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  • Unreported Judgment

Dream Suburbs Pty Ltd v Body Corporate for Persse Palace Community Titles Scheme

 

[2019] QCAT 373

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Dream Suburbs Pty Ltd ABN 582 477 245 56 v Body Corporate for Persse Palace Community Titles Scheme 48289 & Ors [2019] QCAT 373

PARTIES:

DREAM SUBURBS PTY LTD ABN 582 477 245 56

(applicant)

v

BODY CORPORATE FOR PERSSE PALACE COMMUNITY TITLES SCHEME 48289

(first respondent)

and

 

TIM GLOBAL PTY LTD ACN 168 580 505

(second respondent)

APPLICATION NO/S:

OCL046-18

MATTER TYPE:

Body Corporate

DELIVERED ON:

25 November 2019

HEARING DATE:

4 September 2019

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

 

  1. The application filed by the applicant and second respondent on 30 May 2019 seeking to strike out the counter application to the extent it seeks relief against the second respondent and to have the second respondent removed from the proceedings is dismissed.
  2. The application filed by the first respondent on 19 August 2019 seeking to have the entire proceedings transferred to the Supreme Court is dismissed.

CATCHWORDS:

BODY CORPORATE AND COMMUNITY MANAGEMENT – COMPLEX DISPUTE – JURISDICTION – where original application a complex dispute within s 149B of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) – where counter application by first respondent against second respondent alleges breach of fiduciary and statutory duty by the second respondent (the Original Owner) in entering into Management Agreement and Letting Agreement with related entity during original owner control period (‘counter application’) – where counter application seeks equitable compensation for breach of fiduciary duty and compensation for breach of s 112(2) of the BCCMA – where counter application also seeks to have Management Agreement and Letting Agreement set aside – where Tribunal does not have jurisdiction to determine the counter application by itself – whether Tribunal nonetheless has jurisdiction with respect to the counter application because it has jurisdiction over the original application – extent of the jurisdiction of the Tribunal to “resolve the dispute” under s 149B of the BCCMA – whether “dispute” for the purposes of s 149B includes the matters raised by the counter application in these proceedings – whether Tribunal has “accrued” jurisdiction in respect of the counter application – whether Tribunal has “inherent” jurisdiction in respect of the counter application – whether jurisdiction conferred by s 9(4) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) in respect of the counter application – whether the proceedings or part of the proceedings should be transferred under s 52 of the QCAT Act – whether the counter application should be struck out – whether the second respondent should be removed from the proceedings.

Body Corporate and Community Management Act 1991 (Qld), s 149B, s 227, s 229, Schedule 6

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 52

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), rule 48

Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder [2011] QCAT 277

Henderson & Anor v The Body Corporate for Merrimac Heights [2011] QSC 336

James v The Body Corporate Aarons Community Title Scheme 11476 [2002] QSC 386

James v The Body Corporate Aarons Community Title Scheme 11476 [2003] QCA 329

National Parks and Wildlife v Stables Perisher Pty Ltd (1990) 20 NSWLR 573

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR435

APPEARANCES &

REPRESENTATION:

 

Applicant:

BWJ Kidston, counsel, instructed by Ben Seccombe of Mahoneys

First Respondent:

PD Tucker with A Choy, counsel instructed by Bugden Legal

Second Respondent:

BWJ Kidston, counsel, instructed by Ben Seccombe of Mahoneys

REASONS FOR DECISION

  1. [1]
    There are two applications before me.
  1. [2]
    The first is an application filed by the second respondent (Tim Global Pty Ltd) seeking that:
    1. (a)
      the first respondent’s (the Body Corporate) counter application be struck out to the extent that it seeks relief against Tim Global Pty Ltd (the counter application); and
    2. (b)
      Tim Global Pty Ltd be removed as a party.[1]
  2. [3]
    Tim Global Pty Ltd (Tim Global) seeks these orders because it says the Tribunal does not have jurisdiction to make the orders sought by the Body Corporate against Tim Global in the counter application.
  3. [4]
    The second is an application for directions by the Body Corporate seeking the transfer of the entire proceeding to the Supreme Court and associated directions.[2] The Body Corporate submitted that the claims made within the counter application are within the Tribunal’s jurisdiction but if found not to be, should be transferred in accordance with their application.
  4. [5]
    The outcome depends upon the extent of the Tribunal’s jurisdiction. 
  5. [6]
    Jurisdictional arguments have been described as an inevitable consequence of a court of limited statutory jurisdiction.[3] As Gleeson CJ said in Nix and Dunn v Pittwater Council in the context of a State court with limited statutory jurisdiction:

As was pointed out in National Parks & Wildlife Service v Stables

Perisher Pty Ltd (1990) 20 NSWLR 573; 71 LGRA 286, because the

Land and Environment Court was set up as a specialist tribunal to

exercise a limited statutory jurisdiction, it is inevitable that cases will

arise from time to time in which a matter that falls within the jurisdiction

of the court will be part only of a wider dispute or series of disputes. This

may, on occasion, result in multiplicity of proceedings, but there is

nothing unusual about it. It is the price to be paid for what are seen as the

advantages of having such tribunals.[4]

  1. [7]
    The issue before me is whether the counter application, which raises issues of breach of fiduciary duty and a claim for compensation under s 112 of the Body Corporate and Community Management Act 1991 (‘BCCMA’) against Tim Global arising out of the obligations it owed during the original owner control period is within the limits of the Tribunal’s jurisdiction.
  2. [8]
    In my view the answer to this depends upon whether, upon its proper characterisation, the counter application by the Body Corporate against Tim Global as original owner, can be said to be part of the “dispute” for the purposes of s 149B of the BCCMA, that is, “to be so related to the original claim that it formed part of it”; or whether, as counsel for Dream Suburbs Pty Ltd (Dream Suburbs) and Tim Global contend, it was relevantly a separate proceeding in respect of which the Tribunal’s original jurisdiction was not invoked.[5] 
  3. [9]
    I would add that even if I determine that the Tribunal has jurisdiction to consider the counter application, the issue arises as to whether the Tribunal would nevertheless lack the power to grant the relief sought.[6] As a matter of construction, the powers of the Tribunal are to be construed in the context of the enabling Act which confers original jurisdiction on the Tribunal. The powers of the Tribunal which extend to the power to grant an injunction[7] or make a declaration[8] are not stand alone powers. They are to be exercised within the confines of the Tribunal’s jurisdiction,[9] that is, in aid of the jurisdiction otherwise conferred on it and not as an extension to it.

