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Vallance v Body Corporate for Silver Birch CTS 19491 QCAT 196
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Vallance v Body Corporate for Silver Birch CTS 19491 & Ors  QCAT 196
GENE VALLANCE atf THE VALLANCE FAMILY TRUST
HELEN VALLANCE ATF THE VALLANCE FAMILY TRUST
THE BODY CORPORATE FOR SILVER BIRCH COURT CTS 19491
THE BODY CORPORATE FOR crows ash COURT CTS 19366
THE BODY CORPORATE FOR EUCALYPTUS COURT CTS 19413
THE BODY CORPORATE FOR FIG TREE COURT CTS 19396
THE BODY CORPORATE FOR MAPLE COURT CTS 19593
THE BODY CORPORATE FOR SILKY OAK COURT CTS 19322
Other civil dispute matters
24 July 2019
15 April 2019
Member Richard Oliver
REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – OTHER MATTERS – duties and responsibilities of the manager – duty to repair and maintain common property – removal of green waste – where management agreement imposes responsibility on manager for maintenance of the common property – where large complex with multiple body corporates – where extensive grounds with significant vegetation and gardens – where accumulation of large quantities of green waste – whether the Body Corporates responsibility for cost of removal of green waste – where other expenditure items in dispute – whether the manager is entitled to reimbursement for additional costs of maintenance
Body Corporate and Community Management Act 1997 (Qld), s 198B, s 228, s 229
Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld), s 129
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102(3)
REASONS FOR DECISION
- The applicants, as trustees of the Vallance Family Trust, entered into management and letting agreements (‘management agreement’) with each of the respondents which collectively comprised the Forest Gardens Estate at Oxenford. This is a large community title development extending over a significant parcel of land.
- The applicants are responsible for provision of caretaking services to each of the respondents' common area pursuant to the management agreements that they entered into with each Scheme dated 1 August 2011. In the usual way, the caretaking responsibilities included general grounds maintenance, gardening, pruning of trees and shrubs, cleaning of the common areas and generally making Forest Gardens Estate presentable. The various agreements entered into with each Scheme, is virtually identical in its terms. The obligations are particularised generally and contained in clause 4 of the management agreement which relevantly provides:
The manager shall personally or by its employees, contractors or agents attend to and perform the following caretaking activities in respect of the property but only to the extent of the powers and duties of the body corporate:
- (a)attend the garden, cleaning and building maintenance of the property and so doing it shall use its best endeavours to maintain the property to the same standard as applies at the date thereof;
- (b)use its best endeavours to see that the property is kept in good order and repair;
- (d)at the request of the Body Corporate advise the body concerning the performance of the duties of the manager and provide other advice which the Body Corporate shall request relative to the management and care of the property;
- (i)comply with and carry out all reasonable directions from time to time giving in accordance with clause 19 by the Body Corporate to the manager in and about the administration and management of the property and the performance by the Body Corporate of its lawful obligations and duties;
- (k)to the best of its ability the manager shall manage the property to ensure that it is kept in first class order and repair and to protect the interest in the property of the Body Corporate and of the owners of Lots in the Complex;
- (n)to perform such other acts and things as are reasonably necessary and proper in the discharge of its duties under this agreement;
- (p)generally cause the property to be properly maintained at all times.
- In addition to the maintenance of the property as outlined above, there are also other caretaking matters that are provided for in the management agreement which are addressed in clause 5.
Notwithstanding the manager’s caretaking activities contained in clause 4, it is acknowledged that the caretaking activities do not extend work (sic) which ordinarily involves the services of a skilled tradesman. In respect of matters involving the services of a skilled tradesman:
- (a)the function of the manager is limited to supervision and ensuring that the work is carried out; and
- (b)it is the Body Corporate’s responsibility to engage at its expense the tradesman.
- These obligations imposed on the applicants under the agreement are relevant to what occurred at the Forest Gardens in the middle of 2017. A dispute developed between the applicants and the respondents about the applicants’ maintenance of the common areas, the catalyst of which was the accumulation of green waste on the common property due not only to the significant quantities of green waste, but also about its disposal. The local transfer station operated by the Gold Coast City Council was now charging for green waste disposal, whereas before it was free if taken by the applicants in their own utility vehicle. The applicants were of the view that, under the agreement, the respondents were responsible for the cost of the disposal of the green waste. The respondents took contrary view.
