Ipanema [2007] QBCCMCmr 424 (18 July 2007)

Last Updated: 27 July 2007

REFERENCE: 0471-2006A

APPLICATION FOR STAY OF AN ORDER OF AN ADJUDICATOR

MADE UNDER PART 11 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	32267
Name of Scheme:	Ipanema
Address of Scheme:	2865 Gold Coast Highway SURFERS PARADISE QLD 4217

TAKE NOTICE that pursuant to an applcation made under the abovementioned Act by Moonlight Group Pty Ltd, Respondent in the application for dispute resolution by the Body Corporate for "Ipanema" CTS 32267

The application by Moonlight Group Pty Ltd for a stay of part of the Order made on 20th September 2006 is hereby refused for the reasons given in the attached "Reasons for Decision."

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0471-2006A

"Ipanema" CTS 32267

Request for a stay of operation of an adjudicator’s order
Moonlight Group Pty Ltd, (the Applicant) has provided a copy of a Notice of Appeal filed in the District Court at Brisbane on 19th June 2007. The Notice of Appeal appeals part of the order of an adjudicator made on 20^th September 2006 (the Order) under Part 9 of Chapter 6 of the Body
Corporate and Community Management Act 1997 (the Act).

Those parts of the Order appealed against are as follows -

"......
3. that the Moonlight Group Pty Ltd may within one month of the date of this order propose motions to the Secretary for the body corporate, to keep a canopy, a sign in the foyer, and a fence around its car-parking space, as referred to in the Reasons hereto, and any other motions in respect of the dining facility, as it wishes, which motions are to be put to a general meeting of the body corporate and decided by special resolution in accordance with section 113 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 ;

4. that if the Moonlight Group Pty Ltd do not propose such motions within one month of the date of this order, or if the motions to maintain the canopy, the sign and the fence or any of them are not passed at the general meeting, then Moonlight Group Pty Ltd must remove the canopy, the sign and the fence and make good any common property damaged by their removal within one month of the failure to propose the motion(s) or within one month of the general meeting wherein the motion(s) are not passed, at its own expense, failing which the body corporate may remove such items and make good the common property and seek reimbursement for the works from Moonlight Group Pty Ltd;.......
...."

Jurisdiction
The Act at the time this appeal was lodged provided for an appeal by a person against whom an order was made, to the District Court on a question of law only. (Section 289(2) Act prior to its amendment)

290 Appeal (prior to amendment)

(1) An appeal to the District Court under this part is to be made in accordance with any relevant rules of court and any provision, made for this section, prescribed under a regulation.
(2)Despite anything in subsection (1), the Appeal must be started within 6 weeks after the date of the adjudicator’s order, but the court may allow the appeal to be started at a later time on application by a prospective appellant.
(3)......

291 Stay of operation of orders and decisions (prior to amendment)
(1) The adjudicator or District Court may stay the order appealed against to secure the effectiveness of the appeal.
(2) A stay--

(a) may be given on conditions the adjudicator or court considers
appropriate; and
(b) operates for the period stated by the adjudicator or court; and
(c) may be revoked or amended by--

(i) if given by the adjudicator--the adjudicator or the court;
and
(ii) if given by the court--the court.

(3) The starting of an appeal affects an order of the adjudicator, or the
carrying out of an order of the adjudicator, only if the order is stayed.

Amendments to the Act came into force on 1st July 2007. Appeals from adjudicators’ orders can now only be made to the Commercial and Consumer Tribunal unless the dispute is a "complex dispute" as defined. An appeal from a complex dispute lies to the District Court on a question of law only.

Under the relevant transitional provisions, if an appeal was commenced before 1^st July 2007 but not finished, then the appeal may be continued under the provisions of the Act as if the amending Act had not been enacted. (Section 360(2) Act.) However, there is an argument that whilst an appeal lodged prior to 1^st July 2007 may be continued under the unamended Act, there is no express provision stating that an adjudicator continues to have the power to stay an order. Only the "appeal body" (as defined) can stay the order as from 1^st July 2007. (Section 291 Act as amended.)