Overview of the dispute

  1. [10]
    This dispute relates to the management agreement and letting agreement in place with respect to the management of the Persse Palace Community Titles Scheme situated at 60 Lakefield Place, Runcorn. These agreements were either granted or assigned to Dream Suburbs by Tim Global, the original owner of the scheme, during the original owner control period.
  2. [11]
    The scheme comprises 31 residential lots. It is subject to the BCCMA and the Standard Module (although that is in dispute). Tim Global developed and registered the scheme on 4 February 2016.[10] The directors of Tim Global are the mother and uncle of one of Dream Suburb’s two directors, who are husband and wife.[11]
  3. [12]
    On 23 February 2019, when Tim Global owned all 31 lots in the scheme, a resolution was passed authorising the Body Corporate to enter into the Management Agreement for up to 25 years with Dream Suburbs (‘the first resolution’). The Body Corporate contends that the remuneration payable to Dream Suburbs under that Agreement exceeds fair market value. Contrary to that resolution, the Management Agreement was entered into with Tim Global as trustee for Sunrise Family Trust. Dream Suburbs and Tim Global both claim that the minutes of that resolution contain an error and should have referred to Tim Global instead of Dream Suburbs.
  4. [13]
    On 20 June 2016, Tim Global:
    1. (a)
      passed a resolution on behalf of the Body Corporate to transfer the Management Agreement from Tim Global to Dream Suburbs by way of tripartite deed (‘the second resolution’); and
    2. (b)
      entered into a sale contract with Dream Suburbs to sell the rights under the Management Agreement for $185 000.
  5. [14]
    On 7 February 2018, the solicitors for Dream Suburbs and Tim Global stated that the minutes of the first resolution were accurate and advised the Management Agreement had been executed in error by Tim Global. Consequently, Dream Suburbs claimed to be the caretaker and letting agent of the scheme, pursuant to the Management Agreement and Letting Agreement.
  6. [15]
    Dream Suburbs filed an application for a complex dispute on 28 June 2018. The application stated it was a dispute about a “claimed or anticipated contractual matter” within the meaning of s 149B of the BCCMA. Dream Suburbs alleged, in effect, that the Body Corporate had not paid Dream Suburbs in accordance with the Management Agreement on the basis the Body Corporate asserted that the Management Agreement and Letting Agreement were void on the basis they had been entered into when the scheme was registered under the Accommodation Module when the Standard Module applied and that the Agreements conflicted with the Standard Module. Dream Suburbs sought a declaration that the Agreements were not invalid by operation of conflict with the Accommodation Module; and an order that the Body Corporate specifically perform the Agreements, damages for breach of contract, costs and interest.
  7. [16]
    On 3 January 2019, the Body Corporate filed a Response and Counter Application seeking:
    1. (a)
      Restitution against Dream Suburbs, in respect of monies paid under the Management Agreement upon the assumption it was valid; and
    2. (b)
      Compensation against the original owner, for contravention of s 112(2) of the BCCMA or breach of fiduciary duty.
  8. [17]
    Relevantly, the Body Corporate argue that the first resolution did not authorise the Body Corporate to enter into the Agreements with Tim Global. Alternatively, that if it did, the resolution is void or voidable at the Body Corporate’s election because it was passed during the original owner control period within the meaning of s 112 of the BCCMA and that Tim Global acted in breach of its fiduciary obligations in passing the resolution. Further, that the agreements are invalid as ultra vires the Body Corporate, because the Body Corporate did not pass a resolution approving the engagement of Dream Suburbs as caretaker and letting agent in accordance with s 114(2)(a) of the Standard Module. Finally, that the second resolution consenting to the assignment of the agreements from Tim Global to Dream Suburbs was also void because it too, was entered into during the original owner control period and was not entered into in the best interests of the lot owners or that it was entered into when Tim Global had a conflict of duty and interest which was not disclosed to the lot owners. In short, the Body Corporate says that:
    1. (a)
      The first resolution was in breach of Tim Global’s obligation under s 112 of the BCCMA, and the fiduciary duty owed by Tim Global to the Body Corporate and was therefore voidable; and
    2. (b)
      The Body Corporate avoided the Management Agreement, on 17 January 2018 or by filing its response in this proceeding; and
    3. (c)
      Tim Global is liable to compensate the Body Corporate, owing to overpayment in respect of the Management Agreement.
  9. [18]
    Dream Suburbs and Tim Global allege the Body Corporate gave certain warranties as to the enforceability of the Management Agreement under the Deed of Consent.
  10. [19]
    In response, the Body Corporate alleges that:
    1. (a)
      The second resolution was voidable; and
    2. (b)
      The warranties were given in breach of fiduciary duty and to the knowledge of Dream Suburbs, untrue and, accordingly, unenforceable; and
    3. (c)
      Tim Global is further liable to the Body Corporate for breach of fiduciary duty, and under s 112 of the BCCMA, in the event the warranties are enforceable.

Overview of the law governing the counter application against the Original Owner

  1. [20]
    An original owner owes certain duties during the “original owner control period”. This period is defined to be the period in which an original owner either constitutes or controls the Body Corporate.[12]
  2. [21]
    Section 112 of the BCCMA provides:

112 Original owner’s obligations about engagements and authorisations

(1)  This section applies if—

(a) the body corporate for a community titles scheme intends to—

(i)  engage a person as the body corporate manager or a service contractor (the "contracted party"); or

(ii) authorise a person to conduct a letting agent business (also the "contracted party"); and

(b) the engagement or authorisation is to be made or given in the original     owner control period.

(2)  The original owner must exercise reasonable skill, care and diligence and act in the best interests of the body corporate, as constituted after the original owner control period ends, in ensuring each of the following—

(a) the terms of the engagement or authorisation achieve a fair and reasonable balance between the interests of—

(i) the contracted party; and

(ii) the body corporate as constituted after the original owner control period ends;

(b) the terms are appropriate for the scheme;

(c) the powers able to be exercised, and functions required to be performed, by the contracted party under the engagement or authorisation—

(i) are appropriate for the scheme; and

(ii) do not adversely affect the body corporate’s ability to carry out its functions.

Penalty—

Maximum penalty—300 penalty units.

(3) If the body corporate or an owner of a lot included in the scheme incurs loss or damage because of the original owner’s contravention of subsection (2), the body corporate or owner may claim compensation from the original owner in a proceeding brought in a court of competent jurisdiction.

  1. [22]
    The relationship between an original owner and body corporate is fiduciary in nature during the original owner control period.[13] Accordingly, the original owner owes duties to the Body Corporate to act in good faith and for a proper purpose and to avoid conflicts of interest and unauthorised profit.[14] Agreements entered into in breach of fiduciary duty are voidable.[15]

Overview of the relevant jurisdiction provisions governing the dispute

  1. [23]
    The Tribunal is an inferior court of record.[16] It was created by statute and is a court of limited jurisdiction. The extent of those limits are those defined by the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) and any enabling Acts.
  2. [24]
    Section 9(3) of the QCAT Act provides:

Without limiting the Acts Interpretation Act 1954, section 49A, an enabling Act confers jurisdiction on the tribunal to deal with a matter if the enabling Act provides for an application, referral or appeal to be made to the tribunal in relation to the matter.

