The Body Corporate for Summerset CTS 10939 v Cuttance
[2013] QCATA 97
•27 March 2013
| CITATION: | The Body Corporate for Summerset CTS 10939 v Cuttance [2013] QCATA 97 |
| PARTIES: | The Body Corporate for Summerset CTS 10939 (Applicant/Appellant) |
| v | |
| Mr James Cuttance (Respondent) |
| APPLICATION NUMBER: | APL282-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon K Cullinane AM QC, Judicial Member |
| DELIVERED ON: | 27 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The appeal is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the respondent was a tenant in a unit managed by the applicant – where a mattress belonging to the respondent was damaged by flooding – where the flooding was attributed to the gutters overflowing – where there is an obligation on a body corporate to maintain the common property in good order – where the Tribunal held that common property includes gutters – where the Tribunal ordered that the applicant pay the respondent a fixed sum for the loss of the mattress – where the applicant appeals that decision – whether the applicant has leave to appeal Body Corporate and Community Management (Standard Module) Regulation 2008, reg 159(1) Gillespie v South Clifton Colliery 92 WN (NSW) 190, cited |
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.
REASONS FOR DECISION
This is an appeal by a Body Corporate against a decision by an adjudicator delivered on 21 August 2012 ordering it to pay the Respondent the sum of $2300 by way of reimbursement for the loss of a mattress.
The Respondent was a tenant in a lot until mid-March 2012. The mattress was in the garage of the unit when it was damaged because of flooding of the garage.
The Respondent’s application was received on 12 April 2012. However prior to this he had sought conciliation in respect of the matter by an application of 22 February 2012.
The Appellant has a right to appeal against the decision of the Adjudicator. The right is however a strictly limited one. Section 289 of the Body Corporate Management Act 1997 (‘the Act’) confers that right. Section 289(2) provides:
The aggrieved person may appeal to the appeal tribunal but only on a question of law.
The Appellant has advanced a number of matters described as questions of law in its appeal notice. Some of these involve question of fact.
In its outline the Respondent seeks to re-litigate or further litigate factual issues found against it. In other respects the Respondent relies upon its submissions to the Adjudicator.
I deal with those matters raised which involve questions of law.
The first of these is that the Respondent had no standing to bring the application.
As I have said the Respondent ceased to be a tenant in mid-March 2012 and thus was not a tenant when the application was made and when the hearing took place .However when he sought conciliation he was a tenant.
The Adjudicator dealt with this matter by reference to s 239C(6) of the Act. This provides:
(6) If a party to conciliation application stops being a relevant person for the application after it was made the commissioner may allow an adjudication application for the same dispute to be made as if the party were the relevant person for the adjudication application.
The Appellant sought to place reliance on s 270 of the Act but this is limited to cases where the outcome is no longer relevant or required. The argument that this is satisfied because the Respondent is seeking relief which is not permissible cannot be accepted.
The conclusion of the Adjudicator on this issue is in my view correct.
The question of the availability of the relief sought is the second question of law raised.
The Adjudicator made an order that a sum be paid representing the value of the mattress on the basis it was damaged beyond repair. The Respondent contends that the power of the Adjudicator is limited to ordering the costs of repair.
Section 281(3) of the Act provides;
If the adjudicator is satisfied that the applicant has suffered damage to property because of a contravention of this Act or the community management statement the adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for the contravention-
(a) to carry out stated repairs, or have stated repairs carried out, to the damaged property; or
(b) to pay the applicant an amount fixed by the adjudicator as reimbursement for repairs carried out to the property by the applicant.
The Appellant’s construction would on my understanding limit the power conferred by this provision to something like the mending of something broken. This could lead to anomalous or perhaps unjust outcomes.
The Adjudicator referred to a couple of cases and proceeded to apply a broader rather than a narrow view of the provision. He held that the term could embrace replacement or compensation where the item is damaged beyond repair. The term “repair” has been the subject of many authorities albeit in quite different circumstances to the present. See Greg v Planque (1936) 1 KB 669 (contract); and, Gillespie v South Clifton Colliery 92 WN (NSW) 190 (statute).
I am not persuaded that the approach of the Adjudicator in this case involved any mistake of law. The term has to be construed in its context and in light of the surrounding circumstances.
The third ground is that the Act does not impose any obligation on a body corporate to maintain gutters.
The Adjudicator held that the definition of common property found in s 20 of the Act referring to utility infrastructure includes gutters and downpipes.
Regulation 159(1) of the Body Corporate and Community Management (Standard Module) Regulation 2008 imposes an obligation on the Body Corporate to maintain the common property in good condition. Although the Appellant asserts that there is no such duty it is in my view clear that the Adjudicator’s view is the correct one.
The remaining matters raised by the Appellant namely the causal link between the breach (a failure to keep the gutter clear) and the loss of the Respondent and the determination of the quantum of the loss do not raise any question of law.
The Adjudicator accepted the Respondent’s account as he was entitled to.
As to the set-off claimed, this appears to have been raised without any prior notice or the taking of any steps to formalise such a claim
The result is that the Appellant has not established any error of law and the appeal must be dismissed.
The formal order is that the appeal is dismissed.
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