Submissions
The Applicant’s solicitors submit in a letter dated 20^th June 2007 to this Office that a stay of operation of this part of the order should be granted to protect the Applicant’s rights pending the outcome of the appeal. The Applicant’s solicitors advise that a general meeting in accordance with paragraph 3 of the Order has been held by the body corporate, and that the motions which were required to be put to the meeting were not passed. They say that if the Applicant is required to remove the canopy from the common property, this will result in a substantial cost to the Applicant and wastage of the original cost which was approximately $37,000.00.

On 12^th July 2007, this Office received submissions from the body corporate who is the Respondent in the Appeal. The Respondent’s solicitors say that the Respondent does not consent to the stay sought. They say that the Applicant did not comply with paragraph 3 of the Order, although a general meeting was held and the motions mentioned in the Order were "eventually proposed and defeated legitimately." They believe that the appeal is "simply a delaying tactic to prevent the Body Corporate from enforcing" the Order.

They further submit as follows –

• that the Applicant has not paid $37,000 for the canopy to the original installers, but remains indebted to them;
• that the Applicant has not paid the body corporate the sum of $1,815 which is part of the Order not appealed against by the Applicant;
• that the Applicant does not have local authority approval for the canopy structure and as such questions of liability for the structure concern the Respondent;
• that the appeal was lodged nine months after the Order which is outside the time for making an appeal, with no reasonable excuse given by the Applicant;
• that an adjudicator has no jurisdiction to stay an order of an adjudicator which is the exclusive jurisdiction of a judge of the District Court, and has been since 2001;
• that a stay would prejudice the Respondents;
• that the appeal is doomed to fail since it has no merit.

The Respondents’ solicitors seek "an indemnity" from this Office if a stay of the Order is granted and in the meantime there is a claim on the liability of the body corporate in relation to the canopy.

Determination
Contrary to the view of the Respondent’s solicitors, I am of the view that prior to 1^st July 2007, only the adjudicator making the Order, or the District Court, could grant a stay of the Order, in accordance with section 291(1) Act prior to its amendment. The better view would also seem to be that in respect of the amending legislation commencing 1^st July 2007, the transitional provisions which enable an appeal commenced, but not concluded, to be continued as if the amending legislation had not been enacted, allows an adjudicator to keep the power to grant a stay of an order.

I am also of the view that only the District Court (or the "appeal body" since the amendments) may allow the appeal to be commenced after 6 weeks of the date of the Order, on application by the applicant in the appeal. (Section 290(2) Act prior to its amendment)

I am not provided with any decision from the District Court that the Applicant has made such an application and that such application has been heard by the District Court allowing the Applicant to lodge its appeal out of time.

Further, I find that the application for a stay of paragraph 3 of the Order (paragraph 1 of the Notice of Appeal) is impossible since the motions as stated in Paragraph 3 of the Order have been put to a general meeting of the body corporate, and the event described in the Order has therefore already occurred. It may be argued that the Applicant did not itself propose the motions, but it seems to be common ground that a general meeting at which the motions were voted on, took place, and that the motions were not passed.

To seek to stay an Order which was conditional as to the periods of time in which actions should take place, is also problematic. The Applicant seeks to avoid this outcome by seeking that the Order be set aside ( apparently in its entirety, although parts of the Order are not appealed against) and for orders of the District Court in lieu that motions voted on at the general meeting are deemed to have been passed.

I find that the success of the Appeal as to such an order or orders in lieu would be unlikely, even if the District Court were firstly to allow an appeal to be made out of time, and secondly, to find that the Order was wrong in law; and/or in excess of jurisdiction; and/or contained or demonstrated a jurisdictional error; and/or agreed that there was no enough evidence to justify the decision; and/or found that the Order did not comply with the Act. In other words, even if the Applicant successfully appealed the Order, the outcomes now sought by it would not be the result of the overturning of that Order but to do with overturning of the results of a general meeting held since the Order was made.

I am not proposing to stay the Order as made on 20^th September 2006. In not doing so, I take no heed of the threat made by solicitors for the Respondent that the body corporate would require an indemnity from the Office of the Commissioner or the Department of Tourism Fair Trading and Wine Industry Development if the order was stayed. Such demand would be unsuccessful, being not only impracticable but potentially damaging to a fair and proper consideration of the application and the furtherance of natural justice, the terms under which an adjudicator is required to act.