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CITE

Unreported Judgment
Appeal Determined (QCA)

BC for Mount Saint John Industrial Park CTS v Superior Stairs & Joinery Pty Ltd[2017] QDC 245Durward DCJ
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BC for Mount Saint John Industrial Park CTS v Superior Stairs & Joinery Pty Ltd[2017] QDC 245

DISTRICT COURT OF QUEENSLAND

CITATION:	BC for Mount Saint John Industrial Park CTS v Superior Stairs & Joinery Pty Ltd [2017] QDC 245
PARTIES:	BODY CORPORATE FOR MOUNT SAINT JOHN INDUSTRIAL PARK COMMUNITY TITLE SCHEME 18632 (Plaintiff) v SUPERIOR STAIRS & JOINERY PTY LTD (Defendant)
FILE NO/S:	Townsville D302/2016
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	29 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	16 March 2017
JUDGE:	Durward SC DCJ
ORDER:	Application granted in part. Those parts of the paragraphs in the Amended Claim and the Amended Statement of Claim that refer to the Second Special Levy are struck out. The part of the application seeking the transfer of the proceedings to the magistrates Court is adjourned. The parties have liberty to apply.
CATCHWORDS:	STATUTORY CONSTRUCTION – TIME LIMITATIONS – GENERAL OR SPECIFIC STATUTORY PROVISIONS – BODY CORPORATE LEGISLATION – where the Body Corporate & Community Management Act specifically provides for a time limit on bringing an action for the recovery of unpaid levies, penalty sums and recovery costs – whether the specific provision applies in lieu of the general provision in s 10 of the Limitation of Actions Act – where the general provision does not apply to recovery of penalty sums – where the specific provision overrides the general provision and applies.
LEGISLATION:	Body Corporate & Community Management Act 1997, ss 94, 96, 141, 144, 142, 150, 145 and 229A; Uniform Civil Procedure Rules 1999, r 171(a) and (e); Limitation of Actions Act 1974, s 10(1); Acts Interpretation Act 1954 (Qld), ss 14A(1) and 32CA; Body Corporate & Community Management (Accommodation Module) Regulation 2008, s 143; Body Corporate & Community Management (Standard Module) Regulation 2008
CASES:	Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 335; Westpac Banking Corporation v Body Corporate for the Wave Community Titles Scheme 36237 [2014] QCA 73; Wolbers v Day & Co Pty Ltd [2007] QDC 103; Wei-Xing Chen v Body Corporate for Wishart Village Community Titles Scheme 19482 (unreported District Court, 29 May 2001); Carroll & Ors v Body Corporate for Palm Springs Residences [2013] QCATA 21
COUNSEL:	AL Raeburn of counsel for the plaintiff Ms JM O'Connor of counsel for the defendant
SOLICITORS:	Connolly Suthers Lawyers for the plaintiff Irish Bentley Lawyers for the defendant

The application

[1]
The defendant filed an Application (amended by leave on the day of the hearing) against the plaintiff in this proceeding [Townsville D302/2016] (“the proceeding”), seeking orders striking out parts of the plaintiff’s Claim and Amended Statement of Claim in proceeding M192/2014 (see infra); and in the event that it is successful in the application, an order transferring the remaining parts of the proceeding to the Magistrates Court at Townsville, together with further directions as to filing of material.

[2]
The basis of the defendant’s application is that the Claim and Amended Statement of Claim disclose no cause of action; or in the alternative, constitute an abuse of process, on the premise that some of the relief sought by the plaintiff in its Claim is statute barred.

The proceeding

[3]
The proceeding is about a Body Corporate dispute between the plaintiff (a Body Corporate) and the defendant (a lot owner) concerning the recovery of levies that have been issued under the Body Corporate & Community Management Act 1997 (“the Act”) pursuant to the Body Corporate & Community Management (“Standard Module”) Regulation 2008.

The pleadings

[4]
There were two separate proceedings, each commenced in the Magistrates Court at Townsville by the plaintiff, namely No M192/2014 and No M346/2015 respectively.

[5]
In M192/2014 the plaintiff sought recovery of part of a ‘Second Special Contribution’, ordinary levies for the period 01 March 2010 to 28 February 2014 and penalties and recovery costs accrued on those levies.

[6]
In M346/2015 the plaintiff sought recovery of ordinary levies for the period January 2014 to July 2015 together with penalty interest and recovery costs accrued thereon.

