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Peterson Management Services Pty Ltd v Body Corporate for The Rocks Resort[2015] QCAT 255

Peterson Management Services Pty Ltd v Body Corporate for The Rocks Resort[2015] QCAT 255

CITATION:

Peterson Management Services Pty Ltd v Body Corporate for The Rocks Resort [2015] QCAT 255

PARTIES:

Peterson Management Services Pty Ltd (ACN 094 234 474)

(Applicant)

 

v

 

Body Corporate for The Rocks Resort Community Titles Scheme 9435

(Respondent)

APPLICATION NUMBER:

OCL190-10

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

19 June 2014

4, 5, 6,12,14 August 2014

14, 27, 29, 30 October 2014

HEARD AT:

Brisbane

DECISION OF:

Member Favell

DELIVERED ON:

21 May 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. [1]
    The Tribunal Declares:
    1. The Remedial Action Notice (Number 1) issued to Peterson Management Services Pty Ltd on 18 June 2010 is invalid and of no effect.
    2. The Remedial Action Notice (Number 2) issued to Peterson Management Services Pty Ltd on 29 July 2010 is invalid and of no effect.
    3. The Remedial Action Notice (Number 3) issued to Peterson Management Services Pty Ltd on 29 July 2010 is invalid and of no effect.
    4. The Remedial Action Notice (Number 4) issued to Peterson Management Services Pty Ltd on 24 August 2010 is invalid and of no effect.
    5. The Remedial Action Notice (Number 5) issued to Peterson Management Services Pty Ltd on 17 September 2010 is invalid and of no effect.
    6. The Remedial Action Notice (Number 6) issued to Peterson Management Services Pty Ltd on 17 September 2010 is invalid and of no effect.
    7. The Remedial Action Notice (Number 7) issued to Peterson Management Services Pty Ltd on 6 October 2010 is invalid and of no effect.
    8. The Remedial Action Notice (Number 8) issued to Peterson Management Services Pty Ltd on 7 October 2010 is invalid and of no effect.
  2. [2]
    The parties may make written submissions as to any costs order sought after notice that a costs order is sought is filed in the Tribunal and served on the other party. In the event a costs order is sought the party seeking costs shall file in the Tribunal and serve on the other party written submissions within 7 days of filing and serving any notice a costs order is sought. The other party may file and serve any written submissions in response within 14 days of being served with the written costs submissions. The costs application will then be determined on the papers.

CATCHWORDS:

Body Corporate-Disputes between Body Corporate and Residential Manager and caretaker-where Remedial Action Notices given- Whether Remedial Action Notices valid- whether Notices given stated “that the person must, within the period stated in the Notice but not less than 14 days after” the notice was given the person should rectify or remedy.

Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld) s 129

Body Corporate and Community Management Act 1997 (Qld) Schedule 2

Peterson Management Services Pty Ltd v Body Corporate for the Rocks Resort CTS 9435 [2013] QCAT, [1].

Peterson Management Services Pty Ltd v Body Corporate for the Rocks Resort CTS 9435 [2013] QCAT, [2].

Peterson Management Services Pty Ltd (ACN 094 234 474) as trustee for the Peterson Family Trust v Body Corporate for the Rocks Resort Community Title Scheme 9435 (No. 1) [2014] QCAT 541

Peterson Management Services Pty Ltd (ACN 094 234 474) as trustee for the Peterson Family Trust v Body Corporate for the Rocks Resort Community Title Scheme 9435 (No. 2) [2014] QCAT 542

Peterson Management Services Pty Ltd v Body Corporate for the Rocks Resort CTS 9435 [2013] QCAT, [3].

Seed, F & J v Body Corporate for Renaissance Golden Beach CTS 31880 [2011] QCAT 246 Batwing Resorts Pty Ltd v Body Corporate for liberty on Tedder [2011] QCAT 277

SCV Group Limited v Body Corporate for Parkview Gardens [2011] QCAT 299

Harvard Investments v Body Corporate [2013] QCAT 254

Wadiwel v Algester Gardens Body Corporate [2011] QCAT 49

P&M Productions Pty Ltd v Elders Leasing Limited [1992] 1QdR 264

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Benjamin Kidston instructed by Mahoneys Solicitors

RESPONDENT:

Deborah Kerr, Greg Melloy authorised by the Body Corporate committee

REASONS FOR DECISION 

  1. [1]
    Peterson Management Services Pty Ltd was appointed the caretaking services contractor for the Rocks Resort Community Title Scheme 9435 pursuant to two contracts, the first titled “Caretaking Agreement” and the second “Maintenance Agreement”. Both contracts were entered into on 12 September 2003. The building complex that is the subject of the agreements is 33 years old.
  2. [2]
    The relationship between the parties has been subject to dispute and in 2010 the Rocks Resort served Peterson Management with a number of Remedial Action Notices[1] (RAN) requiring the company to remedy the alleged breaches or carry out the duties, which were alleged to have not been carried out.[2]
  3. [3]
    Peterson Management must fail to comply with a RAN before the Rocks resort may take action to terminate their services under the agreements[3].[4]
  4. [4]
    Peterson Management made an application to the Tribunal on 22 December 2010 for relief including declarations as to the validity of the notices and a declaration that the company had complied with them. It also sought damages for breaches of obligations which were alleged to be owed by the Rocks Resort to Peterson Management under the Body Corporate and Community Management Act 1997 (Qld), the Accommodation Module and the agreement.
  5. [5]
    It is noted that at the time of the Peterson Management application the Rocks Resort had taken no action to terminate either of the agreements in reliance on the notices.  It is, however, clear from correspondence that Rocks Resort had reserved its rights to initiate the termination of the agreements.[5]
  6. [6]
    The application filed by Peterson Management consisted of many hundreds of pages. The response and further material has now grown considerably. No complaint has been left unturned. Every point was agitated by the parties. Since 2010 the matter has had some considerable history. It has been the subject of numerous applications and directions.[6]
  7. [7]
    On 5 March 2013, the Tribunal dismissed the claims in respect of damages for breach of contract and breach of statutory duty. Leave was granted to Peterson Management Services Pty Ltd to file a further amended application which incorporated the claims in respect of:
    1. i)
       The validity of eight remedial action notices,
    2. ii)
       Compliance with eight remedial action notices, and
    3. iii)
       Reimbursement of the sum of $15,006.20 on or before 4.00pm on 30 October 2013.
  1. [8]
    It seeks declarations in respect of each of the remedial action notices. The declarations sought are:
    1. the notice, to the extent it purports to be a remedial action notice for the purpose of section 129 of the Accommodation Module 2008, is invalid and of no effect: and, or alternatively
    2. the applicant has complied with the notice; and, or alternatively
    3. the respondent is not entitled to terminate the agreement (caretaking or maintenance) in reliance on the notice.
  2. [9]
    The respondent body corporate denies there were any defects in the notices, the notices were complied with and says it is entitled to rely on each notice to terminate the agreements.
  1. [10]
    The respondent also seeks declarations;
    1. that the remedial action notices were and are valid for the purposes of the agreements and for the purpose of section 129(4) of the Body Corporate and Community Management (Accommodation Module) Regulations 2008;
    2. that the breaches contained in the remedial action notices were not remedied within the time limited by the notices in which they were contained;
    3. that the applicant has been grossly negligent in its performance or non performance of the duties under the agreements or any of them;
    4. that the applicant has committed gross misconduct in its performance or non performance of the duties under the agreements or any of them.
  1. [11]
    The term “gross misconduct” is not defined in the relevant legislation or the agreements.
  1. [12]
    The term “gross negligence” is not defined in the relevant legislation or the agreements.
  1. [13]
    The Body Corporate contended that the whenever there was a breach of the agreements there was misconduct and gross negligence.
  1. [14]
    The Body Corporate also sought findings that in respect of “suspected” alleged breaches of the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA) the applicant breached the PAMDA; breached the Letting Agents Code of Conduct; breached the letting agreement; was grossly negligent in its performance of the duties under the letting agreement and had committed gross misconduct in its performance or non performance of the duties under the letting agreement. The relief sought amounts to declarations of gross negligence and gross misconduct.
  1. [15]
    The applicant contends that the Tribunal should determine whether the various parties who purported to represent the Body Corporate had authority to represent the Body Corporate. It contends that if it is found they did not have the authority the tribunal need not descend into further consideration of the substantial matters in dispute. In my view that result does not follow. In any event it is a matter for the Body Corporate to raise that issue if it did not authorise the response and counter application.
  1. [16]
    On or about June 18 2010 a Remedial Action Notice (the first RAN) issued complaining that Peterson Management breached clause 5.3(n) of the Caretaking Agreement and clause 5.3(d) of the Maintenance Agreement by failing to comply with two written instructions (the directions) to have its key personnel attend a meeting with persons from Trade Facilities Management Pty Ltd for the purpose of induction and consultation on a new operations manual the Body Corporate wished to implement at the Scheme.
  1. [17]
    The Body Corporate admitted[7] the allegation by Peterson Management Services that:

The directions do not constitute, on their proper construction:

  1. A request to supervise the carrying out of the task;
  2. A request to carry out a reasonable task;
  3. A request to carry out an appropriate task; and, or alternatively;
  4. A request to carry out a reasonable and appropriate task.
  1. [18]
    That being so, Peterson Management Services pleaded that as at the date of the first notice committee resolution, it was not in breach of clause 5.3(n) of the Caretaking Agreement and was not in breach of clause 5.3(d) of the Maintenance Agreement.
  1. [19]
    The Body Corporate denies that allegation. It says that, notwithstanding the validity of the first Remedial Action Notice, the applicant was in breach of the Caretaking Agreement and the Maintenance Agreement generally and in particular, clause 5.3(n) of the Caretaking Agreement and clause 5.3(d) of the Maintenance Agreement.
  1. [20]
    The Body Corporate admitted[8] that the first notice, to the extent it purports to be a Remedial Action Notice, is invalid and of no effect and that it had not given Peterson Management Services a Remedial Action Notice within the meaning of section 131 or otherwise of the Accommodation Module 2008.
  1. [21]
    It also admitted that it is not lawfully entitled to act pursuant to section 131 of the Accommodation Module 2008 (or otherwise) in reliance on the first notice to terminate:
    1.  The Caretaking Agreement; and or alternatively,
    2.  The Maintenance Agreement.
  1. [22]
    In respect of the first notice, Peterson Management Services seeks a declaration that the first notice,
  1. (a)
    to the extent it purports to be a Remedial Action Notice for the purpose of section 129 of the Accommodation Module 2008 is invalid and of no effect; and or alternatively
  1. (b)
    it has complied with the first notice; and or alternatively
  1. (c)
    the Body Corporate is not entitled to terminate the Caretaking Agreement in reliance on the first notice.
  1. [23]
    The Body Corporate during the hearing sought to withdraw the admissions made. Those admissions had been made at a time when the Body Corporate had legal representation. In support of that application the Body Corporate filed an affidavit of their former solicitor. It did not however, provide any persuasive reason for the proposed change in pleading. The application was made very late and it does not appropriately address why the admission should be withdrawn or why it was inappropriately made. In my view the Body Corporate has not provided any valid reason for withdrawing the admission.  
  1. [24]
    In my view, because of the admissions made, Peterson Management Services is entitled to a declaration that the first notice is invalid and of no effect and the Body Corporate is not entitled to terminate the Caretaking agreement in reliance of it.

JURISDICTION

  1. [25]
    This Tribunal has jurisdiction to deal with matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) or an enabling Act.[9]
  1. [26]
    The Tribunal may make a declaration about a matter in a proceeding instead of making an order it could make about the matter or in addition to an order it could make about the matter.[10]
  1. [27]
    It may make an order it considers necessary or desirable to give effect to a declaration under section 60(1) and the power under that subsection is, in addition to and does not limit, any power of the Tribunal under an enabling Act to make a declaration.
  1. [28]
    The Body Corporate and Community Management Act 1997 (Qld) in section 149B allows a party to a dispute about a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or caretaking service contractor for a community title scheme or the authorisation of a person as a letting agent for a community title scheme to apply as provided under the QCAT Act for an order of QCAT exercising the Tribunal’s original jurisdiction to resolve the dispute.[11]
  1. [29]
    Both the Body Corporate and Peterson Management Services contend that the matters pleaded in the amended application concern disputes about a claimed or anticipated contractual matter about the engagement of a person as a caretaking service contractor for a community title scheme within the meaning and operation of section 149B of the BCCM Act and hence QCAT has jurisdiction to determine this dispute.

Notice to remedy breach 1

  1. [30]
    The respondent issued written instructions on 17 and 18 June 2010 to the applicant requiring the applicant’s key personnel to attend a meeting at 10 am on 23 June 2010 with Trade Facilities Management Pty Ltd for a period of 2 hours at the complex for the purposes of assisting with a preliminary induction and consultation on a new operations manual.
  1. [31]
    The applicant refused to attend.
  1. [32]
    The body corporate alleged that the applicant had then breached clause 5.3(n) of the Caretaking Agreement and clause 5.3(d) of the Maintenance Agreement.
  1. [33]
    Clause 5.3(n) of the Caretaking Agreement provides:

The caretaker must supervise the carrying out of such other reasonable and appropriate tasks requested by the Body Corporate relevant to the caretaking of the common property.

  1. [34]
    Clause 5.3(d) of the Maintenance Agreement provides:

The contractor must –

(d) carry out such other reasonable and appropriate tasks requested by the Body Corporate or the manager relevant to the maintenance of the common property.

