Sattell v The Proprietors Be Bee's Tropical Apartments

[2000] QCA 492

[2000] QCA 492

COURT OF APPEAL

PINCUS JA DAVIES JA DOUGLAS J

Appeal No 3577 of 2000
GARY SATTEL, LINDSAY ROY NICHOLSON & CARINGAL
SPRINGS PTY LTD
Respondent
v.
THE PROPRIETORS "BE BEE'S TROPICAL APARTMENTS"
Appellant

BUP 71593

BRISBANE

..DATE 29/11/2000

JUDGMENT

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PINCUS JA: In this matter the order of the Court is appeal dismissed for reasons to be given later.

We will hear the parties on costs. Yes, Mr

Savage.

MR SAVAGE: Your Honour, if this matter had been raised when the appeal was instituted in April then the body corporate could have obtained a special resolution to ratify that which has been done. The point was taken. The costs of-----

PINCUS JA: When was the appeal instituted?

MR SAVAGE: In April.

PINCUS JA: And have we any information as to when they discovered the point, whether they - when they become aware of it?

MR SAVAGE: Well, your Honour, the point is - the point that they say they were unaware of is that the body corporate in a general meeting had not passed a special resolution.

PINCUS JA: And you say they must have always known that?

MR SAVAGE: Well, they must have always known that because they are proprietors of lot 1.

PINCUS JA: Yes.

MR SAVAGE: So they've always known the point. On
7 June, as Mr Owen's affidavit says, he wrote

making inquiries where he didn't raise this point.

This point wasn't raised until yesterday

afternoon. If it had been raised at any time
before say the start of this month something could
have been done about it. Now, all of these costs,
preparation of the appeal record, the preparation

of the appeal have been thrown away.

PINCUS JA: Yes.

MR SAVAGE: Your Honour, I'd submit that your Honours could make an order in the style that if the body corporate instituted a further appeal, or applied for leave to institute a further appeal within say a period of 56 days-----

PINCUS JA: But short of that, though, just assuming, for example, that you don't do anything further about it, what order for costs should we

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make in that case?

MR SAVAGE: I'd submit that no order as to costs.

PINCUS JA: Because they took the point so late?

MR SAVAGE: Because they took the point so late. I don't think I can go further than that to say they should pay our costs. In the alternative, I would submit that one could make an order in that-----

PINCUS JA: That a conditional order should be made?

MR SAVAGE: That a conditional order should be made such that if the body corporate does institute a reply for leave then the costs would be reserved to the Court hearing that appeal and, in the alternative, that there be no order as to costs or some differential order as to costs.

PINCUS JA: There's only one other matter; could I have my book back please?

MR SAVAGE: Yes, you can, your Honour.

PINCUS JA: Yes, Mr Carrigan. What do you want to say about that?

MR CARRIGAN: Your Honour, I am instructed to ask for costs.

PINCUS JA: Well, what do you say about Mr matter earlier?

MR CARRIGAN: Your Honour, we say three things.
The body corporate has been represented by
competent legal advisers and we're entitled to
assume that they have complied with the
requirements of the legislation and obtained a
special resolution.

The second thing is, Mr Savage points to Mr Owen, a director of Caringal Springs, who is a solicitor but a solicitor in Victoria and there's nothing to show that he has special knowledge of section 259.

He has, in fact, in his affidavit exhibited a

letter that says that - or in writing to the body
corporate secretary asking to really send the
order of Justice Jones to the other members of the
body corporate.

PINCUS JA: Well, when did you first become aware of this point?

MR CARRIGAN: Your Honour, effectively on Monday

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when we undertook a search of the file of the body
corporate file in Cairns. That comes out of the
affidavit of Linda Barlow-----

PINCUS JA: But why would you need to do that because Mr Savage would say you must have known there was no meeting?

MR CARRIGAN: Well, there certainly was a prima facie knowledge there'd been no meeting because the instructions given by Mr Owen when asked was

that he never received notice himself of any

meeting for him-----

PINCUS JA: When did you get those instructions?

MR CARRIGAN: On Friday, your Honour, of last week and that caused the Brisbane agents then to instruct Cairns agents and obtain the search by Linda Barlow on Monday of this week and that's set out in her affidavit. We got the affidavits back here in Brisbane yesterday and we then notified the appellants.

PINCUS JA: You could have given them a bit earlier notice though. You could have told them, say, on Monday that this point was coming up.

MR CARRIGAN: We could have but it wouldn't have materially changed the position.

PINCUS JA: It might have just been more courteous to the other side.

MR CARRIGAN: That's so but we wanted to find out whether or not the prima facie suspicions were, in fact, correct and that's why we needed to have a search of the file because my clients reside in Melbourne. They have - they are just the proprietors of Lot 1, still, in the complex so that it's not as though we're up there every day knowing what goes on.

Your Honour, the third thing that I was going to say about costs; your Honour would notice from the file that, apart from the filing of the appeal, I think Mr Savage says in April and I accept that, that then the next flurry of activity was in about July or August with the filing of the written submissions and then the next step that was taken in these proceedings was really the delivery of the appeal books about two weeks ago, I'm instructed, on 15 November.

It's only really since 15 November that this matter, you know, in fact, has geared up with people looking at it and including-----

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PINCUS JA: But you would have had to look at it at the stage when the outlines were prepared.

MR CARRIGAN: That's so but without, you know, the appeal books and with really whatever resources that were available left over from the trial. There was no appeal book prepared that you could go through and apply your mind totally, you know, to the matter.

PINCUS JA: Well, this is an excuse for not thinking of the legal point really, that you're giving me.

MR CARRIGAN: Yes. But at the end of the day, your Honour, it's - I'd say on the question of costs; it's not our responsibility to be hunting

up the appellants. The obligation is on them. affidavit before the Court to explain why they hadn't done it. It may well have been just an oversight, as simple as that.

At the same time, that's not a reason to visit our costs on the respondents because of their oversight. This is really a significant procedural step which the appellants haven't completed. We say that because of their default - the action is the appeal has been dismissed, we should have, you know, the costs.

PINCUS JA: Yes, I see. Anything in reply, Mr

Savage?

MR SAVAGE: No, your Honour.

PINCUS JA: Yes, we will reserve the question of costs as well as the reasons for dismissing the appeal. We will now adjourn.

MR CARRIGAN: Your Honours, before you adjourn, Mr Savage and I were talking during the break and we noted, with some surprise, Justice Davies comments to the effect that it was your Honour Justice Pincus' last matter and, as I understand the last day on the Bench. Mr Douglas and I thought that the occasion couldn't go by without us saying something to your Honour having noted and, with respect, acknowledging and respectfully adopting the comments of Justice Davies about this.

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We would just like to add that your Honour has, in our knowledge, had a distinguished career at the Bar, not only with the Courts. We recognise that but there would be many juniors at the Bar who have fond memories of, you know, being junior to your Honour in cases.

Your Honour has had a distinguished career both here at the Court of Appeal and previously in the Federal Court. We note with some sadness that your Honour is going to be departing the Bench in the near future and we'd certainly just like to wish your Honour the best and every happiness and your departure will be missed by a number of the Bar.

I can only finally add that my comments are certainly not authorised by the Bar but are really personal comments, your Honour.

PINCUS JA: That's very kind of you. Thanks so much.

MR SAVAGE: Can I join with that, your Honour, and wish your Honour the best in retirement.

PINCUS JA: Yes, thanks, Mr Savage. We'll now adjourn.

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