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  4. Mirvac Queensland Pty Ltd & Anor v Principal Body Corporate for the Ephraim Island CTS33951 - [2015] QCAT 160

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Mirvac Queensland Pty Ltd & Anor v Principal Body Corporate for the Ephraim Island CTS33951[2015] QCAT 160

Mirvac Queensland Pty Ltd & Anor v Principal Body Corporate for the Ephraim Island CTS33951[2015] QCAT 160

CITATION:

Mirvac Queensland Pty Ltd & Anor v Principal Body Corporate for the Ephraim Island CTS33951 [2015] QCAT 160

PARTIES:

Mirvac Queensland Pty Ltd

Lewiac Land Pty Ltd

(Applicants)

 

v

 

Principal Body Corporate for the Ephraim Island CTS33951

(Respondent)

APPLICATION NUMBER:

OCL058-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

DELIVERED ON:

5 May 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application to be joined to a proceeding is dismissed.

CATCHWORDS:

BODY CORPORATE – COMPLEX DISPUTE – JOINDER – whether discretion to join should be exercised – second joinder application – whether abuse of process – future possible cause of action or indemnity

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 42, s 100, s 102

Body Corporate and Community Management Act 1997 (Qld), s 100, s 112, s 130(6)

Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld), s 42

Comfortable Homes v QBSA [2001] QBT 61

Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241

MGM Containers Pty Ltd v Wockner [2006] QCA 502

Just GI Pty Ltd v Pig Improvement Co Aust Pty Ltd [2001] QCA 48

McNab Constructions Australia Pty Ltd v Donovan Hill Pty Ltd & Ors [2014] QCATA 172

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).

REPRESENTATIVES:

APPLICANT:

Mirvac Queensland Pty Ltd and Lewiac Land Pty Ltd represented by Clayton Utz

RESPONDENT:

Principal Body Corporate for the Ephraim Island CTS 33951 represented by Short Punch & Greatorix

PROPOSED PARTIES:

Larry Mark Lazarides

Maree Therese Lazarides

REASONS FOR DECISION

  1. [1]
    A dispute has arisen under the Caretaking Agreement between Mirvac Queensland Pty Ltd and Lewiac Land Pty Ltd, the Caretaker, and the Principal Body Corporate as to the scope of services under the Caretaking Agreement, in particular whether the performance of landscaping services remain the Caretaker’s obligation,[1] the remuneration to be paid to the Caretaker and whether there are monies owing to or by the Caretaker.
  2. [2]
    Ephraim Island is a layered community title scheme where each member of the Principal Body Corporate represents a different body corporate and there are a large number of lot owners in the scheme.
  3. [3]
    Eleven people who claimed to be lot owners in various subsidiary bodies corporate at Ephraim Island previously sought to be joined as parties to the proceedings.[2] They had each consented in writing for Mr Lazarides to be their spokesman.[3] On 10 December 2014, I dismissed that application. My decision was not appealed.
  4. [4]
    However, Mr and Mrs Lazarides, two of the previous proposed parties, now seek to be joined as parties[4]. The grounds of the application are substantially the same. However, they raise a number of matters, which seek to address discretionary factors, which weighed against the exercise of the discretion and lead to the first joinder application being dismissed.
  5. [5]
    The proposed parties have indicated that they seek to be joined as a respondent.[5]
  6. [6]
    The Caretaker opposes the joinder application. It claims that this application is an abuse of process and seeks costs.
  7. [7]
    No evidence that the Lazarides are lot owners was provided with this second joinder application.[6] They have subsequently provided evidence.
  8. [8]
    The Tribunal may make an order joining a party if it considers the person should be bound by or have the benefit of the decision[7], the person’s interests may be affected[8] or for another reason it is desirable that the person be joined.[9]
  9. [9]
    I previously accepted that lot owners’ interests may be affected by the proceedings[10] for the reasons set out in [3] (a) – (d) of my reasons delivered 10 December 2014 (previous reasons).
  10. [10]
    It is then necessary to consider the second step in a joinder application, which is to determine whether in all the circumstances the discretion conferred should be exercised.[11]
  11. [11]
    The Lazarides have set out in an attachment to the joinder application the substance of their proposed response to the Caretaker’s application. They wish to argue that:
    1. The alleged variation to the Caretaking Agreement is contrary to law having regard to s 100 and s 112 of the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act) and s 42 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld).
    2. There is no basis for estoppel because the Caretaker has not suffered any detriment.
    3. The remedy for further review is contrary to s 130(6) of the BCCM Act.
  12. [12]
    In my previous reasons I observed that