  1. [25]
    Schedule 3 defines “application” to mean an application to the Tribunal under this Act or an enabling Act. An enabling Act, relevantly, is defined to be an Act, other than the QCAT Act, which confers original, review or appellate jurisdiction on the Tribunal.[17]
  2. [26]
    Pursuant to s 15 of the QCAT Act, the Tribunal may exercise its original jurisdiction conferred by an enabling Act if a person has, under that Act, applied to the Tribunal to exercise its original jurisdiction. In exercising that jurisdiction the Tribunal may perform the functions conferred on the Tribunal by the QCAT Act or the enabling Act.[18]
  3. [27]
    Here the relevant enabling Act is the BCCMA.
  4. [28]
    Section 6(3) of the QCAT Act provides that:

An enabling Act conferring original jurisdiction on the tribunal will generally state the tribunal’s functions in the jurisdiction, which may add to, otherwise vary, or exclude functions stated in this Act.

  1. [29]
    The Tribunal has original jurisdiction conferred upon it by s 149B of the BCCMA to deal with disputes about contractual matters about the engagement or authorisation of Body Corporate managers, caretaking service contractors or letting agents.[19] This includes the termination of that engagement or authorisation, contravention of terms of the engagement or authorisation or the exercise of rights and powers or the performance of duties under the engagement or authorisation.[20] In my view, s 149B is not further confined by the definition of “dispute” in s 227 which only applies for the purposes of Chapter 6.[21]
  2. [30]
    The jurisdiction to determine “complex disputes” conferred upon the Tribunal is confirmed by s 229 which provides that the “only remedy” for a “complex dispute” (which includes a dispute mentioned in s 149B) 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.
  3. [31]
    Section 229 also confers jurisdiction on the Appeal Tribunal to resolve disputes that are not complex.[22]
  4. [32]
    The relevant provisions in the BCCMA are as follows:

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. [33]
    A “contractual matter” is defined in Schedule 6 to mean:

"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;

(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.

  1. [34]
    The term, “complex dispute” is defined in Schedule 6 to include a “dispute mentioned in …s 149B”.
  2. [35]
    Section 229 provides:

229 EXCLUSIVITY OF DISPUTE RESOLUTION PROVISIONS

(1) Subsections (2) and (3) apply to a dispute if it may be resolved under this chapter by a dispute resolution process.

Notes—

1 For a dispute about a body corporate decision under section 47A, see section 47AA.

2 For disputes about a decision of a body corporate committee under section 410, or a body corporate decision under section 411, see section 412(5) .

(2) The only remedy for a complex dispute is—

(a) the resolution of the dispute by—

(i) an order of a specialist adjudicator under chapter 6; or

(ii) an order of QCAT exercising the tribunal’s original jurisdiction under the QCAT Act; or

(b) an order of the appeal tribunal on appeal from a specialist adjudicator or QCAT on a question of law.

(3) Subject to section 229A, the only remedy for a dispute that is not a complex dispute is—

(a) the resolution of the dispute by a dispute resolution process; or

(b) an order of the appeal tribunal on appeal from an adjudicator on a question of law.

(4) However, subsections (2) and (3) do not apply to a dispute if—

(a) an application is made to the commissioner; and

(b) the commissioner dismisses the application under part 5 .

(5) Also, subsections (2) and (3) do not limit—

(a) the powers of QCAT under the QCAT Act to—

(i) refer a question of law to the Court of Appeal; or

(ii) transfer a proceeding, or a part of a proceeding, to the Court of Appeal; or

(b) the right of a party to make an appeal from QCAT to the Court of Appeal under the QCAT Act.

  1. [36]
    Section 229 is in Chapter 6, which is headed Dispute Resolution. “Dispute” is defined in Schedule 6 as follows:

Dispute –

(a)  generally, includes complaint; and

(b)  for chapter 6, see section 227.

  1. [37]
    Section 227 provides:

227 MEANING OF DISPUTE

(1) A "dispute" is a dispute between—

(a) the owner or occupier of a lot included in a community titles scheme and the owner or occupier of another lot included in the scheme; or

(b) the body corporate for a community titles scheme and the owner or occupier of a lot included in the scheme; or

(c) the body corporate for a community titles scheme and a body corporate manager for the scheme; or

(d) the body corporate for a community titles scheme and a caretaking service contractor for the scheme; or

(e) the body corporate for a community titles scheme and a service contractor for the scheme, if the dispute arises out of a review carried out, or required to be carried out, under chapter 3 , part 2 , division 7 ; or

(f) the body corporate for a community titles scheme and a letting agent for the scheme; or

(g) the body corporate for a community titles scheme and a member of the committee for the body corporate; or

(h) the committee for the body corporate for a community titles scheme and a member of the committee; or

(i) the body corporate for a community titles scheme and a former body corporate manager for the scheme about the return, by the former body corporate manager to the body corporate, of body corporate property.

  1. [38]
    The Tribunal does not have a general equitable jurisdiction. However, it is open to Parliament to clothe QCAT, to the extent it sees fit, with the power to apply equitable doctrines, defences and remedies or to proceed in accordance with equitable principles. Parliament can do this expressly or by implication.[23] There is no express conferral of equitable jurisdiction on the Tribunal in either the BCCMA or the QCAT Act.
  2. [39]
    The Tribunal has power under s 59 to grant an injunction “in a proceeding” if it is just and convenient to do so. The Tribunal also has power under s 60 of the QCAT Act to make a declaration “about a matter in a proceeding” and under subsection (2) to make an order it considers “necessary or desirable to give effect to a declaration” under subsection (1). Both provisions are predicated on the basis there is a “proceeding” which is defined to mean generally, a proceeding before the Tribunal.[24] It is clear that the powers are only to be exercised in aid of the jurisdiction otherwise conferred on the Tribunal and that the provisions do not otherwise enlarge the jurisdiction of the Tribunal.[25]
  3. [40]
    It has been held that the jurisdiction in s 149B must be read as including the power to resolve the dispute by reference to normal and reasonable remedies.[26] The Tribunal also has power under s 9(4) of the QCAT Act to do “all things necessary or convenient for exercising its jurisdiction”.

What do the parties say

  1. [41]
    The Body Corporate contends that the Tribunal has jurisdiction to hear the entire dispute, including the counter application against Tim Global. It says that whether the Tribunal is a “court” for the purposes of s 112 is a question of statutory construction and that just because “court” and “tribunal” are used differently throughout the Act does not indicate an intention to read down the meaning of “court” in s 112. Further, QCAT is an inferior court of record which affords the Tribunal the diversity jurisdiction not ordinarily afforded to a Tribunal. Also it is contended that, as the Tribunal has jurisdiction to determine the claim of breach of fiduciary duty against Tim Global it would be “obtuse” if it could not, likewise, decide a claim based on s 112(2) which is a statutory acknowledgment of the very same fiduciary duty. Such an approach is also consistent with the objects of the BCCMA which include to provide an efficient and effective dispute resolution process.
  2. [42]
    Dream Suburbs and Tim Global contend that the Tribunal does not have jurisdiction to deal with either the “compensation” claim under s 112(3) or the restitution claim with respect to the amounts paid by the Body Corporate to Dream Suburbs on the basis of a mistake as to the validity of the relevant contracts. They contend that the Tribunal is not a “court” for the purposes of the BCCMA, as the BCCMA uses “court” and “tribunal” for different and distinct purposes throughout the Act. Further, that when the statute intends to confer jurisdiction on the Tribunal in other contexts it provides “a court or tribunal of competent jurisdiction” or “proceedings in a court of competent jurisdiction or before QCAT”. They argue that the absence of the same words indicates a clear intention not to confer jurisdiction on the Tribunal in this instance. Moreover, they contend that the claim under s 112(3) is not a “contractual matter” or one related to “the performance of duties under the engagement” and therefore falls outside s 149B. Finally, they do not agree that the Tribunal has jurisdiction for breach of fiduciary duty at law. They argue that the equitable jurisdiction in Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder (‘Batwing’) arose from equitable defences or issues ancillary to the agreements, not some broader dispute. Batwing does not, in their view, provide any basis upon which to extend the Tribunal’s auxiliary equitable jurisdiction in the manner contended for by the Body Corporate. A fortiori, the order sought for breach of fiduciary duty, is not consequential on, or incidental to, an order being made in any other aspect of the proceeding.