  1. [35]
    For there to be a breach of Clause 5.3(n) of the Caretaking Agreement there must be a failure to supervise the carrying out of reasonable and appropriate tasks requested by the body corporate relevant to the caretaking of the common property which were tasks other than those required by clause 5.3 (a) –(m).
  1. [36]
    For there to be a breach of Clause 5.3(d) of the Maintenance Agreement there must be a failure to carry out reasonable and appropriate tasks requested by the body corporate or the manager relevant to the maintenance of the common property which were tasks other than those required by Clause 5.3 (a)-(c).
  1. [37]
    The requirement to attend at the meeting had to be relevant to the caretaking of the property and the maintenance of the common property.
  1. [38]
    The applicant contends that the directions are not on, a proper construction, a request to supervise the carrying out of a task, a request to carry out a reasonable task, a request to carry out an appropriate task or a request to carry out a reasonable and appropriate task.
  1. [39]
    The applicant also contends that there were defects in the first notice in that it was at the time the notice was issued a redundant complaint in that the alleged contraventions existed but had been re-mediated prior to the notice issuing or can only be remedied by an undertaking not to repeat the contravention or never existed.
  1. [40]
    The applicant also contends that the notice suffered from a re-mediation defect in that the notice is so vague or lacking in particulars that it is unclear what action, duty was to be carried out.

Remedial Action Notice 2

  1. [41]
    On or about 29 July 2010 the Body Corporate purported to issue to Peterson Management Services a Remedial Action Notice pursuant to section 129 of the Accommodation Module 2008 (the second notice). The second notice complained of 21 matters which can be described as follows:
    1. The lock maintenance complaint;
    2. The garden maintenance complaint;
    3. The timber maintenance complaint;
    4. The driveway cleaning complaint;
    5. The lift cleaning complaint;
    6. The information compilation complaint;
    7. The pool and spa complaint;
    8. The electrical testing quotation complaint;
    9. The rubbish removal complaint;
    10. The storm water drain complaint;
    11. The building condition reporting complaint;
    12. The pipe work complaint;
    13. The electrical standards complaint;
    14. The stormwater pit complaint;
    15. The pumps service history complaint;
    16. The pool and spa service history complaint;
    17. The hydrant room complaint;
    18. The garbage room complaint;
    19. The service cupboard complaint;
    20. The entry steps and driveway complaint; and
    21. The subcontractor complaint.
  1. [42]
    Relying on those complaints, the Body Corporate contended that Peterson Management Services had breached clauses 5.1(b), (h), 5.3(b)(i) and (d) of the Maintenance Agreement and clause 5.3(b), (iii), 5.1(e), 5.1(c), 3(b)(i) and clause 6 of the Code of Conduct.
  1. [43]
    Relevantly, clause 5.1 provides:

In addition to the specific duties set out in the schedule to this agreement the Contractor must as reasonably required –

  1. (b)
    keep clean, tidy and maintain all parts of the common area;

  (c) maintain and clean any swimming pool, spa and/or sauna

  (e) clean any drains and gutters on common property;

  1. (h)
    effect minor repairs and maintenance to the common property where the services of a skilled tradesperson are not required.
  1. [44]
    Relevantly, clause 5.3 provides

 The contractor must –

  1. (b)
    promptly report and account to the Body Corporate or the manager for –

  (i) matters requiring repair regarding a hazard or danger;

  (ii) use by the contractor of any Body Corporate funds; and

  1. (iii)
    use by the contractor of any other property of the Body Corporate in carrying out the maintenance duties.
  1. (d)
    carry out such other reasonable and appropriate tasks requested by the Body Corporate or the manager relevant to the maintenance of the common property.
  1. [45]
    Clause 6 of the Code of Conduct for Body Corporate managers and caretaking service contractors in schedule 2 to the Body Corporate and Community Management Act 1997 provides:

A Body Corporate manager or caretaking service contractor must take reasonable steps to ensure an employee of the person complies with this Act, including this Code, in performing the person’s functions under the person’s engagement.

Remedial action notice 3

  1. [46]
    The third remedial action notice contained 33 complaints. If the RAN was valid it would be necessary to determine whether the applicant had acted in a way mentioned in section 129(1)(a), (b) or (c) of the Accommodation Module 2008, which amounted to misconduct or gross negligence, was a breach of clause 5, 5.1, 5.3, 7.2 or otherwise of the Care-taking Agreement or breached clause 2, 3, 4, 5 or 6 of the Code of Conduct.
  1. [47]
    The complaints were:
  1.  The lock maintenance complaint
  1.  The garden maintenance complaint
  1.  The timber maintenance complaint
  1.  The Driveway cleaning complaint
  1.  The lift cleaning complaint
  1.  The balcony appearance complaint
  1.  The occupier statement complaint
  1.  The information compilation complaint
  1.  The pool and spa complaint
  1.  The electrical testing quotation complaint
  1.  The rubbish removal complaint
  1.  The storm water drain complaint
  1.  The key security complaint
  1.  The body corporate record maintenance complaint.
  1.  The supervision complaint
  1.  The building condition report complaint
  1.  The fire safety requirements notification complaint
  1.  The common property OH&S system complaint
  1.  The security reporting complaint
  1.  The common property complaint
  1.  The electrical standards compliance complaint
  1.  The fire regulations compliance complaint
  1.  The basement storm water pit and pollutant trap complaint
  1.  The pumps service history complaint
  1.  The pool and spa service history complaint
  1.  The hydrant room and maintenance service history complaint
  1.  The fire protection records and compliance testing complaint
  1.  The garbage room cleaning complaint
  1.  The service cupboard maintenance complaint
  1.  The entry steps and driveway complaint
  1.  The vending machine and infrastructure complaint
  1.  The sub-contractor material and labour costs complaint

