Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Diane Baltus & Leendert Baltus v R Jackson Pty Ltd

 

[2017] QCAT 287

CITATION:

Baltus & Anor v R Jackson Pty Ltd [2017] QCAT 287

PARTIES:

Diane Baltus

Leendert Baltus

(Applicants)

v

R. Jackson Pty Ltd

(Respondent)

APPLICATION NUMBER:

OCL027-17

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

The matter was heard on the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

17 August 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application filed 6 April 2017 is dismissed.

CATCHWORDS:

REAL PROPERTY – STRATA AND RELATED TITLES – GENERAL MATTERS – JURISDICTION AND POWERS OF COURTS AND TRIBUNALS – where no jurisdiction under s 227 of Body Corporate and Community Management Act 1991 (Qld) – where dispute between lot owner and body corporate manager

Body Corporate and Community Management Act 1991 (Qld), s 118(2), s 149B, s 227(1)(a), s 227(1)(b), s 229(2) 

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10(1)(b)

Sheehy v The Body Corporate for Marlin Cove CTS 321288 & Trinity Beach Holidays Pty Ltd [2008] CCT KC003-08

Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300

Whitfield and Anor v Vardon Point Apartments [2012] QCAT 543

Lamaletie v Catchafuture Pty Ltd [2012] QCAT 596

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

APPEARANCES:

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. [1]
    Mr and Mrs Baltus were lot owners in Belvedere on Racecourse CTS 29349, a multi level complex consisting of 17 lots and common property. The respondent, R Jackson, is the body corporate manager.
  2. [2]
    The Baltuses entered into a contract for the sale of their lot. When it came time to settle the sale, the Baltuses say they were informed by R Jackson that the settlement could not proceed unless the Baltuses paid $9,546.00 to R Jackson or the body corporate for costs in relation to matters involving an alleged breach of the scheme by-laws relating to construction work on the balcony of the Baltuses lot.
  3. [3]
    It is not entirely clear from the Baltuses’ Application to resolve a complex dispute what relief is sought. It appears they are seeking the repayment of the amount paid by them to the body corporate and the production of relevant documents relating to the amount paid.
  4. [4]
    The parties were directed to file submissions addressing whether the Tribunal has jurisdiction to hear and determine the application by Mr and Mrs Baltus.
  5. [5]
    The jurisdiction of the Tribunal to hear and determine the application by Mr and Mrs Baltus falls for determination.

The statutory framework

  1. [6]
    The jurisdiction of the Tribunal, other than in respect of minor civil disputes, is conferred by various enabling Acts of the Queensland parliament.[1] The Body Corporate and Community Management Act 1991 (Qld) (“the BCCM ACT”) is the relevant enabling Act in this proceeding.
  2. [7]
    The various categories of disputes contemplated by the BCCM Act are identified.[2] Not all such disputes fall within the jurisdiction of the Tribunal.
  3. [8]
    The BCCM Act confers jurisdiction on the Tribunal in respect of complex disputes. A complex dispute is defined.[3] Those matters in respect of which the Tribunal has jurisdiction include changes in contribution schedule lot entitlements;[4] adjustment of an interest schedule;[5] adjustment of a contribution schedule;[6] adjustment of contribution schedule lot entitlements;[7] reviewing the terms of a service contract;[8] a dispute about the transfer of letting agent’s management rights;[9] a dispute about a claimed or anticipated contractual matter about the engagement of a person as a manager or caretaking service contractor or the authorisation of a person as a letting agent;[10] a dispute about an exclusive use by-law.[11]
  4. [9]
    Unless a dispute is one specifically within the jurisdiction of the Tribunal, the parties to the dispute must seek resolution elsewhere.

Discussion

  1. [10]
    Mr and Mrs Baltus decided to have a roof constructed over the balcony of their lot. Construction of the roof was undertaken without the consent of the body corporate.
  2. [11]
    Mr and Mrs Baltus and the body corporate fell into dispute over the construction of the roof. The body corporate applied to the office of the Commissioner for Body Corporate and Community Management for an adjudication order.
  3. [12]
    In considering the by-law relevant to the dispute concerning the construction work, the adjudicator said this:[12]

[13] By-law 13 sets out a detailed procedure that must be followed by an owner proposing to carry out work that alters the exterior of a lot. The owner is required to apply in writing to the body corporate outlining the proposed work and to provide plans and specifications of the same architectural standard as the development. The body corporate is then to submit the plans and specifications to its architect for consent, that consent being final and if consent is not given, the owner is not entitled to make the alterations proposed. If the architect consents to the plans, then the proposed alterations are to be submitted to a general meeting of the body corporate for permission to proceed.