Does the Tribunal have jurisdiction in respect of the original application by Dream Suburbs

  1. [43]
    The original claim by Dream Suburbs is a “complex dispute” within the meaning of s 149B(1)(a). From the perspective of Dream Suburbs it is a dispute about a claimed “contractual matter” about the engagement of a person as a caretaking service contractor. “Contractual matter” about an engagement of a service contractor includes relevantly, a contravention of the terms of the engagement.
  2. [44]
    The only remedy for this “complex dispute” is that provided for by s 229(2). This is because, s 229(2) applies “to a dispute if it may be resolved under this chapter by a dispute resolution process”. A “dispute resolution process” means department conciliation; dispute resolution centre mediation; specialist mediation or specialist conciliation. A “dispute” for the purpose of the application of s 229 must come within one of the defined categories of disputes in s 227. The dispute between Dream Suburbs and the Body Corporate falls within s 227(1)(d). It is also a dispute which can be resolved by a “dispute resolution process” under chapter 6. It follows that the only remedy is the resolution of the dispute by:
    1. (a)
      the resolution of the dispute by a specialist adjudicator under chapter 6;
    2. (b)
      an order of QCAT exercising the Tribunal’s original jurisdiction under the QCAT Act.[27]
  3. [45]
    The Tribunal therefore has exclusive jurisdiction to determine the original claim by Dream Suburbs against the Body Corporate. It is unlikely, given the decisions in Henderson v The Body Corporate for Merrimac Heights[28] and James v The Body Corporate Aarons Community Title Scheme 11476,[29] that the Supreme Court has jurisdiction to consider this claim. This is relevant to whether the entire action should be transferred to that Court.
  4. [46]
    The issue arises as to whether the Tribunal can also determine the counter application by the Body Corporate against the Original Owner.

Does the Tribunal have jurisdiction with respect to the counter application by the Body Corporate against the Original Owner 

  1. [47]
    The counter application against Tim Global, considered by itself, falls outside the jurisdiction of the Tribunal. That is because, in my view, the issues raised by the counter application between the Body Corporate and Tim Global as original owner are not capable of resolution under Chapter 6,[30] nor do they come within s 149B which is limited to “contractual matters” as defined in Schedule 6 about the engagement of a caretaker or the authorisation of a letting agent.
  2. [48]
    Even if I accept that the original owner was a caretaking service contractor and that s 227(1)(d) extends to disputes between a Body Corporate and a “former” caretaking service contractor, the dispute between them is not in respect of the duties owed under the Act by a “caretaking service contractor”. The issue is about the duties owed under the BCCMA and in equity by Tim Global in its capacity as an original owner during the original owner control period.
  3. [49]
    In terms of s 149B, the issues raised by the Body Corporate against Tim Global arose prior to the relevant contracts. They are matters predicated on fiduciary obligations or on the equivalent statutory duty in s 112 of the BCCMA and fall outside the “contractual matters” listed in the exhaustive definition in Schedule 6. In that respect, I note that termination of the relevant contracts is a very different concept to rescission or setting aside those contracts for breach of fiduciary duty owed by a non-contracting party.
  4. [50]
    As I have concluded that the counter application by itself falls outside the jurisdiction of the Tribunal, if the Tribunal is to have jurisdiction it will be by reason of the claim originally made against it. Jurisdiction might be argued to exist in a number of ways including:
    1. (a)
      the Tribunal has jurisdiction under s 149B to “resolve the dispute” and “dispute” must, properly construed, include the counter application;
    2. (b)
      the Tribunal has “accrued jurisdiction” with respect to the counter application;
    3. (c)
      the Tribunal has power under s 9(4) of the QCAT Act with respect to the counter application;
    4. (d)
      the Tribunal has “inherent jurisdiction” with respect to the counter application; or
    5. (e)
      the Tribunal has “implied power” to consider the counter application.
  5. [51]
    I turn now to consider each potential source of jurisdiction in turn.

Does the jurisdiction of the Tribunal to “resolve the dispute” under s149B extend to the counter application in these proceedings

  1. [52]
    It was held by Kirby J in National Parks and Wildlife Service v Stables Perisher Pty Ltd [31] (‘Stables Perisher’) that words conferring jurisdiction on a court of limited statutory jurisdiction should be widely construed:

But the jurisdiction of a court or tribunal of limited authority cannot be conferred by concession. In the case of a court created by statute, it must be found, expressly stated or implied in the language of the statute. Such language should not receive a narrow construction. The establishment of a superior court of record will be taken to carry with it all the powers which are necessary to enable that court to act effectively within the jurisdiction conferred: cf John Fairfax & Sons Ltd v Police Tribunal of New G South Wales (1986) 5 NSWLR 465 at 476. The very fact that the Land and Environment Court is such a superior court of record will import the implication that, within its defined jurisdiction, amply construed, it will be entitled to do the large range of things that superior courts of record traditionally do. This approach to the elaboration of its powers is appropriate because the alternative is that the Land and Environment Court may resolve part only of a dispute. For the resolution of the rest of the dispute, the parties will then be required to proceed to another court if they have the will, the funds and the patience to do so. Inevitably, that will involve cost, delay, inconvenience and even the risk of inconsistent findings. It is a prospect which I do not welcome. I would strive to avoid it, if I could properly do so.[32]

  1. [53]
    The issue of what forms part of the “dispute” for the purposes of s 149B is fundamental to the applications before me. The definition of “dispute” in Schedule 6 is descriptive. It provides that dispute generally, includes complaint (which is not defined) and, for Chapter 6, see s 227. The definition is therefore unconfined, except that it must include the complaint. The concept in the context of s 149B has been approached broadly in the Tribunal so as to include the power to make injunctions and declarations regarding whether a resolution to terminate a caretaker contract was valid.[33]
  2. [54]
    The issue of what is encapsulated by the word “dispute” in the context of the BCCMA was considered by McMurdo J in Henderson v The Body Corporate for Merrimac Heights.[34] In Henderson, the Supreme Court did not have jurisdiction to determine “a dispute” unless s 229(4) applied, that is, where an application had been made to the Commissioner and been dismissed. The issue was whether all aspects of the dispute were to be considered part of the application for the purposes of s 229(4).
  3. [55]
    McMurdo J held:

[116] The question therefore turns upon the operation of s 229(4) in this case. In particular, it turns upon whether all of the matters presently in issue are within the dispute which was the subject of the plaintiffs’ application to the Commissioner. The plaintiffs argue that there is one dispute with many elements. The defendant argues that issues involving the enforceability of the Caretaking Agreement constitute a dispute, distinctly from that which was the subject of the application to the Commissioner.