[7]
Those two proceedings were consolidated in the Magistrates Court on 04 March 2016 and transferred to the District Court at Townsville (No D302/2016). However, there was no order made for filing further (or fresh) pleadings and if the proceeding continues it will be necessary for such directions to be made in this court or for the parties to supplement existing material by further affidavit material.

Background

[8]
Counsel for the defendant has helpfully provided a comprehensive background relevant to the issues that I have been asked to resolve. The background is accepted as being accurate by counsel for the plaintiff and therefore it seems to me that I can (with minor grammatical and some text changes), adopt the summary of the background provided in the written submission filed on behalf of the defendant. Adopting the paragraph numbering used by counsel in writing the submissions, the sequential background is:

“4. The plaintiff…is a body corporate within the meaning of the Act.

5. The Body Corporate was created on 14 February 1990 by the registration of Group Titles Plan 70306. Following the passage of the Act, a community management statement under the Act was lodged on 2 September 2004 thereby creating a Community Titles Scheme under the Act.

6.The community management statement provides, amongst other things, that:

(a) the Scheme comprises common property and lots 1 to 6 on GTP 70306; and

(b) the Standard Module applies to the Scheme.

7.The Scheme land is located in Townsville and each of six lots is used for industrial purposes. Superior Stairs is the registered owner of lot 5, more commonly known as lot 5, 661/671 Ingham Road, Mount Saint John, Queensland, 4818.

8.The common property for the Scheme comprises a “cul-de-sac” driveway that connects the lots in the Body Corporate to Ingham Road and a small pump and sewer. An easement has been granted over part of that common property, namely the “cu-del-sac” driveway. It is a ‘right of way’ easement that has been granted to a neighbouring property, being lot 2 on RP747183.

9.From on or about 29 June 2006 to on or about 25 September 2012, Goya Group Pty Ltd (ACN 109 350 852) (the Goya Group) was the registered owner of lot 2 on RP747183 and was the grantee of the easement.

10.On 12 August 2009, the Body Corporate held an extraordinary general meeting. No representative from Superior Stairs was present at that meeting. The minutes of the extraordinary general meeting record that the Body Corporate considered a quote from Tei Constructions Pty Ltd at a cost of $212,812.50 ($194,375.00 plus GST) for ‘concrete road rectification to be carried out’. The minutes further record that the Body Corporate resolved:

(a) to approve the quote given by Tei Constructions Pty Ltd;

(b) that “subject to the adjoining owner, Goya Group, paying $85,102.88 being 39% as per the easement agreement, costs to be way of $119,909.62 from the accumulated monies of the Sinking Fund Account and a Special Levy of $2,200 per Lot. Said Special Levy to be payable upon issue of notice by the Secretary/Body Corporate Manager” (First Special Levy Resolution); and

(c) that “Lot Owners shall contribute the $85,102.88, being $14,183.82/ Lot to be paid by the Goya Group in order to ensure prompt completion of the road rectification. Contribution by respective Lot Owners shall be reimbursed upon payment by the Goya Group of the contribution of $85,102.88 as required by the registered easement agreement” (Second Special Levy Resolution).

11.On or about 13 August 2009 a telephone conversation was held between Mr Roy Evans, the then Chairmen for the Body Corporate and Mr Jeffrey Dale, the director of Superior Stairs. During that telephone discussion:

(a) Mr Evans stated that the body corporate had passed the Second Special Levy Resolution which required Body Corporate lot owners to pay a contribution levy that would be reimbursed once payment had been received from Goya Group; and

(b) Mr Dale stated that he (meaning Superior Stairs) would not be paying the special contribution levy and under no circumstances should such a motion have been passed.

12. On 17 August 2009 the Body Corporate issued a notice of contribution to Superior Stairs (the 17 August Notice). The 17 August Notice:

(a) sought payment for the sum of $19,367.31 being for the sum of:

(i) a special contribution levy of $2,200 for a “concrete road”;

(ii) a special contribution levy of $14,183.81 for an “easement contribution”; and

(iii)outstanding levies of $2,983.50; and

(b)requested payment be made by 16 September 2009.

