Aqualord Pty Ltd v Luxe on Marine Body Corporate
[2014] QCAT 604
•20 November 2014
| CITATION: | Aqualord Pty Ltd v Luxe on Marine Body Corporate [2014] QCAT 604 |
| PARTIES: | Aqualord Pty Ltd ACN 100 063 812 (Applicant) |
| v | |
| Luxe on Marine Body Corporate CTS 41738 (Respondent) |
| APPLICATION NUMBER: | MCDO418-14 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 19 September 2014 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 20 November 2014 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. That the claim is dismissed. |
| CATCHWORDS: | Minor Civil dispute – minor debt – claim for unpaid invoice – consultancy work – whether Body Corporate manager acted on instructions – whether agreement between parties – whether proper named respondent Body Corporate and Community Management Act 1997 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Jon Saggers, Director of Aqualord Pty Ltd |
| RESPONDENT: | Mrs Judy Watkins, Chairman of Luxe on Marine Body Corporate |
REASONS FOR DECISION
Mr Jon Saggers is the sole Director of the Applicant Company, Aqualord Pty Ltd (“Mr Saggers”). He filed a minor debt claim on 29 May 2014 seeking payment from the Luxe on Marine Body Corporate (“Luxe”) and orders for the payment of an outstanding invoice in the sum of $6,833.75 for consulting work. He also seeks payment for reimbursement of the filing fee of $101.40 and interest.
Luxe filed a Response on 19 June 2014 seeking orders that the claim be dismissed based on the grounds that Luxe did not authorise in any way for ongoing works to be performed by Mr Saggers for the body corporate.
Legislation
The tribunal has jurisdiction to hear and determine minor civil disputes – minor debt matters.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 s 11.
A minor civil application for a claim to recover a debt or liquidated demand of money must be made by a person to whom the debt is owed or money is payable.[2]
[2]Ibid s 12(4)(a).
In a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute and may, if considered appropriate, to make an order dismissing the application.[3] The tribunal may make an order requiring a party to the proceeding to pay a stated amount to a stated person. [4]
[3]Ibid s 13(1).
[4]Ibid s 13(2)(a)(i).
A Body Corporate may appoint, in writing a body corporate manager to exercise some or all of the powers of an executive member of the committee.[5]
[5]Body Corporate and Community Management Act 1997 s 119(2).
The body corporate, in writing, may revoke the authorisation at any time.[6]
[6]Ibid s 119(4).
A decision of a body corporate manager in exercising a power under an authorisation given under section 120 of the Body Corporate and Community Management Act 1997 is a decision of the body corporate.[7]
[7]Ibid s 121.
The duties of a body corporate manager are limited to what the body corporate asks or instructs them to do. Body corporate managers can be involved in such matters as coordinating the affairs of lot owners including conducting meeting, arranging property maintenance and advising on asset management.
Division 3 Regulation Module of the Body Corporate and Community Management Act 1997 applies to a community titles scheme and prescribes what is to occur in the engagement of a person as a body corporate manager.[8]
[8]Ibid s 122.
Specific requirements relate to the engagement or authorisation and particular compliance with, for example, the term of the engagement or authorisation[9] and the consequences of not complying with the requirements mentioned in the engagement or authorisation.[10]
[9]Ibid s 122(1)(a).
[10]Ibid s 122(1)(b).
There are particular circumstances under which an engagement or authorisation may or may not be terminated or transferred, despite anything in the engagement or authorisation.[11]
[11]Ibid s 122(1)(d).
Applicants Evidence
Mr Saggers stated that he provides consulting services to individuals, organisations and body corporate regarding development, construction and management issues.
Mr Saggers claims that on 9 August 2013 he was verbally engaged by Tania Hatcher, Administration Manager for Luxe to provide advice concerning issues with problems with the Luxe building including ‘water ingress issues affecting the body corporate building’ and to identify possible ‘rectification options to resolve’ the problems.
Mr Saggers said that Tania Hatcher has provided a statutory declaration dated 14 May 2014[12] confirming their arrangement.
[12]Affidavit of Jonathan Saggers sworn 29 May 2014 Annexure “JS1”.