[117] It is possible to say that there are distinct claims, and thereby distinct disputes, in relation to, respectively, the LMA and the Caretaking Agreement. There is a considerable overlap of factual issues but they are not identical. It can be said that success for the plaintiffs in relation to one agreement need not have resulted in success for them on the other.

[118] Commonly there are many issues or things in dispute which are to be resolved in the determination of a piece of litigation. For example, in respect of the LMA, there is (or was) a dispute as to its terms, a dispute as to its validity, a dispute or disputes as to the plaintiffs’ performance, a dispute as to whether it has been abandoned or terminated and a dispute as to the extent of the plaintiffs’ loss from not being able to perform the agreement. But each of those issues could also be fairly described as elements of the dispute between the parties which is resolved by this judgment. This illustrates that the word “dispute” can be used with varying degrees of generality, according to the context.

[119] The question here involves the meaning of “dispute” in a particular statutory context. The evident intent of Ch 6 of the Act is to facilitate the resolution of controversies. It would be inconsistent with that purpose if Chapter 6, and in particular s 229, promoted rather than resolved controversies, by giving rise to unproductive jurisdictional arguments. It would also be detrimental to the operation of Ch 6 to unduly confine the boundaries of a “dispute”, because that could prevent the one body resolving the entire controversy between the parties with disadvantages of extra cost, delay and the possibility of inconsistent findings.

[120] If the defendant’s argument is correct, the QCAT had jurisdiction to determine the proceeding concerning the Caretaking Agreement but it may not have had jurisdiction to resolve the proceeding concerning the LMA. That is because although the plaintiffs are “a caretaking service contractor”, they have that status from the Caretaking Agreement (including as it does the power to conduct a letting agency). Their claim to enforce the LMA, at least upon one view, is not made by them as a caretaking service contractor. Upon that view, what is said to be the distinct dispute concerning the LMA would not be a “complex dispute”, so that it would not be within the jurisdiction of the QCAT. Therefore, no single entity, including the QCAT, could have resolved what is now the subject of this litigation. The potential for that consequence indicates the risk in adopting too narrow an understanding of what is a “dispute”.

[121] The notion of a dispute in this context should be one which promotes the whole of the controversy between the parties being able to be resolved within the one process (emphasis added). In this respect, assistance can be found in the body of case law dealing with accrued federal jurisdiction [Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; Re Wakim; ex parte McNally (1999) 198 CLR 511]. There are three principles affecting accrued jurisdiction which are relevant here in assessing what constitutes the “dispute”. First, the identification of the relevant controversy between the parties is not to be determined only by a consideration that there are separate proceedings which were commenced [Re Wakim; ex parte McNally (1999) 198 CLR 511 at 585 per Gummow and Hayne JJ]. Secondly, the identification of the controversy involves “a matter of impression and of practical judgment” [Fencott v Muller (1983) 152 CLR 570 at 608 per Mason, Murphy, Brennan and Deane JJ]. And thirdly, if proceedings were to be tried in different courts, with conflicting findings made on one or more issues common to two proceedings, this will indicate that there is but a single controversy [Re Wakim; ex parte McNally (1999) 198 CLR 511 at 586 per Gummow and Hayne JJ].

[122] As should be apparent from this judgment, the issues concerning the enforceability of the Caretaking Agreement are ones which almost entirely concern the enforceability and particular effect of the LMA. The possible exceptions are the complaints that the plaintiffs acted wrongly in endeavouring to change the membership of the committee of the body corporate, or more generally in their lobbying of owners for support against the existing committee. Yet even those matters have a connection with the enforceability and effects of the LMA, because the plaintiffs’ conduct, the subject of those complaints, has to be considered by reference to whether they had been wrongly excluded under the LMA.

[123] In substance, this controversy concerned the respective positions of the parties under the LMA, with consequences for their respective positions under the Caretaking Agreement. All of the matters in issue in this litigation should be understood as elements of the one controversy or dispute. In consequence of s 229(4), subss (2) and (3) do not apply in any respect to this litigation, and this court has jurisdiction in all respects.

