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The Body Corporate for the Ngahere Community Titles Scheme v Jay Hannaford and Dansteen Pty. Ltd.

 

[2016] QCAT 366

CITATION:

The Body Corporate for the Ngahere Community Titles Scheme v Jay Hannaford and Dansteen Pty Ltd [2016] QCAT 366

PARTIES:

The Body Corporate for the Ngahere Community Titles Scheme

(Applicant)

v

Jay Hannaford

(First Respondent)

Dansteen Pty Ltd t/a Ace Body Corporate Management (Brisbane and CBD East)

(Second Respondent)

APPLICATION NUMBER:

OCL033-15

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

7 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for a complex dispute is dismissed.

CATCHWORDS:

REAL PROPERTY – STRATA AND RELATED TITLES – GENERAL MATTERS – JURISDICTION AND POWERS OF COURTS AND TRIBUNALS – where claims against body corporate manager and lot owner – where body corporate manager deregistered - whether application in respect of a complex dispute – where application dismissed for lack of jurisdiction

Corporations Act 2001 (Cth), s 601AD(1)

Body Corporate and Community Management

Act 1997 (Qld) ss 14, 47AA, 47B, 48, 133, 149A, 149B, 178, 229, 229A385, 387, 405, 412, Schedule 2, Schedule 6

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47

Attorney-General v Wentworth (1988) 14 NSWLR 481

APPEARANCES and REPRESENTATION (if any):

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

What is this application about?

  1. [1]
    Ngahere CTS 11456 is a small, eight lot community title scheme in Brisbane. Dansteen was appointed as the manager. Ms Hannaford is a lot owner. Ms Hannaford arranged to have installed a number of solar panels for the benefit of her lot. The panels were placed on body corporate common property. The body corporate says that the solar panels were installed on the common property without its consent. The body corporate has filed an application to resolve a complex dispute and seeks orders that the solar panels be removed at the expense of Ms Hannaford. As against Dansteen, the body corporate says that the manager should be jointly liable for any damage caused by the installation of the solar panels and the cost of removing the panels.
  2. [2]
    In October 2015 Dansteen was deregistered. The application by the body corporate is pursued solely against Ms Hannaford.
  3. [3]
    On 2 August 2016 directions were made requiring the parties to file submissions in respect of the determination of the preliminary question:

Is the application filed by the Body Corporate for the Ngahere Community Titles Scheme on 8 May 2015 an application to resolve a complex dispute?

A brief history of the dispute

  1. [4]
    In June 2013 Ms Hannaford arranged for the installation of a number of solar panels on the common property (the roof) of the development.  The circumstances in which this occurred are not clear. There are email communications between the installer, Ms Hannaford and Dansteen prior to the installation including an email communication from Ms Hannaford to Dansteen on 9 August 2012:

…I would be grateful if you could make contact with the body corporate to gain approval for Unit 1 to carry out installation of solar panels on the roof at 47 Bramston Tce, Herston.[1]

  1. [5]
    The director of Dansteen, Ms Summers, subsequently spoke with Ms Hannaford and another lot owner and advised that the application to install the solar panels would require body corporate approval and that, in the absence of such approval, an application to the Body Corporate and Community Management Commissioner for approval would be required and likely to be successful. Dansteen says that approval was never given by it for the installation of the solar panels. [2]
  2. [6]
    Ms Hannaford’s version of events is not significantly different to Dansteen’s. She says that the first she became aware of any opposition to the installation of the panels was the day prior to the arrival of the contractor to carry out the work. Ms Hannaford says that after the installation of the panels, she apologised to the body corporate committee members for any misunderstanding. Ms Hannaford says that Dansteen did not provide any approval for the installation of the solar panels.[3]

