Stevens v Body Corporate for Atlantis West CTS 8790
[2025] QCATA 49
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- Stevens v Body Corporate for Atlantis West CTS 8790[2025] QCATA 49
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Stevens v Body Corporate for Atlantis West CTS 8790[2025] QCATA 49
Stevens v Body Corporate for Atlantis West CTS 8790[2025] QCATA 49
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Stevens v Body Corporate for Atlantis West CTS 8790 [2025] QCATA 49 |
PARTIES: | Wayne Stevens (applicant/appellant) v Body corporate for atlantis West CTS 8790 (respondent) |
APPLICATION NO/S: | APL332-24 |
ORIGINATING APPLICATION NO/S: | BCCM 0173-2024 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 8 May 2025 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Fitzpatrick |
ORDERS: |
|
CATCHWORDS: | BODY CORPORATE – JOINDER – whether parties’ interests are affected – whether there is utility in joining party to the proceedings – whether discretion to join should be exercised Body Corporate and Community Management Act 1997 (Qld), s 227, s 229(3)(a), s 243(1)(c), s 243(2)(b), s 289(1)(d)(ii)(D) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42, s 43 Bakir v Tran & Body Corporate for Chevron Renaissance [2015] QCATA 164 |
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) |
REASONS FOR DECISION
- [1]Wayne Stevens filed an appeal application on 30 October 2024, from a decision of an Adjudicator’s Order made pursuant to ss 227 and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Qld) (‘the Act’) on 18 September 2024.
- [2]Mr Stevens is the applicant below. The Body Corporate for Atlantis West CTS 8790 (‘the Body Corporate’) is the respondent. The Adjudicator noted all owners as affected persons. Lea Lea Pty Ltd, the caretaker and letting agent of the scheme, was invited to make submissions as an affected person, and did so.
- [3]In the application before the Adjudicator, Mr Stevens argued that the resolution passed pursuant to Motion 15 at the Annual General Meeting is void.
- [4]The Motion was put by Ms Adamson of Lot 1. Ms Adamson is the sole director and shareholder Lea Lea Pty Ltd.
- [5]The Motion is that the Body Corporate resolve to amend the caretaking service contractor’s agreement by inserting an option to extend or renew the caretaking service contractor’s agreement for a further period of 1 year and 10 months from 5 January 2032 to 4 November 2033. The Motion was carried by a majority.
- [6]The Adjudicator dismissed Mr Stevens’ application.
- [7]On appeal Mr Stevens seeks orders that:
- the term limitations of caretaking service contracts under the Act can only ever be extended, varied or optioned beyond the initial term once for a single period no greater than five years; and
- upon expiry, a body corporate be obligated to uphold the primary object of the Act by ensuring any future arrangements are both contemporary (by seeking competitive market tender to determine value) and flexible (by including reciprocal without cause termination rights for either party given 12 months notice).
Submissions as to joinder and extension of time by Lea Lea Pty Ltd
- [8]The Appeal Tribunal has received an application to be joined to the proceeding by Lea Lea Pty Ltd and for an extension of time to be granted enabling the filing of that application outside the time frame directed by the Tribunal.
- [9]An extension of time is granted to Lea Lea Pty Ltd to 15 January 2025, the date of filing of its application. Lea Lea Pty Ltd says that it was not served with the application to appeal so as to enable it to make its application for joinder by the date directed. Mr Stevens asserts that he served the application to appeal on the registered office of Lea Lea Pty Ltd, as he refuses to acknowledge an address for service given to him as the address of the lawyers for Lea Lea Pty Ltd. The time directed for filing of a joinder application is merely procedural. No prejudice is caused to any person by an extension of time. It is preferable for the Appeal Tribunal to proceed to consider the merits of the application.
- [10]Lea Lea Pty Ltd submits that the orders sought by Mr Stevens, if made would have the effect of extinguishing Lea Lea Pty Ltd’s management rights as caretaker and letting agent of the scheme, as well as having a significant impact on the entire caretaking and body corporate industries.