13. Superior Stairs did not pay the amount sought in the 17 August Notice by 16 September 2009.

14. In or about October 2009, a telephone conversation was held between Mr Dale and Ms Rosemary Kingsberry of Kingsberry Body Corporate Management, the Body Corporate Managers for the Body Corporate. During that telephone discussion:

(a) Mr Dale advised Ms Kingsberry that if there was no written commitment including a guarantee from the Goya Group on when they would refund the special contribution, that Superior Stairs would not be paying it;

(b)Ms Kingsberry advised Mr Dale that the only way to guarantee getting payment back from the Goya Group would be by suing them; and

(c)Mr Dale advised Ms Kingsberry that the special contribution was illegal and Superior Stairs had no intention of making payment for same.

15. Shortly after the telephone call in October 2009, Mr Dale sent an email to Ms Kingsberry repeating Superior Stairs’ position as explained during the telephone call. Mr Dale no longer has a copy of that email.

16. During the period October 2009 to May 2013:

(a) the body corporate issued a number of notices of contribution to Superior Stairs for ongoing ordinary levies;

(b) Superior Stairs made a number of payments to the Body Corporate for the purpose of paying the amounts outstanding for the ordinary levies and the special contribution levy arising from the First Special Levy Resolution; and

(c) Superior Stairs did not make payment of the special contribution levy arising from the purported Second Special Levy Resolution and further advised the Body Corporate of the reasons why in an email sent on 2 May 2012.”

[9]
The following chronology describes the subsequent legal steps taken by the parties in respect of the proceeding.

Relevant court proceedings chronology

Magistrates Court

Claim and Statement of Claim (in M192/2014)08 May 2013
Amended Claim and Statement of Claim (in M192/2014) 15 October 2013
Amended Statement of Claim (in M192/2014) 15 October 2013
Notice of Intention to Defend (in M192/2014) 27 May 2014
Amended Defence (in M192/2014) 01 April 2016
Amended Reply (in M192/2014) 13 April 2016
Claim and Statement of Claim (in M346/2015) 06 October 2015
Order consolidating the two Claims04 March 2016
Defence (in M346/2015) 01 April 2016
Consent Order transferring both proceedings to 02 November 2016

District Court at Townsville

District Court

Application (in D302/2016) 02 December 2016
Amended Application (in D302/2016), by leave16 March 2017

The dispute

[10]
The plaintiff alleges that part of the Special Levy Contributions arising from the second special levy resolution has been recovered by payments made by the defendant since 17 August 2009. It seeks payment of what it refers to, in effect, as the ‘balance’ of the payments.

[11]
The defendant denies having paid any of the special levy contribution. It alleges that payments made by it to the plaintiff were for Administration Fund and Sinking Fund contributions, not as special levy contributions.

[12]
Be that as it may, that dispute is not relevant to the issue to be determined on this application. It is a matter for trial. Nevertheless, it is illustrative of the extent to which the parties are in conflict about the resolutions and the levies.

The issue

[13]
The issue is with respect to the limitation period, for recovery of unpaid special contributions, in the Act. It is one of statutory construction of “the Standard Module” where provision is made entitling a Body Corporate to levy a lot owner to pay “ordinary contributions” towards an Administration and Sinking Fund; to levy a lot owner to pay “Special Contributions”; and to entitle a Body Corporate to recover from a lot owner any unpaid contributions, together with recovery costs and, subject to resolution by the Body Corporate, penalty interest.

Submissions

Defendant

[14]
The defendant alleges that the plaintiff’s claim for special contributions and the penalty interest and recovery costs related to the special contributions was, in terms of the relevant provisions in the Standard Module, commenced out of time and should be struck out on the basis of it being time barred.

Plaintiff

[15]
The plaintiff’s construction of the relevant provisions is to the contrary and alleges that there is no applicable statute bar (or limitation period) in the Act.

Discussion

1The Body Corporate Legislative Scheme

[16]
The critical provisions in the Act and Standard Module are as follows:

Body Corporate & Community Management Act 1997

[17]
In section 2 the primary object of the Act is said to provide for flexible and contemporary community based arrangements for the use of freehold land, having regard to the secondary objects. The secondary objects are set out in section 4 and relevantly include the following:

(a)to balance the rights of individuals with the responsibility for self-management as an inherent aspect of community titles schemes; and

… …

(e) to ensure that bodies corporate for community titles schemes have control of the common property and body corporate assets they are responsible for managing on behalf of owners of lots included in the schemes.

[18]
How the primary object is to be achieved is described in section 3 as:

(a)“the establishment of community titles schemes; and

(b) the operation and management of community titles schemes”.

[19]
Section 9 provides for community titles schemes to be the basic concept for the Act and to be held only over freehold land.

