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The Body Corporate for Bretts Wharf - Hamilton Community Body Corporate MCP 102933 v The Body Corporate "The Proprietors - The Lancaster Building Unit Plan 107026"[2020] QDC 232

The Body Corporate for Bretts Wharf - Hamilton Community Body Corporate MCP 102933 v The Body Corporate "The Proprietors - The Lancaster Building Unit Plan 107026"[2020] QDC 232

DISTRICT COURT OF QUEENSLAND

CITATION:

The Body Corporate for Bretts Wharf - Hamilton Community Body Corporate MCP 102933 v The Body Corporate “The Proprietors - The Lancaster Building Unit Plan 107026” [2020] QDC 232

PARTIES:

THE BODY CORPORATE FOR BRETTS WHARF - HAMILTON COMMUNITY BODY CORPORATE MCP 102933

(plaintiff/respondent)

v

THE BODY CORPORATE “THE PROPRIETORS - THE LANCASTER BUILDING UNIT PLAN 107026”

(defendant/applicant)

FILE NO/S:

3893/19

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

18 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2020

JUDGE:

Barlow QC DCJ

ORDER:

  1. Order 1(b) made on 2 July 2020 be amended to 3 August 2020.
  2. The following parts of the amended statement of claim filed on 1 July 2020 be struck out:  paragraphs 5A, 5B, 5C, 11, 12, 13, the words “and/or the terms of the Management Agreement” in paragraph 19, paragraph (b) of the particulars to paragraph 19, paragraphs 20 and 21, the reference to “,21,” in paragraph 23 and paragraphs 1 and 3 in the claim for relief.
  3. The following entities be joined as defendants to the counterclaim:
  1. (a)
    The Body Corporate for The Proprietors Windermere Tower BUP 102925;
  2. (b)
    The Body Corporate for The Proprietors Windermere Villas BUP 102926; and
  3. (c)
    The Body Corporate for The Proprietors Sutherland Apartments, Sky Villas and Villas BUP 106865.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – EMBARRASSING, TENDENCY TO CAUSE PREJUDICE, SCANDALOUS, UNNECESSARY ETC OR CAUSING DELAY IN PROCEEDINGS – defendant applies for a number of paragraphs of the statement of claim to be struck out – whether paragraphs that plead provisions of legislation ought be struck out – whether paragraphs that do not lead to any claim for relief ought be struck out – whether paragraphs that do not disclose a reasonable cause of action ought be struck out

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – GENERALLY – plaintiff is the community body corporate for a mixed use scheme and the current defendant is one of four subsidiary bodies corporate that comprise the members of the plaintiff – defendant seeks an order that the three other subsidiary bodies corporate be included as parties to the proceeding – whether it is just and convenient that all members of the plaintiff be parties to the proceeding

Mixed Use Development Act 1993 (Qld) s 174, s 176, s 177

Uniform Civil Procedure Rules 1999 (Qld) r 149(1)(e), r 171

Cathedral Place Community Body Corporate v The Proprietors Cathedral Village BUP 106957 [2018] QDC 275, cited

COUNSEL:

PL Somers for the plaintiff/respondent

BWJ Kidston for the defendant/applicant

SOLICITORS:

McBride Legal for the plaintiff/respondent

Hopgood Ganim Lawyers for the defendant/applicant

  1. [1]
    This proceeding is listed on the Commercial List of the court.  The defendant now applies for orders to the following effects:
    1. (a)
      that the court extend the time within which it could file an amended defence and amended counterclaim and this application (extension application);[1]
    2. (b)
      that three other entities be included as parties to the proceeding (joinder application), namely;
  1. (i)
    The Body Corporate for The Proprietors Windermere Tower BUP 102925;
  2. (ii)
    The Body Corporate for The Proprietors Windermere Villas BUP 102926; and
  3. (iii)
    The Body Corporate for The Proprietors Sutherland Apartments, Sky Villas and Villas BUP 106865;
    1. (c) striking out a number of paragraphs of the amended statement of claim filed on 1 July 2020 (strike out application); and
    2. (d)that the plaintiff provide particulars of the amended statement of claim that the defendant has requested (particulars application).
  1. [2]
    The plaintiff opposed the strike out application and the particulars application.  The plaintiff does not oppose the joinder application or, I apprehend, the extension application.

