Walden v Broadwater Tower Body Corporate

[2016] QCATA 131

CITATION: Walden v Broadwater Tower Body Corporate [2016] QCATA 131

PARTIES:	Jonathan Nigel Walden (Applicant/Appellant)
v
Broadwater Tower Body Corporate (Respondent)

APPLICATION NUMBER: APL298-15

MATTER TYPE: Appeals

HEARING DATE: 12 August 2016

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM
Member Traves

DELIVERED ON: 8 September 2016

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The appeal is dismissed.

CATCHWORDS:

REAL PROPERTY – STRATA AND REAL TITLES – MANAGEMENT AND CONTROL - BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – where interim order made by adjudicator – where interim order appealed – where final order by adjudicator made before appeal of interim order is decided - effect of final order on appeal of interim order.

Body Corporate and Community Management Act 1997 (Qld), s 279.

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).

REPRESENTATIVES:

APPLICANT: Self-represented

RESPONDENT: Active Lawyers & Consultants

REASONS FOR DECISION

1. This is an appeal against an interim order made by an adjudicator of the Office of the Commissioner for Body Corporate.

2. The interim order was made on 9 July 2016 in the following terms:

   I hereby order that the interim application seeking an order prohibiting the Broadwater Tower Body Corporate entering into any contracts from any resolutions passed at the Broadwater Tower Body Corporate EGM of 2nd July 2015 until the final application is resolved is dismissed.[1]

   [1]Broadwater Tower [2015] QBCCMCmr 321.

3. The applicant applied for leave to appeal the interim order on 27 July 2015.

4. The Tribunal refused an application to stay the interim order on 16 September 2015

5. On 17 March 2016 a final order was made by the Office of the Commissioner for the Body Corporate.[2]

   [2]Broadwater Tower [2016] QBCCMCmr 111.

6. In view of the final order, the Tribunal issued Directions asking the applicant to advise as to whether he wished to proceed with the appeal. He advised that he did.

7. Under s 279 (2)(d)(iii) of the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act), an interim order, if it is not cancelled by a later order, lapses when a final order is made by an adjudicator to whom the application is referred.

8. Section 279(3) of the BCCM Act provides:

   Despite ss (2), if an appeal is started against an interim order, the order continues in force until 1 of the following happens –

   (a) the order is stayed under the QCAT Act;

   (b) if the decision on the appeal is to refer the matter of the interim order back to the adjudicator who made the order with directions – the adjudicator makes an order under the directions;

   (c) the appeal is decided, but other than in the way mentioned in paragraph (a);

   (d) the application is withdrawn;

   (e) a final order is made by the adjudicator.

9. As a final order was made by the adjudicator it follows that the interim order no longer continues in force.[3] As it no longer continues in force, having effectively been subsumed by the final order, there is nothing to appeal.

   [3]BCCM Act s 279(3)(e).

10. We therefore dismiss the appeal.