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Justlainer Pty Ltd ATF the Trevor and Allison Black Family Trust v The Body Corporate for Ko Huna Resort Village CTS 27120[2025] QCATA 52

Justlainer Pty Ltd ATF the Trevor and Allison Black Family Trust v The Body Corporate for Ko Huna Resort Village CTS 27120[2025] QCATA 52

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Justlainer Pty Ltd ATF the Trevor and Allison Black Family Trust v The Body Corporate for Ko Huna Resort Village CTS 27120 & Anor [2025] QCATA 52

PARTIES:

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

(applicant/appellant)

v

THE BODY CORPORATE FOR KO HUNA RESORT VILLAGE CTS 27120

(first respondent)

THE BODY CORPORATE FOR KO HUNA RESORT VILLAGE ACCOMMODATION CTS 27481

(second respondent)

APPLICATION NO/S:

APL327-23

ORIGINATING APPLICATION NO/S:

OCL072-19

MATTER TYPE:

Appeals

DELIVERED ON:

15 May 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

Member Bishop

ORDERS:

  1. The appeal is allowed.
  2. The decision of the Tribunal of 7 September 2023 is set aside.
  3. The matter is remitted to a differently constituted Tribunal for determination of the application for damages filed on 8 August 2019.
  4. The parties shall file (and serve on the other party), within 14 days of the date of delivery of these orders, any written submissions in respect of the question of costs of the application for leave to appeal or appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where claim in damages for breach of contract in relation to caretaking agreements and letting authority – where trustee a party to the contract – where new trustee appointed – where contract rescinded by prior trustee – whether new trustee has right to bring action by virtue of s 15(1) of Trusts Act 1973  (Qld) – whether new trustee has standing under s 149B of the Body Corporate and Community Management Act 1997 (Qld)

Acts Interpretation Act 1954 (Qld), s 7, Schedule 1

Body Corporate and Community Management Act 1997 (Qld), ss 149B, 226, 227, 228, Schedule 6

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

Trade Practice Act 1974 (Cth), s 82

Trusts Act 1973 (Qld), ss 12, 15

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

Australia City Properties Management Pty Ltd v The Owners – Strat Plan No 65111 [2021] NSWCA 162

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

Commissioner of Taxation v Sara Lee Household and Body Care (2000) 201 CLR 520

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

Lep Air Services Ltd v Rolloswin Investments Ltd [1973] AC 331

Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560

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

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

Poulton v Commonwealth (1952) 89 CLR 540

Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17

Queensland Premier Mines Pty Ltd v French (2007) 235 CLR 81

Matthews v Cool Or Cosy Pty Ltd [2004] WASCA 114

Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd (2016) 340 ALR 193

In Sedgwick Australia Pty Ltd v Jloc Super Pty Ltd [2024] QCA 218

APPEARANCES & REPRESENTATION:

The 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

Background

  1. [1]
    This is an appeal from a decision of the Tribunal at first instance, dismissing proceedings brought by the applicant for breach of contract pertaining to three agreements (‘Agreements’) entered into on 19 December 2003. The Agreements  consisted of:
  1. a caretaking agreement between the Body Corporate for Ko Huna Resort Village CTS 27120 (‘the Principal Scheme’) and MPRM Management Pty Ltd;
  2. a caretaking agreement between the Body Corporate for Ko Huna Resort Village Accommodation CTS 27481 (‘the Subsidiary Scheme’) and MPRM Management Pty Ltd; and
  3. a letting authority between the Subsidiary Scheme and MPRM Management Pty Ltd.
  1. [2]
    In 2007, the Principal Scheme and the Subsidiary Scheme approved the assignment of the rights under the Agreements from MPRM Management Pty Ltd to Tulip Pty Ltd. Tulip Pty Ltd subsequently changed its name to Ko Huna Sands Holding Pty Ltd. In 2010, the Principal Scheme and Subsidiary Scheme approved the assignment of the rights under the Agreements from Ko Huna Sands Holding Pty Ltd to Alison Black as trustee for the Trevor and Allison Black Family Trust (‘the Trust’).
  2. [3]
    On 22 August 2013, Ms Black’s solicitors terminated the Agreements on the ground of repudiation.
  3. [4]
    In about October 2013, Ms Black was removed as trustee of the Trust and replaced by Black Trevally Pty Ltd, which in turn, in about January 2014, was replaced as trustee by the present applicant, Justlainer Pty Ltd.
  4. [5]
    With reference to the following passage in ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia,[1] the Tribunal at first instance noted that a trust is not a separate legal entity; the trustee stands as the legal owner of the trust property:

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

  1. [6]
    The applicant acknowledged, and it is not in dispute, that there was no assignment of the Agreements to it because the Agreements had been terminated. The respondents accept that the then trustee, Ms Black, terminated one of the Agreements (‘letting authority agreement’) in August 2013 on the ground of repudiation and, due to the reciprocal nature of the Agreements, does not dispute that the other two Agreements (‘the caretaking agreements’) were terminated.
  2. [7]
    On 8 August 2019, the applicant commenced proceedings in the Tribunal against the respondents for breach of contract in relation to the Agreements. On 8 March 2022, the respondents lodged an application to strike out the proceedings, including on the basis of a lack of standing to bring the proceedings.
  3. [8]
    The Tribunal at first instance considered whether the applicant could bring proceedings in circumstances where it was not a party to the Agreements and was not an approved assignee in relation to those Agreements.
  4. [9]
    The Tribunal at first instance addressed two primary submissions of the applicant in opposing the strike out application. First, that notwithstanding any lack of formal assignment the applicant became the legal owner of rights arising under the Agreements by virtue of the provisions of s 15(1) of the Trusts Act 1973 (Qld) (‘the TA’), which provides:

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

  1. [10]
    Second, and in the alternative, the right to bring action against the respondents for breach of the Agreements was a chose in action and, again, this right vested in the applicant by virtue of s 15(1) of the TA.
  2. [11]
    The Tribunal at first instance rejected those submissions, upheld the strike out application and dismissed the proceedings.
  3. [12]
    In relation to the applicant’s first submission, it was noted that s 15(1) of the TA is qualified by the phrase ‘subject to the provisions of any other Act’. Reference was also made to s 15(5) of the TA, which provides (emphasis added):

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

  1. [13]
    With reference to the qualification in s 15(1) of the TA, ‘subject to the provisions of any other Act’, s 7(1) of the Acts Interpretation Act 1954 (Qld) provides:

In an Act, a reference (either generally or specifically) to a law (including the Act), or a provision of a law (including the Act), includes a reference to the statutory instruments made or in force under the law or provision.

  1. [14]
    In that context, s 120(1) of the then[2] Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld) (‘the Regulation’) provided:

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

  1. [15]
    The Tribunal Member at first instance noted the failure of Mrs Black, Black Trevally Pty Ltd and the applicant to seek approval for the transfer of the Agreements to them, there being no evidence that approval had ever been sought.[3] On that basis, given the qualified terms of the TA in relation to consent and the operation of s 120 of the Regulation,  it was held that the applicant was not a party to the Agreements and, as such, it had no standing to commence the proceedings.
  2. [16]
    The Tribunal at first instance also rejected the applicant’s second, alternative, submission that the right to bring the proceedings for breach of contract is a chose in action and that chose in action was transferred to the applicant by virtue of s 15(1) of the TA.
  3. [17]
    Reference was made to ss 149B, 227, and Schedule 6 of the Body Corporate and Community Management Act 1997 (Qld) (‘the Act’). Section 149B of the Act provides:
  1. This section applies to a dispute about a claimed or anticipated contractual matter about—
  1. the engagement of a person as a body corporate manager or caretaking service contractor for a community titles scheme; or
  1. the authorisation of a person as a letting agent for a community titles scheme.
  1. A party to the dispute may apply—
  1. under chapter 6, for an order of a specialist adjudicator to resolve the dispute; or
  1. as provided under the QCAT Act, for an order of QCAT exercising the tribunal’s original jurisdiction to resolve the dispute.
  1. [18]
    The term ‘contractual matter’ is defined in Schedule 6 of the Act as follows:

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

  1. a contravention of the terms of the engagement or authorisation; or
  1. the termination of the engagement or authorisation; or
  1. the exercise of rights or powers under the terms of the engagement or authorisation; or
  1. the performance of duties under the terms of the engagement or authorisation.
  1. [19]
    Section 227 of the Act defines ‘dispute’, in part, as follows:
  1. A dispute is a dispute between—

…

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

…

  1. the body corporate for a community titles scheme and a letting agent for the scheme; …
  1. [20]
    After setting out those provisions, the Tribunal at first instance then stated:[4]

[33] Many decisions have identified statutory causes of action that are incapable of assignment because they are ‘personal causes of action’ rather than ‘impersonal rights in the nature of a proprietary right’: see, eg, Mijac Investments Pty Ltd v Graham (No 2) [2009] FCA 773, [32]; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352, [49]-[55]; Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd [2018] VSC 633, [52]ff.  The terms of section 149B of the BCCMA place it in this category. 