[18] …

The body corporate therefore required (Mr and Mrs Baltus) to agree to the process outlined in by-law 13 including payment of all fees and costs incurred by the body corporate and payment of the relevant architect and legal fees under that process.

[31] …

… by-law 13 sets out a detailed procedure for an owner proposing to carry out work that alters the exterior of their lot. The process involves plans and specifications being considered by an architect followed by a general meeting decision. Any costs in this procedure, including those of the architect’s (sic) are to be borne by the owner making the alterations.

  1. [13]
    The result of the adjudication application was an order that Mr and Mrs Baltus write to the body corporate seeking approval for the construction of the balcony roof. In the absence of so doing, Mr and Mrs Baltus were ordered to remove the roofing structure. In making these orders, the adjudicator found:

[61] … (Mr and Mrs Baltus) should have obtained body corporate approval prior to making the improvement to their balcony as required by by-law 13 and section 164 of the Standard Module… However, in the circumstances where there has been no compelling reason given to require its immediate removal, I consider it appropriate to give the respondents an opportunity to formally seek body corporate approval for the constructed improvement.[13]

  1. [14]
    Subsequent to the adjudication order, on 4 March 2016 the body corporate resolved to retrospectively grant approval to Mr and Mrs Baltus for the roof structure conditional upon, among other things, the payment by Mr and Mrs Baltus of all costs in accordance with the relevant by-law and related legal fees.[14] In relation to the conditions attaching to the approval, the minutes record:

This approval is on the condition that:

  1. INVOICED COSTS HAVE BEEN PAID TO THE BODY CORPORATE – para 18 of the Notice of an Adjudicator’s Order and again agreed to by Mr Baltus on Monday 22 February 2016, all costs in accordance with By-Law 13 and related legal fees will be paid by the owners of Lot 11.
  1. [15]
    Attached to submissions received from the respondent are two invoices issued by the respondent and addressed to Mr and Mrs Baltus. Both are dated 1 March 2016, prior to the body corporate resolution previously referred to. One invoice is for $3,689.00 and appears to relate to the R Jackson’s costs associated with the dispute.[15] The second invoice, for $5,857.00, relates to ‘Legal fees 2014’.[16] Settlement of the sale of Mr and Mrs Baltus’ lot was effected on 4 March 2016, the same date as the resolution to retrospectively approve the roofing structure.
  2. [16]
    The complaint by Mr and Mrs Baltus is that R Jackson engaged in fraudulent or misleading conduct by leading the Baltuses to believe that they were liable to pay the body corporate’s legal fees when in fact they were not liable to do so. The Baltuses also rely upon what they say were unfair tactics by the respondent in waiting until ‘the 11th hour’ before the settlement of the sale of their lot before making the false representation that the Baltuses were liable to pay the body corporate’s legal fees, thus putting the settlement in jeopardy. The Baltuses say that the effect of this was that they were effectively coerced by R Jackson to pay the amount claimed and to dispute the fees at a later date.
  3. [17]
    The only category of body corporate related disputes in relation to which the Tribunal has jurisdiction and into which the present dispute might fall is that relating to disputes about contractual matters. Section 149B of the BCCM Act provides:

149B Specialist adjudication or QCAT jurisdiction

  1. (1)
    This section applies to a dispute about a claimed or anticipated contractual matter about—
  1. (a)
    the engagement of a person as a body corporate manager or caretaking service contractor for a community titles scheme; or
  1. (b)
    the authorisation of a person as a letting agent for a community titles scheme.
  1. (3)
    A party to the dispute may apply—
  1. (a)
    under chapter 6, for an order of a specialist adjudicator to resolve the dispute; or
  1. (b)
    as provided under the QCAT Act, for an order of QCAT exercising the tribunal’s original jurisdiction to resolve the dispute.
  1. [18]
    The meaning of ‘dispute’ is set out at s 227 of the BCCM Act. Section 227 is contained within Chapter 6 of the BCCM Act which relates to ‘Dispute Resolution’. Also contained within Chapter 6 is s 229(2) which provides that the only remedy for a complex dispute is the resolution of the dispute by a specialist adjudicator or an order of QCAT. Section 229(2) only applies to a dispute if it may be resolved under Chapter 6 by a dispute resolution process.[17]
  2. [19]
    A ‘body corporate manager’ is defined in the BCCM Act.[18] A contractual matter is defined in the BCCM Act as:

contractual matter, about an engagement or authorisation of a body corporate manager, service contractor or letting agent, means—

