Saviane v Hope Island Resort Principal Body Corporate
[2014] QCATA 355
•16 September 2014
| CITATION: | Saviane v Hope Island Resort Principal Body Corporate & Anor [2014] QCATA 355 |
| PARTIES: | John Saviane (Applicant/Appellant) |
| v | |
| Hope Island Resort Principal Body Corporate Michael Hill (Respondents) |
| APPLICATION NUMBER: | APL504-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon J B Thomas, Judicial Member |
| DELIVERED ON: | 16 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave is granted to the first respondent to file supplementary submissions dated 24 April 2014. 2. The appeal is dismissed. |
| CATCHWORDS: | APPEALS – ENABLING ACTS – JURISDICTION – where dispute arose between residents of an integrated resort concerning the location of pontoons and pillar – whether any of the issues raised are matters relating to the application of a development control by-law for an approved scheme, under s 179B(1) of Integrated Resort Development Act – whether the tribunal has jurisdiction – where decision of Body Corporate to refuse application to relocate neighbours pontoon was confirmed by tribunal – whether tribunal erred in interpreting development control by-law scheme – where tribunal held that a dispute about location of a pillar was a question of encroachment, and could only be dealt with by Supreme Court under the Property Law Act – where original claims were wider and involved a dispute about an extended fence – whether the Body Corporate’s acted reasonably and within the bounds of its discretion in response to plans for the fence – whether the Property Law Act confers exclusive jurisdiction on the Supreme Court to decide issues of encroachment – whether QCAT has jurisdiction to decide matter when necessary parties have not been involved in reasonable attempt to resolve matter by dispute resolution – whether appeal should be allowed Body Corporate and Community Management Act 1997 (Qld), s 325, s 328 Carlson v Strik 1998 QCA 179 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
INDEX
Overview.............................................................................. [ 1]
Proceedings and Issues.................................................... [25]
Facts and Circumstances................................................. [34]
Preliminary procedural matter........................................... [53]
Pontoon Dispute................................................................. [58]
Fence Dispute.................................................................... [92]
Dismissal of Fence Dispute Claim on the merits........... [124]
Was s 179 B(2) satisfied?................................................ [136]
Are all necessary Parties before the Tribunal?............... [152]
Orders.................................................................................. [157]
Overview
This proceeding has been brought as an appeal under s 142 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) against a decision of a QCAT Tribunal.
The appeal fails on several bases and it must be dismissed. The main reasons for this are:
a) Absence of a condition precedent of QCAT’s jurisdiction to determine the matter;
b) The fence dispute claim must in any event fail on the merits;
c) On the evidence so far presented in the pontoon dispute it also would fail on the merits; however, as the learned Member intimated that the claimants might call further evidence on that issue, it is not open to make a final determination to that effect in this appeal;
d) Before the matter could further progress, issues need to be addressed whether necessary parties are missing, and in particular:
i)whether the sole appellant has the necessary standing to maintain any of the remaining claims; and
ii)insofar as liability is sought to be imposed on the owners of lot 2, whether such claims may proceed without making them a party.
The proceedings concern three neighbouring lots in the Hope Island Resort which is an integrated resort under the Integrated Resort Development Act 1987 (Qld) (‘IRDA’). It contains around 1600 residences.[1]
[1]Transcript of proceedings p 76.
The resort was registered and developed under the IRDA. The mechanism for dealing with disputes about the rights and obligations of persons under the Act is prescribed by s 179A, s 179B, and s 179C of IRDA.
The proceedings from which this appeal was brought were commenced in QCAT by Mrs Wanetta Saviane and Mr John Saviane. At material times since 2003 they have acted as the co-owners of a lot (Lot 3) in the resort, although some confusion arises from Mrs Saviane’s assertion during the hearing that ‘I’m the owner of the property’ and Mr Saviane’s statement ‘she is on the role (sic) for the body corporate as owning the land’.[2]
[2]Transcript of proceedings p 14.
Mr Saviane is at least an occupier, and his alleged co-ownership of Lot 3 has not been challenged. For present purposes I will act on the footing that he is a co-owner, although this would need to be verified if any further proceedings were to be brought following this appeal.
The claims the subject of the dispute are at this stage confined to two broad issues, one, alleged encroachment of a pillar in a dividing wall erected by a previous neighbour of the Savianes between Lots 3 and 4, of which the claimants sought removal by the present occupier, Mr Hill, or by the body corporate ultimately at the cost of Mr Hill; and, two, the removal and relocation of both of his neighbours’ pontoons on either side of Lot 3, that is to say, the pontoons attached to Lots 2 and 4, of which the claimants sought removal and relocation with ultimate liability for the cost thereof lying with the respective owners of Lot 2 and of Lot 4.
Jurisdictional issues arise in relation to both disputes.
QCAT’s original jurisdiction[3] to determine these disputes is said to be enlivened by an enabling act, namely by s 179A and s 179B of IRDA. Those sections state:
179ADealing with particular disputes under Building Units and Group Titles Act 1980
(1)Subject to subsection (2), a dispute about the operation of this Act or the rights and obligations of persons under this Act may be dealt with under the Building Units and Group Titles Act 1980, part 5.
(2)However, this section—
(a)does not apply to a dispute or matter mentioned in section 175W, 175X or 179B; and
(b)is subject to section 179C.
[3]QCAT Act s 10(1).
179BDealing with matter relating to development control by-law
(1)QCAT may deal with a matter relating to—
(a)the application of a development control by-law for an approved scheme to a person mentioned in subsection (2)(b) or (c); or
(b)a contravention or alleged contravention of a development control by-law for an approved scheme.
The IRDA preceded the existence of QCAT, but through amendments, including s 179A and s 179B the Act now designates QCAT as a tribunal to which three particular types of dispute or matter may be referred, namely disputes of the kind described in s 175W, s 175X and s 179B.
Subject to those three exceptions which permit referral to QCAT, the general source for resolution of disputes about the operation of IRDA or the rights and obligations of persons under IRDA is specified as the Building Units and Group Titles Act 1980 (Qld).[4] The dispute resolution system under that Act requires reference to a referee.[5] Those provisions create a special, partially inquisitorial procedure before referees which has functioned apparently satisfactorily in relation to a wide range of disputes for more than three decades. Since 1997, with the advent of the Body Corporate and Community Management Act 1997, it has been replaced for disputes under that Act by a better defined system of dispute resolution with provision for ultimate adjudication by an adjudicator with inquisitorial powers, or, at the option of the applicant, by QCAT. The earlier referee system however remains for disputes that arise in relation to plans[6] registered under the Building Units and Group Titles Act 1980.
[4]IRDA s 179A.
[5]Sections 69 to 198 of that Act.
[6]Under that Act the ‘plan’ was the forerunner of what is referred to in subsequent legislation as a ‘scheme’ binding members.
