Skafola Pty Ltd v Burnitt Investments Pty Ltd
[2010] QCATA 10
•28 April 2010
| CITATION: | Skafola Pty Ltd v Burnitt Investments Pty Ltd [2010] QCATA 10 |
| PARTIES: | Skafola Pty Ltd |
| v | |
| Burnitt Investments Pty Ltd |
| APPLICATION NUMBER: | KA008-09 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | BRISBANE |
| DECISION OF: | K Barlow |
| DELIVERED ON: | 28 April 2010 |
| DELIVERED AT: | BRISBANE |
ORDERS MADE: | 1. The appeal be dismissed. |
| CATCHWORDS : | Body Corporate and Community Management – validity of nominations for election of committee – whether “associates” of letting agent - Body Corporate and Community Management Act 1997 (Qld), ss 11, 309 Body Corporate and Community Management – appeal from order of adjudicator – whether an appeal on a question of law - Body Corporate and Community Management Act 1997 (Qld), s.289 |
APPEARANCES and REPRESENTATION (if any):
| The appeal was determined on the papers |
Background
This is an appeal, pursuant to section 289 of the Body Corporate and Community Management Act 1997 (Qld) (the “Act”), from an order of an adjudicator made under Part 9 of Chapter 6 of the Act. The order concerns the body corporate of the community title scheme known as Tower Mill Motor Inn (Scheme No 1918).
By the order, the adjudicator declared that the purported election of the committee of the body corporate for the scheme on 16 April 2009 was void, ordered that nominations for the committee of Peter Burnitt, Keilly Burnitt, Jana Burnitt and Scott Drinkwater, notified to all members of the Body Corporate, were valid and ought be permitted in addition to all other nominations, and made other consequential orders. The order also dealt with another issue which is not the subject of this appeal.
Tower Mill is a community title scheme comprising 107 lots and the common property. The majority of lots are used for short term accommodation. Some lots are used for car parking purposes and 6 lots may be used for other commercial purposes.
On 16 April 2009 an annual general meeting was convened at which, among other things, the committee of the body corporate was elected, having regard to nominations which had been delivered to the secretary before the commencement of that part of the meeting relating to the appointment of the committee. At the meeting, Ronald Davy acted as chairperson and in that role he ruled that the nominations of Peter Burnitt, Keilly Burnitt, Jana Burnitt and Scott Drinkwater were invalid because they were “associates” of the letting agent for the scheme. (I shall refer to the nominations of those persons as the “Burnitt nominations” and to the nominees as the “Burnitt nominees”.) As a consequence, the election resulted in the appointment of Mr Davy as chairman and secretary, Ms Tanya Davy as treasurer and Messrs Clem Crisci, Kristian Kollmorgen and Des Faggotter as members of the committee. No ballot was conducted and no tally of votes was undertaken because, having regard to the ruling of Mr Davy that the Burnitt nominations were invalid, no other persons had been nominated to the respective positions on the committee.
I should interpolate, at this stage, that section 11 of the Body Corporate and Community Management (Accommodation Module) Regulation relevantly provides that a person who is otherwise eligible to be a voting member of the committee is ineligible if the person is a body corporate manager, service contractor or a letting agent or an associate of such a person.
Burnitt Investments Pty Ltd (the respondent in this appeal) is the owner of 16 lots in the scheme. It applied to the adjudicator for orders declaring that the election of the committee was void and the Burnitt nominations were valid, together with consequential orders and other orders not relevant to this appeal.
I assume (although it is not clear) that the applicant is the owner of at least one lot in the scheme. It appears that it is controlled by Mr Davy.
Transmetro Corporation Pty Ltd is the caretaking and letting agent for the scheme. It is also the lessee, under long term leases, of all of the Burnitt Investments lots, except perhaps lot 29. Burnitt Investments occupies that lot, from which it conducts a restaurant and bar business.
Mr Davy submitted to the adjudicator that the Burnitt nominees were associates of Transmetro because:
(a)there was apparently a business arrangement, or some other close association, between Transmetro and Burnitt Investments, as Burnitt Investments occupies lots 4 and 29 although they are (or at least one of them is) leased by it to Transmetro;
(b)Mr Burnitt is the director or controller of Burnitt Investments;
(c)Mr Burnitt was subject to the direction or control of Transmetro, as he had been appointed by Transmetro to represent it at a general meeting of the body corporate some years earlier;
(d)Mr Burnitt’s two daughters, Keilly Burnitt and Jana Burnitt, were associates because of Mr Burnitt’s association with Transmetro and their relationship with Mr Burnitt; and
(e)Mr Drinkwater was an employee of another company controlled by Mr Burnitt and he was therefore an associate of Transmetro because of Mr Burnitt’s association.
10. The adjudicator held that the fact that there was a commercial lease arrangement in place between Mr Burnitt or his companies and Transmetro did not make him an associate of Transmetro. She went on to say that to be an associate as defined it would be necessary to establish that there is, for example, a partnership between the parties, a fiduciary relationship, or that Burnitt Investments is subject to the direction and control of Transmetro. Although she did not make a specific finding on those aspects, it is clear that she found that they did not apply.
11. Skafola Pty Ltd appeals from the orders of the adjudicator relating to the election of the committee and her finding that the Burnitt nominees and Transmetro are not associates for the purpose of the Act.
Question of law
12. Under section 289 of the Act, an aggrieved person may appeal from an order of an adjudicator, but only on a question of law.
13. The applicant identifies the question of law as follows:
“The appeal is based on a question of law because:
When a decision maker makes a decision without considering a relevant fact, the decision maker has made an error of law: s23(b) Judicial Review Act (Qld) 1991.”
