Tyrrell v Body Corporate for the Aurora Tower CTS 35222 [2025] QCATA 34

This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

[1] Ms Tyrrell owns Lot 86 in the Aurora Tower community title scheme. She says the lot is impacted by a vergola installed over the courtyard of Lot 74 which is situated directly below her lot. Although the installation had committee approval, Ms Tyrrell says the vergola encroaches onto common property airspace and, as such, it is a disposition of common property that can only be done by way of an owners' resolution without dissent. In the absence of such a resolution, she says, the vergola must be removed.
[2] By an application filed 27 September 2023, Ms Tyrrell appeals the decision of an Adjudicator from the Office of the Commissioner for Body Corporate and Community Management (BCCM)[1] that dismissed her application for a declaration that the Body Corporate committee approval of the vergola was void, for orders that the Body Corporate remove the vergola and reinstate the lot, and that they reimburse Ms Tyrrell for survey costs incurred.

(a) Oaks sought approval to install the vergola over its courtyard in or about September 2010.

(b) The Body Corporate committee approved the vergola by letter dated 12 February 2014 and that a committee meeting held on 11 March 2014 ratified that decision.

(c) In 2015, Oaks constructed the vergola.

[6] At the Annual General Meeting of lot owners held 25 May 2022, a motion to retrospectively approve the vergola was refused, which is unsurprising because it required a resolution without dissent to pass.

[7] In her application to the BCCM, Ms Tyrrell sought orders:

(a) Declaring the committee approval for the vergola installation void.

(b) That the Body Corporate remove the vergola.

(c) That the Body Corporate pay Ms Tyrrell's costs of surveying the lots.

[8] In support of her application, Ms Tyrrell filed an abundance of material, relevantly including a Survey and accompanying Report by RPS Group dated 18 October 2022. The report included the following statements:

(a) Property boundaries are plotted using survey methodology that is generally accurate to within 30 millimetres of the true boundary position.

(b) More accurate boundary locations can only be determined by completing a cadastral survey.

(c) The method of fixing/mounting and the positioning of fixing/mounting is unknown due to flashing that covers it. Engineering designs offer some guidance as to the size and nature of the fixings however, definite size, nature and location remains unknown. In general, the flashing that covers the fixings is straddling the vertical boundary between Lot 86 and common property.

(d) The vergola structure appears to be wholly contained within the horizontal elements of Lot 74.

(e) The vergola extends through the vertical elements of Lot 74 into common property.

(f) The vergola is partially affixed to common property, being the walls of the Aurora Apartments building but the depth and location of the fixings has not been established.

(g) The surface area of the vergola in a horizontal plane is approximately 50m2 and it appears that approximately 50m2 of the structure is above the vertical extents of the Lot 74 courtyard by varying distances.

(h) A cadastral survey is required to definitively quantify the extent to which the vergola structure extends past the extents of Lot 74.

(a) Ms Tyrrell was out of time to seek an order pertaining to the committee resolution, which must be made within three months after the meeting at which the resolution is passed.[3]

(b) The conciliation application was lodged on 28 June 2022, more than eight years after the offending committee resolution was passed, and more than seven years after the vergola was built.

(c) Although non-compliance with the time limit can be waived per s 242(4)(b) of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA), the BCCM adjudicator was not persuaded to do so.

(d) Even if the committee approval was declared void and the vergola was found to encroach upon common property, there was no basis to order the body corporate to remove the vergola when they were not the ones to construct it and when the obligation to obtain statutory approval for the vergola, and for ensuring that it does not encroach common property, falls upon the offending lot owner who installed it.[4]

(e) If the lot owner does not carry out work ordered by the BCCM, the Body Corporate may carry out the work, but at no stage had Oaks been ordered to carry out the work.[5]

(f) The adjudication application was dismissed on that basis.

(g) Although it was not necessary to decide it, because the application was dismissed for the reasons given above, the adjudicator considered whether there was sufficient evidence to find that the vergola encroaches onto common property airspace and found that there was not.

(h) Relevantly, the adjudicator noted that:

[35] The applicant relies on the conclusion of her surveyor, RPS, whose findings include:

The vergola is extending through the vertical extents of Lot 74 onto common property;

It appears that approximately 50m2 of the structure is above the vertical extents of the Lot 74 courtyard by varying distances;

A Boundary Identification Survey (cadastral survey) is required to definitively quantify the extent to which the vergola structure extends past the extents of Lot 74.

[36] Oaks disputes that there is an encroachment onto common property, suggesting that the conclusions of the applicant's surveyor, RPS ought to carry no weight. They argue that there are no measurements as to the "varying distances" that the vergola is said to be above the vertical extents of Lot 74. Significantly, the stated methodology in the survey also concedes that "the property boundaries shown on the plan have been plotted using survey methodology that is generally accurate to within 30 millimetres of the true boundary position". Given there can be a discrepancy of up to 30 millimetres and no measurement is given as to how much the vergola extends beyond the ceiling boundary, Oaks argues it is reasonable to conclude that the vergola may not be partially on common property at all. This is not an unreasonable argument.

The images in the surveyor's report supposedly indicate that portions of the vergola are above the vertical extents of Lot 74 but the extent of that encroachment has not been quantified. The report itself states that a cadastral survey is required to definitively quantify the extent to which the vergola extends past the boundary of the lot. Given the absence of any detail and measurements, and the potential discrepancy of up to 30 millimetres, I find the evidence to be at best speculative. The applicant bears the onus of proof. I am not satisfied on the evidence before me that she has discharged that onus.

