Randall v Body Corporate for Runaway Cove Bayside
[2010] QCAT 485
•4 October 2010
| CITATION: | Randall v Body Corporate for Runaway Cove Bayside [2010] QCAT 485 | |
| PARTIES: | Mr Anthony Percy Randall | |
| v | ||
| Body Corporate for Runaway Cove Bayside CTS 25498 | ||
| APPLICATION NUMBER: | OCL067-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | Decision on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe |
| DELIVERED ON: | 4 October 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application is dismissed. |
| CATCHWORDS : | JURISDICTION – where Supreme Court order made in relation to levies and apportionment of expenses – where order provided for audit and access to documents – where levies issued and not paid – where applicant sought declaration as to the amount of levy payable – where applicant sought order for delivery of documents – whether a minor civil dispute – whether a complex dispute Queensland Civil and Administrative Tribunal Act 2009 s11, Schedule 3 Body Corporate and Community Management Act 1997 ss 133, 149B |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the
Queensland Civil and Administrative Tribunal Act 2009
REASONS FOR DECISION
The Application
Mr Randall has filed an application to resolve a complex dispute. He seeks a declaration that he does not owe the Body Corporate $9,159. He also seeks interim orders:
a)Preventing the Body Corporate from charging the $9,159 until it has supplied certain documentation to Mr Randall.
b)That the Body Corporate provide:
i) A copy of the easement budget for the year ended 31 March 2010.
ii) Detailed summaries of the actual expenditure on the easements for the years 2004 to 2010;
iii) Confirmation that the Body Corporate has recorded actual expenditure in the same format as the budgets. If they are different, Mr Randall wants an explanation as to why this is the case.
iv) Detailed general ledger statements in relation to actual expenditure.
v) Invoices and bank statements as contemplated by a Supreme Court order of 21 November 2008.
vi) Source documents with respect to the expenditure.
vii) A “substantiating explanation” as to what happens each year in the event of a difference between the budget and the actual expenditure.
viii)Copies of the easement budget working papers for the years 2004 to 2010.
Background
This dispute has a long and unfortunate history. Runaway Cove consists of 34 villas, 36 cottages and 20 freehold lots. The respondent Body Corporate is the principal body corporate. Mr Randall is a freehold lot owner.
The scheme includes right of way easements in favour of the freehold lots so that they can access various parts of Runaway Cove. The scheme provides that the freehold lot owners will pay a contribution towards the maintenance of the roadways within the common property.
In 2002, the residential lot owners’ contribution effectively increased by approximately $350. Mr Randall says that this was done without consultation with the freehold lot owners. Since 2002, Mr Randall has been trying to understand the basis for the charge. He is concerned that the charge may be unfair.
On 21 November 2008, Justice Douglas determined the appropriate method of calculating the amounts payable by the freehold lot owners and declared the proportion of the final easement budget that each freehold lot owner was liable to pay. His Honour further ordered:
a)The Body Corporate was to prepare easement budgets in such a manner as to allow the freehold lot owners to identify those amounts that were, or were not, specifically attributable to a particular easement.
b)Upon request, the Body Corporate was to provide a copy of any audit report, receipt, account, invoice or other document held by the Body Corporate and directly relevant to the calculation of the easement budget. The person requesting the information was to pay the Body Corporate’s reasonable costs of complying with any such request.
c)The methodology set out in His Honour’s order was to be applied, the Body Corporate was to issue fresh invoices and the lot owners were to pay the fresh invoices by 24 December 2008.
The issue
Mr Randall says that he has not been provided with material in compliance with Justice Douglas’ order.
The Body Corporate says:
a)Mr Randall has not requested information in accordance with the Supreme Court order.
b)The current request for documents exceeds the ambit of materials contemplated by His Honour.
c)The application before the tribunal is not the correct procedure to obtain the information.
The threshold issue is whether the tribunal has jurisdiction to hear the dispute. There are only two ways that this tribunal can have jurisdiction:
a)Pursuant to section 11 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), to hear and decide minor civil disputes.
b)If jurisdiction is conferred by an enabling Act. The relevant enabling Act is the Body Corporate and Community Management Act 1997 (“BCCM”)
Is this a minor civil dispute?