Remedial Action Notice 4

  1. [48]
    The Fourth RAN was, in part, concerned with an alleged failure to report to the body corporate in respect of matters in checklists contained in a building operations manual given to the caretaker by the committee.
  1. [49]
    It was also concerned with an alleged failure to report a potential hazard. The potential hazard was identified as “risks that the doors may contain asbestos despite being aware of this risk from at least early 2009 upon receipt of the GK consulting report”.
  1. [50]
    The notice then alleged, without further particulars, that the applicant failed to comply with the Workplace Health and Safety Act and regulations by failing to comply with the Asbestos Management Code 2005. It also alleged that applicant failed to advise the body corporate of a requirement to comply with such requirements.

Remedial Action Notice 5

  1. [51]
    The fifth notice was concerned with five alleged breaches namely a failure to maintain the gardens, a failure to clean Garbage rooms and garage door, a failure to clean lifts, a failure to attend to minor repairs and a failure to maintain pool records.

Remedial Action Notice 6

  1. [52]
    The sixth RAN notice asserted conduct said to be a breach of section 129(1)(a),(b) and (c) of the accommodation module. There were 11 alleged breaches:
    1.  Failure to attend Committee Meeting
    2. Failure to advise the body corporate regarding compliance with laws
    3. Failure to advise the body corporate of breach of laws and potential hazard
    4. Failure to comply with Committee Directions regarding expenditure
    5.  Failure to maintain the gardens
    6.  Failure to clean Garbage Rooms and Garage door
    7.  Failure to clean lifts
    8.  Failure to attend to minor repairs
    9.  Failure to comply with reasonable request
    10.  Failure to report fire safety hazard
    11.  Failure to Maintain Pool Records

Remedial Action Notice 7

  1. [53]
    The seventh RAN alleges that the making of statements about committee and committee representatives said to be defamatory amounts to conduct breaching section 129(1)(a), (b) and (c) of the Accommodation Module.
  1. [54]
    It also alleged that a failure to properly supervise a contractor to the extent that the contractor has failed to attend to cleaning and maintenance duties under the maintenance agreement and the caretaker has without justification or authority of the body corporate engaged third party contractors to perform the duties required to be completed by the contractor and then caused the contractors to bill the body corporate and/or the caretaker has sought reimbursement from the body corporate for amounts incurred by the caretaker for duties that the contractor should have performed at no extra cost to the body corporate.
  1. [55]
    The notice alleges that various documents published by the caretaker were defamatory of the committee and “the committee representative”. It refers to various documents namely:
    1.  the March 2010 Newsletter;
    2. letter dated 4 June 2010 from the caretaker to the body corporate with the subject line “Misconduct of Ms Deborah Kelly”;
    3. letter dated 8 June 2010 from the caretaker to the body corporate with the subject line “misconduct of Ms Deborah Kelly- broken window 3j”;
    4.  Rocks Resort Newsletter Issue 2, August 2010;
    5.  Owners Circular September 2010.
  1. [56]
    The notice sets out what could be construed as imputations said to arise from the words used. Other than Ms Kelly, no other person is identified. The notice does not purport to plead defamation as would usually be expected in a properly constructed pleading alleging defamation.
  1. [57]
    No attempt has been made to prove the defamations alleged. The allegations of defamations have not sought to be defended as would be expected in a defamation action.
  1. [58]
    If the statements were proved there would be a need to prove that the imputations were published to a third person, were of and concerning a particular person or exempted corporation under the Defamation Act 2005 and were defamatory of that person or corporation. Whether the defamation was justified or excused is a separate matter which has not been litigated here.
  1. [59]
    In my view, in this Tribunal it is not within the jurisdiction to determine those matters. In any event the alleged defamations have in my view not been proved.
  1. [60]
    Further, the alleged defamations do not amount to misconduct or gross negligence in the carrying out a function required under the engagement of the caretaker. No function required under the engagement has been identified as relevant to this notice.
  1. [61]
    The alleged defamations do not amount to a failure to carry out a duty under the engagement.
  1. [62]
    The alleged defamations do not amount to a contravention of the relevant code of conduct.