Background

  1. [3]
    The plaintiff is the community body corporate for a mixed use scheme under the Mixed Use Development Act 1993 (MUDA), known as Bretts Wharf and situated at Hamilton.  The defendant, which is incorporated under the Building Units and Group Titles Act 1980 (BUGTA), is one of four subsidiary bodies corporate (precinct bodies corporate) that comprise the members of the plaintiff.  The three other members of the plaintiff, also subsidiary bodies corporate, are the proposed additional defendants.
  2. [4]
    Since 2010, the plaintiff has been a party to agreements to facilitate the management of the scheme as a whole, namely:
    1. (a)
      a residential management agreement with a third party caretaker;
    2. (b)
      a management agreement between the plaintiff and the defendant; and
    3. (c)
      three other management agreements, between the plaintiff and each of the three other subsidiary bodies corporate respectively.
  3. [5]
    The management agreements between the plaintiff and its members are all relevantly identical.
  4. [6]
    Each of the subsidiary bodies corporate is the body corporate for its own separate group titles scheme.  The schemes have different numbers of lots, different mixes of units and, in some cases, villas, and different common property.  The plaintiff also owns community property, which is (generally speaking) open for use by its members and their members.
  5. [7]
    The plaintiff alleges that, since the commencement of its management agreements with each of its members, it has provided a number of services for each of those members’ benefit, namely body corporate management services, gardening works and maintenance, pool cleaning and maintenance and a cleaning service.  Each year, it has prepared a budget for all of the services it provided to its members generally, notified its members of the budget, engaged service providers and issued levies for those services as a single administrative fund levy.  In this way, it raised “levies” for expenses associated with the community property and the services provided by it under the respective management agreements. 
  6. [8]
    The plaintiff pleads to the effect that, since December 2018, the defendant has paid most of the administrative levy raised against it, but withheld part of the levied amount.  The defendant contended that it would not pay for cleaning services provided to it, because it had terminated its management agreement with the plaintiff in June 2016 and therefore the plaintiff had no authority to provide or charge for those services.  The plaintiff seeks payment of the withheld funds and a declaration that the management agreement with the defendant remains on foot.
  7. [9]
    The defendant, in essence, pleads two grounds of defence.  First, it alleges that it terminated the management agreement with effect from June 2016.  Secondly, it contends that the plaintiff incorrectly calculated any amounts owed to it by the defendant, as it charged not only for services provided to the defendant under the management agreement and services allegedly provided after the management agreement was terminated, but also for a percentage of services that it had supplied to other members.  This has happened, the defendant alleges, because the plaintiff imposed one administrative levy each year rather than charging separately for services it had provided under the management agreement, on the one hand, and levies raised by it under the MUDA, on the other.

Relevant legislative provisions

  1. [10]
    Section 174 of the MUDA relevantly provides:

174 Levies by bodies corporate on members

  1. (1)
    A body corporate may levy—
    1. the contributions determined by it under section 177(1)(h); and
    2. any amount determined under section 177(2) in relation to the contributions;

by giving its members written notice of the contributions payable by them.

  1. (2)
    Contributions must be levied, and are payable by the members of the body corporate, in shares proportional to their voting entitlements at the time the contributions are levied.

…

  1. (4)
    A contribution—
    1. is payable to the body corporate in accordance with its decision to make the levy; and

…

  1. (c)
    may be recovered as a debt by the body corporate in a court of competent jurisdiction.

