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  4. Sunrise Creek Pty Ltd v Glades Easthill South CTS 30074 - [2023] QCAT 74

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Sunrise Creek Pty Ltd v Glades Easthill South CTS 30074[2023] QCAT 74

Sunrise Creek Pty Ltd v Glades Easthill South CTS 30074[2023] QCAT 74

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Sunrise Creek Pty Ltd v Glades Easthill South CTS 30074 [2023] QCAT 74

PARTIES:

sunrise Creek pty ltd t/as glades easthill residences

(applicant)

v

glades easthill south cts 30074

(respondent)

APPLICATION NO/S:

OCL006-23

MATTER TYPE:

Other civil dispute matters

DECISION DATE:

13 February 2023

REASONS DELIVERED ON:

28 February 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

Until further order, upon Sunrise Creek Pty Ltd giving the usual undertaking as to damages and costs, Glades Easthill South CTS 30074 is restrained from taking any further actions to terminate or to attempt to terminate the caretaking agreement dated 14 November 2019 or take any further actions relying upon Remedial Action Notices (RAN) dated 23 February 2022, 19 May 2022 and 20 October 2022, pending determination of the Application for interim order filed 9 February 2023.

CATCHWORDS:

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS DUTIES AND LIABILITIES – GENERALLY – where Body Corporate asserted a right to terminate a caretaking agreement

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – whether interim order restraining Body Corporate from terminating caretaking agreement should be made

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58

Parkview Management Pty Ltd v Body Corporate for Boca Raton Community Titles Scheme 22486 [2018] QCAT 6

APPEARANCES &

REPRESENTATION:

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

REASONS FOR DECISION

  1. [1]
    Sunrise Creek Pty Ltd (Sunrise) and Glades Easthill South CTS 30074 (Body Corporate) are parties to a caretaking agreement.  Disputes have arisen between the parties. On 9 February 2023 Sunrise[1] filed an Application to resolve a complex dispute (excluding lot entitlement disputes) (Initiating Application) and an Application for interim order (together the Applications).
  2. [2]
    On 13 February 2023 I made an order:

Until further order, upon Sunrise Creek Pty Ltd giving the usual undertaking as to damages and costs, Glades Easthill South CTS 30074 is restrained from taking any further actions to terminate or to attempt to terminate the caretaking agreement dated 14 November 2019 or take any further actions relying upon Remedial Action Notices (RAN) dated 23 February 2022, 19 May 2022 and 20 October 2022, pending determination of the Application for interim order filed 9 February 2023 (the Interim Order).

  1. [3]
    I also made directions that Sunrise was to give a copy of the Applications to the Body Corporate and listed the Application for interim order for a directions hearing on 15 February 2023.
  2. [4]
    On 14 February 2023 the Body Corporate sought reasons for my decision of 13 February 2023.  These are my reasons for making the Interim Order.
  3. [5]
    Before making a final decision, the Tribunal may make an interim order it considers appropriate in the interests of justice to protect a party’s position for the duration of the proceeding or to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction.[2]  Interim order means an order that has effect for the duration of a proceeding or a shorter period.[3]
  4. [6]
    Whether an interim order should be made depends upon:
    1. (a)
      whether the Tribunal is empowered to hear and determine the dispute and to make the orders ultimately sought; and
    2. (b)
      whether the interim order is in aid of that relief.
  5. [7]
    The Initiating Application sought the following final orders:
    1. (a)
      motion 2 in EGM of 9 February is invalid and of no effect;
    2. (b)
      RAN dated 23 February 2022 invalid;
    3. (c)
      RAN dated 19 May 2022 invalid;
    4. (d)
      RAN dated 20 October 2022 invalid.
  6. [8]
    Sunrise sought the following interim orders:
    1. (a)
      Glades Easthill South should be restrained from terminating or attempting to terminate the caretaking agreement dated 14 November 2019 until the final orders are determined;
    2. (b)
      Glades Easthill South should be restrained to implement the motion 2 in EGM on 9 February 2023(if passed) until the final orders are determined (sic);
    3. (c)
      Glades Easthill South should be restrained from giving any notice to Sunrise’s financier until the final orders are determined;
    4. (d)
      Glades Easthill South must Sunrise Creek Pty Ltd to perform its caretaking services under the caretaking agreement without hindrance and pay monthly remuneration due pursuant to the caretaking agreement until the final orders are determined (sic);
    5. (e)
      Any other interim orders necessary in the circumstances to prevent Glades Easthill South to terminate the caretaking agreement dated 14 November 2019 until the final orders are determined (sic).
  7. [9]
    The usual factors for the making of an interim order are:
    1. (a)
      why the order is required to protect a party’s position for the duration of the proceeding or is required to secure the effectiveness of a final decision;[4]
    2. (b)
      whether Sunrise has an arguable case that may entitle it to final relief;
    3. (c)
      whether the balance of convenience favours the making of the order, including why damages are not an adequate remedy, if the Body Corporate is found to have taken action contrary to law;
    4. (d)
      to the extent that the interim order seeks the Body Corporate to be restrained from doing something it contends it is entitled to do, whether Sunrise offers an undertaking as to costs or damages[5] and the value of any such undertaking. 
  8. [10]
    In relation to the balance of convenience, SM Brown has observed:

The court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.[6]

  1. [11]
    Although the Initiating Application did not expressly refer to the basis of the Tribunal’s jurisdiction, it set out a dispute arguably about a claimed or anticipated contractual matter, which is a matter within the Tribunal’s jurisdiction.[7] 
  2. [12]
    Having regard to the reference in the Applications to an EGM[8] on 9 February and termination or attempted termination of the caretaking agreement I considered that the matter was urgent and the making of the Interim order was in aid of the final relief sought.  Further I considered that making the Interim order appeared to carry the lower risk of injustice if it should turn out to have been wrongly made.  I considered it was appropriate, in the interests of justice, to make the Interim order to preserve Sunrise’s position, as at the time of making the Interim order, for a couple of days pending a directions hearing listed for 15 February 2023 at which time the parties could be heard about what had happened at the EGM on 9 February, whether the caretaking agreement had already been terminated by the time the Interim order was made and the parties could make submissions about appropriate directions for the determination of the Application for interim order including whether the interim order should be discharged or continued. 

Footnotes

[1]  On the authority of its director.

[2]  QCAT Act, s 58(1).

[3]  Ibid, s 58(6).

[4]  Ibid, s 58(1).

[5]  Ibid, s 58(3).

[6] Parkview Management Pty Ltd v Body Corporate for Boca Raton Community Titles Scheme 22486 [2018] QCAT 6, [24].

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

[8]  Extraordinary General Meeting.

Close

Editorial Notes

  • Published Case Name:

    Sunrise Creek Pty Ltd v Glades Easthill South CTS 30074

  • Shortened Case Name:

    Sunrise Creek Pty Ltd v Glades Easthill South CTS 30074

  • MNC:

    [2023] QCAT 74

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    28 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
Parkview Management Pty Ltd v Body Corporate for Boca Raton East Community Titles Scheme 22486 [2018] QCAT 6
2 citations
Jump To
Cite 1 - [2018] QCAT 6
Cite 2 - [2018] QCAT 6

Cases Citing

Case NameFull CitationFrequency
Hall v Queensland Building and Construction Commission [2023] QCATA 741 citation
1

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