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  4. Ultimate Property One Management Pty Ltd v Body Corporate for the Pivotal Point Residential Community Title Scheme 33550 - [2018] QCAT 157

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Ultimate Property One Management Pty Ltd v Body Corporate for the Pivotal Point Residential Community Title Scheme 33550[2018] QCAT 157

Ultimate Property One Management Pty Ltd v Body Corporate for the Pivotal Point Residential Community Title Scheme 33550[2018] QCAT 157

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Ultimate Property One Management Pty Ltd v Body Corporate for the Pivotal Point Residential Community Title Scheme 33550 [2018] QCAT 157

PARTIES:

ULTIMATE PROPERTY ONE MANAGEMENT PTY LTD

(applicant)

v

BODY CORPORATE FOR THE PIVOTAL POINT RESIDENTIAL COMMUNITY TITLE SCHEME 33550

(respondent)

APPLICATION NO/S:

OCL031-16

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

28 May 2018

HEARING DATE:

4, 5, 6, 7, 8 December 2017

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

  1. It is declared that:
  1. (a)
    The remedial action notices of 24 August 2015 and 21 March 2016 are invalid;
  2. (b)
    The applicant has complied with the remedial action notice of 22 October 2015; and
  3. (c)
    The resolution of 7 June 2016 to terminate the caretaking agreement and letting agreement was invalid and of no effect.
  1. The parties file and serve submissions as to costs within 14 days of the date of this order and each file and serve any submissions in reply within 14 days thereafter.

CATCHWORDS:

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – where the body corporate issued remedial action notices issued under s 131 of the Standard Module – where the body corporate at general meeting passed a resolution to terminate the manager’s caretaking and letting agreement on the basis the remedial action notices were not remedied within time – whether the time allowed to remedy defects reasonable

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – where the body corporate issued a remedial action notice issued under s 131 of the Standard Module – where the remedial action notice remedied within time – where termination pursuant to statute nor under the service contract available – whether common law termination available

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where caretaker had a duty to maintain a log of relevant matters – where the extent of the duty unclear under the deed of agreement – where use of extrinsic evidence of surrounding circumstances available to assist interpretation – where preceding managers provided no logs of relevant matters over preceding 9 years to the body corporate

Body Corporate and Community Management Act 1997 (Qld), s 94

Body Corporate and Community Management (Standard Module) Regulation 2008 (Qld), s 129, 131

Acts Interpretation Act 1957 (Qld), s 48(1)

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

Elsafty Enterprises Pty Ltd v Mermaids Café & Bar Pty Ltd [2007] QSC 394

Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26

Johjen Pty Ltd v Body Corporate for Aegean [2013] QCAT 387

Mount Bruce Mining Pty Limited v Wright Prospecting Pty Ltd [2015] HCA 37

Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5

The Sands Gold Coast Pty Ltd v Body Corporate for the Sands (No 2) [2016] QCAT 365

Seed v Body Corporate for Renaissance Golden Beach [2011] QCAT 246

APPEARANCES & REPRESENTATION:

 

Applicant:

B W S Kidston, instructed by Mahoneys Solicitors

Respondent:

W Thomas, instructed by MBA Lawyers

REASONS FOR DECISION

  1. [1]
    Ultimate Property One Management Pty Ltd is the caretaker and letting agent for the Pivotal Point Residential Community Title Scheme 33550.
  2. [2]
    The scheme comprises a residential high-rise complex at 50 Marine Parade, Southport.  Caretaking and letting agent services were agreed upon with inaugural managers under a caretaking agreement dated 3 February 2005 (the caretaking agreement).  
  3. [3]
    The caretaking and letting services were assigned in 2007 to new managers and then from the new managers to Ultimate Property One Management Pty Ltd (‘the caretaker’) on 28 August 2014 effective from 2 September 2014. 
  4. [4]
    Mr Han is a director of the caretaker and the person primarily responsible for carrying out the caretaking work under the caretaking agreement.
  5. [5]
    The body corporate became dissatisfied with the caretaker’s work in 2015. It issued three consecutive Remedial Action Notices (‘RANs’) pursuant to the provisions of the Body Corporate and Community Management Act 1997 Qld (‘the Act') to the caretaker.  Each RAN alleged breaches of the caretaker’s obligations under the caretaking agreement.
  6. [6]
    At an extraordinary general meeting of the body corporate on 7 June 2016 two resolutions to terminate the caretaking and letting agreement were passed by ordinary resolution.
  7. [7]
    The caretaker disputes the validity of those resolutions and has applied to the Tribunal for various orders, including a declaration that the RANs on which the resolutions were based are invalid.
  8. [8]
    The caretaker also says regardless of the invalidity of the RANs the duties required to be performed by the RANs were performed within the times set. 
  9. [9]
    The body corporate say the RANs are valid and alternatively a common law right to terminate for breach of contract exists.
  10. [10]
    There are 102 lots in the residential scheme.  The average occupation of each lot is 2 people.[1]

The Legislation and Statutory Scheme

Body Corporate and Community Management Act 1997 (Qld):

94 Body corporate’s general functions

(1) The body corporate for a community titles scheme must—

(a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and

(b) enforce the community management statement (including enforcing any by-laws for the scheme in the way provided under this Act); and

(c) carry out the other functions given to the body corporate under this Act and the community management statement.

(2) The body corporate must act reasonably in anything it does under subsection (1) including making, or not making, a decision for the subsection.

Examples for subsection (2) of a body corporate making a decision—

• passing a motion by resolution at a general meeting or a committee meeting

…

100 Power of committee to act for body corporate

(1)  A decision of the committee is a decision of the body corporate.

…

(5) The committee must act reasonably in making a decision.

Body Corporate and Community Management (Standard Module) Regulation 2008 (Qld):

129 Termination under the Act, by agreement etc.

(1) The body corporate may terminate a person’s engagement as a body corporate manager or service contractor, or authorisation as a letting agent—

(a) under the Act; or

(b) by agreement; or

(c) under the engagement or authorisation.

…

(2) The body corporate may act under subsection (1) only if the termination is approved by ordinary resolution of the body corporate.

131 Termination for failure to comply with remedial action notice

(1) The body corporate may terminate a person’s engagement as a body corporate manager or service contractor if the person (including, if the person is a corporation, a director of the corporation)—

…

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

(3) The body corporate may act under subsection (1) or (2) only if—

(a) the body corporate has given the person a remedial action notice in accordance with subsection (4); and

(b) the person fails to comply with the remedial action notice within the period stated in the notice; and

(c) the termination is approved by ordinary resolution of the body corporate; ...

(4) For subsection (3), a remedial action notice is a written notice stating each of the following—

(a) that the body corporate believes the person has acted—

(i) for a body corporate manager or a service contractor—in a way mentioned in subsection (1)(a) to (e); …

(b) details of the action sufficient to identify—

(i) the misconduct or gross negligence the body corporate believes has happened; or

(ii) the duties the body corporate believes have not been carried out; …

(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—

(i) remedy the misconduct or gross negligence; or

(ii) carry out the duties; or

(iii) remedy the contravention;

(d) that if the person does not comply with the notice in the period stated, the body corporate may terminate the engagement or authorisation.

The Three RANs

  1. [11]
    RAN  Commencement  End Date

 1  24 August 2015  14 September 2015

 2  22 October 2015  12 November 2015

 3  21 March 2016  11 April 2016 

  1. [12]
    Each RAN followed the same format. A caretaking duty under the caretaking agreement is identified; the body corporate states a belief that the caretaker has breached or failed to carry out the duty; particulars of the breach are given; followed by required remedial steps to be taken by the caretaker within 21 days. 
  2. [13]
    Each RAN concludes with the statement that the body corporate may terminate the caretaking agreement if the caretaker fails to carry out the specified required remedial work.
  3. [14]
    It should be commented upon that this is a dangerous formula. The statutory provisions do not state that the steps to be taken by a defaulting caretaker be stated. What is required is to identify the breach, require the breach to be remedied within a specified time and advise that if the breach is not remedied within time the body corporate may terminate the caretaker’s contract. How the caretaker remedies the breach is a matter for the caretaker. 
  4. [15]
    If the only way to remedy a breach is the way specified in the RAN, there is no problem.  But if there are other ways to remedy the breach other than the way demanded in the RAN, and the breach is remedied utilising the other ways, the RAN is satisfied under the Act. A RAN stating that a specified remedial step be taken and in default the caretaking agreement may be terminated has the potential to make the RAN invalid.  That will depend on what remedial steps are demanded and perhaps how compliance with a particular remedial course of action demanded by the body corporate affects the caretaker’s capacity to comply with the RAN. 
  5. [16]
    Here there were numerous alleged breaches of the caretaking agreement identified in the three RANs.
  6. [17]
    Counsel for the body corporate conceded at hearing that only those particular items of breach pressed at hearing were relied on as breaches not remedied within time under the RANs. Those items Counsel pressed were those matters he maintained that the body corporate had proven on the balance of probabilities were not completed by the caretaker within time.[2] Accordingly, the body corporate did not contest that the caretaker had appropriately remedied or answered other breaches identified in the RANs, which was the caretaker’s position.
  7. [18]
    There were 44 instances of breach specified in RAN 1 that the body corporate claimed would entitle it to terminate the caretaking agreement if not remedied within time, 32 in RAN 2 and 39 in RAN 3.
  8. [19]
    In respect of those issues that are still pressed by the body corporate it is appropriate to consider:
    1. (a)
      For each breach of duty alleged, was there a duty to be performed under the caretaking agreement?
    2. (b)
      Did the body corporate have a belief that the caretaker had failed to perform the duty?
    3. (c)
      Was the caretaker in breach as alleged or is the breach conceded?

If the answer to the above was yes on all counts, then:

  1. (d)
    Was the breach remedied within the time set?

If not:

  1. (e)
    Was the remedial period given to remedy the breach reasonable in the circumstances?
  2. (f)
    Was the RAN otherwise valid?

