Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2023
  4. Whatco Pty Ltd v Body Corporate for Illawong Lakes Resort CTS 22485 - [2023] QCAT 238

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Whatco Pty Ltd v Body Corporate for Illawong Lakes Resort CTS 22485[2023] QCAT 238

Whatco Pty Ltd v Body Corporate for Illawong Lakes Resort CTS 22485[2023] QCAT 238

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Whatco Pty Ltd v Body Corporate for Illawong Lakes Resort CTS 22485 [2023] QCAT 238

PARTIES:

whatco pty ltd

(applicant)

v

body corporate for illawong lakes resort cts 22485

(respondent)

APPLICATION NO

OCL055-22

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

26 June 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member McVeigh

ORDERS:

  1. Upon Whatco Pty Ltd giving the usual undertaking as to damages, the Body Corporate for Illawong Lakes Resort CTS 22485, whether by its servants, agents, employees or otherwise is restrained from acting in reliance upon the Remedial Action Notice issued 13 September 2022, until these proceedings are determined, or upon earlier order of this tribunal. 
  2. The applicant must make its application for costs within 14 days of receipt of this order. 
  3. The respondent must respond to any application for costs within 28 days of receipt of this order. 
  4. Any application for costs will be determined on the papers. 

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRETRIAL MATTERS – interim injunction – where there is a serious question to be tried – where the balance of convenience favours the granting of an interim order – where damages are not an adequate remedy

Body Corporate and Community Management Act 1997 (Qld), s 149B

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 59

Kellogg Brown & Root Pty Ltd v Australian Aerospace Ltd [2007] VSC 200

Siu and Anor v Body Corporate for Coniston CTS 23339 [2017] QCAT 113

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Applicant:

B Strangman of counsel instructed by Tobin King Lateef

Respondent:

Bugden Allen Graham lawyers

REASONS FOR DECISION

  1. [1]
    The applicant and respondent are parties to a caretaking agreement governed by the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act).  The respondent believes that the applicant has failed to carry out some of its duties under that agreement.  In September 2022 the respondent delivered a notice calling on the applicant to take remedial action.  The applicant claims that that notice is invalid and seeks to restrain the respondent from acting on it.  This is an application by the applicant for an interim order to maintain the status quo until its claim for final relief is determined. 

Background

  1. [2]
    Whatco Pty Ltd (applicant) is:
    1. (a)
      a service contractor, as defined by section 15 of the BCCM Act;
    2. (b)
      a letting agent, as defined by section 16 of the BCCM Act; and
    3. (c)
      a caretaking service contractor, as defined by schedule 6 of the BCCM Act

for the Body Corporate for Illawong Lakes Resort CTS 22485 (respondent). 

  1. [3]
    The respondent is a body corporate governed by the BCCM Act.
  2. [4]
    By a Deed of Assignment and Consent dated 24 March 2016 the applicant became a party to the Caretaking Agreement and to the Letting Agreement originally made between the respondent and Illawong Beach Pty Ltd. 
  3. [5]
    The parties subsequently entered into a Deed of Extension of Letting Authority dated 17 October 2019.  The applicant alleges that by way of that deed the respondent agreed to vary the Letting Agreement to record the exercise of option to renew by the applicant and by including a further option of 5 years.  The applicant alleges that if the options in the Letting Authority are exercised the Letting Authority will continue to 31 August 2033. 
  4. [6]
    The applicant alleges that if the options in the Caretaking Agreement are exercised the Caretaking Agreement will continue to 31 August 2033. 
  5. [7]
    In September 2022 the respondent sent the applicant a document headed ‘Remedial Action Notice’ (RAN) stating:

The Body Corporate believes that you have acted in a way mentioned in section 142(1)(b) of the Module by failing to carry out duties under the Agreement, details of which are set out in column 3 of Annexure A.

