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  4. Justlainer Pty Ltd atf the Trevor and Allison Black Family Trust v The Body Corporate for Ko Huna Resort Village CTS 27120 - [2023] QCAT 351

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Justlainer Pty Ltd atf the Trevor and Allison Black Family Trust v The Body Corporate for Ko Huna Resort Village CTS 27120[2023] QCAT 351

Justlainer Pty Ltd atf the Trevor and Allison Black Family Trust v The Body Corporate for Ko Huna Resort Village CTS 27120[2023] QCAT 351

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Justlainer Pty Ltd atf the Trevor and Allison Black Family Trust v The Body Corporate for Ko Huna Resort Village CTS 27120 & Anor [2023] QCAT 351

PARTIES:

JUSTLAINER PTY LTD AS TRUSTEE FOR THE TREVOR AND ALLISON BLACK FAMILY TRUST

(applicant)

v

THE BODY CORPORATE FOR KO HUNA RESORT VILLAGE CTS 27120

(first respondent)

THE BODY CORPORATE FOR KO HUNA RESORT VILLAGE ACCOMMODATION CTS 27481

(second respondent)

APPLICATION NO/S:

OCL072-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

7 September 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

  1. 1.The proceedings are dismissed.
  2. 2.Any applications on the question of costs must be made within 28 days of the date of this order.  In the event such an application is made, the party seeking costs shall file in the Tribunal and serve on the other party written submissions within 14 days of filing and serving the costs application. The other party may file and serve any written submissions in response within 14 days of being served with the written costs submissions. Unless either party requests an oral hearing, the costs application will then be determined on the papers.

CATCHWORDS:

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – where proceedings for dispute about contractual matter commenced – where trustee a party to the contract – where new trustee appointed – whether applicant a party to the contract – whether chose in action assigned to applicant

Body Corporate and Community Management Act 1997 (Qld), s 149B, s 227, Schedule 6

Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld), s 120

Trust Act 1973 (Qld), s 15

ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia [2014] NSWCA 402

Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352

Mijac Investments Pty Ltd v Graham (No 2) [2009] FCA 773

Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd [2018] VSC 633

APPEARANCES & REPRESENTATION:

Applicant:

Barron & Allen Lawyers

First and Second Respondent:

Cornwalls

REASONS FOR DECISION

Introduction

  1. [1]
    The parties to these proceedings are:
  1. (a)
    Justlainer Pty Ltd as trustee for the Trevor and Allison Black Family Trust (‘the Applicant’);
  2. (b)
    the Body Corporate for Ko Huna Resort Village CTS 27120 (‘the Principal Scheme’)
  3. (c)
    the Body Corporate for Ko Huna Resort Village Accommodation CTS 27481 (‘the Subsidiary Scheme’).
  1. [2]
    On 8 August 2019, the Applicant commenced proceedings against the Principal Scheme and the Subsidiary Scheme for breach of contract.
  2. [3]
    On 8 March 2022, the Principal Scheme and the Subsidiary Scheme lodged an application seeking to have the proceedings struck out.
  3. [4]
    The strike out application relies on a number of grounds, the first of which is that the Applicant lacks standing to bring the proceedings.  For the reasons which follow, the issue of standing is determinative of the proceedings.

