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  4. Body Corporate for the Lakes-Cairns CTS 28090 v Sunshine Group Australia Pty Ltd - [2023] QCAT 39

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Body Corporate for the Lakes-Cairns CTS 28090 v Sunshine Group Australia Pty Ltd[2023] QCAT 39

Body Corporate for the Lakes-Cairns CTS 28090 v Sunshine Group Australia Pty Ltd[2023] QCAT 39

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Body Corporate for the Lakes-Cairns CTS 28090 v Sunshine Group Australia Pty Ltd [2023] QCAT 39

PARTIES:

BODY CORPORATE FOR THE LAKES-CAIRNS CTS 28090

(Applicant)

v

SUNSHINE GROUP AUSTRALIA PTY LTD

(Respondent)

APPLICATION NO:

OCL097-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

1 February 2023

HEARING DATE:

24 January 2023

HEARD AT:

Brisbane

DECISION OF:

Member Roney KC

ORDERS:

  1. The application filed by the Applicant for leave to amend the application is allowed.
  2. The Applicant shall pay the costs of the application to amend, and the Respondent’s costs thrown away by reason of the amendment to be assessed on the District Court scale or to be agreed
  3. The application seeking to have the entire proceeding transferred to the Supreme Court is dismissed.

CATCHWORDS:

BODY CORPORATE AND COMMUNITY MANAGEMENT – COMPLEX DISPUTE – JURISDICTION – where original application a complex dispute within s 149B of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) – Application to have caretaking Agreement set aside or declared void  – declaration – where Tribunal does not have jurisdiction to grant a declaration – extent of the jurisdiction of the Tribunal to “resolve the dispute” under s 149B of the BCCMA – whether “dispute” for the purposes of s 149B includes the matters raised by the amended application in these proceedings – whether Tribunal has “accrued” jurisdiction in respect of the application – whether Tribunal has “inherent” jurisdiction in respect of the application – whether jurisdiction conferred by s 9(4) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) in respect of the application – whether the proceedings or part of the proceedings should be transferred under s 52 of the QCAT Act- whether a complex dispute

Application to amend the claims and relief sought from QCAT, principles to be applied on application to amend

Body Corporate and Community Management Act 1991 (Qld), s 15 s 149B, s 227, s 229, Schedule 6

Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Qld) s 76

Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld) s 114

Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Qld) s 127

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 52 s 64

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), rule 48

Breeze Mr Pty Ltd v Body Corporate for Bay Village Community Titles Scheme 33127 (2021) 9 QR 90

Dream Suburbs Pty Ltd ABN 582 477 245 56 v Body Corporate for Persse Palace Community Titles Scheme 48289 & Ors [2019] QCAT 373

Dunlop & Anor v Body Corporate For Port Douglas Queenslander CTS 886 & Ors [2021] QSC 85

Hartnett v Hynes [2009] QSC 225

Henderson & Anor v The Body Corporate for Merrimac Heights [2011] QSC 336

James v The Body Corporate Aarons Community Title Scheme 11476 [2002] QSC 386

James v The Body Corporate Aarons Community Title Scheme 11476 [2003] QCA 329

Monto Coal 2 Pty Ltd v Sabrus Pty Ltd [2014] QCA 267

National Parks and Wildlife v Stables Perisher Pty Ltd (1990) 20 NSWLR 573

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412

Randall v Body Corporate for Runaway Cove Bayside CTS 25498 [2011] QCATA 10

Reynolds v Body Corporate for Mount View Apartments [2018] QCAT 283

Sheehy v Body Corporate for Marlin Cove [2008] QCCTBCCM 14

Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & Downie [2022] QCATA 3

The Sands Gold Coast Pty Ltd v Body Corporate for the Sands CTS 14967 [2016] QCAT 69

World Firefighters Games Brisbane v World Firefighters Games Western Australian Inc & Ors [2001] QSC 164

APPEARANCES &

REPRESENTATION:

Applicant: S Moody of Counsel, instructed by WGC Lawyers

Respondent: B Strangman of Counsel instructed by Small Myers Hughes Lawyers

REASONS FOR DECISION

  1. [1]
    The Applicant is the Body Corporate for the Lakes-Cairns CTS 2890 and is the principal body corporate for a layered community title scheme comprised by 18 subsidiary bodies corporate. It conducts its affairs at 2 Greenslopes Street, Cairns North. It was established as the relevant body corporate in approximately 2000 when the first CMS for the scheme was registered.
  2. [2]
    The Scheme is regulated by a current CMS which was registered on 21 December 2016, and the statutory Standard Module now applies, although initially a different module applied. I will refer to this issue shortly for its relevance.
  3. [3]
    The Respondent, Sunshine Group Australia Pty Ltd (“Sunshine Group”) is, it is common ground between the parties, a service contractor within the meaning of that term in s 15 of Body Corporate and Community Management Act 1991 (‘BCCM Act’). That was enlivened by the terms of a caretaking agreement which was signed to Sunrise Group in August 2014 to engage it other than as an employee of the body corporate, for a period of greater than one year, to supply services other than administrative services to the body corporate for the benefit of the common property in the scheme.
  4. [4]
    In large part, the dispute between the parties to this application, which I shall describe in that way in generic terms for present purposes, arises out of the terms of a caretaking agreement, and its proper interpretation and which applies to the conduct by Sunshine Group of its caretaking activities.
  5. [5]
    Originally in 2000, before Sunshine Group was involved, the Body Corporate entered into a written contract with another entity pursuant to which it was appointed the complex manager to be the caretaker and letting agent for the scheme for 25 years. It also purported to appoint the caretaker to be a letting agent, although it appears to be common ground that there are no lots in the scheme which are capable of being the subject of a letting agent authorisation under the BCCM Act, and no letting activities have ever taken place.
  6. [6]
    In 2014, the caretaking agreement was assigned by the original caretaker to Sunshine Group.
  7. [7]
    Critically for the purposes of the issues for determination here are what the terms of the caretaking agreement provided for the method of calculation of and payment of remuneration by way of a management fee to the caretaker.
  8. [8]
    Clause 4 of the Caretaking Agreement is titled “Remuneration” and provides:

4.1 Management Fee The Body Corporate shall pay the Complex Manager a management fee for the discharge of its duties as caretaker / manager, in accordance with rates detailed in the Schedule to this agreement. The fee shall:

4.1.1 accrue from day to date for the duration of the agreement; and

4.1.2 be payable calendar monthly in arrears.

  1. [9]
    The Schedule to the Caretaking Agreement provided:

Management Fee First year of term: $98,275.00

Second and each subsequent year of Term:

An amount determined, in each instance, by reference to the following:

  • Consumer Price Index movement;
  • Increases or decreases in charges of contractors supplying services or goods to the Complex Manager;
  • The services required to be provided by the Complex Manager under this agreement during the relevant year and the extent thereof;
  • The stage the development of the complex has reached;
  • The extent of the services to be provided under this Agreement taking into account the extent of the common property and the stage of the development of the complex has reached or will be reached during the relevant year. If agreement cannot be reached between the parties within thirty (30) days after the commencement date of the relevant year of the term, interim payments of the base fee will be made at the rate of 110% of the previous base fee until such time as agreement is reached or the matter is resolved by arbitration.
  1. [10]
    For the purposes of my analysis, I will refer to these factors to which reference was required to be made as “the review factors”.
  2. [11]
    As may be seen from these provisions, in the first year of the term, which was almost 23 years ago, the management fee to be paid was some $98,275 but since then, very significantly larger sums have been paid purportedly under the terms of the agreement, or at least paid to the complex manager in purported performance of its obligations under that agreement. By way of example, by 2005 the sum which was paid was in excess of $600,000 per annum, by 2014 it was just short of $800,000. After 2014 the body corporate paid to Sunshine Group even greater sums, and in the period from 2016 until 2021, the sum was approximately $876,000. In total, over the period of the caretaking agreement, the total of $6,715,827.61 has been paid by way of caretaking fees to Sunshine Group as the caretaker. This is obviously well in excess of the amount to be paid for the first year of the term, multiplied by the number of years for which the agreement has been in operation and payments made.
  3. [12]
    The dispute between the parties has had a long history well before any proceedings were initiated in this Tribunal by the Body Corporate in October 2020. In the 2020 application, which it is presently sought that there be a grant of leave to amend to make new, and indeed almost entirely different claims, the body corporate sought an order that a binding review be conducted in respect of the management fee payable to the caretaker for the 2015/2016 financial year, and further orders ancillary to it that the binding review be conducted by a particular individual in specified circumstances.
  4. [13]
    The summary of the reasons for which such an order was sought was that having regard to the terms of the management agreement, and the reviews which were to occur on the second and each subsequent year of the agreement on the basis of a number of factors, called generally “review factors”, the fees payable under the management agreement had not been properly reviewed in accordance with those review factors. In other words, they sought to affirm the existence of applicable review factors which bound the parties, but argued that there had not been a review in accordance with those review factors.
  5. [14]
    Paragraph 7 of the application identified the dispute between the parties as being one about:
    1. (a)
      The property approach for the review of the remuneration; and
    2. (b)
      The appropriate amount of remuneration to be paid for the 2016 year.
  6. [15]
    There are two applications under consideration before me. The first is an application filed by the applicant Body Corporate seeking that it be permitted to amend the relief it seeks in the application and the second is an application for directions seeking the transfer of the entire proceeding to the Supreme Court in the vent that the amendment application is allowed.
  7. [16]
    The 2020 application went to some considerable length to explain the basis for the application. It relied upon s. 149B of the BCCM Act and contended that this was a dispute about a claimed or anticipated contractual matter about the engagement of a person or caretaking service contractor for a community titles scheme, and that a party may apply for an order of a specialist adjudicator to resolve the dispute or apply to QCAT exercising its original jurisdiction. It sought to apply the terms of s. 229(2) of the Act which I shall refer to shortly, but which provided that the only remedy for a complex dispute, of which this was an example, is the resolution of it by a specialist adjudicator or an order of QCAT.
  8. [17]
    Both parties accept that the application as then brought in 2020 was one properly brought before QCAT pursuant to s. 149B, and that it was a complex dispute within the terms of s. 229(2).
  9. [18]
    Counsel for the Applicant Body Corporate conceded that the specific orders or remedies sought directing that a binding review be conducted by a particular individual were beyond the scope of orders which QCAT could make. That does not mean however, that QCAT could not resolve the dispute by making orders, even if those orders might not have been able to be made specifically. No part of the present application requires me to consider whether in fact those orders could or ought properly have been made. Suffice it to say that the Applicant now seeks to abandon entirely both the orders, and the basis for which it sought those orders in the 2020 application.
  10. [19]
    The 2020 application went to considerable length to identify the background to the relevant subsidiary schemes and a long history of liaison, negotiation and disputation between the Applicant, the previous manager and the current Respondent. It referenced the existence of a caretaker’s valuation services report which the Applicant body corporate obtained and which purported to identify the amount which was to be paid per year, apparently applying the proper so-called “review factors”.
  11. [20]
    The 2020 application also referenced another non-binding review which took place in September 2015 and the failure in 2015 of each of the parties’ representatives to progress a review. Reliance was placed upon clause 15.1 of the management agreement which required that all questions or differences between the parties shall be referred for conciliation, and the fact that in September 2016 the body corporate initiated the Australian Dispute Centre process for resolving commercial disputes by conciliation. It alleges that the parties were not satisfied with the outcome of that process, and abandoned it, and instead agreed to make an application to the Commissioner for Body Corporate and Community Management for a specialist adjudication. That application for a specialist adjudication was made in 2017 by the Body Corporate, but it was withdrawn before it was determined, pursuant to s.245(4) of the Act. The next step then was to bring the 2020 application in this Tribunal.
  12. [21]
    That 2020 application, with its attached rounds was 16 pages in length, and clearly drawn by qualified solicitors acting for the body corporate.
  13. [22]
    In the present application, what the Applicant body corporate seeks to do is to apply for orders, that if required to do so, the 2020 application be amended in terms by which, in effect, the entire relief, and all of the bases for it set out in the 2020 application would be abandoned and quite different relief sought, conceptually founded upon an entirely different proposition, namely that the caretaking agreement was, and at all material times been, void at law, and that in consequence various things flow.
  14. [23]
    Section 76 of the (now repealed) Accommodation Module 1997 relevantly stated at all material times between 1 July 2000 and 30 August 2008:

“76 Form of engagement [SM, s 78]

  1. (1)
    The engagement of a person as a body corporate manager or service contractor is void if the engagement does not comply with the requirements stated in subsection (2).
  1. (2)
    The engagement must—
  1. (a)
    be in writing; and
  1. (b)
    state the term of the engagement, including—
  1. (i)
    when the term begins and when it ends; and
  1. (ii)
    the term of any right or option of extension or renewal of the engagement; and
  1. (c)
    state the functions the body corporate manager or service contractor is required or authorised to carry out; and
  1. (d)
    state the basis on which payment for the body corporate manager’s or service contractor’s services is to be worked out;

and

Examples of paragraph (d)—

  1. 1.A body corporate manager’s payment could be calculated on the basis of an amount per lot.
  1. 2.A body corporate manager’s payment could include charges calculated on the basis of a stated amount per telephone inquiry or a stated amount for attendance fees for additional committee or general meetings.
  1. [24]
    Section 114 of the (now repealed) Accommodation Module 2008 relevantly stated at all material times between 30 August 2008 to 1 March 2021:

114 Form of engagement [SM, s 116]

  1. (1)
    The engagement of a person as a body corporate manager or service contractor is void if the engagement does not comply with the requirements stated in subsection (2).
  1. (2)
    The engagement must—
  1. (a)
    be in writing; and
  1. (b)
    state the term of the engagement, including—
  1. (i)
    when the term begins and when it ends; and
  1. (ii)
    the term of any right or option of extension or renewal of the engagement; and
  1. (c)
    state the functions the body corporate manager or service contractor is required or authorised to carry out; and
  1. (d)
    state the basis for working out payment for the body corporate manager’s or service contractor’s services; and

Examples—

  1. 1.A body corporate manager’s payment could be calculated on the basis of an amount per lot.
  1. 2.A body corporate manager’s payment could include charges calculated on the basis of a stated amount per telephone inquiry or a stated amount for attendance fees for additional committee or general meetings.
  1. [25]
    A similar provision may be found in Section 127 of the Accommodation Module 2020 which is current.
  2. [26]
    The contention now sought to be advanced by the Body Corporate is that s.76 of the now repealed Accommodation Module 1997, provided in the period from July 2000, when the caretaking agreement was entered into, and August 2008 that the engagement of a person as a body corporate manager or service contractor is “void if the engagement does not comply with the requirements stated in subsection 2”. The subsection 2 requirements relied upon included that the agreement was required to “state the basis on which payment for the body corporate managers’ or service contractors’ services is to be worked out.
  3. [27]
    It is not necessary to resolve the issue of what, if any, prospects the Applicant has in respect of its argument that the caretaking agreement is void on that basis having regard to its terms. The submission is made that it must go much further than is provided for in this agreement which does not in truth state a basis upon which the payment is to be worked out. In part, reliance is placed upon the examples referenced in the former s.76 of the Accommodation Module 1997 set out above and which refer to two definitive examples, namely it being calculated on the basis of an amount per lot, or charges calculated on the basis of a stated amount per telephone enquiry or stated amount for attendance fees for additional committee or general meetings. I express no concluded view about it, however those examples are unlikely to be treated as in any way limiting the broad language which references the requirement to state the basis on which the payment “is to be worked out”.
  4. [28]
    The first alternative form of relief in the proposed application is sought if the “Court” should find that the Caretaking Agreement is not void ab initio pursuant to s 76(1) of the Accommodation Module 1997 and/or s 114(1) of the Accommodation Module 2008 and/or s 127(1) of the Accommodation Module 2020 for want of compliance with s 76(2)(d) of the Accommodation Module 1997 and/or s 114(2)(d) of the Accommodation Module 2008 and/or s 127(2)(c) of the Accommodation Module 2020.
  5. [29]
    It is sought to be alleged that from 1 July 2000 to 30 August 2008, the Caretaking Agreement could only be amended to increase the remuneration paid to the Complex Manager if: (a) by s 85(1)(c) and (2)(a) of the Accommodation Module 1997 – the Body Corporate passed an ordinary resolution approving the amendment and, for the passing of the resolution, no votes were exercised by proxy; (b) by s 85(1)(c) and (2)(b)(ii) of the Accommodation Module 1997 – the motion approving the amendment was decided by secret ballot; (c) by s 85(1)(c) and (2)(c) of the Accommodation Module 1997 – the material forwarded to members of the Body Corporate for the general meeting that considered the motion to approve the amendment included an explanatory note in the approved form explaining the nature of the amendment; (d) by s 76(2)(a) of the Accommodation Module 1997 – the Caretaking Agreement, as varied by the amendment to increase remuneration, was in writing; and (e) by s 76(2)(d) of by s 76(2)(d) of the Accommodation Module 1997 – the Caretaking Agreement, as varied by the amendment to increase remuneration, stated the basis upon which the Complex Manager’s remuneration (as varied) was worked out.
  6. [30]
    It is alleged that those conditions were not met.
  7. [31]
    Similar arguments are raised about increases after 2008.
  8. [32]
    It is sought to be alleged that the Remuneration Increases: (a) do not comply with the statutory provisions; (b) did not have the effect of lawfully or validly varying the Caretaking Agreement; (c) are void pursuant to s 76(1) of the Accommodation Module 1997 and/or s 114(1) of the Accommodation Module 2008 and/or s 127(1) of the Accommodation Module 2020; and (d) are not binding on the Body Corporate as lawful or valid variations to the Caretaking Agreement.
  9. [33]
    It is sought to be alleged that since the purported assignment of the Caretaking Agreement to SGA on 27 August 2014, the Body Corporate: (a) has been in dispute with SGA about: (i) the amount of remuneration to which SGA is entitled as Complex Manager under the Caretaking Agreement; and  (ii) the methodology by which the Complex Manager’s remuneration is to be increased pursuant to the Schedule of the Caretaking Agreement; and (the Dispute); (b) has, since 1 July 2015, in purported compliance with the Schedule to the Caretaking Agreement, paid to SGA an annual increase of 10% on the Complex Manager’s remuneration (the 10% Increases).
  10. [34]
    It is alleged that the Body Corporate has paid the 10% Increases with an express reservation of rights that the Body Corporate could recover any amount found to have been overpaid.
  11. [35]
    The relief that is now sought in the proposed application, were leave to be permitted to bring it, is as follows:

29. The Body Corporate seeks the following orders:

  1. (a)
    A DECLARATION that the Caretaking Agreement is void ab initio pursuant to s 76(1) of the Accommodation Module 1997 and/or s 114(1) of the Accommodation Module 2008 and/or s 127(1) of the Accommodation Module 2020; and
  1. (b)
    AN ORDER that SGA repay to the Body Corporate all monies paid to it under the void Caretaking Agreement from 27 August 2014 up to the date of judgment in the sum of $[TBA]; [Note, as at the date of filing, the total amount paid by the Body Corporate to SGA under the purported Caretaking Agreement is $6,715,827.61.] or alternatively:
  1. (c)
    A DECLARATION that the TLM Remuneration Increases and/or 10% Increases are not valid variations to the Caretaking Agreement, or alternatively that they are void ab initio pursuant to s 114(1) of the Accommodation Module 2008 and/or 127 of the Accommodation Module 2020; and
  1. (d)
    A DECLARATION that the Complex Manager’s remuneration under the Caretaking Agreement is $98,275.00; and
  1. (e)
    AN ORDER that SGA should repay to the Body Corporate all monies paid to it in excess of the annual remuneration to which it was entitled (namely, $98,275.00 pa) in the sum of $[TBA] or alternatively:
  1. (f)
    AN ORDER that the Respondent repay to the Body Corporate the sum of $[TBA] representing the 10% Increases paid to it between 2015 up to the date of judgment; and
  1. (g)
    Interest;
  1. (h)
    Costs.
  1. [36]
    Counsel for the Applicant Body Corporate contends that none of the relief in paragraphs 29(a) through to (e) inclusive of the claim set out in the preceding paragraph for relief is within the jurisdiction of this Tribunal and for that reason, as well as others, if the leave application is granted, the entire matter ought be removed or transferred to the Supreme Court which, she contends, would have jurisdiction to determine those issues.
  2. [37]
    She concedes that the relief sought in subparagraph 29(f) that the Respondent repay to the body corporate the sum representing the 10% increases paid to it between 2015 and up to the date of judgment falls within the scope of the jurisdiction of this Tribunal, but that it could properly be transferred also with the balance of the disputed issues.
  3. [38]
    I will return to this issue shortly, but it is critical to note that this is not merely an order for declaratory relief that relates to the original invalidity, or indeed the voidness of the caretaking agreement, but also for other orders, including money orders that relate to the consequences of monies having been paid purportedly to a caretaker under the terms of a caretaking agreement.
  4. [39]
    Paragraph29 (d) seeks an order which in effect is a finding about the amount which the complex manager’s remuneration is, on a construction of that agreement. That is alternative relief, which does not depend on, and indeed is inconsistent with the premise that the caretaking agreement is void. The ancillary relief in support of this is also for monies claimed for amounts paid in excess of the annual remuneration.