Mr Saggers explained that due to the unknown time extent of his consultancy requirements a lump sum fee could not be provided so he agreed to undertake work on an hourly rate of $175.00 per hour plus GST. He said that was the previous current time and expense consultancy services fee he had conducted previous business with the Administration Management Company who managed Luxe. He provided an email from Tania Hatcher dated 18 September 2013[13] confirming their arrangement.
[13]Ibid Annexure “JS2”.
Mr Saggers said that from 9 August 2013 to 30 October 2013 he provided numerous advices to Luxe in fulfilment of the terms of engagement. He claims in addition to advice he also attended numerous meetings with Luxe and their office bearers, attended body corporate meetings and conducted site inspections.
Mr Saggers said he was commissioned to provide consulting services by Luxe over a three-month period and at the conclusion of the work he submitted a tax invoice dated 31 October 2013[14] that has not been paid.
[14]Ibid Annexure “JS3”.
Mr Saggers alleges that subsequent to his tax invoice issued on 31 October 2013 that Luxe requested additional information regarding his commissioning, services provided and time sheets relating to works performed. Mr Saggers said he emailed Luxe between November 2013 and April 2014[15] and provided them with a break down of hours spent and answered other concerns, they had.
[15]Ibid Annexure “JS4 – JS9”.
Mr Saggers said that he had never been advised by Luxe of any issues with the performance of his work or the advice he gave them.
Mr Saggers relied upon two statutory declarations made by Tania Hatcher. The first was dated 14 May 2014[16] and the second statutory declaration dated 3 September 2014[17].
[16]Ibid Annexure “JS1”.
[17]Exhibit 1.
Evidence of Tania Hatcher
Tania Hatcher (“Ms Hatcher”) declared that Complete Body Corporate Services Pty Ltd (“CBCS”) administered the Luxe on Marine Body Corporate CTS 41738 and that she was the Manager at the time the disputed works were undertaken. Her later statement indicates that CBCS no longer manage Luxe.
Ms Hatcher claims that in approximately August 2013 the Committee for Luxe required a consultant to assist with identifying building issues with recommendations for possible rectification options including water ingress issues affecting the scheme. She declares that the Body Corporate of Luxe authorised her to attend to the resolution of engaging a consultant.
Ms Hatcher declared that on 9 August 2013 the Committee directed her to engage the services of Aqualord and Jon Saggers as project management to carry out the necessary work to identify the uses, report findings and that the fees were to be on the same terms and conditions as prior engagements.
Ms Hatcher alleges that over the period of the contract additional works were requested by Luxe to be performed by Mr Saggers.
Ms Hatcher said she received a tax invoice from Mr Saggers on 7 November 2013 dated 31 October 2013 for $6,833.75 including GST. She said she forwarded it to Luxe for payment. She declared that sometime after she was requested by Luxe to obtain timesheets that the tax invoice related to. She said she did this and this was provided to Luxe.
Ms Hatcher declares that she was not authorised by Luxe to pay the tax invoice and that she was not aware of any issue with Luxe regarding the works performed or the amount Mr Saggers had charged. She declares it is her belief that the ‘tax invoice was fair and reasonable’.
Ms Hatcher stated in her later statement that she agreed with Mr Saggers that the work would be performed at a rate of $175.00 per hour plus GST. She suggests that Mr Saggers ‘arranged initial communications and inspections and meetings with the owners, the owners building representatives and unit tenants 2 and 3 directly’.
Ms Hatcher claims that Mr Saggers said to her that he could not complete a detailed written report on the water ingress issues before the next Body Corporate meeting. She said she informed the Luxe committee about this and they resolved that Mr Saggers should attend the next scheduled body corporate meeting on 23 August 2013 to report his findings. She said she arranged for this to occur. She said she arranged for Mr Saggers to inspect Unit 1 water ingress issues prior to the meeting so he could report on his findings. She said the ‘water ingress issues were restricted to the Penthouse – unit 7 and lower apartments units 1, 2 and 3 and basement areas’.
Ms Hatcher claims that
Mr Saggers presented a verbal report at the meeting about many of the preliminary schemes building issues effecting the entire scheme and specifically... number of diagrammatic sketches to demonstrate the suspected constructions method techniques and why the scheme’s water ingress issues were occurring.