  1. [56]
    In my view, consistent with the authorities above, the Tribunal has jurisdiction in respect of the counter application. The words “resolve the dispute” in s 149B should not receive a narrow construction. A narrow construction, and the need to litigate aspects of the matter in different courts, would lead to the prospect of inconsistent findings. It could involve additional cost, delay and inconvenience and it may, because of these matters, ultimately mean the parties have neither the will nor the resources fully to agitate the issues between them. The Tribunal’s exclusive jurisdiction over the application would mean that, if a narrow construction were adopted, no court or Tribunal would have jurisdiction to hear all of the matter. There is a considerable overlap of the factual issues between the parties. As Mason, Murphy, Brennan and Deane JJ said in Fencott v Muller, the identification of the controversy involves “a matter of impression and practical judgment.”[35]
  2. [57]
    Here, in my view, there is one dispute with many elements. It is undisputed that the proceeding between Dream Suburbs and the Body Corporate is within the jurisdiction of the Tribunal being a “contractual matter” under s 149B. The counter application by the Body Corporate against Tim Global arises from the circumstances related with the dispute between Dream Suburbs and the Body Corporate, that is, whether the Management Agreement and Letting Agreement are void or voidable due to the circumstances associated with their creation by Tim Global as original owner. Tim Global is, in my view, a necessary party in that respect. Whether the agreements are enforceable necessarily involves consideration of the effect, if any, of the alleged breach of fiduciary duty by Tim Global in entering into or assigning the agreements to Dream Suburbs. If, as the Body Corporate claims, the Management Agreement was to be set aside, there would be no claim by Dream Suburbs for money owed under that agreement. Furthermore, the claim for equitable compensation against Tim Global for breach of fiduciary duty is closely related to the grounds relied upon to set aside the agreement. Moreover, the Body Corporate’s claim for compensation under s 112 against Tim Global is also based on the alleged breach of fiduciary duty. I note in relation to s 112 that s 112(3) provides that a claim for compensation under the provision may be claimed in a proceeding brought in a “court of competent jurisdiction”. I accept the submissions of counsel for the first respondent, that if there is a dispute about s 112 in the context of a dispute before the Tribunal within the meaning of s 149B, then the Tribunal is a court of competent jurisdiction to deal with the question under s 112(3) because contravention of s 112 is in dispute.[36]
  3. [58]
    In my opinion, the claim by the Body Corporate for compensation against Tim Global is so closely related to the claim to set aside the Management Agreement, and the claim to set aside the Management Agreement is so closely related to the claim by Dream Suburbs for money owing under that agreement, that it is desirable and within the jurisdiction of the Tribunal to hear all of the matter together, on the basis that it is necessary to do so in order to resolve the dispute. Whether money is owing to Dream Suburbs depends upon the question of the validity of the management agreement whether due to non-compliance with a Module or owing to a breach of fiduciary duty or its equivalent statutory duty. The resolution of the counter application is essential to determination of the original claim. Further, resolution of the claim and counter application depend, ultimately, on the same transactions and facts that they arise out of a common substratum of facts.[37] 
  4. [59]
    It is therefore preferable, in my view, that they be determined together as part of the one controversy between the parties and within the limits of jurisdiction conferred upon the Tribunal by s 149B to “resolve the dispute”.
  5. [60]
    If the contrary view were taken, and the dispute was considered to be severable or as having distinct parts, there would potentially be two related actions running in different places: the application brought by Dream Suburbs to enforce their rights under the Management Agreement in the Tribunal (in accordance with its exclusive jurisdiction as conferred by s 229) and the counter application by the Body Corporate against Tim Global seeking equitable and statutory compensation for breach of fiduciary duty and to have the agreements set aside in the Supreme Court. I note it was conceded by counsel for the applicant and second respondent that the statutory claim for compensation and the equitable claim for compensation should travel together.[38] I agree with that proposition. I do not agree, however, with the submissions to the effect that the original claim involving whether money was owed under the agreement or had to be paid back can be determined independently of the claim as to whether the agreement is enforceable save in respect of the “very narrow issue of, is the agreement valid and enforceable”.[39] In my view this issue is not “very narrow” and lies at the heart of the dispute. The issues are clearly inter-twined to such a degree that it is preferable that they be determined together. It is costly, inefficient and clearly undesirable to have two related proceedings being determined in different places and, in my view, it is more consistent with the objects of the BCCMA to construe s 149B broadly to avoid this result.
  6. [61]
    Accordingly, I conclude that on the proper construction of s 149B the Tribunal’s jurisdiction to “resolve the dispute” permits the Tribunal to consider all aspects of the dispute, including those raised by the counter application.
  7. [62]
    It follows, that if the Tribunal has jurisdiction for the wider dispute which includes the counter application against Tim Global, that the Tribunal may exercise its powers to declare the contract either valid or void (or voidable) and to make any orders that necessarily flow from that. It also has power to order an injunction which could be a mandatory injunction that the Body Corporate perform its obligation under the contract, or alternatively, that Dream Suburbs pay back any money paid to it under the agreement.
  8. [63]
    A number of other bases for jurisdiction were raised. None, in my respectful view, were such as to give rise to jurisdiction in respect of the counter application.

Does the Tribunal have “accrued jurisdiction” to consider the counter application

  1. [64]
    The expression “accrued” or “pendent” jurisdiction has been used in the context of determining the jurisdiction of the Federal Court to resolve a dispute where the question arising under federal law forms part of a wider controversy between the parties.[40] In those cases the Court saw no harm in the use of the term provided it be borne in mind that, whilst there might be several claims made in litigation, there was but one “matter” and that discretion conferred with respect to that matter is not “discretionary” and ordinarily is to be exercised by the court concerned.[41]
  2. [65]
    The power of the Federal Court to exercise such jurisdiction has been said to rest on constitutional considerations which have no application to State courts. They involve construction of ss 71, 75, 76 and 77 of the Constitution, which are the source of the Federal Parliament’s power to create and confer jurisdiction on a federal court.[42] The section which empowers Parliament to confer jurisdiction enables it to define jurisdiction with respect to “matters”. “Matter” has been held to mean the controversy between the parties and not to be restricted to the Federal claim or cause of action in the proceeding.[43]
  3. [66]
    Importantly, this reasoning upon which the basis of the source of “accrued jurisdiction” in federal courts is largely based, was held by the New South Wales Court of Appeal in National Parks and Wildlife Service v Stables Perisher Pty Ltd[44] to be “completely irrelevant” to a State court of limited jurisdiction.[45] The court held that the jurisdiction of the Land and Environment Court was to be found in the language of the Act which established the court and of any other Act conferring jurisdiction on the court.[46]
  4. [67]
    The reasoning upon which “accrued” or “pendent” jurisdiction is predominantly based, equally has no application to the Tribunal. It would be misleading to apply the term in this context and to use it to extend the jurisdiction of the Tribunal.

Does s 9(4) of the QCAT Act extend the Tribunal’s jurisdiction

  1. [68]
    The jurisdiction of the Tribunal is, as s 9(1) of the QCAT Act provides, to be found in the language of the Act and of any other Act which confers jurisdiction on the Tribunal.

9 JURISDICTION GENERALLY

(1) The tribunal has jurisdiction to deal with matters it is empowered to deal with under this Act or an enabling Act.

(2) Jurisdiction conferred on the tribunal is—

(a) original jurisdiction; or

(b) review jurisdiction; or

(c) appeal jurisdiction.

(3) Without limiting the Acts Interpretation Act 1954 , section 49A , an enabling Act confers jurisdiction on the tribunal to deal with a matter if the enabling Act provides for an application, referral or appeal to be made to the tribunal in relation to the matter.

(4) The tribunal may do all things necessary or convenient for exercising its jurisdiction.

  1. [69]
    Section 9(4) was applied in Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder.[47] Batwing concerned a dispute between the Body Corporate and the on-site manager about the contract between them. Batwing had decided it was no longer going to maintain gardens and lawn beyond the title line which led to the Body Corporate deducting amounts from the monthly remuneration payable to Batwing. Batwing applied to the Tribunal for a mandatory injunction that the Body Corporate pay what had been deducted and refrain from making further deductions. The body corporate counter-claimed, alleging that Batwing was prevented on equitable grounds (equitably estopped) from denying the obligation to maintain areas outside the title line. Batwing argued the counter application was outside the jurisdiction of the Tribunal and should be struck out or transferred to the District (or Supreme) Court. The Body Corporate then applied to have the entire proceedings transferred.
  2. [70]
    In considering whether the Tribunal’s jurisdiction extended to considering the equitable defence, Wilson J held:

The QCAT Act does not expressly bestow equitable jurisdiction upon the Tribunal but it is invested, under s 9, with jurisdiction to deal with matters under the QCAT Act or enabling Acts in original, review or appeal jurisdictions – and, under s 9(4) it is given jurisdiction to “…do all things necessary or convenient for exercising its jurisdiction.”