(a) a contravention of the terms of the engagement or authorisation; or

(b) the termination of the engagement or authorisation; or

(c) the exercise of rights or powers under the terms of the engagement or authorisation; or

(d) the performance of duties under the terms of the engagement or authorisation.[19]

  1. [20]
    A dispute about a claimed or anticipated contractual matter under s 149B of the BCCM Act is a complex dispute.[20]
  2. [21]
    In determining what is meant by ‘dispute’ for the purposes of s 149B of the BCCM Act, it is necessary to take into account what a party to the dispute must satisfy under Chapter 6 of the BCCM Act.[21] Section 227 sets out an exhaustive list of ‘disputes’ for the purposes of Chapter 6. These include disputes between a lot owner or occupier and another lot owner or occupier;[22] or between a lot owner or occupier and the body corporate.[23] Section 227 refers to a dispute between a body corporate manager and the body corporate. Significantly, s 227 does not refer to a dispute between a lot owner or occupier and a body corporate manager. 
  3. [22]
    The stated purpose of Chapter 6 of the BCCM Act is establishing arrangements for resolving, in the context of community titles schemes, various disputes. In Sheehy v The Body Corporate for Marlin Cove CTS 321288 & Trinity Beach Holidays Pty Ltd,[24] Dorney QC DCJ considered the application of s 149B of the BCCM Act. His Honour observed that:

The reference in the definition of “dispute” in Schedule 6 to Chapter 6 is expressly relevant to section 149B of the BCCM Act only to the extent that section 149B(2) states that a party to the relevant dispute may apply under Chapter 6 for an order of a “specialist adjudicator” to resolve the dispute… Chapter 6 does not expressly include what occurs under the CCT Act.[25]

  1. [23]
    His Honour’s reference to the CCT Act is a reference to the former Commercial and Consumer Tribunal which was amalgamated into QCAT. The only change to s 149B since Sheehy has been the substitution of the ‘QCAT Act’ for the ‘CCT Act’. His Honour also observed that:

While it is true that Chapter 6, and in particular section 227, are not necessarily expressly engaged by section 149B(2)(b), it is clear, from both section 149B(2)(a) and from section 229(2)(a)(ii) – the latter of which is clearly within Chapter 6 – taken in the context of the definition of “complex dispute” as meaning a dispute mentioned, relevantly, in section 149B, that an understanding of what is dealt with section 149B(1) can be informed by considering the context of the whole Act which includes what the definitions for Chapter 6 provide. That is, in determining what is meant by “dispute” in section 149B, it is appropriate, as a contextual task, to take into account what a party to “the” dispute must satisfy under Chapter 6.[26]

  1. [24]
    If a party to a dispute applies for an order under Chapter 6 of the BCCM Act, they must engage both s 226 and s 227 of the BCCM Act.
  2. [25]
    The fact that Mr and Mrs Baltus are no longer lot owners is not necessarily fatal to their claim. The matters in dispute and the alleged inappropriate actions by R Jackson appear to have occurred prior to the settlement of the sale of their lot. What is relevant for the purposes of s 227 of the BCCM Act is the basis of the dispute rather than the status of the individuals concerned.[27] It unnecessary for me to consider this issue further because there is another, fundamental, obstacle facing Mr and Mrs Baltus.
  3. [26]
    The dispute, the subject of the Baltuses’ application, is not one between lot owners or occupiers. It is not a dispute between lot owners or occupiers and the body corporate. The only dispute with a body corporate manager that is a dispute for the purposes of s 227 is one between a body corporate and a body corporate manager. Nowhere in s 227 is there reference to a dispute between a lot owner or occupier and body corporate manager. Such a dispute is not one within s 227 and is therefore not a dispute for the purposes of Chapter 6 of the BCCM Act.
  4. [27]
    The Tribunal has previously considered the question of whether a party, who is not a party to a contract between a body corporate and a body corporate manager, caretaking service contractor or letting agent, may pursue in the Tribunal a dispute about a contractual matter captured by s 149B of the BCCM Act.
  5. [28]
    In Whitfield and Anor v Vardon Point Apartments[28] lot owners sought to challenge a decision by the body corporate regarding the performance of duties by a caretaker. In dismissing the application by the lot owners, the tribunal found (footnotes omitted):