- The respondents also had other complaints about the maintenance of the common property. They had their solicitors, ABKJ Lawyers, write to the applicants on 14 June 2017 setting out the various complaints. Subsequently, there was an exchange of correspondence between the solicitors for the Body Corporates and the applicants’ solicitors but no consensus was reached.
- On 26 March 2018 ABKJ Lawyers wrote to the applicants enclosing two Remedial Action Notices (RAN) dated 26 March 2018. One in respect of the green waste issue and the other concerning the state of the drains on the common property. The remedial action notice is a formal notice given under s 129 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (‘Accommodation Module’) which sets out the powers of the Body Corporate if the body corporate manager or service contractor, here the applicants, do not comply with the notice or fails to carry out the obligations under the management agreement.
- As a result of receiving the RANs, the applicants filed an application in the Tribunal on 16 April 2018 seeking the following orders:
- We require a ruling as to who was financially responsible for the removal of Body Corporate green waste.
- If ruled as a responsibility of the Body Corporate, were the RANs issued valid.
- To be awarded costs involved in submission of QCAT application.
- Reimbursement of costs associated with removal of green waste to comply with the RANs by letter of apology to all owners from the Body Corporate committees, as this has adversely affected not only our efforts to sell our business but the relationship with the owners.
- Attached to that application are various documents including photographs of the complex as well as the RAN issued on 26 March 2018 in respect of the green waste issue. The management letting agreement is also annexed to the application. Although the respondents issued another RAN in respect of the cleaning of the drains on the common property this did not feature in the original application, but amendments were made to cover this. There had also been an earlier RAN issued on 24 August 2017 where the respondents sought certain information about the management of the complex, referred to as the information RAN, and this was later addressed in an amendment to the application.
- By the time the matter came on for hearing in the Tribunal, all the RANs had been satisfied and there was no issue with compliance. However, the applicants wanted to persist with the application to try and get some clarification as to their responsibilities under the management agreement, in particular about the ongoing cost of disposal of green waste.
- To ensure all issues in dispute were dealt with, the applicants filed an amended application addressing these further specific issues, amendments 1-5. The issue about green waste removal and the additional issues were the subject of the hearing in the Tribunal on 15 April 2019.
- For the purposes of determining the whole amended application, I have considered both parties’ submissions in respect of the green waste issue and each amendment and make findings accordingly. Each amendment seeks a substantive ruling by the Tribunal, in addition to costs and other incidental orders but I will deal with those matters at the conclusion of the reasons.
- For a RAN to be valid it must comply with s 129(4) of the Accommodation Module. That section provides:
- (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); or
(b) details of the action sufficient to identify -
(ii) the duties the Body Corporate believes have not been carried out; or
(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 -
(ii) carry out the duties; or
(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 reference to subsection (1) is here relevantly:
- (d)fails to carry out duties under the agreement;
- The jurisdiction conferred on the Tribunal is set out in s 149B of the Body Corporate and Community Management Act which provides that a party to a dispute may apply to the Tribunal as provided for under the QCAT Act ‘for an order of QCAT exercising the Tribunal’s original jurisdiction to resolve a dispute’. The purpose of Chapter 3 is, relevantly here, under s 228(d) to establish arrangements for resolving disputes arising under the engagement of persons as Body Corporate managers. The remedies provided for in respect of complex disputes is set out in s 229 which provides:
- (a)the resolution of the dispute by –
(ii) an order of QCAT exercising the tribunal’s original jurisdiction under the QCAT Act.
Green Waste Issue
- There seems to be no dispute that the applicants’ responsibility under clause 4 of the management agreement includes such jobs as: seasonal pruning of trees and shrubs, cutting back dead palm fronds, and arranging and supervising the removal of excess green waste from the property. However, what is not clear from the management agreement is how the green waste is to be removed from the common property and who bears the cost of doing so. Initially, the applicants did this using their own utility vehicle, with the cost of fuel reimbursed, to take the waste to the Gold Coast Council transfer station. They could dump the waste without charge but the Council now includes a charge because it regards waste from community title scheme developments as commercial waste.
