Purcell v Murtagh
[2011] QCATA 175
•14 April 2011
| CITATION: | Purcell v Murtagh [2011] QCATA 175 |
| PARTIES: | William Thomas Purcell (Applicant/appellant) |
| v | |
| Ronald William Murtagh (Respondent) |
APPLICATION NUMBER: APL095-10
| MATTER TYPE: | Appeal |
HEARING DATE: 14 April 2011
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President Ms Michelle Howard, Member |
DELIVERED ON: 25 May 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1. The appeal is allowed but only to the extent of ordering as follows:
(i)in lieu of the finding made by the learned Adjudicator that the definition of ‘balcony of a lot’ must be severed from By-law 35(f), the words ‘or courtyard’ are severed from the definition of ‘balcony of a lot’;
(ii)set aside the Adjudicator’s order that By-law 35(c) is unreasonable;
(iii)set aside the Adjudicator’s order that By-law 40 is invalid and, in substitution, order that By-law 40(c) is invalid.
2. The Body Corporate for Petrie Mansions must lodge a request to record a new Community Management Statement to reflect these orders within 6 months of the date of this order.
| CATCHWORDS: | APPEAL – BODY CORPORATE AND COMMUNITY MANAGEMENT – where Dr Murtagh lodged an adjudication application against the Body Corporate of Petrie Mansions – where an Adjudicator made orders declaring certain paragraphs of the by-laws and resolutions unreasonable or invalid and requiring the Body Corporate to lodge a request to record a new Community Management Statement removing the offending paragraphs – where Mr Purcell seeks to appeal the Adjudicator’s decision on the grounds that it failed to observe the principles of natural justice and, also, misconstrued and misapplied provisions of the BCCM Act and the by-laws – whether the Adjudicator misconstrued and misapplied legislative provisions and by-laws – whether the Adjudicator failed to observe natural justice Body Corporate and Community Management Act 1997, ss 169, 180, 244, 246, 269, 276, 289, 294, Schedule 5 Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Purcell appeared on his own behalf |
| RESPONDENT: | Dr Murtagh appeared on his own behalf |
REASONS FOR DECISION
PRESIDENT:
I have had the benefit of reading the reasons of Ms Howard, in draft. I agree with her reasons, and her conclusions, and the order she proposes.
MEMBER MICHELLE HOWARD:
Mr Purcell and Dr Murtagh are co-owners of units at Petrie Mansions, a Community Titles Scheme regulated by the Body Corporate and Community Management Act 1997 (the BCCM Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (the Standard Module).
Dr Murtagh lodged an adjudication application against the Body Corporate of Petrie Mansions with the Commissioner for Body Corporate and Community Management (the Commissioner). An Adjudicator made orders declaring paragraph (c) of By-law 35 and paragraphs (g), (h) and (k) of By-law 39 unreasonable; declaring By-law 40 invalid; and requiring the Body Corporate to lodge a request to record a new Community Management Statement removing the offending paragraphs. The Adjudicator also declared that a Resolution of the Body Corporate, Item 20 of 18 July 2009, was void.
Mr Purcell, as a lot owner, had the opportunity to comment on the application and he provided a submission to the Adjudicator. He had also provided submissions as chairperson/secretary of the Body Corporate during the investigation, but was no longer in the role at the time of the Adjudicator’s decision.
Mr Purcell appealed the Adjudicator’s decision on the grounds that it was wrong, and contrary to law, because the Adjudicator failed to observe the principles of natural justice and, also, misconstrued and misapplied provisions of the BCCM Act and the by-laws of the Body Corporate for Petrie Mansions.
Both parties filed written submissions in advance of the hearing and made oral submissions at hearing. After the hearing, Dr Murtagh provided a further brief written submission. Mr Purcell was offered the opportunity to respond to it. Dr Murtagh’s submissions address, in part, issues not raised in the appeal. These issues are not before the Appeal Tribunal and will not be considered here.
It is apparent from the appeal file that the Body Corporate was aware of Mr Purcell’s application, but did not itself seek to become a party to the appeal.
Legal Principles
Under s 289(2) of the BCCM Act an appeal from an adjudicator’s decision may be made on a question or questions of law only.