it is open to lot owners to make representations to the Principal Body Corporate as to possible defences and for the Principal Body Corporate to apply to amend its Response if it wishes to rely upon this point.

  1. [13]
    The Lazarides have made such representations. The PBC sent a circular to lot owners informing them of matters raised by the Lazarides[12] as reasons why the application by the Caretaker ought to be opposed.
  2. [14]
    I note that the document entitled “Summary of the Dispute”, attached to the PBC’s circular, discloses some details of a settlement offer from the Caretaker. Usually such offers ought not be disclosed to the Tribunal because they are ‘without prejudice’ communications. The Caretaker has not raised this issue and so I make no orders about the material being redacted or sealed.
  3. [15]
    The Lazarides claim that the PBC resolved to amend its Response to adopt the matters raised by them and subsequently instructed its lawyers to include as part of its Response the matters raised by the Lazarides immediately. They rely upon an email dated 16 February 2015 from a member of the PBC’s legal committee[13] to the PBC’s lawyer.
  4. [16]
    Mr Lazarides is of the opinion that an application for amendment ought to have been brought by the time of this second joinder application. The Lazarides contend that the failure to do so demonstrates there is utility to the joinder.[14]
  5. [17]
    The PBC’s lawyers have noted that matters of instructions are matters between it and the PBC.
  6. [18]
    There are some other, as yet, unspecifed matters raised as possible defences to the Caretaker’s claim, which the Lazarides contend they may also seek to rely upon. They say that because of the structure of the PBC it is not practical for them to raise these possible defences in the way I described in my previous decision and that they should be joined to allow them to raise these unspecified matters for the benefit of lot owners.
  7. [19]
    The inference, which I draw from the submissions, is that the Lazarides:
    1. do not agree with the way the PBC and the PBC’s lawyers are conducting these proceedings because they would conduct the proceedings differently.
    2. are frustrated by the roles, responsibilities and procedures provided for by the BCCM Act.
  8. [20]
    In my previous reasons, I set out the matters relevant to the exercise of the discretion. Those factors have not changed. The discretion to join a party requires a ‘balancing exercise’ of the advantages and disadvantages.[15]
  9. [21]
    There is no significant delay in bringing the joinder application. The proceedings remain at a relatively early stage.
  10. [22]
    In exercising the discretion conferred by s 42 a matter to consider is the objects of the QCAT Act to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[16] Joining parties to proceedings has the potential to complicate issues and prolong proceedings.
  11. [23]
    I consider that joining the proposed parties would further complicate the proceedings and would lengthen the pre-hearing steps[17] and the hearing and increase the cost of the proceedings even though there are now two proposed parties rather than 11 proposed parties.
  12. [24]
    As observed in my previous decision, the Court of Appeal[18] acknowledged that it is appropriate to consider whether the party seeking to join another could bring separate proceedings against that party and whether the issues to be determined between those parties are different to the issues in the primary dispute.
  13. [25]
    I previously found that the proposed parties had not articulated a cause of action or claim for indemnity. The Lazarides now contend that if the PBC does not amend its Response, that they have a possible claim against the PBC to

indemnify them for costs and loss suffered by them (including liability for the special levy)