Mr Stevens’ submissions
- [11]Mr Stevens objects to Lea Lea Pty Ltd being joined as a party to the proceeding on a number of grounds. The Body Corporate has not expressed a view.
- [12]In summary, Mr Stevens says that:
- Lea Lea Pty Ltd is not a party to the proceeding and has no standing to participate in the appeal. Mr Stevens says that the Body Corporate is the only other party to the proceeding;
- objections are raised to the suitability of Lea Lea Pty Ltd to act as a letting agent and for Mahoney’s lawyers to act for the company;
- on his construction of the Act, Lea Lea Pty Ltd has no proper interest in the scheme because its caretaking and service contract has expired, alternatively it cannot operate because of allegedly criminal associates;
- the provisions of s 42 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) are not met;
- there is no utility in joinder of Lea Lea Pty Ltd because the dispute is only between Mr Stevens and the Body Corporate;
- Lea Lea Pty Ltd is not affected by the outcome of the appeal as only the Body Corporate is affected by whether an AGM motion is carried or defeated;
- the interests of Lea Lea Pty Ltd and the Body Corporate are diametrically and commercially opposed;
- the time and cost of including Lea Lea Pty Ltd as a party is a relevant consideration;
- Lea Lea Pty Ltd had no right to submit a motion to the general meeting. It is not a member of the Body Corporate. Nevertheless, the lawyers for Lea Lea Pty Ltd in their letter to the Adjudicator seeking an extension of time to make submissions as an affected person, stated that the application concerns a motion “submitted by Lea Lea to extend the term of the caretaking agreement”;
- there is no evidence Lea Lea Pty Ltd was invited to make a submission to the Adjudicator. Requesting an extension of time to do so implied that Lea Lea Pty Ltd had standing to submit a motion which is wrong and further that it had no standing to make a submission to the Adjudicator;
- an industry body - Australian Resident Accommodation Managers’ Association (‘ARAMA’) is behind the submissions to the Adjudicator and the joinder application. It is well resourced and has engaged lawyers;
- the objective of the application before the Adjudicator was to bring clarity to the proper interpretation of management rights term limitations in the Act. There is interference by Lea Lea Pty Ltd and ARAMA for their own benefit; and
- the decision involves a question of statutory interpretation only.
Consideration
- [13]I do not consider Mr Stevens’ objections to Lea Lea Pty Ltd as a suitable letting agent and his objections to its lawyers are relevant to the question of joinder in an appeal from a decision of an Adjudicator. The question of legal representation for Lea Lea Pty Ltd will be dealt with separately, although I observe at this point that a company is entitled to take legal advice and to be assisted in its affairs by a lawyer of its choice. This Tribunal will not interfere in that right. The Tribunal will however consider whether a party is entitled to legal representation at any hearing of a matter, by reference to s 43 of the QCAT Act.
- [14]I do not accept the submissions that Lea Lea Pty Ltd has no standing to join the appeal proceeding as a respondent. Mr Stevens says the company lacked standing to make a submission to the Adjudicator and on that basis lacks standing to join the appeal proceeding. Lea Lea Pty Ltd’s standing to make submissions to the Adjudicator arose from ss 243(1)(c) and 243(2)(b) of the Act, as they relate to an affected person. Affected person is defined in the Act as for an application, a person, other than a party to the application, who would be directly and materially affected by the outcome sought by the application. The definition contemplates a service contractor might be an affected person. There is no reason why Lea Lea Pty Ltd cannot be considered for joinder in the appeal proceeding for the reason given by Mr Stevens.
- [15]Mr Stevens suggests that the Adjudicator was misled by a reference in a letter from Mahoney’s to the Adjudicator stating that Motion 15 was put by Lea Lea Pty Ltd. The Motion was in fact put by the company’s Director, a lot owner. The letter also makes it very clear that Lea Lea Pty Ltd was making submissions as an affected person. The Adjudicator accepted the submissions as he was entitled to under s 243(2)(b) of the Act.