  1. [71]
    Wilson J held, that based on the objects of the QCAT Act in s 3, the Tribunal’s obligations in s 28 to act quickly and without technicality, the power to grant injunctions and declarations in ss 59 and 60, that the Tribunal had “implied power” to grant the relief on the basis that a grant of power carries with it everything necessary for its exercise. Wilson J referred to s 9(4) and to the word “necessary” which had been held, albeit in a different but similar statutory context, as identifying a power to make orders which are reasonable required or legally ancillary to the accomplishment of specific remedies.
  2. [72]
    Wilson J considered that the different elements of the proceeding formed part of the same proceeding, applying the test applied by the Victorian Court of Appeal in Herald & Weekly Times v Victoria,[48] suggested by the High Court in R v Ross-Jones; ex parte Green.[49]  Wilson J concluded:

….as observed in Tucci, it is readily foreseeable that, in the jurisdiction invested in QCAT by the BCCMA, equitable defences or matters involving equitable issues might from time to time arise.

The grant, to this Tribunal in the QCAT Act, of specific powers to provide traditional equitable remedies under its legislation, read in combination with the clauses discussed earlier, points with sufficient clarity to a construction of the legislation which would empower this Tribunal to address the equitable cross claims raised by the respondent here in a matter where the applicant has brought a claim which plainly, otherwise, falls within the Tribunal’s statutory jurisdiction.

  1. [73]
    A power to do all that is necessary to enable a Tribunal to act effectively within its jurisdiction has been held to be very different from a power in a court of limited jurisdiction to resolve the entire subject matter of a controversy part of which falls within the express jurisdiction of the Tribunal.[50]
  2. [74]
    It is instructive to consider how similar provisions have been construed. Section 22 of the Land and Environment Act 1979 (NSW) (‘LE Act’), which is in the same terms as s 22 of the Federal Court of Australia Act 1976 (Cth) and s 16 of the Supreme Court Act 1970 (NSW) was applied in National Parks and Wildlife Service v Stables Perisher Pty Limited (‘Stables Perisher’).[51] That section (and s 23) provides:

22. The Court shall, in every matter before the Court, grant either
absolutely or on such terms and conditions as the Court thinks just, all
remedies to which any of the parties appears to be entitled in respect of
a legal or equitable claim properly brought forward by him in the
matter, so that, as far as possible, all matters in controversy between the
parties may be completely and finally determined and all multiplicity of
proceedings concerning any of those matters may be avoided.

23. The Court has power, in relation to matters in which it has
jurisdiction, to make orders of such kinds, including interlocutory
orders, as the Court thinks appropriate.

  1. [75]
    Gleeson CJ held:

Although there seems in the past to have been some misapprehension

about the matter, it is now clear, and was common ground on this appeal,

that s 22 of the Act, properly understood, is not a section which confers

jurisdiction upon the Land and Environment Court, or in any way extends

the jurisdiction elsewhere granted to the court. The reason for this is

explained in the judgments of the High Court in Philip Morris Inc v Adam P

Brown Male Fashions Pty Ltd (1981) 148 CLR 457. The High Court was

there considering the operation of s 22 of the Federal Court of Australia Act

1976 (Cth), which is in the same terms as s 22 of the Act, and is in similar

terms to s 16 of the Supreme Court Act 1970. Those provisions have their

origin in s 24(7) of the Judicature Act 1873 (UK) and s 43 of the Supreme

Court of Judicature (Consolidation) Act 1925 (UK). It is well established that

the purpose and effect of such provisions is to constitute a legislative

injunction to a court to the effect that whenever a controversy arises in an

action which can conveniently be determined between the parties to the

action, the court should determine it so as to prevent further and needless

litigation (at 489). The provisions have never been regarded as conferring

jurisdiction. Rather, assuming the existence of a given jurisdiction, a

provision such as s 22 confers power to grant relief in proceedings brought

within such jurisdiction. The section does not amplify the jurisdiction of the

Land and Environment Court. It provides that, where there is jurisdiction, it

is to be fully exercised to secure the object identified in the section.

Section 23, likewise, operates in respect of matters in which the court has

jurisdiction. It does not grant, or extend, jurisdiction.

  1. [76]
    It is noted that following Stables Perisher, s 16(1A) of the LE was introduced. Section 16(1A) of the LE Act provides:

The Court also has jurisdiction to hear and dispose of any matter not

falling within its jurisdiction under any other provision of this Act or

under any other Act, being a matter that is ancillary to a matter that falls

within its jurisdiction under any other provision of this Act or under any

other Act.

  1. [77]
    This provision has been interpreted as allowing cross-claims to be considered which can be seen as plainly “ancillary”, “incidental”, “accessory” or “auxiliary” to the claim within jurisdiction.[52]
  2. [78]
    In my view, s 9(4) is not of the nature of the “ancillary claim” provision in s 16A of the LE Act. Section 9(4), like the provisions in s 22 of the LE Act cannot extend the jurisdiction of the Tribunal. Assuming the existence of a given jurisdiction, s 9(4) confers power to grant relief in proceedings brought within jurisdiction. In other words, it constitutes a “legislative injunction to the court that where there is jurisdiction, it is to be fully exercised”.[53]
  3. [79]
    It follows that s 9(4) cannot be relied upon to extend the jurisdiction of the Tribunal to counter application  in respect of which it does not otherwise have jurisdiction. This is because the section is predicated on the assumption that the Tribunal is “exercising its jurisdiction”. Provided a claim is within jurisdiction, the Tribunal can do all things “necessary or convenient” to deal with it.
  4. [80]
    There is no equivalent provision in the QCAT Act to s 16(1A) of the LE Act which gives the Tribunal added jurisdiction to hear and dispose of matters “ancillary” to a matter within its jurisdiction, notwithstanding the “ancillary” matter is not within jurisdiction.
  5. [81]
    In my view, the Tribunal does not have jurisdiction by virtue of s 9(4) to deal with the counter application.

Does the Tribunal have “inherent jurisdiction” to consider the counter application

  1. [82]
    It has been held that the expression “inherent jurisdiction” has no application to courts created by statute.[54] It is the jurisdiction a court has simply because it is a court of a particular description. For example, the Courts of the Common Law had inherent jurisdiction to prevent abuse of their process and to punish for contempt notwithstanding there was no authorising provision.
  2. [83]
    As was held in Grassby by Dawson J: 

Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as ‘inherent jurisdiction’ which, as the name indicates, requires no authorising provision. Courts of unlimited jurisdiction have ‘inherent jurisdiction’.[55]

  1. [84]
    The concept of “inherent jurisdiction” does not apply to the Tribunal.

Does the Tribunal have implied power to consider the counter application

  1. [85]
    The source of jurisdiction conferred by way of implication was considered by the High Court in Pelechowski v Registrar, Court of Appeal (NSW)[56] where it was held by the majority:

[49] It is against this background that there falls for consideration the submissions with respect to the implied power of the District Court in a case such as the present where a final judgment had been recovered in an action.

[50] Some guidance in the matter is provided by the decision of this court in Grassby v R. It was there held that specific provision upon the subject made in the Justices Act 1902 (NSW) left no room for the implication of a discretionary power to terminate proceedings in a manner other than that provided. The result was that a magistrate had no power to order a stay of committal proceedings as an abuse of process. The leading judgment was given by Dawson J. After referring to the proposition that it is the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power, his Honour continued:

It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise… Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental.