[34] In my view, the right to commence proceedings in the Tribunal’s original jurisdiction under section 149B of the BCCMA is a personal right available only to specified persons, and is therefore incapable of assignment.  Section 149B(2) specifies that ‘a party to the dispute’ may apply to the Tribunal in its original jurisdiction.  The definition of ‘dispute’ makes it clear that the parties are, relevantly, the body corporate, the caretaking service contractor and the letting agent.  As I have found that it was not a caretaking service contractor or letting agent, the Applicant is not a party to this dispute.

  1. [21]
    It was concluded that the right to bring proceedings under s 149B of the Act had not vested in the applicant and remained with the 2010 assignee.
  2. [22]
    The grounds of appeal are that the Tribunal at first instance erred in law by:
  1. Misconstruing and improperly applying the word ‘dispute’ in s 227 of the Act, and as defined in Schedule 6 of the Act, for the purpose of interpreting s 149B(2)(b) of the Act, and in thereby finding that the applicant did not have standing to bring the proceedings.
  2. Further to the misconstruction and improper application referred to in ground 1 of the appeal, improperly treating s 149B(2)(b) of the Act as a personal right incapable of assignment to the applicant, where:
    1. there was no assignment; and/or
    2. there was a vesting pursuant to s 15(1) of the TA (not an assignment) of the right to bring the proceedings pursuant to s 149B(2)(b) of the Act; and/or
    3. the consent of the respondent was not required pursuant to the body corporate caretaking agreement and letting authority and/or s 120 of the Regulation to effect a change of the trustee, due to the management rights agreement having already ended prior to the change of trustee and the obligations therein having previously been discharged; and/or
    4. because of the matters in ground (2)(c), s 15(5) of the TA had no application to prevent a vesting of the property of the trust in the applicant as trustee.
  3. With reference to grounds 1 and/or 2, improperly determining that the right to commence proceedings under s 149B(2)(b) of the Act had not vested in the applicant.
  4. With reference to grounds 1 and/or 2 and/or 3, dismissing the proceedings commenced by the applicant.
  1. [23]
    In its written submissions, the applicant sets out three related questions of law, which may be summarised as follows:
    1. Whether on a proper construction of s 15(1) of the TA, any automatic vesting of the trust property in the applicant (specifically, a chose in action to sue for breach of contract) was effective only with the consent of the respondents.
    2. Whether in terms of s 227 of the Act, a ‘dispute’ between the body corporate for a community titles scheme and a caretaking service contractor or letting agent is such that a person who was not a party to that agreement cannot commence proceedings under s 149B of the Act.
    3. Related to question (2), whether the right to commence proceedings under s 149B of the Act was a ‘personal cause of action’, such that it could not in any event be assigned to the applicant.
  2. [24]
    The grounds of appeal are encapsulated within these three questions of law and the discussion below focuses on those questions.

Discussion

Question 1

  1. [25]
    The respondents submit that the vesting of property under s 15(1) of the TA is subject to the provisions of any other Act and s 120 of the Regulation provides that a ‘person’s rights under an engagement’ is transferred only if the Body Corporate approves the transfer. It submits that the right to bring an action for breach of the Agreements, a chose in action, arose ‘under’ the Agreements. In the absence of the requisite approval from the Body Corporate, the chose in action did not vest in the applicant pursuant to s 15(1) of the TA.