The application to amend

  1. [40]
    I will deal first with the application to amend. It is common ground that this Tribunal made orders on 3 November 2021 which gave leave for the Applicant body corporate to file an amended application on or before 21 December 2021. It is common ground that had the Applicant done so, that the Respondent would have no legitimate objection to making the amendments to the application which are now sought. Faintly, the applicant argued that perhaps it did not really need to bring the application because that order had not been vacated and that a further grant of leave was not required. This contention was not seriously pressed. It seems to me that the leave was one limited to do so something within a particular time, and it not having been done in that time, no present leave exists. It therefore is necessary to decide whether to grant the relevant leave.
  2. [41]
    The power to allow this amendment is in The relevant principles are in my view to be derived from decisions of other superior courts which have considered the circumstances in which amendments are sought to raise new, or indeed entirely new claims in relevant proceedings.
  3. [42]
    Section 64 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) gives a discretion to allow such an amendment. It bears similarities to the equivalent discretionary powers in Rule 375 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) applied by the civil courts.  
  4. [43]
    Rule 375 UCPR provides:

“375 Power to amend

  1. (1)
    At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or any other document in a proceeding in the way and on the conditions the court considers appropriate.
  1. (2)
    The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.
  1. (3)
    If there is misnomer of a party, the court must allow or direct the amendments necessary to correct the misnomer.
  1. [44]
    Various factors might properly inform the application of those broad principles in a given case. In at Hartnett v Hynes [2009] QSC 225 at [27],[1] the following 12 principles with respect to amendments were identified. They have since been adopted and applied by the Supreme Court on numerous occasions (eg Monto Coal 2 Pty Ltd v Sabrus Pty Ltd [2014] QCA 267 at [73]-[74]:[2]

“The principles discussed by the High Court in Aon inform the exercise of the discretion to grant leave to amend a claim pursuant to UCPR 377 and the discretion to allow or direct a party to amend a claim or a pleading pursuant to UCPR 375. I have already referred to some of these principles in discussing the operation of UCPR 5 in the case of amendments made without leave pursuant to UCPR 378 and the Court’s power to disallow such amendments or make directions concerning further amendment of a claim or a pleading in order to avoid prejudice to the other party and to comply with the rules of civil procedure and their purpose. In the context of the present application and in respect of amendments to the claim or the statement of claim for which leave is required, the following principles assume importance:

  1. 1.An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation.
  1. 2.The discretion is guided by the purpose of the rules of civil procedure, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense.
  1. 3.There is a distinction between amendments which are necessary for the just and expeditious resolution of “the real issues in civil proceedings” and amendments which raise new claims and new issues.
  1. 4.The Court should not be seen to accede to applications made without adequate explanation or justification.
  1. 5.The existence of an explanation for the amendment is relevant to the Court’s discretion, and “[i]nvariably the exercise of that discretion will require an explanation to be given where there is a delay in applying for amendment”.
  1. 6.The objective of the Court is to do justice according to law, and, subject to the need to sanction a party for breach of its undertaking to the Court and to the other parties to proceed in an expeditious way, a party is not to be punished for delay in applying for amendment.
  1. 7.Parties should have a proper opportunity to plead their case, but justice does not permit them to raise any arguable case at any point in the proceedings upon payment of costs.
  1. 8.The fact that the amendment will involve the waste of some costs and some degree of delay is not a sufficient reason to refuse leave to amend.
  1. 9.Justice requires consideration of the prejudice caused to other parties, other litigants and the Court if the amendment is allowed. This includes the strain the litigation imposes on litigants and witnesses.
  1. 10.The point the litigation has reached relative to a trial when the application to amend is made is relevant, particularly where, if allowed, the amendment will lead to a trial being adjourned, with adverse consequences on other litigants awaiting trial and the waste of public resources.
  1. 11.Even when an amendment does not lead to the adjournment of a trial or the vacation of fixed trial dates, a party that has had sufficient opportunity to plead their case may be denied leave to amend for the sake of doing justice to the other parties and to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense.
  1. 12.The applicant must satisfy the specific requirements of rules, where it seeks to introduce a new cause of action after the expiry of a relevant limitation period.
  1. [45]
    In support of its application, the body corporate does not identify any particular provision of the QCAT Act or its rules which it relies upon as justifying the application. Section 6 of the QCAT Act provides for a power to amend.
  2. [46]
    The scope of that power in Section 64 QCAT Act has been considered by this Tribunal previously in The Sands Gold Coast Pty Ltd v Body Corporate for the Sands CTS 14967 [2016] QCAT 69 at [34] and [35]. At the heart of the relevant principle is the directive that the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick, and the encouragement of the early and economical resolution of disputes in a way that minimises costs and is as quick as is consistent with achieving justice.
  3. [47]
    The Respondent argues that the application to amend was not filed for 18 months after the original complex dispute application was filed. It argues that the matter is ready to proceed to a hearing, although how that of itself is relevant to the question of whether this leave should be grant is not identified. It points to what it seems to be a conceded proposition, namely that the existing 2020 application seeks an order which delegates the Tribunal’s power to a third party and that in recognition of this, on 11 May 2021, at the conclusion of a compulsory conference, directions were made for the parties to engage experts to prepare a joint expert report for the Tribunal.
  4. [48]
    Such an expert report was in fact prepared, has been filed in the Tribunal and is before me. It is very extensive, and reflects the instructions given to the experts by the parties, and is demonstrably an attempt to resolve the dispute between the parties about the payments to be made under the caretaking agreement. Not only has it been filed in the Tribunal by the parties, but it is addressed to the Tribunal, and the experts acknowledge their duties to the Tribunal in the usual way in expressing the opinions they express.
  5. [49]
    The Respondent incurred costs in respect of that expert report of $29,290, independently of whatever the costs were to the Applicant. The Respondent argues that the proposed amended application departs so significantly from the grounds of the current application that all of the costs incurred, including the joint legal expert costs and other legal costs will be thrown away by the amendment.
  6. [50]
    I do not accept that the matter is ready to proceed to trial, nor that the issues which the original application threw up have been adequately identified such that it could proceed to a hearing. No hearing date has been allocated. The Respondent has been on notice of a proposed amended application since June of last year. Even before then, it was prepared to consent to an amendment to the application, although the Applicant did not avail itself of that. There is no demonstrated prejudice that could not be met by an order for costs thrown away by reason of the amendment, and of this application.
  7. [51]
    Having regard to the relevant principles I have set out above, it seems to me entirely appropriate to allow the application, on terms that meet the prejudice to the respondent.
  8. [52]
    During argument I raised with Counsel for the Applicant whether it was prepared to meet the costs so thrown away by reason of the amendment and of the application. The Body Corporate opposed such an order, or submitted that if such an order were to be made, it submitted it should not include the costs incurred in obtaining the expert report.
  9. [53]
    It seems to me that if this amendment were allowed, substantial costs, even potentially the costs of obtaining the expert report would be thrown away. The Applicant is in essence seeking to substantially, if not entirely, depart from the case which it sought to advance in the Tribunal, even though it is essentially concerned with the same area of dispute. More importantly, the present application, founded as it is upon a contention that the caretaking agreement was void ab initio comes after some decades of conduct on the part of the Applicant Body Corporate during which it has continually engaged with the Respondent without significant dispute prior to 2016 as to how the Caretaker Agreement was to operate or as to what its meaning was, and even more recently, its dealings were always on the basis, implicitly, that the caretaking agreement was enforceable, albeit difficult necessarily to understand in terms of how the remuneration was to be assessed.
  10. [54]
    In my view, to meet the prejudice to the Respondent associated with allowing this amendment at this late time, the Applicant must meet the costs thrown away by the amendment, and the costs of this application. The need for the application itself entirely flows from the Applicant’s decision to principally abandon the claim that it had previously made in the Tribunal and for the relief it sought ancillary to it and its unreasonable delay in bringing this application, particularly after it had been given leave to bring in in circumstances, where there would have been fewer costs thrown away and no need for this application.
  11. [55]
    I do not propose to make an order assessing those costs, but will order that the Applicant pay the costs of the application to amend, and the Respondent’s costs thrown away by reason of the amendment to be assessed on the District Court scale or to be agreed. In the event that the parties cannot reach agreement in relation to what those costs are, it will be necessary for a hearing to be conducted to have them assessed. I otherwise order that the Applicant have leave to amend the application filed 15 October 2020, Exhibit 10 in accordance with the terms of the proposed application, as exhibited to the application filed 1 June 2022, Exhibit 4.
  12. [56]
    In making the orders that I have made, I have had regard to the terms of s.102(3) of the QCAT Act and its requirement that I consider whether, in the interests of justice, a costs order is required. In my view the Applicant has clearly acted in a way that unnecessarily disadvantaged the Respondent to the proceeding. I have had regard to the proper approach to the application of the provisions in s.102, as identified by the then President in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 and to the many decisions which have since referred to it and explained the operation of s.102(3) and its ancillary provisions. The Respondent sought its costs thrown away on an indemnity basis. I do not consider this to be a case where indemnity costs ought be ordered.