This litigation is not concerned with any matter arising under s 175W or s 175X (transfer of management rights, contractual matters re corporate managers etc). For present purposes the primary question will be whether any of the issues raised in the litigation is a ‘matter relating to ... the application of a development control by-law for an approved scheme’, under s 179B(1) of IRDA.
Proceedings were originally commenced in QCAT on 22 June 2012 by both Mr and Mrs Saviane only against the Principal Body Corporate of the resort (‘the Body Corporate’), but in due course, the owner of Lot 4 (Mr Hill) successfully applied to be joined as a party. He appeared in person during the hearing before the learned Member on 24 May 2013.
No attempt was made to involve the owners of Lot 2 in the litigation.
Following the hearing, the learned Member dismissed the proceedings for want of jurisdiction. The encroachment claims were dismissed on the basis that they could only be determined in the Supreme Court, and the pontoon claims on the basis that they did not fall within s 179B of IRDA.
No one seems to have adverted to s 179C which relevantly provides:
(1) This section applies to –
...
(b)QCAT in deciding an application about a matter mentioned in section 179B.
(2)… QCAT must not decide the application unless ... QCAT is satisfied the applicant has made reasonable attempts to resolve the dispute or matter by using internal dispute resolution processes.
QCAT’s satisfaction that such attempts have been made appears to be a jurisdictional prerequisite in the deciding of any claim under s 179B. On the evidence it seems never to have been satisfied. This issue was raised in the submissions of Mr Hill in this appeal.[7] My concern over this point was brought to the attention of the parties to the appeal, and the opportunity was afforded to them to deal with it. Despite lengthy submissions on the point, no evidence has been referred to or produced to satisfy me that the necessary reasonable attempts to resolve the dispute were ever made, or even adverted to.
[7]Mr Hill’s Appeal Submissions [1.6] and [4.3].
This jurisdictional issue will be addressed later under the heading ‘Was s 179(C)(2) satisfied?’[8]
[8]See [136] – [151] below.
The present appeal has been brought by Mr Saviane alone. The possible problem raised by this (see above [5] and [6]), and the further problem of the non-inclusion of the owners of Lot 2 as a party will be addressed later under the heading ‘Are the necessary parties before the Tribunal?’[9]
[9]See [152] – [156] below.
I foreshadow that if the appeal were otherwise maintainable as an appeal under s 142 of the QCAT Act, I would take a different view to that of the member on the possible application of s 179B of IRDA to both claims. I consider that the bases upon which he declined jurisdiction were erroneous.
However the same order as that made by the learned Member (dismissal of the claims for lack of jurisdiction) would have been justifiable under s 179C (2) of IRDA.
Insofar as the appeal concerns the fence dispute it must in the end be dismissed as it fails on the merits.
Insofar as the appeal concerns the pontoon dispute, on the evidence so far given I consider that that claim would likewise fail on the merits; but because the claimants were advised that they would be given the opportunity of calling further evidence on that issue, the matter could not be finally disposed of on the merits unless and until the matter was properly before the Tribunal following rectification of the various procedural deficiencies.
It would be sufficient to dispose of the present appeal on the basis of non-compliance with s 179C (2) of IRDA, and to draw attention to the apparent absence of necessary parties. But these procedural points would not necessarily end the disputes, and the litigation might well re-emerge later. With this in mind, it seems preferable to deal as far as possible with the points of substance that are sought to be raised on the appeal, and also ultimately to state why I am of the view that the claims lack merit and are destined to fail.
Proceedings and Issues
On this appeal both Mr Saviane and the Body Corporate are legally represented, while Mr Hill is self-represented.
The proceedings have been marked by a proliferation of legal issues studded with unnecessary procedural objections. Legal costs have been incurred far beyond what might seem to be commensurate with any genuine economic loss or value attaching to the points in dispute.
The material in this case has been unsatisfactorily presented. Other than a short affidavit by Mr Rintoule which helpfully presents and explains a few documents, the evidence lacks witness statements or any narrative of material facts, or indeed any pleading that properly limits and identifies the material issues. Much of the material is in the form of argumentative assertions in the prolix ‘Application’ with its bundle of annexed documents and correspondence, along with a similar extended response[10] by the Savianes to Mr Rintoule’s affidavit.
[10]Dated 23 June 2013.
The hearing proceeded for a full day before the member; Mr and Mrs Saviane, and Mr Hill, appeared in person and the body corporate was legally represented. The opportunity was afforded for all evidence to be relied on to be presented. However, in the event, reliance was placed upon the material already filed, and on the various assertions made during argument which were formally affirmed. However, Mr and Mrs Saviane indicated that they might wish to call further evidence about the orders sought in paragraphs 5, 6 and 7 of their application (ie matters concerning the pontoons). The learned Member informed them that he would consider the issues of jurisdiction, and it would only be necessary for them to come back if it were eventually found that the Tribunal had jurisdiction to determine the claims.[11] Claim number 7 is no longer alive, but orders 5 and 6 concern issues over the pontoons that Mr Saviane still obviously wishes to pursue. There is therefore the possibility of further evidence being called on the claims made in paragraphs 5 and 6, although nothing specific was foreshadowed.
[11]Transcript pp 132 – 133.
The Savianes originally sought orders for:
a) the removal of a substantial part of the dividing wall that Mr Hill had erected along part of the boundary of Lots 3 and 4;
b) the removal of the pillar at the front of the wall which allegedly encroached on the Savianes’ land; and
c) the removal and relocation of their neighbour’s pontoons on both Lots 2 and 4.
At first instance the learned QCAT Member decided that all claims should be dismissed. In essence he decided:
(a)That the claim for removal of the front section of the fence was based on a misinterpretation of the development control by-law and should in any event be dismissed. (The Learned Member’s decision dismissing this claim was patently correct, and has not been challenged on appeal).
(b)That the claim respecting the fence pillar was essentially a claim for encroachment and that the only Tribunal with jurisdiction to resolve it was the Supreme Court (under the Property Law Act 1975).
(c)That the application concerning the neighbours’ pontoons was not a matter relating to the application of a development control by-law under s 179B(1) of IRDA and therefore not within QCAT’s jurisdiction.
On each point the learned Member concluded that there was an absence of jurisdiction to grant relief or that the Savianes had failed to show any basis on which relief could be granted by QCAT.
The relief[12] sought on this appeal is:
a) (The fence dispute) That the Tribunal’s decision be set aside and that the appeal tribunal substitute its own decision requiring Mr Hill to remove or relocate the pillar and any part of the masonry dividing fence and footings which are partially on Lot 3, and, failing compliance by Mr Hill, that the Body Corporate enter Lots 3 and 4 and cause necessary works to be completed and recover the costs of those works from Mr Hill as a liquidated debt.
b) (The pontoon dispute) Set aside the Tribunal’s decision dismissing the orders sought concerning the pontoons, and return the matter to the Tribunal for reconsideration, with provision for the calling of additional evidence.
[12]Application for Leave to Appeal or Appeal [1] to [5], which include the claims in [3] to [6] of annexure A to the original Application.