Factual background

  1. [5]
    Three agreements relevant to these proceedings were entered into on 19 December 2003.  They were:
  1. (a)
    a caretaking agreement between the Principal Scheme and MPRM Management Pty Ltd (‘the Principal Caretaking Agreement’);
  2. (b)
    a caretaking agreement between the Subsidiary Scheme and MPRM Management Pty Ltd (‘the Subsidiary Caretaking Agreement’); and
  3. (c)
    a letting authority between the Subsidiary Scheme and MPRM Management Pty Ltd (‘the Subsidiary Letting Authority’).
  1. [6]
    The Principal Scheme and the Subsidiary Scheme, respectively, subsequently approved the assignment of the rights under the agreements from MPRM Management Pty Ltd to Tulip Pty Ltd in 2007.  Tulip Pty Ltd subsequently changed its name to Ko Huna Sands Holding Pty Ltd.
  2. [7]
    On 7 October 2010, Ko Huna Sands Holdings Pty Ltd (Receivers and Managers Appointed) entered into a number of deeds.  They were:
  1. (a)
    a deed of engagement with the Principal Scheme, engaging it to provide caretaking services on the same terms and conditions as the Principal Caretaking Agreement, subject to certain variations;
  2. (b)
    a deed of assignment with the Principal Scheme, assigning its interest in the Principal Caretaking Agreement to Ruth Allison Black as trustee for the Trevor and Allison Black Family Trust;
  3. (c)
    a deed of engagement with the Subsidiary Scheme, engaging it to provide caretaking services on the same terms and conditions as the Subsidiary Caretaking Agreement, subject to certain variations;
  4. (d)
    a deed of authorisation with the Subsidiary Scheme, authorising it to provide letting services on the same terms and conditions as the Subsidiary Letting Authority, subject to certain variations; and
  5. (e)
    a deed of assignment with the Subsidiary Scheme, assigning its interests in the Subsidiary Caretaking Agreement and the Subsidiary Letting Authority to Ruth Allison Black as trustee for the Trevor and Allison Black Family Trust.
  1. [8]
    In summary, upon entry into the deeds set out above, Mrs Black as trustee for the Trevor and Allison Black Family Trust became the caretaker and letting agent, respectively, on substantially the same terms and conditions as set out in Principal Caretaking Agreement, the Subsidiary Caretaking Agreement and the Subsidiary Letting Authority.
  2. [9]
    In October 2013, Mrs Black was removed as trustee for the Trevor and Allison Black Family Trust, and Black Trevally Pty Ltd was appointed as trustee. 
  3. [10]
    In February 2015, Black Trevally Pty Ltd was removed as trustee for the Trevor and Allison Black Family Trust, and the Applicant was appointed as trustee.

Standing

  1. [11]
    It is trite to state that a trust is not a separate legal entity, and the trustee stands as the legal owner of the trust property.  As Leeming JA observed in ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia [2014] NSWCA 402 at [16]:

Subject to statute, a trust has no separate legal personality from the trustee. An obligation incurred by a trustee, whether or not it is properly incurred in accordance with the trustee's obligations as trustee, may ordinarily be enforced in the same way as an obligation incurred by a person who is not a trustee.

  1. [12]
    The legal owner of the caretaking and letting rights, following entry into the deeds as set out above, was Mrs Black.  That is to say, the contractual relationships in existence were between Mrs Black and the Principal Scheme and the Subsidiary Scheme, respectively.
  2. [13]
    It follows that there was at no time been any privity of contract between the Applicant and the Principal Scheme or the Subsidiary Scheme.  This presents an obstacle where the Applicant has commenced proceedings in respect of a dispute about contractual matters against the Principal Scheme and the Subsidiary Scheme, respectively.
  3. [14]
    The Applicant’s principal argument is that section 51(1) of the Trusts Act 1973 (Qld) (‘the TA’) vested all of the property of the trust, including the caretaking and letting rights, in the new trustee.  That is to say, the Applicant’s argument is that it became the legal owner of the caretaking and letting rights upon its appointment as trustee.
  4. [15]
    Section 15(1) of the TA provides:

Where a new trustee is appointed the instrument of appointment vests, subject to the provisions of any other Act, the trust property in the persons who become and are the trustees as joint tenants without any conveyance, transfer or assignment.

[emphasis added]

  1. [16]
    The difficulty with the Applicant’s argument is two-fold:  First, section 15(1) contains an express proviso that it is ‘subject to the provisions of any other Act’.  Second, section 15(5) of the TA contains a further proviso that the vesting of property is ‘subject to [any requisite] consent’.  The sub-section provides:

Where the consent of any person is requisite to the conveyance, transfer or assignment of any trust property the vesting of that property in accordance with the provisions of this section is subject to that consent; but the consent may be obtained after the execution of the instrument of appointment or discharge by the persons who are then trustees.

[emphasis added]

  1. [17]
    The provisions of section 120(1) of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld) (‘the BCCMR’) appear to me to engage the provisos in both sub-sections 15(1) and 15(5) of the TA which I have identified above.  It provides:

A person’s right under an engagement as a body corporate manager or service contractor, or under an authorisation as a letting agent, may be transferred only if the body corporate under the engagement or authorisation approves the transfer.