(i) There was no basis to award the survey costs to Ms Tyrrell because she submitted no grounds for the adjudicator to make such an order, noting the survey cost was an expense incurred by Ms Tyrrell in pursuit of the adjudication application, and that application had failed.

[10] Section 289(2) of the BCCMA allows a person aggrieved by an adjudicator's order to appeal to the Tribunal on a question of law.
[11] By s 294, in deciding an appeal, in addition to the jurisdiction and powers of the Appeal Tribunal under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), the Tribunal may also exercise all the jurisdiction and powers of an adjudicator under the BCCMA.
[12] Under s 146 of the QCAT Act, the Appeal Tribunal may on an appeal on a question of law only:

(a) confirm or amend the decision; or

(b) set aside the decision and substitute its own decision; or

(c) set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration -

(i) with or without the hearing of additional evidence as directed by the appeal tribunal; and

(ii) with the other directions the appeal tribunal considers appropriate; or

(d) make any other order it considers appropriate.

[13] Directions made 26 February 2024 noted that the Appeal Book was limited to the material before the BCCM Adjudicator and prevented either party from filing further material or evidence to be considered on the appeal.
[14] Despite this, on 17 June 2024, Ms Tyrrell filed a cadastral survey conducted by RPS Group on 13 June 2024.
[15] It is important to note that we have not had regard to the 13 June 2024 cadastral survey in determining the Appeal because to do so would be to contradict the directions made 26 February 2024 in circumstances where Ms Tyrrell does not have leave to file additional evidence, nor did she seek such leave, and the respondent has not had an opportunity to respond to it.

[16] The immediate difficulty for Ms Tyrrell is that she has not identified an error or law in her appeal submissions filed 4 March 2024 and her application and submissions simply read as an attempt to relitigate her application to the BCCM.
[17] As best we can tell, making an allowance for Ms Tyrrell as a self-represented litigant in the appeal proceeding, only one of her submissions might be construed as a complaint about an error of law, namely that:

The adjudicator dismissed the survey report which was obtained using scientific methodology, without seeking further clarification, or procedural fairness. It was dismissed without an alternative report.

[18] An error of law might be found where a decision maker has made a finding of fact without probative evidence to support it or drawn an inference which was not reasonably open on the primary facts.[6]
[19] However, it has been said that:

...a factual conclusion cannot be infected by legal error unless it is supported by no evidence whatever or unless it is clear, beyond serious argument, that it is wrong. That this court merely disagrees with a factual view of a tribunal does not show that a decision based on it is legally erroneous.[7]

[20] We proceed on the basis that the error of law grounding the appeal pertains to the adjudicator's findings in paragraphs [35] and [36] that the survey report was speculative and that it did not establish, to the requisite standard of proof that the vergola encroached on common property.
[21] There is no merit in this ground of appeal because:

(a) Before the finding with respect to the survey report was made, the application had been decided and dismissed on the grounds that:

(i) Ms Tyrrell disputed the committee resolution to approve the vergola eight years out of time and the adjudicator was not convinced to waive non-compliance with time requirements on the material before them, and

(ii) The BCCM could not order the Body Corporate to remove the vergola even if it was found to be encroaching because that order, if made, could only be directed to the offending lot owner,

which meant that nothing turned on the adjudicator's findings in relation to the survey report.

(b) Nothing in the material suggests that the adjudicator miscarried their discretion in refusing to waive the out-of-time application, resolution, nor that they incorrectly concluded that any order to remove the vergola needed to be directed to Oaks and not to the Body Corporate, meaning the application for those orders was misconceived and correctly dismissed as such.

(c) In any event, given the express language used in the survey report including that "property boundaries are...accurate to within 30 millimetres of the true boundary position", the "definite size, nature and location [of fixings] remains unknown", that it "appears" that "approximately 50m2 of the structure is above the vertical extents of the Lot 74 courtyard by varying distances" and that a cadastral survey is required to definitively quantify the extent to which the vergola structure extends past the extents of Lot 74, it was open to the adjudicator to find, on balance, that the survey report was not convincing to the requisite standard of proof with respect to the alleged encroachment.

(d) Further, the adjudicator did not fall foul of their obligation to afford Ms Tyrrell procedural fairness by failing to seek clarification or an alternative report before dismissing the application, as Ms Tyrrell submits. Ms Tyrrell obtained the survey report before she lodged the adjudication application on 11 November 2022. She was legally represented at the time and knew or ought to have known that the inconclusive nature of the survey report and its recommendation for a cadastral survey might impact her prospects of succeeding with an adjudication application without a cadastral survey having taken place. The adjudicator did not err in deciding Ms Tyrrell's application on the material she put before them.

[22] For the reasons given, the decision of the Appeal Tribunal is to dismiss the appeal application filed on 27 September 2023.

[1] The Aurora Tower [2023] QBCCMCmr 323 (22 August 2023).

[6] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356.

[7] JM v QFG and KG [1998] QCA 228, 21.

Corporate and Community Management (Accommodation Module) Regulation 2020

Corporate and Community Management Act 1997

Civil and Administrative Tribunal Act 2009

JM v QFG and KG [1998] QCA 228

At a glance

Court

Decision date

Source

Judgment (31 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (2)