Alternatively to redetermination by the appeal tribunal of the fence issue, the appellant seeks an order that the matter be sent back to the Member for determination according to law.
Facts and circumstances
The relevant facts for present purposes have been derived from a disorganised collection of material supplied by the parties. They will be limited to the facts and circumstances which allow apparent procedural defects to be discussed and for an opinion to be expressed on the points raised by the parties in this appeal.
Hope Island Resort is an integrated resort development registered under the IRDA. It was approved by Order in Council on 13 February 1992,[13] with amendments by Order in Council of 15 December 2000, 13 December 2002 and 15 December 2006.
[13]Queensland Government Gazette No 29, 15 February 1992, pages 790 – 796.
The appellant, Mr Saviane, is an occupier of, and for present purposes will be treated as a co-owner of a property (Lot 3) in the Gracemere Waters North portion of Hope Island resort. His co-applicant, Wanetta Saviane, is not a party to this appeal.
The relevant plans for the resort are registered under the Building Units and Group Titles Act 1980 (Qld).
Gracemere Waters North is a subsidiary scheme and part of the residential precinct in the Hope Island Resort. It is a member of the respondent Principal Body Corporate which is responsible for the making and administration of Development Control By-laws for the relevant area.[14] Lots 2, 3 and 4 are identified on GTP 107068 and are within the Gracemere Waters North residential precinct.
[14]IRDA s 139(3).
The relevant lots (Lots 2, 3 and 4) back onto a canal which is a secondary thoroughfare within the scheme for the resort. Secondary Thoroughfare By-laws have been brought into effect for the control, management and administration by the Body Corporate of the parts of the scheme site that are designated as ‘secondary thoroughfare’.[15]
[15]Exhibit ‘A’ to Affidavit of Mr Rintoule filed 10 May 2013. The term ‘secondary thoroughfare’ is defined in IRDA by reference to plans of subdivision, and obviously includes waterways so designated. The Principal Body Corporate is given the power to make ‘secondary thoroughfare bylaws’ by s 179 of IRDA.
The pontoons or moorings used by the owners of Lots 2, 3 and 4 are situated across the secondary thoroughfare of Hope Island Resort, properly described as SP 114522.
The fence dispute involves claims that a pillar at the front of the dividing wall between the Saviane and Hill properties (Lots 3 and 4) encroaches on Lot 3, and that the Body Corporate has failed to intervene to require the removal of the encroachment and charge the cost to Mr Hill. The pontoon dispute involves claims that the Body Corporate has failed to require the owners of Lots 2 and 4 to relocate their pontoons further from the boundaries of the Saviane property.
Development Control By-laws were passed by the Body Corporate which has the power to make such by-laws under s 176 of the Integrated Resort Development Act 1987, subject to Ministerial approval. A copy of the relevant Development Control By-laws was presented by the parties and is Exhibit 3 in these proceedings.
The relevant Titles Office plan for the Gracemere Waters North area was registered on 19 December 2002, subsequently to the introduction of the Body Corporate and Community Management Act 1997. It was however registered under the Building Units and Group Titles Act 1980, as permitted by the transitional provisions in the Body Corporate and Community Management Act 1997.[16] The relevant registered plan, Group Titles Plan 107068, is Exhibit 11.
[16]See especially Body Corporate and Community Management Act 1997 ss 325, 328.
The Savianes’ house is set back further from the front of their property than their neighbour Mr Hill’s house. The complaint brought by the Savianes to QCAT, insofar as it concerns the fence between Lots 3 and 4, was that a previous owner of Lot 4 had constructed, and the Body Corporate had not required the removal of, a masonry dividing wall that extended further forward than the line of the front wall of the Savianes’ house.
They also complain that the front footing of that wall intrudes into their property by several centimetres.
Insofar as the complaint concerns their neighbours’ pontoons, each of the three lot owners owns a pontoon which extends from each respective property into the canal. The pontoons extending from Lots 2 and 4 were constructed with the Body Corporate's approval, in locations that resulted in their being less than 500 millimetres from the hypothetical extended boundary between those properties and the Saviane property. Mr Saviane contends that this is in breach of relevant by-laws and ought not to have been permitted by the Body Corporate. He seeks orders, in effect, that would require that those pontoons now be removed and relocated, and that the body corporate should recover the cost of such removals and relocations from the owners of those properties.
The owners at all material times of Lot 2, Ms O’Connor and Mr McKeogh, have never been included as parties, despite the claim that they should bear ultimate financial responsibility for the relocation of their pontoon which apparently they do not wish to relocate. There is no evidence or allegation that the Savianes made any attempt to resolve this claim against them by any dispute resolution process, or that any attempt was made to include them as parties in the QCAT proceedings.
Mr and Mrs Saviane also sought an order requiring the Body Corporate to approve their application to moor their new vessel at their pontoon. The new vessel is substantially larger than the maximum for which the existing mooring was designed (length 8 metres, beam 2.5 metres, mass 3,000 kg) and the Body Corporate contended that the vessel was too large to be moored there. The issue of permission to moor the larger vehicle is now no longer raised in this litigation, but it is inescapable that the size of the new vessel lies behind the litigation of the pontoon disputes.
The second respondent, Mr Hill, is a present owner of Lot 4, although he was not the owner when the pontoon was constructed. He (and Ms Wise) became the owners of that lot on 29 June 2012, having acquired it from the previous owner, Mr Till.
Inspections and surveys prior to purchase showed that the fence and pontoon for Lot 4 had been duly approved by the Body Corporate. On 16 April 2013 he was advised of the present litigation (case OCL055-12) and that it could have an effect upon his property. He then took steps to be included as a party.
He states in his submissions that neither Mr Saviane nor the Body Corporate have involved him in any mediation discussions throughout the entirety of the case.[17] This is not contested in any of the submissions filed by the other parties, and it has not been suggested that attempts were made to involve him in any other form of alternative dispute resolution. He further states that he purchased Lot 4 on 15 June 2012 when all necessary approvals were in place ‘inclusive of the fence extension and pontoon (mooring)’, and that he ‘has had no issue or concerns with the applicant and has not had the opportunity to mediate any of the concerns with the appeal.’[18]
[17]Mr Hill’s submissions [1.6].
[18]Mr Hill’s submissions [1.2] and [4.3].
Mr Hill’s submissions annex a helpful diagrammatic drawing (not to scale) of the relevant fence. It is a helpful indicator of what that dispute is about.
Preliminary procedural matter
It has been directed that I should determine this matter on the papers. There is on the file a separate (as yet undetermined) application by the Body Corporate for permission to file supplementary submissions dated 24 April 2014. The application was prompted by an objection by Mr Saviane’s solicitors to the use of such submissions, based on the absence of any direction permitting them to be filed.