14. The application then proceeds to identify the asserted facts referred to in paragraphs 8(a), (b), (d) and (e) above and contends that the adjudicator failed to consider those matters and therefore committed an error of law.
15. It is not submitted by the respondent that the appeal is not on a question of law. However, where an appeal to a tribunal is only permitted on a question of law, the tribunal must be satisfied that the question the subject of the appeal is one of law.[1]
[1] Yates Property Corp Pty Ltd (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156.
16. The limitation of the tribunal’s jurisdiction to the resolution of questions of law imposes a significant constraint on the role of the tribunal in reviewing decisions of an adjudicator. The appealable error of law must arise on the facts found by the adjudicator or must vitiate the findings made or must have led the adjudicator to omit to make a finding she or he was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law. Where the decision of the administrator involves matters of fact and degree, then provided she or he applies correct principles of law, no appeal will lie.[2]
[2] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 286.
17. In this case, the adjudicator found as a fact that the Burnitt nominees were not associates of Transmetro. To my mind, that is a finding of fact, in the making of which the adjudicator did not misapply the law. Thus, even if that finding was wrong, it is not one that can be the subject of an appeal to this tribunal.
18. For that reason alone, the appeal must be dismissed.
The facts in question
19. However, even if it were a question of law whether the adjudicator, in making that finding, failed to take into account relevant facts that were put before her, I am not satisfied that the adjudicator did not take into account the asserted facts.
20. First, so far as Burnitt Investments Pty Ltd is concerned, the fact that was allegedly not taken into account was that, although Transmetro is the lessee and Burnitt Investments the lessor of lots 4 and 29, both lots are occupied by Burnitt Investments. This, it is said, indicates an arrangement concerning Burnitt Investments’ occupation of its own lot that was in breach of its letting agreement with Transmetro, and thus indicates a close relationship between the two companies. Since Mr Peter Burnitt is a director of Burnitt Investments, any association between Transmetro and Burnitt Investments is an association between Mr Burnitt and Transmetro.
21. It is not clear to me that the adjudicator failed to take that allegation into account. She found, in fact, that “there is a commercial lease arrangement in place between Mr Burnitt and/or his companies, and Transmetro”, but that did not make Mr Burnitt an “associate”.
22. “Associate” is very specifically defined in section 309 of the Act. A person is associated with someone else if a relationship of a type to which the section applies exists between them or a series of relationships of a type to which the section applies can be traced between them through another person or other persons. The relevant relationships concerning Mr Burnitt, Burnitt Investments and Transmetro are a partnership or a fiduciary relationship, or a relationship pursuant to which one person is accustomed or under an obligation to act in accordance with the directions, instructions or wishes of the other.
23. The adjudicator found that a commercial relationship of the type alleged did not fall within any of those definitions. I agree. The mere fact of occupation by Burnitt Investments of units leased by it to Transmetro (if such a fact were found) would not alter that conclusion.
24. Therefore, there is no basis on which to challenge the conclusion (as a fact) that Burnitt Investments and Transmetro were not “associates” as defined in the Act. That being the case, Mr Burnitt was not an associate of Transmetro, as his alleged association was based on the fact of his control of Burnitt Investments and that company’s alleged association with Transmetro.
25. As to Kylie and Jana Burnitt, the only fact which the applicant contends that the adjudicator failed to take into account is that they are the daughters of Mr Burnitt and therefore if Burnitt Investments and Transmetro are associates, they are also associates.
26. Given that Burnitt Investments and Transmetro are not associates, the relationship of the Misses Burnitt to Mr Burnitt does not make them associates of Transmetro.
27. So far as Mr Drinkwater is concerned, the fact allegedly not taken into account by the adjudicator is that he was an employee of another company owned and directed by Mr Burnitt. Again, it is asserted that, if Burnitt Investments and Transmetro are associates, then Mr Drinkwater is an associate of Transmetro.
28. Again, as the finding was that Burnitt Investments and Transmetro are not associates, then the fact that Mr Drinkwater was an employee of Mr Burnitt’s other company does not make him an associate of Transmetro.
Conclusions on the appeal
29. This appeal must therefore be dismissed because:
(a)it does not involve a question of law;
(b)even if it did involve a question of law, the facts which the adjudicator is said not to have taken into account would not affect the ultimate findings of fact made by her, namely that Burnitt Investments and Transmetro were not associates, and therefore none of the Burnitt nominees was an associate of Transmetro.
Costs
30. The respondent seeks its costs of the appeal. However, it does not make any specific submissions concerning that application.
31. Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (the “QCAT Act”) provides that “other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.”
32. Section 102(1) of the QCAT Act provides that “the tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.”
33. The enabling Act for this appeal does not make any provision for the costs of an appeal. Therefore, for this tribunal to order that the applicant pay the respondent’s costs of this appeal, the tribunal must be satisfied that the interests of justice require it to make such an order.
34. The respondent does not make any submissions as to why the interests of justice, apart from the fact that the respondent has succeeded, require the tribunal to make an order. In my opinion, section 100 of the QCAT Act negates the proposition that, prima facie, costs should follow the event.[3]
[3]See Tamawood Ltd v Paans [2005] QCA 111, at [23], which considered similar provisions, although in different terms, of the Commercial and Consumer Tribunal Act 2003 (Qld).
35. I am not satisfied that there are any matters which dictate that the interests of justice require me to make an order for costs in favour of the respondent.
Order
36. The only order that I shall make, therefore, is that the appeal be dismissed.
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