Ms Hatcher declared that it was noted the
water ingress issues were being generated from Body Corporate responsible areas ie. roof top, lower roofs, external walls and balconies and were reported by Saggers to being suspected to be a result of a number of issues but generally as a result of poor constructions techniques and methods undertaken by the original builders/developers.
Ms Hatcher stated that she was told ‘not to minute for the record the body corporate meeting on 23 August 2013 due to the members not wanting the building issues to be recorded that might adversely affect the pending apartment sales’.
Ms Hatcher declared that after the August meeting she was aware Mr Saggers was requested to undertake additional consultancy services works for Luxe for sundry waterproofing works, plumbing issues and other remedial works for repairs to unit 2.
Respondent’s evidence
Mrs Watkins is the Chairman of the Luxe Body Corporate and a joint owner of apartment 5 of Luxe apartments at 446 Marine Parade, Biggera Waters. She provided a sworn statement dated 12 August 2014[18] to the tribunal as part of her evidence in chief.
[18]Exhibit 4.
Mrs Watkins stated that on 9 August 2014 she was present at a Body Corporate meeting held at the office of CBCS at 10 Ferry Road in Southport. She said at the meeting it was agreed that Mr Saggers would be requested to provide assistance in finalising a solution for the water problems affecting apartments 1 and 2 at Luxe. She claims it was further agreed that Mr Saggers would be requested to liaise with Joe Kilner who had previously provided recommendations for the solution to the water problem. She said that it was decided that if Mr Saggers agreed to the work he was to present his findings at the next body corporate meeting held at Luxe on 23 August 2013.
Mrs Watkins said that at the meeting on 23 August 2013 Mr Saggers gave a verbal report detailing his solutions for the water issues. She said that as far as she was concerned this ‘was the finish of Mr Sagger’s role’.
Mrs Watkins said that at the body corporate meeting Mr Les Smith who owned apartment 7 asked Mr Saggers to prepare and submit a building rectification report for him personally to identify areas that needed fixing up over a 5 to 7 year period. She said Mr Smith paid for the report directly to Mr Saggers at a quoted cost of $3,000.00.
Mrs Watkins stated that at no time did she have any knowledge or any documentation from either the CBCS or the manager, Ms Hatcher or any committee member that Mr Saggers was engaged by Luxe for any further work at Luxe apartments. She said she was never informed nor approved Mr Saggers be engaged on an hourly rate at $175.00 per hour plus GST on an ongoing contract.
Mrs Watkins said that she could not approve the appointment of Mr Saggers as a consultant on an hourly rate on an open-ended basis and that she would require the consent of all the committee members to agree to that. She claimed that the ‘complex was small, only 7 apartments owners with a small budget’.
Mrs Watkins said, ‘at no stage was the manager Ms Hatcher asked or given permission by her to employ Mr Saggers for an unlimited period at an hourly rate of $175.00’.
Mrs Watkins was critical of the invoice given to Luxe by Mr Saggers, and stated that even if they had engaged him his tax invoice was evidence of excessive charges and overcharging. She said that an example of that was Mr Saggers said he spent approximately 5 hours consulting with Mr Kilner when Mr Kilner would state otherwise.
Mrs Watkins provided statement from other owners of Luxe and evidence from Mr Kilner, from Oceanic Homes, who undertook work at Luxe.
Evidence of Joseph Charles Kilner
Mr Kilner prepared a statutory declaration dated 11 August 2014[19] stating that at the request of the previous owners of unit 2 at Luxe, and through his business ‘Oceanic Homes’, prepared a practical proposal for the water problems at units 1 and 2 at Luxe.
[19]Exhibit 2.
Mr Kilner said at the request of Luxe Body Corporate he discussed his proposal with Mr Saggers who was acting on behalf of the body corporate. He stated, ‘Mr Saggers spent approximately two hours in total with me on this issue and my planning’.
Mr Kilner stated that Mr Saggers ‘did not inspect my work either during or on completion’, and ‘I have had no further contact with Mr Saggers on this matter’.
