Good Life Services Trust v Body Corporate for Bay Breeze Village - [2015] QCAT 3

CITATION:

Good Life Services Trust v Body Corporate for Bay Breeze Village [2015] QCAT 3

PARTIES:	Huixin Li and Shumei Wang t/as Good Life Services Trust (Applicant)
v
Body Corporate for Bay Breeze Village CTS 36205 (Respondent)

APPLICATION NUMBER:

OCL051-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

DELIVERED ON:

9 January 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application for directions for further and better details of the claim and for production of a receipt is dismissed.

2. The following ‘without prejudice save as to costs’ correspondence attached to Huixin Li’s affidavit filed 24 September 2014 be placed in a sealed envelope on the file and marked ‘without prejudice correspondence not to be opened prior to final order without the consent of the body corporate unless by other earlier order’:

a. Annexure D, Active Lawyers letter dated 5 May 2014:

b. Part of Annexure E, Active Lawyers letter dated 5 May 2014; Active Lawyers one page letter dated 12 May 2014; Active Lawyers 17 page letter dated 12 May 2014; Active Lawyers 2 page letter dated 31 July 2014.

3. Directions 3, 4, 5, and 6 of the Decision dated 30 September 2014 are vacated.

4. Leave is given for Huixin Li and Shumei Wang t/as Good Life Services Trust to file in the Tribunal two (2) copies and to give to Body Corporate for Bay Breeze Village CTS 36205 one (1) copy of any Amended Application by:

4:00pm on 27 January 2015.

5. The Body Corporate for Bay Breeze Village CTS 36205 must file in the Tribunal two (2) copies and give to Huixin Li and Shumei Wang t/as Good Life Services Trust one (1) copy of any response to the Amended application or if no Amended application is filed a response to the Application filed on 20 June 2014 by:

4:00pm on 24 February 2015.

6. Huixin Li and Shumei Wang t/as Good Life Services Trust must file in the Tribunal two (2) copies and give to Body Corporate for Bay Breeze Village CTS 36205 one (1) copy of:

a. Huixin Li and Shumei Wang t/as Good Life Services Trust’s statement of evidence, which must be page numbered;

b. the statement from each witness to give evidence for Huixin Li and Shumei Wang t/as Good Life Services Trust at the hearing including any experts and;

c. any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement by:

4:00pm on 24 March 2015

7. Body Corporate for Bay Breeze Village CTS 36205 must file in the Tribunal two (2) copies and give to Huixin Li and Shumei Wang t/as Good Life Services Trust one (1) copy of:

a. Body Corporate for Bay Breeze Village CTS 36205’s statement of evidence, which must be page numbered;

b. the statement from each witness to give evidence for Body Corporate for Bay Breeze Village CTS 36205 at the hearing including any experts and;

c. any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement by:

4:00pm on 21 April 2015

8. The application is listed for a Compulsory Conference in Brisbane at 1:30pm on 4 May 2015.

CATCHWORDS:

BODY CORPORATE – application for particulars and production of a document

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 28, s 62

APPEARANCES:

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

Mr Li and Ms Wang are appointed the Service Contractor under a Body Corporate Service Contractors Agreement.[1] They have sought to exercise a right under the agreement to seek reimbursement of legal costs incurred in the course of disputes that have arisen.
[1]Body Corporate Service Contractors Agreement dated 29 October 2007 and Deed of Assignment dated 3 September 2013. Commonly referred to as a Caretaking Agreement.
The Body Corporate filed a miscellaneous matters application on 16 October 2014 seeking a direction for further and better details of the claim including:
a) The details of what act/omission of the Body Corporate constitutes a default under the Caretaking Agreement enlivening any obligation on the Body Corporate under clause 15.5(a); and
b) For each default identified, details of what costs it is alleged were incurred and how those costs are calculated.
The Body Corporate contends without these details it is unable to properly prepare its response to the claim.
The Body Corporate also seeks[2] a direction requiring the production of a copy of the payment receipt for the Turner Freeman Statement No 193575 to show that the amount claimed by way of reimbursement has been paid.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 62(3).
Whether such directions should be made is to be considered in light of the tribunal’s objects to deal with matters in a just, economical, informal and quick manner.[3] The Tribunal is required to observe the rules of natural justice[4]. A party is entitled to know the case they are required to meet in the context of the Tribunal’s simpler and expedited procedures.
[3]Ibid s 3(b).
[4]Ibid s 28(3)(a).
In this Tribunal, the application and response documents are usually brief and the Tribunal relies upon statements of evidence supplemented in some cases by an oral hearing. This manner of conducting cases is consistent with the Tribunal’s objects.
The issues here include whether the Body Corporate is in default and whether the legal costs were reasonably incurred in connection with such default.
The Applicant’s Submissions[5] contends that the details of the conduct relied upon to constitute a default are sufficiently particularised in the Affidavit of Mr Li[6] at paragraphs 10(f), 10(o), 10(aa), 10(oo), 10(ww), 10(zz), 10(fff), 10(ppp), 10(rrr) and 10(www).
[5]Filed 7 November 2014.
[6]Filed 17 September 2014, sworn 11 September 2014. The complete copy with all annexures was filed 24 September 2014.
A copy of a Trust Account ledger from Turner Freeman Lawyers showing amounts paid was produced by Mr Li and Mrs Wang.[7] This is in the nature of the receipt sought to be produced. I therefore decline to make the order sought in respect of the receipt.
[7]Annexure A.
In relation to the details of the costs and their calculation, paragraphs 15 and 16 and annexure J to Mr Li’s affidavit provides some details. Annexure J consists of copies of tax invoices and contains an itemisation of work performed. The itemisation does not necessarily identify to which allegation of default each item of work relates.
In view of the Tribunal’s objects I am not satisfied that a direction for further particulars as to which items of work relate to which alleged default is required to allow the Body Corporate to file its Response to the claim.
It seems to me that this is more properly a matter of evidence and submissions. Mr Li and Mrs Wang are the applicants and bear the onus of establishing to the Tribunal’s satisfaction Body Corporate default and that the ‘legal costs were reasonably incurred in connection with such default’. This may necessitate establishing which costs were incurred in respect of particular allegations particularly if some defaults alleged are proven and others are not proven.
Having regard to the Tribunal’s objects and the details in the paragraphs of Mr Li’s affidavit which are specifically referenced earlier in these reasons I am not satisfied that a direction for further particulars are required as to the defaults alleged in order for the Body Corporate to file its Response.
Mr Li’s affidavit states that he has incurred legal expenses in the sum of $17,241.50 and that he seeks full reimbursement. The originating application specified an amount claimed and did not indicate ongoing costs were also claimed. If ongoing costs are sought then an amended application ought to be filed, which sets out the basis for the claim for ongoing costs, including which default(s) are relied upon. Given the Body Corporate has not filed its Response, I give leave to file an amended application.
I note that attached to Mr Li’s affidavit are various pieces of correspondence some of which are stated to be ‘without prejudice’ or ‘without prejudice save as to costs’. It is not clear to me that the Body Corporate has waived any privilege it has in the correspondence sent by its lawyers. By attaching the correspondence from their lawyers, Mr Li and Mrs Wang have waived their privilege. If the correspondence is properly without prejudice and both parties have not waived their privilege it is not appropriate for the Tribunal to consider it. In the circumstances, I have not read the correspondence sent by the Body Corporate’s lawyers stated to be ‘without prejudice save as to costs’ and am therefore unable to form a view as to whether that correspondence is properly without prejudice.
The following ‘without prejudice save as to costs’ correspondence attached to Mr Li’s affidavit should be placed in a sealed envelope on the file and marked “without prejudice correspondence not to be opened prior to final order without the consent of the body corporate unless by other earlier order”:
a) Annexure D, Active Lawyers letter dated 5 May 2014:
b) Part of Annexure E, Active Lawyers letter dated 5 May 2014; Active Lawyers one page letter dated 12 May 2014; Active Lawyers 17 page letter dated 12 May 2014; Active Lawyers 2 page letter dated 31 July 2014.
It is appropriate to make directions for the future conduct of the matter.