Consideration

  1. [7]
    The Body Corporate and Community Management Act 1997 (Qld) is the relevant enabling Act. The Tribunal has jurisdiction to hear and determine a complex dispute.[4] A specialist adjudicator may also hear and determine a complex dispute.[5] The Tribunal also has jurisdiction to hear and determine appeals from decisions by specialist adjudicators and adjudicators on a question of law.[6]
  2. [8]
    A complex dispute is defined.[7] Those matters in respect of which the Tribunal has jurisdiction include:
    1. Changes in contribution schedule lot entitlements[8]
    2. Adjustment of an interest schedule[9]
    3. Adjustment of a contribution schedule[10]
    4. Adjustment of contribution schedule lot entitlements[11]
    5. Reviewing the terms of a service contract[12]
    6. A dispute about the transfer of letting agent’s management rights[13]
    7. 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[14]
    8. A dispute about an exclusive use by-law[15]
    9. The recovery of a debt[16]
  3. [9]
    The only remedy for a complex dispute is the resolution of the dispute by an order of a specialist adjudicator under chapter 6 or an order of QCAT exercising the tribunal’s original jurisdiction under the QCAT Act.[17]
  4. [10]
    The only remedy for a dispute that is not a complex dispute is the resolution of the dispute by a dispute resolution process or an order of the QCAT appeal tribunal on appeal from an adjudicator on a question of law.[18] A dispute that is not a complex dispute must first be referred to the Office of the Commissioner for Body Corporate Management to undertake dispute resolution. The only exception to this are disputes about the recovery of debts by the body corporate from a lot owner.[19] 
  5. [11]
    The body corporate says that the dispute is a contractual matter of a complex nature relying upon s 149B BCCMA which provides:

149B Specialist adjudication or QCAT jurisdiction

(1) This section applies to a dispute about a claimed or anticipated contractual matter about—

(a) the engagement of a person as a body corporate manager or caretaking service contractor for a community titles scheme; or

(b) the authorisation of a person as a letting agent for a community titles scheme.

(2) A party to the dispute may apply—

(a) under chapter 6, for an order of a specialist adjudicator to resolve the dispute; or

(b) as provided under the QCAT Act, for an order of QCAT exercising the tribunal’s original jurisdiction to resolve the dispute.

  1. [12]
    A “contractual matter” means:

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.[20]

