Body Corporate for Jargarra Villas CTS 19298 v Odalshire Pty Ltd

[2013] QCATA 168

CITATION: Body Corporate for Jargarra Villas CTS 19298 v Odalshire Pty Ltd [2013] QCATA 168

PARTIES:	Body Corporate for Jargarra Villas CTS 19298 (Appellant)
V
Odalshire Pty Ltd (Respondents)

APPLICATION NUMBER: APL036-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Hon K Cullinane AM QC, Judicial Member

DELIVERED ON: 4 June 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.   The purported orders of the Adjudicator made on 13 November 2012 are beyond the powers of the Adjudicator and are set aside.

CATCHWORDS:

APPEAL – QUESTION OF LAW – MINOR CIVIL DISPUTE – where the appellant sought debt recovery fees – where the Adjudicator made orders in favour of the respondent – where the appellant seeks to appeal that decision – where s 229A(3) of the Body Corporate and Community Management Act 1997 provides an adjudicator does not have jurisdiction in a debt dispute – whether appeal should be granted

Body Corporate and Community Management Act 1997 (Qld), s 229A(1), s 229A(3)

Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld), s 143

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. This is an appeal pursuant to ss 288, 289 and 290 of the Body Corporate and Community Management Act 1997 (Qld) (the Act) against the decision of an Adjudicator.

2. Such a right of appeal is limited to a question of law.

3. The decision of the Adjudicator was delivered on 13 November 2012.

4. The matter concerns the right of a Body Corporate which has taken proceedings in the Queensland Civil and Administrative Tribunal to recover overdue levies from an owner to bring a claim for further monies described as “debt recovery fees” relating to the same matters. The Respondent paid the moneys claimed in the proceedings in the Tribunal without any hearing of the matter.

5. The Respondent made application to an Adjudicator seeking an order that the claims for the further sums be withdrawn and that the appellant be ordered to produce minutes of meeting where the Body Corporate Management was instructed to take action against the respondent. The Adjudicator made orders in the respondent’s favour although the second order made was somewhat different to the order sought.

6. The appellant has raised the question of the power of the Adjudicator to entertain a claim involving the indebtedness of the respondent.

7. The relevant provisions are s 229A of the Act and s 143 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008. Section 143 confers on a body corporate a right to recover as a debt any costs reasonably incurred in recovering any contribution overdue.

8. Section 229A(1) provides for the recovery of moneys the subject of a debt dispute in the Tribunal in a minor civil dispute. Sub-section (3) makes a specific provision about the lack of jurisdiction of an Adjudicator in such matters:

   To remove any doubt it is declared that an adjudicator does not have jurisdiction in a debt dispute.

9. The provision is expressed in quite general terms. It is not limited to a claim to recover the amount of a debt.

10. In my view it would preclude an Adjudicator from proclaiming on the liability (or lack thereof) of an owner in a debt dispute involving, as here, recovery costs. This is what has happened here.

11. The second order made is consequential and is also beyond the Adjudicator’s powers.

12. The orders are that:

    1.     The purported orders of the Adjudicator made on 13 November 2012 are beyond the powers of the Adjudicator and are set aside.