The contractual and legislative framework

  1. [26]
    Pursuant to Clause 11 of the Agreements, the rights under them could be assigned if the Body Corporate approves the transfer. Clause 11.2 states:
  1. In deciding whether to approve a proposed transfer, the Body Corporate may have regard to –
  1. the character of the proposed transferee and related persons of the proposed transferee
  2. the financial standing of the proposed transferee
  3. the proposed terms of the transfer
  4. the competence, qualifications and experience of the proposed transferee and any related person of the proposed transferee, and the extent to which the transferee and any related persons have received or are likely to receive training; and
  5. matters to which, under this Agreement, the Body Corporate may have regard.
  1. In determining the factors in clause 11.2(a), the Body Corporate may require…..evidence the proposed transferee is a reputable, responsible and respectable person who is capable of satisfying the obligations under this Agreement. 
  1. [27]
    Clause 11.5 of the Agreements states that the Body Corporate must not “unreasonably withhold approval”.
  2. [28]
    Section 120(1) of the Regulation, which mirrors Clause 11.1 of the Agreements, provides:
  1. A person's rights under an engagement as a body corporate manager or service contractor, or under an authorisation as a letting agent, may be transferred only if the body corporate under the engagement or authorisation approves the transfer.

…

  1. [29]
    Likewise, ss 120(3) and 120(6) of the Regulation mirror the matters outlined in Clauses 11.2 and 11.5 of the Agreements, respectively.
  2. [30]
    The matters outlined in clause 11.2 of the Agreements and s 120(3) of the Regulation concern the determination by the Body Corporate regarding whether the proposed transferee is capable of satisfying their obligations under any agreements. However, Mrs Black first assigned her rights after the Agreements had been terminated. The effect of Mrs Black’s termination was that the parties were no longer required to perform their primary obligations under the Agreements. Any rights that continued under the Agreements were accrued rights, that is rights that had unconditionally been acquired,[5] and those intended, either implicitly or explicitly to operate after termination.[6]
  3. [31]
    In Lep Air Services Ltd v Rolloswin Investments Ltd (Lep Air Services Ltd’),[7] Lord Diplock stated (citations omitted):

Generally speaking, the rescission of the contract puts an end to the primary obligations of the party not in default to perform any of his contractual promises which he has not already performed by the time of rescission ... The primary obligations of the party in default to perform any of the promises made by him and remaining unperformed likewise come to an end as does his right to continue to perform them. But for his primary obligations there is substituted by operation of law a secondary obligation to pay to the other party a sum of money to compensate him for the loss he has sustained as a result of the failure to perform the primary obligations. This secondary obligation is just as much an obligation arising from the contract as are the primary obligations that it replaces.

  1. [32]
    The respondents note that that passage was cited with approval by Brennan J in Progressive Mailing House Pty Ltd v Tabali Pty Ltd,[8] and by Kiefel CJ, Bell and Keane JJ in Mann v Paterson Constructions Pty Ltd (‘Mann’).[9]  The respondents also note that in Mann, Nettle, Gordon and Edelman JJ expressed a contrary view; that is, that the remedial obligation to pay damages for breach of contract has been understood as an obligation ‘arising by operation of law’ and that it is ‘a misconception that an obligation to pay damages for breach of contract is an obligation imposed by the contract as such’.[10]
  2. [33]
    In Australia City Properties Management Pty Ltd v The Owners – Strat Plan No 65111 (‘Australia City Properties Management Pty Ltd’),[11] Bathurst CJ, with whom Payne and McCallum JA agreed, referred to the caretaker agreement in that case and stated:

Clause 9.2 deals with termination by the Caretaker by notice, whilst cl 9.4 deals with termination by effluxion of time. If termination occurs as a result of the operation of one of those clauses, it would follow that the Caretaker Agreement was at an end and there was nothing left to assign. In the case of termination by the Caretaker for breach or wrongful repudiation by the OC the Agreement would also be at an end, the Caretaker’s rights under it being substituted by a right to damages for loss of bargain.

  1. [34]
    Reference is also made to Commissioner of Taxation v Sara Lee Household and Body Care.[12] In issue in that case was the interpretation of s 160U(3) of the Income Tax Assessment Act 1936 (Cth) (‘ITA Act’), which provided:

Where the asset was acquired or disposed of under a contract, the time of acquisition or disposal shall be taken to have been the time of the making of the contract.