RAN 1

  1. [20]
    There were 9 breaches of duty out of the 44 breaches required to be remedied listed in RAN 1 relied on by the body corporate as not remedied within time.

Supply Form 1s

  1. [21]
    The first breach of duty is identified as:

The body corporate gives notice to the manager that it believes the manager has repeatedly failed to carry out its duties pursuant to clause 3.1.2 of the agreement… 

3.1.2 To monitor the observance of the by-laws and advise the Body Corporate of any serious or persistent breaches of the by-laws.

  1. [22]
    Particulars of the breach are then given as the manager repeatedly failing to advise the body corporate of persistent breaches of by-laws 4, 47, 49 and 27.1 by owners and/or occupiers evidenced by examples.
  2. [23]
    The examples are various photographs of alleged offending items left in corridors and outside unit doors and beneath a fire extinguisher fixed to a wall, such as a mobility scooter and pot plants and small figurines, there are photographs of balconies and car parking spaces which are said to be unkempt or in the case of car parks used to store things other than a car. There are 8 photographs in all.
  3. [24]
    The RAN goes on to state:

Remedial Action Required By Manager to Remedy these Breaches

1.3 Within 21 days after the date of this notice the manager must:

1.3.1 Provide the management committee with BCCM Forms (Form 1) detailing each instance of owners/occupiers blocking safety exits in breach of by-law 47;

1.3.2 Provide the management committee with BCCM Forms (Form 1) detailing each instance of excess items being placed by owners/occupiers on common property in breach of by-law 4;

1.3.3 Provide the Management committee with BCCM Forms (Form 1) detailing each instance of owners/occupiers storing items in exclusive use car parks in breach of by-law 49; and

1.3.4 Provide the Management committee with BCCM Forms (Form 1) detailing each instance of owners/occupiers failing to attend to the maintenance of his/her lot in breach of by-law 27.1.

  1. [25]
    The caretaker’s obligation under 3.1.2 of the caretaking agreement is ‘to monitor the observance of the by-laws and advise the Body Corporate of any serious or persistent breaches of the by-laws.’
  2. [26]
    The caretaker does not dispute the duty to monitor the observance of the by-laws and advise the body corporate of any serious or persistent breaches. The caretaker prepared Form 1s within the time set by the RAN. Despite that the body corporate maintains that the caretaker failed to remedy the breach because the Form 1s were not signed and therefore not properly completed.
  3. [27]
    As required of forms approved under an authorising law,[3] Form 1 identifies the provisions of the Act to which it relates.[4]  Here, Form 1 is for use under s 185(2)(a) of the Act. That provision makes it available for use by a complainant who is the owner or occupier of a lot in circumstances where a dispute exists between that owner or occupier and the owner or occupier of another lot in the scheme and in circumstances where the body corporate has not given a continuing contravention notice (Form 10) to the other person under s 182.
  4. [28]
    Ideally if a lot owner breaches a by-law in one of the ways particularised here such as leaving things in corridors, the lot owner would simply be asked to remedy the breach before any forms were served. If the breach continued that would usually be followed by the body corporate as complainant issuing a Form 10 contravention notice.
  5. [29]
    Here the body corporate identified the breach by the caretaker not as the failure to monitor the observance of by-laws and advise the body corporate of serious or persistent breaches, but the failure to hand up signed Form 1s.
  6. [30]
    In giving unsigned but otherwise completed copies of Form 1 to the body corporate within the 21 day remediation period, the caretaker clearly remedied any alleged breach of failure to inform the body corporate about serious or persistent breaches of by-laws.   
  7. [31]
    The duty of the caretaker under the caretaking agreement was not to hand up signed Form 1s. Accordingly the body corporate was not entitled to demand that the caretaker supply signed Form 1 notices as the remedial action required to be taken. 
  8. [32]
    Indeed the demand was inappropriate given the body corporate, not the caretaker, is responsible for enforcement, as opposed to identification, of breaches of by-laws. The caretaker complied with its duty simply by advising the body corporate about the things left in corridors or balconies that were untidy or car spaces used to store possessions other than a motor vehicle. It did not have to do that using Form 1s.
  9. [33]
    I note that, despite the demand that the caretaker inform the body corporate about serious or persistent breaches of the by-laws, which the caretaker did in providing the unsigned Form 1s, the body corporate failed in any case to take any action against any of the owners concerned.[5] Indeed Mr Don, one of the committee members who gave evidence about this failure by the caretaker, was himself one of the owners breaching the by-laws in having a mat outside his door in a common area. There was a Form 1 prepared with his name on it,[6] but Mr Don has never been approached about it.[7] As at date of hearing, his floor mat was still outside his door in a common area.[8]
  10. [34]
    I note the same breach is alleged in RAN 2 with the body corporate claiming trivial failures there such as the failure of the Form 1 to set out the name and contact details of the caretaker. The caretaker again prepared Form 1s (in his material Mr Han refers to only one example) in satisfaction of the demands made in RAN 2 but again the body corporate failed to act.  One wonders why the body corporate demanded signed Form 1s in the RANs given there appears to have been no reasonable intention of acting on them.
  11. [35]
    I determine that the caretaker remedied any failure in its duty to monitor the observance of the by-laws and advise the body corporate of any serious or persistent breaches of the by-laws within the time set in the RAN.

Lights

  1. [36]
    The next breach of duty pursued concerns the inspection of light fittings and replacement of faulty light bulbs. 
  2. [37]
    The duty:

3.1.5 To report promptly on all things on common property requiring repair and on all matters on common property creating a hazard or danger at the cost and expense of the body corporate and to take remedial action where practicable, to safeguard the building against unlawful entry or accident.

3.1.19 … “Light Fittings”:

Carry out an inspection of all light fittings and replace bulbs as required.

  1. [38]
    Clause 3.1.19 of the caretaking agreement sets out a long list of daily, weekly, monthly and six monthly cleaning and ground maintenance tasks to be performed by the caretaker.  The duty to inspect and replace faulty lights and fittings is a weekly task. 
  2. [39]
    In respect of all such tasks, daily, weekly or monthly (there is only one six monthly task, to adjust time clocks) a rider is noted to each routine specified, namely that such tasks be performed ‘if necessary’.
  3. [40]
    The breach alleged is that the caretaker failed to conduct weekly inspections of light fittings and lights within the notice period.[9]
  4. [41]
    Mr Han, the caretaker’s director and principal operative, says he did. He said on 26 August 2015 he called an electrician to come and repair a faulty fitting and transformers and replace a faulty exit light on level 5. He inspected every light fitting on the common property on 29 August 2015 and replaced three light tubes and a garden light. As at 20 September 2015 all lights were working.[10]
  5. [42]
    The body corporate disagrees. It says the caretaker did not conduct weekly inspections of light fittings as required within the notice period.
  6. [43]
    Mr Little is an expert in body corporate management matters who gave evidence for the body corporate. He first inspected the building on 11 August 2015, a week before RAN 1 was issued, and his report formed the basis of many of the complaints in the RAN. 
  7. [44]
    RAN 1 expired on 14 September 2015. Mr Little came back to inspect the building two days after that on 16 September 2015. He prepared another report. In it he noted that the work required to remedy blown light bulbs and unlit signs had been done save for an exit light which required an electrician to do the job. That was apparently the job Mr Han called the electrician about on 26 August 2015. When the electrician could attend was obviously not something Mr Han could control, as was conceded by all parties.
  8. [45]
    In re-examination Mr Little suggested that the number of faulty lights he found on his first inspection were greater than would normally fail in a week. He did not say what number that was, nor what would be normal. Nor does that very general observation detract from the clear conclusion in his second report that all the bulbs that did not work when he first attended had been replaced (save for that requiring an electrician) and were working at the end of the 21 day period set in the RAN. 
  9. [46]
    I note somewhat incongruously Mr Little also said before that in cross-examination that given the hundreds of lights in the complex there were always going to be some lights out.[11]
  10. [47]
    The obligation on the caretaker was not to conduct weekly inspections of lights regardless of necessity, but to conduct inspections on a weekly basis if that was necessary. That is what the caretaking agreement said. As he performs his other duties for instance, the caretaker would generally know whether lights need replacing. Given all lights were working when Mr Little re-inspected after the RAN, I conclude the caretaker remedied any breach of its duty to inspect and replace as necessary during the period of the RAN.
  11. [48]
    I note there was also a contention raised about a breach of duty associated with the adequacy of a maintenance log recording the inspection and replacement of lights.  That is appropriately addressed separately below. It is a matter of significance and is claimed as a breach in all three RANs.

Pool

  1. [49]
    The duty:

3.1.18 The manager shall without limiting the generality of his obligations pursuant to this agreement, keep the following areas on common property in a clean and neat condition…

3.1.18.4 barbecue areas, pool and spa areas and associated furniture…

3.1.19 The manager shall maintain all common, garden and lawn areas on common property to a standard appropriate to a superior residential estate…

3.1.20  The manager shall at all times ensure that the pools … are cleaned….

  1. [50]
    The particulars of breach given in the RAN are that the manager has repeatedly failed to keep the pool, spa and sauna and its surrounds and associated outdoor furniture in a clean, hygienic and neat condition. This is said to be demonstrated by scum and grime build up on the waterline tiled areas of the pool. Two photographs of the tiles at the water edge follow. The photographs show a scum line along the tiles above the water edge. 
  2. [51]
    The photographs are taken from Mr Little’s report of 11 August 2015. In his report Mr Little says:[12]

The waterline tiled areas require a monthly scrubbing to remove build up.

  1. [52]
    Mr Han says that on 1 and 9 September 2015 he cleaned the waterline of the tiled area of the pool to remove scum and grime. He said it was a difficult task and he continues to clean on a weekly basis or more frequently if guest usage is high. In his affidavit he shows photographs of the pool that he says were taken immediately after he cleaned it.[13] The tiles appear clean in his photographs without any scum line. 
  2. [53]
    Mr Little said in his second report of 16 September 2015:

Area identified not rectified. The appearance of the tiles has improved but the area requires additional cleaning to remove the scum line. 

