Seeiseo Pty Ltd v Body Corporate for Taralla Apartments
[2018] QCAT 352
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- Unreported Judgment
- Seeiseo Pty Ltd v Body Corporate for Taralla Apartments[2018] QCAT 352
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Seeiseo Pty Ltd v Body Corporate for Taralla Apartments[2018] QCAT 352
Seeiseo Pty Ltd v Body Corporate for Taralla Apartments[2018] QCAT 352
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Seeiseo Pty Ltd v Body Corporate for Taralla Apartments [2018] QCAT 352 |
PARTIES: | SEEISEO PTY LTD (applicant) v BODY CORPORATE FOR TARALLA APARTMENTS CTS 15627 (respondent) |
APPLICATION NO/S: | OCL035-18 |
MATTER TYPE: | Other civil dispute matters |
DELIVERED ON: | 16 October 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Howe |
ORDERS: | Matter OCL035-18 is dismissed. |
CATCHWORDS: | REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – where the caretaker commenced proceedings in the Tribunal seeking appointment of a value to determine remuneration – where the respondent body corporate took steps to appoint a valuer before decision by the Tribunal – where the caretaker no longer claiming that relief in the Tribunal – where the caretaker sought general review of the preceding three years of remuneration paid – where the grounds for seeking relief on the basis of fairness – where no provision in the caretaking agreement for such review – where no dispute of a contractual nature disclosed in the caretaker’s application or supporting material – where body corporate filed interlocutory application to have the proceedings dismissed Body Corporate and Community Management Act 1997 (Qld), s 149B Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(1)(b) General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 |
REPRESENTATION: |
|
Applicant: | Self-represented by C Lawrence |
Respondent: | Nicholsons Solicitors |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
- [1]Seeiseo Pty Ltd (‘SPL’) is the caretaker under a caretaking and letting agreement with Body Corporate for Taralla Apartments CTS 15627 (‘BC’) for Taralla Apartments at Noosa Heads.
- [2]Prior to SPL taking over the caretaking duties, the caretakers were Mr and Mrs Darcey who commenced as caretakers in or about 1996. A new caretaking agreement was entered into between Mr and Mrs Darcey and BC from 1 March 2014 (the caretaking agreement). That new caretaking agreement was assigned to SPL by Mr and Mrs Darcey from 26 March 2015.
- [3]SPL maintain that a major renovation of the apartments occurred in 2016 and the work of the caretaker has increased in result but it is not reflected by the remuneration set by the caretaking agreement.
- [4]In 2016 SPL engaged a contractor to review the work of the caretaker and the remuneration appropriate for the work. The contractor provided a report but a resolution moved in 2017 at a general meeting of BC that the remuneration of the caretaker be increased in terms of the recommendations in the review was not passed.
- [5]SPL filed an application in the Tribunal on 1 May 2018 seeking orders alternatively that a valuer be appointed in accordance with the caretaking agreement or that the schedule of duties identified in the review report by the contractor in 2016 be implemented. Further that BC be ordered to pay SPL costs and damages in an amount of $75,411.07.
- [6]On 14 June 2018 BC applied to the Tribunal for an order dismissing or striking out SPL’s claim which application now falls for consideration.
- [7]After SPL commenced proceedings BC took steps to have a valuer appointed as provided for by the terms of the caretaking agreement. In result SPL no longer seeks orders about such which means the only claim pursued by SPL is the claim for costs and damages.
- [8]BC submit there is no dispute as required by the Body Corporate and Community Management Act 1997 (Qld) (‘the Act’) enlivening the jurisdiction of the Tribunal to deal with SPL’s remaining claim (nor indeed the other claim no longer pursued by SPL).
The Caretaking Agreement
- [9]The remuneration of the caretaker is provided for in the caretaking agreement. The initial term is for 5 years commencing on 1 March 2014 and expiring on 28 February 2019 and the agreement provides for an additional 4 extensions for 5 years each. The caretaking agreement is automatically extended unless SPL advises BC that it does not want to continue with the caretaking contract.
- [10]There is provision for review of the caretaker’s remuneration at the start of each 5 year extension. By clause 3.1 and 3.2:
- The Manager may by written notice to the Body Corporate given no later than three months prior to the next Adjustment Date requested (sic) appointment of a Valuer to determine a fair level of remuneration for carrying out the Management Duties to take effect from the next succeeding Adjustment Date.
- If no such request has been made, then the Manager’s Fee as at the commencement date of the next Option Term will be determined as provided for in clause 5 (sic).
- The Valuer for the purposes of determining the Manager’s Fee by adjustment:
- Will be agreed between the Body Corporate and the Manager within one month of the Manager requesting a review under clause 3.1;
- If not so agreed, will be appointed by the president or chairperson of the appointing Body at the request of the body Corporate provided such person has relevant experience in determining prevailing rates for services of the type provided for in this agreement;
- Must …
- Determine the adjustment having regard to:
- The Management Duties ….
