Surace v Rita Commisso Enterprises Pty Ltd - [2011] QCATA 271

CITATION:

Surace v Rita Commisso Enterprises Pty Ltd and Anor [2011] QCATA 271

PARTIES:	Dominic Surace (Appellant)
v
Rita Commisso Enterprises Pty Ltd (First Respondent)
Body Corporate for Acacia Lodge Hostel Community Titles Scheme 25755 (Second Respondent)

APPLICATION NUMBER: APL051-11

MATTER TYPE:

Appeals

HEARING DATE: 19 September 2011

HEARD AT: Brisbane

DECISION OF:

Kerrie O’Callaghan, Senior Member
Peta Stilgoe, Acting Senior Member

DELIVERED ON: 21 September 2011

DELIVERED AT: Brisbane

ORDERS MADE: Appeal dismissed. The orders of the Specialist Adjudicator dated 24 December 2010 are confirmed.

CATCHWORDS:

BODY CORPORATE – where application for declarations about exclusive use – where specialist adjudicator made orders that there was no right of exclusive use – whether finding in reaching decision was in error – whether appellant could appeal – whether appellant a person aggrieved by order – whether finding of fact a decision or order

PROCEDURE – where application for leave to appeal filed late – whether grounds for extension of time

Queensland Civil and Administrative Tribunal Act 2009, s 61
Body Corporate and Community Management Act 1997, ss 289(1)(c), 290(1)
Queensland Civil and Administrative Tribunal Rules 2009, rr 24, 29, 31, 32

Fox v Percy (2003) 214 CLR 118

AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Federal Commissioner of Taxation v Salenger (1988) 81 ALR 25
Surace v Rita Commisso Enterprises Pty Ltd and Anor [2009] QDC 198
Garland and Anor v Butler McDermott Lawyers [2011] QCATA 151

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr A C Gordon, Affinity Lawyers
FIRST RESPONDENT:	S Blaxland of Counsel
SECOND RESPONDENT:	No appearance

REASONS FOR DECISION

This appeal is the latest episode in a long running dispute. Mr Surace is the owner of a lot in the Acacia Lodge Hostel. Rita Commisso Enterprises Pty Ltd (“Commisso”) is the resident manager and letting agent. On 24 December 2010, the Specialist Adjudicator determined that exclusive occupation authorities granted to Commisso by the residential management agreement and/or the letting agreement were void and of no legal effect. Not content with this victory, Mr Surace has appealed to the tribunal, seeking an order that paragraph 37 of the Specialist Adjudicator’s decision “was in error and is dismissed”.

There are two preliminary issues to be determined:

a) Whether the tribunal should exercise its discretion to allow this appeal to be filed out of time?

b) Whether Mr Surace is an “aggrieved person” within the meaning of s 289 of the Body Corporate and Community Management Act 1997?

Extension of time

Section 290(1) of the BCCM Act states that an appeal must be started within 6 weeks after the aggrieved person receives a copy of the order appealed against. Mr Surace received the decision on 4 January 2011, so any appeal should have been filed by 15 February 2011.

On 14 February 2011, Mr Surace’s lawyers attempted to file the application by facsimile[1] pursuant to rule 24 of the Queensland Civil and Administrative Tribunal Rules 2009.…

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.

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Details

Case: [2011] QCATA 271
Decision Date: 21 September 2011

CaseChat Overview and Summary

In Surace v Rita Commisso Enterprises Pty Ltd, the appellant, Mr Surace, sought declarations regarding exclusive use of a carpark in a strata scheme. The respondent, Rita Commisso Enterprises Pty Ltd, opposed the application, and the specialist adjudicator ruled that there was no right of exclusive use. Dissatisfied, Mr Surace applied for leave to appeal, arguing that the adjudicator's finding was erroneous. He also contended that he was a person aggrieved by the order, and that the finding of fact constituted a decision or order from which an appeal lay. The court had to decide if the appellant could appeal the adjudicator's decision, whether he was a person aggrieved by the order, and if the finding of fact was a decision or order from which an appeal lay.

The legal issues before the court were whether the appellant had standing to appeal the specialist adjudicator's decision, if he was a person aggrieved by the order, and if the finding of fact was a decision or order from which an appeal lay. Additionally, the court had to consider whether the application for leave to appeal was filed late and if there were any grounds for an extension of time.

The court found that the appellant did not have standing to appeal the adjudicator's decision as he was not a person aggrieved by the order. The finding of fact made by the specialist adjudicator was not a decision or order from which an appeal lay. Furthermore, the application for leave to appeal was filed late, and no grounds for an extension of time were provided. Consequently, the appeal was dismissed.

No further orders were made by the court, as the appeal was dismissed on the basis that the appellant did not have standing to appeal, and the application for leave to appeal was filed late.

Orders