  1. [54]
    He was assessing it, I assume, against his first inspection on 11 August 2015. He said at hearing he accepted the caretaker had cleaned the pool but he thought ‘some additional elbow grease’ would improve it.[14] There is a photograph in his second report which appears to show a scum line, though not as bad as that depicted in the photographs in his first report.
  2. [55]
    Mr Little admitted, however, that he could not say what condition the pool was in two weeks before his second inspection. It depended on a number of variables such as this potentially being a high grime area close to a main road, building construction in the area and the number of people using the pool with their gel and hair products and sunscreen lotions and the degree of water contamination by body fats.
  3. [56]
    I accept Mr Han’s evidence that he cleaned the pool during the period of the RAN.  Mr little acknowledged that but he says it should have been done better. But the photographs exhibited to Mr Han’s statement of evidence show no scum line at all, which suggests the pool was adequately cleaned by Mr Han with sufficient ‘elbow grease’ at the time.
  4. [57]
    Mr Little concedes pool scum is a continuing problem particularly with commercial type pools where there are many users. This pool is not a commercial pool but it has the potential to have many users. There are approximately 200 residents in the complex.
  5. [58]
    I also note Mr Little’s recommendation in his first report that the pool have a monthly scrubbing to remove any scum line. I conclude Mr Han appropriately cleaned the pool during the period of the RAN and thereby remedied the alleged breach of duty about the pool.
  6. [59]
    It was probably due for another clean of the scum line on Mr Little’s second inspection, but that does not mean the duty to keep the pool clean was not appropriately cleaned when Mr Han said he did it. The duty was to keep the pool clean, a fairly broad and non-specific standard. The body corporate’s own expert suggested the waterline tiles should be cleaned every month to adequately address this requirement. That, I conclude, is what Mr Han has done. I find the duty was attended to within the period of the RAN.

Weeds

  1. [60]
    The duty believed breached:

3.1.19 … Cleaning and Grounds Maintenance – Weekly Routine (if necessary) …

Weed lawns and gardens and prune all shrubs and trees as necessary …

  1. [61]
    The body corporate claims the caretaker has repeatedly failed to attend to weeding. There are photographs of weeds and photographs of dead plants in the RAN said to illustrate the failure.
  2. [62]
    Mr Han said that he removed weeds on 25 August 2015, 2 September 2015 and 9 September 2015.[15] He said of the weeds shown in the photographs in the RAN, he removed those he could and let others grow slightly larger so they could be effectively removed later. He said he returned on 27 September 2016 (sic.) to remove them.
  3. [63]
    All the photographs shown in the RAN were photographs taken by Mr Little and included in his report of 11 August 2015. Mr Little concluded that the weeding had not been attended to in his subsequent report of 16 September 2015. He included photographs of weeds in his second report. None of those photos appear to show the same weeds identified in his first report.
  4. [64]
    In cross-examination Mr Little agreed that weed growth was affected by variables such as season, sunlight and water. At the time of his inspections it was just coming into springtime in Queensland which means there would have been fairly significant plant growth.
  5. [65]
    The weeds photographed and relied on in Mr Little’s second report are small.  In cross-examination Mr Little agreed he could not say whether or not the weeds in his photographs were 5, 6 or 8 days old.[16] Nor could he say whether they had been poisoned and were dying. He agreed he could not say whether Mr Han had performed weekly weeding duties. He agreed all he could identify was that there were weeds in the common area garden when he attended two days after expiry of the RAN.
  6. [66]
    The spot check evidence submitted on behalf of the body corporate is insufficient to persuade me that Mr Han did not appropriately attend to weeding in the common area gardens and pathways during the period of the RAN. Given the weeds photographed and relied on in the RAN were not there when Mr Little returned and taking into account the season and rapid growth of weeds at that time of the year, and accepting as I do Mr Han’s evidence that he attended to weeding on or about the dates claimed, I conclude Mr Han did attend to his duty in respect of weekly weeding as necessary within the time set by the RAN.
  7. [67]
    There was no evidence led concerning the general introductory statement in clause 3.1.19 that maintenance of the common, garden and lawn areas on common property be to a standard appropriate to a superior residential estate and what that might mean in the context of the stated weekly routine for weeding. That stated standard does not affect my conclusion that Mr Han attended to the necessary work within time. In so far as necessary I conclude nominating this as weekly routine was designed to achieve that standard .
  8. [68]
    Mr Lute maintained that the same weeds were still there as at date of hearing which of course could not sensibly be the case given the photographs were taken some two years previous.[17] I take Mr Lute to have intended to convey that weeds reoccurred on a regular basis in the gardens in the scheme. Of course that is the nature of weeds in gardens however and is the reason why weeding is a recurring activity. The duty under the caretaking agreement is not to ensure no weeds grow, but that they are regularly removed.

Clean outdoor tables and furniture

Outdoor Furniture

  1. [69]
    The duty said to be breached:

3.1.18.4 The Manager shall … keep the barbeque areas, pool and spa areas and associated furniture clean

3.1.19 … Cleaning and Grounds Maintenance – Weekly Routine (if necessary) …

Hose clean and scrub where necessary all outdoor furniture to remove dirt stains….

  1. [70]
    The breach is said to be illustrated by a photograph of a dirty table in the pool area.
  2. [71]
    Mr Han said that on 26 August 2015 he checked the cleanliness of the outdoor tables and furniture and spot cleaned as required. Mr Lute’s evidence was that on 18 September 2015 he found the function room and outdoor furniture not cleaned.[18] That was 4 days after the RAN expired. That does not persuade me that the caretaker failed to remedy the breach during the currency of the RAN. 
  3. [72]
    The inadequacy of spot checks, particularly outside the period of the RAN, must be commented on. The shortcoming in relying on the circumstantial evidence of spot checks was pointed out in The Sands Gold Coast Pty Ltd v Body Corporate for the Sands (No 2).[19]   
  4. [73]
    Here there was no explanation offered by the body corporate why spot checks were not performed during the currency of the remediation period of the RANs or if there were, what those spot checks showed. One conclusion that might be drawn is that there were spot checks performed during the RANs, but the results did not support the body corporate’s position that breaches were not being remedied.
  5. [74]
    There is little assistance from spot checks outside the period of the RAN to prove a failure to remedy a breach of duty within the period of the RAN. 
  6. [75]
    Mr Lute’s observations were 4 days after the remediation period set by the RAN had expired. Mr Little observed, 2 days earlier in his report of 16 September 2015, that the cleaning of the outdoor furniture tables had been completed satisfactorily.
  7. [76]
    Mr Little said at hearing that even if a table looks dirty it is impossible to tell, given environmental factors, whether or not the table was cleaned the day before.[20]
  8. [77]
    I see no reason not to accept Mr Han’s evidence that he checked the cleanliness of the outdoor tables and furniture on 26 August 2015 and every day after that during the period of the RAN.  
  9. [78]
    I conclude this duty was addressed and remedied within the period of the RAN. 

Maintenance Logs

  1. [79]
    Which leaves the matter of the alleged breach of the caretaker’s failure to provide appropriate maintenance logs for consideration.
  2. [80]
    As stated, each RAN followed the same format. A caretaking duty under the caretaking agreement is identified which the body corporate states it believes the caretaker has breached, followed by particulars of the breach and that followed by a specified remedial action to be performed within 21 days.  
  3. [81]
    But whereas in RANs 2 and 3 the body corporate identifies the caretaker’s failure to carry out a duty to keep logs as required by clause 3.1.7 of the caretaking agreement as a specific breach of duty,[21] in RAN 1 the failure to keep logs is merely noted as a remedial action required to be taken to remedy other specific breaches.
  4. [82]
    By way of example the second breach referred to in RAN 1 is the ‘Breach of Duty Pursuant to Clause 3.1.5 and 3.1.9 of the Agreement’. This concerns the failure to carry out inspections and replace broken lights and fittings. 
  5. [83]
    The identification of the breach is followed by a statement that the body corporate believes the caretaker has failed to carry out its duties pursuant to clauses 3.1.5 and 3.1.19 which clauses are then set out. That is followed by particulars of the breach which includes photographs of broken lights. After the particulars there is a subheading ‘Remedial Action Required by Manager to Remedy this Breach’.
  6. [84]
    The remedial action the body corporate says the caretaker must take is then stated as ‘replace all nonworking light bulbs’ and ‘undertake a weekly inspection of all light fittings to determine which fittings require repair and which bulbs require replacement’.  There then appears the  following statement:

Pursuant to clauses 3.1.3 and 3.1.7 of the agreement, keep a maintenance logbook itemising:

(a) the dates and times cleaning and ground maintenance inspections are undertaken by the Manager of the Common Property, as required per clause 3.1.19 of the Agreement;

(b) the dates and times the Manager attends to each maintenance task listed in clause 3.1.19 of the Agreement; and

(a) (sic.) provide the maintenance logbook to the Management Committee.

  1. [85]
    In RAN 1 breaches 2, 3, 5, 6, 7 and 8 are in identical terms with the obligation to keep logs noted merely as a remedial action required to rectify another specifically identified breach of duty.
  2. [86]
    By s 131(3)(a) of the Standard Module the body corporate must give a person a remedial action notice in accordance with subsection (4), and subsection (4) requires that the remedial action notice state in writing that the body corporate believes the person has, amongst other things, failed to carry out duties under the engagement.
  3. [87]
    RAN 1 fails to do this with respect to keeping logs. As stated, this is different in RANs 2 and 3.[22]
  4. [88]
    Given RAN 1 does not identify any failure to keep logbooks or adequate logbooks as a breach of duty under the caretaking agreement, failure to attend to this direction cannot constitute an unremedied breach of the caretaking agreement under RAN 1.
  5. [89]
    But that is not the only problem the body corporate has in trying to rely on the caretaker’s failure to keep appropriate logs as a breach of duty.
  6. [90]
    What is the extent of the duty? Clause 3.1.7 is in very broad terms:

The manager shall keep a log of all relevant matters arising under this clause, and produce the log to the body corporate representative or the management committee upon request.