The Body Corporate seeks to include those submissions before me because it says that it needed to respond to new matter and arguments that were raised in the appellants ‘reply’ of 11 April 2014. The Body Corporate's lawyers are desirous of addressing ‘important matters to assist the Tribunal in deciding the appeal on what are complex issues of law’.[19]
[19]Letter from Body Corporate’s lawyers dated 9 May 2014.
Problems of this kind are more easily dealt with in oral proceedings with the parties represented. The relevant directions concerning this appeal expressly confined the right of reply to ‘submissions ... in response to ...’ the respondents’ submissions. I may say that the appellant’s solicitor’s submissions in reply repeat earlier arguments at some length, and they also go some distance beyond the legitimate scope of a reply. Such additional material and the prolongation of arguments would normally be cut off at their origins during a contested hearing. In a situation like the present they are best ignored, in which case there would be no need for supplementary references and arguments by the Body Corporate in its as yet unauthorised rejoinder. Unfortunately, perusal of the transcript confirms that unnecessary bickering and point-taking has been a feature of this litigation, both before the learned Member, and now, in the appeal.
As the matter is before me, and the material needed to be read in order to adjudicate the procedural application, I think it best to resolve this procedural dispute by allowing both the objectionable reply and the unnecessary further reply to be received, with the reservation that I have identified much of the additional material and argumentation as unnecessary and propose to ignore such material. On this footing the Body Corporate's procedural application will be allowed.
Consistently with what has been said in [24] above, I shall express my views on the principal points raised on the appeal, although strictly speaking this is unnecessary because of the jurisdictional deficit discussed below in paragraphs [124] to [135]. This may however be of some assistance to the parties in determining what (if any) further action should be taken.
Pontoon dispute
The pontoons on Lots 2, 3 and 4 were constructed some years ago following normal applications, approvals and practices. Now that Mr Saviane has a larger boat, he is seeking to force his neighbours (through action on the part of the Body Corporate) to relocate their pontoons further away from the imaginary continuation of his boundary lines.
In order to determine his application one must determine what rules govern the location of pontoons within the scheme.
On Mr Saviane’s behalf it is claimed that this is governed by the Development Control By-Laws.[20] In particular he relies upon certain indicative drawings contained in figures 28 and 29 of the by-laws. There is a separate stream of by-laws known as the Secondary Thoroughfare By-laws,[21] which govern the relevant waterways, but he acknowledges that none of them assist his case.
[20]Term defined in the IRDA Schedule 7 and s 176.
[21]These are authorised under s 179 of the IRDA and were duly made and adopted as ‘Hope Island Resort Secondary Thoroughfare By-Laws’. See Exhibit ‘A’ to statement of evidence of Phillip Rintoule.
The relevant drawings in the development control by-laws, he claims, required that:
a) The mooring on Lot 4 should have been close to the boundary of Lot 5, not Lot 3; and
b) The edge of the mooring must not be within 500 millimetres of the extended boundary of the neighbouring lot;
c) That the pontoon on Lot 4 breaches both of those requirements;
d) The pontoon on Lot 2 is closer than 500 millimetres to its boundary with Lot 3;
e) The Body Corporate’s approval ought not to have been given to the construction of those pontoons, and the approvals were in breach of the development control by-laws;
f) The Body Corporate ought now be required to undo the consequences of its former approvals.
g) The Body Corporates decision of 9 November 2011 (which granted a relaxation of the requirement of 500 mm clearance from the extended boundary), was invalid, mainly on the ground that the relaxation was ‘not of a minor nature’.
In particular he seeks that:
a) The approval be now rescinded;
b) The Body Corporate ‘relocate it to the Lot 4 extended west boundary line’ (in accordance with figure 29 on page 41 of the above development control by-laws and certain approved drawings);
c) The Body Corporate ‘rescind the relaxation for the Lot 4 pontoon jetty structure’ (and that it be) ‘installed to comply with’ (figure 28 of the said development control by-laws and certain drawings) ‘requiring the structure to have minimum offset of 500 millimetres clear distance from the extended side boundary ...’;
d) Similar relief in respect of the pontoon attached to Lot 2.[22]
[22]This is a précis of the relief now sought in [4] of Mr Saviane’s notice of appeal which refers to [3] – [6] of the Annexure A to his original application.
The Body Corporate contends that the positioning and construction of a mooring is regulated by the secondary thoroughfare by-laws, not by the development control by-laws which regulate the development of a ‘lot’. A ‘lot’ is an area identified as such on a group titles plan or building units plan in the resort.
The learned Member considered that the indicative drawings, figures 28 and 29, relied on by the Savianes did not concern the development of a lot, and were not a valid requirement of a development control by-law. He concluded that the application, insofar as it concerns the pontoons, was not within QCAT’s jurisdiction under s 179B of the Integrated Resort Development Act.
It is convenient to confine present discussion to Lot 4’s pontoon. Its nearest extremity lies within 500 mm of the extended boundary between Lots 3 and 4, but it still lies entirely within the projected extensions of the boundary lines of Lot 4. It is not in an area over which the Savianes have any property rights.
Determination of the positioning of pontoons is an aspect of regulation of the waterway, which involves issues such as navigational access and canal use.
The evidence, including the view of Maritime Safety Queensland[23] seems from any navigational point of view to be all one way in favour of the conclusion that the status quo is acceptable and the relaxation reasonable. But the learned Member did not reach the stage of entering upon an examination of the merits.
[23]Exhibit ‘O’ to statement of Phillip Rintoule.
With some hesitation I have concluded that the Member erred in expressing the view that ‘to the extent that they purport to govern the placement and construction of moorings, it seems to me that the DCBL [development control by-laws] are invalid’. This led to his conclusion that the application would have to be determined under the secondary thoroughfare by-laws, and that consequently the determination would need to be made by a referee under s 119 of the Building Units and Group Titles Act.
‘Secondary thoroughfares’ lie within ‘precincts’, but are separately treated and regulated. Disputes arising under the Secondary Thoroughfare Bylaws plainly fail to meet the requirements of matters that may be brought to QCAT under s 179B, which are confined to matters concerning Development Control By-laws. The question then is whether the Body Corporate may make and did make valid by-laws regulating the position of pontoons.
I accept the submissions of Mr Saviane’s solicitors that secondary thoroughfares are part of residential precincts[24] and are therefore competent subject matter for Development Control By-laws, subject of course to the requirements of IRDA, especially s 179. A valid by-law would of course need to have some connection with the needs of a residential precinct.[25] The connection between a lot and its pontoon is arguably sufficient to justify the existence of some planning provisions in such by-laws, and I am prepared to accept that the Body Corporate has power to make some such by-laws.
[24]See definitions of secondary thoroughfare and residential precinct in IRDA.
[25]See IRDA s 176.
But when one looks closely at the actual by-laws, they provide no proper foundation upon which the Savianes can require the body corporate to force their neighbours to move their pontoons. In particular, for reasons stated hereunder, I reject the submission that figures 28 and 29 contained within the bylaws (which are the basis of this particular claim by the Savianes) amount to a ‘requirement’ that binds the body corporate or which they can force the body corporate to impose upon their neighbours.
