Quinn v The Body Corporate of Sanctuary Bay CTS 6523

[2013] QCATA 25

CITATION: Quinn v The Body Corporate of Sanctuary Bay CTS 6523 [2013] QCATA 25

PARTIES:	Stephen Quinn Carolyn Quinn (Appellants)
v
The Body Corporate of Sanctuary Bay CTS 6523 (Respondent)

APPLICATION NUMBER: APL178-12

MATTER TYPE: Appeals

HEARING DATE: 13 December 2012

HEARD AT: Brisbane

DECISION OF: Dr J R Forbes, Member

DELIVERED ON: 8 February 2013

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

Body Corporate and Community Management Act 1997 – whether appellants affected by nuisance created by certain other occupiers – glare created by solar panels – whether matter complained of so substantial and unreasonable as to be properly deemed a nuisance – Adjudicator not so satisfied – question of fact and degree - whether leave to appeal should be granted

Body Corporate and Community Management Act 1997 ss 167, 276
Queensland Civil and Administrative Tribunal Act 2009 ss 3, 32, 142(3)(b)

Bone v Seale [1975] 1 WLR 797
Drew v. Bundaberg Regional Council [2011] QCA 359
Finlayson v Campbell [1997] NSWSC 374
Fox v Percy (2003) 214 CLR 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Hargrave v Goldman (1963) 110 CLR 40
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  1989] 2 Qd R 577
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Oldham v Lawson (No 1) 1976 VR 654
Perre v Apand Pty Ltd (1999) 198 CLR 180
Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Re W (An Infant) [1971] AC 682
Robinson v Corr [2011] QCATA 302

Secretary of State for Education & Science v. Tameside Metropolitan Borough Council [1977] AC 1014

Southern Properties (WA) Pty Ltd v Executive Director Of The Department of Conservation and Land Management [2012] WASCA 79
Thompson-Schwab v Costaki [1956] 1 WLR 335

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. Mr and Mrs Quinn (‘the Quinns’) are proprietors of Unit 43 in the Sanctuary Bay community complex, Hope Island, near Coomera (‘the BC’). They speak for not only for themselves, but also for their neighbours Brett Caudwell and Peter Jecks, owners of Units 25 and 26 respectively. The Quinns’ authority to do so is not in issue.

2. On 1 May 2012 these proceedings came before an Adjudicator for the Office of the Commissioner for Body Corporate and Community Management. At that stage there were four separate, but related, applications for relief. This application for leave involves only the second of those claims, in which this order was sought:

   That the Body Corporate abate the nuisance glare to residents of villas 43, 44 and 45 from photovoltaic panels installed by the respective owners of Lot 7, Lot 8 and Lot 9, on the common property roof at its own expense.

3. The learned Adjudicator dismissed all four claims. With respect to the second claim (set out above) the Quinns ask this Tribunal to set aside the primary decision and to order –

   That the BC abate the nuisance glare that is reflected off the solar panels installed on the common property roof respectively above Villas 7, 8 and 9 at Sanctuary Bay as the glare is an unreasonable nuisance that reflects into the living areas of Villa 43, and also Villas 44 and 45.

4. The Quinns rely principally upon this provision of the Body Corporate and Community Management Act 1997 (‘the BCCMA’):

   167. Nuisances. The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that— (a) causes a nuisance or hazard; or (b) interferes unreasonably with the use or enjoyment of another lot included in the scheme ...

5. The BCCMA does not define the word ‘nuisance’, which therefore bears the meaning of private nuisance at common law, that is, a substantial and unreasonable interference with the use and enjoyment of land.[1] The interference need not be physical.[2]

   [1]Oldham v Lawson (No 1) 1976 VR 654 at 655; Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248 at [12]; Southern Properties (WA) Pty Ltd v Executive Director Of The Department of Conservation and Land Management [2012] WASCA 79.

   [2]        Bone v Seale [1975] 1 WLR 797 at 804-805.

6. The practical application of the legal theory of nuisance, and in particular, the process of deciding when interference becomes ‘substantial and unreasonable’ is quintessentially a question of fact and degree.

[D]o the cases give any assistance as to when one finds that there has been a substantial interference? The general answer to this question is in the negative. It is a question of fact as to whether there is a substantial interference.[3]

[3]Finlayson v Campbell [1997] NSWSC 374 per Young J; see also Southern Properties (WA) Pty Ltd v Executive Director of The Department Of Conservation and Land Management [2012] WASCA 79 at [118].

1. The Quinns’ submissions[4] complain of the Adjudicator’s ‘subjective decision’, and proceed to quote from the judgment of McHugh J in Perre v Apand Pty Ltd[5] in the apparent belief that it supports their criticism. On the contrary, his Honour’s judgment, apart from some nostalgic reflections on black letter law, recognises the difficulty of applying vague criteria to ‘concrete facts arising from real life activities’ and proceeds (in a passage not mentioned by the Quinns):

   [W]hen legislatures and courts formulate legal criteria by reference to indeterminate terms such as ‘‘fair’’, ‘‘just’’, ‘‘just and equitable’’ and ‘‘unconscionable’’, they inevitably extend the range of admissible evidentiary materials. Cases then take longer, are more expensive to try, and, because of the indeterminacy of such terms, settlement of cases is more difficult, practitioners often having widely differing views as to the result of cases if they are litigated.[6]

   [4]        Page 10.