  1. [35]
    The majority stated that the words ‘under a contract’ in s 160U(3) of the ITA Act ‘directed attention to the source of the obligation which was performed by the transfer of assets which constituted the relevant disposal’.[13]
  2. [36]
    Next, reference is made to Queensland Premier Mines Pty Ltd v French,[14] which relevantly concerned a provision under the Land Titles Act 1994 (Qld) relating to a right to recover a debt ‘under’ a mortgage or lease. In that context, it was stated that the word ‘under’ has been held ‘to refer to an obligation created by, in accordance with, pursuant to, or under the authority of the lease’.
  3. [37]
    The authorities raise the question of whether, as a general proposition, the right to bring any action for breach of the Agreements is a secondary contractual right or whether it is a right arising by operation of law.
  4. [38]
    However, as noted in Lep Air Services Ltd[15] and Australia City Properties Management Pty Ltd[16] the primary obligations under the Agreements came to an end upon termination.
  5. [39]
    That begs the question of whether the right to bring an action in damages for breach of the Agreements is a right ‘under’ the Agreements in terms of Clause 11 of the Agreements and/or s 120 of the Regulation, such that it required the approval of the respondents. In our view, it is not.
  6. [40]
    The need for consent in relation to the assignment or transfer of any ongoing corporate caretaking agreement and letting authority is understandable, given that the respondents would need to be satisfied that the assignee or transferee was appropriate and suitably qualified. As stated in the Regulatory Impact Statement for the Regulation, at pp 37-38:

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

However, this flexibility is balanced with provisions that protect owners from being disadvantaged by the transfer by allowing the body corporate to refuse a transfer to a particular transferee on reasonable grounds and to also seek reimbursement for costs reasonably incurred in considering the transfer. The interests of owners are also protected by the requirement that the body corporate must also require, as a condition of a transfer of rights under a letting authorisation or service contract, payment of an amount if the transfer is approved within two years of the contract being entered into or assigned to the letting agent/service contractor.

  1. [41]
    That rationale has no application where the caretaking agreement and letting authority have been terminated.

Chose in action

  1. [42]
    The Trevor & Allison Black Family Trust Deed (the Trust) defines property to include “rights or choses in action”. This is consistent with Schedule 1 of the Acts Interpretations Act 1954 (Qld) that defines property to mean (emphasis added):

Any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.

  1. [43]
    For the purposes of s 15(1) of the TA, ‘trust property’ includes a chose in action; that is, a right to bring an action for repudiation or breach of contract. Further, pursuant to section 15(1) of the TA, the chose in action is vested in the new trustee. This is consistent with the interpretation of s 12(6) of the TA.
  2. [44]
    In Sedgwick Australia Pty Ltd v Jloc Super Pty Ltd[17] Bond JA, Callaghan and Crowley JJ, considered the meaning of s 12(6) of the TA. That section relevantly provides:
    1. Where a trustee, …–

…

  1. seeks to be discharged from all or any of the trusts or powers reposed in or conferred on the trustee;

…

  1. Every new trustee appointed under this section has the same powers, authorities, and discretions and may in every respect act, as if the new trustee had originally been appointed a trustee by the instrument (if any) creating the trust, both before and after all the trust property becomes by law or by assurance or otherwise vested in the trustee.

…

  1. [45]
    Bond JA stated:[18]

[57] …as the primary judge correctly observed, “[t]he evident objective of that subsection is to ensure that the new trustee truly stands in the shoes of the old trustee ... that is exactly the effect of s 12(6). It places the new trustee in the position as if the new trustee had originally been appointed the trustee.”

[58] The remedial purpose of the section must include enabling the new trustee to fulfil one of the core fiduciary duties assumed upon appointment, namely to act in the best interests of the trust, including by protecting its assets.

  1. [46]
    It follows that the Tribunal at first instance fell into error in relation to the application of s 15 of the TA in the context of the operation of s 120(1) of the Regulation. By virtue of s 15(1) of the TA, the chose in action, the right to bring the action for breach of contract, did vest in the applicant.[19] To that extent, the grounds of appeal relevant to question 1 should be upheld.
  2. [47]
    In relation to the applicant’s alternative submission at first instance, the respondents submit that the Tribunal Member was correct in finding that the applicant did not have standing to bring proceedings pursuant to s 149B of the Act, given that it was not a party to the ‘dispute’ within the meaning of the Act.