Under s 269, the Adjudicator was required to observe natural justice, and a failure to do so is an error of law.[1] The Federal Court has held that if a tribunal decides an issue adversely to a party without informing a party that it intended to do so, then it makes an error of law.[2] However, the High Court has also observed that the requirements of natural justice are flexible and vary according to the circumstances.[3] In essence, the requirement is to act fairly in all of the circumstances.[4] When a statutory power is exercised, the requirements will depend upon a proper construction of the statutory provision, having regard to the common law principles.[5]
[1]Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28.
[2] Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277, [33-35].
[3] Kioa v West (1985) CLR 550.
[4] Kioa v West (1985) CLR 550.
[5] Kioa v West (1985) CLR 550.
Whether facts as found fall within a properly construed statutory provision is also, generally, a question of law.[6] Whether facts as found fall within a by-law is, it follows, a question of law. Whether a decision is based on findings of fact which are open on the available evidence is, as well, a question of law.[7]
[6]Collector of Customs v Pozzolanic (1993) 43 FCR 280, 286-8; Hope v Bathurst City Council (1980) 144 CLR 1, 7.
[7] Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32, [16].
However, a finding of fact will generally not be disturbed on appeal if the evidence before the decision-maker supports the inferences drawn, and the facts found.[8] Further, the Appeal jurisdiction is not generally the proper forum to receive evidence on disputed facts.[9]
[8] Australian Broadcasting Tribunal v Bond (199) 170 CLR 321, 355.
[9]See discussion in Georgalis v Andoras (1993) 113 FLR 196; Doherty v Liverpool District Hospital (1991) 22 NSWLR 284.
Section 294 of the BCCM Act and s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provide, in effect, that in deciding an appeal, the Appeal Tribunal has all of the jurisdiction and powers of an adjudicator under the BCCM Act, as well as the powers of the Appeal Tribunal under the QCAT Act. Section 146 of the QCAT Act provides for the Appeal Tribunal to confirm or amend the decision; set it aside and make its own decision; set aside the decision and return the matter to the Adjudicator for reconsideration, with any directions it considers appropriate; or, make other orders it considers appropriate.
Section 276 of the BCCM Act empowers an adjudicator to make orders as follows:
276 Orders of adjudicators
(1) An adjudicator to whom the application is referred may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about--
(a) a claimed or anticipated contravention of this Act or the community management statement; or
(b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; …
(2) An order may require a person to act, or prohibit a person from acting, in a way stated in the order.
(3) Without limiting subsections (1) and (2), the adjudicator may make an order mentioned in schedule 5.
Schedule 5 includes the following:
1 An order requiring the body corporate to lodge a request to record a new community management statement consistent with the statement for which the body corporate gave its consent…
…
20 If satisfied a by-law is, having regard to the interests of all owners and occupiers of lots included in the scheme, oppressive or unreasonable--an order requiring the body corporate to lodge a request to record a new community management statement--
(a) to remove the by-law; and
(b) if it is appropriate to restore an earlier by-law, to restore the earlier by-law.
21 If satisfied a by-law is invalid--an order declaring that the by-law is invalid and requiring the body corporate to lodge a request to record a new community management statement to remove the by-law…..
The Grounds of Appeal
By-Law 35, paragraph (f)
In her reasons, the learned Adjudicator indicated that she intended to sever, from By-law 35(f) the words, ‘In this By-law, “balcony of a lot” includes any part of Scheme land adjacent to or appurtenant to a lot and which is used or designated for use as a garden or courtyard’. She considered that By-law 35 could have only limited application in that it could apply only to balconies which were not subject to exclusive use By-law 32.
In her order she did not, however, make the order she had flagged.
Under By-law 32 lots may be granted areas of common property as, among other things, exclusive use courtyards. The Adjudicator considered that By-law 35 sought to impose additional restrictions on the ‘grant’ of exclusive use courtyards than as specified in By-law 32, but that further conditions could only be imposed by the amendment of the exclusive use By-law. This would require the passing of a resolution without dissent, which was not the case.