- The issue that has now arisen is who is to pay the cost of the removal of waste and dumping fees. There is nothing in the agreement specifically imposing a contractual obligation on the applicants to bear the cost of this dumping of the green waste nor is there any obligation on them to use their own vehicle for this purpose. However, the fact that the respondents reimbursed the applicants for fuel costs certainly suggests they recognise some responsibility for the cost of removal of waste.
- The solution now provided by the applicants is that the respondents supply and pay for a hire skip to be placed strategically at a location on the common arear that is not intrusive. It can be filled and removed as necessary, with such arrangements to be made by the applicants but the cost of doing so to be borne by the respondents.
- The respondents don't necessarily disagree with this solution but contend that the applicants cannot, under clause 9 of the management agreement, pledge the respondents’ credit to procure the skip, nor is it unreasonable for the committees to refuse to pay for this outlay, which they say is the responsibility of the applicants under clause 4. Clause 4, on its plain reading imposes no such obligation.
- As for the contention that the placement of a skip might be unsightly, I merely observe that given the size of the grounds, and the benefit to the respondents overall, one would sensibly assume the skip can be located discretely somewhere on the common property. Also I would observe, that it may not be necessary to have it there all the time, but only when a pruning programme is under way. It is not for me to make any decision about these issues.
- What it comes down to, in my view, is that green waste is the same as any other waste generated by the various complexes, whether it be general waste, recycle waste or green waste. The disposal of waste is the responsibility of the various Body Corporates. As the management agreement is silent as to who is responsible for the cost of disposal of green waste, I am of the view it is the responsibility of the respondents and it is in their interests that this occur. How this is achieved from a practical perspective, whether with the use of a skip or stockpiling then loaded up and taken away, is a matter to be worked out between the applicants and the respondents. That is not something that can be determined by the Tribunal.
- Despite the finding as to who is responsible for the cost of disposal of green waste, I am not prepared to find that the remedial action notice issued 26 March 2018 was invalid because of the uncertainty both parties entertained at the time. This was, perhaps, brought about because of the history of removal of the waste by the managers using their own vehicle, which it seems was a gesture of goodwill.
- This relates to the RAN issued by Fig Tree Court, Maple Court, Silky Oak Court, Silver Birch Court, Crows Ash Court, and Eucalyptus Court on 24 August 2017 pursuant s 129 of the BCCM Act. Each Notice is in identical terms and is a request for information under clause 4(d) of the management agreement. The notices contain the particulars of the information sought which need not be recited here.
- However, in Amendment 1, the applicants seek a ruling from the Tribunal as to whether the RAN ‘in relation to general information was valid’.
- Under clause 4(d) of the management agreement the applicants have certain responsibilities, and one of those is to provide advice or information to the Body Corporates, in response to a request, in respect of the management and care of the common property. Clearly, the respondents are entitled to request such information as long as it relates to the manager’s obligations under clause 4.
- To give some context to the issuing of the RAN they were preceded by correspondence from the respondents’ solicitors on 14 June 2017 which I have referred to above. Particulars of the respondents’ concerns were provided and were responded to by the applicants. It is unnecessary to go into the detail but clearly there was dispute between the parties about compliance with the management agreement.
- Matters escalated with a further letter from ABKJ Lawyers on 3 July 2017 with specific complaints and a schedule setting out the information sought by each of the respondents. That letter generated a response form the applicants’ then solicitors, Pevy Lawyers in an attempt to try and resolve some of the issues, the main one being the disposal of green waste, but unfortunately, by the response from ABKJ Lawyers the parties became somewhat entrenched in their respective positions.
- There is one other piece of relevant correspondence and that is from the applicants’ new solicitors, Mahoneys, which directly challenged the validity of the information sought in the schedule to ABKJ letter of 3 July 2017.
- The correspondence demonstrates that the respondents held the belief, presumably in reliance on the advice from their solicitors, that the applicants were not complying with their obligations under the management agreement. It was on the basis of the contest between the parties as to the matters raised in the correspondence that the remedial action notices were issued on 24 August 2017 under section 129 of the Accommodation Module. Subsection 4 authorises the Body Corporate to issue the remedial action notice if it ‘believes’ that the manager has not complied with the obligations under the management agreement. It would seem to me, that given that the subsection refers to the Body Corporates’ belief, it is necessarily the subjective belief of those individuals that constitute the Body Corporate that is relevant with the obvious rider that the belief must be reasonable and not capricious or vindictive.