Mr Randall argues that the dispute is a claim arising out of a contract between a consumer and trader and that, because the issue is whether amounts charged to him are for the upkeep of the easement, the proceeding is a dispute about a debt, and therefore within the jurisdiction of the tribunal.
10. “Trader” is defined in Schedule 3 of the QCAT Act as a person who in trade or commerce carries on a business of supplying goods or providing services. I am satisfied that the Body Corporate is a trader.
11. The types of consumer/trader dispute that are within the meaning of “minor civil dispute” are listed in Schedule 3:
a)For payment of money;
b)For relief from payment of money;
c)For performance of work …to rectify a defect in goods supplied or services provided;
d)For the return of goods;
e)For a combination of any of the above.
12. This is not a claim for the payment of money and, because the Body Corporate has not sought to recover any money from Mr Randall, it cannot be construed as a claim for relief from payment of money. Mr Randall complains about this, saying it is unfair if the Body Corporate can access the jurisdiction of the tribunal if it wants to pursue a claim for the unpaid contributions but he can’t access the tribunal’s jurisdiction to dispute the legitimacy of the claim. Tribunals should not determine contingent disputes. Mr Randall can present these arguments before the tribunal if, or when, the Body Corporate brings a minor civil proceeding for the payment of money.
13. The principle against the tribunal determining contingent disputes applies equally to the suggestion that this is a claim for the performance of work … to rectify a defect in services provided. Mr Randall doesn’t know whether there is a defect in the services provided by the Body Corporate and he has, for whatever reason, not availed himself of the disclosure mechanism set out in the Supreme Court order. Mr Randall’s request that the tribunal order the Body Corporate to provide documents is an unacceptable stretch of the concept of “a claim for the performance of work…”
14. Mr Randall’s claim is not a minor civil dispute.
Does BCCM confer jurisdiction?
15. Mr Randall says that this is a complex dispute under sections 133 or 149B of BCCM.
16. Section 133 of BCCM appears in Division 7, which deals with reviews of terms of service contracts. The division sets out the mechanism for a review and the purpose – to determine whether the terms of the service contract are fair and reasonable. The review is carried out by an independent party who provides a written report. The body corporate is them required to make a decision about the outcome of the report by ordinary resolution. A dispute about the review can be referred to this tribunal.
17. There has been no independent review of the service contract as contemplated by Division 7 of BCCM. The dispute is not about the terms of the service contract but the budget item prepared by the Body Corporate committee for the provision of those services.
18. Section 149B of BCCM, relevantly, applies to a dispute about a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or caretaking service contractor. Again, this is not a dispute about the services to be supplied but the budget item prepared by the Body Corporate committee for the provision of those services.
Other matters
19. Mr Randall points to the fact that the Body Corporate has commenced proceedings in the tribunal against other lot owners for the recovery of unpaid levies. He says that the tribunal cannot be excluded for one party when the other party cannot avail itself of the jurisdiction. He points to the Explanatory Notes to the QCAT Act which have been incorporated into the Act and which require the tribunal to:
a)Deal with matters in a way that is accessible, fair, just, economical, informal and quick (section 3(a));
b)Require proceedings to be conducted in a manner that is responsive, informal, cost effective to parties and as expeditiously as is consistent with achieving justice (section 4(c));
c)Inform itself as it sees fit, to determine it own procedure and to determine matters on the papers where appropriate.
The tribunal cannot do any of those things – all of which are matters of procedure - unless it has jurisdiction over the dispute. Whether or not it has jurisdiction can only be determined by considering the appropriate statutory framework.
20. Mr Randall says that the tribunal is not being used to avoid the Supreme Court order because it is being asked to determine whether the charges calculated on the invoices issued to date are in accordance with the Order. The provision of documents sought by Mr Randall, really, is a question of whether there has been compliance with the Supreme Court Order. That is a matter that should be determined by the Court and not this tribunal.
Conclusion
21. Mr Randall’s claim is not a minor civil dispute within the meaning of the QCAT Act, nor is it a complex dispute within the meaning of BCCM. Therefore, the tribunal has no jurisdiction. The application should be dismissed.
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