Mr Purcell does not challenge the finding that By-law 35 may only apply to those balconies which are not exclusive use courtyards, subject to a grant under By-law 32. However, he argues that the consequence of that finding – that the definition of ‘balcony of a lot’ should be severed – is an error of law, and is not the result of a rational process of decision-making because there are no findings of fact to support it.
He submits, rather, that the definition of ‘balcony of a lot’ should be amended by adding, at the end of it, the words, ‘other than any exclusive use courtyard which is the subject of conditions in By-law 32.’
In support of this argument he contends that a limited number of lots have been allocated exclusive use courtyards, and these comprise a small part of the overall common property. He concedes that, on the basis of the finding that it can only apply to balconies which are not exclusive use courtyards under By-law 32, By-law 35 requires re-drafting or reading down so that it does not purport to apply to exclusive use areas. However, he says that it does not follow that the entire definition must be severed which prevents By-law 35 from applying to any common property on the Scheme.
Dr Murtagh argues that the courtyard areas are all exclusive use areas and that there is no land or other area to which Mr Purcell’s proposed amendment would apply.
The objects of By-law 35 are contained in 35(a). They include that furnishings should not detract from the external appearance of the building or Scheme land, and that the appearance of the building and Scheme land should be enhanced when furnishings are displayed or used on a balcony of the lot. By virtue of 35(c), as it stood before the Adjudicator’s orders, an owner or occupier may not ‘place or permit to remain on common property any table, chair or other furnishings except during such times as that thing is physically occupied’. By-law 35(e) prohibits storage of, among other things, cardboard cartons, bags, rubbish bins, and garden implements on balconies of the lot.
Under By-Law 32, six exclusive use courtyard areas have been allocated to lots 1 to 6. However, it is apparent from the sketch plans attached to Schedule E setting out the exclusive use entitlements of lots that there is common property adjacent to other balconies which is not allocated under By-law 32. None of that other common property is identified or identifiable as a courtyard area in the sketch plans. Accordingly, there is common property to which that by-law may have application.
The Adjudicator did not, despite her stated intention to do so, make an order severing the definition ‘balcony of a lot’ from 35(f). So far as the findings she made are concerned, did she make an error of law? She found that the definition must be severed because, it appears, By-law 35 was passed as a result of a resolution which was not passed without dissent, as would be required in order to amend an exclusive use By-law.
She considered that by the definition ‘balcony of a lot’, By-law 35 sought to impose additional conditions on the grant of exclusive use courtyards than are specified in By-law 32. The definition uses the word courtyard, whereas the by-law otherwise refers to a balcony. By-law 32 refers to courtyards which are allocated for exclusive use. With the inclusion of ‘courtyard’ in 35(f), in my view, the learned Adjudicator was correct in holding that By-law 35 does purport to extend its application to exclusive use courtyard areas.
Does it follow that the definition of ‘balcony of a lot’ should be severed? Alternatively, as Mr Purcell argues, should it be amended by adding words to it?
It is not necessary, in my view, to sever the whole of the definition in order to overcome the mischief identified by the Adjudicator. In her finding that she must do so, the learned Adjudicator made an error in construction. Severance of the words ‘or courtyard’ from the definition will overcome the problem identified by the Adjudicator and allow the by-law to achieve, as far as possible, the objects identified in the by-law, which express the apparent intentions of the lot owners.
I would, therefore, allow the appeal in respect of this issue. The Adjudicator’s order that the definition of ‘balcony of a lot’ must be severed is set aside. I would order, instead, that the words ‘or courtyard’ be severed from the definition of ‘balcony of a lot’ in 35(f).
By-Law 35, paragraph (c)
The Adjudicator, noting the objects in By-law 35(a), and the requirements of 35(c) not to ‘place or permit to remain on a ‘balcony’ any table, chair or other furnishings except during such times as that thing is physically occupied’ declared that the body corporate acted unreasonably in adopting it and that 35(c) is unreasonable and therefore, invalid. She considered that there does not appear to be ‘any rational basis for thinking that physically unoccupied furniture could cause any difficulty to any other lot owner.’
