Surfwood Body Corporate v Painter

[2012] QCATA 247

CITATION: Surfwood Body Corporate v Painter [2012] QCATA 247

PARTIES:	Surfwood Body Corporate (Applicant/Appellant)
v
Kevin Painter (Respondent)

APPLICATION NUMBER: APL022-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: K A Cullinane AM QC, Member

DELIVERED ON: 29 November 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Appeal refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where parties sought clarification in relation to body corporate by-laws regarding pets – where Tribunal made an interim order allowing the pet to be kept on the lot – where the Tribunal made a final order that there was no legal impediment to the pet being kept on the lot – whether the principles relating to an interlocutory order were properly applied by the Tribunal

Body Corporate and Community Management Act 1997, ss 288A, 289, 290
Queensland Civil and Administrative Tribunal Act 2009, s 32

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 (‘QCAT Act’).

REASONS FOR DECISION

1. This is an appeal from an order made on 13 December 2011 by an Adjudicator pursuant to the Body Corporate and Community Management Act 1997 as amended (‘BCCM Act’).

2. The respondent has sought an order permitting him as an owner to keep his dog on his lot.  The Adjudicator treated the application as an interim one in view of the terms of the application and made an order in interim terms in the respondent’s favour.

3. There have been considerable delays in finalising the matter.

4. An appeal from the Adjudicator’s final decision lies to this Tribunal but only on a point of law.[1]

   [1]Body Corporate and Community Management Act 1997, ss 288A, 289, 290.

5. The effect of the Adjudicator’s final order is that on the application of the by-laws in force at the relevant time there is no legal impediment to the respondent keeping the dog on his lot.

6. There was it seems a misunderstanding on the part of the parties as to what by-laws were in force and consequently the respondent’s position regarding keeping his dog.

7. This being the case (as I accept it is) the granting of the order necessarily followed as the respondent would be entitled to a final order.  The principles relating to an interlocutory order were properly applied by the Adjudicator.

8. No error of law has been identified.

Orders

1. The appeal is dismissed.