Rea v Body Corporate for the Broadwater Tower CTS 9041

[2002] QDC 251

DISTRICT COURT OF QUEENSLAND

CITATION:

Rea & Anor  v Body Corporate for Broadwater Tower CTS 9041 [2002] QDC 251

PARTIES:

DOUGLAS CLERMONT REA and CORALIE DIANNE REA

Applicants 

and

BODY CORPORATE FOR BROADWATER TOWER CTS 9041

Respondent

FILE NO:

 399 of 2002

DIVISION:

District Court

PROCEEDING:

Application for Extension of time to Appeal

ORIGINATING COURT:

District Court Southport

DELIVERED ON:

 27 September 2002

DELIVERED AT:

Southport

HEARING DATE:

6 September 2002

JUDGE:

R D Hall  DCJ

ORDER:

Application dismissed – Order: applicants pay the respondent’s costs of and incidental to this application to be assessed

CATCHWORDS:

Body Corporate and Community Management Act 1997-Extension of time to appeal from Tribunal’s decision-Question of law- Change in Building Code made strict compliance with Tribunal’s Order contrary to Law. Application misconceived-Dismissed

COUNSEL:

Mr M Eastwood – applicant
Mr C J Carrigan - respondent

SOLICITORS:

Price & Roobottom – applicants
Short Punch and Greatorix – respondent

REASONS FOR JUDGMENT

[1]This proceeding is in form an application for extension of time to appeal from the decision of an Adjudicator made pursuant to the Body Corporate and Community Management Act 1997 (BCCM Act). The applicants are owners of a unit in Broadwater Tower, at Runaway Bay and had removed a balustrade in the course of installing an air conditioning unit. A dispute arose between them and the Body Corporate and an adjudication was sought. The Adjudicator’s decision was made on 13 June 2001. This appeal is brought in respect of paragraph 1 only of the this order which is in these terms:

“1.  Rea shall, within seven (7) days of the day of this order, submit to the secretary of the body corporate a motion for inclusion on the agenda of the next general meeting of the body corporate that they be entitled to retain the improvement made to their lot, namely the extension of the balustrade railing across common property.  This motion shall be determined by special resolution.  If the motion is not carried, Rea shall, within one (1) month of the date of the meeting, remove the improvement and reinstate the balustrade to its former location on the common property.”

[2]The short point in the proposed appeal is that the requirement to “reinstate the balustrade” involves a breach of the building code of Australia.  Because of a significant change in that code in the interim since the balustrade was removed, the original balustrade cannot now be replaced as it was originally constructed.  To comply with the building code now the applicants would incur additional expense amounting to $896.50, or $1,215.50 to install.

[3]The applicants argue that a question of law is involved by reason of that alleged breach of the building code.  It is necessary for them to establish that such a question is involved because section 237(2) of the BCCM Act permits an appeal to this Court only if a question of law is involved.  Moreover, an application to extend time for appeal must itself reveal a question of law to be determined.

[4]In my view, this application is misconceived. The Adjudicator’s order requires the applicants to reinstate the balustrade in its former position. It is silent as to the standard or method of construction which is required. The order stands to be interpreted as if it were lawfully made, particularly where, as in this case, there was no issue before the Adjudicator as to the application of the building code. Therefore the reinstatement of the balustrade must be performed in accordance with the Building Code as it presently requires. It is a necessary implication of law that it so apply. Consequently there is no merit in the proposed appeal and the application for an extension of time to appeal is dismissed.

[5]I order that the applicants pay the respondent’s costs of and incidental to this application to be assessed.

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