- The correspondence shows that the Body Corporate held a strong and genuine belief that the managers were not complying with the terms of the management agreement and also presumably, acted on the advice of the solicitors. Unless it can be established that the Body Corporate could not have held a genuine belief as to those matters, then it follows that the RANs issued by the respective Body Corporates are valid.
- The relief sought in amendment 2 effectively seeks a declaration that Crows Nest Court, Fig Tree Court and Silky Oak Court acted unreasonably in issuing a remedial action notice concerning the slotted drains in the common area. The relevant part of the notice provides:
You have failed to attend the cleaning of the property and usual best endeavours to maintain the Property to the same standard as at the date of the Deed of Engagement and Authorisation, because the entrance driveway drain on common property contains leaves and grass, as particularised Assessment Item 7 in Report 1 and assessment item 11 in Report 2
- The first thing to note about this complaint is that the applicants contend that the drains never operated properly after they took over the management of the complex. Whether that is true or not I cannot say. Each drain has a cast iron grate covering it which is screwed or fixed to the drain casing. I accept the applicants’ evidence that it is very heavy and in places rusted to the drain casing making it extremely difficult to remove. The other difficulty with the drainage is that the storm water pipes to and from the particular drains have become clogged with debris, grass and perhaps roots over the years and, according to the applicants, these pipes need to be ratted to clean them. This is an electrical screw type cleaning device that is run down the drains and usually operated by a plumber.
- Ultimately approval was obtained to engage a plumber to affect repairs to the drains and it is evident that the PVC piping connecting the drains was damaged and also the grates fixed to the drain casing. The applicants’ contention here is essentially that the extent of the work required to clean the drains is not included as part of their responsibilities under the management agreement but requires specialised trade work. They accept that hosing the drains out to keep them clear is within their mandate under the agreement providing the drains do in fact work in the first place.
- In paragraph 66 of the respondents’ submission it is contented that contention that this work falls under the heading ‘check all garden areas, pick up litter/dead foliage and dispose of including drain areas’. It is obvious that there is some ambiguity to that particular description of work and it would seem to me that the obligation would not include the work involved clearing blocked drains that have clogged up over the years as is pictured in the photographs to the applicants’ material. Also if specialised equipment is required to lift the grates, that would be the responsibility of the Body Corporates, as it is not specified in the management agreement.
- Once again, the respondents are satisfied that the remedial action notice has been satisfied. However, insofar as the notice related to work in addition to simply cleaning out the drains which would not require a specialised trade, the reasonable action notices were reasonable. Insofar as they related to the pipes to and from the drains caused by wear and tear and blockages over the years, they were not reasonable.
- What is sought by amendment 3 is:
… a ruling to determine if the committee acted fairly and if they were in breach of our contract by withdrawing all previous funds and withholding payments and refusing to pay for work specifically requested by the committees …
- There is a fundamental difficulty with the relief sought by this amendment. What the applicants are asking is for the Tribunal to provide advice to them about some potential cause of action to recover monies they claim are payable to them by the committees. The expenses claimed relate to the cleaning of the various mailboxes in front of each complex as well as other expenses not be being reimbursed such as fuel for the mower, cans of spray paint, and other maintenance items. There is also an order sought that the applicants be given proper funding under clause 9(a) of the management agreement.
- With respect to the mailbox cleaning, the photographs show that the mailboxes are contained in a brick structure which is commonly seen in front of home unit complexes. They become dirty and mouldy from time to time particularly, where there is considerable vegetation surrounding the mailboxes. The applicants say they made attempts to clean the mailboxes, or at least some of them, with high-pressure water but there were residual stains from tree tannins. The body corporate does not have a high-pressure water cleaner as part of the equipment supplied to the applicants for cleaning and maintenance and therefore a contractor was used to undertake this cleaning. Despite attending to this, the various body corporate refused to pay the contractor or reimburse the applicants for this cost.