The application to transfer

  1. [57]
    The second aspect of the matters to be resolved in this application are of some considerable complexity, reflected in the lengthy written submissions which each of the parties have filed in respect of that application. The original transfer application was filed on 19 May 2022 but the amended transfer application was filed on 1 June 2022.
  2. [58]
    I have already set out above the terms of the now amended application, and the relief that the body corporate now seeks in this proceeding.
  3. [59]
    The Applicant points to the operation of s. 229 of the BCCM Act, and the definition of dispute in s. 227 of that Act.
  4. [60]
    Section 229 is in Chapter 6, which is headed Dispute Resolution. “Dispute” is defined in Schedule 6 as follows: Dispute – (a) generally, includes complaint; and (b) for chapter 6, see section 227.
  5. [61]
    Section 229 of the BCCM Act provides:
  1. 229 EXCLUSIVITY OF DISPUTE RESOLUTION PROVISIONS
  1. (1)Subsections (2) and (3) apply to a dispute if it may be resolved under this chapter by a dispute resolution process.
  1. Notes—
  1. 1For a dispute about a body corporate decision under section 47A, see section 47AA.
  1. 2For disputes about a decision of a body corporate committee under section 410, or a body corporate decision under section 411, see section 412(5) .
  1. (2)The only remedy for a complex dispute is—
  1. (a)the resolution of the dispute by—
  1. (i)an order of a specialist adjudicator under chapter 6; or
  1. (ii)an order of QCAT exercising the tribunal’s original jurisdiction under the QCAT Act; or
  1. (b)an order of the appeal tribunal on appeal from a specialist adjudicator or QCAT on a question of law.
  1. (3)Subject to section 229A, the only remedy for a dispute that is not a complex dispute is—
  1. (a)the resolution of the dispute by a dispute resolution process; or
  1. (b)an order of the appeal tribunal on appeal from an adjudicator on a question of law.
  1. (4)However, subsections (2) and (3) do not apply to a dispute if—
  1. (a)an application is made to the commissioner; and
  1. (b)the commissioner dismisses the application under part 5 .
  1. (5)Also, subsections (2) and (3) do not limit—
  1. (a)the powers of QCAT under the QCAT Act to—
  1. (i)refer a question of law to the Court of Appeal; or
  1. (ii)transfer a proceeding, or a part of a proceeding, to the Court of Appeal; or
  1. (b)the right of a party to make an appeal from QCAT to the Court of Appeal under the QCAT Act.
  1. [62]
    Dispute is defined in s.227 of the BCCM Act as follows:

227 MEANING OF DISPUTE

  1. (1)
    A "dispute" is a dispute between—
  1. (a)
    the owner or occupier of a lot included in a community titles scheme and the owner or occupier of another lot included in the scheme; or
  1. (b)
    the body corporate for a community titles scheme and the owner or occupier of a lot included in the scheme; or
  1. (c)
    the body corporate for a community titles scheme and a body corporate manager for the scheme; or
  1. (d)
    the body corporate for a community titles scheme and a caretaking service contractor for the scheme; or
  1. (e)
    the body corporate for a community titles scheme and a service contractor for the scheme, if the dispute arises out of a review carried out, or required to be carried out, under chapter 3 , part 2 , division 7 ; or
  1. (f)
    the body corporate for a community titles scheme and a letting agent for the scheme; or
  1. (g)
    the body corporate for a community titles scheme and a member of the committee for the body corporate; or
  1. (h)
    the committee for the body corporate for a community titles scheme and a member of the committee; or
  1. (i)
    the body corporate for a community titles scheme and a former body corporate manager for the scheme about the return, by the former body corporate manager to the body corporate, of body corporate property.
  1. [63]
    Section 149B of the BCCM Act provides as follows:

149B SPECIALIST ADJUDICATION OR QCAT JURISDICTION

  1. (1)
    This section applies to a dispute about a claimed or anticipated contractual
  1. matter about—
  1. (a)
    the engagement of a person as a body corporate manager or caretaking service contractor for a community titles scheme; or
  1. (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
  1. (b)
    as provided under the QCAT Act, for an order of QCAT exercising the tribunal’s original jurisdiction to resolve the dispute.
  1. [64]
    The expressions “contractual matter” and “caretaker service contractor” are each defined in Schedule 6 of the BCCM Act in the following terms:

"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
  1. (b)
    the termination of the engagement or authorisation;
  1. (c)
    the exercise of rights or powers under the terms of the engagement or authorisation; or
  1. (d)
    the performance of duties under the terms of the engagement or authorisation.
  1. [65]
    The term, “complex dispute” is defined in Schedule 6 to include a “dispute mentioned in s149B”.
  2. [66]
    In its submissions, the Applicant contends that the “primary remedy” sought in the proposed amended application is a declaration that the caretaking agreement is avoid ab initio pursuant to s. 76 of the Accommodation Module 1997 or s. 114 of the Accommodation Module 2008, or s. 127(1) of the Accommodation Module 2020, with an application for accompanying orders that the Respondent repay some $6.7 million which have been paid under this void agreement.
  3. [67]
    First, the Applicant contends that QCAT does not have the power to make the declaration in relation to invalidity. The application for declaratory relief is not stand-alone relief, but depends upon a review of the terms of what is undoubtedly a caretaker agreement in respect of which the parties have regulated their business affairs for some decades.
  4. [68]
    The Applicant relies upon the decision of this Tribunal in Randall v Body Corporate for Runaway Cove Bayside CTS 25498 [2011] QCATA 10 as supporting its contention that this Tribunal does not have power to grant a declaration of the kind sought. Randall was a case where the only relief sought was a declaration that the Applicant did not owe a particular sum of money, in the context of a minor civil dispute proceeding. The principal basis for the disallowance of the application was that it was not in fact a minor civil dispute. In that case, the Tribunal noted that such a declaration could only be made by a judicial member of the Tribunal, but that s.60 only permitted a declaration to be made about a matter in a proceeding, and that this was not such a proceeding because it was not a minor civil dispute. She held in the alternative that even if it were a minor civil dispute, because the Applicant did not seek any order other than a declaration, and that it was not ancillary to or in lieu of another order which it could make, it could not make a declaration.
  5. [69]
    It is obvious from the matters which are sought to be advanced in the proposed amended application that they are certainly not only seeking a declaration of invalidity of the agreement. They certainly arise in the context of a determination of a present dispute before this Tribunal of longstanding, both before and after its initiation in this Tribunal. The alternative relief sought in paragraphs 29(c), (d) and (e) set out in above, concern the prima facie valid caretaker agreement and as to whether 10% increases are valid variations, and also for a declaration as to what the remuneration is under the agreement, as well as the repayment of any amount paid in excess of that.
  6. [70]
    In any event, it is not necessary for me to decide in this case whether the scope of s.60 of the QCAT Act is sufficiently broad to permit this Tribunal to hear the applications for declaratory relief, along with the other relief sought, for the reasons which I will set out later, or are limited to that the declaratory relief sought here is ancillary to or in lieu of another order which this Tribunal could in fact make, concerning what the proper construction of the caretaker agreement is and as to whether it is sufficiently certain or compliant with the legislative requirements in the Accommodation Module such that it is valid and enforceable.

Relevant considerations to an application to transfer

  1. [71]
    The proceeding, for which leave has now been given to amend, is in this Tribunal. The Applicant relies upon s. 52 of the QCAT Act as the source of power for the Tribunal to transfer the proceeding to the Supreme Court. The power to do so under s. 52(7) of the QCAT Act is exercisable by a legally qualified member, such as myself. The power in s. 52 is a discretionary power, and will only be exercised if it were fair and consistent with the aims and objects of the QCAT Act to do so; Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & Downie [2022] QCATA 3 at [109].
  2. [72]
    The discretion to transfer is one which arises where the Tribunal considers another jurisdiction would be more appropriate. Obviously if this Tribunal did not have jurisdiction, but the Supreme Court did have jurisdiction, then that jurisdiction would be the more appropriate jurisdiction and transfer ought occur, specifically the discretion referenced in s.l52(2) of the QCAT Act is enlivened whether the Tribunal considers that it does not have jurisdiction and another Court or entity does have jurisdiction.
  3. [73]
    In considering whether the Supreme Court is more appropriate forum, having regard to the language of s. 52(1) of the QCAT Act, reference may be made to the decision of the Philippides J in World Firefighters Games Brisbane v World Firefighters Games Western Australian Inc & Ors [2001] QSC 164 at [32] where the range of factors to be considered were set out. Regard can also be had to the decision of Member Gordon in Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill referenced above, and see [103].
  4. [74]
    At the heart of the Applicant’s contention is that the Tribunal does not have power to grant the remedies sought in the application, but that the Supreme Court does. I do not accept that proposition.
  5. [75]
    At a general level I draw assistance from the broad proposition stated by Kirby J in National Parks and Wildlife Service v Stables Perisher Pty Ltd National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573, 585-586, that “the jurisdiction of a court or tribunal of limited authority cannot be conferred by concession. In the case of a court created by statute, it must be found, expressly stated or implied in the language of the statute. Such language should not receive a narrow construction.”
  6. [76]
    This Tribunal is an inferior court of record which was of course created by statute and is a court of limited jurisdiction; Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 164(1); Owens v Menzies [2013] 2 QdR 327. The extent of those limits are set out in the and any enabling Acts. Section 9(3) of the QCAT Act provides: “Without limiting the Acts Interpretation Act 1954, section 49A, an enabling Act confers jurisdiction on the tribunal to deal with a matter if the enabling Act provides for an application, referral or appeal to be made to the tribunal in relation to the matter”,
  7. [77]
    The explanatory note to the QCAT Act, in what was then the 2009 Bill said of what is now s. 52 of the QCAT Act, makes clear that s. 52 of the QCAT Act does not confer additional jurisdiction on the courts and cannot be utilized if the Tribunal has exclusive jurisdiction for a matter . That means in my view that the question is not that under s. 52(1) concerning an appropriate forum, but rather whether this Tribunal has jurisdiction and the Supreme Court does not or vice versa.

The issue of whether the Applicant has not obtained the necessary authorisation to commence legal proceedings.