Under the development control by-laws, development needs to comply with the ‘Requirements’ set out in by-law 3.[26]
[26]By-law 2.03.
By-law 3 is a statement of ‘Development Guidelines’ some of which are mandatory, and others not. It concludes with a section titled ‘3.07 Figures’.
There is no explanation of the effect or status of the ‘Figures’. There are 35 of them, most of which are titled ‘General ...’, eg ‘General Signs, General Driveways, General Landscaping And Planting Table etc’.
The figures relied upon by Mr Saviane are ‘Figure 28 General Moorings’ and ‘Figure 29 General Quayline and Mooring Arrangement’. Having read them in their context, I consider that these figures are intended as general indicators rather than mandatory requirements.
The relevant figures 28 and 29 are respectively titled ‘General Mooring and ‘General Quayline and Mooring Arrangment’. Figure 29 is a fairly rough drawing of a portion of the Gracemere Island Area and it includes what can only be regarded as indicative or suggestive positions for the layout of pontoons in the rounded end areas of two of the canals.
They are illustrative of what is generally desired to be achieved, but in the end are no more than a guide for applicants and the Body Corporate. They are neither a registered plan, nor ‘requirements’. At most they are planning guides.
It is to be noted also that even if they were taken to be prescriptive, the Body Corporate has a dispensing power, both in respect to non-compliance by an affected person of a minor nature (Integrated Resort Development Act, s 177) and in clause 4.10 of the by-laws themselves.
It is also noteworthy that the Savianes’ own pontoon is located close to the centre of his lot, contrary to the indication on figure 29, and seemingly they have no intention of changing it to accord with that configuration.
The design of the Savianes’ home, pathway and stairs to their pontoon appear to have been deliberately fashioned to achieve this.[27] Mr Saviane claims that when he installed his pontoon in 2003 the by-laws did not contain figures 28 and 29. Accepting that to be so, the inconsistency of the subsequent indicators with the positioning of existing pontoons hardly indicates an intention to effect mandatory requirements.
[27]See Exhibits 15, 16 and 17.
The Savianes obtained the Body Corporate’s approval to construct the pontoon on Lot 3 in 2003.[28] The owners of Lot 2 obtained approval for the pontoon for that lot in April 2004.[29] Mr Hill’s predecessors obtained approval for Lot 4’s mooring in 2010.[30]
[28]Exhibit ‘D’ to affidavit of Mr Rintoule.
[29]Exhibit ‘C’ to affidavit of Mr Rintoule.
[30]Exhibit ‘I’ to affidavit of Mr Rintoule.
Those applications were within the discretion of the Body Corporate to approve, and were considered, approved and constructed. Obviously the Body Corporate has the power also to approve or waive minor constructional deviations from its own approvals and requirements.
The basic design document for the resort, and in particular the Gracemere Waters Area, is the group titles plan, in this instance Exhibit 11. That plan gives no indication of any pontoon requirements or positions attached to any of the lots.
In my view figures 28 and 29 relied on by the Savianes are not mandatory ‘requirements’ of the development control by-laws. They are indications which the Body Corporate in each instance had the power to vary or depart from.
The pontoons for Lot 2 and Lot 4 do not intrude into Lot 3, or even into Lot 3’s theoretical space through projection of the boundary lines across the water.
The fact that the pontoons on Lots 2 and 4, as constructed, come within 500 millimetres of the imaginary lines, even if 500 mm clearance is regarded as a requirement, is one that the Body Corporate is entitled to relax, and in any event fall within s 177 of IRDA. Nothing unreasonable has been shown concerning the body corporate’s preparedness to relax such a requirement. To the contrary, the evidence strongly supports the Body Corporate’s willingness to do so, and its maintenance of the status quo.
In short, whilst I agree with Mr Saviane’s submission that his claim raises the application of a development control by-law, and is therefore within the jurisdiction of QCAT to consider, no error has been shown on the part of the Body Corporate in approving the pontoons in their present locations, and no right is shown by the Savianes to require the Body Corporate to reverse its decisions or to make fresh ones.
It seems inevitable that a proper exercise of discretion will require the upholding of the decisions that have so far been made by the body corporate, including, for example, its decision to relax any requirement for 500 mm clearance between Mr Till’s pontoon and the Savianes’ extended boundary.[31] Having regard to the evidence which includes correspondence from Maritime Safety Queensland[32] it is impossible to see how any other decision could reasonably be made in relation to the Savianes’ demands for relocation of the pontoons of either of his neighbours.
[31]Exhibit ‘P’ to affidavit of Mr Rintoule (decision communicated on 29 November 2011).
[32]Exhibit ‘O’ to affidavit of Mr Rintoule.
The evidence as a whole fails to show any good reason to nullify the Body Corporate’s determinations, and it fails to support any grant of the relief sought by the Savianes.
In view of the Savianes’ intimation that further evidence might be called on the pontoon dispute it is impossible for me to deal conclusively with the question whether the appeal on that issue should be dismissed in any event on the basis that the application must fail on the merits. I can however, consistently with the objects and functions of this Tribunal under sections 3 and 4 of the QCAT Act, mention my concerns about the unviability of this litigation concerning the pontoons, its apparent lack of merit, and its propensity to waste a substantial amount of legal costs.
If the evidence stopped as it now is, and the appeal were otherwise competent, I would uphold the order of dismissal on the alternative ground that this particular claim fails on the merits. However, in view of the way in which the matter proceeded before the learned Member, if the matter were otherwise able to proceed, it would be necessary for the Savianes to be given a further opportunity to call evidence in relation to the claims in paragraphs 5 and 6 of the application (ie the pontoon dispute) before such a dismissal could occur.
Fence dispute
Mr Saviane’s complaint on this issue is that the Tribunal erred in law by determining that the claim concerning the ‘pillar’ was a dispute about an encroachment, as opposed to a dispute about compliance with the development control by-laws, and that the learned Member erred in concluding that such a complaint could only be dealt with by the Supreme Court under Part 11 of the Property Law Act 1974.
Extensive legal arguments were addressed on these points. In my view those issues are best covered by examining the nature of the claims in this litigation, and then the applicability of the relevant legislation, principally the Integrated Resort Development Act s 179A to s 179C, and the Property Law Act 1974 s 182 to s 194.
The original claim was wider than a complaint about encroachment. In addition to seeking the removal of the pillar, the Savianes sought the removal of the whole wall forward of their house alignment, also complaining that the Body Corporate had wrongfully failed to order its removal.
The original claim was overlaid with issues about what the Body Corporate should or should not have done in approving the plans for the recently extended fence.
The learned Member, correctly in my view, found that the complaints about the fence extending further forward than the front of the Savianes’ house were baseless.
No appeal has been brought from that determination. When one looks at the fence, the plans and the result, the only grievance remaining is the fact that the front pillar, or, more accurately, the return footing of the pillar, is more on the Saviane’s side of the boundary than on Mr Hill’s. It is now essentially a complaint of encroachment.
