Saviane v Hope Island Resort Principal Body Corporate - [2014] QCATA 355

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
Building Units and Group Titles Act 1980 (Qld)
Integrated Resort Development Act 1987 (Qld), s 139(3), s 179A, s 179B, s 179C, s 175W, s 175X, s 176
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 36
Property Law Act 1973 (Qld), s 183, s 192
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10, s 32, s 142, s 146, s 147

Carlson v Strik 1998 QCA 179
Crowe v Bennett [1993] 1 Qd R 57
Horne v Frank [2001] QDC 029
Independent Finance Group v Mytan [2003] 1 Qd R 374
Pezet v Pezet (1946) 47 SR NSW 45
Queensland Building Services Authority v Andrews [2009] QDC 97
Shin Kobe Maru v Empire Shipping Company Inc (1994) 68 ALJR 311
Vakuata v Kelly [1989] 167 CLR 568

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Saviane v Hope Island Resort Principal Body Corporate

Details

AGLC: Saviane v Hope Island Resort Principal Body Corporate [2014] QCATA 355
Case: [2014] QCATA 355
Decision Date: 16 September 2014

CaseChat Overview and Summary

Saviane appealed against a decision of the Queensland Civil and Administrative Tribunal (QCAT) which upheld a decision by the Hope Island Resort Principal Body Corporate to refuse an application to relocate a pontoon and to confirm the tribunal's decision that a dispute about the location of a pillar could only be dealt with by the Supreme Court under the Property Law Act. The dispute arose between the parties concerning the location of pontoons and a pillar in the resort. The Body Corporate had refused an application to relocate the appellant's pontoon and the tribunal had confirmed this decision. The tribunal also held that a dispute about the location of the pillar was a question of encroachment, and could only be dealt with by the Supreme Court under the Property Law Act. The original claims were wider and involved a dispute about an extended fence.

The legal issues before the court were whether any of the issues raised were matters relating to the application of a development control by-law for an approved scheme, under section 179B(1) of the Integrated Resort Development Act, and whether the tribunal had jurisdiction. The court also had to determine whether the tribunal had erred in interpreting the development control by-law scheme and whether the Body Corporate's actions were reasonable and within the bounds of its discretion. The court further had to decide whether the Property Law Act confers exclusive jurisdiction on the Supreme Court to decide issues of encroachment and whether QCAT has jurisdiction to decide the matter when necessary parties have not been involved in a reasonable attempt to resolve the matter by dispute resolution.

The court held that the tribunal had not erred in concluding that the dispute about the location of the pillar was a question of encroachment and that the tribunal did not have jurisdiction to decide the matter. The court further held that the tribunal was correct to conclude that the Body Corporate's decision to refuse the appellant's application to relocate the pontoon was reasonable and within the bounds of its discretion. The court also held that the Property Law Act does not confer exclusive jurisdiction on the Supreme Court to decide issues of encroachment and that QCAT has jurisdiction to decide the matter even if necessary parties have not been involved in a reasonable attempt to resolve the matter by dispute resolution. The appeal was dismissed.

The court granted leave to the first respondent to file supplementary submissions and dismissed the appeal. The court found that the tribunal had not erred in concluding that the dispute about the location of the pillar was a question of encroachment and that the tribunal did not have jurisdiction to decide the matter. The court further held that the tribunal was correct to conclude that the Body Corporate's decision to refuse the appellant's application to relocate the pontoon was reasonable and within the bounds of its discretion. The court also held that the Property Law Act does not confer exclusive jurisdiction on the Supreme Court to decide issues of encroachment and that QCAT has jurisdiction to decide the matter even if necessary parties have not been involved in a reasonable attempt to resolve the matter by dispute resolution.

Orders

Orders of the court

1. Leave is granted to the first respondent to file supplementary submissions dated 24 April 2014.

2. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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