[20]
The Act provides for regulations called a “Regulation Module” (s 21) and so far as is relevant in this matter, it is the “Standard Module”.

[21]
The Body Corporate’s general functions are set out in section 94:

“94Body corporate’s general function and powers

(1)
The body corporate for a community titles scheme must—

(a)administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme; and

(c)carry out the other functions given to the body corporate under this Act and the community management statement.

(2)The body corporate must act reasonably in anything does under subsection (1) including making, or not making, a decision for the subsection.”

[22]
The general powers of a body corporate are set out in section 95:

“95Body corporate’s general powers

(1)
The body corporate for a community titles scheme has all the powers necessary for carrying out its functions and may, for example—

(a) enter into contracts; and

(b) acquire, hold, deal with, and dispose of property; and

(c) employ staff.

(2) Without limiting subsection (1), the body corporate has the other powers given to it under this Act or another Act.”

[23]
Section 96 (1) provides that a body corporate must not carry on business. However, subsection (2) provides that the body corporate may engage in business activities to the extent necessary for properly carrying out its functions.

[24]
Financial management arrangements applying to a community titles scheme are those stated in the regulation module applying to the scheme: s 150 (1); section 150 (2) provides that the regulation module may provide for financial arrangements about a number of matters, including:

(b)levying lot owners for contributions,

… …

(d)recovery of unpaid contributions; and

Section 150 (3) provides that it may impose obligations and limitations on both the body corporate and lot owners.

[25]
Section 229A provides that a dispute resolution process does not apply to a debt dispute or a dispute related to a debt dispute once a proceeding to recover the debt is started before a tribunal or court of competent jurisdiction. A body corporate can start proceedings in a court of competent jurisdiction to recover a debt the subject of a debt dispute. A debt dispute in s 229A is defined to mean 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 the Act.

Body Corporate & Community Management (Standard Module) Regulation 2008

[26]
Part 3 of the Standard Module provides for contributions levied by bodies corporate. Section 141 relevantly provides:

“141 Contributions to be levied on owners

(1) The body corporate must, by ordinary resolution—

(a) fix, on the basis of its budgets for a financial year, the contributions to be levied on the owner of each lot for the financial year; and

(b) decide the number of instalments in which the contributions are to be paid; and

(c) fix the date on or before which payment of each instalment is required.

(2) If a liability arises for which no provision, or inadequate provision, has been made in the budget, the body corporate must, by ordinary resolution—

(a) fix a special contribution to be levied on the owner of each lot towards the liability; and

(b) decide whether the contribution is to be paid in a single amount or in instalments and, if in instalments, the number of instalments; and

(c) fix the date on or before which payment of the single amount or each instalment is required.”

[27]
Section 142 of the Standard Module relevantly provides:

“142 Notice of contribution payable

(1) At least 30 days before the payment of a contribution, or instalment of a contribution, is required, the body corporate must give the owner of each lot written notice of—

(a) the total amount of the contribution levied on the owner; and

(b) the amount of the contribution, or instalment of contribution, whose payment is currently required; and

… …

(c) the date (the date for payment) on or before which the contribution, or instalment of contribution, must be paid; and

(e) any penalty to which the owner is liable for each month payment is in arrears; and

(f) if the owner is in arrears in payment of a contribution or penalty—the arrears.

… …

(3) A written notice under this section may be served on an owner of a lot at the owner’s address for service, or in the way directed by the owner.”

[28]
Section 144 of the Standard Module relevantly provides:

“144 Penalties for late payment

(1) The body corporate may, by ordinary resolution, fix a penalty to be paid by owners of lots if a contribution, or instalment of contribution, is not received by the body corporate by the date for payment fixed in notices of contribution given to the owners.”

[29]
Part 5 of the Standard Module provides for the establishment and keeping of an Administrative Fund and a Sinking Fund: s 146. The Sinking Fund is the destination for monies raised by way of contribution from lot owners. The Administrative Fund is the destination for monies received by the body corporate that are not required to be paid into the sinking fund.

2Time Limitations

[30]
The following provisions are particularly relevant to the issue I am asked to resolve.

[31]
The legislative history of s 145 of the Standard Module has not given rise to much direct authority. However, I will refer to one authority which is useful in an indirect context.