Evidence of Patricia Mary Boero
Mrs Boero prepared and signed a statutory declaration dated 8 August 2014[20]. She states she is the owner of unit 1 at Luxe. She alleges she was present at a body corporate meeting on 9 August 2013.
[20]Exhibit 3.
Mrs Boero states that Mr Saggers was engaged to provide assistance in finalising a practical solution for water problems affecting units 1 and 2 at Luxe. She said Mr Saggers was to consult with Mr Kilner and he was to prepare a report for Luxe Body Corporate committee. She said he did not prepare a report but gave a verbal report to attendees at a meeting on 23 August 2013 on site at Luxe. She said at this meeting Mr Les Smith, the owner of unit 7, requested a quote from Mr Saggers ‘for the preparation of a Building rectification report for his own purposes’.
Mrs Boero said that the report Mr Smith requested was not a report on behalf of the body corporate and the body corporate did not have any input into its preparation. She said that about 15 minutes prior to the body corporate meeting on 23 August 2013, Mr Saggers inspected the water damage in her unit (unit 1) and that was the only occasion he has entered or inspected her unit.
Mrs Boero stated that she was aware that Mr Saggers arranged for contractors “Wetfix” to return to Luxe and complete some further works on waterproofing the storage rooms for units 1 and 2. She said the body corporate accepted the quote from “Wetfix” for this work on the understanding that it would be the total cost. She said as far as she was aware Mr Saggers was not authorised or requested to complete any other works on behalf of Luxe body corporate.
Evidence of Mr Warren Lee
Mr Lee prepared and signed a statement dated 1 August 2014[21] stating that he was the owner of apartment 6 at Luxe. He claims that he was present at a body corporate meeting in 9 August 2013 at the office of CBCS at 10 Ferry Road, Southport. He claims that at the meeting he and other members of the committee agreed that Mr Saggers was to be engaged to advise and provide assistance in finalising a cost solution for the water problems affecting units 1 and 2 at Luxe.
[21]Exhibit 5.
Mr Lee stated that as far as he was aware Mr Saggers was engaged only to consult and engage with ‘Joe the builder’ who had been ‘contracted to do the repair work by the owners of apartment 2, Mr Bob and Priscilla Gallo’.
Mr Lee said that Mr Saggers was engaged to provide a report to the body corporate committee at the next body corporate meeting on 23 August 2013 held at Luxe.
Mr Lee said he attended the body corporate meeting on 23 August 2013 and Mr Saggers ‘gave a verbal report detailing the solutions for the water issues to unit 1 and 2’. Mr Lee said he understood that to his knowledge that was the extent of Mr Saggers’ involvement or role.
Mr Lee stated that at the meeting Mr Smith asked Mr Saggers to prepare a report for him personally, that the report would involve ‘rectification (of apartment 7) over a 5 to 7 year period and cost quoted at $3000.00’.
Mr Lee said that at no time was he ever aware of the body corporate ‘requesting the services of Jon Saggers to be retained on an-open ended hourly time frame’. He said, ‘at no time was the manager of CBCS, Tanya Hatcher, asked or given permission... to employ Jon Saggers on an uncapped hourly rate of $175.00 plus gst’.
Evidence of Les Smith
Mr Les Smith prepared and signed a statement dated 31 July 2014.[22] He states that he is the owner of apartment 7 at Luxe. He claims that he was present during body corporate meetings on 9 and 23 of August 2013. His evidence corroborates the evidence of Mrs Boero and Mr Lee.
[22]Exhibit 6.
Mr Smith denies that the body corporate committee engaged Mr Saggers to undertake any work on behalf of the committee. He says that in his ‘many years of property ownership he would never give a contractor unfettered ability to charge hours without a limit or plan and cannot understand how we are presented with a bill that equates to almost 40 hours of supervision work’. He stated the invoice from Mr Saggers does not relate to any ‘rectification work’ but only ‘supervision work’ yet there are no details of what work was actually supervised.
Mrs Watkins stated that Luxe has a small membership, with only 7 apartment owners, with a small budget and that they were never in a financial position to pay Mr Saggers a supervisory role or to act like an onsite property manager.