Dawson J concluded that recognition of the existence of the powers which an inferior court must possess by way of necessary implication will be called for:

whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be “derived by implication from statutory provisions conferring particular jurisdiction.

[51]  The term “necessary” in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker, namely, as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term “necessary” does not have the meaning of “essential”; rather it is to be “subjected to the touchstone of reasonableness”.[57]

  1. [86]
    The source of any implied powers here would therefore depend upon a construction of the provision which conferred “particular jurisdiction”, namely, s 149B. In that sense, implied power would extend to the ability to make orders legally ancillary to “an order of QCAT exercising the tribunal’s original jurisdiction to resolve the dispute” or, to make orders “reasonably required” for the effective exercise of its jurisdiction to make orders to “resolve the dispute”.
  2. [87]
    Such an implied power would not, in my view, extend to the grant of jurisdiction in respect of the counter application.

Conclusion

  1. [88]
    The Tribunal does not have “accrued” or “pendent” jurisdiction. There is no “inherent jurisdiction” or general implied power to consider a counter application  outside jurisdiction even if it is related to an application within jurisdiction. Section 9(4) of the QCAT Act does not extend the Tribunal’s jurisdiction but merely permits the Tribunal to do everything it needs to do to exercise the jurisdiction that has been conferred upon it, properly. Finally, there is no need to rely upon any “implied power” conferred by s 149B. That provision expressly provides that the Tribunal may make orders exercising its original jurisdiction to resolve the dispute. This is sufficiently broad to encompass the counter application here.
  2. [89]
    I find that if the Tribunal has jurisdiction in respect of the counter application, that can only be because it has jurisdiction to “resolve the dispute” under s 149B of the BCCMA and the counter application forms part of that dispute. In my view, for the reasons I have given above, the counter application is part of the dispute for the purposes of s 149B.
  3. [90]
    I therefore make the following orders:
    1. The application filed by the applicant and second respondent on 30 May 2019 seeking to strike out the counter application to the extent it seeks relief against the second respondent and to have the second respondent removed from the proceedings is dismissed.
    2. The application filed by the first respondent on 19 August 2019 seeking to have the entire proceedings transferred to the Supreme Court is dismissed.

Footnotes

[1]Application for miscellaneous matters filed by the second respondent on 30 May 2019.

[2]Application for miscellaneous matters filed by the first respondent on 19 August 2019.

[3]National Parks and Wildlife v Stables Perisher Pty Ltd (1990) 20 NSWLR 573, 577 per Gleeson CJ.

[4](1994) 84 LGERA 199, 203.

[5]Herald & Weekly Times Pty Ltd v State of Victoria [2006] VSCA 146, [25].

[6]Re Ross Jones; Ex parte Green (1984) 156 CLR 185.

[7]QCAT Act, s 59.

[8]QCAT Act, s 60.

[9]Both provisions refer to the power being exercised “in a proceeding”.

[10]Statement of Agreed Facts filed 24 July 2019, [4].

[11]Ibid, [5]-[6].

[12]BCCMA, Schedule 6.

[13]  Community Association DP No 270180 v Arrow Management Pty Ltd [2017] NSWSC 527, [225]; Re Steel and Others and the Conveyancing (Strata Titles) Act 1961 (1968) 88 WN (Pt 1) (NSW) 467, 469; Sitting Bear Pty Ltd (receivers and managers appointed) v Body Corporate for Sphere Southport Living [2014] QCATA 360, [83].

[14]  Breen v Williams (1996) 186 CLR 71, 113; Community Association DP No 270180 v Arrow Management Pty Ltd [2017] NSWSC 527, [234].

[15]  Camelot Resources Ltd v MacDonald (1994) 14 ACSR 437, 443-4; Woolworths Ltd v Kelly (1991) 22 NSWLR 189, 207.

[16]  QCAT Act, s 164(1); Owens v Menzies [2013] 2 QdR 327.

[17]  QCAT Act, s 6(2).

[18]  QCAT Act, s 16.

[19]  BCCMA, s 149B.

[20]  BCCMA, Schedule 6.

[21]  Reynolds v Body Corporate for Mount View Apartments [2018] QCAT 283, [21].

[22]  BCCMA, s 229(3).

[23]Tucci v Victorian Civil and Administrative Tribunal [2010] VSC 425, [41]; Herald & Weekly Times Pty Ltd v State of Victoria [2006] VSCA 146, [26].

[24]Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’), Schedule 3.

[25]R v Ross-Jones; Ex parte Green (1984) 56 ALR 609, 625 (per Wilson and Dawson JJ).

[26]Reynolds v Body Corporate for Mount View Apartments [2018] QCAT 283, [47].

[27]Body Corporate and Community Management Act 1991 (‘BCCMA’), s 227(2).

[28]  [2011] QSC 336.

[29]  [2002] QSC 386, [14]-[19]; confirmed on appeal [2003] QCA 329, [12].

[31](1990) 20 NSWLR 573.

[32]National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573, 585-586.

[33]Trojan Resorts Pty Ltd v Body Corporate for the Reserve CTS 31561 [2015] QCAT 337.

[34][2011] QSC 336.

[35](1983) 152 CLR 570 at 608.

[36]T 1-29, 1-30.

[37]Philip Morris Incorporated v Adam Brown Male Fashions Pty Ltd (1981) 148 CLR 457.

[38]  T 1-21.

[39]  Ibid.

[40]Fencott v Muller (1983) 152 CLR 570; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559.

[41]Houghton v Arms [2006] HCA 59, [27].

[42]Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261, 286.

[43]  Ibid, 290.

[44]  (1990) 20 NSWLR 573.

[45]  Ibid, 580.

[46]  Ibid.

[47]  [2011] QCAT 277.

[48]  [2006] VSCA 146.

[49]  (1984) 156 CLR 185.

[50]  Ibid, 581.

[51]  (1990) 20 NSWLR 573.

[52]Scharer v State of New South Wales (2001) 53 NSWLR 299 citing Nix and Dunn v Pittwater Council (1994) 84 LGERA 199, 205.

[53]National Parks and Wildlife v Stables Perisher (1990) 20 NSWLR 573, 578-579.

[54]DJL v The Central Authority (2000) 201 CLR 226, Gleeson CJ, Gaudron, Mc Hugh, Gummow and Hayne JJ, 240-241 [25], Kirby J at [104].

[55]Grassby (1989) 168 CLR 1, 15-16 cited in Director of Public Prosecutions v Shirvanian (1998) 102 A Crim R 180

[56](1999) 198 CLR 435.

[57]Ibid at 451-452.

Close

Editorial Notes

  • Published Case Name:

    Dream Suburbs Pty Ltd ABN 582 477 245 56 v Body Corporate for Persse Palace Community Titles Scheme 48289 & Ors

  • Shortened Case Name:

    Dream Suburbs Pty Ltd v Body Corporate for Persse Palace Community Titles Scheme

  • MNC:

    [2019] QCAT 373

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    25 Nov 2019

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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