  1. [78]
    The Respondent contends that the Supreme Court does not have jurisdiction to determine the dispute because the only remedy for a complex dispute, which this is, is an order of the Tribunal. Alternatively, it submits that if the case in fact falls outside the definition of a complex dispute, the Supreme Court would not have jurisdiction because the Applicant has not obtained the necessary authorisation to commence legal proceedings.
  2. [79]
    I will dispense with the latter point first. That argument depends upon a range of contentions about the requirements on bodies corporate to have obtained a resolution of its members before commencing legal proceedings. This is a factual issue about which there are some factual disputes, and it is not therefore appropriate that it be finally considered in this context. The Applicant body corporate disputes the question of whether the requisite authorisations of the body corporate in general meeting is required, and points to certain conduct which it says amounts to authorisation to bring the proceedings. Quite properly, it also points to the prospect that at some time the body corporate could obtain retrospective approval to bring proceedings, or to obtain a resolution validating its conduct were it otherwise unauthorised. In my view however, the question is much more simple, that is, the proposition that the Supreme Court does not have jurisdiction because the Applicant has not obtained body corporate approval is not an issue that goes to jurisdiction, but to agency and authority. Those questions could be resolved having regard to the scope of authority which has hitherto been, or might in the future be obtained, to commence and bring legal proceedings.
  3. [80]
    Moreover, the argument has an inherent flaw in that even if it is right, if the foundation for jurisdiction to bring a proceeding is body corporate authorisation, then this proceeding is also not before a Tribunal with jurisdiction. In my view there is nothing to this point. The real issue is whether this is a complex dispute in the context of the establishment of this Tribunal, along with specialist adjudicators, having exclusive jurisdiction to determine disputes about the engagement of a person as a caretaking service contractor, having regard to s. 15, s. 149B and s. 229(2) of the BCCM Act, and the definition of “complex dispute” in Schedule 6 to the Act.

Is this new claim a “complex dispute” within the meaning of Schedule 6 to the BCCM Act

  1. [81]
    Without going into the long history of decades of relative cooperation, in conjunction with some periods of disputation between the Applicant and the Respondent in their respective roles, it is clear that the Respondent has discharged the responsibilities of the caretaker of the common property for a very long period pursuant to the terms of the management agreement, which had a very lengthy operation by definition.
  2. [82]
    The joint experts’ report filed in the Tribunal in November 2021 specifically identifies that the experts had been prepared to prepare a report that listed the duties, hours and remuneration calculated for six relevant contract periods, that is, the 2016 to 2021 financial years, the duty hours and hourly rates on which remuneration recommendations were made in respect of the scope of the caretaking duties during those years, and the frequency at which the duties were to be identified and the time which reasonably should be taken to perform them. It may be said, that broadly this analysis fell into line with the considerations which the caretaking agreement required to be taken into account in assessing remuneration under it, were it a valid clause. It is a lengthy and detailed report and there is no consensus in it about the amounts, however what the report demonstrates is that there is at least a capacity to identify by various methodologies a way in which remuneration can properly be assessed for the performance of the duties in this scheme.
  3. [83]
    As has been identified earlier, the definition of a complex dispute in Schedule 6 of the BCCM Act is a dispute mentioned in s. 149B of that Act, and which by its operation has it applying to disputes about a claimed or anticipated contractual matter about the engagement of a person as a caretaking service contractor.
  4. [84]
    The effect of s. 229 of the BCCM Act is that the only remedy for a complex dispute is the resolution of the dispute by an order of QCAT exercising the Tribunal’s original jurisdiction under the QCAT Act (where are not here concerned with any further referral to a specialist adjudicator).
  5. [85]
    The Applicant contends that what it defines narrowly as the “invalidity dispute” (that is, the dispute about whether the caretaking agreement is void), is not a complex dispute within the terms of the BCCM Act and references the definition in s. 6 of the Act and submits that this is not a dispute about a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or caretaking service contractor, having regard to the definition of the expression “contractual matter” in Schedule 6 to the Act.
  6. [86]
    As framed, the application and all of its claims, save possibly for the narrow declaratory relief that the agreement itself is void for non-compliance with statutory requirements, are matters brought in a proceeding involving a dispute about a claimed contractual manner within the language of s. 149B(1)(a). Even the claims about whether a caretaking agreement is valid, where the parties to that purported agreement have acted pursuant to it, or appear to have acted pursuant to it for some decades, involve a contractual matter within the definition of Schedule 6 to the Act because they concern at the very least a question about the termination of the engagement, or the exercise of rights or powers under the terms of the engagement or authorisation, even if those rights were pursuant to prima facie void agreement. They also demonstrably concern the performance of duties under the terms of the engagement, even if the formal document of appointment was “void”. What happens in relation to payments made under the “void’ agreement, where services have been provided by a caretaker concern the performance of duties under the terms of the engagement,
  7. [87]
    Reference is also made by the Applicant to the terms of s. 229 of the BCCM Act describing the exclusive jurisdiction in this Tribunal of certain disputes. That is, of course, a reference in part to the provision in s. 229(2) for the remedies for a complex dispute. The Applicant points to the terms of s. 229(1) as expressly operating to limit the scope of subsections (2) and (3) to disputes which “may be resolved under this chapter by a dispute resolution process”. Schedule 6 to the Act defines dispute resolution process very broadly, but for present purposes, the broadest process might be by specialist mediation or specialist adjudication. The Applicant argues that none of these processes are available to resolve the disputes which the current application throws up because none of those entities, including specialist adjudicator or mediator could make the orders sought, particularly those relating to validity or invalidity. That in my view is a misconception because a mediation or an adjudication does not specifically require that particular orders be made of that kind before a dispute about whether the agreement has validity could be resolved. Declaratory orders notoriously are sought in proceedings in the civil courts where in truth they involve a finding which may depend upon the application of some legal principle or analysis to determine some consequential outcome. Declarations might be sought concerning that outcome which are not in fact necessary for the purposes of deciding what appropriate remedies should lie as a result of those findings. The mere fact that a party seeks a declaration in this Tribunal in the context of a longstanding dispute about the effect and operation and scope of a caretaking agreement does not mean that it ceases to be a complex dispute before this Tribunal when it has in fact always been a complex dispute that has not essentially changed its character because of new relief brought in.