…

  1. [11]
    Section 177 of the MUDA relevantly provides:

177 Duties of bodies corporate

  1. (1)
    A body corporate must—
    1. (a)
      control, manage and administer for the benefit of its members—
      1. the community property … held by it; or

…

  1. (b)
    properly maintain and keep in a state of good and serviceable repair—
    1. the community property … held by it, including any improvements on the community property …; and
    2. any personal property vested in it; and

…

  1. (c)
    arrange for insurance under section 182;

…

  1. (h)
    … whenever necessary … determine the amounts necessary in its opinion to be raised by way of contributions—
    1. for the purpose of meeting its actual or expected liabilities incurred or to be incurred under paragraph (b); or
    2. for the payment of insurance premiums, rates or any other liability of the body corporate (other than amounts referred to in paragraph (l)); and
  2. (i)
    on first determining the amounts mentioned in paragraph (h), establish a fund—
  1. (i)
    into which must be paid all amounts received by it … ; and
  2. (ii)
    into which may be paid any amounts paid to the body corporate by way of discharge of insurance claims; and
  1. (j)
    levy under section 174, on each person liable, a contribution to raise the amounts mentioned in paragraph (h) ... .
  1. [12]
    Section 176 of the MUDA relevantly provides:

176 Miscellaneous powers of bodies corporate

A body corporate may—

…

  1. (c)
    enter into an agreement for the provision of amenities or services by it or another person to—
  1. (i)
    a lot; or
  2. (ii)
    the proprietor or occupier of a lot; or
  3. (iii)
    a parcel comprised in a building units or a group titles plan … .

Strike out

  1. [13]
    The plaintiff’s claim is for amounts that it alleges are due to it by the defendant in respect of:
    1. (a)
      services provided by it to the defendant under the management agreement; and
    2. (b)
      levies raised by it against the defendant (as it has raised levies against all its members) for its contributions to the costs of the maintenance of the plaintiff’s assets and its community property, pursuant to ss 174 and 177 of the MUDA.
  2. [14]
    The defendant complains that the plaintiff’s claims, as pleaded, confuse and improperly merge claims for the cost of services provided under the Management Agreement and for levies under the MUDA and include amounts allegedly payable for services not provided by it on either basis, therefore not disclosing proper causes of action.  The defendant contends that the plaintiff has also pleaded irrelevant facts and not pleaded any facts giving rise to a controversy in respect of declarations that it seeks.
  3. [15]
    In its submissions, the defendant divided the paragraphs of the statement of claim about which it complains into six categories.  It is convenient to consider the application by reference to those categories.

Category 1 – paragraphs 3A, 3B, 3C, 3D

  1. [16]
    In these paragraphs, the plaintiff pleads the provisions of the MUDA that it alleges are relevant to the proceeding.  The defendant contends that these paragraphs are unnecessary, have a tendency to prejudice or delay the fair trial of the proceeding and are embarrassing.  The plaintiff contends that it is not prevented, by the rules, from pleading matters of law if not to do so would potentially take the defendant by surprise and, in any event, in part it relies on those provisions of the MUDA as a basis for its claims and it is therefore obliged to plead them by r 149(1)(e) of the Uniform Civil Procedure Rules 1999.
  2. [17]
    I accept the plaintiff’s submissions in this respect.  It clearly relies on the provisions to which it refers as giving it an entitlement to recover some or all of the amounts that it claims.  Whether or not it is correct is not to be determined on this application, but after trial.
  3. [18]
    Therefore, I will not strike out these paragraphs.

