Sino Amber Pty Ltd v Body Corporate for Riverbend Gardens CTS 26822
[2025] QDC 90
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- Sino Amber Pty Ltd v Body Corporate for Riverbend Gardens CTS 26822[2025] QDC 90
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Sino Amber Pty Ltd v Body Corporate for Riverbend Gardens CTS 26822[2025] QDC 90
Sino Amber Pty Ltd v Body Corporate for Riverbend Gardens CTS 26822[2025] QDC 90
DISTRICT COURT OF QUEENSLAND
CITATION: | Sino Amber Pty Ltd v Body Corporate for Riverbend Gardens CTS 26822 [2025] QDC 90 |
PARTIES: | SINO AMBER PTY LTD CAN 633817731 AS TRUSTEE FOR SINO AMBER UNIT TRUST (Plaintiff) v BODY CORPORATE FOR RIVERBEND GARDENS CTS 26822 (Defendant) |
FILE NO/S: | 1687/25 |
DIVISION: | Civil |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 24 June 2025 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 June 2025 |
JUDGE: | Porter KC DCJ |
ORDER: |
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COUNSEL: | Z. Jiang was granted leave to appear on behalf of the plaintiff. B. Strangman for the defendant. |
SOLICITORS: | Stratify Legal for the defendant. |
- [1]On the 18th of June 2025, Sino Amber Pty Ltd (the plaintiff/Sino Amber) filed a claim and statement of claim in this court. The claim sought a declaration that an identified caretaking agreement remains in force and effect until 9 May 2029 along with costs. The claim and statement of claim arises from a caretaking agreement between Sino Amber as caretaker and the Body Corporate for Riverbend Gardens CTS (the defendant) for management and caretaking rights in respect of the defendant’s body corporate premises and activities (the caretaking agreement).
- [2]The statement of claim appears to have been drafted, whether with or without assistance, personal or technological, by the plaintiff’s directors or more likely, by Mr Jiang, the husband of one of the directors. Without objection from the defendant, I gave leave for Mr Jiang to appear on this hearing. At the same time the statement of claim was filed, just less than a week ago, one of the directors Yujuan Li, filed an affidavit. I understand Ms Li to be the wife of Mr Jiang who I gave leave to appear. Ms Li also appeared today, along with the other director of the company, Mr Jian Du.
- [3]Ms Li’s affidavit was filed in support of an application for interlocutory relief filed together with the claim and statement of claim which sought interlocutory relief incidental to the primary relief sought. It sought that the defendant be restrained from treating the caretaking agreement as terminated and from ceasing to perform any of its obligations under that agreement. Although one could quibble with the form of language, it is obvious enough that that was an interlocutory injunction designed to maintain the status quo between the parties in respect of the dispute raised in the pleading.
- [4]The dispute is sufficiently summarised in this way. The caretaking agreement included caretaking and letting rights which had been assigned from time to time from the original caretaker and agent, and ultimately to the plaintiff. Sino Amber had been in the role of caretaker and letting agent since 2019. It seems uncontentious that on 16 May 2025, the committee resolved to terminate the caretaking agreement on the basis that Sino Amber had failed to exercise a renewal option.
- [5]As Mr Jiang says in his first written submission, the dispute is about the validity of the committee’s termination and Sino Amber’s contention that the caretaking agreement remains in force until May 2029. Mr Jiang’s outline relies on the points advanced in the statement of claim which contend that termination was invalid under the Body Corporate and Community Management Act 1997 (BCCM Act).
- [6]To this end, the plaintiff relies on an argument under the heading “reasonable cause” which might be characterised in law as a contention of breaches of the agreement by the body corporate which they cannot take advantage of to terminate. There is also reliance on a course of dealing where formal steps were said to have been relaxed, strict compliance waived, and various other propositions of that kind summarised in paragraph 41 of the pleading. As I said, the gravamen of the proceeding is that the actions of the body corporate to terminate the caretaking agreement were invalid. Interlocutory relief was sought to maintain the status quo until that case could be determined. The defendant has not filed a defence however, it did very quickly file a conditional notice of intention to defend.