The triviality of the complaint is demonstrated by the fact that a similar pillar at the rear of the fence encroaches symmetrically in reverse into Mr Hill’s lot (Lot 4). When confronted with this, Mr Saviane says that no one objected when that post was placed substantially on his neighbour’s side of the line, but that he now has the right to object now that the current owner of that property has done the same thing in reverse at the other end of the fence.
However it is contended on behalf of Mr Saviane that this is also a dispute about the rights and obligations of persons under the IRDA.
It is common ground that the plans for the relevant section of this wall, in accordance with what has been common practice in the Hope Island Scheme, showed the location of the wall, but did not depict the pillar that would be necessary for its support. There is nothing in the bylaws that would make it essential to do so.
I reject the submission that the pillar ‘represents unapproved development that has been constructed contrary to Body Corporate approval’. Whether the Body Corporate should have rejected such a plan and insisted upon more elaborate designs and drawings was, I think, a matter as to which the Body Corporate had a wide discretion, and not a point upon which a challenge could successfully be made to a Tribunal in circumstances like the present, noting that a Body Corporate always has the power to relax minor requirements under s 177 of IRDA.
In other words this is a situation where a Tribunal would not interfere with the actions of the Body Corporate unless they were plainly shown to be so unreasonable as to be beyond proper discretionary limits. A similar view might be taken in relation to the approval by the Body Corporates agent of the fence as being in accordance with the plans submitted.
Characterisation of this as a dispute under the bylaws is by no means obvious. The only real point of grievance is the encroachment, as to which the claimants have an obvious alternative legal remedy under the Property Law Act in the Supreme Court, if they chose to exercise it against the owner of Lot 4. Such a characterisation could therefore be seen as unnecessary and artificial having regard to its essential character as a claim against a neighbour for wrongful encroachment in respect of which there is an obvious legal remedy.
However, for the moment I shall assume in Mr Saviane’s favour that it might also be characterised as a dispute about the rights and obligations of persons under the IRDA.
On that assumption, QCAT ‘may’[33] deal with ‘the application of a development control by-law, or a contravention of such a by-law’.
[33]IRDA s 179B(1).
The question raised in the appeal is whether the Savianes were bound to go to the Supreme Court under the Property Law Act, or whether they have any right to insist that QCAT determine this dispute.
The learned Member held that ‘any complaint about encroachment is a matter that can only be dealt with by the Supreme Court under Part 11 of the Property Law Act’, and ‘if they wish to seek an order for its removal they will need to apply to the Supreme Court’.[34]
[34]Member’s reasons for judgment [36] and [37].
The learned Member placed reliance upon McDonald v Clark[35] as authority for the proposition that disputes concerning encroachments are to be dealt with by the Supreme Court alone. With respect I do not consider that that case goes so far, or that it holds that the same result must follow in cases decided under IRDA as in cases under the Building Units and Group Titles Act 1980.
[35][2012] QSC 418.
A finding that something encroaches upon someone else’s land is not in itself a determination of title to or ownership of land, although it necessarily involves a finding of where the boundary is, and on what side of it the encroaching object lies. Such a finding is a finding of incidental fact, commonplace in courts and tribunals in a wide variety of cases, including criminal cases, where findings of fact need to be made where boundaries lie, and on what side of them various activities have occurred.
In disputes between lot owners and bodies corporate (under IRDA or under the Building Units and Group Titles Act) the dispute resolution tribunal (whether a referee or QCAT) must act through the person by directing a party to act in specified ways in accordance with by-laws and other lawful obligations. Such determinations are not properly described as determinations of title to land. Determinations of title to land are essentially determinations of right that affect the ownership of land or registered title, or in the case of old system land, unregistered title.
In short, I see nothing at common law or in the applicable statutes which would prevent a tribunal in a dispute between a unit owner and a body corporate in an area otherwise within jurisdiction from making a finding of encroachment and the making of orders that would eliminate it.
The question then is whether there is anything in the Property Law Act which confers exclusive jurisdiction upon the Supreme Court in relation to any claim of encroachment.
Section 183 of the Property Law Act preserves the superiority of the Supreme Court in this area. But it does not rule out concurrent determination by other courts and tribunals. Neither does s 192 of that Act. That section provides:
192Suit, action or other proceeding
(1)In any suit or proceeding before the court, however originated, the court may, if it sees fit, exercise any of the powers conferred by this division, and may stay the suit or proceeding on such terms as it may deem proper.
(2)Where any action or proceeding is taken or is about to be taken at law by any person, and the court is of opinion that the matter could more conveniently be dealt with by an application under this division, the court may grant an injunction, on such terms as it may deem proper, restraining the person from taking or continuing the action or proceedings at law.
(3)In any action at law a judge may, if the judge is of opinion that the matter could more conveniently be dealt with by an application under this division, stay the action or proceeding on such terms as the judge may deem proper.
That section provides that the Supreme Court may stay a proceeding in the Supreme Court, exercise any of the powers conferred by Division 1 of Part 11 in any proceeding before the Court, restrain other proceedings by injunction, and stay other proceedings in any matter. But it does not rule out concurrent determination by other courts and tribunals.
The case of McDonald v Clark was based in part upon s 285 of the Body Corporate and Community Management Act, particularly on the words ‘the adjudicator does not have power to resolve a question about title to land’. No such provision or limitation exists in IRDA, or the Building Units and Group Titles Act, or the QCAT Act which are the principal sources of law applicable to the present matter.
For reasons mentioned above I do not think that proceedings in QCAT, (assuming them for the moment to be otherwise within jurisdiction), would require the resolution of any question about title to land.
I consider that the learned Member’s view that such a claim could only be brought in the Supreme Court was erroneous.
However, leaving aside for the moment any question of the merits of this claim, there is another arguable basis upon which the dismissal of this claim might be upheld. I would not base my decision on this point, but consider it to be arguable and will note it in passing. It is summarised in the following four paragraphs.
QCAT’s jurisdiction under s 179B is expressed in discretionary terms. It ‘may deal’ with a matter relating to the application of the development control by-law. It must not lightly decline jurisdiction, but where there are alternative superior remedies in some other court or tribunal, it is at least arguable that there is a discretion to decline to entertain the application so that a party may pursue a remedy in a more appropriate tribunal.
The bringing of the Body Corporate into the process could be seen as an unnecessary overlay upon the true issue, namely an encroachment dispute between neighbours. Bringing in the body corporate was an artificial and unnecessary multiplication of parties and issues.
QCAT’s limited powers (in contrast to the wide-ranging managerial-type and powers conferred upon referees and adjudicators in legislation dealing with disputes between parties involved in building unit situations)[36] make it a less than ideal tribunal to resolve such a dispute. Similarly, so far as the encroachment issue is concerned, the Supreme Court has a wide range of appropriate powers and discretions, including the transfer of portions of land, payment of compensation and the like. It is better equipped to deal with a case of this kind.
