Randall v Body Corporate for Runaway Cove Bayside
[2011] QCATA 10
•17 January 2011
| CITATION: | Randall v Body Corporate for Runaway Cove Bayside CTS 25498 [2011] QCATA 10 |
| PARTIES: | Anthony Percy Randall |
| v | |
| Body Corporate for Runaway Cove Bayside CTS 25498 |
| APPEAL NUMBER: | APL287-10 |
| MATTER TYPE: | Minor civil disputes |
| HEARING DATE: | Determined on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, A/President Kenneth Barlow, Member |
| DELIVERED ON: | 17 January 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Application for leave to appeal granted. 2. Appeal dismissed. |
| CATCHWORDS : | Queensland Civil and Administrative Tribunal – Jurisdiction – Whether proceeding a minor civil dispute Appeal – Leave to appeal – Whether leave should be granted – whether point raised on appeal previously considered – whether claim for relief from payment of money – whether Body Corporate a trader Queensland Civil and Administrative Tribunal – Jurisdiction and powers – Whether power to make a declaration where no other relief sought |
APPEARANCES and REPRESENTATION (if any):
| Decision heard on the papers in the absence of the parties. |
REASONS FOR DECISION
Mr Barlow, Member
Introduction
This is an application for leave to appeal and, if leave is granted, an appeal from a decision of the tribunal constituted by a single member (Ms Peta Stilgoe) on 4 October 2010[1]. Leave to appeal is required because, at least for the purposes of the appeal, it appears to be accepted that the decision of Ms Stilgoe was in a proceeding for a minor civil dispute. An appeal from such a decision may only be made if the appellant has obtained the appeal tribunal’s leave to appeal: Queensland Civil & Administrative Tribunal Act 2009 (“QCAT Act”), s.142(3)(a)(i).
[1]Randall v Body Corporate for Runaway Cove Bayside CTS 25498 [2010] QCAT 485.
The applicant is the owner of one of 20 freehold lots forming part of a residential property scheme known as Runaway Cove. The respondent is the principal body corporate. The applicant and his fellow freehold lot owners are not members of the body corporate, nor of any body corporate under the scheme. Instead, the scheme provides right of way easements in favour of the freehold lots so that they can have access to various parts of Runaway Cove that are, in effect, common property, such as roads, a pontoon, and recreational facilities.
The easements relevantly provided as follows:[2]
“7.The Grantee [the respondent] shall pay to the Grantor [the applicant] or its successor in title such sum or sums as may be specified by the Grantor or its successor in title at such times as may be specified (“the Easement Budget”) for the upkeep, maintenance and servicing of the Easement and any other easements granted over the servient tenement or any part thereof save and except for any sums paid by the Grantee of Easement A SP 101588”.
[2]The easements were not in evidence before Ms Stilgoe. However, a copy of one was supplied as part of the submissions of the respondent to this application.
For a number of years (it appears at least 10) the respondent has provided invoices to the applicant, on a 4‑monthly or quarterly basis, for amounts claimed to be due pursuant to clause 7 of the easements in respect of the respondent’s lot. The respondent has refused to pay those invoices. As at 31 March 2010, the total of unpaid invoices amounted to $9,159.00.
In Supreme Court proceedings commenced in 2006, Justice Douglas declared (it appears with the concurrence of all parties, including the applicant in this proceeding) the proper construction of clause 7 of each of the easements and set out the appropriate method of calculation of the amounts to be included in the Easement Budgets and to be payable by, among others, the applicant. His Honour also ordered by consent that to the effect that, on request by the grantee of an easement, the grantor should provide, within a reasonable period of time, a copy of any document held by it and directly relevant to the calculation of the Easement Budgets. In evidence before Ms Stilgoe, the applicant demonstrated that he had sought access to documents, which arguably exceeded but nevertheless included documents of the categories the subjects of the order and the respondent had failed to provide them.