- [11]The reference in clause 3.2 to clause 5 appears to be intended to be a reference to clause 6. Clause 5 simply says BC must do all things reasonably required to facilitate the Manager’s activities under the agreement.
- [12]Clause 6.4 relevantly provides:
6.4 From and including 1 November 2015 onwards, on each 1 November annually after that, the total Manager’s fee for the previous period (being 1 November in the previous year to 31 October in the current year), is adjusted by the lesser of:
- a CPI increase on the then current Manager’s Fee; or
- a 5% increase on the then current Manager’s Fee.
The adjusted amount will be the Manager’s Fee from 1 November of that year until it is adjusted again under this agreement.
6.6 Notwithstanding the results of the adjustment … the Manager’s fee will not be less than the current Manager’s fee.
- [13]The scheme seems clear. The agreement is for periods of 5 years and at the start of each 5 year term the remuneration for the caretaker’s duties is set for the next 5 years, with annual increases of the lesser of 5% increase or CPI.
- [14]It is not clear whether the annual November increases have all been paid, however according to SPC’s claim for costs and damages the manager’s fees paid for 2015-16 was $19,646, for 2016-17 $19,936 and then for 2017-18 $20,245 which indicates small annual increases.
- [15]But SPL does not identify any basis upon which it says it is entitled to the difference between the remuneration it agreed to take as set out in the caretaking agreement and the contractor’s estimate of the value of work done over the period 2015 to 2018 other than more money is fair. There is no suggestion that the difference arises by entitlement under the contract between the parties.
- [16]SPL says for the last 3 years it has performed additional work to the scope of its duties under the caretaking agreement. It wants to be paid for it. BC variously does not agree that the work is additional to the scope of work under the caretaking agreement or in so far as SPL has performed additional work, then SPL has been advised it is not required.
- [17]SPL’s claim is a mix of wanting more money for work done within the agreed scope of the caretaking contract and extra money for extra work done outside the agreed scope of work (including the cost of engaging the contractor without the agreement of BC).
- [18]The caretaking agreement makes no provision for review of remuneration outside the 5 year review process established in clause 3.1 and the annual increments allowed by clause 6.4.
- [19]The current claim as framed raises no dispute about any contractual matter associated with the caretaking service contract for determination by the Tribunal. The claims are outside the contractual arrangements agreed between the parties.
- [20]In an email from SPL to BC on 17 August 2017 SPL which is to be found in the supporting documentation to SPL’s initiating application SPL says it would like a review of the terms of its service and remuneration. SPL said it wanted terms which were fair. There is no mention of contractual entitlement to more money. SPL goes on to say in the email that if the Chairman of the body corporate committee did not agree (about fair remuneration) then a ‘dispute’ existed and SPL could apply to the Tribunal.
- [21]A dispute in terms of s 149B of the Act enlivening the Tribunal’s jurisdiction must be more than simply a difference of opinion on a subject outside the terms of the caretaking contract. A dispute enlivening the Tribunal’s jurisdiction to deal with the dispute must be about a claimed or anticipated contractual matter.[1] There must be a contractual issue in contention. A dispute for the purpose of jurisdiction needs be more than a difference of opinion about whether agreed terms of engagement of a caretaker lack commercial profitability on the part of one of the parties.
- [22]Similarly the vague claim for damages for injury to business reputation seems well outside the Tribunal’s jurisdiction over contractual disputes between the parties.
- [23]
Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim.[3]
- [24]I conclude the current application is futile as it presently stands and lacks substance.
- [25]Pursuant to s 47(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the latter is a ground justifying the proceedings being dismissed or struck out. I consider that is the appropriate course to take here.
- [26]For the sake of completeness, and to forestall possible future litigation between the parties, I observe and clarify that whilst the caretaker’s entitlement to any increase in remuneration is limited to the 5 year review process provided for under the caretaking agreement, likewise the option to continue (through to 2039) or choose to terminate the caretaker contract early lies entirely at the discretion of the caretaker, not BC. Nothing changes that, whether the caretaker’s remuneration increases, significantly or otherwise, on a 5 year review.
- [27]The parties will be allowed to make submissions on costs, but the parties should be mindful that the usual order in the Tribunal is that each party bear their own costs.
Footnotes
[1] By s 149B of the Act: ‘(1) This section applies to a dispute about a claimed or anticipated contractual matter about— (a) the engagement of a person as a body corporate manager or caretaking service contractor for a community titles scheme; or (b) the authorisation of a person as a letting agent for a community titles scheme. (2) A party to the dispute may apply …(b) as provided under the QCAT Act, for an order of QCAT exercising the tribunal’s original jurisdiction to resolve the dispute.’
[2] [1964] HCA 69.
[3] [1964] HCA 69, [10].