Yates v Williams (No 2)
[2012] QCATA 48
•2 February 2012
| CITATION: | Yates and Anor v Williams (No 2) [2012] QCATA 48 |
| PARTIES: | Noela Leona Yates Jeffrey John Yates (Applicants/Appellants) |
| v | |
| Philip Williams (Respondent) |
| APPLICATION NUMBER: | APL434-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon James Thomas, AM QC, Judicial Member |
| DELIVERED ON: | 2 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal is dismissed; 2. The decision of the Adjudicator of 17 November 2011 is confirmed. |
| CATCHWORDS: | Contribution Schedule Lot Entitlements – adjustment procedure – entitlement to move for reversal of previous entitlement – whether earlier District Court order was an “adjustment order” Onus of proof – whether definition satisfied –whether exclusion in definition applicable – proof of a negative Body Corporate and Community Management Act 1997, s 378 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act), and pursuant to Tribunal order of 16 January 2012.
REASONS FOR DECISION
This is an appeal against an Adjudicator's determination of a dispute involving contribution schedule lot entitlements (CSLEs).
The appellants (Mr and Mrs Yates) and the first respondent (Mr Williams) are unit owners in Magic Mountain Apartments Two Community Titles Scheme 15853. Mr Williams wishes to change the current contribution schedule lot entitlements (“CSLEs”) applicable to the scheme, and gave notice of motion to the body corporate to effect such a change. Mr and Mrs Yates opposed the change, and the body corporate took the view that Mr Williams was not entitled to proceed with such a motion. A dispute arose concerning what action should be taken in relation to the motion. It was referred to an Adjudicator.
In due course the Adjudicator determined that the body corporate must proceed with Mr Williams's motion. The terms of the order were –
(a) that the body corporate must deal with the applicant’s adjustment order reversal motion dated 22 May 2011, under section 385 of the BCCMA; and
(b) that the committee must take all steps this section requires as quickly as possible.
This is an appeal against the Adjudicator's decision.
The background circumstances are that some years previously (on 7 July 2003) an order had been made in the District Court adjusting the lot entitlements that at that time applied to this scheme. It may be noted in passing that the Centrepoint Case in 2004 (Fischer v Body Corporate for Centrepoint Community Title Scheme [2004] QCA 214) produced controversy within the unit titles industry and thereafter affected practices in the determination of CSLEs. However in 2011 legislation was passed enabling a return to earlier principles and practices in certain situations. Inter alia, a lot owner was given the right to submit a motion proposing adjustment of the applicable CSLE if an "adjustment order" conformable to the legislation had been made before the amendment came into effect (see Body Corporate and Community Management Act 1997, as amended, sections 378 and 379).
The relevant legislation came into effect on 14 April 2011.
The relevant statutory provisions include:
378 Definitions for div 4
In this division—
adjustment order—(a) means an order of a court, tribunal or specialist adjudicator, made before the commencement, providing for an adjustment of the contribution schedule for an existing scheme; but
(b) does not include an order of a court or tribunal giving effect to a decision that is not made by the court or tribunal or another court or tribunal (including a decision that is not, but is taken to have been, made by a court or tribunal).
Examples for paragraph (b)—
• an order of a court or tribunal giving effect to the terms of the settlement of a dispute between an owner of a lot included in an existing scheme and the body corporate, if the terms provide for the adjustment of the contribution schedule for the scheme
• a written agreement that—
(a) is between an owner of a lot included in an existing scheme and the body corporate; and
(b) provides for the adjustment of the contribution schedule for the scheme; and
(c) is filed in the registry of a court or tribunal and is enforceable as an order of the court or tribunal
…
379 Motion proposing adjustment of contribution schedule
(1) Subsection (2) applies if—
(a)an adjustment order increased the proportion of the total contribution schedule lot entitlements for all the lots included in an existing scheme that are attributable to a lot included in the scheme; and
(b)before the commencement, a new community management statement reflecting the increase has been recorded.
(2)The owner of the lot may submit a motion proposing the adjustment of the contribution schedule for the existing scheme to reflect the pre-adjustment order entitlements for the scheme, subject to sections 381 to 384, to—
(a)if there is a committee for the body corporate—the committee; or
(b) otherwise—the body corporate.