  1. [8]
    On 13 October 2022 the applicant filed an application in this tribunal seeking:
    1. (a)
      final orders:
      1. that the RAN is invalid;
      2. that the respondent is not entitled to terminate the Caretaking Agreement; and
      3. costs;
    2. (b)
      interim orders:
      1. that on the giving of the usual undertaking as to damages, the respondent be restrained from acting in reliance on the RAN until these proceedings are finally determined; and
      2. costs.
  2. [9]
    On 18 October 2022 directions were made for resolution of both the application for the interim order and the final order.  The application for the interim order was to be determined on the papers unless the parties requested otherwise.  No such request has been made.
  3. [10]
    The applicant filed its submissions and a supporting affidavit in support of its application for an interim order on 4 November 2022.  In its submissions it relies on an affidavit of William Watt sworn 12 October 2022 which was filed with its application.
  4. [11]
    The respondent did not file its submissions in response by 18 November 2022 as directed, or any time since that date.  Its response to the application was filed on 24 May 2023 and I have had regard to it when considering this interim application.
  5. [12]
    The application for the interim order was listed before me to determine on the papers on 7 June 2023. 

Relevant legislation

Queensland Civil and Administrative Tribunal Act 2009(Qld)

  1. [13]
    Before making a final decision in a proceeding, in order to protect a party’s position for the duration of the proceeding, the tribunal may make an interim order in the interests of justice.[1]
  2. [14]
    The tribunal may grant an injunction, including an interim injunction, in a proceeding if it is just and convenient to do so.[2]
  3. [15]
    In either case the tribunal may require an undertaking, including an undertaking as to costs or damages, it considers appropriate.[3]

Body Corporate and Community Management Act 1997(Qld)

  1. [16]
    The relevant enabling Act governing the dispute between the parties is the BCCM Act.
  2. [17]
    A party may apply to the tribunal about a claimed or anticipated contractual matter about the engagement of a person as caretaking service contractor or the authorisation of a person as a letting agent.[4] 

Principles

  1. [18]
    As a general statement of principle, it will be just and equitable to grant an interim injunction if the tribunal is satisfied that:
    1. (a)
      there is a serious issue to be tried; and
    2. (b)
      the balance of convenience favours the granting of the injunction, which includes a consideration of whether damages are otherwise not an adequate remedy. 
  2. [19]
    When considering the adequacy of damages as a remedy in circumstances where an application for an injunction is sought by a service contractor under the BCCM Act, senior member Brown observed in Siu and Anor v Body Corporate for Coniston CTS 23339:[5]

Should the injunction not be granted and the agreements are terminated and in the event that the Applicant is successful in the proceeding, evidence will be required of the value of the rights at some future, and unknown, point in time. The Applicant, if successful in the proceeding, will also be required to adduce evidence of the loss of income up until any sale of the caretaking and letting rights. Again, this is all speculative and uncertain. There is no evidence before the Tribunal about whether the body corporate would be in a position, at some future point in time, to satisfy a damages award in an amount presently unknown. Whether lot owners would be required to be levied or would meet such a levy is unknown. These uncertainties lead me to conclude that damages would not be an adequate remedy.

  1. [20]
    In considering whether or not to grant an interlocutory injunction pending a final hearing, all the relevant factors must be weighed up in order to take the course which appears to carry the lower risk of injustice.  In Kellogg Brown & Root Pty Ltd v Australian Aerospace Ltd[6] Hansen J held:

[45] On the matter of the approach to the grant of an injunction pending the hearing and determination of a proceeding, in Bradto Pty Ltd v State of Victoria [2006] VSCA 89 at [35] the Court of Appeal in this State, constituted by Maxwell P and Charles JA, stated that: whether the relief sought is prohibitory or mandatory, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong', in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.” (footnotes omitted) 

Discussion

Is there a serious issue to be tried?