Mr Purcell contends that the Adjudicator misread By-law 35(c) as it does not refer to not placing or permitting these items as specified on a ‘balcony’: it refers to not placing or permitting them ‘on common property.’ He submits that there are self-evident and rational bases for thinking that physically unoccupied furniture left potentially indefinitely in common areas which are not exclusive use courtyards, could cause difficulty for other owners. He argues that this misreading of the by-law represents an error of law and that without it, there was no basis for the finding or order about 35(c).
Dr Murtagh submits that after the severance of the exclusive use courtyards, there is no common property forming part of any balcony, and that as 35(c) deals with only non-exclusive use common property, that it does not belong in a by-law about balconies.
As Mr Purcell identifies, the learned Adjudicator misread the by-law. Accordingly, she fell into error in her interpretation of the by-law and its applicability and, hence, her finding that 35(c) was unreasonable and therefore invalid was the result of an error in construction of the by-law.
It is apparent from 35(a) that although the by-law is entitled ‘Balconies’, it makes broader provision than only for balconies. There is common property, other than the exclusive use courtyards, to which the by-law can apply. It is not unreasonable to consider that unoccupied furniture left potentially indefinitely, and perhaps other items of which the by-law prohibits storage on a ‘balcony of a lot’ on common property, which is not an exclusive use courtyard, may cause difficulty for other occupiers.
I would allow the appeal on this issue, and set aside the learned Adjudicator’s decision to declare 35(c) unreasonable.
By-law 40
The Adjudicator declared By-law 40 invalid in its entirety. It provided in 40(b) that, before a lot owner lets a tenant into possession of a lot, the owner was required to deposit with the body corporate secretary a copy of the tenancy or letting agreement. If the agreement was varied, the owner was required to deposit a copy of the varied agreement. Under 40(c), if the committee of the body corporate issues a standard form of agreement or standard conditions, the owner must use that form or incorporate those conditions, as the case may be.
The learned Adjudicator considered that 40(b) was not within power of the body corporate because it does not fall within those matters which may be the subject of by-laws under s 169 of the BCCM Act. Rather, she considered it purported to regulate a commercial arrangement between a lessor and lessee. She considered 40(c) was inconsistent with s 180 of the BCCM Act and ss 193(1)(b), (2), and 3(b) of the Standard Module ‘preventing or restricting a dealing with a lot, discriminating between types of occupiers and imposing a monetary liability on an owner or occupier of a lot.’ In considering 40(c), she referred to a set of standard conditions promulgated by the body corporate, which included an indemnity for loss or damage sustained by the body corporate.
She declared that with (b) and (c) invalid, there was no residual application for 40(a).
Mr Purcell submits that the Adjudicator misconstrued ss 169(1) and 180 of the BCCM Act, by considering that they prohibit any by-law which regulates a commercial arrangement between lessor and lessee and submits that, in any event, the by-law does not purport to do so.
Further, he argues that the Adjudicator found the by-law invalid on the basis of the effect of the standard terms issued under the by-law, although the validity of those terms (or the resolution to impose them) was not the subject of challenge in the proceeding, rather than the by-law itself. He submits that without that understanding, there was no basis for the finding of invalidity.
Dr Murtagh argues that the standard terms are in reality part of the conditions applying to the use and enjoyment of lots in the scheme which are, in effect, not easily discovered by a prospective purchaser of a lot who may wish to rent out their property, and that there is no manner prescribed for making changes to it.
Section 169 of the BCCM Act provides that by-laws may only make provision about certain limited matters, which include regulation of the use and enjoyment of lots in the scheme and common property. Under s 180, if a by-law is inconsistent with the BCCM Act or an applicable regulation module, then the by-law is invalid to the extent of the inconsistency. Section 180(4) provides that a by-law cannot prevent or restrict a transfer or other dealing with a lot. Section 180(5) provides that a by-law must not discriminate between types of occupiers.
The Standard Module, as it was at the time the by-laws were made and in its current form provides, amongst other things, for an owner to give notice to the Body Corporate of a lease for a terms of 6 months or more, within 2 months after the lease is created. The notice must set out the name and address of the lessee and the term of the lease.