Questions 2 & 3

  1. [48]
    Questions two and three relate to the finding of the Tribunal at first instance that the applicant did not have standing to bring the action before the Tribunal pursuant to section 149B of the Act because that provision confers a ‘personal right’ on a party to a ‘dispute’ within the meaning of the Act.
  2. [49]
    That raises two ancillary questions. First, whether the right to bring the action in damages is a ‘personal’ right and, second, whether the applicant is a party to the ‘dispute’ within the meaning of the Act.
  3. [50]
    In relation to the finding that the right to bring action for damages was a personal right, reference was made by the Tribunal to the authorities as set out above.[20]
  4. [51]
    However, those authorities involved circumstances where the cause of action was established and conferred by the relevant legislation. Further, by the terms of that legislation, the right to bring proceedings for breach of the statutory warranty of duty was confined to the person who suffered actual loss. On that basis, the right to bring proceedings could not be assigned to a third party.
  5. [52]
    Relative to the present matter, the Act does not provide the cause of action. Rather, s 149B of the Act simply provides an avenue for the determination of a dispute about a claimed or anticipated contractual matter concerning the engagement of a person as a body corporate manager or caretaking service contractor or the authorisation of a person as a letting agent.
  6. [53]
    In finding that the right to bring action under s 149B of the Act was a personal right that could not be assigned, the Tribunal at first instance cited three authorities. In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (‘Boston Commercial Services Pty Ltd’),[21] the applicant was the assignee of a business and in that capacity brought an application for damages against the respondent in respect of statutory causes of action under s 82 of the Trade Practice Act 1974 (Cth) (‘the TPA’) on the basis of misleading or deceptive conduct and unconscionable conduct. The alleged conduct involved representations made by the respondent to the assignor of the business. Section 82(1) of the TPA provides:

A person who suffers loss or damage by an act of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person.

  1. [54]
    It was held that what s 82(1) of the TPA authorises is the recovery of the amount of loss or damage at the suit of the person who suffers it and, in that sense, the legislation created a personal right. Accordingly, with reference to the authorities cited, it was held that the cause of action for the recovery of damages under s 82 of the TPA is not capable of assignment.
  2. [55]
    Mijac Investments Pty Ltd v Graham (No 2),[22] amongst other things, involved a claim pursuant to s 420A of the Corporations Act 2001 (Cth) (‘the CA’), by which in exercising a power of sale in respect of property of a corporation, a controller must take all reasonable care to sell the property for not less than market value or, if no market value, the best price that is reasonably obtainable in the circumstances. While Gordon J rejected the submission that s 420A of the CA created a separate cause of action, it was stated that even if it did, any assignment of the cause of action would be ineffectual. That is because by the terms of the legislation the duty owed by the controller was to the company, creditor and shareholders. It is not property and cannot be assigned as a chose in action. Reference was made to several authorities, including Boston Commercial Services Pty Ltd.[23]
  3. [56]
    Pentridge Village Pty Ltd (in liq) (recs and mgrs apptd) v Capital Finance Australia Ltd,[24] as with Boston Commercial Services Pty Ltd,[25] concerned an application for damages under the TPA in respect of statutory causes of action dealing with misleading or deceptive conduct and unconscionable conduct. With reference to earlier authorities, including Mijac Investments Pty Ltd (No 2)[26] and Boston Commercial Services Pty Ltd,[27] it was held that because the relevant provision under the TPA conferred a right that was personal to the person who suffered loss as a consequence of the conduct, the claims were not capable of assignment and the purported assignment was ineffective.
  4. [57]
    The right to bring proceedings pursuant to s 149B of the Act is not a personal right in the sense referred to in the cases noted above. In that respect, s 149B of the Act does not serve to prevent an application in circumstances where trust property, including a chose in action, has vested in the new trustee by virtue of s 15(1) of the TA. In those circumstances it is not strictly a question of an assignment of the rights and, further, ultimately the persons who have suffered loss because of the relevant conduct are the beneficiaries under the trust. They have remained constant regardless of the change in trustee. This is consistent with the terms of the Agreements’ Deed of Assignments trustee provisions. Those provisions state that a person who enters into the Agreements as a trustee does so ‘in its personal capacity and as trustee of the Trust’.[28]
  5. [58]
    In relation to the second ancillary question, whether the applicant is a party to the ‘dispute’ within the meaning of the Act, the Tribunal at first instance stated:[29]

[34]  … Section 149B(2) specifies that ‘a party to the dispute’ may apply to the Tribunal in its original jurisdiction. The definition of ‘dispute’ makes it clear that the parties are, relevantly, the body corporate, the caretaking service contractor and the letting agent. As I have found that it was not a caretaking service contractor or letting agent, the Applicant is not a party to this dispute.