Relevant case law in the issues here

  1. [88]
    In Henderson v The Body Corporate for Merrimac Heights [2011] QSC 336 the position was that the Supreme Court did not have jurisdiction to determine “a dispute” unless s 229(4) applied, that is, where an application had been made to the Commissioner and been dismissed. That was an element not present here and made that case different to the present The issue though was whether all aspects of the “dispute” were to be considered part of the application for the purposes of s 229(4).
  2. [89]
    In that case, there were disputes arising between parties under two agreements. One was a “Caretaking Agreement” which was for the provision of services encompassing caretaking of the premises. It also permitted the managers under that agreement to conduct a letting agency from within the complex. The other agreement was described as a Landscape Maintenance Agreement (“LMA”) which was for the provision of gardening services.
  3. [90]
    In Henderson the proceedings in respect of the Caretaking Agreement were originally commenced in QCAT. The proceedings in respect of the Caretaking Agreement were, however, transferred from QCAT to the Supreme Court by an order made by the then President of QCAT. The reasons do not disclose the basis on which the then President of QCAT relied for the transfer of that proceeding to the Supreme Court.
  4. [91]
    In respect of the dispute between the parties concerning the LMA, there was a claim for damages for breach of contract brought by the manager under the LMA, seeking lost profits arising from the inability to perform under the contract as a consequence of a purported termination. McMurdo J noted ([2011] QSC 336, [6]) that the claims in respect of the LMA were the subject of proceedings in the Supreme Court for which the Court had jurisdiction. With respect to the Caretaking Agreement, proceedings in respect of that agreement had originally been instituted in QCAT, and then transferred to the Supreme Court.
  5. [92]
    In Henderson, McMurdo J held:
  1. [112]
    The question therefore turns upon the operation of s 229(4) in this case. In particular, it turns upon whether all of the matters presently in issue are within the dispute which was the subject of the plaintiffs’ application to the Commissioner. The plaintiffs argue that there is one dispute with many elements. The defendant argues that issues involving the enforceability of the Caretaking Agreement constitute a dispute, distinctly from that which was the subject of the application to the Commissioner.
  1. [117]
    It is possible to say that there are distinct claims, and thereby distinct disputes, in relation to, respectively, the LMA and the Caretaking Agreement. There is a considerable overlap of factual issues but they are not identical. It can be said that success for the plaintiffs in relation to one agreement need not have resulted in success for them on the other.
  1. [118]
    Commonly there are many issues or things in dispute which are to be resolved in the determination of a piece of litigation. For example, in respect of the LMA, there is (or was) a dispute as to its terms, a dispute as to its validity, a dispute or disputes as to the plaintiffs’ performance, a dispute as to whether it has been abandoned or terminated and a dispute as to the extent of the plaintiffs’ loss from not being able to perform the agreement. But each of those issues could also be fairly described as elements of the dispute between the parties which is resolved by this judgment. This illustrates that the word “dispute” can be used with varying degrees of generality, according to the context.
  1. [119]
    The question here involves the meaning of “dispute” in a particular statutory context. The evident intent of Ch 6 of the Act is to facilitate the resolution of controversies. It would be inconsistent with that purpose if Chapter 6, and in particular s 229, promoted rather than resolved controversies, by giving rise to unproductive jurisdictional arguments. It would also be detrimental to the operation of Ch 6 to unduly confine the boundaries of a “dispute”, because that could prevent the one body resolving the entire controversy between the parties with disadvantages of extra cost, delay and the possibility of inconsistent findings.
  1. [120]
    If the defendant’s argument is correct, the QCAT had jurisdiction to determine the proceeding concerning the Caretaking Agreement but it may not have had jurisdiction to resolve the proceeding concerning the LMA. That is because although the plaintiffs are “a caretaking service contractor”, they have that status from the Caretaking Agreement (including as it does the power to conduct a letting agency). Their claim to enforce the LMA, at least upon one view, is not made by them as a caretaking service contractor. Upon that view, what is said to be the distinct dispute concerning the LMA would not be a “complex dispute”, so that it would not be within the jurisdiction of the QCAT. Therefore, no single entity, including the QCAT, could have resolved what is now the subject of this litigation. The potential for that consequence indicates the risk in adopting too narrow an understanding of what is a “dispute”.
  1. [121]
    The notion of a dispute in this context should be one which promotes the whole of the controversy between the parties being able to be resolved within the one process (emphasis added). In this respect, assistance can be found in the body of case law dealing with accrued federal jurisdiction [Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; Re Wakim; ex parte McNally (1999) 198 CLR 511]. There are three principles affecting accrued jurisdiction which are relevant here in assessing what constitutes the “dispute”. First, the identification of the relevant controversy between the parties is not to be determined only by a consideration that there are separate proceedings which were commenced [Re Wakim; ex parte McNally (1999) 198 CLR 511 at 585 per Gummow and Hayne JJ]. Secondly, the identification of the controversy involves “a matter of impression and of practical judgment” [Fencott v Muller (1983) 152 CLR 570 at 608 per Mason, Murphy, Brennan and Deane JJ]. And thirdly, if proceedings were to be tried in different courts, with conflicting findings made on one or more issues common to two proceedings, this will indicate that there is but a single controversy [Re Wakim; ex parte McNally (1999) 198 CLR 511 at 586 per Gummow and Hayne JJ].
  1. [122]
    As should be apparent from this judgment, the issues concerning the enforceability of the Caretaking Agreement are ones which almost entirely concern the enforceability and particular effect of the LMA. The possible exceptions are the complaints that the plaintiffs acted wrongly in endeavouring to change the membership of the committee of the body corporate, or more generally in their lobbying of owners for support against the existing committee. Yet even those matters have a connection with the enforceability and effects of the LMA, because the plaintiffs’ conduct, the subject of those complaints, has to be considered by reference to whether they had been wrongly excluded under the LMA.
  1. [123]
    In substance, this controversy concerned the respective positions of the parties under the LMA, with consequences for their respective positions under the Caretaking Agreement. All of the matters in issue in this litigation should be understood as elements of the one controversy or dispute. In consequence of s 229(4), subss (2) and (3) do not apply in any respect to this litigation, and this court has jurisdiction in all respects.
  1. [93]
    There have been other cases on this issue since Henderson.
  2. [94]
    Regard may also be had to Reynolds v Body Corporate for Mount View Apartments [2018] QCAT 283, where Member Barlow QC as he then was, was concerned with an application by a party calling for the Tribunal to exercise its original jurisdiction in reliance upon s. 149B where the claim was by a former caretaking service contractor that had once been a caretaking service contractor. In dealing with the definition of the term dispute, Member Barlow held as follows:
  1. [23]
    I do not accept that the same can be said of the term ‘dispute’ as it is used in s 149B generally, nor of the references, in the definition of ‘contractual matter’, to a service contractor and an engagement of such a person. Nothing in s 149B itself provides that a party to a dispute must be a service contractor, let alone a current service contractor. That section (and the definition of ‘contractual matter’) concerns the subject matter of a dispute, not the parties to a dispute. That alone distinguishes it from s 227 (which expressly limits the parties to a dispute who may apply to a specialist adjudicator under chapter 6) and from Suncorp (which expressly concerned a dispute ‘between a landlord and tenant’).
  1. [24]
    The respondent relies on the following passage from a judgment[3] of Mr K Dorney QC (as his Honour then was) in answer to a proposition put by the applicant that, as s 149B is outside chapter 6, s 227 does not limit the operation of s 149B. The respondent contends that the type of dispute referred to in s 149B is informed (and limited) by the types of dispute (or, more accurately, the limited parties to a dispute) provided for in chapter 6. Mr Dorney said:
  1. … the definition of ‘dispute’ in Schedule 6, where it ‘includes’ a complaint, prefaces that definition by the word ‘generally’. While it is true that Chapter 6, and in particular section 227, are not necessarily expressly engaged by section 149B(2)(b), it is clear, from both section 149B(2)(a) and from section 229(2)(a)(ii) – the latter of which is clearly within Chapter 6 – taken in the context of the definition of ‘complex dispute’ as meaning a dispute mentioned, relevantly, in section 149B, that an understanding of what is dealt with [in] section 149B(1) can be informed by considering the context of the whole Act which includes what the definitions for Chapter 6 provide. That is, in determining what is meant by ‘dispute’ in section 149B, it is appropriate, as a contextual task, to take into account what a party to ‘the’ dispute must satisfy under Chapter 6. This is because a party to a dispute may follow that path rather than the path that the present applicants have taken. The correct approach to interpretation means that a party to a particular dispute should not be faced with quite legal different requirements merely because of the path chosen to determine the dispute, unless it is abundantly clear that the Legislature has required such a distinction to be made.
  1. [25]
    Those comments were made in the context of an application made to the tribunal by a person who was not a party to the service contract that was in existence between the body corporate and the service contractor. The applicants were lot owners in the scheme and the respondents were the body corporate and the service contractor. I agree that chapter 6 informs, to some extent, the types of dispute referred to in s 149B. But I do not consider that the arguable limitation of the parties to a dispute to the existing contracting parties, under s 227, wholly informs the types of dispute that are the subject of s 149B. The latter section describes the subject matter of a dispute, not the allowable parties to the dispute and, as I have said, distinguishes between a dispute taken under chapter 6 and a dispute brought to the tribunal, by granting the right to adjudication under chapter 6 only to certain parties, but not so limiting the parties to an application to the tribunal. I do not consider it correct to say that this amounts to quite different legal requirements merely because of the path chosen to determine the dispute. Rather, the distinction is between two paths: one (an application to the tribunal) that is available to all parties and another, potentially shorter and less costly, that is only available to limited categories of parties. If, in reaching this conclusion, I might be seen to differ from his Honour, then I respectfully do so.
  1. [26]
    One other provision must be considered. Subsection 229(2) of the BCCM Act (which is in chapter 6) relevantly provides that the only remedy for a complex dispute is the resolution of the dispute by an order of a specialist adjudicator under chapter 6 or an order of the tribunal exercising its original jurisdiction under the QCAT Act. Subsection (1) of that section provides that subsection (2) applies to a dispute if it may be resolved under chapter 6 by a dispute resolution process.
  1. [27]
    ‘Complex dispute’ is defined in the dictionary to include a dispute mentioned in s 149B. ‘Dispute resolution process’ is relevantly defined as a number of available processes, including specialist adjudication but not including resolution by the tribunal.
  1. [28]
    Section 229 might be said to demonstrate that an application to the tribunal in its original jurisdiction regarding a complex dispute is therefore under chapter 6, with the consequence that s 227 applies to limit the parties to such a dispute, because a dispute mentioned in s 149B may be referred for specialist adjudication. I do not consider that to be correct. Both s 149B and s 229 distinguish, in identical terms, between resolution by specialist adjudication under chapter 6 and resolution by the tribunal in its original jurisdiction under the QCAT Act. I do not consider that s 229 relevantly affects the construction of s 149B. Section 229 simply confirms that a complex dispute may be dealt with either under chapter 6 or, outside that chapter, by the tribunal in its original jurisdiction. Furthermore, the ‘dispute’ referred to in s 229 can only be one that is capable of being resolved under chapter 6, namely one that is between the categories of person listed in the definition of ‘dispute’ for chapter 6. Section 229 does not apply to disputes between other categories of person about one of the subjects listed in, relevantly, s 149B.
  1. [29]
    Section 229 also appears to be directed to ensuring that a complex dispute may only be heard and determined by the methods identified. That is, they may not be heard and determined by another method or body, such as a court. It may be termed an ‘exclusive jurisdiction’ clause. As such, it may have been better placed in another location within the Act, but in my view it does not alter the fact that a dispute that is the subject of an application to the tribunal is not a dispute that is to be resolved under chapter 6.
  1. [30]
    Therefore, in my opinion, in cases referred to the tribunal in its original jurisdiction, under paragraph 149B(2)(b), there is no similar restriction on the parties to a dispute to that imposed on the parties to a dispute before a specialist adjudicator. The tribunal can hear and resolve any dispute about a contractual matter about the engagement of a caretaking service contractor, whenever that engagement occurred and whether or not it remains extant. The tribunal’s jurisdiction is to resolve a dispute ‘about’ a ‘contractual matter’. The latter term, about an engagement, relevantly means a contravention of the terms of the engagement or the termination of the engagement. A dispute about the termination of an engagement will often (indeed, nearly always) arise after the termination or purported termination. It will often involve issues about whether the engagement has been terminated, whether there was an entitlement to terminate and who terminated it. (The latter two issues arise directly here.) That indicates that post-termination disputes about an engagement can be heard and resolved by the tribunal. Indeed, I can see no logical reason why the legislature would exclude, from the tribunal’s jurisdiction, a dispute about the former parties’ rights under a terminated service contract, where it grants jurisdiction to the tribunal or an adjudicator to determine issues about an existing service contract.
  1. [31]
    There is nothing in s 149B or the definition of ‘contractual matter’ that limits the tribunal’s jurisdiction to considering the terms or the termination of an engagement before it is terminated. Indeed, to resolve a dispute about termination before the contract is terminated is likely to involve giving an advisory opinion. It is not a function or power of the tribunal to give such an opinion.
  1. [32]
    This case raises disputes about whether each party breached the terms of the engagement of the applicant by the respondent and who was entitled to and did terminate the contract. It falls squarely within the type of dispute described in s 149B and, having been brought to the tribunal rather than taken to a specialist adjudicator, I consider that the tribunal has jurisdiction to hear and resolve it.
  1. [95]
    I agree with Member Barlow QC’s conclusions and also to the proposition he cites from the decision in Sheehy v Body Corporate for Marlin Cove [2008] QCCTBCCM 14 that the correct approach to interpretation of s. 149B means that a party to a particular dispute should not be faced with quite legal different requirements merely because of the path chosen to determine the dispute, unless it is abundantly clear that the Legislature has required such a distinction to be made.
  2. [96]
    In Dunlop & Anor v Body Corporate For Port Douglas Queenslander CTS 886 & Ors [2021] QSC 85 Henry J was concerned with a claim for losses said to have flowed from a body corporate’s termination of letting and caretaking agreements. A controversial aspect of the claim was that it is made not only against the body corporate but also against the body corporate’s committee members and its solicitor. The applicant contended that the statement of claim as it relates to those latter defendants ought be struck out as disclosing no reasonable cause of action and that the rest of it, as against the body corporate, ought be set aside. The latter relief is sought on the basis the dispute with the body corporate should be pursued before a specialist adjudicator or QCAT. Henry J said;
  1. [60]
    The applicants submit the claim against the body corporate is a complex dispute in that it is a dispute mentioned in s 149B, namely a dispute between the body corporate and a caretaking service contractor and letting agent about a contractual mater, namely the termination of the engagement of the contractor and letting agent. From this it follows, the applicants submit, that pursuant to s 229 the “only remedy” for resolution of the dispute is by an order of a specialist adjudicator or of QCAT.
  1. [61]
    A point which did not receive attention in argument in this context is that the claim against the body corporate is not singularly founded in contract and is also founded in the Australian Consumer Law. Can the parties’ dispute be a complex dispute attracting s 229(2) if it is a dispute founded upon multiple foundational pathways to liability, only one of which relies upon a contractual matter? I will for present purposes set that question to one side and consider the dispute as one singularly founded in contract.
  1. [62]
    While s 149B(2) provides that a party to a dispute “may” apply for an order of a specialist adjudicator or of QCAT, s 229 mandates the only remedy for a complex dispute is such an order.
  1. [63]
    The respondents do not argue against the obvious conclusion that Mr Dunlop’s claim in contract against the body corporate is a complex dispute. However, they emphasise s 229(2) does not go to jurisdiction. They submit, drawing on reasoning in MHA v DMA 18, that s 229(2) “potentially bars the remedy, not the right”, so that the objection to jurisdiction is misplaced and that if the applicants wish to maintain their reliance upon the statutory bar to the remedy sought, they should do so in their pleading.
  1. [64]
    However, the authorities relevant to s 229(2) indicate it is more than a statutory bar to the remedy sought in the dispute and that its effect is to remove the court’s jurisdiction to resolve the dispute. As much was concluded by Holmes J, as her Honour then was, in James v Body Corporate Aarons Community Title Scheme 11476. Her Honour observed of s 184(2) of BCCMA, the equivalent provision to what is now s 229(2) of that Act:
  1. The wording of the section itself is unusual: rather than providing for exclusive jurisdiction in so many words, s 184(2) speaks in terms of the only remedy being the order of an adjudicator or that of a District Court on appeal on a question of law. But those words the only remedy are not ambiguous; it is difficult to see what meaning they can have other than that in the circumstances to which s 184(2) applies, the only manner in which the dispute itself can be resolved is by the means prescribed: the adjudicator’s order or that of the District Court on appeal.
  1. [97]
    Her Honour went on to observe:

The conclusion that exclusivity is intended in respect of the disputes to which s 184(2) applies is reinforced by the existence of provisions which have the effect of allowing recourse to other remedies (including court orders) in specified situations: subsection 184(3), which removes the dispute from the purview of s 184(2) if the commissioner dismisses the application, and s 201(2), which entitles the commissioner to dismiss an application if he or she is satisfied that it should be dealt with in a court of competent jurisdiction.

  1. [98]
    Section 184(3) was, in effect, the same as what is now s 229(3) of the Act and s 201(2) was the same, in effect, as what is now s 250(2) of the Act. Her Honour’s conclusion was confirmed on appeal where Davies JA observed:

Section 184 does not speak in terms, specifically, of jurisdiction to hear and decide but in terms of providing a remedy. However I think its plain intention is that the adjudicator is to have exclusive jurisdiction to make orders of the kind which the Act prescribes, relevantly in s 223 and s 227, in disputes of the kind to which s 182 refers, subject to any statutory exception or limitation.

  1. [67]
    The point was further considered by McMurdo J, as his Honour then was, in Henderson v Body Corporate for Merrimac Heights. His Honour there followed the above reasoning, rejecting an argument that s 229 is not of the same effect as its s 184 predecessor in that s 52 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) empowers the tribunal to transfer a matter to a court or other entity which the tribunal considers would more appropriately deal with the subject matter of the proceeding. His Honour observed the tribunal could not have the power to transfer to a court where the court lacked any jurisdiction to deal with the proceeding, observing that s 52 does not confer jurisdiction upon other courts or tribunals but rather permits a transfer to a court or tribunal where the entity has jurisdiction. His Honour observed the legislative intention of s 229 was to “remove a court’s jurisdiction to resolve” a complex dispute.
  1. [68]
    This line of authority clearly affirms the interpretation of s 229 advanced by the applicant’s argument as to want of jurisdiction. Those authorities do not suggest the provision is ambiguous or lacks clarity, such that the interpretation is inappropriate given the significance of a denial of jurisdiction. Nor do they raise an alternate realistically arguable interpretation of the effect of s 229 which ought now be favoured because of the subsequent creation of the requirement in s 48 Human Rights Act 2019 (Qld) that statutory provisions must be interpreted in a way that is compatible with human rights.
  1. [69]
    The respondents also advance an argument, seizing upon s 229(1)’s reference to disputes that “may be resolved under this chapter”, that because their contractually founded case seeks damages founded in general law, not in the contract itself, it may not be resolved “under” the process referred to in s 229(1). An adjudicator’s power in that process, relevantly includes the power to make orders pursuant to s 276(1) that are “just and equitable” to resolve a dispute about a claimed “contractual matter” about the engagement of a service contractor or authorisation of a letting agent. It will be recalled the definition of a contractual matter includes termination of such engagements and authorisations. It is therefore not apparent on the respondent’s argument why such “just and equitable” orders could not include an award of damages for loss caused by the wrongful termination of caretaking and letting agreements.
  1. [70]
    These conclusions trend in favour of granting the application to set aside the claim and statement of claim in respect of the body corporate for the reason that it is a complex dispute to be resolved pursuant to s 229(2). However there remain two considerations.
  1. [71]
    The first is that the applicants’ counsel indicated in argument that if the claims against the committee members and Mr Herd were to live on, the applicants would not want to split the proceedings by part of it diverting to an adjudicator or QCAT and the remainder staying before this court. The claims against the committee members and Mr Herd may live on if the respondents elect to file a further ASOC (and if it survives any further existential challenge).
  1. [72]
    The second consideration is the unargued question of whether the dispute with the body corporate can be a complex dispute attracting s 229(2) if it is a dispute founded upon multiple foundational pathways to liability, only one of which relies upon a contractual matter. That has some connection with the first consideration in that if it is permissible in the context of s 229(2) to regard the dispute with the body corporate founded in a contractual matter as a separate dispute to the dispute with the body corporate relying upon the Australian Consumer Law, then even the proceedings as they relate only to the body corporate might be split — again an outcome unlikely to be desired by the applicants.
  1. [99]
    There was a further decision of relevance to which I was not referred by the parties  in Breeze Mr Pty Ltd v Body Corporate for Bay Village Community Titles Scheme 33127 (2021) 9 QR 90 a management agreement with the respondent body corporate for a community titles scheme was assigned to the applicant. The applicant was also the owner of a lot in the scheme. The agreement was a “service contract” and the applicant was a “service contractor” as defined by s 15 and Sch 6 Body Corporate and Community Management Act 1997 but was not a “caretaking service contractor” for the scheme. The committee of the body corporate purported to resolve to terminate the agreement and subsequently gave notice of the termination to the applicant.
  2. [100]
    The applicant applied to the Supreme Court for declaratory relief that the purported termination was a nullity and of no effect because the committee had no power to do so, contending that such a resolution could only be made by ordinary resolution in general meeting of the members.
  3. [101]
    Daubney J referred to Henderson and said at [23]-[27];
  1. [23]
    His Honour then made observations about the overlap of claims, and the considerable overlap of factual issues, noting however, that they were not identical. He further observed that the question before him involved the meaning of “dispute” in a particular statutory context. His Honour said: “The evident intent of [Ch 6] of the Act is to facilitate the resolution of controversies. It would be inconsistent with that purpose if [Ch 6], and in particular s 229, promoted rather than resolved controversies, by giving rise to unproductive jurisdictional arguments. It would also be detrimental to the operation of [Ch 6] to unduly confine the boundaries of a ‘dispute’, because that could prevent the one body resolving the entire controversy between the parties with disadvantages of extra cost, delay and the possibility of inconsistent findings.”
  1. [24]
    Justice McMurdo, in the context of the case before him, which involved disputes under the Caretaking Agreement and the LMA, said that the notion of a dispute should be one “which promotes the whole of the controversy between the parties being able to be resolved within the one process”. His Honour then had regard to the body of case law dealing with accrued federal jurisdiction for assistance in resolving, in his mind, whether he was satisfied that he had jurisdiction to deal with the disputes under the Caretaking Agreement, at the same time as he dealt with the matter in respect of which he undoubtedly had jurisdiction, namely the dispute under the LMA. He concluded: “In substance, this controversy concerned the respective positions of the parties under the LMA, with consequences for their respective positions under the Caretaking Agreement. All of the matters in issue in this litigation should be understood as elements of the one controversy or dispute. In consequence of s 229(4), [sub-ss] (2) and (3) do not apply in any respect to this litigation, and this court has jurisdiction in all respects.”
  1. [25]
    That case, it can clearly be seen, was quite different from the present. In the present case, the dispute between the parties arises out of, and only out of, the parties in their capacities as parties to the Management Agreement. It has nothing to do, in any respect, with the Applicant’s status as the owner of a lot in the scheme.
  1. [26]
    As was advanced in argument on behalf of the Applicant, the sort of contention advanced by the Respondent would have undesirable results. Two examples will suffice. On the Respondent’s contention that it is sufficient for the purposes of invoking the exclusive jurisdiction of QCAT for a dispute simply to be between a body corporate and a person who happens to be a lot owner in the scheme, if the person who happened to be a lot owner suffered personal injuries in connection with the common property controlled by the body corporate, then the only avenue for resolving the dispute arising out of the negligent act that caused the personal injuries would be to pursue the Ch 6 dispute resolution process. Similarly, if a body corporate published a pamphlet which defamed a person who happened to be a lot owner, on the Respondent’s argument, the recourse for the claim for damages for defamation would somehow have to be accommodated under the Ch 6 dispute resolution process. Obviously, those examples would lead to absurd results.
  1. [27]
    It seems, therefore, that the proper way of reading s 227 is to understand the reference to “dispute” to being a dispute between a body corporate and an owner of a lot in their respective capacities in that regard. This present dispute is not a dispute involving the Applicant qua owner of a lot in the scheme, and it is therefore not a “dispute” for the purposes of s 227 BCCMA. Accordingly, it does not fall under the exclusive dispute resolution provisions provided for in s 229, and, this Court has jurisdiction to hear and determine the present application.
  1. [102]
    The Applicant here concedes that on any view of the matter, the relief sought in the proposed amended application for “AN ORDER that the Respondent repay to the Body Corporate the sum of $[TBA] representing the 10% Increases paid to it between 2015 up to the date of judgment” is one which is properly before this Tribunal and which it has jurisdiction to hear, although those provisions do not enlarge the jurisdiction of the Tribunal, and that they are to be exercised in aid of the jurisdiction otherwise conferred on the Tribunal, the jurisdiction in s.149B must be read as including the power to resolve the dispute by reference to normal and reasonable remedies, and that the Tribunal has power under s. 9(4) of the QCAT Act to do all things necessary or convenient before exercising its jurisdiction.
  2. [103]
    Similar considerations arose in the decision of Dream Suburbs Pty Ltd ABN 582 477 245 56 v Body Corporate for Persse Palace Community Titles Scheme 48289 & Ors [2019] QCAT 373. That was a case in which, inter alia the issues included whether a management agreement and letting agreement with respect to the management of that particular CTS was void for various reasons. Member Traves considered s. 149B, s. 229 and s. 227 of the BCCM Act. She held that the Tribunal had power under s.60 of the QCAT Act to make a declaration about a matter in a proceeding and under s. 60(2) to make an order it considered necessary or desirable to give effect to a declaration under ss(1) with both proceedings predicated on the basis that there is a proceeding which is defined to mean generally a proceeding before the Tribunal.
  3. [104]
    After consideration of the operation of s. 149B and s. 229B, Member Traves concluded that the matter before her, notwithstanding that it involved an application for a finding or declaration of invalidity of an agreement, was nevertheless a complex dispute. She considered what was said about the scope of the decisions in Henderson and James v The Body Corporate of Aarons Community Title Scheme 11476..
  4. [105]
    In Dream Suburbs Pty Ltd ABN 582 477 245 56 v Body Corporate for Persse Palace Community Titles Scheme 48289 & Ors Member Traves held that:
  1. [53]
    The issue of what forms part of the “dispute” for the purposes of s 149B is fundamental to the applications before me. The definition of “dispute” in Schedule 6 is descriptive. It provides that dispute generally, includes complaint (which is not defined) and, for Chapter 6, see s 227. The definition is therefore unconfined, except that it must include the complaint. The concept in the context of s 149B has been approached broadly in the Tribunal so as to include the power to make injunctions and declarations regarding whether a resolution to terminate a caretaker contract was valid (citing Reynolds v Body Corporate for Mount View Apartments [2018] QCAT 283, [21].)
  1. [106]
    I agree with that conclusion.
  2. [107]
    I also accept as a broad proposition the finding by Member Traves at [53] that the issue of what forms part of the “dispute” for the purposes of s 149B is fundamental to such applications as this and that “the definition of “dispute” in Schedule 6 is descriptive. It provides that dispute generally, includes complaint (which is not defined) and, for Chapter 6, see s 227. The definition is therefore unconfined, except that it must include the complaint. The concept in the context of s 149B has been approached broadly in the Tribunal so as to include the power to make injunctions and declarations regarding whether a resolution to terminate a caretaker contract was valid.
  3. [108]
    The Applicant argues that Member Traves’ analysis is in error, particularly in regard to her conclusion that on the proper construction of s. 149B, the Tribunal’s jurisdiction to resolve the dispute permitted the Tribunal to consider all aspects of the dispute, including those raised by the counterapplication which arguably would not have been, by itself if brought in the Tribunal within jurisdiction. I do not accept that there was error in the learned member’s analysis.
  4. [109]
    In my view, in the present context, this Tribunal can exercise the powers to declare the agreement either valid or void or voidable and make any other orders that would necessarily flow from that, as well as the grant of any of the alternative forms of relief which are more conventional and in nature and involve an interpretation of a prime facie valid agreement. I therefore dismiss the application to transfer the proceeding.
  5. [110]
    I therefore dismiss the application to transfer the proceeding to the Supreme Court.
  6. [111]
    I therefore make the following orders:
  1. 1.The application filed by the Applicant for leave to amend the application is allowed.
  1. 2.The Applicant shall pay the costs of the application to amend, and the Respondent’s costs thrown away by reason of the amendment to be assessed on the District Court scale or to be agreed
  1. 3.The application seeking to have the entire proceeding transferred to the Supreme Court is dismissed.