Mrs Watkins said that she sent an email dated 18 September 2013[23] to the committee and unit owners and to Tania Hatcher outlining the committee’s position making it clear as to the role of Mr Saggers. She said the email clearly provided advice to Ms Hatcher that Mr Saggers role was limited to liaising with Joe the builder to finalise and cost a solution for apartments 1 and 2. Further, that Mr Saggers was commissioned by Mr Smith at a cost of $3,000.00 to prepare a building report for him regarding identifying issues to be rectified and the period for completion. She said the email clearly stated Mr Smith will be responsible for the cost of the report and the cost will ‘not be borne by the body corporate’.
[23]Exhibit 7.
Findings
It is not disputed that Ms Hatcher engaged the services of Mr Saggers on 9 August 2013 to undertake consultancy works regarding water ingress issues affecting the Luxe apartment block.
Mr Saggers contends that an email of 18 September 2013 is proof of his hourly rate and terms of engagement. I find that email did not specify what the hourly rate was and refers to ‘I am still continuing under my verbal hourly rate’. There was no proof what that hourly rate was or evidence that this email had been conveyed and the content agreed to by the Luxe Body Corporate Committee.
Ms Hatcher alleged that in approximately August 2013 the body corporate committee for Luxe authorised her to engage a consultant for various building issues including water ingress issues affecting the scheme.
The Chairman and Treasurer of the Body Corporate Committee and some of the owners of the units at Luxe who provided evidence to the tribunal all gave evidence that Ms Hatcher was provided with limited authorisation to undertake particular works. Their evidence was consistent and was unified in their position that Ms Hatcher was only authorised to appoint Mr Saggers to provide a report on the water problems affecting units 1 and 2 at Luxe. They agreed that Mr Saggers was to liaise with Mr Kilner and that he was to present a report at a special Body Corporate meeting that was held on 23 August 30123.
It is agreed that Mr Saggers did not prepare a written report but provided a ‘verbal report’ at the Body corporate meeting.
It is not disputed that at the Body Corporate meeting on 23 August 2013, owner of unit 7, Mr Smith, engaged Mr Saggers to undertake some works for him, in inspecting his unit and in the preparation of a report. These works were to be done at an agreed price of $3,000.00.
It is not disputed that Mr Saggers arranged for other contractors to undertake waterproofing works for storage rooms at Luxe and that Luxe have paid for the waterproofing works. Luxe allege they did not engage Mr Saggers to supervise those works or to undertake any further work for the committee other than the limited works for the initial report.
Mr Saggers provided voluminous evidence to the tribunal by way of statements, statutory declarations, emails between Luxe and Ms Hatcher, invoices and correspondences. The evidence provided by Ms Hatcher did not provide any evidence that supported her contention that Luxe Body Corporate Committee authorised her to appoint Mr Saggers to undertake consultancy works on an open ended basis at an hourly rate of $175.00 plus GST.
I find that the limit of Ms Hatcher’s authorisation was contained in an email sent by the Body Corporate Chairman, Mrs Judy Watkins, on 18 September 2013, to engage Mr Saggers to liaise with “Joe the builder” to finalise and cost a solution for Apartments 1 and 2 water issues. The email clearly highlights that Mr Saggers was commissioned by Mr Smith at a cost of $3,000.000 for those works.
I find that many of Mr Saggers evidence of emails exchanged between him and Ms Hatcher do support his suggestion that Ms Hatcher requested him to undertake various works including reviewing quotations, providing advice relating to insurance claims and Body Corporate cost breakups, reviewing scope of works, advice regarding repairs and requisite materials to be used and inspection and site meetings. Mr Saggers prepared a detailed invoice for his time spent on alleged Luxe building works. The invoice contains many hours of supervisory time.
In an email from Ms Hatcher on 21 January 2014 it is noted that Ms Hatcher acknowledges that
no purchase order was produced for these works, from memory it was agreed to off the record at a meeting held in our office in late 2013, prior to the onsite meeting in late 2013 for the Body Corporate to engage Jon Saggers to provide consultation to the Owners in relation to the building defects and to liaise with Joe Kilner with regard to the water ingress issues for lots 1 and 2 and the best method to stop the immediate water ingress problems from common property being experienced by these two lots.