   [5] (1999) 198 CLR 180 at 211.

   [6] (1999) 198 CLR 180 at 212.

1. In the present case the Adjudicator had to apply to concrete facts and real life activities the elusive concept of ‘substantial and unreasonable interference’, with no more accurate compass than a direction to make ‘an order that is just an equitable in the circumstances ... to resolve [the] dispute’[7] – a task that would no doubt attract the sympathy of Mr Justice McHugh. The criteria that the Adjudicator had to apply are derived not from his ‘personal and subjective assumptions’[8] but to the ‘proper basis in law’[9] to which the Quinns’ repeatedly refer. These unsuccessful litigants may regret that the relevant ‘basis’ is hardly precise, while they ‘acknowledge that in general they are tolerant people’[10] who ‘have been able to reach an informed and enlightened opinion’ in their own cause[11], but litigants and adjudicators must make the best of the law as it is.

   [7] BCCMA s 276(1).

   [8]        Appellants’ submissions page 10.

   [9]E.g. submissions page 26. As to the inescapable uncertainty of the law of nuisance see Hargrave v Goldman (1963) 110 CLR 40 at 60 per Windeyer J.

   [10]        Submissions page 21.

   [11]        Submissions page 31.

2. I have carefully considered the Quinns’ 33 pages of submissions and attachments. That required searches for numerous cases for which no citations are given. In my view the Adjudicator was entitled to find that photovoltaic panels are a ‘utility service’.[12] Allegations of negligence or breach of contract on the part of Origin Energy[13], and of ‘intimidation and bullying’[14], and ‘misuse of power and its malice’[15] by the body corporate do nothing to advance the appeal. A largely unattributed list of cases[16] - decisions on the facts in a wide range of circumstances, such as road construction, city and suburban building, swimming pools, and even a brothel[17] - does not establish precedents. It is true that some of them acknowledge that glare may be a nuisance – a general point not denied by the Adjudicator.

   [12] BCCMA, Dictionary, “utility service” item (j).

   [13]        Submissions 6, 7, 29.

   [14]        Submissions page 4.

   [15]        Submissions page 14.

   [16]        Submissions page 24.

   [17]        Thompson-Schwab v Costaki [1956] 1 WLR 335 (view through window a nuisance).

Should Leave be Granted?

1. The gravamen of this appeal is that the primary decision is unreasonable. But where reasonable minds may differ, a decision cannot properly be described as unreasonable, simply because one conclusion has been preferred to another possible result.[18]  Indeed:

   Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable” or even “so unreasonable that no reasonable person could adopt it”. If these are merely emphatic ways of saying that the reasoning is wrong, they may have no particular legal consequence.[19]

   No one can properly be labelled as unreasonable unless he is not only wrong but unreasonably wrong, so wrong that no reasonable person could sensibly take that view.[20]

   [18]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611; [2010] HCA 16 at[131].

   [19]Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 per Gleeson CJ and McHugh J.

   [20]Secretary of State for Education & Science v. Tameside Metropolitan Borough Council [1977] AC 1014 at 1025-1026 per Lord Denning; Re W (An Infant) [1971] AC 682 at 700 per Lord Hailsham LC.

2. In a case of this kind there is no appeal as of right; leave is required.[21] It is a prime object of the QCAT Act to resolve disputes quickly and economically.[22] Subject to justice and reason, finality of the primary decision serves those purposes. It is not nearly enough for a party to evince disappointment at the original decision, or a feeling that justice has not been done.[23] It must be shown that the decision in question is affected, arguably at least, by an appellable error.[24] This matter does not raise a question of general importance calling for reconsideration on appeal.[25] The primary decision is one of fact and degree.

   [21] QCAT Act s 142(3)(b).

   [22] QCAT Act s 3(b).

   [23]        Robinson v Corr [2011] QCATA 302 at [7].

   [24]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v. Bundaberg Regional Council [2011] QCA 359 at [19].

   [25]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  1989] 2 Qd R 577 at 578, 580.

3. It is not legal error to prefer one version of the facts to another, or to attribute more weight to the evidence of witness “A” than to the testimony of witness “B”. Findings of fact will not usually be disturbed on appeal if they have rational, albeit debateable support in the evidence.[26] A prime object of a ‘leave proviso’ is to preclude a retrial on the merits, which is really what the present appellants are seeking. But this is not an opportunity to re-run a case that was unsuccessful at first instance. The Adjudicator was the appointed judge of fact, and it is not for the Appeal Tribunal to disturb findings that were clearly open to him. Even if leave were granted, there would be no right to a retrial de novo.

   [26]        Fox v Percy (2003) 214 CLR 118 at 125-126.

4. I am unable to find any appellable error in the primary decision. Leave must be refused. There is no application for costs.

ORDER

1. Leave to appeal is refused.