Category 2 – paragraphs 5A, 5B, 5C

  1. [19]
    In these paragraphs, the plaintiff alleges that, in each year from 2010 to 2017 inclusive, it prepared a budget for the amounts payable under the management agreements with its members and under s 177 of the MUDA, it levied contributions against its members and the defendant paid each of the levies raised against it.
  2. [20]
    The defendant contends that these allegations are irrelevant to the plaintiff’s claims, as they do not lead to any claim for relief.  Therefore they are unnecessary, have a tendency to prejudice or delay the fair trial of the proceeding and are embarrassing. 
  3. [21]
    The plaintiff contends that they are relevant because they relate to whether the management agreement remains on foot and they concern the plaintiff forming its opinion of the amounts that would be necessary to be included in annual budget calculations, including for the unpaid 2018 and 2019 levies.[2]  The plaintiff also contends that the matters pleaded in these paragraphs are largely admitted and, insofar as they are denied, they are relevant to matters pleaded in the counterclaim; therefore they will be dealt with at trial and do not offend against the rules of pleading.
  4. [22]
    As the plaintiff seeks no relief in respect of the earlier years, I cannot see their relevance to its claims.  The facts pleaded in these paragraphs are not referred to elsewhere in the statement of claim.  Although, in paragraph 6(a) of the statement of claim, the plaintiff alleges that it determined the amounts necessary in its opinion to be raised for the year ending on 30 June 2019,[3] it does not plead that, in forming that opinion, it relied on the parties’ past conduct.  Furthermore, the defendant sought particulars of “all the facts, matters and circumstances relied upon by the plaintiff to conclude that the amounts were necessary”, to which the plaintiff responded only that, “such matters are inferred from the fact that those individuals[4] voted to approve the budget on that date.”  It did not, in those particulars, refer to any earlier conduct.
  5. [23]
    Facts that might be relevant to oppose a counterclaim ought properly be pleaded in an answer to the counterclaim, not in the statement of claim.  Nor does the fact that a defendant has admitted facts that are irrelevant make them relevant and properly the subject of the statement of claim.
  6. [24]
    I consider that these paragraphs are irrelevant and therefore match the description given to them by the defendant.  They will be struck out.

Category 3 – paragraphs 11, 12

  1. [25]
    In these paragraphs, the plaintiff alleges that, in April 2019, it called for payment by the defendant of a further sum, pursuant to the management agreement “and/or sections 174 and/or 177(h) and/or (l) of the MUDA (‘the Special Levy’),” which the defendant has not paid.
  2. [26]
    The defendant submits that these paragraphs are unnecessary, have a tendency to prejudice or delay the fair trial of the proceeding and are embarrassing.  First, the payment could not have been sought on all of the alleged grounds, as different sums are payable under the management agreement from sums payable under the MUDA.  Secondly, it says the relevant motion concerned the raising of funds for legal fees to commence this proceeding, which is not an expense under the management agreement.  Thirdly, if the MUDA provisions apply, they require that the plaintiff give a notice to the defendant and no notice is pleaded.  Fourthly, to the extent that s 177(1)(l) applies, it requires that the plaintiff could not immediately pay the sum, which it was required to do, which is not pleaded.  Also, on the face of the motion (which is in an exhibit to an affidavit before the court), it was not the fact that the plaintiff could not immediately pay the sum, because the amount sought was to enable payment of fees to be incurred in the future.
  3. [27]
    The plaintiff submits that these matters are facts relevant to some of its claim.  It does not specifically respond to the defendant’s complaints about the pleading itself.
  4. [28]
    I accept that the plaintiff wishes to claim the amount of the special levy.  However, in paragraph 11 it has attempted to plead the relevant facts in an “omnibus” fashion, using the inelegant and unfortunate phrase “and/or”.  That phrase is to be deprecated in pleadings, as it is vague and can give rise to a multiplicity of possibilities (in this case, at least 10), each of which would have to be properly anticipated, understood and separately responded to by the other party in its responsive pleading.  The vagueness of such a pleading, in my view, renders it embarrassing.
  5. [29]
    The third of the defendant’s complaints also has substance.  Section 174 requires that a community body corporate raise levies by giving notice of the contributions payable.  In my view, the section makes the giving of notice a condition precedent to the contribution becoming payable and recoverable.  Therefore, in order to recover a contribution as a debt, a plaintiff must plead the fact that it gave such a notice.  The plaintiff has not pleaded that in its statement of claim, although it has referred to such a notice in its particulars of paragraph 11.  That is not an adequate or appropriate manner of pleading a fact that is necessary to give rise to a cause of action.
  6. [30]
    The second and fourth complaints about paragraph 11 are really matters of fact or law that the defendant might wish to raise as defences in its pleading. 
  7. [31]
    For the reasons set out in [27] and [28], paragraph 11 should be struck out.  The parties agree that paragraph 12 stands or falls with paragraph 11.  Therefore paragraph 12 should also be struck out.  If the plaintiff wishes to pursue this part of its claim, it should plead it properly.