[35]  It follows that the right to commence proceedings under section 149B of the BCCMA has not vested in the Applicant, and remains with Mrs Black.

  1. [59]
    The definition of ‘dispute’, relied upon by the Tribunal at first instance, appears in s 227 of the Act. That section is in Chapter 6 of the Act, which is headed ‘Dispute resolution’. Section 226 of the Act makes it clear that the definition of ‘dispute’ as set out in s 227 of the Act is provided for the purposes of that Chapter only. While Chapter 6 is invoked where a specialist adjudicator is to resolve the dispute  pursuant to s 149B(2)(a) of the Act, that is not the case where the dispute is to be resolved by the Tribunal under s 149(2)(b) of the Act. In the latter event, s 227 of the Act has no application.
  2. [60]
    More generally, the term ‘dispute’ is defined at Schedule 6 of the Act, as follows:

dispute—

  1. generally, includes complaint; and
  1. for chapter 6, see section 227.
  1. [61]
    In any event, in relation to the operation of s 149B of the Act, the foundation of the reasoning of the Tribunal at first instance was that it involved a ‘personal right’ and, as an extension, the definition of ‘dispute’ in s 227 of the Act confined any party to the dispute to the holder of that personal right; that is, relevant to the present case, the caretaking service contractor and the letting agent.  Once it is accepted that s 149B of the Act does not create a personal right, it follows that by virtue of s 15(1) of the TA there is nothing to prevent the applicant being recognised as a party to the dispute within the meaning of the Act.
  2. [62]
    Accordingly, the Tribunal at first instance fell into error in concluding that the right to bring the proceedings in the original jurisdiction of the Tribunal was a ‘personal right’ and, that by the terms of s 227 of the Act could be brought only by Ms Black as a party to the Agreements.
  3. [63]
    By s 149B of the Act, the Tribunal has jurisdiction in relation to  ‘a claimed or anticipated contractual matter’ about the engagement of a person as a body corporate manager or caretaking service contractor or the authorisation of a person as a letting agent for a community titles scheme. The meaning of the term ‘contractual matter’ is set out above, and includes a contravention of the terms or termination of the engagement or authorisation. The right to bring the proceedings vested in the applicant by virtue of s 15(1) of the TA, so that the Tribunal has jurisdiction to determine the matter.
  4. [64]
    The appeal is upheld and the decision of Tribunal of 7 September 2023 is set aside. The matter is remitted to a differently constituted Tribunal for determination of the application for damages filed on 8 August 2019.

Footnotes

[1][2014] NSWCA 402 at [16] per Leeming JA.

[2]See s 133(1) of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Qld), which relevantly is in the same terms.

[3]See Justlainer Pty Ltd atf the Trevor and Allison Black Family Trust v The Body Corporate for Ko Huna Resort Village CTS 27120 & Anor [2023] QCAT 351, [24], [26] (‘Justlainer’).

[4]Ibid [33] - [34].

[5]Matthews v Cool Or Cosy Pty Ltd [2004] WASCA 114 at [62].

[6]Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd (2016) 340 ALR 193 at [79].

[7][1973] AC 331, 350.

[8](1985) 157 CLR 17, 48.

[9](2019) 267 CLR 560, [12].

[10]Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560, [194]-[195].

[11][2021] NSWCA 162, [296], [360], [361].

[12](2000) 201 CLR 520, [91].

[13]Ibid 521.

[14](2007) 235 CLR 81, [55].

[15][1973] AC 331.

[16][2021] NSWCA 162, [296], [360], [361].

[17][2024] QCA 218, [45].

[18]Ibid.

[19]Notwithstanding the operation of s 15(1) of the TA, generally a chose in action is assignable: see Poulton v Commonwealth (1952) 89 CLR 540 at 571 per Fullagar J (and on appeal at 602 per Williams, Webb and Kitto JJ).

[20]Mijac Investments Pty Ltd v Graham (No 2) [2009] FCA 773; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd [2018] VSC 633.