In the application below, the application sought only one final order, namely “a declaration that the applicant does not owe the respondent the sum of $9,159”. He also sought a number of “interim orders”, including for the provision of certain documents that, in general, fell within the scope of the documents sought by his letter to the respondent and, at least to some extent, within the categories of documents described in the order of the Supreme Court to which I have referred.
The respondent disputed the jurisdiction of the tribunal to hear and determine the application. Ms Stilgoe dismissed the application on the ground that the tribunal did not have jurisdiction in respect of the matter. The applicant seeks leave to appeal and (if leave is granted) appeals from that decision.
The submissions and decision before the member
The applicant submitted, before Ms Stilgoe, that the tribunal had jurisdiction to hear the dispute on one or both of two bases:
(a)pursuant to s.11 of the QCAT Act, to hear and decide minor civil disputes;
(b)pursuant to ss.133 or 149B of the Body Corporate and Community Management Act 1997 (“BCCM Act”), as a complex dispute under that Act.
The applicant does not pursue the latter ground in his application for leave to appeal.
In essence, the basis upon which the applicant claimed that his application was a minor civil dispute was that it was a claim arising out of a contract between a consumer and a trader for the relief from payment of money, or for the performance of work to rectify a defect in services provided. I understood his contention to be that the respondent claimed money pursuant to its invoices, a claim from which the applicant sought to be relieved, because the amount claimed was not payable, as it had not been calculated in accordance with the construction of clause 7 of the easements determined by the order of the Supreme Court.
Ms Stilgoe found that the matter was not a minor civil dispute. She held that the respondent is a “trader” as defined in the dictionary of the QCAT Act, but that this was not a claim by the applicant for payment of money and, because the respondent had not sought to recover any money from the applicant, it cannot be construed as a claim for relief from payment of money. She said that the claim made is simply a contingent dispute, contingent upon the respondent bringing proceedings to enforce payment of the amounts claimed in its invoices. If the respondent brought such an action, the applicant could raise the matters it wishes to raise by way of defence. She said it was not a dispute in relation to a defect in services provided by the body corporate because Mr Randall cannot point to any defect in services.
Grounds of appeal
In the application for leave to appeal, the only issue is whether the claim is a “minor civil dispute” as that term is defined in the dictionary to the QCAT Act. The applicant maintains that it is such a dispute because “the dispute relates to a combination of a payment of money, relief from payment of money, performance of work ... to rectify a defect in services provided and for the return of goods” and “the Appellant [sic] seeks relief from having to pay the amount of the invoice rendered for amounts charged for the upkeep, maintenance and service of the easements.”[3]
[3] As set out in the application for leave to appeal.
Discussion & conclusions
I agree with Ms Stilgoe that the claim before the tribunal is not a “minor civil dispute”. However, with respect, I do not agree with all of her reasons for that conclusion.
Not a claim for a debt
The proceeding in the tribunal is not a claim to recover a debt or liquidated demand for money. The applicant does not claim any money from the respondent in the proceeding. Nor does the respondent claim any money from the applicant in the proceeding. The applicant simply claims a declaration that he does not owe to the respondent the amount claimed by the respondent in its invoices. Therefore, it is not a minor civil dispute within the purview of paragraph 1(a) of the definition of that term.
Not a claim for relief
Nor do I consider that it is a claim for relief from payment of money. The applicant wishes to contend that he does not owe the money claimed by the respondent in its invoices. However, that is a contention that there is no money due in the sum claimed. It is not a claim for relief, on some equitable or statutory ground, from a legal obligation (that is, an actual obligation) to pay money. To my mind, that is the sort of claim that would be encompassed by a claim “for relief from payment of money” in paragraph 1(b)(i) of the definition.[4]
[4]It is akin, for example, to a claim for relief from forfeiture of leasehold property under s.124 of the Property Law Act 1974.
Respondent not a trader
For it otherwise to be a minor civil dispute under paragraph 1(b) of the definition, the claim must, relevantly, be “a claim arising out of a contract between a consumer and trader” for the types of relief specified in subparagraphs (i) to (v).