  1. [91]
    There are a huge number of tasks set out in clause 3. Clause 3.1.19 contains all the daily, weekly and monthly tasks required to be performed by the caretaker under the caretaking agreement.
  2. [92]
    What are the relevant matters that the caretaker is obliged to record? Are they all the tasks set out in clause 3 as claimed by the body corporate? Or are they matters that the caretaker deems relevant and if so on what criteria of relevance? 
  3. [93]
    The word ‘log’ is not defined by the Macquarie Dictionary in any meaningful way in the context in which the word is used in clause 3.1.7. It cannot mean for example the official record which a ship’s master is obliged to keep of particulars of a ship’s voyage. Nor a listing of navigational, meteorological and other significant data concerning an area journey or another similar record of a journey. 
  4. [94]
    In the Online Oxford Dictionary the word is additionally defined as ‘a regular or systematic record of incidents or observations’. That seems closer to the sense in which the word is used in clause 3.1.7.  That definition implies a log should record the occurrence of incidents and observations.  Those incidents or observations would surely be incidents and observations affecting or having the potential to affect the running of the residential scheme.
  5. [95]
    Further the duty under clause 3.1.7 is to keep a log of all relevant matters. The word ‘relevant’ is defined as bearing upon or connected with the matter in hand; to the purpose; pertinent.[23] The inclusion of the word ‘relevant’ is a limiting factor on the duty. Relevant matters does not mean all matters.
  6. [96]
    The agreement contemplates that the caretaker will perform caretaking services personally. Clause 3.2 provides:

It shall be the responsibility of the manager to provide their own labour necessary for the performance of the functions under this agreement except where the manager may not lawfully perform such function or where a specialist skill is required….

  1. [97]
    The task of first making up and then maintaining logs with the dates and times of attending to all the caretaking duties in clause 3 would be hugely time-consuming and laborious one would think, and also of dubious benefit other than as to check on the activities of the caretaker.
  2. [98]
    Mr Turner, who had inspected approximately 900 buildings to establish the performance requirements of management duties and remuneration, was called to give evidence for the caretaker. He inspected the scheme on 7 December 2016 and in his estimation it would take between 40 and 60 hours of work to draw up say a maintenance log for the scheme. He said he could not find any previous logs kept by prior caretakers.  That time estimate was only for the establishment of a maintenance log.  He said a cleaning log, which was just one of the logs the body corporate required the caretaker to keep, was different to a maintenance log. 
  3. [99]
    The body corporate’s expert, Mr Little, set out what he considered to be the day to day caretaking activities and responsibilities in his report of 11 August 2015 and other than the responsibility of keeping ‘records of problem areas and repairs made’,  he made no reference to any cleaning log as standard practice.
  4. [100]
    The caretaking agreement has a commercial purpose. The caretaker is an independent contractor, not an employee of the body corporate. Mr Kidston submits the obligation to keep relevant logs should be given a meaning that makes business sense. Counsel submits the requirement to keep the extensive logs in the detailed form demanded by the body corporate in the RANs makes the business arrangement unworkable.
  5. [101]
    In Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited, the High Court said:[24]

In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract…

Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption "that the parties ... intended to produce a commercial result".  Put another way, a commercial contract should be construed so as to avoid it "making commercial nonsense or working commercial inconvenience".

  1. [102]
    Where language in a commercial contract is ambiguous:[25]

It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts… if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust… the court should construe commercial contracts "fairly and broadly, without being too astute or subtle in finding defects…

  1. [103]
    Clause 3 is entitled ‘Manager’s Duties’. Under that appears the number 3.1 and the statement ‘The manager agrees to perform or procure the performance of the tasks and duties consistent with the position of Manager to a residential unit building and without limiting the generality of this provision the Manager undertakes to perform the following duties.’ Then comes a subheading ‘Car Spaces’ and 3.1.1 requires the Manager to supervise car parking. This is followed by the sub-heading ‘By-Laws’ and 3.1.2 requires the Manager to monitor the observance of by-laws.
  2. [104]
    Then comes the third sub-heading ‘Reports’. Under this sub-heading there are five paragraphs numbered 3.1.3 to 3.1.7. The first says it is the duty of the Manager to report to the body corporate concerning the performance of the duties of the Manager.  The next is to account for money coming into the Manager’s possession. The third to report on all things on common property requiring repair or about hazards on common property and take remedial action if necessary. The fourth is to maintain a register of the body corporate’s personal property and to note property requiring attention. The fifth is 3.1.7 requiring the Manager to keep a log of all relevant matters arising ‘under this clause’, and to produce the log to the body corporate on request.
  3. [105]
    After this comes other sub-clauses with distinct sub-headings, such as Keys, Utilities, Inspection and Maintenance, Drainage, Lighting, Cleaning and Maintenance and under the latter many sub sub-headings.
  4. [106]
    In my opinion, given its place in clause 3, clause 3.1.7 is a catch-all provision in respect of reporting obligations.   
  5. [107]
    What is relevant will vary depending on the circumstances. Matters such as recording when fire extinguishers were last serviced or when a lift service contractor last attended or is next due, or tracking service contractors who maintain motors or pumps, and perhaps recording the currency of insurances referred to in clause 3.1.14 and lot owners or visitors who continuously flaunt car parking by-laws, might be considered relevant matters that should be noted. But not recording the minutiae and plethora of a caretaker’s daily or weekly activities of no great significance or consequence other than it might be utilised as a tool to monitor the behaviour of the caretaker.
  6. [108]
    There is an additional factor that persuades me as to my interpretation of the duty. 
  7. [109]
    In Codelfa Construction Pty Ltd v State Rail Authority of NSW, Mason J said (the true rule):[26]

The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties.

  1. [110]
    In Royal Botanic Gardens and Domain Trust v South Sydney City Council,[27] the High Court took into account, for the purpose of construction of a lease (though admittedly not a commercial lease), the circumstances that for the period of 20 years before execution of the deed being construed the parties had conducted themselves in a particular way which supported the construction of the relevant provision of the document by one of the parties to it:[28]

Clause 4(b) read as a whole contained a statement of the totality of the matters to be taken into account in fixing the successive rent determinations. That is the way in which the arrangements between the parties had been agreed some 20 years before the execution of the deed in 1976. There is nothing to suggest that in the intervening period the parties had conducted themselves on any basis other than that the rent was to be computed in this fashion.

  1. [111]
    I consider the way the body corporate has conducted itself with respect to the duty under 3.1.7 over the 9 years preceding the assignment of the obligation to the caretaker is a relevant factor that assists construction of the obligation. The situation here seems entirely analogous to that in Royal Botanic save that here the matter concerns an entirely commercial arrangement. 
  2. [112]
    The original caretaking agreement ran from 2005 to 2014 through the hands of two different managers before it was assigned to the caretaker. By clause 5.1 in the deed of assignment of 28 August 2014 the assignor caretakers warranted that the caretaking agreement had in no way become void or voidable and that all the conditions of the caretaking agreement on the part of the previous caretakers to be performed had been performed up to the assignment date. The body corporate accepted that statement by being a party and signatory to the deed of assignment. 
  3. [113]
    There is no evidence that the previous caretakers kept any logs at all. According to Mr Turner he looked for but could not find any. He found some templates on a computer but they were all blank. 
  4. [114]
    Mr Han said neither the body corporate nor the previous caretakers had any maintenance logs to hand over.[29] He was given nothing at all when he commenced, either by the body corporate or the outgoing manager save for a key register and the telephone numbers of some service contractors.[30] Mr Han was not challenged about that at hearing.[31]   I accept his evidence on this point. I conclude the previous managers did not keep any logs and that the body corporate accepted that and the absence reflects its understanding of the duty imposed under the clause, at least until Mr Han commenced as caretaker.
  5. [115]
    I therefore take into account the conduct of both the body corporate and the previous caretakers over the period of 9 years preceding assignment in confirming my construction of clause 3.1.7. That is, the duty to maintain a log of all relevant matters is a duty on the part of the caretaker to make a record of incidents and observations which has the potential to affect the efficient functioning of the residential scheme.  It was not a duty to keep a maintenance logbook itemising the dates and times cleaning and ground maintenance inspections were undertaken, or the dates and times the caretaker attended to each maintenance task listed in clause 3.1.19.

The Obligation to Keep Logs in RAN 1

  1. [116]
    There is a final observation to be made about the assertion by the body corporate that the caretaker failed to remedy its obligation to keep logs in RAN 1. 
  2. [117]
    In Seed v Body Corporate for Renaissance Golden Beach,[32] it was pointed out that the validity of any statutory notice of default, such as a RAN,[33] requires that it permit the recipient to understand with reasonable certainty what he or she is required to do to comply with the notice. Further:[34]

Whether the issue involves a building contract, forfeiture of a lease, loss of contractual rights, or (as here) the loss of both contractual and real property rights, the authorities consistently hold that the validity of a notice of default is to be determined objectively on the basis on what would be conveyed to a reasonable recipient with his or her background knowledge.

  1. [118]
    By s 94 of the Act the body corporate for a community titles scheme must act reasonably in anything it does administering the common property including making or not making decisions. Acting reasonably has been held to encompass setting a reasonable time for compliance with a RAN and not making unreasonable demands in a RAN.[35]
  2. [119]
    An error in a demand such as a notice to remedy default in a lease or mortgage or a statutory notice in the form of a RAN does not automatically invalidate the demand.  As stated by Thomas J in Clarke v Japan Machines (Australia) Pty Ltd,[36] a mortgagee in default case:[37]

The most relevant factors determining validity will be the extent of the error, and the capacity of the notice to give the mortgagor a reasonable opportunity to do what he is obliged to do.

