Sanctuary Cove Principal Body Corporate [2009] QBCCMCmr 366 (24 September 2009)

Last Updated: 9 October 2009

REFERENCE: 0875-2008B

ORDER OF A REFEREE

MADE UNDER PART V

BUILDING UNITS AND GROUP TITLES ACT 1980

Name of Building or Parcel:	Sanctuary Cove Principal Body Corporate
Number of Plan:	-
Address:	SANCTUARY COVE, QUEENSLAND 4212

TAKE NOTICE that pursuant to an application for an order made under section 106(8) of the Building Units and Group Titles Act 1980 by the Sonia Trott, Owner of 90 in GTP 3441

I hereby order that the application for the following order: That the order made by ID Rosemann dated 24 August 2009 be stayed in accordance with s106(8). is dismissed.

STATEMENT OF REFEREE’S REASONS FOR DECISION - 0875-2008

“Sanctuary Cove Principal Body Corporate”

APPLICATION FOR STAY OF ORDER

This is an application by Sonia Trott (Trott), pursuant to section 106(8) of the Building Units and Group Titles Act 1980 (BUGTA), for a stay of an order of the Referee on 24 August 2009.

Sanctuary Cove Principal Body Corporate (PBC) is established under the Sanctuary Cove Resort Act 1985 (SCRA), which provides the legal structures for the Sanctuary Cove Resort. The Body Corporate for Plumeria (Plumeria) is a residential body corporate within the resort which is registered as Group Titles Plan (GTP) 2207. Trott is the registered owner of Lot 90 on Group Titles Plan of Resubdivision (GRP) 3441 which is a resubdivision of GTP 2207.

On 14 October 2008 Plumeria made an application for certain orders. On 3 November 2008 I made the following interim order:

I hereby order that Sanctuary Cove Principal Body Corporate shall not implement Motion 8 passed at the extraordinary general meeting of the Sanctuary Cove Principal Body Corporate on 29 September 2008, or otherwise take steps to transfer Lot 70 on GTP 2207, except with the prior consent of the Body Corporate for Plumeria.

This interim order has effect until three (3) months have elapsed from the date of this order, a further interim or final order for the application is issued, or until the application is withdrawn or otherwise ended (whichever is earlier).

Pursuant to a request by Plumeria, on 22 January 2009 I made a further interim order:

I hereby order that the following interim order issued on 3 November 2008:

I hereby order that Sanctuary Cove Principal Body Corporate shall not implement Motion 8 passed at the extraordinary general meeting of the Sanctuary Cove Principal Body Corporate on 29 September 2008, or otherwise take steps to transfer Lot 70 on GTP 2207, except with the prior consent of the Body Corporate for Plumeria.

is extended.

This interim order now has effect until and including 2 May 2009 (being six months after the date of the original interim order), or this interim order is revoked, or a final order for the application is issued, or until the application is withdrawn or otherwise ended, whichever is earlier.

On 24 August 2009 I made a final order determining the application, as follows:

I hereby declare that Motion 8 purportedly passed as a special resolution by the Sanctuary Cove Body Corporate on 29 September 2008, to transfer part of Lot 70 to Lot 90, was invalid as contrary to section 33(1)(a) of the Sanctuary Cove Resort Act 1985.

On 11 September 2009 Trott lodged a written notice of appeal of the order of 24 August 2009 with this Office. This notice was accompanied by an application for a stay of the order pending the appeal. The application states that “The purpose of the stay is to prevent any party seeking enforcement action and/or other action which relies on effect of order.”

JURISDICTION

The SCRA is one of a number of pieces of legislation defined as a ‘specified Act’ under section 326 of the Body Corporate and Community Management Act 1997 (BCCM Act). Section 325(2)(a) of the BCCM Act provides that BUGTA continues to apply to plans registered under BUGTA for a specified Act. Section 104A of the SCRA provides for the application of the BUGTA to disputes about the operation of the SCRA or the rights and obligations of persons under the SCRA. Section 5A of BUGTA also provides that BUGTA applies for the operation of the SCRA.