Remedial Action Notice 8

  1. [63]
    The eighth notice alleged that Mr Frank Petersen acted in an abusive and aggressive manner to the committee and committee representatives.
  1. [64]
    This matter has been long and protracted. The amended application was reduced to 127 pages. The response and counter-application was 89 paragraphs. The written submission of the applicant is 187 pages and the written submissions of the respondent are over 77 pages with annexures. All of the requirements of section 129 of the Accommodation Module have been raised and contested. The validity of the RANs is in issue.
  1. [65]
    A commencing point to determine the validity of the RANs is to determine whether the RANs complied with the requirements of Section 129 for the necessary statements required to be given.

Validity of the RANs

  1. [66]
    Section 129 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 provides:

Termination for failure to comply with Remedial Action Notice

  1. (1)
    The Body Corporate may terminate a person’s engagement as a Body Corporate caretaker or service contractor if the person (including, if the person is a corporation, a director of the corporation) –
  1. (a)
    engages in misconduct, or is grossly negligent in carrying out functions required under the engagement; or

 (b) fails to carry out duties under the engagement; or

 (c) contravenes –

  1. (i)
    for the Body Corporate caretaker – the Code of Conduct for Body Corporate caretakers and caretaking service contractors; or
  1. (ii)
    for a service contractor who is a caretaking service contractor – the Code of Conduct for Body Corporate caretakers and caretaking service contractors, or the Code of Conduct for letting agents; or…

 (2) …

 (3) The Body Corporate may act under subsection (1) or (2) only if –

  1. (a)
    the Body Corporate has given the persona Remedial Action Notice in accordance with subsection (4); and
  1. (b)
    the person fails to comply with the Remedial Action Notice within the period stated in the Notice; and
  1. (c)
    the termination is approved by ordinary resolution of the Body Corporate; and
  1. (d)
    for the termination of a person’s engagement as a service contractor if the person is a caretaking service contractor, or the termination of a person’s authorisation as a letting agent – the motion to approve the termination is decided by secret ballot.
  1. (4)
    For subsection (3), a Remedial Action Notice is a written notice stating each of the following:
  1. (a)
    that the Body Corporate believes the person has acted –
  1. (i)
    for a Body Corporate caretaker or a service contractor – in a way mentioned in subsection (1)(a), (2)(e); or
  1. (ii)
    for a letting agent - in a way mentioned in subsection (2)(a), (2)(d).

   (b) details of the action sufficient to identify –

  1. (i)
    the misconduct or gross negligence the Body Corporate believes has happened; or
  1. (ii)
    the duties the Body Corporate believes have not been carried out; or
  1. (iii)
    the provision of the Code of Conduct or the Regulation the Body Corporate believes has been contravened
  1. (c)
    that the person must, within the period stated in the Notice but not less than 14 days after the Notice is given to the person –
  1. (i)
    remedy the misconduct or gross negligence; or

    (ii) carry out the duties; or

    (iii) remedy the contravention

  1. (d)
    that if the person does not comply with the Notice in the stated period the Body Corporate may terminate the engagement or the authorisation.
  1. [67]
    Each of the eight RANs follows the same format. Each of them has a definitions section and a Notice that the Body Corporate gives the caretaker Notice pursuant to section 129 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 and clause 9 of the Caretaking Agreement of the matters that are then set out in the Notices.
  1. [68]
    There is a statement in each case that the Body Corporate believes that the caretaker has acted in a way mentioned in section 129(1)(a), (b) and (c) of the Accommodation Module. They then seek to set out various breaches that they rely on to found the notice such as to identify the misconduct or gross negligence the Body Corporate believes has happened or the duties the Body Corporate believes have not been carried out. They also seek to identify the provision of the Code of Conduct or the Regulation the Body Corporate believes has been contravened.
  1. [69]
    In each RAN number 2 to 8, the statement is made that:

“The caretaker must within 14 days of being served with a copy of this Notice:

  1. (a)
    remedy the misconduct or gross negligence;
  1. (b)
    carry out the duties;
  1. (c)
    remedy the contravention of the Code of Conduct; and/or
  1. (d)
    remedy the breach of the Caretaking Agreement.

with respect to the matters complained of by the Body Corporate in this Notice.”