The learned Adjudicator’s conclusion that 40(b) was not within power because the by-law does not fall within those matters specified in s 169 of the BCCM Act is mistaken in that, given its proper construction, s 169 allows for by-laws to regulate the use of lots and common property. Paragraph 40(b) regulates the use of lots, by requiring the deposit of a tenancy agreement with the body corporate before allowing a tenant in possession. Therefore, her finding that 40(b) was invalid was reached through an error in construing s 169. I would allow By-law 40(b) to stand.
The learned Adjudicator’s findings that the by-law was also inconsistent with the Standard Module reveal another error in construction. The by-law requires provision of a copy of the lease to be given before an owner lets a tenant into possession. This is more prescriptive than, but not inconsistent with, the requirements of the Standard Module.
Further, the learned Adjudicator was also in error in determining that 40(c) discriminated between types of occupiers and imposed a monetary liability on an owner or occupier of a lot. Those findings can only be based on her interpretation of the standard terms, which were not the subject of challenge in the proceeding. The construction she adopted was flawed.
However, the Adjudicator correctly found that the By-law in 40(c), in providing that an owner must incorporate such standard conditions as the committee of the Body Corporate issues, offends s 180(4) of the BCCM Act because it restricts dealings with a lot in that it requires an owner to include certain conditions imposed by the body corporate, which a lot owner may or may not wish to include. Accordingly, she was correct in finding that 40(c) was invalid.
I would allow this aspect of the appeal to the extent of setting aside the Adjudicator’s decision that declared 40(b) invalid. As 40(b) stands, there is then residual application for 40(a) and I would also allow it to stand.
By-law 39(g) and (k)
Dr Murtagh has a caravan which he has parked in his exclusive use carpark. The Body Corporate took the view that caravans are not allowed in the exclusive use car spaces.
By-law 39, which is entitled ‘Vehicles’, provides among other things in 35(g) that ‘An owner or occupier must not drive or permit any vehicle to be driven or parked on common property unless the vehicle is an authorised vehicle’. Authorised vehicle is defined in 35(k), to include, relevantly, a box trailer but not a caravan.
The Adjudicator considered that, in the same way that By-law 35 could not have any application to exclusive use courtyards granted under By-law 32, By-law 39 cannot have application to exclusive use car spaces granted to owners under By-law 32. Therefore, she considered that the disputed interpretation of By-law 39 was relevant only to the extent that Dr Murtagh had driven his caravan on common property other than his exclusive use car space, which he undoubtedly did ‘to get his caravan into and out of his exclusive use car space’. She considered that By-law 39, was within power under s 169(1) of the BCCM Act.
However, she concluded that the exclusion of a caravan from the definition of authorised vehicle was without rational basis, and was unreasonable. She also considered 35(g) was unreasonable on the basis, it appears, that in combination they did not allow for a caravan to be driven on common property. She made orders, in effect, requiring the Body Corporate to remove 39(g) and (k). She also declared 39(h) unreasonable, and required its removal.
Mr Purcell does not challenge the finding that it is unreasonable to exclude caravans from being parked on or driven on common property, or the order for removal of 39(h), but he challenges the removal of 39(g) and (k). He submits that it ‘would do less violence’ to By-law 39 if an amendment was required to 39(k) by adding ‘or a caravan’ at the end of the paragraph (k)(i), and that the Adjudicator’s reasons do not provide a basis for deleting all of paragraphs (g) and (k). He therefore argues that to require their removal was an error of law, as it was not the result of a rational process of decision-making.
Dr Murtagh submits that once the inapplicability of By-law 39 to the exclusive use car spaces is recognised, the effect of what is argued by Mr Purcell is trivial and does not add anything meaningful to the by-law.
Mr Purcell suggests that the removal of 39(g) and 39(k) was an error of law, it seems because another order could have been made to insert reference in the definition to ‘caravan’ which would allow the provisions to continue to operate.
An Adjudicator has a broad discretion to make such orders as are just and equitable to resolve a dispute. It is one thing to declare part of a by-law invalid and order its removal, but quite another to impose into by-laws in a manner involving the insertion of words which were not voted upon by the lot owners, and which were perhaps entirely beyond their contemplation, at the time a resolution to adopt the by-law was made.
