Mirvac Queensland Pty Ltd v Principal Body Corporate for the Ephraim Island CTS33951
[2014] QCAT 649
•10 December 2014
| CITATION: | Mirvac Queensland Pty Ltd & Anor v Principal Body Corporate for the Ephraim Island CTS33951 [2014] QCAT 649 |
| PARTIES: | Mirvac Queensland Pty Ltd Lewiac Land Pty Ltd (Applicants) |
| v | |
| Principal Body Corporate for the Ephraim Island CTS33951 (Respondent) |
| APPLICATION NUMBER: | OCL058-14 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Deane |
| DELIVERED ON: | 10 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to be joined to a proceeding is dismissed. |
| CATCHWORDS: | BODY CORPORATE – COMPLEX DISPUTE – JOINDER – whether parties’ interests are affected – whether discretion to join should be exercised – no articulated cause of action or indemnity sought Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 42 Uniform Civil Procedure Rules 1999 (Qld), r 194 Comfortable Homes v QBSA [2001] QBT 61 MGM Containers Pty Ltd v Wockner [2006] QCA 502 |
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).
REPRESENTATIVES:
| APPLICANT: | Mirvac Queensland Pty Ltd and Lewiac Land Pty Ltd represented by Clayton Utz |
| RESPONDENT: | Principal Body Corporate for the Ephraim Island CTS 33951 represented by Short Punch & Greatorix |
| PROPOSED PARTIES: | Larry Mark Lazarides Maree Therese Lazarides Colin John Gibb Tanya Kay Dalgleish Gavin James Harrington Carolyn Anne Wheeler Terry Stephen Moran Deborah Frances Moran Christina Louise Nash Bruce Savage Toni Savage represented by Larry Mark Lazarides |
REASONS FOR DECISION
A dispute has arisen under the Caretaking Agreement between Mirvac Queensland Pty Ltd and Lewiac Land Pty Ltd, the Caretaker, and the Principal Body Corporate as to the scope of services under the Caretaking Agreement, in particular whether the performance of landscaping services remain the Caretaker’s obligation,[1] the remuneration to be paid to the Caretaker and whether there are monies owing to or by the Caretaker.
[1]The Caretakers contend that there has been a variation by conduct and an agreement to exclude the provision of landscaping services.
A number of people who claim to be lot owners in various subsidiary bodies corporate at Ephraim Island seek to be joined as parties to the proceedings.[2] They have each consented in writing for Mr Lazarides to be their spokesman.[3] The proposed parties have not indicated whether they seek to be joined as an applicant or as a respondent.[4]
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 42.
[3]Practice Direction No 1 of 2009.
[4]Practice Direction No 8 of 2013.
They claim that their interests are or may be affected by the proceedings because:
a) the Principal Body Corporate pays fees under the Caretaking Agreement from fees levied on the subsidiary bodies corporate which in turn levy the lot owners so that lot owners will ultimately bear the financial consequences of the outcome of the proceedings.
b) the landscaping services affect the amenity of Ephraim Island as approximately 40% of the Island’s area comprises common property landscape and gardens.
c) the common property is owned by lot owners as tenants in common.[5]
d) the standard of landscaping services affects the value of the apartments.
e) they wish to argue that an alleged variation to the Caretaking Agreement by conduct is not binding upon the Principal Body Corporate because they are restricted matters within s 100 of the Body Corporate and Community Management Act 1997 (Qld) (BCCM Act) and s 42 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld).
[5]BCCM Act s 35.
The Principal Body Corporate does not oppose or support the joinder application. The Caretaker opposes the joinder application.
There is little evidence before the Tribunal that the proposed parties are lot owners. The representatives for the Principal Body Corporate acknowledge[6] that Mr Lazarides and most of the proposed parties are lot owners.[7] The representatives of the Caretaker do not raise this as an issue. For the purposes of this application, I am prepared to accept that each of the proposed parties are lot owners.
[6]Letter Short Punch & Greatorix to Tribunal dated 23 October 2014.
[7]Bruce and Toni Savage indicated their request to be joined on 9 October 2014 the day after the Application had been filed.
It is common ground that Ephraim Island is a layered community title scheme where each member of the Principal Body Corporate represents a different body corporate and that there are a large number of lot owners in the scheme.