[36]eg Building Units and Group Titles Act 1980, Body Corporate and Community Management Act 1997 s 276(3) and Schedule 5.
It is therefore arguable, if jurisdiction otherwise exists, that QCAT could properly decline jurisdiction and allow the Savianes to pursue their remedy in the Supreme Court.
However, I shall not proceed on that basis, as I have concluded after a full review of the evidence on this issue that the fence dispute claim must in any event fail on the merits. Leaving aside the other jurisdictional and procedural problems confronting this appeal, it seems more satisfactory that I should indicate why this claim must fail, rather than simply refusing jurisdiction and leaving both the grounds of the appeal and the merits of the dispute to another day.
Dismissal on the merits of the fence dispute claim
The evidence concerning the fence dispute is complete. Leaving aside the s 179C(2) point for the moment, it would now be open to this appeal tribunal to allow that claim, to dismiss it, or to refer it back to the member.
When one looks at the evidence of Mr Rintoule,[37] and at the entire fence (which is simply and usefully illustrated in the annexure to Mr Hill’s submissions), it is clear that there is in fact no unlawful encroachment.
[37]Transcript of proceedings pp 79 – 80.
The existence of the return portion of the pillar is no more an encroachment than, for example, a 6”x6” post that forms part of a conventional dividing fence, which intrudes into each property by 3 inches. The very nature of a dividing fence necessitates mutual encroachments.
For example, standard besser-brick and similar masonry fences or walls (usually about 190 mm wide) necessarily intrude by half that distance into each of the properties that they divide. A return footing may be regarded as a necessary part of such a wall, and may serve a very important structural purpose. Questions of fact and degree may arise as to whether they are a reasonable and necessary part of the particular fence.
The return footing of which the Savianes complain is completely in accord with the design and character of other masonry fences in the resort. The evidence is that about 90% of such fences across the entire resort contain such footings which necessarily intrude on one or other side of the boundary, and that they are normally designed and built in exactly the same way as the subject fence.[38]
[38]Op cit.
The factor of consistency with the character of the neighbourhood was always regarded as a highly relevant factor in fence disputes even before it was adopted as a test by legislation dealing with dividing fences.[39] It may be noted that QCAT has jurisdiction to determine dividing fence disputes under other legislation,[40] but the Savianes expressly disclaimed any attempt to invoke that jurisdiction, or to apply under it. That factor however remains relevant in determining the reasonableness of the actions of the body corporate in permitting such a fence to be constructed.
[39]eg Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 36(c) where ‘the kind of dividing fence normally used in the area’ is stated as a relevant consideration.
[40]Dividing Fences Act 1953 (Qld); Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
Such fences are a perfectly normal feature throughout the resort, and it seems obvious that the Body Corporate had a discretion to approve the construction of a fence of this kind where there is equal give and take.
It is arguable whether the intrusion of the relevant footing constitutes an ‘encroachment’ at all. In the circumstances, as it forms part of an approved and appropriate dividing fence, it is not an actionable encroachment.
The Savianes can only succeed on the fence dispute if they show some right or entitlement under the Development Control By-laws, or a contravention of those bylaws by the respondents. Their complaints in this respect range from the trivial to the vexatious. The Body Corporate was well within its rights to decline to intervene, and there is no good reason for QCAT to require either the body corporate or the Savianes’ neighbours to comply with the Savianes’ demands.
If (contrary to my view) the appeal is competent, despite my view that there is merit in the Savianes’ solicitors submissions that the learned Member’s dismissal of this claim was erroneous, I would be prepared to dismiss the appeal on the fence issue on the ground that upon the evidence the application must fail.
On this point the following unanimous statement of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ in Shin Kobe Maru v Empire Shipping Company Inc[41] is relevant:
As a general rule, a respondent to an appeal is entitled to support a judgment by an argument not presented below so long as the argument does not depend upon an issue of fact not litigated in the courts below and so long as it is open to the respondent on the pleadings and having regard to the way in which the case has been conducted.
[41](1994) 68 ALJR 311, 313.
The appellant, in his Application for Leave to Appeal or Appeal invited this Appeal Tribunal to make final orders on the merits on both issues.[42] This appears to have been an invitation to treat the matter as an appeal under s 147 of the QCAT Act. I indicate that if I am wrong in dismissing the appeal on the basis of s 179B(2) of IRDA, I would be prepared to dismiss the appeal, at least on the fence dispute, on the merits.
[42]In ‘Part D Orders sought’ the following relief is sought:
1. That the decision of the Tribunal be set aside and substituted with the decision of the Appeal Tribunal.
2.That the second respondent (Hill) be ordered to remove any part of the fence, which has been erected contrary to the approval of the first respondent (the Body Corporate) within one month of the date of these orders.
3. That in default of the second respondent complying with the preceding order the first respondent enter upon lot 4 and lot 3 (as necessary) to perform those works at the cost of the second respondent.
4.Orders to give effect to the relief sought by the appellant in orders 4, 5 and 6 sought by the appellant in the original application.
5...
Was s 179C(2) satisfied?
Little or no attention appears to have been paid by the claimants to s 179C(2) of IRDA. The existence of jurisdiction is of course fundamental to the continuation of these claims in QCAT.
The basis of the jurisdiction relied on by Mr Saviane is s 179B of IRDA. That section is expressly made subject to s 179C.[43]
[43]IRDA s 179B(4).
Section 179C provides as follows:
179CInternal dispute resolution processes to be used before application
(1)This section applies to—
(a)a referee for deciding an application for an order under the Building Units and Group Titles Act 1980, part 5 relating to a dispute about a matter mentioned in section 179A; and
(b)QCAT in deciding an application about a matter mentioned in section 179B.
(2)The referee or QCAT must not decide the application unless the referee or QCAT is satisfied the applicant has made reasonable attempts to resolve the dispute or matter by using internal dispute resolution processes.
Examples of internal dispute resolution processes—
•the parties to a dispute communicating with each other
•the applicant writing to the executive committee for the relevant principal body corporate
•the applicant causing a motion to be presented for consideration at a general meeting of the relevant principal body corporate
The question is whether the second respondent, Mr Hill, was given the opportunity to be involved in any dispute resolution process before the application was brought to QCAT. This point was directly raised in paragraphs 1.6 and 4.3 of Mr Hill’s written submissions on the appeal.
My concerns on this point were brought to the attention of the parties. Full opportunity was given to Mr Saviane to deal with them, and in due course, lengthy further submissions were received.
The main submission of Mr Saviane’s solicitors in response to these concerns was a suggestion that Mr Hill had only referred to the absence of ‘mediation’ rather than the absence of ‘dispute resolution’. I do not find this convincing, particularly in the absence of any reference to any step that was allegedly taken with respect to dispute resolution.
The file shows that directions were given at the Compulsory Conference on 2 October 2012 for mediation between the claimants and the Body Corporates Architectural Review Authority, and that they had a meeting on 9 October 2012. But no such process was ever pursued with the owners of Lots 2 and 4.
