Ward v McDonald

[2014] QCATA 48

CITATION: Ward v McDonald [2014] QCATA 048

PARTIES:	Robert Thomas Ward (Appellant)
v
Kevin McDonald (Respondent)

APPLICATION NUMBER: APL358-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Barlow QC

DELIVERED ON: 25 March 2014

DELIVERED AT: Brisbane

ORDERS MADE: Appeal dismissed.

CATCHWORDS:

Appeal – whether adjudicator failed to take into account evidence – whether factual finding was open on the evidence - whether appeal on a question of law

Body Corporate and Community Management Act 1997 (Qld) s289(2)

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).

REASONS FOR DECISION

1. The appellant, Mr Ward, and the respondent, Mr McDonald, are the owners of two duplex lots comprising a small scheme known as Winnipeg Grange CTS 27828.  This appeal concerns an adjudicator’s order in a dispute about whether the body corporate should obtain flood insurance and whether it is unreasonable under the circumstances not to have flood insurance.  The adjudicator ordered that the body corporate obtain flood insurance as part of its existing building insurance policy and that Mr McDonald was authorised to act on its behalf to do so. 

2. The sole ground of appeal set out in the application is that the adjudicator used obviously incorrect data to draw incorrect conclusions.  It appears from the submissions attached to the application that Mr Ward’s contention is that the adjudicator failed to read, or misread or misunderstood, the evidence that was before him as to the amount of insurance received by Mr McDonald, under the body corporate’s policy that existed at the time, after the 2011 flood (which caused substantial damage to both units in the scheme).

3. An appeal from the decision of an adjudicator may only be made to the Tribunal on a question of law: s 289(2) of the Body Corporate and Community Management Act 1997. This limitation on the Tribunal’s jurisdiction imposes a significant constraint on the role of the Tribunal in reviewing decisions of an adjudicator. The appellable 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.

4. A wrong finding of fact is not sufficient to demonstrate an error of law.  Particularly where a decision involves matters of fact and degree, provided that the decision maker applies correct principles of law[1] and the final conclusion is not unreasonable,[2] no appeal is available under s 289 of the Act.

   [1]Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286.

   [2]Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450.

5. A concise and helpful summary of the distinction between questions of law and questions of fact is set out in this passage from a decision of the Supreme Court of Canada[3]:

   Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.

   [3]Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at [35].

6. Mr Ward’s appeal appears, in essence, to be seeking to overturn a finding of fact by the adjudicator.  Having reviewed the material that was before the adjudicator, it appears to me that the finding as to the amount of the insurance payout received by Mr McDonald was open to him, as the evidence was, at best, ambiguous.  Therefore, it is not open to Mr Ward to challenge that finding.

7. Mr Ward does not challenge the adjudicator’s application of the law to the facts found by him.  In any event, I do not see any error in the adjudicator’s application of the law. 

8. In the circumstances, the appeal is groundless and must be dismissed.