Section 106 of BUGTA provides as follows:

106. Appeal against order of referee

(1) Where a referee makes an order under this part—

(a) the applicant for the order; or

(b) a person who, in connection with the application for the order, duly made written submissions to the referee; or

(c) being an order requiring a person to do or refrain from doing a specified act, that person;

may appeal to a tribunal against the order of the referee by lodging a written notice of appeal with the referee, accompanied by the prescribed fee, not later than 21 days after the order takes effect.

(2) A person may appeal under this section against an order made by a referee under section 76(2) only on the grounds that the referee acted unreasonably by making the order.

(3) A notice of appeal lodged under subsection (1) shall specify—

(a) the name and address of the appellant; and

(b) the order appealed against; and

(c) the grounds of the appeal; and

(d) any other matter prescribed.

(4) The tribunal to which an appeal lies under this section is the tribunal to which, pursuant to subsection (5), the referee forwards the notice of appeal.

(5) Where a notice of appeal is lodged under subsection (1), the referee shall forward to the tribunal that, in the referee’s opinion, is nearest to the parcel to which the order appealed against relates—

(a) the notice of appeal; and

(b) the referee’s records relating to the order appealed against; and

(c) the notices referred to in subsection (6).

(6) The notices that the referee is required by subsection (5)(c) to forward are notices that shall be addressed to each of the following addressees—

(a) the appellant;

(b) each person (other than the appellant) entitled under subsection (1) to appeal against the order;

(ba) each person (other than a person referred to in paragraph (a) or (b)) on whom pursuant to section 95 a true copy of the order against which the appeal has been lodged has been served by the referee;

(c) the body corporate for the parcel to which the order appealed against relates, unless it is the appellant.

(6A) Each notice shall be accompanied by a copy of the notice of appeal and shall specify the tribunal which is to hear the appeal.

(7) The tribunal to which documents are forwarded under subsection (5) shall cause—

(a) the notices referred to in subsections (6) and (6A) to be completed by specifying therein—

(i) the place at which the tribunal specified in the notices is to determine the appeal; and

(ii) a time and day for the determination of the appeal to which the documents relate; and

(b) each notice to be sent by registered post to the addressee thereof so that it would, in the ordinary course of post, be received by the addressee not less than 7 days before the day specified in the notice pursuant to paragraph (a)(ii).

Accordingly, section 106(8) of BUGTA provides a referee with the discretion to make an order staying the operation of an order appealed under section 106.
PROCEDURAL MATTERS

On receipt of the application for a stay I provided a copy of the application to the PBC and Plumeria inviting submissions on the application for a stay. I received a response from the PBC advising that they had no objection to the stay as sought. I received no response from Plumeria.

DETERMINATION

Although section 106(8) of BUGTA provides discretion for a referee (or the Tribunal) to consider a stay of order it does not indicate what factors are to be considered by a referee or the Tribunal in exercising that discretion. Accordingly I consider that the general principles applicable to a stay of an order by a court are also applicable to this matter.

In Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia, Hayne J[1] found that the principles to be applied are well established and find their most frequent use “in order to preserve the subject-matter of litigation”: He went on to note that it is an “ample jurisdiction” and so to speak only of preserving the subject-matter of litigation may in some cases obscure the fact that the jurisdiction can be invoked “if to grant a stay is necessary to prevent the exercise of rights of appeal being rendered futile or their exercise in circumstances where restoration of the status quo cannot be achieved”. Further, he pointed out that the jurisdiction is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. Issues to be considered include whether there is a substantial prospect of success, what effects the grant or refusal of a stay would have, and the balance of convenience.

The Queensland appellate decision of Croney v Nand[2] indicates that the case law describes circumstances which require more than a grant of a stay being “simply for the asking” and that the appellant bears the onus of showing an “appropriate” case for a stay to be granted.