- [7]In Sportec Pty Ltd v Leatherman Tool Group Inc [2024] QDC 188, I expressed the view, which I adhere to, that a conditional notice of intention to defend can only be filed in respect of subject matter jurisdiction issues, a phrase I explained in that judgment. The conditional notice in this case articulates a subject matter jurisdiction issue which can be summarised in this way. The BCCM Act provides that specialist adjudication or QCAT determination in its original jurisdiction is the only remedy for a dispute about a letting and caretaking agreement. The defendant submits that the caretaking agreement falls within the scope of the limit and accordingly this Court has no jurisdiction to determine the plaintiff’s proceedings. The defendant applied for the dismissal of the plaintiff’s proceedings on that basis.
- [8]I gave leave to the defendant to make that application returnable today. Although it was served, it was not served within the time which would ordinarily be required. I asked my Associate to communicate that although the matter could be listed, whether I would hear it would depend on what happened today. In a cooperative response from Mr Jiang, when I asked him if he wanted more time to consider the jurisdiction point, he said he did not and that he had prepared a submission on the matter. The submissions were a good effort for a litigant in person even if done with some kind of assistance.
- [9]The starting point for the analysis is that the court does not have jurisdiction to deal with a dispute about a contractual matter arising from a letting or caretaking agreement. The analysis to that effect is set out conveniently in paragraphs 7 to 13 of Mr Strangman’s outline of argument on jurisdiction, which states as follows:
- 7.Section 229 of the BCCM Act, which is headed Exclusivity of dispute resolution provisions, provides that the only remedy of a complex dispute is the resolution of the dispute by a specialist adjudicator, or an order of the Queensland Civil and Administrative Tribunal (QCAT).
- 8.A complex dispute is defined by Schedule 6 of the BCCM Act, relevantly, to mean a dispute mentioned in s 149B.
- 9.Section 149B of the BCCM Act applies, relevantly, to a dispute about a claimed contractual matter about an engagement of a person as a caretaking service contractor for a community titles scheme.
- 10.A caretaking service contractor is defined by Schedule 6 of the BCCM Act, to mean a service contractor for the scheme who is also a letting agent for the scheme.
- 11.Section 15 of the BCCM Act provides that a person is a service contractor for a community titles scheme if the person is engaged for a term of at least 1 year to supply services to the body corporate for the benefit of the common property.
- 12.Section 16 of the BCCM Act provides that a person is a letting agent for a community titles scheme if the person is authorised by the body corporate to conduct a letting agent business for the scheme.
- 13.Accordingly, the only remedy available to Sino Amber is a resolution of the dispute by a specialist adjudicator or QCAT, and this Court does not have jurisdiction.
- [10]The end of paragraph 13 above has a footnote referring to numerous cases but the only one that needs to be referred to is James & Anor v The Body Corporate Aarons Community Title Scheme 11476 [2004] 1 Qd R 386 at [12]. There, Justice Davies observes that the then equivalent provision of what is now s. 229(2) of the BCCM Act, refers to the only remedy for a complex dispute. His Honour held that the necessary implication of that phrase is that no other court has jurisdiction to give a remedy for a complex dispute. The only remedy for a complex dispute is one given by specialist adjudicator under Chapter 6 of the Act or QCAT exercising original jurisdiction under s. 10 Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). There are other cases which have confirmed that position, however, it is unnecessary to refer to these decisions.
- [11]Mr Jiang, I think it is fair to say, appreciated the difficulties posed by Mr Strangman’s submission. He sought to answer that submission by amending Sino Amber’s relief, without objection from Mr Strangman’s client, to add declarations in terms.
- [12]Mr Jiang’s argument proceeded on the basis that QCAT did not have power to grant declaratory relief of the kind that he sought on behalf of Sino Amber and therefore, this court had jurisdiction to do so. The first step is, in my respectful view, almost certainly wrong. QCAT is given original jurisdiction to determine complex disputes. That must carry with it, subject to statute, all powers necessary to give effect to that conferral of, effectively, substantive jurisdiction. This seems to be consistent with the view of Member Roney, KC in Body Corporate for the Lakes-Cairns CTS 28090 v Sunshine Group Australia Pty Ltd [2023] QCAT 39.
- [13]Mr Jiang referred to s. 60 of the QCAT Act and developed the argument that that section did not extend to providing the declaration he sought, therefore QCAT could not provide the declaration he sought. I respectfully do not think that is correct. That is because section 60 is part of part 6 division 1 headed “Procedural powers.” It confers express power to make a declaration about a matter in a proceeding instead of making an order it could make, or in addition to making an order it could make.