- It is patently obvious that major cleaning projects like the mailboxes which can only be cleaned with specialised equipment and chemicals goes beyond the obligations of the applicants as set out in paragraph 4 of the management agreement. This is a specialised service for which a contractor is required. and for this, either the Bodies Corporate individually should cover this cost, or reimburse the applicants for that cost if necessary. To do otherwise is in my view is simply being uncooperative, and does not foster a good relationship between the various Bodies Corporate and the applicants who have to work together to ensure that the lot owners are best served through this cooperation.
- Similar comments can be made with respect to reimbursement of petrol and other minor expenses like spray cans of paint. It seemed obvious to me during the course of the hearing that the behaviour of both parties to the dispute over such minor items in a large complex does not help either party to carry out their obligations under the management agreement.
- Under this amendment the applicants seek a ‘ruling’ to determine if the Body Corporate manager and committee members acted fairly and in accordance with the Act and agreements in respect of making defamatory statements; involving committee members in areas that of no concern to them; lack of communication; by-law enforcement; lack of urgency to deal with repairs and maintenance.
- These matters, although particularised in the submission made by the applicants, are not matters upon which this Tribunal can make ‘rulings’. They are general complaints going to the relationship between the applicants and the respondents’ committee members. The Tribunal’s function is not an advisory one, to provide direction and guidance to both the applicants and the respondents as to how they should conduct themselves in the discharge of their obligations under the management agreement. If there is any complaint giving rise to a proper ground for relief and intervention by the Tribunal, then the Tribunal can make a decision. But the decision must be in respect to a specific complaint for which appropriate relief can be granted.
- The Tribunal has no power, nor does it have jurisdiction, to provide the general advisory opinions about the conduct of particular parties in under the management agreement.
- This amendment is similar to that of amendment 4 in that it requires the Tribunal to make a ‘ruling to determine who was responsible for the repairs/maintenance of the Body Corporate shed, landing and communal stairs’.
- The shed is used to store equipment used by the applicants for the maintenance of the whole of the Forest Gardens complex. It is obviously in the interests of Forest Gardens to maintain the shed in good and usable repair, whether for the current manager or subsequent managers.
- It seems obvious from the photos annexed to the part of the application setting out the particulars of amendment 4 that the stairs and the floor of the shed are in a state of disrepair. It also does not seem contentious that the shed, even if it was not constructed by the Birch Body Corporate it is on the common property of Birch. It certainly does not form part of the Lot occupied by the applicants.
- It would seem to me, assuming it is on the common property of Birch Body Corporate, or at least on the common property of one of the Body Corporates, it is that Body Corporate’s responsibility for maintenance and upkeep. I really do not have enough information to determine this question but again the relief sought is advisory in nature and not specifically covered by the management agreement. This is not a decision the Tribunal can make in the circumstances.
- The Tribunal has no jurisdiction to order specific parties to make apologies under the BCCM Act or the QCAT Act. Furthermore the RANs were complied with although the applicants had specific complaints about the content of the RANs.
- The applicants have not been legally represented apart from engaging lawyers to correspond with the applicants as referred to above. However, the Tribunal is constrained in making any decision about costs because of s 100 of the QCAT Act which prescribes that each party should bear their own legal costs. Self-represented litigants generally have no entitlement to costs although the section only makes reference to ‘costs’. There are exceptions contained in s 102(3) but none of those exceptions are applicable in this application.
- Given the nature of the relief sought in the application and the subsequent amendments and the findings above, it is difficult to make any definitive final orders. I have found that:
- (a)The respondents are responsible for the cost of the disposal of all green waste;
- (b)The information remedial action notices with respect to information sought from the applicants was a valid notice;
- (c)The respondents are responsible for the cost of or reimbursement of the cost of clearing the drains caused by wear and tear and accumulation of debris which necessarily involved a tradesperson;
- (d)The respondents are responsible for the costs of cleaning the letterbox structure insofar as commercial cleaning was required;
- (e)I make no finding as to who is responsible for the upkeep of the shed; and
- (f)The applicant is not entitled to costs.
- It is for the parties to work together to apply the findings above in the future implementation of the management agreement.
- Published Case Name:
Gene Vallance & Anor v Body Corporate for Silver Birch CTS 19491 & Ors
- Shortened Case Name:
Vallance v Body Corporate for Silver Birch CTS 19491
 QCAT 196
24 Jul 2019