation is advanced as to why Mr McCallum did nothing to ensure his mail might be forwarded, or the matter otherwise addressed on his behalf, during his absence.
It is true that a letter from the Commissioner’s office of 19 October 2009 advised the parties that an adjudicator had been appointed and would consider the matter including the submissions of the parties, but Mr McCallum swears that he understood this to mean that any decision would be based on submissions ‘then received’ and that he was therefore ‘…precluded from making a submission in the matter’. The letter of 19 October 2009 says, however, in part:
The adjudicator may decide to make the order based on the material received to date. Alternatively, he or she may undertake further investigations, including requesting further information, interviewing the parties, or inspecting the scheme and/or its records. We will contact you again if we require anything further from you.
There is nothing in the letter or, in particular, in this passage to suggest the opportunity to make submissions had finally closed. Indeed, the first sentence would encourage any party wishing to make a further submission to do so.
Secondly, for reasons set out later, the learned adjudicator’s decision was so plainly correct that further submissions would otherwise have been pointless.
Under s 269(3) of the BCCMA the adjudicator was obliged, in the course of the investigation, to observe natural justice and, also, to act as quickly and with as little formality and technicality as was consistent with a fair and proper consideration of the matter.
Here, the issues in dispute, about which the adjudicator had to make a decision where abundantly clear. The steps which may be required to discharge an obligation, arising under principles of natural justice, to allow a person whose interests might be adversely affected by a decision the opportunity to make submissions about those matters will depend upon the circumstances of each particular case[6].
[6]Muin v Refugee Review Tribunal [2002] HCA 30 at [123] per McHugh J
It is, again for reasons which follow, inconceivable that the learned adjudicator could have reached any other decision. In those circumstances, any disadvantage to Mr McCallum arising out his failure to provide further submissions is without consequence, or effect.
The additional factor here which tells against him is that his failure to provide submissions was the product of his own actions: first, in failing to take steps to protect his own interests during his absence overseas; and, secondly, in failing to avail himself of the obvious opportunity to place further submissions before the adjudicator, if he wished to do so, between his return in October 2009 and the delivery of the decision over four months later.
His second submission is that the Body Corporate was estopped from refusing to maintain these particular parts of the property because of what had occurred in the past. As the learned adjudicator’s reasons show that matter was, in fact, fully canvassed in submissions made to the adjudicator by the owner of lot 9. It is said that a referee made a decision in about 1997, directing that the Body Corporate waterproof the balcony slab of lot 10 so as to prevent further water penetration to another lot, and that the owners of lots 9 and 11 now alleged that those repairs were defective.
The learned adjudicator rejected the relevance of this submission on two grounds: that the subject motions before the Body Corporate last year involved a misconceived application of that decision; and, that any further maintenance was more likely to be necessary, now, because of wear and tear over the ensuing lengthy period following the repairs.
A detailed history of these previous events is set out in Mr McCallum’s affidavits. He has produced a copy of an order made by the delegate of a referee under the former legislation, the Building Units and Group Titles Act 1980, which found there was a structural defect relating to lot 10 that was likely to effect support or shelter provided by that lot for another lot, and that the Body Corporate should rectify that work at its expense. The decision of the referee annexed to Mr McCallum’s affidavit also, however, contains the following words:
This is not to say that the Body Corporate was responsible for the original repairs to unit 10, but that having undertaken such repairs, it is now responsible for the consequences of those repairs.
As I understand Mr McCallum’s submission, he know alleges that units 9, 10, 11 and 12 are beset with similar structural defects, and that the adjudicator in the present matter failed to give proper weight to that decision and to recognise, in particular, that its proper effect now prevented the Body Corporate from declining to undertake the repairs referred to in the motions.
As a matter of general principle an estoppel will not ordinarily arise in the face of a statute[7]. A better statement of the principle might be that, as Beldam LJ said in Yaxley v Gotts (2000) Ch 162 at 191, the question whether a party may rely on an estoppel in the face of a statute depends upon the nature of the enactment, the purpose of the provision and the social policy behind it.
[7]Kok Hoong v Leong Cheong Kweng Mines Ltd (1964) AC 993, at 1015
Under s 159(1) of the Standard Module under the BCCMA it is the responsibility of the Body Corporate to maintain common property in good condition. A similar obligation falls upon lot owners, in respect of their property within their lots, under s 170(2). The learned adjudicator’s reasons show that he examined the relevant building units plan and satisfied himself that all of the balconies, and the doors and frames, were within the boundaries of each of the lots and, therefore, that s 170(2) applied and the Body Corporate could not be compelled to effect the repairs set out in the motions.
The decision of the referee in 1997 was made under the preceding legislation which provided, in s 33(5), that where part of the building comprised in a lot contained a structural defect which affected the support or shelter provided to another lot, or common property, and the defect was not due to any breach of a duty by the lot owner, the Body Corporate was obliged at its own expense to carry out rectification work.
Nothing in the appellant’s submissions referred to any similar provision in the current legislation, or its modules. Further, of course, the 1997 referee’s decision appears to have been based, to a significant extent, on the fact that some part of the problems it addressed were a consequence of earlier repairs apparently undertaken by the Body Corporate. Both these elements tell against the argument that an estoppel might arise from these earlier events.
The BCCMA and the terms of its modules reveal a plain purpose, of the kind properly considered by the learned adjudicator: that the Body Corporate maintains common property, and lot owners maintain their lots. It follows that the nature and purpose of the BCCMA supports the operation of the principle that a party cannot rely on an estoppel, in the face of its provisions.
It also follows that there was no error of law in the learned adjudicator’s decision. The appeal is dismissed.