  1. [120]
    In Elsafty Enterprises Pty Ltd v Mermaids Café & Bar Pty Ltd,[38] a commercial lease matter where the lessor issued a notice to remedy breach, McMurdo J found the notice defective in a number of respects and what was demanded and what the sublease actually required bore such large disparity that the notice failed to comply to the statutory requirements.
  2. [121]
    Similarly here, what was erroneously demanded of the caretaker concerning keeping logs placed the caretaker in a very difficult position. He was advised in the RAN that if he failed to provide the required logs, that would allow the body corporate to terminate the caretaking agreement. The nature of the duty to keep relevant logs was unclear under the agreement. It was entirely reasonable for the caretaker to try to comply.
  3. [122]
    The body corporate allowed the caretaker 21 days to comply with each RAN. In all of them the caretaker was burdened with the onerous task of completing logs, but more so than the second and third, RAN 1 required the caretaker to create all logs from inception.
  4. [123]
    I have already observed that Mr Turner said he estimated it would take between 40 and 60 hours to establish just a maintenance log for the scheme. That did not include starting up a cleaning log or any other logs.[39] Accepting that degree of input for simply a maintenance log, which I do, and noting the other logs also required, there was little time left to the caretaker to remedy all other breaches in RAN 1, which were extensive.  That does not include the on-going work the caretaker was required to perform in its daily, weekly and monthly routine outside the RAN as required by the caretaking agreement.
  5. [124]
    I conclude the 21 day period given for compliance with RAN 1 was therefore unreasonable in the circumstances which makes the RAN invalid.
  6. [125]
    For the purpose of completeness, I conclude that even if the RAN was valid there were no breaches of duty under the caretaking agreement appropriately identified as breaches to be remedied in RAN 1 which were not remedied within time. 
  7. [126]
    RAN 1 was not able to be relied on to support a resolution to terminate the caretaking agreement.

RAN 2

  1. [127]
    There were 3 breaches of duty out of 32 in RAN 2 pressed by the body corporate.

Fire Cupboards

  1. [128]
    The duty:

3.1.8 … keep the following areas on Common Property in a clean and neat condition …

3.1.18.1 all public foyers, lifts, stairways and utility areas….

  1. [129]
    Particulars of the breach are given as the failure to check fire cupboards on a weekly basis and to remove any items placed there. In the RAN this is said to be illustrated by a photograph of a bucket on the floor of a fire cupboard. Committee members Mr Don and Mr Peachey inspected the scheme 19 days after the RAN finished. That was on 1 December 2015. They found a bucket, a different bucket to the one in the photograph in the RAN, in the level 38 fire cupboard and an empty plastic bottle in the fire cupboard on level 37.[40]   
  2. [130]
    The body corporate submits the evidence given by Mr Han about how frequently he checked levels 35 and above is unreliable and therefore the Tribunal should conclude that the caretaker did not check fire cupboards on a weekly basis as obliged by the caretaking agreement within the RAN period.
  3. [131]
    Obviously the bucket used as an example in the RAN was removed, presumably by Mr Han, before the inspection by Messrs Don and Peachey on 1 December 2015 or it would have been found and photographed as evidence of the failure alleged.
  4. [132]
    The caretaker’s obligation to conduct weekly checks of stairways and utility areas does not amount to a guarantee that nothing will be put into fire cupboards by residents. Nor does the discovery of something in a fire cupboard prove that the cupboard was not inspected and found empty in the week preceding discovery. 
  5. [133]
    Mr Han says he conducted weekly checks of the fire cupboards. I see no reason to conclude he did not do that on the evidence presented. I do not conclude that Mr Han’s evidence suffers from a lack of credibility such that his evidence is to be dismissed as valueless. I take into account the fact that English is Mr Han’s second language and he was also unwell during the hearing. His answers in cross-examination were at times difficult to understand but I conclude responsive to Counsel for the body corporate and honestly given.
  6. [134]
    Mr Peachey agreed that the photographs taken 1 December 2015 do not indicate the state of the fire cupboards either on the first day of the remediation period for RAN 2 nor the last day.[41] But he asserted in cross-examination that ‘it was the same state as it was a month earlier.’[42] That is far too vague and broad an assertion to be given any real weight.
  7. [135]
    Again I say there was no evidence presented at hearing explaining why members of the body corporate committee could not have conducted inspections of the scheme throughout the remediation period set in all three RANs. Indeed some members of the committee, such as Mr Don, seem to have been intimately involved in the affairs of the building on a daily basis. 
  8. [136]
    I conclude the duty to conduct weekly checks of stairways and utility areas in so far as it concerns fire cupboards was attended to within the period of the RAN.

Logs

  1. [137]
    I have already dealt with this matter in considering the efficacy of RAN 1. The same alleged breach of duty is pressed in RAN 2, only here it is noted as a discrete ground of breach. For the reasons previously given I find the alleged breach of duty to keep a cleaning and ground maintenance log as demanded was not a duty imposed on the caretaker by clause 3.1.7 of the caretaking agreement.

Pool

  1. [138]
    As with RAN 1 there is a complaint about failure to keep the pool clean. Again the caretaker claims he cleaned the pool during the period of the RAN. Again he relies on photographs of the cleaned pool,[43] but they are identical to those relied on in answering RAN 1.
  2. [139]
    The photographs cannot be supporting evidence of compliance for both RANs.
  3. [140]
    Messrs Don and Peachey took photographs of the pool on 1 December 2015. They claimed the ‘grime’ on the pool tiles at the waterline depicted in a photograph taken that day was ‘much worse than on previous inspection.’[44] It is not clear what date is referred to as the previous inspection, but I take it refers to Mr Little’s reinspection after the first RAN on 16 September 2015.  
  4. [141]
    Mr Don agreed at hearing the state of the pool on 1 December 2015 could not establish the state of the pool during the period of the RAN. Again the body corporate rely on unreliable spot checks outside the period of the RAN. Here the spot check occurs almost 3 weeks after the end of the RAN compliance period.
  5. [142]
    Though Mr Han was mistaken in relying on the same photographs to show the pool was cleaned, I am not persuaded that Mr Han did not clean the pool as he claimed he did during the currency of RAN 2. 
  6. [143]
    The routine of duties under the caretaking agreement does not prescribe any daily or weekly schedule, but only that the pool be kept clean to a standard appropriate to a superior residential estate. With regard to how often the pool should be cleaned, Mr Little commented that the pool waterline tiles required monthly cleaning.
  7. [144]
    If Mr Han had cleaned the tiles just before the end of the RAN period (he says 11 November 2015) by the time Messrs Don and Peachey inspected on 1 December 2015, the pool tiles were coming due for another clean within Mr Little’s suggested cycle of monthly cleaning being appropriate.
  8. [145]
    I accept Mr Han’s evidence that he cleaned the pool tiles within the period of the RAN and thereby addressed his duty in that regard pursuant to the caretaking agreement. 
  9. [146]
    I find all breaches of duty identified in RAN 2 were remedied within the time set by the RAN and the RAN could not be relied on to support a resolution to terminate the caretaking agreement.

RAN 3

  1. [147]
    There were 7 breaches of duty out of 39 in RAN 3 requiring remediation that are relied on by the body corporate.

Lights

  1. [148]
    The duty:

3.1.5 To report promptly on all things on Common Property requiring repair and on all matters on Common Property creating a hazard or danger at the cost and expense of the Body Corporate and to take remedial action where practicable, to safeguard the Building against unlawful entry or accident.

3.1.19 … “Light Fittings”

Carry out an inspection of all light fittings and replace bulbs as required.

  1. [149]
    Particulars of the breach are that in breach of clause 3.1.19 (under the heading ‘Light Fittings’) weekly inspections have not been undertaken by the manager and light bulbs are not being replaced as there were approximately 50 fluorescent light tubes in the car park that were not working. This is followed by 2 photographs showing emergency exit signs, one lit but apparently damaged and one not lit, and 2 photographs of 2 sets of fluorescent tubes not working.
  2. [150]
    Mr Thomas for the body corporate submits Mr Han did not dispute that there were 50 lights out in his written statement of evidence but only subsequently when giving oral testimony. He said Mr Han did accept however that 5 of 6 nonworking lights photographed on 18 April 2016 were in fire stairs.
  3. [151]
    The reference to 18 April 2016 is a reference to an inspection after the expiry of the period of remediation set by the RAN by Messrs Lute and Don. They took photographs during that follow up inspection. 
  4. [152]
    Mr Han said in his statement of evidence that over the period 21 March 2016 to 10 April 2016 he carried out weekly inspections of the common property and light fittings and either replaced bulbs or tubes or engaged an electrician to repair or replace light fittings as required. That appears to have been done given the lights photographed in RAN 3 do not show in the follow up report by Messrs Don and Lute of 18 April 2016.
  5. [153]
    Mr Han said that in weekly inspections of light fittings, he found on average a blown light every month or two.[45]
  6. [154]
    Mr Thomas suggests on that basis the Tribunal should infer that Mr Han did not replace all the nonworking bulbs within the notice period set in RAN 3.  I do not think that inference is merited. I take Mr Han’s comment to be no more than a generalisation intended to convey the infrequency of discovering blown lights during weekly inspections rather than a mathematical statistic. Some tubes and light bulbs surely last longer than others of similar age and style and some surely fail when others fitted at the same time do not.
  7. [155]
    Mr Peachey said in cross-examination that a lot of the defects were the same sorts of defects week after week after week.[46] Again the evidence is far too vague and general to carry much weight. But this observation, even if it was broadly correct leading up to issue of the RAN, says nothing about whether or not lights were inspected by the caretaker and defective lights replaced during the currency of the RAN. 
  8. [156]
    I accept Mr Han remedied this breach of duty within the period of the RAN.

Fire stairs

  1. [157]
    The duty:

3.1.18 the manager shall without limiting the generality of his obligations pursuant to this agreement, keep the following areas on Common Property in a clean and neat condition:

3.1.18.1 all public foyers, lifts, stairways and utility areas.

3.1.26.5 [The manager shall] as far as the manager is reasonably able and lawfully capable of so doing to keep order on the property and take such precautions as it sees fit to safeguard the whole of the property against unlawful entry or accident or damage.