The first issue, therefore, is whether the respondent is a “trader”, as that term is respectively defined in the QCAT Act. Ms Stilgoe found that it is.
“Trader” is relevantly defined as meaning “a person who in trade or commerce carries on a business of providing services, or regularly holds itself out as ready to provide services of a similar nature”. Ms Stilgoe did not give any reasons for being satisfied that the respondent is a trader. However, it appears from paragraph 10 of her reasons that she considered that it was a person who in trade or commerce carries on the business of providing services. The relevant services were presumably the upkeep, maintenance and servicing of the easements.
In its submissions on the application for leave to appeal, the respondent said as follows:
“14.... although the learned member classified the respondent as a ‘trader’ within the meaning of Schedule 3 of the Act, that is unlikely to be the case. The maintenance of an easement could not be considered as an activity of trade or commerce. It is an obligation arising from the grant of easement. As such, it is a covenant attached to the land. The appellant’s right to maintenance of the easements in return for payment of the budgeted amounts is proprietary, not contractual.
15.Further, the respondents [sic] did not carry on a business of maintaining easements; they [sic] were obliged to do so as an incident of the covenants under the relevant easements.”
In my opinion, it would go too far, and it is unnecessary to decide for the purposes of this application, to hold that the maintenance of an easement could never be considered an activity in trade or commerce. There may well be circumstances in which an easement is granted and the rights and obligations of the parties thereto arise in trade or commerce, even though they are also proprietary rights.
Nevertheless, I do not consider that the respondent is acting in trade or commerce in this case.
A body corporate such as the respondent is a creature of statute that is created upon the registration of a community titles scheme under the BCCM Act. The Corporations Act does not apply to it.[5] The functions of a body corporate are to administer common property and body corporate assets for the benefit of the owners of lots included in the scheme, to enforce the community management statement and to carry out other functions given to it under the Act and the community management statement.[6] A body corporate is expressly prohibited from carrying on a business, although it may engage in business activities to the extent necessary for properly carrying out its functions.[7]
[5]BCCM Act, ss 30, 32.
[6]BCCM Act, s.94(1).
[7]BCCM Act, s.96.
There was no evidence that the respondent carried out any business activities or, in breach of s.96, carried on a business. Nor, in my opinion, does it supply “services” to the owners of the freehold lots. It simply carries out its obligations under the easements, to allow the grantees access to the easements. In maintaining and servicing the easements, it is carrying out its statutory functions with respect to the scheme land that is burdened by the easements. Under the easements it is entitled to recover, from the grantees of the easements, part of the cost of undertaking those tasks.
Therefore, the respondent does not fall within the first limb of the definition of “trader”, namely a person who in trade or commerce carries on a business of providing services.
Nor is there any evidence that it holds itself out regularly as ready to supply services of a similar nature (which I take to mean supplying services in trade or commerce). If (contrary to my opinion) it supplies services to the applicant and the owners of other freehold lots, they are simply the services which it is required, pursuant to the easements, to supply: namely, the upkeep, maintenance and servicing of the easements. It is not holding itself out as ready to supply them in trade or commerce.
Therefore, I consider that the respondent is not a “trader”. On that basis alone, this is not a minor civil dispute.
No power to make declaration
Even if I am wrong and the respondent were a “trader”, I consider that the tribunal does not have the power to make a declaration of the type sought in the application.
The only relevant source of power of the tribunal to make a declaration is s.60 of the QCAT Act. The tribunal does have power to make declarations in certain circumstances pursuant to any enabling Acts, but no such express power under an enabling Act has been pointed to in this case.
Pursuant to s.60, the tribunal may make a declaration “about a matter in a proceeding” either “instead of making an order it could make about the matter” or “in addition to an order it could make about the matter”. I also note that such a declaration may only be made by a judicial member of the tribunal: subs.60(5).