Category 4 – paragraph 13

  1. [32]
    Paragraph 13 of the statement of claim alleges that, in the year to 30 June 2019, the plaintiff incurred costs in maintaining the community property (that is, its obligations under the MUDA) and, under the management agreement, in performing duties on behalf of its members.
  2. [33]
    The defendant submits that the pleading goes nowhere and is therefore irrelevant.  Furthermore, any costs incurred under management agreements with other members are even more irrelevant.  These problems are exacerbated because the plaintiff has refused to provide particulars of the expenses it alleges that it incurred.  Therefore, the paragraph is unnecessary, has a tendency to prejudice or delay the fair trial of the proceeding and is embarrassing.
  3. [34]
    The plaintiff submits that clause 3.4 of the management agreement requires consideration (by whom it is not said) to be given to the amount actually incurred in the year.  The amounts are also relevant to the budget for the following year and the levies raised for that year.  As to those points, clause 3.4 does not seem to me to be relevant, as all it requires is, in essence, a reconciliation between budgeted and actual expenses, leading to a balancing payment from one party to the other to account for the actual costs of providing services under the management agreement.  If the defendant were to plead an absence of such a reconciliation, or a set-off arising from a difference between budget and actual expenses, then the actual expenses may become relevant, but until that point this allegation does not have any relevance to the plaintiff’s claim.  Similarly, the total expenses incurred by the plaintiff do not seem to be relevant to the determination of the levies that it alleges it raised against the defendant in that year.  Again, that may become relevant for pleading in a reply or answer, depending on defences or counterclaims raised by the defendant. 
  4. [35]
    At this stage of the proceeding, I cannot see the relevance of this paragraph.  It certainly has a tendency to delay the trial and, being irrelevant, it is embarrassing.  It should be struck out.

Category 5 – paragraphs 4, 5, 13, part of 19, 20, 21, part of 23 and paragraph 3 of the relief sought

  1. [36]
    The defendant contends that these paragraphs all concern the claim for damages for breach of the management agreement.  In fact, they also concern the claim for debt under that agreement.[5]  The defendant submits that they fail to disclose a cause of action under that agreement and therefore they are unnecessary and have a tendency to prejudice or delay the fair trial of the proceeding.  In essence, the challenge to these paragraphs constitutes a challenge to the entire claim under the management agreement.
  2. [37]
    It is convenient to turn first to paragraph 19 and to set it out in full.  It pleads:
  1. In the premises of the matters pleaded in paragraphs 3 to 12 hereof, the defendant is indebted to the plaintiff pursuant to section 174 of the MUDA, and/or the terms of the Management Agreement in the sum of $115,585 $86,049.84 (“the Debt”).

Particulars

 (a)  $25,652 as pleaded in paragraph 10(b);

 (b) $17,610 as pleaded in paragraph 11;

 (c) $72,323 $42,787.84 as pleaded in paragraph 18(c).