  1. [13]
    The body corporate says that Dansteen did not have the authority or the power to approve the installation of the solar panels and that the manager’s actions were in breach of the Code of Conduct for Managers and Caretaking Service Contractors.[21]
  2. [14]
    The body corporate says that the proceeding has been complicated by the deregistration of Dansteen and that, as a result, any detriment suffered by the body corporate must fall upon Ms Hannaford. The body corporate says that Dansteen acted as agent for Ms Hannaford and Ms Hannaford is liable as the principal party. The body corporate says that the actions of Ms Hannaford need to be reviewed in detail and without any allegation of apportionment of blame. It says that the matter becomes complex due to the applicable law and the BCCMA.
  3. [15]
    Somewhat opaquely, the body corporate says that the application of s 149B BCCMA “falls away” due to the deregistration of Dansteen, and that Ms Hannaford “cannot resile or utilize such a position.” The body corporate says that no evidence before the Tribunal releases Ms Hannaford of the liability incurred as a result of the installation of the solar panels.
  4. [16]
    Ms Hannaford says that she acted in good faith in arranging for the installation of the solar panels. She says that the first she became aware of any opposition to the installation of the panels was the day prior to the installation being carried out. Ms Hannaford says that at a subsequent meeting of the body corporate she apologised for any misunderstanding and explained that she had understood that the other lot owners with whom Dansteen had spoken did not oppose the installation of the solar panels. Ms Hannaford does not assert that Dansteen communicated approval for the installation of the panels.
  5. [17]
    Dansteen says that at no time did it approve, or communicate to Ms Hannaford the approval of the body corporate, for the installation of the solar panels.
  6. [18]
    Dansteen was engaged as the body corporate manager.[22] The services provided by Dansteen pursuant to the engagement included secretarial, financial and administrative services. Dansteen was contractually obliged to comply with the BCCMA, the Module and the code of conduct.
  7. [19]
    The claim by the body corporate against Dansteen was one relating to a contravention of the terms of the engagement or authorisation of Dansteen as body corporate manager and as such was a complex dispute. That claim can no longer proceed. A company ceases to exist on deregistration.[23]
  8. [20]
    The claim by the body corporate against Ms Hannaford relates to her actions as a lot owner in erecting solar panels on common property without body corporate consent. The claim does not fall within the definition of a complex dispute. As I have noted, the only remedy for a dispute that is not a complex dispute is the resolution of the dispute by a dispute resolution process or an order of the QCAT appeal tribunal on appeal from an adjudicator on a question of law.[24] A dispute that is not a complex dispute must first be referred to the Office of the Commissioner for Body Corporate Management to undertake dispute resolution.
  9. [21]
    The claim against Dansteen was validly commenced as a complex dispute by the application filed 8 May 2015. The claim against Ms Hannaford was not, and is not, a complex dispute. The claim was not, and is not, a claimed or anticipated contractual matter about the engagement of the body corporate manager. The mere fact that there is some commonality between the factual issues as they relate to the two disputes does not clothe the claim by the body corporate against Ms Hannaford with the statutory accoutrements of a complex dispute.
  10. [22]
    The body corporate was not permitted to pursue the claim against Ms Hannaford as a complex dispute. The body corporate should have referred the dispute with Ms Hannaford to the Commissioner for Body Corporate Management to undertake dispute resolution.  
  11. [23]
    In circumstances where a proceeding is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process, the tribunal may dismiss or strike out the proceeding.[25] The proceeding against Dansteen, when commenced, was not misconceived or without substance. In light however of the deregistration of Dansteen, there is no party against whom the proceeding can continue. The claim against Dansteen is therefore without substance or is otherwise vexatious. Proceedings are properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.[26] Such is the claim against Dansteen in the absence of any steps to re-register the company by the body corporate. No such intention has been evinced.
  12. [24]
    As to the claim against Ms Hannaford, the dispute is not a complex dispute. The body corporate was required to refer the dispute to the Commissioner to undertake dispute resolution. The Tribunal does not have jurisdiction in respect of the claim. The proceeding was misconceived and lacking in substance from commencement.
  13. [25]
    The appropriate order is that the application for a complex dispute is dismissed.

Footnotes

[1]Annexure “K” – application to resolve a complex dispute; Affidavit of Wendy Rooney sworn 8 September 2015.

[2]Submissions by Dansteen in support of application for miscellaneous matters filed 24 July 2015.

[3]Submissions – Jay Hannaford, 6 September 2015.

[4]BCCMA s 229(2)(a)(ii).

[5]BCCMA s 229(2)(a)(i).

[6]BCCMA s 229(2)(b) and s 229(3)(b).

[7]BCCMA, Schedule 6.

[8]Ibid, s 47AA(3)(b) and 47B(3)(b).

[9]Ibid, s 48(1)(b).

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

[11]Ibid, s 405(2)(b) and s 412(2)(b).

[12]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 the Act, schedule 6).

[13]Ibid, s 149A.

[14]Ibid, s 149B.

[15]Ibid, s 178.

[16]Ibid, s 229A.

[17]Ibid, s 229(2).

[18]Ibid, s 229(3).

[19]Ibid, s 229(3) and s 229A.

[20]Ibid, Schedule 6.

[21]BCCMA, Schedule 2.

[22]Administration Agreement Engagement of Body Corporate Manager dated 25 June 2012; and see BCCMA, s 14.

[23]Corporations Act 2001 (Cth) s 601AD(1).

[24]Ibid, s 229(3).

[25]QCAT Act s 47(1).

[26]Attorney-General v Wentworth (1988) 14 NSWLR 481.

Close

Editorial Notes

  • Published Case Name:

    The Body Corporate for the Ngahere Community Titles Scheme v Jay Hannaford and Dansteen Pty. Ltd.

  • Shortened Case Name:

    The Body Corporate for the Ngahere Community Titles Scheme v Jay Hannaford and Dansteen Pty. Ltd.

  • MNC:

    [2016] QCAT 366

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    07 Oct 2016

Appeal Status

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