  1. [26]
    The Lazarides do not seek to be joined so that they can make that possible claim against the PBC and for the issues to be determined in the one proceeding. They seek to be joined so they can raise the possible defence, effectively on behalf of the PBC, so that their possible claim will not come into existence.
  2. [27]
    On balance, having regard to the above factors and the Tribunal’s objects I decline to exercise the discretion.
  3. [28]
    The Lazarides also request the PBC to provide a copy of the resolution made on 10 February 2015 failing which they ‘will seek an order from the Tribunal that it does so’. It is not clear to me whether this, in itself, is intended to constitute an application for such an order.
  4. [29]
    To the extent that it purports to seek such an order it is not clear to me upon what basis such an order is sought. The Lazarides bear the onus of establishing that the Tribunal has power to and ought to exercise its power to make such an order. They have not discharged that onus.
  5. [30]
    I am not satisfied that this second application is an abuse of process. Whilst it is similar, Mr Lazarides has raised additional matters potentially relevant to the exercise of my discretion. Each application ought to be considered on its merits. However, I accept that repeated similar applications may well amount to an abuse of process.
  6. [31]
    The Caretaker’s application for costs is, effectively, predicated upon a finding that this application was an abuse of process.
  7. [32]
    The usual costs order in this Tribunal is that each ‘party to a proceeding’ is to bear their own costs.[19] The Appeal Tribunal has previously found that a proposed party to an unsuccessful joinder application is not a ‘party to a proceeding’.[20] In any event, having regard to the matters set out in s 102 of the QCAT Act I would not be satisfied that the interests of justice required a different order.

Footnotes

[1] The Caretakers contend that there has been a variation by conduct and an agreement to exclude the provision of landscaping services.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 42.

[3] Practice Direction No 1 of 2009.

[4] Application filed 23 March 2015.

[5] Practice Direction No 8 of 2013.

[6] In my previous reasons, I observed that little evidence had been provided on this point.

[7] QCAT Act s 42(1)(a).

[8] Ibid, s 42(1)(b).

[9] Ibid, s 42(1)(c).

[10] Ibid, 42(1)(b).

[11] Comfortable Homes v QBSA [2001] QBT 61; Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241.

[12] The restricted matters and s 130(6) of the BCCM Act regarding reviews of the caretaker’s agreement.

[13] The author of the email also appears to be the Chairperson of the PBC, having regard to the circular.

[14] Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 242.

[15] Just GI Pty Ltd v Pig Improvement Co Aust Pty Ltd [2001] QCA 48.

[16] QCAT Act s 3.

[17] Thereby creating even more delay than has occurred to date.

[18] MGM Containers Pty Ltd v Wockner [2006] QCA 502 at [20].

[19] QCAT Act s 100.

[20] McNab Constructions Australia Pty Ltd v Donovan Hill Pty Ltd & Ors [2014] QCATA 172, under appeal to Court of Appeal.

Close

Editorial Notes

  • Published Case Name:

    Mirvac Queensland Pty Ltd and Lewiac Land Pty Ltd v Principal Body Corporate for the Ephraim Island CTS33951

  • Shortened Case Name:

    Mirvac Queensland Pty Ltd & Anor v Principal Body Corporate for the Ephraim Island CTS33951

  • MNC:

    [2015] QCAT 160

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    05 May 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Comfortable Homes Pty Ltd v QBSA [2001] QBT 61
2 citations
Jump To
Cite 1 - [2001] QBT 61
Cite 2 - [2001] QBT 61
Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241
2 citations
Jump To
Cite 1 - [2012] QCATA 241
Cite 2 - [2012] QCATA 241
Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 242
1 citation
Jump To
Cite 1 - [2012] QCATA 242
Just GI Pty Ltd v Pig Improvement Company Australia Pty Ltd [2001] QCA 48
2 citations
Jump To
Cite 1 - [2001] QCA 48
Cite 2 - [2001] QCA 48
McNab Constructions Australia Pty Ltd v Donovan Hill Pty Ltd & Ors [2014] QCATA 172
2 citations
Jump To
Cite 1 - [2014] QCATA 172
Cite 2 - [2014] QCATA 172
MGM Containers Pty Ltd v Wockner [2006] QCA 502
2 citations
Jump To
Cite 1 - [2006] QCA 502
Cite 2 - [2006] QCA 502

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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