[32]
The Body Corporate & Community Management (Accommodation Module) Regulation 2008 (s 145) is said to provide some comparative information that is also be useful in construing the relevant provisions. The section is expressed in identical terms to s 145 of the Standard Module in that it refers to the balancing of the provision of assistance to a body corporate to recover outstanding contributions and the obligation imposed on it to take steps to recover the arrears in contributions no later than two months from the end of the period of two years from when the contributions have been outstanding.

[33]
Part 4 of the Standard Module provides for payment and enforcement of body corporate debts. Section 145 relevantly provides:

“145 Payment and recovery of body corporate debts

(1) If a contribution or contribution instalment is not paid by the date for payment, the body corporate may recover each of the following amounts as a debt—

(a)the amount of the contribution or instalment;

(b) any penalty for not paying the contribution or instalment;

(c) any costs (recovery costs) reasonably incurred by the body corporate in recovering the amount.

(2) If the amount of a contribution or contribution instalment has been outstanding for 2 years, the body corporate must, within 2 months from the end of the 2-year period, start proceedings to recover the amount.

[34]
Section 242 of the Act is part of ‘Chapter 6: Dispute resolution’, and provides for a time limit on certain adjudication applications. It is the way in which this section is expressed which is relevant to the proceeding and the issue that I am required to determine, in a comparative context.

[35]
The section relevantly provides as follows:

“242 Time limit on certain adjudication applications

(1) This section applies to an adjudication application for an order declaring void—

(b) a resolution of the committee or body corporate;

(2) The adjudication application must be made within 3 months after— [a number of events are described]

(4) However, if the making of the adjudication application does not comply with subsection (2)—

(a) the commissioner must deal with the application (including making a dispute resolution recommendation for the application) as if the making of the application complied with subsection (2); and

(b) an adjudicator to whom the application is referred for specialist or department adjudication may, for good reason, waive the noncompliance.”

[36]
These provisions are specifically relevant to the rights and obligations of a body corporate and a lot owner. However, the plaintiff maintains that the general provision in the Limitation of Actions Act 1974 (“LAA”) applies.

[37]
Section 10 of the LLA relevantly provides as follows:

“10 Actions of contract and tort and certain other actions

(1) The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose—

… …

(d) an action to recover a sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of a penalty or forfeiture.

… …

and

(5) An action to recover a penalty or forfeiture or sum by way of a penalty or forfeiture shall not be brought after the expiration of 2 years from the date on which the cause of action accrued.

(5A) In subsection (5)—

penalty does not include a fine to which a person is liable on conviction of a criminal offence.”

[38]
The LAA provides a six year limitation period in sub-section (c) in respect of the recovery of a sum of money. However, it does not extend to a penalty sum. Of course, part of the claims in this case involve penalty sums for failure to pay on time.

3 Statutory Construction Principles

Acts Interpretation Act 1954 (Qld)

[39]
In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation: s 14A. It is the purposive approach to construction that is applicable to the task in this case.

[40]
Extrinsic material may be considered if capable of assisting in the interpretation of a provision of an Act, if the provision is ambiguous of obscure (to provide an interpretation of it), or if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable (to provide an interpretation that avoids such a result), or in any other case (to confirm the interpretation conveyed by the ordinary meaning of the provision): Generally speaking, the use of extrinsic material may be resorted to having regard to the desirability of a provision being interpreted as having its ordinary meaning and any other relevant consideration: s 14B (1). Section 14B (2) refers to the considerations that may be relevant in the exercise and to factors determining the weight to be given to extrinsic material.

[41]
Section 14B (3) provides an inclusive list of extrinsic material that may be considered, including any explanatory note to a Bill that contain the relevant provision or other relevant document considered the Parliament before the enactment of the provision. The ordinary meaning of a provision is that which is conveyed having regard to the context of the provision in the Act and to the purpose of the Act.

[42]
In that that context I was referred to the explanatory notes to s 145 of the Act as being useful in the construction of the section. There is nothing in the explanatory notes that dissuade me from the construction (infra) I consider to be correct.

[43]
Section 32CA describes the meaning of the words may and must

“32CAMeaning of may and must etc

(1) In an Act, the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.

(2) In an Act, the word must, or a similar word or expression, used in relation to a power indicates that the power is required to be exercised.”

[44]
These words are used in different sections or subsections, depending on the context, and in this case are pivotal in the construction of the competing legislative time limitation provisions that I have considered.

