Body Corporate for Gilston Grange v Purdy and Purdy

[2014] QMC 6

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Body Corporate for Gilston Grange v Purdy and Purdy  [2014] QMC 6

PARTIES:

BODY CORPORATE FOR GILSTON GRANGE CTS 31756

(plaintiff)

v

MICHAEL NOVA PURDY

and

MARYANN VAEAEKINO PURDY

(defendants)

FILE NO/S:

BRISBANE CLAIM 4605/13

DIVISION:

Magistrates Court

PROCEEDING:

Body Corporate fees due

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

28^th January 2014

DELIVERED AT:

Brisbane Magistrates Court

HEARING DATE:

21^st January 2014

MAGISTRATE:

Thacker AC

ORDER:

Plaintiff’s Claim is dismissed

CATCHWORDS:

The Body Corporate and Community Management Act – recovery costs – whether claimable – whether reasonable

COUNSEL:

Ms Quinn, solicitor for the Plaintiff

Defendants – self represented

SOLICITORS:

SCC Legal for the Plaintiff

1. The dispute between the parties concerns recovery costs related to a 2011 dispute between the parties that was the subject of proceedings between the parties in the Queensland Administrative Tribunal (“QCAT”). The parties agree that dispute was finalised and the Plaintiff filed a Notice of Discontinuance in the QCAT proceedings. Secondly, there is dispute as to whether the Plaintiff has claimed “reasonable costs” for various amounts of recovery costs in the time since.

1. The management of recovery costs is governed by The Body Corporate and Community Management Act 1997 (“the Act”)

1. The evidence of each of the Plaintiff’s witnesses explained a clear and settled regime established to manage collection of unpaid levies and associated charges. Their evidence also established the clear and settle regime is imposed strictly with no possibility of variation. Mr Payne gave evidence solely by reference to the Prudential ledger and did not know any information beyond it. For example, he did not know anything about the Defendants contacts with the Plaintiff to arrange instalment payments or that the Defendants were always up to date before the next levy became due. Phoebe Betremieux, the para-legal could only give evidence about what she “would” have done. She could not provide an answer to the Defendant’s concern about being charged a fee for dealing with Prudential rather than dealing directly with the Plaintiff. She was definite about her work instruction to refer owners with files held by Prudential to Prudential. The best she could suggest to the Defendant’s concern about being charged for dealing with Prudential was “If she had a query she could have asked me” Mr Joosen too emphasised using words to the effect - if contact was made with my office they’d be referred to Prudential.  Mr Joosen gave no evidence of any alternative or different management possibility. He did not give evidence that he did anything to pursue the contest over the QCAT recovery costs. Rather, he was content to rely solely upon the regime established and supported by By-Law 39. There was no protocol in place for the Plaintiff to manage anything out of the ordinary course of  referral to Prudential upon non-payment after a letter of demand was sent.

1. As I understood the evidence of Mr Payne, Manager at SCC Legal, he conceded under cross-examination that the 2011 finalisation of the QCAT matter included a ‘counter proposal’ which did not develop further. What is clear however, is that monies were paid by the Defendant to the Plaintiff to settle the QCAT dispute, and importantly, that a Notice of Discontinuance was filed in the QCAT. These factors can only mean that the QCAT dispute ended in every respect.

1. Unfortunately, the Plaintiff took the view it was entitled nevertheless to pursue recovery costs associated with the finalisation of the QCAT settlement. To do so it relied on By-Law 39. This view rides roughshod over established legal procedure relating to ending disputes. In other words, filing the Notice of Discontinuance gives certainty to the end of a dispute.

1. From the end of the QCAT dispute, the parties entered a stalemate position with each other caused by the following events:

1. The recovery costs related to the QCAT dispute remained recorded against the Defendant’s and this caused the Plaintiff to leave the Defendant’s file with the debt recovery agency, Prudential Body Corporate Management (“Prudential”);

1. Phoebe Betremieux followed the procedure set for files held by Prudential, namely, she advised the Second Defendant that inquiries by the Defendants should be made to Prudential. She gave no advise about whether or not a charge would be made for that by Prudential. Mr Joosen in his evidence confirmed that referral is the policy. There was no evidence of any compromise or middle course or any attempt by him on behalf of the Plaintiff to address the stalemate between the parties.

1. There was no evidence by any of the Plaintiff witnesses regarding any information or advice given by them to the Plaintiff informing the Defendants their file was remaining with Prudential and the consequences that followed from that decision. This included the loss of opportunity by the Defendants to receive from the Plaintiff direct and without further cost, an arrears notice.

1. The Second Defendant wished to continue her contest against the recovery costs added to the finalisation of the QCAT matter. Her position included her understanding that each time she communicated with Prudential she was charged a fee. Given the contested recovery costs she was probably correct in that view as she had not been advised otherwise. She refused to comply with this demand.

1. The difficulty between the parties compounded when the Invoices for levies and charges into the future were sent out to owners and occupiers by the Plaintiff because the process did not include the Defendants in the usual way. This resulted in the Defendants attracting further recovery costs.

1. In particular, the Defendants were not able to communicate two particular problems to the Plaintiff: Firstly, the inadequacy of the invoice descriptions which made it impossible to separate out the contested recovery costs. The invoices also contain items insufficiently described for example an entry called “other”. Secondly, the Defendants had a problem related to why payment of their invoice was consistently late. The reason was related to the timing of the Defendant’s receipt of the invoice and receipt of a Childcare Rebate cheque that the Defendants had to use to pay the invoice. It is not in contest that the Second Defendant’s paid their invoices albeit it consistently late. These were both matters that could have been resolved simply but for the impasse caused by the Defendant’s file remaining with Prudential and the associated recovery cost associated with communicating with them.

1. The wrong actions of the Plaintiff continued with their issue of the initiating Claim and Statement of Claim filed 25 march 2013 and continued in amended documents filed with the Court. It was not until the Plaintiff filed an Amended Reply that the true position between the parties was properly revealed.

1. In the circumstances, the Plaintiff had no right to utilise By-Law 39 to pursue the QCAT recovery costs. Further, by leaving the Defendant’s file with Prudential and barring the Defendants from communicating directly with them the Plaintiff placed the Defendants in an impossible position. The recovery costs that were raised as a consequence are not reasonable. The Plaintiff has not made out its case.

1. The Plaintiff’s claim is dismissed.