“Matter” is not defined in the Act, but a matter must be “in a proceeding”. There must, therefore, be a valid “proceeding” on foot: that is, one within the tribunal’s jurisdiction. “Proceeding” is defined as meaning “a proceeding before the tribunal”.
As I have already held, this application is not a minor civil dispute. It is therefore not a proceeding within the tribunal’s jurisdiction and therefore, in the absence of such proceeding, the tribunal does not have power to make a declaration. It does not have jurisdiction to make another order and, unless it has jurisdiction to make an order, it cannot make a declaration.
But even if the proceeding were a minor civil dispute, the applicant does not seek any order other than a declaration. The tribunal does not have power simply to make a declaration, not ancillary to, or in lieu of, another order which it could make. That is, it does not have a power similar to that of the Supreme Court that is confirmed by s.128 of the Supreme Court Act 1995. In the absence of an express power to entertain a proceeding simply for the purposes of giving a declaration, it does not have the power to grant and make a declaration unless such power is expressly given to it by an enabling act. As I have said, no such power is relied upon here.
The fact that the applicant also seeks “interim orders” is irrelevant to this issue. Those orders are of an interlocutory nature. If a properly constituted proceeding were on foot, the tribunal would have power to consider whether or not to make such orders for the purposes of the proceeding. But the fact that the applicant wishes to seek such orders cannot affect the question whether the proceeding is properly constituted having regard to the final relief that the applicant seeks.
I should add that I do not agree, with respect, with Ms Stilgoe’s categorisation of this dispute as a “contingent dispute” on the basis that there is no claim for money being made by the respondent. The respondent has clearly claimed money from the applicant by issuing invoices, although to date it has not sought to enforce its claim in a court or tribunal of competent jurisdiction. The applicant denies that he has an obligation to pay the amounts claimed. I understand the basis of his denial to be that the amounts have not been calculated in accordance with the construction of clause 7 of the easements that has been declared by the Supreme Court. In my opinion, there is an existing dispute which could be determined by way of declaration by a court or tribunal with power to make declarations in a proceeding seeking solely such relief. As I have found, this tribunal does not have that power. The Supreme Court does. Also, in my opinion, the District Court would have jurisdiction to make the declaration sought, under s.68(1)(b)(xiii) and s.69(2) of the District Court of Queensland Act 1967.
Other submissions by the applicant
The applicant submits to the effect that it is unfair that he cannot have this tribunal determine whether, and to what extent, he is indebted to the respondent unless the respondent commences a recovery action against him. Therefore, he contends, his claim must fall within the definition of “minor civil dispute” and be capable of determination by the tribunal on his application having regard to the objects of the ACAT Act. However, those objects do not affect the tribunal’s jurisdiction.
It is true that the respondent could commence proceedings in this tribunal to recover the amount of the debt which it claims from the applicant. Such a claim would be to recover a debt or liquidated demand of money of up to the prescribed amount and would therefore fall within paragraph 1(a) of the definition of “minor civil dispute”. If it were to do so, then the issues which the applicant now seeks to raise could be litigated in this tribunal, should the applicant raise them in its defence of the proceeding. However, unless and until the respondent commences such a proceeding, this tribunal does not have jurisdiction to determine the issues which the applicant seeks to raise.
Decision – leave to appeal
There has been no decision cited to me, nor of which I am aware, in which the issues the subject of this application have been considered by this tribunal or other courts. In my opinion, they are of general public importance, as they assist in the construction of the QCAT Act, which is a relatively new piece of legislation. A decision of this tribunal on the issues raised would be to the public advantage. Furthermore, as I have said, I consider that the member was wrong in holding that the respondent is a “trader”.
In these circumstances, I consider that it is appropriate to grant the applicant leave to appeal from the decision below[8].
[8]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389, McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, at 578, 580
Decision – appeal
However, for the reasons discussed above, the appeal should be dismissed.
Judge Kingham, Acting President
I have the advantage of having read the reasons of Mr Barlow, with which I agree.
Leave to appeal is granted and the appeal is dismissed.
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