My construction of the relevant provisions

[45]
In my view the specific time limit provided in s 145 of the Standard Module should override (have precedence over) the general limitation period referred to in the LAA. The period of six years in s 10 of the LAA is a very general provision which relates to a broad range of proceedings. In this case its application would make the recovery of a penalty sum impossible because it does not apply (other than in the context of a criminal penalty, which is specifically referred to in the section) so as to assist the plaintiff’s argument.

[46]
The plain reading of s 145(2) of the Standard Module means that if a body corporate does not commence recovery of proceedings before two years and two monthsfrom when the levy became outstanding, then the body corporate is precluded from commencing proceedings and is not entitled to recover relief from a lot owner by a proceeding. In this case the recovery proceedings were commenced well outside the two year and two month period.

[47]
There is, as I have referred to, very little in the way of authoritative guidance on this issue of statutory construction. In Westpac Bank Incorporation v Body Corporate for the Wave Community Title Scheme 36237 [2014] QCA 73, Mullins J referred to the recovery of all payments due from lot owners for contributions as being essential for the body corporate to carry out its functions. The Court of Appeal construed sections 139 and 140 of the Accommodation Module, which are expressed in identical terms to sections 141 and 142 of the Standard Module. The Court determined that the liability of each lot owner to pay contributions arose upon the issuing of the notice for contribution. The two year period during which a body corporate is, in the terms of the legislation, required to recover levies (it not being permitted to have levies outstanding beyond that two year period) would require proceedings to be commenced within two months after the two year period.

[48]
Whilst the plaintiff referred to some decisions about the complexity of the Act and the fact that as a matter of common sense, a body corporate may inadvertently or out of ignorance not comply with such legislation, as a point that was said to be relevant to the construction of the relevant section in the Act. Those decisions certainly speak of the impracticality in some instances of body corporate committees not understanding or complying strictly with the requirements of the Act, but those cases do not assist in the construction of the section in question.

[49]
It seems to me that on a proper construction the purpose of the Act is clear. The time limit is very specific. It matters not that a committee of the body corporate may unintentionally or by oversight not strictly comply with the requirements of the Act. That is not a matter that goes to a construction of the section. It may be relevant to other issues that involve the quality of body corporate management generally, but those cases do not assist in a case requiring strict construction of a statutory provision. I was referred primarily to Wei-Xing Chen v Body Corporate for Wishart Village Community Title Scheme 19482 (unreported District Court, 29 May 2001); and Carroll & Ors Body Corporate for Palm Springs Residences [2013] QCATA 21.

[50]
All of the authorities to which I was referred are relevant to matters that generally concern the management of a body corporate but are not specifically directed to the issue of statutory construction. Counsel informed me on the hearing that there were no specific authorities that they could provide that would assist me with in the circumstances of this case.

[51]
In Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 335, the High Court made a number of observations concerning the proper approach to statutory construction. I have adopted the approach referred to in that case by the High Court:

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions…while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”

[52]
Those statements are apposite to the statutory construction exercise in this case. If the general rule in the LAA applied here the specific provision in s 142(2) of the Act would be entirely superfluous. A construction such as advocated by the plaintiff would make the specific provision in the Act a nullity. That cannot possibly have been the intention of the legislature and to find in favour of the plaintiff’s argument would render the reference to time limitation in the Act completely unnecessary. That would not be a proper construction of a statutory provision.

[53]
The explanatory note for the 2003 amendment to the Act regarding payment and recovery of body corporate debts makes it clear that, as I have observed, arrears of levies, including any relevant penalty or cost recovery sums, cannot be allowed to remain outstanding for more than two years. The rationale for that is clearly to maintain the financial viability of a body corporate. Hence the body corporate must take steps to recover its arrears including any penalty or cost recovery sums within the two year period. Whilst there is a discretion in that a body corporate may waive the recovery of a contribution, that course requires a resolution of the body corporate and one sensibly would expect that only to occur in, for example, instances of hardship to a lot owner rather than, of course, a reluctance or refusal to pay a levy which is the subject of a proper resolution of the body corporate. No such circumstance is relevant to the construction point in this case. The reference to the word must in the Standard Module is mandatory – the power is to be exercised. The discretion does not apply to the two year period but rather applies more generally to the particular circumstances of a lot owner and requires, as I have said, a specific resolution.

Striking out pleadings

Uniform Civil Procedure Rules 1999

[54]
Rule 171 UCPR provides for striking out of pleadings:

“171 Striking out pleadings

(1) This rule applies if a pleading or part of a pleading—

(a) discloses no reasonable cause of action or defence; or

(e) is otherwise an abuse of the process of the court.