The notice of appeal outlines 15 grounds of appeal. I do not consider it necessary to comment on the prospects of success of the appeal. In any event all that would need to be considered was that the appellant had an arguable case and, given the complexity of the dispute this may be the case. Rather, having regard to the nature of the order and the effects of the grant or refusal of the stay, I am of the view that the circumstances do not justify a stay of my final order.

Trott’s application gives no detail of the basis that a stay is sought other than the prevention of enforcement action or other action that relies on the order. The order in question was an order invalidating Motion 8 considered by the PBC on 29 September 2008. Motion 8 had purported to approve the transfer of land to Trott. The effect of the order was to prevent the transfer on the basis of that particular resolution, although the statement of reasons contemplated means by which the transfer could potentially be validly approved.

The order made does not require action to be taken and so nothing required by the order would be restrained by the issuing of a stay. On that basis the stay is not necessary to preserve the issue on appeal.

Conversely, the issuing of a stay would arguably have the effect of allowing Motion 8 to be implemented before the appeal was heard. I note that during the course of the determination of this application the implementation of Motion 8 was restrained by and interim order and then, pursuant to a request by parties for additional time for certain things, by a written undertaking by the PBC not to implement Motion 8 until a final order was made. There is now no longer any such undertaken in place and no capacity for a further interim order on the issue.

If a stay on the order as made were to have the effect of allowing Motion 8 to be implemented, the PBC could proceed to give effect to Motion 8 and transfer the land in dispute. It would be this action, if undertaken, which would render futile the subject of the appeal. Even if the appeal were subsequently dismissed, the rights of the original applicant would have been lost if the land was already transferred contrary to my order. On that basis the stay would be inappropriate.

I do not consider that I have the capacity to stay the operation of the order as made, and so I could not make an order staying the invalidation of Motion 8 but also preventing the implementation of Motion 8 or any other such ancillary orders.

Although not stated in their application, it may be that Trott’s concerns in fact relate to the implementation of the final order made in 0034-2008. In that matter[3] the Referee determined that previous resolutions of the PBC had not authorised the PBC to transfer the disputed land without the consent of Plumeria. Further, and most relevantly for the present purposes, he ordered that:

I further order that, within six months or such other time agreed by the parties, the PBC must ensure that all occupiers have a right of way over the secondary thoroughfare between lot 90 on GTP 3441 and lot 50 on GTP 2207 as required by section 56 of the The Sanctuary Cove Resort Act 1985 (SCRA), except for any parts of this area that have ceased to be secondary thoroughfare.

The six months contemplated within that order expired in December 2008. Since that time it would seem that that Plumeria and the PBC had agreed, pending a determination of application 0875-2008, to an extension of the time in which public access to the disputed land must be restored or at least that Plumeria had not sought to enforce order 0034-2008 pending the finalisation of the subsequent dispute.

Although she has not specifically stated this in her application, it may be that Trott’s primary concern in seeking a stay on this order is to prevent the enforcement of 0034-2008 and the resultant opening up of the land that she has treated as her private garden. However a stay of my final order of 24 August 2009 would not have any effect in preventing the enforcement of that earlier order unless the PBC proceeded to transfer the land to her such that it was no longer secondary thoroughfare requiring public access. As indicated above, permitting that transfer would be inappropriate because it would not preserve the status quo and it would render the issues on appeal irrelevant. Of course I have no capacity to stay the effect of the previous order.

In the circumstances I am not satisfied that the nature of the order made on 24 August 2009 is one that warrants a stay because there is no action required by the order which would be restrained by the issuing of a stay. Further, I am of the view that granting the stay could be contrary to the interest of preserving the issues in dispute in the appeal, because it could allow Motion 8 to be implemented before the appeal were heard, thus rendering the appeal futile. Accordingly I dismissed the application for a stay.

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[1] [1998] HCA 32 at 870, approved by the majority of the High Court in Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited [2008] HCA 9 at 26
[2] [1998] QCA 367 at 348
[3] D Toohey in Sanctuary Cove Principal Body Corporate [2008] QBCCMCmr 352 (24 June 2008)