  1. [158]
    Particulars of the breach are given as the manager repeatedly failing to keep fire stairways clean which in turn creates tripping hazards and may increase the risk of injury or accidents.
  2. [159]
    That is followed by four photographs showing, apparently, dirt or other detritus on fire stair treads, a small screw on another and perhaps a piece of paper or cardboard on the last. One of the photographs of dirt on a tread has scrawl lines through the dirt.
  3. [160]
    Mr Don said he made the scrawl marks and took a photograph of the tread showing the same scrawl marks on his inspection of 18 April 2016. 
  4. [161]
    Mr Han says he swept the fire stairs on 23 March 2016, which was during the currency of the RAN.[47] In the log he drew up because he was told to do it, Mr Han also noted that he swept the fire stairs on 2 April 2016, also during the currency of the RAN.[48]  If he had swept them all one would imagine the dirt with the scrawl lines would not be there on 18 April 2016.
  5. [162]
    At hearing Mr Han was asked about the fire stair tread with scrawl lines made in dirt and directed to colour photographs of the stair exhibited to Mr Don’s statement of evidence. He said the stair depicted was not a fire stair in the scheme. He said he could not find it to clean it. He thought it was probably in the garden somewhere.[49]  
  6. [163]
    It was put to him that another photograph taken on 11 July 2016 was of the same tread and it still bore faint outlines of the same scrawl marks. Mr Han disagreed though he agreed the tread concerned may have been a tread in the fire stairs.
  7. [164]
    All the photographs appear to show the same scrawl lines.
  8. [165]
    Mr Kidston submits the photographs in the actual RAN (pages 358 and 360 in the agreed bundle of documents) were not put to Mr Han for comment. 
  9. [166]
    The transcript shows the following exchange:[50]

Mr THOMAS: Page 358 … to page 370, these are all related to keeping of the common property? … So, yeah, again, yeah   the same photo you can see, yeah.

Mr THOMAS: … if you would look through there and say whether they were completed within the 21 days … So it’s all this photo, I just want to have my say. Yeah.

Mr THOMAS: Yeah. But you – you completed? … yeah, so if it is within …

Mr Thomas: Yeah. Everything …retention scheme, I – I complete it. Yeah.

Mr THOMAS: All right. So did … you - on page 359, did you clean the fire stairs within the 21 days? …   As I say, but, you know, so as I say.      

Mr THOMAS: Did – did you clean the fire stairs within 21 days? … I cleaned the fire stairs. 

Mr KIDSTON:  He’s trying – he’s trying to – he’s trying to answer.

WITNESS: But I couldn’t find the – the bottom point.

  1. [167]
    The audio record of the hearing shows the transcription is incorrect where it records Mr Han saying ‘retention scheme’. He refers to the residential scheme. The transcript also records Mr Han saying he could not find ‘the bottom point’ but that is also a questionable transcription of his oral statement. What I conclude he was saying was that he could not find something, and that something was the fire stair tread with the scrawl markings. I conclude Mr Han was saying he cleaned all the fire stairs but did not find the one with the scrawl marks depicted in the photograph included in RAN 3 in the scheme.
  2. [168]
    Nowhere in RAN 3 is the precise location of the fire stair tread with the scrawl identified. In the particulars the photographs are said to be of the upper residential fire stairs. After Mr Han finished his evidence Mr Don was asked where the particular fire stair was and all he said was it was on a fire escape used by residents in the tower and it came out at level 1, ground level. The fire stair was very close to the lifts.[51]  
  3. [169]
    The photographs of a screw on a tread, and the scrawl marks are in black and white and of very poor quality. There is no explanation why better clearer photographs were not used. One of the photographs exhibited by Mr Don in his statement of evidence bore the date 24 February 2016 and is in colour and far clearer than the small black and white photograph appearing in the RAN. Nearly all the other photographs in the three RANs are clear and in colour.[52]  
  4. [170]
    I determine Mr Han cleared away the other small items on fire stairs depicted in the other photographs in RAN 3 because it was only the fire stair tread with scrawl marks that was commented on in the follow up inspection by Messrs Lute and Don on 18 April 2016.
  5. [171]
    Mr Han raises no issue about not being able to find the fire stair with the scrawl lines in his statement of evidence. In answer to the RAN he simply states he sweeps the fire stairs every two months and swept the fire stairs on 23 March 2016.
  6. [172]
    I accept the scrawls in dirt are made on a fire stair tread.  I accept they were there over the period of the RAN. However it is clear that Mr Han took steps to do cleaning on the fire stairs because he removed the other items shown in the other photographs in RAN 3. I also accept he cleaned the fire stairs on 23 March 2016 but also conclude that he did not do the job adequately.
  7. [173]
    I find Mr Han failed to appropriately remedy his obligation to keep a utility area, the fire stairs, on the common property, in a clean and neat condition during the currency of RAN 3.

Pool and Spa

  1. [174]
    The duty:

3.1.20 The Manager shall at all times ensure that the pools, spas, fountains and artificial watercourses and associated equipment on the Common Property are cleaned and maintained to the good standard (the cost of all chemicals, repairs and replacements to be to the Body Corporate), that such cleaning and maintenance conforms to all local government and other relevant bodies regulations, be responsible for the proper operation of pumps and filters connected to the pools, spas, fountains and artificial watercourses for the daily cleaning of the pools, spas, fountains and artificial watercourses and for ensuring that the pool and its surrounds are clean and hygienic.

3.2.2 The Manager shall carry out the directions of the Body Corporate and Committee regarding specific matters or permanent policies or procedures to be observed in the performance of the Manager’s tasks and duties and to comply with and carry out all reasonable directions from time to time given by the Body Corporate or Committee to the Manager in and about the administration and management of the Building on the performance of the Body Corporate of its lawful obligation in duties…

  1. [175]
    The particulars of the breach are given as the manager failing to clean and maintain the pool to conform to local government regulations. A letter dated 16 January 2016 from the Gold Coast City Council is referred to which advises the body corporate that the swimming pool and spa pool water was not up to quality standards set by Subordinate Local Law No. 16.2 (Swimming Pools) 2008 and Local Law No. 16 (Licensing) 2008.  Specifically the pH was not in the range of 7.2 to 7.8 and the total alkalinity level of both spa pool water was not in the range of 80 to 200 ppm. 
  2. [176]
    The particulars say further that the manager failed to remedy the problem and on 17 February 2016 the City of Gold Coast again advised the body corporate that the swimming pool and spa water was not to required standard. That in the letter of 17 February 2016 the Council noted that pseudomonas aeruginosa bacteria levels in the spa water was 2 per 100 ml and the prescribed level was nil. That pseudomonas aeruginosa infections can cause serious illnesses and a high pH level could cause skin rash and that the committee had instructed the manager to close the spa and pool but the manager had refused to comply and the request which was reasonable.
  3. [177]
    The issue about the committee instructing the manager to close the spa and pool but the manager refusing to comply was not pursued.
  4. [178]
    The RAN remediation period commenced 21 March 2016. It finished on 11 April 2016.
  5. [179]
    Mr Don said in cross-examination that a pool contractor attended every week to test the water and add chemicals. He said that the pool contractor attended to do that work throughout the period of the RAN.[53] He appears to be wrong about the frequency of such attendances.
  6. [180]
    The same contractor doing the work currently appears to have been doing it since 2011, well before the caretaker assumed responsibilities. The pool contractor sent an email to the body corporate on 8 March 2016 after the contractor was criticised by Mr Han about the pool water quality following the Council inspections.[54] The pool contractor said its employee only attended for one hour once a month. 
  7. [181]
    From the email it is clear Mr Han responded to the complaints by the Council, and that Mr Han tested the water as he was required to do,[55] and he kept daily records of the tests. The email is not clear on the point but it appears Mr Han tried to terminate the contractor’s services and the contractor was protesting to the body corporate about that. 
  8. [182]
    Mr Don agreed nobody from the body corporate checked the condition of the water or spa during the period of the RAN save for Mr Han.[56]
  9. [183]
    Mr Han said he checked chemical levels in both the pool and spa daily.[57] He took readings. The contractor confirms that. His records show that over the period of the RAN, from 21 March 2016 to 11 April 2016, the pH levels exceeded the 7.8 maximum to 8.0 on 9 occasions and once to 8.2. Similarly with respect to the spa on 8 occasions 8.0 and on three 8.2. The alkalinity levels were correct.
  10. [184]
    Subject to what is said below about unreasonableness, I conclude the caretaker failed to remedy the breach of duty of ensuring that the pool and spa were cleaned and maintained so as to conform to the local government regulations within the RAN 3 time for remediation.
  11. [185]
    I note this conclusion must result from Mr Han’s own recordings of the pool water condition. But it goes to his credibility as an honest witness that he recorded the measurements accurately and has exhibited them.

Drains

  1. [186]
    The duty:

3.1.12 To regularly check that all drainage from the Common Property is clear and functioning and remove debris if necessary.