  1. [38]
    The defendant says that, first, in order for any amount to be payable under the management agreement, the payment procedure provided in it has to be complied with and the plaintiff does not plead that that occurred.  All it pleads is that it gave notice of the budget for contributions under the MUDA (paragraphs 7 and 15) and notices of contributions for each of the 2018/2019 and 2019/2020 financial years (paragraphs 9 and 17).[6] 
  2. [39]
    The defendant submits that, although it is not clear, the plaintiff may be improperly conflating the requirements for the calculation of contributions under the MUDA and those for calculation of the expected costs of the management duties under the management agreement.  It is not open for it to plead in this way.
  3. [40]
    The plaintiff contends that it has pleaded the steps it took under the management agreement that give rise to the alleged debts in paragraphs 6 and 14 (the budgets), 6A and 14A (adoption of the budgets and setting levies based on them) and 7 and 15 (notices of the levies), so paragraph 19 is unobjectionable.  As to paragraph 20, it is an alternative claim of breach of the agreement, but the plaintiff also says that it acknowledges that the allegation should be that the defendant’s failure to pay is in breach of the management agreement and of the defendant’s obligation to pay levies under the MUDA and it will amend to plead that.  These responses, it says, resolve the complaints about paragraphs 21 and 23 (and presumably paragraph 3 of the claim for relief).
  4. [41]
    The amounts claimed in paragraph 19 cannot be due under both the MUDA and the management agreement, although some parts of them may be under one and other parts under the other.  But not only is that a problem for the plaintiff, it has also again used the phrase “and/or”.  That makes the basis of its claim unclear.  It really needs to plead separately what amounts it claims are expenses incurred and due under the management agreement and what amounts are due as contributions under the MUDA. 
  5. [42]
    It has divided the amount claimed into three separate sums, respectively said to have been pleaded in paragraphs 10(b), 11 and 18(c).  The second amount is infected with the problems I have found with paragraph 11, which itself is to be struck out.  The first and last of these amounts are alleged, in the paragraphs referred to, to be contributions that, it seems, stem respectively from the pleadings in paragraphs 6 and 14:  that is, contributions under the MUDA.  Therefore, they appear to have nothing to do with the management agreement.
  6. [43]
    I consider that paragraph 19 is therefore difficult to understand but, in any event, having regard to the paragraphs to which it refers, does not demonstrate a cause of action under the management agreement.  Therefore, the words “and/or the terms of the Management Agreement” should be struck out.  But also, as paragraph (b) of the particulars relies on paragraph 11, it should also be struck out.
  7. [44]
    Paragraphs 20 and 21 plead that the failure to pay the amounts alleged in paragraphs 10(b), 12 and 18 was in breach of the management agreement, causing loss to the plaintiff.  As I have said, I do not see the utility in pleading that a failure to pay an alleged debt is also a breach causing loss that sounds in damages where the loss is the amount of the alleged debt.  But also, given my views of the paragraphs referred to, the alleged failure cannot be a breach of the agreement.  The amendment that the plaintiff has foreshadowed will not fix the problem.  Also, any such amendment would only give rise to a questionable cause of action, namely a claim for damages for breach of an obligation arising from statute.  Unless it were pleaded as a breach of statutory duty, I have difficulty seeing what legitimate cause of action it would raise.  Paragraphs 20 and 21 should also be struck out.
  8. [45]
    As a consequence, the reference in paragraph 23 to paragraph 21 should be struck out, as should the claim for damages for breach of the management agreement that is made in paragraph 3 of the claim for relief.
  9. [46]
    I shall not, at this stage, strike out paragraphs 4 and 5 (which plead the existence and relevant terms of the management agreement), as the plaintiff may yet plead facts giving rise to an arguable cause of action under that agreement.  But, if it does not, then at some stage in the future those paragraphs may well be struck out.

Category 6 – paragraph 1 of the claim for relief

  1. [47]
    In this paragraph, the plaintiff claims a declaration that the management agreement remains on foot and the defendant is bound by its terms.
  2. [48]
    The defendant contends that no facts are pleaded in the statement of claim that give rise to any controversy about those matters needing to be resolved by a declaration.
  3. [49]
    The plaintiff submits that the defendant has repeatedly asserted that the management agreement was terminated in June 2016 and therefore there is good reason to seek declaratory relief.  It records that the defence alleges that the defendant terminated the agreement and the counterclaim seeks consequent declaratory relief.
  4. [50]
    It is true, based on the evidence tendered in this application, that the defendant has maintained for some time, as it does in its defence and counterclaim, that the management agreement was terminated in June 2016.  But the plaintiff has not pleaded those assertions in its statement of claim.  Although it may be seen as very technical, the defendant’s point is correct.  The plaintiff cannot seek a declaration, by its claim, unless it pleads, in its statement of claim, some controversy between it and the defendant that may be quelled by a declaration.
  5. [51]
    Therefore, as presently pleaded, there is no basis for a declaration and paragraph 1 of the claim for relief should be struck out.  In doing so, I do not preclude the plaintiff from refreshing that claim if it pleads a proper basis for it.

