Christensen v Complete Body Corporate Services Pty Ltd & Ors
[2020] QCATA 137
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- Christensen v Complete Body Corporate Services Pty Ltd & Ors[2020] QCATA 137
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Christensen v Complete Body Corporate Services Pty Ltd & Ors[2020] QCATA 137
Christensen v Complete Body Corporate Services Pty Ltd & Ors[2020] QCATA 137
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Christensen v Complete Body Corporate Services Pty Ltd & Ors [2020] QCATA 137 | ||||||||
PARTIES: | allan christensen | ||||||||
(applicant/appellant) | |||||||||
v | |||||||||
complete body corporate services pty ltd | |||||||||
(first respondent) KIM ELLIOTT (second respondent) LEXIE HUTCHESON (third respondent) THE BODY CORPORATE FOR FIFTY RIVERWALK CTS37214 (fourth respondent) | |||||||||
APPLICATION NO/S: | APL233-19 | ||||||||
ORIGINATING APPLICATION NO/S: | MCDO285-19 Southport | ||||||||
MATTER TYPE: | Appeals | ||||||||
DELIVERED ON: | 21 September 2020 | ||||||||
HEARING DATE: | On the papers | ||||||||
HEARD AT: | Brisbane | ||||||||
DECISION OF: | Member Howe | ||||||||
ORDERS: |
| ||||||||
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where the applicant commenced proceedings to recover a debt or liquidated demand – where the claim was between a caretaker and a respondent body corporate – where exclusive jurisdiction to resolve disputes between the body corporate and a caretaking service contractor was granted to adjudicators appointed under the Body Corporate and Community Management Act 1997 (Qld) – where the decision made by the Tribunal Adjudicator after hearing the claim was a nullity Body Corporate and Community Management Act 1997 (Qld) s 228(1)(b), s 227(1)(d), s 229A Pickering v McArthur [2005] QCA 294 | ||||||||
| |||||||||
REASONS FOR DECISION
- [1]Mr Christensen was the caretaker for the Body Corporate for Fifty Riverwalk CTS37214 under a caretaking agreement he purchased from a previous caretaker.
- [2]He too on-sold his caretaking rights to new caretakers in 2018.
- [3]He claimed he was entitled to extra remuneration and reimbursement for costs he incurred on behalf of the body corporate during his period of caretaking outside the scope of the caretaking agreement.
- [4]The body corporate responded that his additional claims were covered by his remuneration under the caretaking agreement and additionally that the claims were not supported on his evidence.
- [5]Mr Christensen initially sued Complete Body Corporate Services Pty Ltd, who provided administrative services to the body corporate, and various officers of the body corporate committee. At hearing before an Adjudicator the claim was extended to include a claim against the body corporate.
- [6]The Adjudicator heard from the parties. Mr Christensen said he was the caretaker for the body corporate at the time he incurred the costs he was suing for, but the additional work was beyond his caretaking duties.
- [7]The respondents denied that was the case. Additionally they pointed out that receipts he relied on to evidence his work and expenditure did no such thing. His receipts were generally post-dated the work he claimed he had done.
- [8]Mr Christensen could offer no evidence of the agreement he claimed to have entered into with the chairman of the body corporate at the time entitling him to additional money. He described it as a gentleman’s agreement.
- [9]The Adjudicator was not satisfied on the balance of probabilities that Mr Christensen was entitled to any additional amounts over and above his caretaking remuneration. He was not satisfied that the chairman of the body corporate had the authority to bind the body corporate to pay anything more than his entitlement under the caretaking agreement. He dismissed the claim.
- [10]Mr Christensen seeks leave to appeal that decision.
- [11]Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained. If leave is granted then the appeal may proceed.[1]
- [12]Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
- [13]Mr Christensen appeals on the grounds that his claim was outside the terms of the caretaking agreement.
- [14]Whilst the Adjudicator heard Mr Christensen’s claim, the Tribunal in fact had no jurisdiction to do so. It is clear the body corporate maintained the moneys sought by Mr Christensen were not payable because the work he was claiming for had already been paid for with his remuneration under the caretaking agreement.
- [15]The Body Corporate and Community Management Act 1997 (Qld) (‘BCCM’) makes specific provision for resolution of disputes between parties involved in body corporate matters. By Chapter 6, s 228(1)(b) it states that the Chapter establishes arrangements for resolving, in the context of community titles schemes, disputes about the exercise of rights or powers or the performance of duties under the BCCM or community management statements.
- [16]By s 227(1)(d) ‘dispute’ includes a dispute between the body corporate for a community titles scheme and a caretaking service contractor for the scheme.
- [17]By s 229, which provision is entitled ‘Exclusivity of dispute resolution provisions’, it is provided:
…
- (3)Subject to section 229A, the only remedy for a dispute that is not a complex dispute is—
- (a)the resolution of the dispute by a dispute resolution process; or
- (b)an order of the appeal tribunal on appeal from an adjudicator on a question of law.
- [18]The reference to ‘adjudicator’ in s 229(3)(b) is not to an Adjudicator appointed to the Tribunal but a person appointed under s 236 BCCM as a department adjudicator or a specialist adjudicator appointed under Chapter 6, Part 8 BCCM.
- [19]The exception provided for in s 229A is:
(1) A claim to recover a debt the subject of a debt dispute that is a claim under the Queensland Civil and Administrative Tribunal Act 2009, schedule 3, definition minor civil dispute, paragraph 1(a) is, under paragraph 2 of that definition, a minor civil dispute.
…
(7) In this section—
debt dispute means a dispute between a body corporate for a community titles scheme and the owner of a lot included in the scheme about the recovery, by the body corporate from the owner, of a debt under this Act.
- [20]Mr Christensen’s claim was not a complex dispute as defined in the BCCM dictionary Schedule 6.
- [21]It was not a claim between a body corporate and the owner of a lot about the recovery of a debt from the owner.
- [22]As such the Tribunal had no jurisdiction to hear the matter or make orders about the matter. The order made was a nullity.
- [23]Mr Christensen’s claim can only be resolved through a dispute resolution process under the BCCM. Whether he continues on and pursues that option is up to him.
- [24]The order of the Adjudicator made 25 July 2019 was beyond jurisdiction. Leave to appeal will be granted, the appeal allowed but the only order that should follow that for the sake of clarity is that the decision made below is set aside.