  1. [187]
    The particulars of the breach are that the manager failed to clean drains and remove debris from them demonstrated by examples in photographs that follow, some 16 in all.
  2. [188]
    The duty here is a general obligation to check that drainage, rather than drains, is clear and functioning and to remove debris if necessary. There is no stipulated regular routine for this.
  3. [189]
    In his statement of evidence Mr Han says all the basement drains were cleaned on 6 January 2016, and the 16 photographs of drains shown in RAN 3 all predate that clean.[58]
  4. [190]
    Mr Don exhibited some photographs he took of drains in his statement of evidence.[59]  None of the photographs show any significant water blockages. The photographs mostly show leaf litter in drains.
  5. [191]
    Similarly Mr Lute exhibited photographs of drains he took on 15 April 2016 to his statement of evidence.[60] They similarly show leaf litter in drains but no significant water blockages. 
  6. [192]
    Mr Han said some of the photographs were of drains in the commercial scheme and he did not accept any of the photographs showed blocked drains.[61] I agree with him about the photographs showing no blockages.
  7. [193]
    Meteorological records tendered show virtually no rainfall in the area during the period of the RAN but on 12 April 2016,[62] the day after the remediation period of the RAN expired, a significant downfall of 69 ml occurred and then falls of 12 and 4 ml respectively on 14 and 15 April 2016. The photographs taken by Mr Don showed the state of the drains after heavy rainfall that fell after the expiry of the RAN. 
  8. [194]
    They might be taken to show that the drains successfully cleared away water rather than the opposite. They depict the state of the drains after a significant rain event occurred. There is surprisingly little leaf litter in the drains in viewing the photographs taken by Messrs Don and Lute.
  9. [195]
    What leaf litter is shown I conclude is the litter washed into the drains from other parts of the common area following the downpour and it is impossible to say whether, prior to the downpour, that the drains were or were not clear.
  10. [196]
    In this regard I note Mr Han also said he had cleaned out the drains on 6 January 2016.  The meteorological records for January 2016 show a moderate rainfall on 4, 5 and 6 January 2016 totalling 35 ml. That supports his claim, which in turn supports his claim that there was never a breach of this duty requiring remediation. All the photographs in RAN 3 predate that clean and there was no evidence led other than the evidence about the state of the drains on 15 April 2016. I conclude after 6 January 2016 the drainage were clear and functioning properly.
  11. [197]
    I conclude there was no breach of this duty to be rectified during the period of the RAN nor was there a failure to address the duty to check that all drainage from the common property was clear and functioning and remove debris if necessary during the period of the RAN.

Public Toilets

  1. [198]
    The duty:

3.1.18 The Manager shall without limiting the generality of his obligations pursuant to this Agreement, keep the following areas on Common Property in a clean and neat condition:

3.1.18.3 All public toilets and showers and any associated area.

3.1.19 The Manager shall maintain all common, garden and lawn areas on Common property to a standard appropriate to a superior residential estate. The duties shall include:

  1. (a)
    Gym/Recreational Facilities Area.
  2. (b)
    Clean toilets and showers.
  1. [199]
    In the particulars given in the RAN about breaches of this duty there is a photograph of a toilet bowl and the associated caption says that public toilet facilities have built up residue inside the bowls which evidences that the toilets are not being regularly cleaned.
  2. [200]
    Mr Han maintains he cleaned the toilets each day throughout the period of the RAN.[63]  There are 4 public toilets and they are on level 5.
  3. [201]
    Mr Don’s statement of evidence exhibits many photographs of toilets. None show they were taken during the currency of the RAN. There is a photograph of a dirty toilet bowl taken on 16 March 2016 and then the next is dated 15 April 2016. 
  4. [202]
    The body corporate submits their photographs show the same toilet with the same stains and marks taken over the period 15 March 2016 to 27 May 2016. That, says the body corporate, proves the toilet was not cleaned over the period of the RAN. The photographs relied on do not make such a clear case as argued however. Two photographs on 15 and 16 March 2016 do appear to depict the same stains to a toilet bowl, but then there is a jump to 15 April 2016 and it is arguable whether the same staining in the same toilet is depicted. This was not put to Mr Han for comment.
  5. [203]
    As commented on, one wonders why there are no photographs of the toilet during the currency of the RAN? A possibility is that this was an oversight. Another is that the toilets were found to be clean throughout the period of the RAN.
  6. [204]
    The only relevant period for consideration is the period of the RAN. I am not persuaded the photographs depict the same toilet. Had the toilet, a public toilet, not been cleaned for one month one would imagine it would be in a fairly detestable state at end.  I would not describe it as such in the photograph of 15 April 2016, but in fairly similar condition to that of 15 March 2016.
  7. [205]
    I accept Mr Han’s evidence that he remedied any breach of his duty to keep public toilets clean within the period of the RAN.

Logs

  1. [206]
    There is an identical complaint in respect of failure to keep logs as required in RAN 3 as appeared in RAN 2. For the reasons given above, this claim is similarly rejected, although this demand has impact on the reasonableness of the period prescribed in RAN 3 for compliance.

Act Reasonably

  1. [207]
    Section 94(2) of the Act requires the body corporate to act reasonably in carrying out its functions under the Act. I have found that the caretaker failed to remedy two breaches of duty in RAN 3, one concerning the pool and spa water quality and the other sweeping the fire stairs.
  2. [208]
    With respect to the fire stairs I have found the caretaker made some effort to clean them but did not do it adequately. I do not conclude that the failure created any significant danger to residents. Certainly the body corporate saw no problem leaving the sand or other substance with the scrawl lines through it on the fire stair tread for the duration of the RAN. It was a trivial breach of the caretaking agreement in all the circumstances.
  3. [209]
    Mr Thomas was asked what the position would be if in one of the RANs the caretaker failed to remedy something that was trivial, such as a failure to clean out a fire cupboard. He said what regulates that is the requirement that the committee and body corporate act reasonably. It would be wrong to terminate a caretaking agreement on a trivial matter.[64] I concur. 
  4. [210]
    With respect to the pool and spa, Mr Han used what were described as testing strips to check the water. There is no evidence about the accuracy of the strips. 
  5. [211]
    As stated, Mr Don said that the pool contractor came once a week to test the water and add chemicals. That was wrong based on the letter from the contractor.
  6. [212]
    Mr Turner said in his experience industry standard practice was for a manager to test pools and spas for chlorine and pH levels daily but then a professional pool company is also engaged at the cost of the body corporate to conduct a full and comprehensive test each week.[65] He goes on to say:[66]

If these procedures were in place then the water quality would have been maintained to the correct standards and the swimming pool contractor would usually also inspect the filtration system and adjust where necessary and advise the manager of any further maintenance.

  1. [213]
    I accept Mr Little’s evidence on this point.
  2. [214]
    Mr Han found himself in a very difficult position. The pool professional only attended once a month and that was not enough. 
  3. [215]
    From his records it was the pH that seemed to be the problem. He asked the body corporate to purchase an acid dispenser for the spa and one for the pool. Mr Han said they were automatic dispensers. He obtained a quote for that on about 4 April 2016, which was during the currency of RAN 3. The quote was from the same pool contractor who was servicing the pool. It quoted $1,730 and $1,870 respectively, $200 for installation and $30 for two 20 litre drums.[67]
  4. [216]
    Mr Han’s evidence was the body corporate refused his request.[68] That was not challenged. It is clear Mr Han was trying desperately to fix the problem of the pool and spa.
  5. [217]
    By clause 3.1.26.8 of the caretaking agreement the manager is not responsible for the repair and maintenance of the common property which requires the services of a skilled tradesperson or specialist.
  6. [218]
    I conclude given the pool professional was only attending once a month when industry practice was once a week, and the pool professional would generally be able to maintain pool and spa water quality, it was reasonable for Mr Han to ask for specialist assistance in the form of the automatic acid dispensers.  In the circumstances it would also have been appropriate to ask the body corporate that the services of the pool professional be increased to weekly servicing.
  7. [219]
    The body corporate had received two notices from the Council warning it of the problem of water quality. Maintaining the pool and spa to Council requirements was obviously beyond the caretaker given he was only assisted by the pool professionals once each month. That was made clear to the committee by the pool contractor in its email. According to Mr Don the problem of water quality was endangering the health of residents and was of huge concern to the body corporate. Despite all that the request for special assistance was refused by the body corporate.
  8. [220]
    I find that the body corporate acted unreasonably in denying the request for the automatic dispensers in the circumstances. The body corporate also acted unreasonably in relying on the failure to maintain water quality to Council requirements as a breach of the caretaking agreement justifying termination.
  9. [221]
    I add that even if I had not determined that the body corporate acted unreasonably in failing to act on the caretaker’s request for specialist assistance with respect to the pool I would have found termination of the caretaker agreement unreasonable in any case based on the short period of 21 days given in RAN 3.
  10. [222]
    The remediation period in RAN 1 was unreasonable because of the time required to create logs from inception. RANs 2 and 3 do not suffer the same problem that the caretaker must create them from inception. There was no evidence about excessive time needed to maintain logs already created as opposed to creating them.
  11. [223]
    There were however 39 breaches of duty identified in RAN 3. One involved cleaning external lights in the common areas. Mr Turner was of the opinion that that one item alone, taking into account the poor condition of the lights, could not be completed within the 21 day period set by the RAN.[69] There were approximately 70 lights in poor condition and as well as that work the caretaker had the other 38 breaches to remedy not to mention the caretaker’s daily and weekly ongoing duties to perform in the 21 day period. 
  12. [224]
    Mr Little disagreed.  He would only concede that 21 days was a short time but he thought all the work in all three RANs could be done. I prefer Mr Turner’s evidence on this point. His careful assessment of probable time required to clean the lights was persuasive.
  13. [225]
    What flows from that are two things. First I conclude, though no direct evidence was adduced on the point, that the insufficient time given by the RAN more probably than not resulted in the caretaker’s inadequate cleaning of the fire stairs. 
  14. [226]
    Second, in concurrence with the statement made in Johjen, I determine:[70]

[A]ny unreasonable demand made in a remedial action notice, not just a demand about time, will be invalid.

  1. [227]
    I therefore find that RAN 3 was invalid.

Termination Pursuant to the RANs

  1. [228]
    The statutory proscription of s 94(2) of the Act is that the body corporate must act reasonably in carrying out its functions under the Act.[71] The obligation extends to decisions by the body corporate, through its committee,[72] about what to include in a RAN and in deciding to terminate a caretaker’s contract.[73]
  2. [229]
    I conclude, given RANs 1 and 3 have been found to be invalid, and RAN 2 remedied within the prescribed time, the resolution of the body corporate passed at the extraordinary general meeting on 7 June 2016 was invalid and cannot stand.