The main issue in the present case is whether the District Court order of 2003 was an “adjustment order” within the meaning of section 378 of the BCCM Act.
Facts
On 13 May 2003 a unit owner, Mr Leslie, applied to the District Court for an order with respect to the Magic Mountain Apartments Two Community Titles Scheme, seeking that the contribution schedule lot entitlements be adjusted in accordance with the recommendations made in a designated report by Tim Sheehan.
The present respondent, Mr Williams, did not agree with the recommendations in the report. He was advised of his right to appear in the court proceedings, but in the event did not do so. The parties were Mr Leslie (applicant) and the Body Corporate (respondent). The Body Corporate advised its members that the committee “does not believe the body corporate should oppose the application. Further, as the application will affect each owner differently the body corporate is a collective of all owners, it is not in the best interests of the body corporate to oppose the application”. The Body Corporate also strongly recommended that all owners seek independent legal advice.
On behalf of the applicant two affidavits were filed in the District Court, one by Mr Sheehan and the other by Mr Goodman. The matter was mentioned before Wilson DCJ (as he then was) on 26 May 2003 (a consent adjournment), and determined on 7 July 2003 by the making of an order.
The order made in the District Court was in the following terms:
“Pursuant to section 41(1)(a) of the Body Corporate and Community Management Act 1997, with respect to the Magic Mountain Apartments Two community title scheme 15853, the contribution schedule of lot entitlements be adjusted in accordance with the recommendations made in the report dated 17 April 2003 by Tim Sheehan of Stewart Silver King Burns Strata Title Consulting Pty Ltd.”
The application was not opposed. There is however no evidence that the order eventually made by the Court was a consent order. Indeed, on its face it is an unqualified court order notwithstanding that it was in the terms of a draft submitted by the parties’ representatives. The fact that on 26 May 2003 the matter was adjourned by the parties by consent does not take the matter any further.
It is not in contention that the effect of the order was to increase the proportion of the total contribution schedule lot entitlements for all the lots included in an existing scheme that were attributable to a lots included in the scheme (cf s 379(1)(a)), or that before the commencement of the amending legislation (14 April 2011) a new community management statement reflecting the increase had been recorded (cf s 379(1)(b)).
On 23 May 2011 Mr Williams submitted his motion to the Body Corporate titled “Revision of Contributions Schedule”. The motion sought to change the relevant CSLEs back to those that were in force prior to the 2003 District Court order.
The Body Corporate advised all owners of the application and invited submissions in accordance with section 385(2) of the Act. A variety of responses, both favourable and unfavourable, were received.
The committee decided to reject Mr Williams’s motion. He then made an application seeking to reverse that decision and seeking other directions as to how the Body Corporate should proceed.
The Adjudicator directed that the Body Corporate must deal with Mr Williams’s adjustment order reversal motion dated 22 May 2011 under section 385 of the BCCMA, and further ordered the committee to take all steps required by that section as quickly as possible.
The present appeal is against those orders.
Discussion
The position taken on behalf of Mr and Mrs Yates (and also apparently on behalf of the Body Corporate) is that the order of the District Court was not an adjustment order for the purposes of section 378 of the Act.
One of the submissions for the appellants is that the order is “an order of a Court.. giving effect to a decision that is not made by the Court ..” within the meaning of those words in the section. The answer to this depends upon the proper construction of the court order and the relevant facts concerning the making of that order.
There is nothing on the face of the order, or anywhere else, to suggest that it was a decision not made by the Court; and there is no evidence of any relevant decision having been made by the parties, or of any communication to the Court of any agreement between the parties.
Reliance was placed by the appellants upon the example mentioned in the legislation immediately following subparagraph (b) of the definition of “adjustment order” in s 378. This raises the question whether the order of the District Court was “an order .. giving effect to the terms of the settlement of a dispute between an owner of a lot .. and a body corporate.”
There is simply no evidence that there was ever any “settlement of a dispute between an owner of a lot .. and the body corporate”. Indeed the evidence is to the contrary, because it shows that the Body Corporate very properly refrained from taking sides on the issue and was content for the court process to take its course.
Further written submissions were presented by or on behalf of Mr and Mrs Yates, critical of the reasoning and conclusions of the Adjudicator.