  1. [18]
    Section 120(3) of the BCCMR provides that a body corporate may have regard to several factors in deciding whether to approve a proposed transfer:
  1. (a)
    the character of the proposed transferee and related persons of the proposed transferee; and
  2. (b)
    the financial standing of the proposed transferee; and
  3. (c)
    the proposed terms of the transfer; and
  4. (d)
    the competence, qualifications and experience of the proposed transferee and any related persons to the proposed transferee, and the extent to which the transferee and any related persons have received or are likely to receive training; and
  5. (e)
    matters to which, under the engagement or authorisation, the body corporate may have regard.
  1. [19]
    Section 120(4) of the BCCMR provides that a body corporate must decide whether to approve the proposed transfer within 30 days after it receives the information reasonably necessary to decide the application.
  2. [20]
    Section 120(6) of the BCCMR also provides that a body corporate cannot unreasonably refuse a transfer, and must not require or receive a fee or other consideration for approving the transfer.
  3. [21]
    The purpose of these provisions was set out in the Regulatory Impact Statement as follows:

These transfer provisions provide significant flexibility to body corporate managers, service contractors and letting agents to assign their rights to another party. This provision particularly protects letting agents and service contractors, who have usually invested significant funds in purchasing the letting or caretaking rights, from significant financial loss if they are unable to continue their role.

However, this flexibility is balanced with provisions that protect owners from being disadvantaged by the transfer by allowing the body corporate to refuse a transfer to a particular transferee on reasonable grounds and to also seek reimbursement for costs reasonably incurred in considering the transfer.

  1. [22]
    The evident purpose of section 120 of the BCCMR is to strike a balance between:
  1. (a)
    the ability of caretakers or letting agents to assign their rights; and
  2. (b)
    the interests of the bodies corporate to ensure that caretakers and letting agents are of good character, financial standing and are capable of performing the duties under the respective engagements.
  1. [23]
    For completeness, I note that the provisions of section 120 of the BCCMR are substantially replicated in clause 11 of each of the Principal Caretaking Agreement, the Subsidiary Caretaking Agreement and the Subsidiary Letting Agreement.
  2. [24]
    As noted above, the Applicant’s argument is that it should be considered as holding the respective caretaker and letting agent rights under each of the Principal Caretaking Agreement, the Subsidiary Caretaking Agreement and the Subsidiary Letting Agreement.  The failure by Mrs Black, Black Trevally Pty Ltd and the Applicant to seek approval of the transfer means that the Principal Scheme and the Subsidiary Scheme did not have the opportunity to assess the matters in section 120(3) of the BCCMR firstly in respect of Black Trevally Pty Ltd, and subsequently in respect of the Applicant.
  3. [25]
    In my view, section 120 of the BCCMR engages the provisos in sub-sections 15(1) and 15(5) of the TA set out above, so as to prevent the vesting of the contractual rights under caretaking agreements and letting authorisations in a new trustee unless the transfer is approved by the body corporate.  The decision whether to approve the transfer is subject to the provisions of section 120 of the BCCMR, including that it must not be unreasonably withheld.
  4. [26]
    There is no evidence before me that the approval of the transfer by the Principal Scheme or the Subsidiary Scheme was ever sought by Mrs Black, or that Mrs Black ever provided the information reasonably necessary for such an approval to be given.  In those circumstances, no approval decision has been made by the Principal Scheme or the Subsidiary Scheme.
  5. [27]
    It follows that the Applicant is not a party to the Principal Caretaking Agreement, the Subsidiary Caretaking Agreement and the Subsidiary Letting Agreement, and therefore had no standing to commence the proceedings.