  1. [70]
    The Notice then goes on to state, “If the caretaker does not comply with the direction [insert paragraph number] within the period stated, then the Body Corporate may without further notice, put a motion to its members in general meeting to terminate the Caretaking Agreement.”
  1. [71]
    As identified earlier, it is a requirement that a RAN in accordance with section 129(4) be given if it is to enliven the power of the Body Corporate to terminate an engagement as a Body Corporate caretaker.
  1. [72]
    I note that section 38 of the Acts Interpretation Act 1954 (Qld) provides that if a period beginning on a given day, act or event is provided or allowed for a purpose by an Act the period is to calculated by excluding the day or the day of the act or event and if the period is expressed to be a specified number of clear days or at least a specified number of days- by excluding the day on which the purpose is to be fulfilled.
  1. [73]
    In my view, a Remedial Action Notice as required by section 129(4) has not been given because each notice contains a statement which is not a statement “that the person must, within the period stated in the notice but not less than 14 days after the notice is given to the person” remedy the misconduct or gross negligence or carry out the duties or remedy the contravention.
  1. [74]
    Under section 129(4) the trigger for the calculation of the minimum period for rectification is the giving of the notice and once the notice is given the person can not be required to rectify until 14 days have expired. The words “not less than 14 days” refer to the “period stated in the notice”. That period accordingly must be greater than 14 days. As an example, if the RAN was given on the first of a month then it is not until the 15th of the month that 14 days have expired. To require rectification “within” 14 days is a requirement that requires rectification in a period “less than 14 days”, that is, it requires rectification before 14 days have passed.
  1. [75]
    A notice cannot require rectification within the 14 day period. It may allow rectification within that period but it cannot require rectification in the 14 day period.
  1. [76]
    I accept that the “word “within” in relation to a period of time does not usually mean “during” or “throughout the whole of”: it is more frequently used to delimit a period “inside which” certain events may happen”….Ordinarily in the context in which it was used the word “within” would merely provide the limits of the period of time within which” something should occur.[12] 
  1. [77]
    A notice which requires a person to rectify by stating “must within 14 days of being served with a copy of this notice” requires that person to rectify before 14 days have expired.
  1. [78]
    The Body Corporate submitted that the expression “within 14 days” means the same as “not less than 14 days”. To express the issue in that manner ignores the words “after the notice is given”. That phrase is qualified by the expression “but not less than 14 days”. The issue is whether the notice requires rectification before 14 days have expired.
  1. [79]
    The correct meaning and effect of the words in the module is that there must not be a requirement to rectify until 14 days after the notice is given has expired.
  1. [80]
    A requirement to rectify within 14 days offends that meaning.
  1. [81]
    The notice that was given requires the caretaker to remedy the misconduct or gross negligence or carry out the duties or remedy the contravention in a period less than 14 days after the notice is given to the person. That is contrary to the requirement of section 129(4)(c) and accordingly the notices in each of the eight instances were not a Remedial Action Notice as required by section 129.
  1. [82]
    Further, the statement “if the caretaker does not comply with the direction… within the period stated, then the Body Corporate may without further notice, put a motion to its members in general meeting to terminate the Caretaking Agreement” is not a statement “that if the person does not comply with the notice in the period stated, the Body Corporate may terminate the engagement or authorisation” as required by section 129(4)(d).
  1. [83]
    For the reasons set out herein it is appropriate to declare each of the Remedial Action Notices invalid for the purposes of section 129 of the Accommodation Module and of no effect.
  1. [84]
    Because the Remedial Action Notices are declared invalid it is not necessary or appropriate to determine the other issues raised which concern the Notices.
  1. [85]
    The declarations sought by the Body Corporate are meant to address whether the Remedial Action Notices were appropriately given, in that, in so far as section 129 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 allows the notice to be based on misconduct, gross negligence in carrying out functions, a failure to carry out duties under the engagement or contravention of the Code of Conduct for the Body Corporate Manager.
  1. [86]
    Given that the validity of the Remedial Action Notices had failed because they did not comply with the mandatory requirement of section 129(4)(c) of the Accommodation Module that the notice must amongst other things state “that the person must within the period stated in the notice but not less than 14 days after the notice is given to the person”, it is not necessary or appropriate to make the declarations sought by the Body Corporate.
  1. [87]
    The declarations made are:
    1.  The Remedial Action Notice (Number 1) issued to Peterson Management Services Pty Ltd on 18 June 2010 is invalid and of no effect.
    2.  The Remedial Action Notice (Number 2) issued to Peterson Management Services Pty Ltd on 29 July 2010 is invalid and of no effect.
    3.  The Remedial Action Notice (Number 3) issued to Peterson Management Services Pty Ltd on 29 July 2010 is invalid and of no effect.
    4.  The Remedial Action Notice (Number 4) issued to Peterson Management Services Pty Ltd on 24 August 2010 is invalid and of no effect.
    5.  The Remedial Action Notice (Number 5) issued to Peterson Management Services Pty Ltd on 17 September 2010 is invalid and of no effect.
    6.  The Remedial Action Notice (Number 6) issued to Peterson Management Services Pty Ltd on 17 September 2010 is invalid and of no effect.
    7.  The Remedial Action Notice (Number 7) issued to Peterson Management Services Pty Ltd on 6 October 2010 is invalid and of no effect.
    8.  The Remedial Action Notice (Number 8) issued to Peterson Management Services Pty Ltd on 7 October 2010 is invalid and of no effect.
  1. [88]
    The parties have sought costs.
  1. [89]
    The parties may make written submissions as to costs order sought after notice that a costs order is sought is filed in the Tribunal and served on the other party. In the event a costs order is sought the party seeking costs shall file in the Tribunal and serve on the other party written submissions within 7 days of filing and serving any notice a costs order is sought. The other party may file and serve any written submissions in response within 14 days of being served with the written costs submissions. The costs application will then be determined on the papers.