It was submitted that there was no “positive evidence” to show that the Court made its own decision on 7 July 2003, and that “in the absence of any positive evidence to the contrary the exclusion clause section 378(b) must be applied and the order is not an adjustment order...”
There are several answers to this. In the first place, on its face the order is “an order of a court” and there is nothing to suggest that it gave effect to a decision not made by the Court. Secondly, the argument incorrectly seeks to reverse the onus. A party who seeks a finding that an exclusion clause applies has an onus to refer to some evidence showing that it does. There is no such evidence in the present matter.
The submission proceeded to assert (incorrectly) that “a negative test cannot be proven”, and that “it follows that 378(b) always applies in the absence of any positive evidence to prove that the decision which led to the order is made by a court or tribunal..”. It was then submitted that “it was incumbent upon Mr Williams, to provide evidence to support his assertions and accusations”.
It is true that proof of a negative is usually difficult, and that for that reason courts will sometimes regard slight evidence as sufficient to discharge an evidential burden in relation to a negative state of affairs (Director of Public Prosecutions v Brauer (1991) 2 Qd R 261, 268-269). However, "in the end, it is plain that there is no evidentiary principle which can convert the initial evidential burden” which lies on the party who carries the onus on that particular issue (ibid p 269).In my view the above submissions of the appellants are misconceived.
To the extent to which Mr and Mrs Yates assert that the order of the District Court falls within the exclusion in subparagraph (b) of the definition of "adjustment order" in section 378 they bear a persuasive onus. In any event, irrespective of any question of onus, there is no evidence that satisfies the criteria mentioned in subparagraph (b) of the definition. Indeed, on the whole of the evidence the proper inference is that the order of the District Court of 7 July 2003 was not an order of the kind described in subparagraph (b).
Further, accepting that Mr Williams has an onus to refer to evidence sufficient to show that the order was an "adjustment order” under the definition, the evidence clearly satisfies the requirements of subparagraph (a) of the definition. There is no evidence capable of displacing this prima facie satisfaction, such as evidence that it falls within the exclusion in subparagraph (b). Indeed, on the evidence, it is more probable than not that there was never any binding arrangement made between relevant parties that could convert this court order into an order "not made by the court".
A further submission on behalf of Mr and Mrs Yates referred to the double negatives in paragraph (b) of the definition, namely “does not include” and “decision not made by the court”. They then proceeded to present a paraphrase which eliminated them. The paraphrase included the words – “any order of a court that gave effect to a decision that was not made by a court, even if that decision is taken to have been made by a court, is not an adjustment order as defined in section 378.”
However my task is to construe the words actually used in the Act, and the above extrapolation departs considerably from those words. Furthermore, even on the words of the extrapolated submission, there was no evidence that there was ever any “decision that was not made by a court”.
Other submissions advanced on behalf of the appellants suggest misuse by the Adjudicator of various conventions of expression, and raise criticisms of certain statements of the Adjudicator which were described as “straw man arguments”. These submissions have been noted, but they do not persuade me that the Adjudicator fell into error or that his conclusion was incorrect.
One of these arguments criticised the following statement of the Adjudicator following his reference to the two statutory examples in section 378(b):
“It is evident from these two examples that section 378 says there is no adjustment order to be reversed if the body corporate agreed to an adjustment and the court order merely formalised this agreement”.
This does not purport to be a full statement of the meaning of the section; rather it is the statement of a situation that the Adjudicator considered would meet the first example in section 378(b). It misstates the Adjudicator’s observations to suggest that he considered that the section was limited to such a situation.
The appellants further criticised the words used by the Adjudicator in paragraph 26 of his reasons – “there is no evidence that the order of the court gave effect to the terms of a settlement between the parties, or that the order of the court was a consent order”.
However in my view that statement is impeccable. It deals with practical situations which might arguably satisfy the requirements of the definition, in the course of canvassing its possible operation. It does not imply that these are the only ways in which the section could be satisfied.
Not only is there no evidence of any settlement or consent order, there is no evidence of any decision not made by the court, let alone of a court order that gave effect to a decision not made by a court.
The evidence amply satisfies the definition in sub-paragraph (a) of s 378; and it simply fails to satisfy the terms of the exclusion in subparagraph (b).
Conclusion
In my view the determination of the Adjudicator was correct.
The appeal should be dismissed, and the Adjudicator's orders should be confirmed.
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