Chose in action

  1. [28]
    In the alternative, the Applicant has argued that the right to sue the Principal Scheme and the Subsidiary Scheme for breach of contract is a chose in action, and that this chose in action was transferred from Mrs Black to Black Trevally Pty Ltd to the Applicant by virtue of section 15(1) of the TA.
  2. [29]
    This argument does not appear to be open to the Applicant in proceedings before the Tribunal in its original jurisdiction having regard to the provisions relating to contractual disputes contained in the Body Corporate and Community Management Act 1997 (Qld) (‘the BCCMA’).
  3. [30]
    Section 149B of the BCCMA provides:
  1. (1)
    This section applies to a dispute about a claimed or anticipated contractual matter about—
  1. (a)
    the engagement of a person as a body corporate manager or caretaking service contractor for a community titles scheme; or
  2. (b)
    the authorisation of a person as a letting agent for a community titles scheme.
  1. (2)
    A party to the dispute may apply—
  1. (a)
    under chapter 6, for an order of a specialist adjudicator to resolve the dispute; or
  2. (b)
    as provided under the QCAT Act, for an order of QCAT exercising the tribunal’s original jurisdiction to resolve the dispute.
  1. [31]
    The term ‘contractual matter’ is defined in Schedule 6 of the BCCMA as follows:

contractual matter, about an engagement or authorisation of a body corporate manager, service contractor or letting agent, means—

  1. (a)
    a contravention of the terms of the engagement or authorisation; or
  2. (b)
    the termination of the engagement or authorisation;
  3. (c)
    the exercise of rights or powers under the terms of the engagement or authorisation; or
  4. (d)
    the performance of duties under the terms of the engagement or authorisation.
  1. [32]
    Section 227 of the BCCMA relevantly defines ‘dispute’ as follows:
  1. (1)
    A dispute is a dispute between—

…

  1. (d)
    the body corporate for a community titles scheme and a caretaking service contractor for the scheme; or

…

  1. (f)
    the body corporate for a community titles scheme and a letting agent for the scheme; …
  1. [33]
    Many decisions have identified statutory causes of action that are incapable of assignment because they are ‘personal causes of action’ rather than ‘impersonal rights in the nature of a proprietary right’: see, eg, Mijac Investments Pty Ltd v Graham (No 2) [2009] FCA 773, [32]; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352, [49]-[55]; Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd [2018] VSC 633, [52]ff.  The terms of section 149B of the BCCMA place it in this category. 
  2. [34]
    In my view, the right to commence proceedings in the Tribunal’s original jurisdiction under section 149B of the BCCMA is a personal right available only to specified persons, and is therefore incapable of assignment. Section 149B(2) specifies that ‘a party to the dispute’ may apply to the Tribunal in its original jurisdiction. The definition of ‘dispute’ makes it clear that the parties are, relevantly, the body corporate, the caretaking service contractor and the letting agent. As I have found that it was not a caretaking service contractor or letting agent, the Applicant is not a party to this dispute.
  3. [35]
    It follows that the right to commence proceedings under section 149B of the BCCMA has not vested in the Applicant, and remains with Mrs Black.

Disposition

  1. [36]
    Given my findings above that the Applicant does not have standing to commence the proceedings, I will dismiss the proceedings.
  2. [37]
    The parties may make written submissions on the question of costs in the event that a costs order is sought within 28 days hereof.
Close

Editorial Notes

  • Published Case Name:

    Justlainer Pty Ltd atf the Trevor and Allison Black Family Trust v The Body Corporate for Ko Huna Resort Village CTS 27120 & Anor

  • Shortened Case Name:

    Justlainer Pty Ltd atf the Trevor and Allison Black Family Trust v The Body Corporate for Ko Huna Resort Village CTS 27120

  • MNC:

    [2023] QCAT 351

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    07 Sep 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
ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia [2014] NSWCA 402
2 citations
Jump To
Cite 1 - [2014] NSWCA 402
Cite 2 - [2014] NSWCA 402
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352
2 citations
Jump To
Cite 1 - [2006] FCA 1352
Cite 2 - [2006] FCA 1352
Mijac Investments Pty Ltd (ACN 084 820 280) v Graham (No 2) [2009] FCA 773
2 citations
Jump To
Cite 1 - [2009] FCA 773
Cite 2 - [2009] FCA 773
Pentridge Village Pty Ltd v Capital Finance Australia Ltd [2018] VSC 633
2 citations
Jump To
Cite 1 - [2018] VSC 633
Cite 2 - [2018] VSC 633

Cases Citing

Case NameFull CitationFrequency
Justlainer Pty Ltd ATF the Trevor and Allison Black Family Trust v The Body Corporate for Ko Huna Resort Village CTS 27120 [2025] QCATA 522 citations
1

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