Footnotes

[1] Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld) s 129.

[2] Body Corporate and Community Management Act 1997 (Qld) Schedule 2.

[3] Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld) ss 129(1).

[4] Peterson Management Services Pty Ltd v Body Corporate for the Rocks Resort CTS 9435 [2013] QCAT, [1].

[5] Peterson Management Services Pty Ltd v Body Corporate for the Rocks Resort CTS 9435 [2013] QCAT, [2].

[6] Peterson Management Services Pty Ltd (ACN 094 234 474) as trustee for the Peterson Family Trust v Body Corporate for the Rocks Resort Community Title Scheme 9435 (No. 1) [2014] QCAT 541; Peterson Management Services Pty Ltd (ACN 094 234 474) as trustee for the Peterson Family Trust v Body Corporate for the Rocks Resort Community Title Scheme 9435 (No. 2) [2014] QCAT 542; Peterson Management Services Pty Ltd v Body Corporate for the Rocks Resort CTS 9435 [2013] QCAT, [3]; Peterson Management Services Pty Ltd v Body Corporate for the Rocks Resort CTS 9435 [2013] QCAT, [4]; Peterson Management Services Pty Ltd v Body Corporate for the Rocks Resort CTS 9435 [2013] QCAT, [5].

[7]  The Body Corporate later sought to with draw the admission made.

[8]  The Body Corporate later sought to with draw the admission.

[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 9.

[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 60.

[11] Seed, F & J v Body Corporate for Renaissance Golden Beach CTS 31880 [2011] QCAT 246: Batwing Resorts Pty Ltd v Body Corporate for liberty on Tedder [2011] QCAT 277: SCV Group Limited v Body Corporate for Parkview Gardens [2011] QCAT 299: Harvard Investments v Body Corporate [2013] QCAT 254: Wadiwel v Algester Gardens Body Corporate [2011] QCAT 49.

[12] P&M Productions Pty Ltd v Elders Leasing Limited [1992] 1 Qd R 264.

Close

Editorial Notes

  • Published Case Name:

    Peterson Management Services Pty Ltd v Body Corporate for The Rocks Resort

  • Shortened Case Name:

    Peterson Management Services Pty Ltd v Body Corporate for The Rocks Resort

  • MNC:

    [2015] QCAT 255

  • Court:

    QCAT

  • Judge(s):

    Favell

  • Date:

    21 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
Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241 [2011] QCAT 277
2 citations
Jump To
Cite 1 - [2011] QCAT 277
Cite 2 - [2011] QCAT 277
Harvard Investments v Body Corporate [2013] QCAT 254
2 citations
Jump To
Cite 1 - [2013] QCAT 254
Cite 2 - [2013] QCAT 254
P. & M. Productions Pty. Ltd. v Elders Leasing Limited[1992] 1 Qd R 264; [1990] QSCFC 100
2 citations
Jump To
Cite 1 - [1992] 1 Qd R 264
Cite 2 - [1992] 1 Qd R 264
Peterson Management Services Pty Ltd (ACN 094 234 474) as trustee for the Peterson Family Trust v Body Corporate for the Rocks Resort Community Title Scheme 9435 (No. 1) [2014] QCAT 541
2 citations
Jump To
Cite 1 - [2014] QCAT 541
Cite 2 - [2014] QCAT 541
Peterson Management Services Pty Ltd (ACN 094 234 474) as trustee for the Peterson Family Trust v Body Corporate for the Rocks Resort Community Title Scheme 9435 (No. 2) [2014] QCAT 542
2 citations
Jump To
Cite 1 - [2014] QCAT 542
Cite 2 - [2014] QCAT 542
SCV Group Limited v Body Corporate for Parkview Gardens CTS 24525 [2011] QCAT 299
2 citations
Jump To
Cite 1 - [2011] QCAT 299
Cite 2 - [2011] QCAT 299
Seed and Anor v Body Corporate for Renaissance Golden Beach [2011] QCAT 246
2 citations
Jump To
Cite 1 - [2011] QCAT 246
Cite 2 - [2011] QCAT 246
Wadiwel v Algester Gardens Body Corporate [2011] QCAT 49
2 citations
Jump To
Cite 1 - [2011] QCAT 49
Cite 2 - [2011] QCAT 49

Cases Citing

Case NameFull CitationFrequency
The Sands Gold Coast Pty Ltd v Body Corporate for the Sands [2016] QCAT 692 citations
The Sands Gold Coast Pty. Ltd. v Body Corporate for the Sands [No. 2] [2016] QCAT 3653 citations
1

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