Orknie Pty Ltd v Body Corporate for Paloma CTS 9524 - [2010] QCATA 52

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
Body Corporate and Community Management (Standard Module) Regulation 2008, ss 159(1), 170(2)
Building Units and Group Titles Act 1980, s 33(5)
Queensland Civil and Administrative Tribunal Act 2009, ss 6(1), 28(3)(d),142(3)(b)

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Orknie Pty Ltd v Body Corporate for Paloma CTS 9524

Details

AGLC: Orknie Pty Ltd v Body Corporate for Paloma CTS 9524 [2010] QCATA 52
Case: [2010] QCATA 52
Decision Date: 21 September 2010

CaseChat Overview and Summary

Orknie Pty Ltd, the owner of certain lots, sought an appeal against the decision of a Body Corporate, the appellant, to decline to undertake repairs to the lots. The Body Corporate had previously resolved to accept responsibility for the repairs and maintenance of the lots, but later changed its position. The applicant argued that the Body Corporate was estopped from declining to undertake the repairs, and that it was denied procedural fairness when it was not given an opportunity to make written submissions. The court was required to determine whether the adjudicator's decision was tainted by lack of procedural fairness, whether the Body Corporate was estopped from declining to undertake the repairs, and whether there was an error of law.

The court found that the adjudicator's direction for written submissions was reasonable and did not result in a denial of procedural fairness. The applicant had an opportunity to make written submissions but chose not to do so, and this did not amount to a denial of procedural fairness. The court also found that the applicant's argument that the Body Corporate was estopped from declining to undertake the repairs was not supported by the evidence. The Body Corporate had not previously accepted an obligation to make the repairs, and there was no evidence of any representation or assumption that would give rise to an estoppel. Furthermore, the court held that the relevant legislation did not prevent the Body Corporate from declining to undertake the repairs.

The court dismissed the appeal and held that there was no error of law in the adjudicator's decision. The applicant was not denied procedural fairness, and the Body Corporate was not estopped from declining to undertake the repairs. The court found that the adjudicator's decision was correct, and there was no basis for the appeal to be successful. The appeal was dismissed, and the decision of the Body Corporate to decline to undertake the repairs was upheld.

Orders

Orders of the court

Dismiss the appeal

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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