Schedule 5 of the BCCM Act, contemplates in order 1, the making of orders requiring, in effect, amendments consistent with those for which the body corporate gave consent. Similarly, orders 20 and 21 in schedule 5, contemplate the removal of by-laws which are considered unreasonable or invalid, rather than the redrafting of them to a form that the Adjudicator considers appropriate.
I do not consider that the learned Adjudicator was in error in determining to declare the provisions unreasonable. Indeed, Mr Purcell does not argue that it is unreasonable to exclude caravans. Further, I do not consider that Mr Purcell identifies an error of law in the Adjudicator’s decision that the provisions should be removed, as opposed to amended, which is in keeping with s 276 and schedule 5 of the BCCM Act. The Adjudicator’s orders are in keeping with her findings.
In my view, this aspect of the appeal must fail.
Resolution (Item 20) of 18 July 2009
Resolution 20 is as follows:
Evidence was received that Ron Murtagh (an owner of Lot 2) had failed to comply with the Notice in BCCM Form 11 served upon him on 13 April 2009 in that –
(a)on or about 23 June 2009 he (being an owner or occupier of Lot 2) drove (or permitted the driving of) a vehicle, namely, a caravan registration number F19 812 (Vic) on common property in breach of by-law 39.
(b)on or about 11 July 2009 he (being an owner or occupier of Lot 2) drove (or permitted the driving of) a vehicle, namely, a caravan registration number F19 812 (Vic) on common property in breach of by-law 39.
(c)continuously, between 23 June 2009 and 1 July 2009, inclusive, (being an owner or occupier of Lot 2) parked or permitted the parking of a vehicle, namely, a caravan registration number F19 812 (Vic) on common property in breach of by-law 2 and in breach of by-law 39.
(d)On 9 July 2009, 10 July 2009, 11 July 2009, he parked or permitted the parking of a vehicle, name a white station wagon registration number PUW 642 (Vic), on common property in breach of by-law 39.
Resolved that the body corporate start, without further notice, proceedings in the Magistrates Court of Queensland for the abovementioned failures by Ron Murtagh to comply with the Notice in BCCM Form 11 served upon him on the 13th day of April 2009.
Further resolved that in such proceedings, the body corporate seek -
(e)The imposition of the maximum penalty of $2,000.00 for each failure to comply with the notice served on him on 13 April 2009;
(a)An order for costs, including solicitors’ costs and disbursements, barristers’ fees, court fees and process servers’ fees.
The validity of By-laws 2 and 32 was not challenged in the proceedings. By-law 2 provides that, except as allowed by By-law 32, an occupier must not park or stand a motor or other vehicle ‘upon common property nor permit any invitee to do so without the written approval of the Body Corporate.’ By-law 32 is the exclusive use By-law under which grants are made to lot owners of common property for their exclusive use, for areas including for carparks. It also provides in 32(b) that ‘The carparks must only be used for carparking’.
The learned Adjudicator noted that the Body Corporate was required to act reasonably in enforcing its by-laws. She referred to Dr Murtagh’s evidence that, among other matters, that the parking of his caravan had been a matter of contention between Mr Purcell and himself for several years and that the problems surfaced after he had nominated against Mr Purcell at the AGM elections, raising questions about some expenditure. She also referred to Dr Murtagh’s evidence that there was a long history of recreational vehicles being parked on-site despite apparent non-compliance with By-law 32. She also referred to another submission from a lot owner in support of the application commenting that there has always been a caravan parked in the basement.
She said the Body Corporate had been unable to provide a copy of any complaint to substantiate the claim in the resolution or the contravention notice. A letter on the Commissioner’s file from the Chair of the Body Corporate confirms this. However, a letter from the Treasurer dated 31 March 2010 states that observations and reports of owners were relied upon as well as observations and reports by committee members and photographs tabled at the meeting.
The Adjudicator had also asked for copies of any written complaints concerning the parking of the caravan in the exclusive use car space for lot 2. The Treasurer’s letter provided copies of 2 emails raising the issue of a ‘caravan’ which the treasurer says relate, although the Adjudicator took the view that these acknowledge the presence of a caravan in the exclusive use car space of Dr Murtagh, but do not mention consequent inconvenience or complaint.