The Chairman, Mrs Watkins responded to that email and stated
as you state Jon Saggers was engaged by the Body Corporate to recommend a solution for the water ingress issues for apartment one and two…Jon Saggers invoice to the Luxe Body Corporate dated 31 October 2013 includes items that relate to the Building Defect report and not to the water ingress issues.
From these email communications it is clear and I find that Ms Hatcher had a different view than the Chairman, about how the Body Corporate committee had instructed her to engage Mr Saggers.
I find on the evidence, that Mrs Watkins earlier email to owners on 18 September 2013 after the August 2013 Body Corporate meeting outlines both her and the other owners understanding as to the extent of instructions to Ms Hatcher to engage Mr Saggers. I find that Ms Hatcher has engaged Mr Saggers to undertake works on terms and conditions that were not agreed to by the committee. As the duties of a body corporate manage are limited to what the body corporate committee asks or instructs them to do, where there is confusion or conflict as to what those duties or instructions are, reliance must be placed on what was provided to the manager in writing.
There was no evidence provided to the tribunal to support Ms Hatcher’s contentions that the Body Corporate Committee instructed and authorised her to appoint Mr Saggers on an hourly rate of $175.00 per hour plus GST. If such an email or written instructions existed it was not provided to the tribunal.
I find from the evidence that on 18 September 2013 the Chairman sent an email[24] to Ms Hatcher and owners at Luxe, seeking clarification on the rectification works and her understanding of the last body corporate meeting. That email supports a finding that it was the Committee’s position that Mr Saggers was to have limited works, including ‘liaise with joe the builder to finalise and cost a solution for apartment 1 and 2’ and ‘on recommendations of Mr Saggers to obtain comparative quotes for the work’.
[24]Exhibit 7.
Mr Saggers contacted Ms Hatcher by email in response to the ‘Luxe Chairman’s correspondence’ and noted that there was
varied recollections of events and that Body Corporate office bearers are prepared to brandish incorrect accusations towards in this case myself and Company…due to the very unusual circumstances that we both have been placed under with this Body Corporate, I am providing this response email to clarify my commissioned services in relation to this scheme… I am reticent to continue without clarity upon all requirements: 1. Who is commissioning and paying for the works, and that no liability will be accepted by my company apart from my standard professions requirements… I am still continuing under my verbal hourly rate commissioning with yourself after the schemes meeting.
I find that it was obvious to Mr Saggers and Ms Hatcher that the Body Corporate committee was raising issues about costs and services as early as 18 September 2013, yet Ms Hatcher continued to instruct Mr Saggers to work under the verbal instruction until 30 October 2013 after payment issues had been raised.
I accept the evidence of Luxe Body Corporate that the services of Ms Hatcher and CBCS have been terminated. In the absence of any evidence to satisfy me otherwise, I find that Ms Hatcher has acted outside her authorised instructions from Luxe Body Corporate. I find that Ms Hatcher engaged the services of Mr Saggers to undertake consultancy works that were not specifically approved or authorised by the Luxe Body Corporate committee.
For the reasons given I find that Luxe Body Corporate did not engage Mr Saggers to undertake the consultancy works as particularized in his tax invoice dated 31 October 2013 for $6,833.75. Luxe Body Corporate did agree that they did authorise Ms Hatcher to engage Mr Saggers to perform limited and particular consultancy works, and were prepared to pay him the reasonable costs of those works. Luxe Body Corporate did not provide any submissions regarding what a reasonable payment would be. There was insufficient evidence presented to the tribunal for me to consider and be able to make a finding about what a reasonable payment would be to Mr Saggers for the limited works relating to the report for water ingress problems relating only to units 1 and 2. In this case I cannot make any orders regarding such payment but find that the Luxe Body Corporate committee should pay Mr Saggers for the work that he did that they approved.
I find that it is not disputed that Mr Saggers did undertake some works at the Luxe apartment block, on request and instruction from Ms Hatcher, and at the request of other unit owners at Luxe. In this case though, as Mr Saggers does not have a valid claim against Luxe Body Corporate, it might be that he has a claim against Ms Hatcher, who requested and instructed him to undertake such works.
For the reasons given, the decision I have reached and the orders I propose to make are as follows:
1.That the claim is dismissed.
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