Prins v the Body Corporate for the Wave - [2013] QDC 66

[2013] QDC 66

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 556 of 2012

HENDIRK PRINS AND SOKHOM PRINS	Appellants
and
THE BODY CORPORATE FOR THE WAVE CTS 36237	Respondent

SOUTHPORT

..DATE 25/03/2013

ORDER

CATCHWORDS

Body Corporate and Community Management (Accommodation Module) Regulation 2008 s42, 143

Uniform Civil Procedure Rules 16, 772, 774, 785

Appeal by defendants against separate judgment for recovery of costs in successful claim for body corporate levies – respondent body corporate seeks dismissal of appeal for failure to provide security for costs (as ordered by the Magistrate) – whether its application should be adjourned until after bankruptcy petition based on this judgment – whether retrospective authorisation by lot owners of body corporate proceedings was possible- whether “recovery costs” were a “body corporate debt” - related appeals stayed as futile

HIS HONOUR: Appeal 556 of 2012 has been brought by Hendrik and Sokhom Prins against a Magistrates Court judgment for $150,000, being the top limit of that Court's jurisdiction, for “recovery costs” which the respondent body corporate successfully sought in respect of body corporate levies that had been sued for in the same Magistrates Court proceeding. That was for levies of some $5,514.42.

It is clearly vital in modern social conditions to have rather draconian measures in place to ensure prompt payment of body corporate levies for the efficient operation of body corporates and indeed, the peace of mind of lot owners in them whose lives will be a misery if they cannot rely on their fellow owners to get the body corporate in funds to enable it to attend to its responsibilities.

As part and parcel of that, there are penal interest provisions coming into force if prompt payment is not made. The consequence of those was that in the Magistrates Court proceeding a summary judgment for $12,847.08 was entered by a Magistrate, who is not the one whose judgment is under appeal.

His Honour inherited the matter because the claim for recovery costs was appreciated to be relatively complicated and deserving of consideration at a trial. The matter was set down for five days. On the fourth day, Dr Prins who was conducting the matter, left the court, leaving the Magistrate with a folder of material to consider which his Honour did consider.

His departure followed a direction being given by the Magistrate that put strict, very strict limits on the time be allowed for cross-examination of the remaining witnesses and perhaps presentation of the defendant's case.

One aspect of that case, as I understand it, was that the body corporate ought to have given more appropriate and fuller consideration to assertions by the appellants that there were mitigating circumstances telling in favour of indulgences being granted to them in respect of payment of levies.

One of the complaints that has been made in this court today is that the body corporate or its management committee never came to grips with issues involving the appellants’ bruited impecuniosity in consequences of the GFC and associated events,…

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.

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Details

Case: [2013] QDC 66
Decision Date: 25 March 2013

CaseChat Overview and Summary

The case before the court involves an appeal by Hendrik and Sokhom Prins against a judgment of the Magistrates Court which awarded the body corporate for the Wave $150,000 in recovery costs, in addition to a sum of $12,847.08 in body corporate levies. The appellants argue that the proceedings were unauthorized, that they were unfairly restricted in their cross-examination of witnesses, and that they were self-represented. The body corporate, on the other hand, seeks to have the appeal dismissed on the grounds that the appellants failed to provide security for the costs of the appeal as ordered by the Magistrate. The court was required to decide whether the appeal should be dismissed for failure to provide security for costs, whether the application for dismissal should be adjourned, whether retrospective authorization of the body corporate proceedings was possible, and whether recovery costs were a body corporate debt.

The court found that the appeal against the order for security for costs was not before the court, except on an interlocutory basis, and that the issue of the refusal of a stay by the Magistrate was also not before the court, except on the same limited basis. The court held that the appeal against the order for security for costs was not before the court, except on an interlocutory type basis at the instance of the respondent to permit orders to be made vary on the future conduct of it; nor was the issue of refusal of a stay by the Magistrate before this court today, either, except on the same limited basis. The court further held that the appeal against the order for security for costs is not before the court today, except on an interlocutory type basis at the instance of the respondent to permit orders to be made vary on the future conduct of it; nor is the issue of refusal of a stay by the Magistrate before this court today, either, except on the same limited basis.

Regarding the other issues, the court found that there were no prospects of the appeal succeeding on the ground that the proceedings were unauthorized, and that it was open to a body corporate to retrospectively authorize proceedings. The court also found that recovery costs were a body corporate debt, and that the Magistrate had given fair consideration to the defense case. The court held that it was the right thing to do to accede to the first part of the body corporate's application. The two later appeals were plainly ancillary to the major one, and if the major appeal was dismissed, there was no utility in the other appeals. The stay which the Magistrate refused was only sought until the determination of the appeal, which happened that afternoon. There was no point in complaining now against an order for security for costs of an appeal which was dismissed.

The orders of the court were that the appeal against the order for security for costs was not before the court, except on an interlocutory type basis at the instance of the respondent to permit orders to be made vary on the future conduct of it; nor was the issue of refusal of a stay by the Magistrate before this court today, either, except on the same limited basis. The court acceded to the first part of the body corporate's application, and stayed the two later appeals. The costs were to be assessed if not agreed.

Orders