The Tribunal may make an order joining a party if it considers the person should be bound by or have the benefit of the decision[8], the person’s interests may be affected[9] or for another reason it is desirable that the person be joined.[10]
[8]QCAT Act s 42(1)(a).
[9]Ibid s 42(1)(b).
[10]Ibid s 42(1)(c).
A joinder application involves two steps. The first step is to assess whether a person falls within the descriptions set out in s 42(1)(a) to (c). The proposed parties rely upon s 42(1)(b).
I accept that lot owners’ interests may be affected by the proceedings for the reasons set out in [3] (a) – (d) of these reasons.
The second step is to determine whether in all the circumstances the discretion conferred should be exercised.[11]
[11]Comfortable Homes v QBSA [2001] QBT 61; Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241.
The exercise of such discretion is similar to the exercise of the Court’s discretion to give leave to file a third party notice.[12] The Supreme Court[13] and the Court of Appeal[14] have considered that discretion and have described it as requiring a balancing exercise between the risk of multiple proceedings, increased costs and possible inconsistent findings if a party is not joined and the principle of a party not being delayed or inconvenienced by another party attempting to offset its liability.[15]
[12]Uniform Civil Procedure Rules 1999 (Qld), r 194.
[13]Villinger Group Ltd v Redmond [2009] QSC 60.
[14]MGM Containers Pty Ltd v Wockner [2006] QCA 502.
[15]Phonesivorabouth v Tops Services Pty Ltd (1992) 106 FLR 471.
The Court of Appeal[16] acknowledged that it is appropriate to consider:
a) the extent of the delay in applying for leave and whether a satisfactory explanation was provided;
b) whether the joinder would unduly complicate the hearing in view of the complexity of issues required to be determined and having regard to the additional length of the hearing and therefore the increased costs;
c) whether there would be further delay to the trial if the joinder were allowed;
d) whether the party seeking to join another could bring separate proceedings against that party and whether the issues to be determined between those parties are different to the issues in the primary dispute.
[16]MGM Containers Pty Ltd v Wockner [2006] QCA 502 at [20] and [28].
In exercising the discretion conferred by s 42 a matter to consider is the objects of the QCAT Act to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[17] Joining parties to proceedings has the potential to complicate issues and prolong proceedings.
[17]QCAT Act s 3.
The Appeal Tribunal has accepted that there must be a utility to the joinder.[18] There is no articulated cause of action or claim for indemnity by the proposed parties. This is a significant factor against the exercise of the discretion to join.
[18]Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 242.
The proposed parties wish to challenge the Caretaker’s claim against the Principal Body Corporate on a basis that is not specifically referenced by the Principal Body Corporate in its Response and counter-application. They claim that variation of the Caretaking Agreement is statutorily restricted and that they rather than the Principal Body Corporate are the appropriate parties to raise this point.
If the statutory restriction applies then a decision of the Committee is not a decision of the Principal Body Corporate. In those circumstances, the point would appear to be open to the Principal Body Corporate to raise, if it and its legal representatives thought it appropriate. There is no submission as to and no evidence before the Tribunal to establish that the members of the Committee of the Principal Body Corporate whose alleged conduct is relied upon are the same as the present Committee such that a conflict of interest might arise in seeking to not pursue what might be a potentially valid defence.
It is open to lot owners to make representations to the Principal Body Corporate as to possible defences and for the Principal Body Corporate to apply to amend its Response if it wishes to rely upon this point.
In this case there is no significant delay in bringing the joinder application. The proceedings are at a relatively early stage.
I consider that joining the proposed parties would further complicate the proceedings and would significantly lengthen the pre-hearing steps and the hearing and increase the cost of the proceedings even though the proposed parties have nominated a spokesman. Mr Lazarides would need to consult with 10 other lot owners in the preparation of evidence and submissions. This is likely to further delay the pre-hearing steps. This is a factor against the exercise of the Tribunal’s discretion.
The discretion to join a party requires a ‘balancing exercise’ of the advantages and disadvantages.[19]
[19]Just GI Pty Ltd v Pig Improvement Co Aust Pty Ltd [2001] QCA 48.
On balance, having regard to the above factors a number of which are not in favour of joinder and having regard to the Tribunal’s objects I decline to exercise the discretion.
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