[21][2006] FCA 1352, [6].

[22][2009] FCA 773, [13], [31]-[33].

[23]See Mijac Investments Pty Ltd v Graham (No 2) [2009] FCA 773 at [31]-[32] citing Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd 236 ALR at 733 per Rares J.

[24][2018] VSC 633, [5].

[25][2006] FCA 1352, [6], [16], [72] per Rares J.

[26]See Mijac Investments Pty Ltd (No 2) [2009] FCA 773, 696 at [32] per Gordon J citied in Pentridge Village Pty Ltd (in liq) (recs and mgrs apptd) v Capital Finance Australia Ltd [2018] VSC 633 at [65].

[27]See Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 per Rares J citied in Pentridge Village Pty Ltd (in liq) (recs and mgrs apptd) v Capital Finance Australia Ltd [2018] VSC 633 at [65].

[28]See section 6(d) of the Deed of Assignment.

[29]Justlainer (n 3) [34], [35].

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2025] QCATA 52

  • Court:

    QCATA

  • Judge(s):

    Senior Member Aughterson

  • Date:

    15 May 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia [2014] NSWCA 402
2 citations
Jump To
Cite 1 - [2014] NSWCA 402
Cite 2 - [2014] NSWCA 402
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720
1 citation
Jump To
Cite 1 - (2006) 236 ALR 720
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352
5 citations
Jump To
Cite 1 - [2006] FCA 1352
Cite 2 - [2006] FCA 1352
Cite 3 - [2006] FCA 1352
Cite 4 - [2006] FCA 1352
Cite 5 - [2006] FCA 1352
Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520
2 citations
Jump To
Cite 1 - (2000) 201 CLR 520
Cite 2 - (2000) 201 CLR 520
Justlainer Pty Ltd atf the Trevor and Allison Black Family Trust v The Body Corporate for Ko Huna Resort Village CTS 27120 [2023] QCAT 351
2 citations
Jump To
Cite 1 - [2023] QCAT 351
Cite 2 - [2023] QCAT 351
Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560
3 citations
Jump To
Cite 1 - (2019) 267 CLR 560
Cite 2 - (2019) 267 CLR 560
Cite 3 - (2019) 267 CLR 560
Mijac Investments Pty Ltd (ACN 084 820 280) v Graham (No 2) [2009] FCA 773
6 citations
Jump To
Cite 1 - [2009] FCA 773
Cite 2 - [2009] FCA 773
Cite 3 - [2009] FCA 773
Cite 4 - [2009] FCA 773
Cite 5 - [2009] FCA 773
Cite 6 - [2009] FCA 773
Moschi v Lep Air Services Ltd. (1973) AC 331
3 citations
Jump To
Cite 1 - (1973) AC 331
Cite 2 - (1973) AC 331
Cite 3 - (1973) AC 331
Pentridge Village Pty Ltd v Capital Finance Australia Ltd [2018] VSC 633
6 citations
Jump To
Cite 1 - [2018] VSC 633
Cite 2 - [2018] VSC 633
Cite 3 - [2018] VSC 633
Cite 4 - [2018] VSC 633
Cite 5 - [2018] VSC 633
Cite 6 - [2018] VSC 633
Poulton v Commonwealth (1952) 89 CLR 540
2 citations
Jump To
Cite 1 - (1952) 89 CLR 540
Cite 2 - (1952) 89 CLR 540
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17
2 citations
Jump To
Cite 1 - (1985) 157 CLR 17
Cite 2 - (1985) 157 CLR 17
Queensland Premier Mines Pty Ltd v French (2007) 235 CLR 81
2 citations
Jump To
Cite 1 - (2007) 235 CLR 81
Cite 2 - (2007) 235 CLR 81
Sedgwick Australia Pty Ltd v JLOC Super Pty Ltd [2024] QCA 218
2 citations
Jump To
Cite 1 - [2024] QCA 218
Cite 2 - [2024] QCA 218
Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 340 ALR 193
2 citations
Jump To
Cite 1 - (2016) 340 ALR 193
Cite 2 - (2016) 340 ALR 193

Cases Citing

Case NameFull CitationFrequency
Medcalf v The Body Corporate for the Hervey Bay Pier Resort CTS 36641 [2025] QCAT 3552 citations
1

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