Footnotes

[1] Hartnett v Hynes [2009] QSC 225 at [27].

[2] Monto Coal 2 Pty Ltd v Sabrus Pty Ltd [2014] QCA 267 at [73]-[74].

[3]Sheehy v Body Corporate for Marlin Cove [2008] QCCTBCCM 14.

Close

Editorial Notes

  • Published Case Name:

    Body Corporate for the Lakes-Cairns CTS 28090 v Sunshine Group Australia Pty Ltd

  • Shortened Case Name:

    Body Corporate for the Lakes-Cairns CTS 28090 v Sunshine Group Australia Pty Ltd

  • MNC:

    [2023] QCAT 39

  • Court:

    QCAT

  • Judge(s):

    Member Roney KC

  • Date:

    01 Feb 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
Breeze Mr Pty Ltd v Body Corporate for Bay Village Community Title Scheme 33127(2021) 9 QR 90; [2021] QSC 263
2 citations
Jump To
Cite 1 - (2021) 9 QR 90
Cite 2 - (2021) 9 QR 90
Dream Suburbs Pty Ltd v Body Corporate for Persse Palace Community Titles Scheme [2019] QCAT 373
1 citation
Jump To
Cite 1 - [2019] QCAT 373
Dunlop v Body Corporate For Port Douglas Queenslander CTS 886 [2021] QSC 85
2 citations
Jump To
Cite 1 - [2021] QSC 85
Cite 2 - [2021] QSC 85
Ex parte McNally (1999) 198 CLR 511
3 citations
Jump To
Cite 1 - (1999) 198 CLR 511
Cite 2 - (1999) 198 CLR 511
Cite 3 - (1999) 198 CLR 511
Fencott v Muller (1983) 152 CLR 570
2 citations
Jump To
Cite 1 - (1983) 152 CLR 570
Cite 2 - (1983) 152 CLR 570
Hartnett v Hynes [2009] QSC 225
3 citations
Jump To
Cite 1 - [2009] QSC 225
Cite 2 - [2009] QSC 225
Cite 3 - [2009] QSC 225
Henderson v The Body Corporate for Merrimac Heights [2011] QSC 336
3 citations
Jump To
Cite 1 - [2011] QSC 336
Cite 2 - [2011] QSC 336
Cite 3 - [2011] QSC 336
James v Body Corporate Aarons Community Title Scheme 11476 [2002] QSC 386
1 citation
Jump To
Cite 1 - [2002] QSC 386
James v The Body Corporate Aarons Community Title Scheme 11476[2004] 1 Qd R 386; [2003] QCA 329
1 citation
Jump To
Cite 1 - [2003] QCA 329
Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267
3 citations
Jump To
Cite 1 - [2014] QCA 267
Cite 2 - [2014] QCA 267
Cite 3 - [2014] QCA 267
National Parks and Wildlife Service v Stables Perisher Pty. Ltd. (1990) 20 NSWLR 573
2 citations
Jump To
Cite 1 - (1990) 20 NSWLR 573
Cite 2 - (1990) 20 NSWLR 573
Owen v Menzies[2013] 2 Qd R 327; [2012] QCA 170
1 citation
Jump To
Cite 1 - [2013] 2 Qd R 327
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
2 citations
Jump To
Cite 1 - [2010] QCAT 412
Cite 2 - [2010] QCAT 412
Randall v Body Corporate for Runaway Cove Bayside CTS 25498 [2011] QCATA 10
2 citations
Jump To
Cite 1 - [2011] QCATA 10
Cite 2 - [2011] QCATA 10
Reynolds v Body Corporate for Mount View Apartments [2018] QCAT 283
3 citations
Jump To
Cite 1 - [2018] QCAT 283
Cite 2 - [2018] QCAT 283
Cite 3 - [2018] QCAT 283
Sheehy v Body Corporate for Marlin Cove [2008] QCCTBCCM 14
3 citations
Jump To
Cite 1 - [2008] QCCTBCCM 14
Cite 2 - [2008] QCCTBCCM 14
Cite 3 - [2008] QCCTBCCM 14
Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & Downie [2022] QCATA 3
1 citation
Jump To
Cite 1 - [2022] QCATA 3
Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261
1 citation
Jump To
Cite 1 - (1983) 154 CLR 261
The Sands Gold Coast Pty Ltd v Body Corporate for the Sands [2016] QCAT 69
2 citations
Jump To
Cite 1 - [2016] QCAT 69
Cite 2 - [2016] QCAT 69
World Firefighters Games Brisbane v World Firefighters Games Western Australia Incorporated [2001] QSC 164
2 citations
Jump To
Cite 1 - [2001] QSC 164
Cite 2 - [2001] QSC 164

Cases Citing

Case NameFull CitationFrequency
Dunlop v the Body Corporate for Port Douglas Queenslander [2024] QCAT 881 citation
Jenkin v Body Corporate for Gemstone – Stones Corner CTS 50567 [2024] QCAT 2872 citations
Linali Pty Ltd as trustee for the Chakra Family Trust v Body Corporate for Crown CTS 41282 [2024] QCAT 4462 citations
Sino Amber Pty Ltd v Body Corporate for Riverbend Gardens CTS 26822 [2025] QDC 901 citation
Spedding Estates Pty Ltd as trustee for The Spedding Family Trust t/as Summergrove Estate v Reid [2023] QCATA 962 citations
Whatco Pty Ltd v Body Corporate for Illawong Lakes Resort CTS 22485 [2023] QCAT 2892 citations
1

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