(2) The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.

(3) On the hearing of an application under sub-rule (2), the court is not limited to receiving evidence about the pleading.”

[55]
I have been referred to Wolbers v Day & Co Pty Ltd [2007] QDC 103 with respect to the striking out of a proceeding commenced in default of legislative requirements. However, it seems to me in any event that it is appropriate to make orders striking out a number of paragraphs of the Amended Claim and Amended Statement of Claim, namely:

Amended Statement of Claim

Paragraph 5;
Paragraphs 6 and 7 (to the extent they seek to recover penalty interest on the Second Special Levy);
Paragraph 8 to 10 (to the extent they seeks to recover costs relating to the Second Special Levy); and

Amended Claim

That part of the body corporate’s Amended Claim that seeks payment for the Second Special Levy as well as the penalty interest and costs allegedly accrued thereon.

Transfer of proceedings to the Magistrates Court

[56]
The defendant seeks an order for the transfer of the remaining proceedings to the Magistrates Court. The amounts claimed in the consolidated proceedings are said to be within the jurisdiction of the Magistrates Court. However, there is some dispute as to whether that is so, as the plaintiff had said in correspondence between the parties that the Magistrates Court’s monetary jurisdiction might be exceeded.

[57]
Whilst the defendant has taken the view that I should make orders proceed transferring the proceedings because that assertion by the solicitors for the plaintiff does not have evidentiary support, I am not prepared to make an order to transfer the proceedings until that matter is clarified. The parties can do that by correspondence to the Registrar or by further hearing and I will consider that issue further. For that reason that part of the application, seeking a transfer of the proceedings in light of the fact that the application has been granted in respect of the statutory construction issue, will be adjourned and I will give the parties liberty to apply.

Costs and further directions

[58]
This matter involved a statutory construction point in respect of which there was little comparative authority and none on the point. I will hear the parties with respect to costs of the application and further directions as may be appropriate.

Orders

Application granted in part.

Those parts of the paragraphs in the Amended Claim and the Amended Statement of Claim that refer to the Second Special Levy are struck out.

The part of the application seeking the transfer of the proceedings to the Magistrates Court is adjourned.

The parties have liberty to apply.

Editorial Notes

Published Case Name:
BC for Mount Saint John Industrial Park CTS v Superior Stairs & Joinery Pty Ltd
Shortened Case Name:
BC for Mount Saint John Industrial Park CTS v Superior Stairs & Joinery Pty Ltd
MNC:
[2017] QDC 245
Court:
QDC
Judge(s):
Durward DCJ
Date:
29 Sep 2017

Litigation History

Event	Citation or File	Date	Notes
Primary Judgment	[2017] QDC 245	29 Sep 2017	Defendant's application to strike out paragraphs of the amended claim and amended statement of claim allowed in part: Durward SC DCJ.
Notice of Appeal Filed	File Number: Appeal 11242/17	26 Oct 2017	-
Appeal Determined (QCA)	[2018] QCA 173 [2019] 2 Qd R 73	31 Jul 2018	Appeal allowed: McMurdo JA and Mullins and Bond JJ.

Appeal Status

Appeal Determined (QCA)

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Carroll and Ors v Body Corporate for Palm Springs Residences CTS 29467	[2013] QCATA 21	2 citations Jump To Cite 1 - [2013] QCATA 21 Cite 2 - [2013] QCATA 21
Project Blue Sky Inc & Ors v Australian Broadcasting Authority	View on:JADE(1998) 194 CLR 335	2 citations Jump To Cite 1 - (1998) 194 CLR 335 Cite 2 - (1998) 194 CLR 335
Westpac Banking Corporation v Body Corporate for the Wave Community Title Scheme 36237	[2014] QCA 73	2 citations Jump To Cite 1 - [2014] QCA 73 Cite 2 - [2014] QCA 73
Wolbers v Day & Co Pty Limited	[2007] QDC 103	2 citations Jump To Cite 1 - [2007] QDC 103 Cite 2 - [2007] QDC 103

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Body Corporate for Mount Saint John Industrial Park Community Title Scheme 18632 v Superior Stairs & Joinery Pty Ltd	[2019] 2 Qd R 73; [2018] QCA 173	6 citations

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BC for Mount Saint John Industrial Park CTS v Superior Stairs & Joinery Pty Ltd[2017] QDC 245