Body Corporate for Ti Tree Cts 848 v Schaedler

[2006] QDC 251

[2006] QDC 251

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 70 of 2004

BODY CORPORATE FOR "TI TREE" CTS 848	Appellant
and
JEAN-FRANCIS SCHAEDLER AND KEITHEA SCHAEDLER-HILDEBRAND AND ELLIMOUNT PTY LTD ACN 068 474 144	Respondent

BRISBANE

..DATE 10/07/2006

ORDER

CATCHWORDS: UCPR, r 469 Directions to advance determination within an appeal of a compromise reached by the parties - issues as to content of the compromise - appellant's signature of request for trial date dispensed with on basis of respondents making further disclosure being resisted by them and explaining why their calculation of levies issued by the plaintiff differed from the plaintiff's.

HIS HONOUR:  The parties have got into the common difficulty of respondents pressing to get a matter on for trial and an appellant declining to sign a series of proffered requests for trial date on the basis that the matter is not ready for trial.

What makes it all the more frustrating is that the parties have been litigating in this Court since the beginning of 2004 in a proceeding which is an appeal against a determination by a special adjudicator in respect of longstanding differences.  The respondents had three lots in the Community Title Scheme and in one way or another were the caretaker and letting agent. 

The appeal appeared to have been resolved by the parties entering into terms of settlement dated 11 May 2005.  The respondents contend that those stand on their own.  The appellant contends that part of the agreement is another document headed "Terms of Agreement" dated the 1st of July 2004.  Pleadings have been exchanged in an exercise of enforcing within the appeal an asserted compromise of it.

The contentious issues concern whether the respondents have done enough to divest themselves of their three lots which they had undertaken to do (at least "take all steps reasonably necessary to effect the sale") in respect of lots 45 and 48 - with a view, it seems obvious, to the parties going their separate ways and the respondents in particular ceasing to have any connection with the body corporate and other lot owners.  There was - was the management lot 49?

MR FAVELL:  Yes, your Honour.

HIS HONOUR:  There was a management lot, lot 49, which has now been sold, the Court hears from the Bar table, on the basis of what the body corporate says was an important concession of entering into a new management agreement after there had been a failure to exercise an option, the rights in the new management agreement being transferred for a very valuable consideration.

Of lots 45 and 48, one has been sold, although apparently outside the 90 days period contemplated in the terms of settlement.  The other has not. The appellant body corporate is anxious to discover what steps have been taken to sell the unsold lot and also to investigate whether the respondents were dilatory in selling the one sold late.  I think Mr Favell may be right technically that if one looks at the pleadings an issue may not have been raised in relation to whether reasonable efforts to achieve sales had been made.  He says that all that matters is whether sales have or have not been made.

My approach to this matter which boils down to the appellant's attempt to enforce a compromise within the appeal proceeding and the respondents' attempt to obtain repayment of levies which they say they have been required to pay in excess of a compromise amount of $20,000, mentioned in the terms of settlement - ought to be resolved as quickly as possible within this appeal proceeding.  It is a reproach to the parties and the system if that cannot be achieved quickly.  Broadly, the Court is in sympathy with the respondents' argument that the matter should be advanced towards trial and the practical course is to avoid expenditure of time and effort on arid debates about what ought to be disclosed.

The circumstances are such that, if the pleadings in their present state do not require disclosure, the appellant would almost certainly be granted leave to amend to raise the issues that it has indicated by Mr Carrigan this afternoon it wants to ventilate.

The other issue relating to the $20,000 is complicated because within the body corporate, as it is presently advised, those steps which it now contends are necessary to approve and carry out the compromise have not been taken.  There may be a question as to the extent of the committee's authority to resolve the appeal as they did.  There is a significant difference of $30,000 or more between the compromise amount of $20,000 mentioned in the settlement and the levies which the body corporate contends would be owing but for the compromise, should that aspect of it have become binding.

It is a matter of enormous astonishment to me to see a relatively huge variation in the parties' contentions as to what the amount of levies owing at some particular date(s) might be.  There are levy notices in the form of Exhibit 1 issued on the 22nd of April 2005 which in large measure relate to the position on the 1st of June 2005.  Those do not correspond at all with what the respondents say in their amended defence and counterclaim filed 16th March 2006 were the levies due on the 1st of June 2005, nor with what they subsequently paid in respect of the two of the lots sold in order to be able to effect settlement with their purchasers.

Those amounts it seems to me are important and it is intolerable to have a situation in which the appellant, reasonably wanting to understand the respondents' calculations and claim, is unable to do so.  I confess I am unable to do so myself, although that is partly because a document of 5th August - what is the year of that one?

MR FAVELL:  '05, your Honour.

HIS HONOUR:  ‑‑‑‑‑2005, which is relied on by the respondents as contributing to their calculations, is not before me.

In my opinion the Court ought to make an order dispensing with the appellant's signature of the request for trial date but on the basis of disclosure being made, if it has not been already, of the items mentioned in paragraphs 11(a), (b), (c), and (d) of the affidavit of S E Vale filed the 5th of July 2006.

That judgment is made without the Court's having gone into the merits, technical or otherwise, of arguments that might have occurred about disclosure.  As indicated I think the intriguing discrepancies in relation to amounts of levies ought to be explained by the respondents.  I propose to adjourn the matter until Friday.  The respondents, as I understand, will use their best endeavours to get documents, whose disclosure may be required on the pragmatic basis I am pursuing, from Port Douglas to Brisbane.

Hopefully by Friday there will be some clarification reached as to the discrepancies in sums attributed to the Body Corporate levies. 

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