  1. [21]
    The applicant submits that the RAN is invalid for a number of reasons:
    1. (a)
      failure to comply with the formal requirements of the Accommodation Module;
    2. (b)
      directing the applicant to undertake works that would be unlawful;
    3. (c)
      directing the applicant to perform tasks that it has no contractual obligation to perform;
    4. (d)
      the respondent’s contribution to the alleged contraventions by its failure to comply with statutory duties imposed on it;
    5. (e)
      the respondent’s alleged failure to form a reasonable belief that the applicant has failed to carry out its duties;
    6. (f)
      alternatively, that the failures have been remedied;
    7. (g)
      in the further alternative, if the alleged contraventions are found not to be remedied, that the principle of de minimis non curat lex applies. 
  2. [22]
    The respondent’s response filed 24 May 2023 joins issue with these allegations. 
  3. [23]
    There is no doubt that there is a serious issue to be tried. 

Balance of convenience

  1. [24]
    The applicant submits that the balance of convenience favours maintenance of the status quo until the final determination of the proceedings.  It describes the status quo as the respondent continuing to have the benefit of the Caretaking Agreement and the Letting Agreement until 2033, if the applicant exercises its options.  It submits that damages are not an adequate remedy as the unresolved conflict between the parties is likely to have a negative effect on the applicant’s ability to sell, or to sell at market value, its interest in the Caretaking Agreement and Letting Agreement. 
  2. [25]
    Making the interim order is the course which appears to carry the lower risk of injustice.  If the applicant is ultimately unsuccessful, the respondent will have paid it, rather than some other service provider for caretaking services.  Whereas if the respondent relies on the RAN and terminates the Caretaking Agreement the applicant will lose its income from the Caretaking Agreement and any value the Caretaking Agreement has as a saleable commodity.
  3. [26]
    If the interim order is not made and the respondent acts in reliance on the RAN and terminates the Caretaking Agreement and the applicant is ultimately successful in its application, evidence will be required of the value of its rights under the Caretaking Agreement at some future, and unknown, point in time. The applicant, if successful in the proceeding, will also be required to adduce evidence of the loss of income under the caretaking rights. Again, this is all speculative and uncertain. There is no evidence before the tribunal about whether the respondent would be in a position, at some future point in time, to satisfy a damages award in an amount presently unknown. Whether lot owners would be required to be levied or would meet such a levy is unknown. These uncertainties lead to a conclusion that damages would not be an adequate remedy. 
  4. [27]
    The balance of convenience favours granting the interim injunction.

Orders

  1. [28]
    Upon Whatco Pty Ltd giving the usual undertaking as to damages, the Body Corporate for Illawong Lakes Resort CTS 22485, whether by its servants, agents, employees or otherwise is restrained from acting in reliance upon the Remedial Action Notice issued 13 September 2022, until these proceedings are determined, or upon earlier order of this tribunal. 
  2. [29]
    The applicant must make its application for costs within 14 days of receipt of this order. 
  3. [30]
    The respondent must respond to any application for costs within 28 days of receipt of this order. 
  4. [31]
    Any application for costs will be determined on the papers. 

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), sec 58.

[2]  Ibid, s 59.

[3]  Ibid, s 58(3) and 59(6).

[4] Body Corporate and Community Management Act 1997 (Qld), s 149B.

[5]  [2017] QCAT 113.

[6]  [2007] VSC 200.

Close

Editorial Notes

  • Published Case Name:

    Whatco Pty Ltd v Body Corporate for Illawong Lakes Resort CTS 22485

  • Shortened Case Name:

    Whatco Pty Ltd v Body Corporate for Illawong Lakes Resort CTS 22485

  • MNC:

    [2023] QCAT 238

  • Court:

    QCAT

  • Judge(s):

    Member McVeigh

  • Date:

    26 Jun 2023

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
Bradto Pty Ltd v State of Victoria [2006] VSCA 89
1 citation
Jump To
Cite 1 - [2006] VSCA 89
Kellogg Brown & Root Pty Ltd v Australian Aerospace Ltd [2007] VSC 200
2 citations
Jump To
Cite 1 - [2007] VSC 200
Cite 2 - [2007] VSC 200
Siu v Body Corporate for Coniston [2017] QCAT 113
2 citations
Jump To
Cite 1 - [2017] QCAT 113
Cite 2 - [2017] QCAT 113

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.