The Savianes’ solicitors further submitted that Mr Hill was not a necessary party under IRDA, and that he was only joined under the QCAT Act. Hence, so the submission goes, the only persons contemplated by s 179C(2) of IRDA are the claimants and the body corporate.
I reject the submission. It is true that s 179B(2) of IRDA lists categories of persons who have the standing to make an application, but IRDA does not purport to deal with procedural requirements as to who should be made a respondent. That of course is left to the requirements and practices of the designated Tribunal. It is elementary that persons against whom detrimental orders are sought should be made parties, or at least given the opportunity to become parties.
Mr Hill was always the primary and necessary respondent in relation to the dispute concerning the wall, and both Mr Hill and the owners of Lot 2 were necessary respondents to the pontoon claims. Each was a person with a substantial interest in the mooring dispute which was aimed at the removal and relocation of their moorings, and each was clearly a party who should have been involved in a dispute resolution process before QCAT could be called on to decide it. It was clear from the outset that the claims included a direction for the body corporate to recover the cost of rectification and relocation from the claimants’ neighbours (respectively Mr Hill and Ms O’Connor and Mr McKeogh), and the litigation could not properly be decided unless and until those persons were given the benefit of a dispute resolution process and a proper opportunity to defend their rights.
The nature of the claims made against the Body Corporate (eg removing structures and then recovering the cost from Mr Hill) mean that Mr Hill is a necessary party with a right to be heard with respect to such claims that ultimately affect him. All the relief sought against the Body Corporate is ultimately directed towards the making of orders that would require Mr Hill to perform acts or to pay for their cost. He was therefore always a necessary party with respect to all relief sought against him or the Body Corporate.
It was not submitted that the prohibition in s 179C(2) was a requirement that could or should be waived in the circumstances, either by the parties or by QCAT. In any event Mr Hill has not waived it, and Ms O’Connor and Mr McKeogh have not been given the opportunity to waive it.
It is true that QCAT has the power, under s 61(1)(c) of the QCAT Act to waive compliance with a procedural requirement of an enabling act. Even if that power were available in respect of s 179C(2) which is a jurisdictional requirement and is in mandatory terms, there was and is no good reason why compliance with it should be waived.
So far as waiver by the parties is concerned, I do not think that the parties may confer on a Tribunal jurisdiction that does not exist. In any event, the situation is simply that the point was never raised by the parties. Sometimes a cynical standing by a party may result in that party being precluded from later raising an objection (e.g. in Vakuata v Kelly[44]), but there is nothing of that kind in this case. Indeed, Ms O’Connor and Mr McKeogh were not even given the opportunity to become parties.
[44][1989] 167 CLR 568.
The Savianes prima facie had standing under s 179B(2) in relation to making a claim against the Body Corporate, but once it was clear that this included a claim that the Body Corporate be directed to recover the cost of rectification and relocation against the Savianes’ neighbours (respectively Mr Hill and Mr Till), the litigation could not properly be allowed to continue unless and until those persons were given a proper opportunity to defend their rights, and it could not be determined until the Tribunal was satisfied that the necessary reasonable dispute resolution attempts had been made.
In my view the failure to involve necessary parties in a dispute resolution process which is a condition precedent to the ability of QCAT to decide the relevant applications, is fatal to the making of any decision by the learned member. Similarly this Appeal Tribunal could not grant the relief they seek.
Are all necessary parties before the Tribunal?
The present appeal has been brought by Mr Saviane alone. Mrs Saviane appears to have become painfully aware during the hearing,[45] if not earlier, of the pitfalls of this litigation which has been protracted and marked with considerable verbosity, technicality and unnecessary expense. As earlier mentioned (at [5] above). Further problems might confront Mr Saviane’s maintenance of these essentially proprietorial claims if Mrs Saviane is in fact the sole registered owner of Lot 3.
[45]Cf Transcript of Proceedings p 138 l 35.
Statutory contractual rights of lot owners, occupiers and bodies corporate are the basis of any claim for application or contravention of any development control bylaw under IRDA.[46] This is echoed in By-law 1.06.1 of the Development Control Bylaws that Mr Saviane seeks to have applied, which state that they apply to occupiers and the Body Corporate ‘as if they contained mutual covenants to observe and perform all the provisions of these by-laws’.
[46]IRDA s 176(7); Independent Finance Group v Mytan [2003] 1 Qd R 374; [2001] QCA 306 esp at [88].
On that footing, Mr Saviane had and still has the locus standi of an occupier. If his claims properly fall under s 179B of IRDA, QCAT could deal with them while Mrs Saviane remained a party. But I do not think that a mere occupier can maintain what are in effect proprietorial claims in the absence of the owner of the lot which is said to have been encroached. I do not think that a court would entertain such a claim, and, even assuming that QCAT otherwise has jurisdiction to determine claims of that kind I do not think that QCAT could or should do so with a mere occupier as sole claimant.
I do not base my decision on any of these deficiencies, as the parties should have the opportunity to make further submissions on the points before a decision could be based on them. In the present circumstances however further delays and further submissions are the last thing that is needed when it is already clear that the appeal must be dismissed.
These points however would have to be overcome if the present appeal were to succeed, and, like the claimants’ non-compliance with s 179C(2), they appear to be fundamental procedural defects that could only be remedied by the Savianes attempting to recommence the whole proceedings afresh, this time with all necessary parties and following the prescribed procedures. This could well have substantial costs implications.
Orders
It will be necessary to make an order allowing the filing of the further submissions mentioned in [53] to [57] above.
So far as this appeal is concerned, I have options to confirm or amend the decision or to set it aside and substitute my own decision, or set aside the decision and return the matter to the Tribunal for reconsideration.[47]
[47]QCAT Act ss 146, 147.
The appellant, Mr Saviane, also sought an order for the costs of the appeal against both respondents.
This is not a case in which it would be appropriate to order the costs of the appeal against any party. Furthermore, it is a vexed question whether a Tribunal has the power to award costs when it finds that it has no jurisdiction to grant the orders sought. I favour the view that the statutory power in s 102 of the QCAT Act is sufficient to justify the making of such an order.[48] However, in deference to a series of District Court decisions[49] given when that court was the appellate Tribunal for QCAT and QCAT’s predecessors which hold that there is no such power, I will follow those decisions unless and until a more authoritative decision is made to the contrary.
[48]Crowe v Bennett [1993] 1 Qd R 57, 62; Carlson v Strik 1998 QCA 179 (per McPherson JA at [5]); Pezet v Pezet (1946) 47 SR NSW 45 at 51 per Jordan CJ.
[49]Horne v Frank [2001] QDC 029; Chancellor Park Retirement Village Pty Ltd v Squire (McGill DCJ 12 May 2004), DC 57/04; Queensland Building Services Authority v Andrews [2009] QDC 97.
The principal order will be appeal dismissed.
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