The natural and ordinary meaning of section 149B is that the dispute about the contractual matter is a dispute between the parties to the contract and not some related dispute. The BCCM Act recognises related disputes in relation to a debt dispute. The BCCM Act has not extended disputes about contractual matters in a similar way.[29]

  1. [29]
    In Lamaletie v Catchafuture Pty Ltd[30] a lot owner sought orders for the enforcement of a caretaking agreement. The Tribunal dismissed the application finding that the appropriate party to bring a claim to enforce a caretaking agreement is the body corporate not an individual lot owner.[31]
  2. [30]
    Mr and Mrs Baltus seek to bring the dispute, the subject of the proceeding, within s 149B of the BCCM Act on the basis that R Jackson failed to comply with the Code of Conduct for body corporate managers and caretaking service providers.[32] The provisions of the Code of Conduct are taken to be included in the terms of the contract providing for a person’s engagement as a body corporate manager.[33] The Code prohibits a body corporate manager from engaging in fraudulent, misleading or unconscionable conduct in performing their functions. Any alleged failure by the respondent to comply with the terms of its contract with the body corporate is not a dispute about a contractual matter between the Baltuses’ and the respondent. Mr and Mrs Baltus were never in a contractual relationship with the respondent. Even if the dispute fell within s 227 of the BCCM Act, and I find that it is not, their claim is not one that could be captured by s 149B of the BCCM Act.
  3. [31]
    If the Tribunal considers a proceeding or part of a proceeding to be frivolous, vexatious or misconceived; lacking in substance; or otherwise an abuse of process, it may order that the proceeding or part of the proceeding be dismissed or struck out.
  4. [32]
    If there is a real question to be determined, and the rights of the parties depend upon it, it is not appropriate to dismiss a proceeding.[34] Here, the Tribunal having no jurisdiction to hear and decide the dispute, there is no question to be determined. The application is misconceived and must be dismissed and I order accordingly.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), s 10(1)(b).

[2]BCCM ACT, s 227.

[3]Ibid, Schedule 6.

[4]BCCM ACT, s 47AA(3)(a) and 47B(3)(a).

[5]Ibid, s 48(1)(a).

[6]Ibid, s 385(8)(a) and s 387(6)(a).

[7]Ibid, s 405(2)(a) and s 412(2)(a).

[8]Ibid, s 133; “service contract” means a contract entered into with a person for the engagement of the person as a service contractor for a community titles scheme (refer BCCM ACT, Schedule 6).

[9]Ibid, s 149A.

[10]Ibid, s 149B.

[11]Ibid, s 178.

[12]Belvedere On Racecourse [2014] QBCCMCmr 223 (23 June 2014).

[13]Belvedere On Racecourse [2014] QBCCMCmr 223 (23 June 2014), [61].

[14]Flying Minute dated 4 March 2016.

[15]Invoice summary dated 1 March 2016 – account no. 11.

[16]Invoice summary dated 1 March 2016 – account no. 03500001.

[17]BCCM ACT, s 229(1).

[18]Ibid, Schedule 6, definition of a ‘body corporate manager’; s 14.

[19]BCCM ACT, definition of a ‘contractual matter’.

[20]Ibid, definition of ‘complex dispute’.

[21]Sheehy v The Body Corporate for Marlin Cove CTS 321288 & Trinity Beach Holidays Pty Ltd [2008] CCT KC003-08.

[22]BCCM ACT, s 227(1)(a).

[23]Ibid, s 227(1)(b).

[24][2008] CCT KC003-08.

[25]Ibid, [11].

[26][2008] CCT KC003-08, [27].

[27]Body Corporate for Palm Springs Residences v J Patterson Holdings Pty Ltd [2008] QDC 300.

[28][2012] QCAT 543.

[29]Ibid, 3 [17].

[30][2012] QCAT 596.

[31]Ibid, [10].

[32]BCCM Act, Schedule 2.

[33]Ibid, s 118(2).

[34]General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

Close

Editorial Notes

  • Published Case Name:

    Diane Baltus & Leendert Baltus v R Jackson Pty Ltd

  • Shortened Case Name:

    Diane Baltus & Leendert Baltus v R Jackson Pty Ltd

  • MNC:

    [2017] QCAT 287

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    17 Aug 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.