- [16]As to the submission that Lea Lea Pty Ltd is not affected by the outcome of the appeal as only the Body Corporate is affected by whether an AGM motion is carried or defeated, Mr Stevens goes further in the orders he seeks than whether the Motion should have been carried or not. The orders sought have a direct impact on Lea Lea Pty Ltd and could, as submitted, mean that its management rights are extinguished.
- [17]For that reason, I do not accept that there is no utility in joinder of Lea Lea Pty Ltd. The dispute is not only between Mr Stevens and the Body Corporate, as contended by Mr Stevens.
- [18]Mr Stevens says that the interests of the Body Corporate and Lea Lea Pty Ltd are diametrically opposed. Mr Stevens has his own view as to the interests of the Body Corporate. His view would not appear to be supported by the majority adoption of Motion 15 at the AGM. However, the Body Corporate has not participated in the appeal proceeding so I cannot judge what its attitude might be to the joinder of Lea Lea Pty Ltd. The point raised by Mr Stevens does not assist in addressing whether Lea Lea Pty Ltd should be joined as a party to the appeal proceeding.
- [19]Mr Stevens argues that Lea Lea Pty Ltd has no proper interest in the Scheme because its caretaking and service contract has expired. That conclusion can only be reached if Mr Stevens succeeds in his contention that the Adjudicator has misconstrued the Act. The contention remains to be tested. In my view the Appeal Tribunal would be assisted in hearing from Lea Lea Pty Ltd on Mr Stevens’ construction of the Act.
- [20]I accept the submission of Lea Lea Pty Ltd that it will be affected by the outcome of the appeal proceeding. The fact that its status in the proceeding before the Adjudicator was as an affected party, not as the respondent Body Corporate or as a Lot Owner, does not mean it may not seek to be joined to the appeal proceeding pursuant to s 42 of the QCAT Act.
- [21]The Act is silent as to who is a party to any appeal brought in QCAT. In Bakir v Tran & Body Corporate for Chevron Renaissance[1] the Appeal Tribunal concluded that persons actively involved in an original proceeding, such as an adjudication, are parties and those persons or parties are entitled to natural justice and to be heard on an appeal. The Appeal Tribunal was satisfied that all potential aggrieved persons who had the right to bring an appeal must be afforded procedural fairness by being given the opportunity to join appeal proceedings following service of the application to appeal.[2] Lea Lea Pty Ltd falls within the category of persons described in s 289(1)(d)(ii)(D) of the Act as an aggrieved person.
- [22]Section 42 of the QCAT Act gives the Appeal Tribunal the power to join a person as a party if the person’s interests may be affected by the proceeding. I have found that Lea Lea Pty Ltd’s interests are affected by the proceeding. Accordingly, one of the criteria in s 42 of the QCAT Act is satisfied. I am satisfied that there is utility in joining Lea Lea Pty Ltd for the purpose of receiving submissions which address Mr Stevens’ submissions as to the proper construction of the Act, and for the purpose of putting its own construction. Further there is utility in allowing Lea Lea Pty Ltd an opportunity to protect its interests in the management rights by contending that the Adjudicator did not err in his construction of the Act. I accept that some further time will be taken and perhaps cost incurred if Lea Lea Pty is joined to the appeal proceeding. That is a natural incident of litigation and does not outweigh an entitlement to natural justice on the part of a party seeking to be joined.
- [23]Finally, I do not consider it to be a relevant consideration in this application that an industry body such as ARAMA is interested in the outcome of the matter and may be providing assistance to Lea Lea Pty Ltd. I note Mr Stevens discloses he is a current vice president and former president of the Unit Owners Association of Queensland.
- [24]I order that Lea Lea Pty Ltd is joined as second respondent to the proceeding.