Common Law Termination

  1. [230]
    Mr Thomas submits that the body corporate was also entitled to terminate the caretaking agreement under the common law. He cites Sands as authority for the proposition that in addition to the process of issuing RANs under s 131 of the Act the caretaking agreement may be terminated under the common law.[74]
  2. [231]
    Common law termination is justified if a condition or essential term is breached or there is a breach of an intermediate term of sufficient seriousness, the seriousness described in various ways such as frustrating the purpose of the contract, or depriving the promisee of substantially the whole benefit of the contract.[75]
  3. [232]
    That is surely not the case here. Mr Han did not admit the breaches claimed in the RANs. He simply said, this is the demand made of me, and this has been done in the time set.
  4. [233]
    If there were breaches they were rather trivial. Certainly it cannot be reasonably argued that the breaches were so extensive that the body corporate was deprived of substantially the whole benefit of the caretaking agreement.
  5. [234]
    But it is questionable whether common law termination is available in any case. 
  6. [235]
    In Sands the learned Member found s 129 of the Module allowed the parties to agree on additional methods of termination other than termination using the s 131 RAN process. He made no mention of common law termination but termination pursuant to the terms of the service contract, which was a method expressly permitted under s 129. 
  7. [236]
    Section 129 covers the field in my opinion. 
  8. [237]
    In s 128 the purpose of this Part 5 of the Standard Module is explained as providing for:

(a) the grounds on which the body corporate may terminate a person’s engagement as a body corporate manager or service contractor, or authorisation as a letting agent; and

(b) the steps the body corporate must follow to terminate the engagement or authorisation.

  1. [238]
    Section 129 then goes on to cover three ways a person’s engagement may be terminated:

(a) under the Act; or

(b) by agreement; or

(c) under the engagement or authorisation.

  1. [239]
    There is no mention of common law termination.
  2. [240]
    The Explanatory Notes for the Standard Module state:[76]

Termination of Engagement Or Authorisation

The new Standard Module provides the grounds and process by which the body corporate may terminate a person’s engagement as a body corporate manager or service contractor, or authorisation as a letting agent.

A body corporate can terminate an engagement or authorisation under the Act, by agreement or under the engagement or authorisation.

…

If the relevant contractor does not provide the expected standard of service … it is reasonable to allow the engagement or authorisation to be terminated.  The rights of a contractor are protected by a requirement that the body corporate cannot exercise its power to terminate on these grounds unless the contractor has been given a notice and the opportunity to undertake necessary action to remedy the behaviour that is the ground for the termination.

  1. [241]
    The ‘grounds’ referred to in the Explanatory Notes, I determine, refer to the failure to provide the expected standard of service.
  2. [242]
    I conclude the notice provisions established under the Standard Module are an integral aspect of the legislative scheme which strives for a balance between the rights and duties of the parties.  Common law termination, which does not require a body corporate to give a manager in breach an opportunity to remedy before terminating, is entirely different. The availability of common law termination would remove that protection of the contractor sought to be achieved under provisions of the Standard Module. 
  3. [243]
    I conclude termination under the common law is excluded under the Standard Module.

Orders

  1. [244]
    There should be a declaration that RANs 1 and 3 were invalid, and that the caretaker has complied with RAN 2. The resolution of the body corporate to terminate the caretaking agreement and letting agreement of 7 June 2016 was therefore invalid and of no effect.

Footnotes

[1] Transcript (‘T’) 2-34, Line (‘L’) 7, according to Mr Han.

[2] T5-10, L26.

[3] Section 48(1), Acts Interpretation Act 1957 (Qld).

[4] Ibid s 48(3), example 2.

[5] Ex 13 [7-8]; T3-93, L20.

[6] Ex 3, p 122 (agreed bundle).

[7] T2-100, L10.

[8] T2-104, L33.

[9] Counsel’s written submissions, page 13.

[10] Ex 3, p 445 (agreed bundle of documents between the parties).

[11] T3-23, L11.

[12] Ex 14, p 2,098 (agreed bundle).

[13] Ex 3, p 687-8 (agreed bundle).

[14] T3-31, L26.

[15] Ex 3, p 460 (agreed bundle).

[16] T3-29, L13.

[17] T3-90, L1.

[18] Ex 16, p 1,076 (agreed hearing bundle of documents).

[19] [2016] QCAT 365, [172]-[173].

[20] T3-56, L 31.

[21] Respectively RAN 2, item 9, page 346 (agreed bundle); RAN 3, item 14, page 393 (agreed bundle).

[22] RAN 2, ground 9; RAN 3, ground 14.

[23] Macquarie Online Dictionary, https://0-www.macquariedictionary.com.au.catalogue.sclqld.org.au/.

[24] [2015] HCA 37, [47], [51].

[25] Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36, [3] (Gibbs J); (1973) 129 CLR 99.

[26] (1982) 149 CLR 337; [1982] HCA 24, [22].

[27] [2002] HCA 5, [36].

[28] Ibid.

[29] T2-25, L44.

[30] T2-26, L14-20.

[31] T1-22, L12; Mr Turner, the applicant’s expert, was questioned about his assertion that the caretaker had not been given any documents by the previous caretaker at ‘handover’ (T2-46, L10). He said there were no documents available that he expected to find following a handover other than an occupier’s statement and swimming pool compliance certificate (T2-55, L39-43).

[32] [2011] QCAT 246, [22]: a decision of Judicial Member Thomas.

[33] Johjen Pty Ltd v Body Corporate for Aegean [2013] QCAT 387, [8].

[34] Seed v Body Corporate for Renaissance Golden Beach [2011] QCAT 246, [21].

[35] Johjen Pty Ltd v Body Corporate for Aegean [2013] QCAT 387, [9-10].

[36] [1984] 1 Qd R 404.

[37] Ibid 413.

[38] [2007] QSC 394.

[39] T2-56, L17.

[40] Ex 12, p 1,570 (agreed bundle).

[41] T4-77, L28.

[42] T4-77, L21.

[43] Ex 3, p 761-2 (agreed bundle).

[44] Ex 12, p 1,573 (agreed bundle).

[45] Ex 3, p 445 (agreed bundle).

[46] T4-80, L31.

[47] Ex 3, p 473 (agreed bundle).

[48] Ibid 376.

[49] T1-48, L29-31, 37.

[50] T2-14, L11-18.

[51] T2-80, L6-39.

[52] There are a couple of black and white photographs in each RAN.

[53] T4-25, L12.

[54] Ex 16, p 1,172 (agreed bundle).

[55] As required by the caretaking agreement clause 3.1.19.

[56] T4-25, L6.

[57] Ex 3, p 478 (agreed bundle).

[58] Ex 3, p 478 (agreed bundle).

[59] Ex 13, p 1,705-1,711 (agreed bundle).

[60] Ex 17, p 1,453-1,457 (agreed bundle).

[61] T1-103, L14.

[62] Ex 8.

[63] Ex 3, p 480 (agreed bundle).

[64] T5-9, L8.

[65] Ex 6, p 945 (agreed bundle).

[66] Ibid.

[67] Ex 3, p 360 (agreed bundle).

[68] Ibid 478 (agreed bundle).

[69] Ex 6, p 944 (agreed bundle).

[70] Johjen Pty Ltd v Body Corporate for Aegean [2013] QCAT 387, [10].

[71] By s 152(1), the body corporate is also enjoined to act reasonably in administering, managing and controlling the common property.

[72] Section 100(5) of the Act.

[73] The Sands Gold Coast Pty Ltd v Body Corporate for the Sands (No 2) [2016] QCAT 365, [328].

[74] Ibid.

[75] Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26.

[76] SL 2008 No. 273, 6-7.

Close

Editorial Notes

  • Published Case Name:

    Ultimate Property One Management Pty Ltd v Body Corporate for the Pivotal Point Residential Community Title Scheme 33550

  • Shortened Case Name:

    Ultimate Property One Management Pty Ltd v Body Corporate for the Pivotal Point Residential Community Title Scheme 33550

  • MNC:

    [2018] QCAT 157

  • Court:

    QCAT

  • Judge(s):

    Member Howe

  • Date:

    28 May 2018

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
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
2 citations
Jump To
Cite 1 - (1973) 129 CLR 99
Cite 2 - (1973) 129 CLR 99
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36
1 citation
Jump To
Cite 1 - [1973] HCA 36
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
3 citations
Jump To
Cite 1 - [1984] 1 Qd R 404
Cite 2 - [1984] 1 Qd R 404
Cite 3 - [1984] 1 Qd R 404
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) HCA 24
1 citation
Jump To
Cite 1 - (1982) HCA 24
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 C.L R. 337
2 citations
Jump To
Cite 1 - (1982) 149 C.L R. 337
Cite 2 - (1982) 149 C.L R. 337
Elsafty Enterprises Pty Ltd v Mermaids Cafe & Bar Pty Ltd [2007] QSC 394
2 citations
Jump To
Cite 1 - [2007] QSC 394
Cite 2 - [2007] QSC 394
Hong Kong Fir Shipping Co. Ltd v Kawaski Kisen Kaisha Ltd (1962) 2 QB 26
2 citations
Jump To
Cite 1 - (1962) 2 QB 26
Cite 2 - (1962) 2 QB 26
Johjen Pty Ltd v Body Corporate for Aegean [2013] QCAT 387
4 citations
Jump To
Cite 1 - [2013] QCAT 387
Cite 2 - [2013] QCAT 387
Cite 3 - [2013] QCAT 387
Cite 4 - [2013] QCAT 387
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37
2 citations
Jump To
Cite 1 - [2015] HCA 37
Cite 2 - [2015] HCA 37
Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5
2 citations
Jump To
Cite 1 - [2002] HCA 5
Cite 2 - [2002] HCA 5
Seed and Anor v Body Corporate for Renaissance Golden Beach [2011] QCAT 246
3 citations
Jump To
Cite 1 - [2011] QCAT 246
Cite 2 - [2011] QCAT 246
Cite 3 - [2011] QCAT 246
The Sands Gold Coast Pty. Ltd. v Body Corporate for the Sands [No. 2] [2016] QCAT 365
3 citations
Jump To
Cite 1 - [2016] QCAT 365
Cite 2 - [2016] QCAT 365
Cite 3 - [2016] QCAT 365

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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