She considered that taking action against Dr Murtagh, but not taking action against other occupiers using their exclusive use car parks other than for parking cars, was unreasonable.
The Adjudicator held that the Body Corporate could not proceed for breaches under paragraphs (a), (b) and (c), which were invalid. In this regard, because of her earlier findings, alleged breaches under By-law 39 could not stand and she was not prepared to make findings that Dr Murtagh had breached either By-law 2 or 32. She also declared the breach in paragraph (d) invalid for reasons which were not challenged on appeal. She declared resolution item 20 void in its entirety, as she considered it had no residual application.
Mr Purcell submits that he was not accorded natural justice in relation to the Adjudicator’s finding that it was unreasonable for the Body Corporate to take action against Mr Murtagh for breach of By-law 2. He submits that this is an error of law. He does not otherwise challenge the findings. Mr Purcell submits that the resolution was declared void in its entirety because of the breach of natural justice. He therefore submits that only (a), (b), and (d) should have been declared void and paragraph (c) and the remainder of the resolution should have been left in place.
He has filed an affidavit in support of his appeal deposing that he was not given an opportunity to respond to Dr Murtagh’s submissions and setting out what he would have said in response if he had been given the opportunity. In particular, he would have said that action had been taken against other occupiers who used their car spaces other than for the parking of cars, by way of directions or advice from the Body Corporate, and that the directions or advice had been complied with so that formal proceedings had been unnecessary.
Dr Murtagh argues, amongst other things, that no action has been taken against other parking offenders. He also seems to argue that as no charges were laid against him for contravening By-law 32, he could not have been contravening By-law 2.
The Adjudicator refers to Dr Murtagh having exercised his right to inspect the submissions made by others following his application. This right to inspect is provided for in s 244 of the BCCM Act. The reasons for decision state that Dr Murtagh’s evidence, to which the Adjudicator refers, was provided in reply to the submissions. It was provided on 24 November 2009. Mr Purcell’s submission in his personal capacity was submitted on 31 December 2009.
There is a right under s 246 for an ‘interested person’ to inspect the application; submissions made about the application; and the applicant’s reply to the submissions. An interested person includes a person who has made a submission on the application. There is no doubt that Mr Purcell is an interested person. The file of the Commissioner discloses a copy of correspondence addressed to Mr Purcell, it appears in his capacity at that stage of Chair of the Body Corporate, on whose behalf he had sought an extension to make submissions, dated 16 October 2009 granting an extension of time for the making of submissions to 22 October 2009 and advising, amongst other things, as follows:
Persons with a proper interest may inspect or obtain a copy of submissions (see section 246). There is a cost to inspect or obtain copies of submissions.
Although this correspondence went to Mr Purcell as Chair of the Body Corporate, he was made aware of the right of persons with a proper interest to inspect the file. Mr Purcell’s personal submission was made subsequently on 31 December 2009.
The requirements of natural justice are flexible depending upon the circumstances. In this case, an adjudication process was completed on the papers. The opportunity was afforded to Mr Purcell to make submissions, and to inspect the submissions of others. Had he done so, he may have chosen to make further submissions in response to Dr Murtagh’s submissions, to which he now complains he had no opportunity to respond. He did not exercise his right to inspect Dr Murtagh’s submissions, and therefore, did not respond to the allegations made.
He had the opportunity to inspect and respond to Dr Murtagh’s submissions. He failed to exercise that right. He was accorded natural justice. In my view, this aspect of the appeal must fail.
In summary, I would make orders allowing the appeal but only to the extent of ordering as follows:
(a) in lieu of the finding made by the learned Adjudicator that definition of ‘balcony of a lot’ must be severed from By-law 35(f), the words ‘or courtyard’ are severed from the definition of ‘balcony of a lot’;
(b) by setting aside the Adjudicator’s order that By-law 35(c) is unreasonable;
(c) by setting aside the Adjudicator’s order that By-law 40 is invalid and, in substitution, ordering that By-law 40(c) is invalid.
I would also require the Body Corporate to lodge a request to record a new Community Management Statement which reflects these order, within 6 months of the date of this order.
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