- [14]Notably, that power is in addition to and does not limit any power of the tribunal under an enabling act to make a declaration. It seems to me that there are two strong arguments as to why the tribunal could make the declarations Mr Jiang seeks. Firstly, if the tribunal is granted plenary power to determine contractual disputes about letting and caretaking arrangements that must carry with it by implication all the powers necessary to give effect to that. It is not by any means unusual for a declaration to be the remedy sought in a contract case. I think it would be difficult to sustain the argument that somehow there is no such power where the conferral of power is, in effect, to determine complex disputes, which are contractual disputes.
- [15]If it were thought to be necessary to identify an order that it could make, other than a declaration, it would seem that if a party contended that a caretaking or letting agreement had been wrongly determined and it called for the carrying into effect of the whole of the terms of that agreement, then the remedy would be an order for specific performance.
- [16]The form of such an order, if one succeeded in establishing that a contract was being treated as terminated when it ought not to have been, and in which, the moving party succeeds in demonstrating it is on foot and the responding party insists on not performing it, is an order of specific performance. It is well known in that area of the law of contract that specific performance orders can be made absolutely or on conditions. Here the conditions might be that the caretaking agreement be performed until May 2029.
- [17]That was the first step of Mr Jiang’s inventive argument, that is that the tribunal could not make a declaration of the kind he sought on behalf of Sino Amber. As I said, for those reasons, I respectfully consider that submission to be wrong.
- [18]The second step to Mr Jiang’s argument was an implied one. If QCAT could not provide the remedy sought, then this Court must be able to. That submission is also wrong. This is a court of statutory jurisdiction. It is not a court of general jurisdiction like the Supreme Court of Queensland.
- [19]This Court cannot make orders in a matter unless it has jurisdiction over the subject matter of the dispute. In the absence of demonstrated subject matter jurisdiction in this Court, this court has no power to make any order whether ancillary or final in any dispute. So much has been made clear in Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192 and Matelot Holdings Pty Ltd v Gold Coast City Council [1993] 2 Qd R 168.
- [20]The consequence of that is that the BCCM Act, in the way explained in Mr Strangman’s submissions, excludes from the jurisdiction of this Court power to hear and determine disputes about, in effect, caretaking and letting agreements. That means this court cannot make any order about such a matter. Even if it were correct, as Mr Jiang submits, that the dispute between Sino Amber and Riverbend requires a declaration and that QCAT cannot give a declaration, that does not change the position that this court will not have jurisdiction unless it has substantial jurisdiction over the subject matter of the dispute.
- [21]None of the cases he cited lead to a different conclusion. Breeze Mr Pty Ltd v Body Corporate for Bay Village Community Titles Scheme 33127 (2021) 9 QR 90, a decision of Justice Daubney, involved a matter that had been conducted in the original jurisdiction of QCAT and then transferred in some way to the Supreme Court. That is not this case.
- [22]Randall v Body Corporate for Runaway Cove Bayside CTS 25498 [2011] QCATA 10 is a decision of the acting president of QCAT and my now colleague, Judge Barlow KC. He deals with QCAT not having power to make a declaration in paragraphs 27 to 33 of that judgment. His analysis there is identical to mine in that he said QCAT could not give the declaration because QCAT did not have subject matter jurisdiction over the dispute that had been brought before it.
- [23]Although I did not mention this in my ex tempore judgment, I observe that while this Court would otherwise likely have had jurisdiction over this matter under s. 68(1) District Court Act 1967, the more specific provision in the BCCM Act would be given effect over the general provisions in s. 68(1).
- [24]For those reasons, notwithstanding the efforts of Mr Jiang, I am satisfied that this court does not have jurisdiction in the proceedings before me. The defendant’s application seeks a declaration that the preceding has not, for want of jurisdiction, been properly started. I make such a declaration. Accordingly, the proceedings are dismissed.
- [25]I order that the plaintiff pay the defendant’s costs of the proceedings on a standard basis.
- [26]Additionally, on the 26/06/2025, the plaintiff filed supplementary submissions with the court. I treated these submissions as an informal application to reopen the plaintiff’s legal argument with a view to persuading me to set aside or vary the orders I made ex tempore under rule 667(1) of the Uniform Civil Procedure Rules 1999. In effect, these submissions restated the plaintiffs position advanced at the hearing that because QCAT does not have jurisdiction to provide the declaratory relief sought, the District Court must have jurisdiction of that kind. For the reasons discussed already, these submissions did not persuade me to a different order. In circumstances where the supplementary submissions did not advance new arguments, I did not see fit to call on the defendant to respond.