Particulars of statement of claim

  1. [52]
    Neither party addressed the issue of particulars, as most of those sought concerned paragraphs of the statement of claim that the plaintiff was seeking to have struck out.
  2. [53]
    I propose to give the plaintiff leave to amend its statement of claim generally.  It is therefore appropriate not to deal with the particulars at this stage.  I shall adjourn that part of the application to a date to be fixed, but I urge the parties to try to resolve the matters without the need for further intervention by the court.

Joinder application

  1. [54]
    The application seeks simply an order that the three other members of the plaintiff be joined as parties to the proceeding.  Neither party submitted in what capacity they should be joined.
  2. [55]
    The reason why they should be joined is that the court is being asked to determine if the contribution levies that have been raised and paid by them and by the defendant were properly payable.  If the defendant were successful, then the other members may become liable to pay higher (or at least different) levies than they have to date, or indeed it may be that contributions they have paid were not properly levied or otherwise demanded from them.  Also, although any determination concerning the plaintiff’s and the current defendant’s rights and obligations under the management agreement would not bind the other members in respect of their own management agreements, any future litigation about their respective agreements may open up the possibility of conflicting decisions, which may have a tendency to bring the administration of justice into disrepute. 
  3. [56]
    Therefore, it is just and convenient that all the members of the plaintiff be parties to this proceeding and be bound by its outcome.
  4. [57]
    It seems to me appropriate that those members be joined as defendants to the defendant’s counterclaim, given that the defendant is seeking orders that will affect the other members’ rights and obligations.  I shall order accordingly.

Extension application

  1. [58]
    As there is no opposition to the defendant having one extra day in which to file its defence and counterclaim and this application, I shall extend the time to the date on which it in fact filed those documents, as requested.

Next steps

  1. [59]
    It is clear that the plaintiff will need to re-plead its statement of claim, leading to the defendant having to re-plead both its defence and (as the other members of the plaintiff are to be joined as defendants to counterclaim) its counterclaim.  I shall therefore make directions for the filing of those pleadings.  After the amended counterclaim is served on the new parties, they will have the usual time to file notices of intention to defend and defences in accordance with the rules.
  2. [60]
    I shall hear the parties as to any consequential directions and the costs of the application.

Footnotes

[1] The defendant was originally required to do this by 24 July 2020.  By order dated 23 July 2020, the order was varied to require this to be done by 29 July 2020.  This application seeks to vary that date again.

[2] It relies on the decision of McGill SC, DCJ, in Cathedral Place Community Body Corporate v The Proprietors Cathedral Village BUP 106957 [2018] QDC 275 to the effect that a community body corporate is entitled to recover levies where it formed such an opinion.

[3] It pleads in the same manner concerning the 2020 financial year in paragraph 14(a).

[4] That is, the individuals who determined the amounts and held the opinion.

[5] A debt is claimed in paragraph 19 and, in the alternative, paragraphs 20 and 21 allege a breach of that agreement and damages in the sum of the alleged debt.  I do not see any forensic or other reason for pleading damages in the alternative to the debt.

[6] That the budget and notices were in respect of contributions under the MUDA and not expenses under the management agreement is made clear in paragraphs 6 and 14, each of which says that the plaintiff “determined the amounts necessary in its opinion to be raised by way of contributions within the meaning of section 177(1)(h) of the MUDA.”

Close

Editorial Notes

  • Published Case Name:

    The Body Corporate for Bretts Wharf - Hamilton Community Body Corporate MCP 102933 v The Body Corporate "The Proprietors - The Lancaster Building Unit Plan 107026"

  • Shortened Case Name:

    The Body Corporate for Bretts Wharf - Hamilton Community Body Corporate MCP 102933 v The Body Corporate "The Proprietors - The Lancaster Building Unit Plan 107026"

  • MNC:

    [2020] QDC 232

  • Court:

    QDC

  • Judge(s):

    Barlow DCJ

  • Date:

    18 Sep 2020

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
Cathedral Place Community Body Corporate v The Proprietors Cathedral Village BUP 106 957 [2018] QDC 275
2 citations
Jump To
Cite 1 - [2018] QDC 275
Cite 2 - [2018] QDC 275

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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