Rita Commisso Enterprises Pty Ltd v The Body Corporate for Acacia Lodge Hostel
[2013] QCAT 342
•4 July 2013
| CITATION: | Rita Commisso Enterprises Pty Ltd v The Body Corporate for Acacia Lodge Hostel [2013] QCAT 342 |
| PARTIES: | Rita Commisso Enterprises Pty Ltd (Applicant) |
| V | |
| The Body Corporate for Acacia Lodge Hostel CTS 25755 (Respondent) |
| APPLICATION NUMBER: | OCL015-13 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 4 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Body Corporate for Acacia Lodge Hostel CTS 25755’ s miscellaneous matters application to dismiss this application is dismissed. |
| CATCHWORDS: | BODY CORPORATE AND COMMUNITY MANAGEMENT – application to dismiss for want of jurisdiction - dispute as to remuneration payable to caretaker. Body Corporate and Community Management Act 1997 ss 94, 133, 149B, Schedule 6 SCV Group Limited v Body Corporate for Parkview Gardens CTS 24525 [2011] QCAT 299. |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The Body Corporate has filed a preliminary miscellaneous matters application claiming that the Tribunal has no jurisdiction and ought to dismiss the application brought by Rita Commisso Enterprises[1].
[1] Queensland Civil and Administrative Tribunal Act 2009 s 47(2)(a).
The Tribunal has power to dismiss a proceeding if the Tribunal considers it is frivolous, vexatious or misconceived[2], lacking in substance[3] or otherwise an abuse of process[4].
[2] Ibid s 47(1)(a) .
[3] Ibid s 47(1)(b).
[4] Ibid s 47(1)(c).
It is a very serious matter for the Tribunal to dismiss an application for determination of a dispute, without allowing a hearing of that application to take place. A case must be clearly made out to support a dismissal.
This Tribunal :
a)is designed so that parties may represent themselves[5];
b)is not bound by the rules of evidence; [6]
c)must act with as little formality and technicality and with as much speed as the matter permits[7];
d)does not require parties to set out particulars of their claims in the level of detail that is expected in courts in what are known as pleadings.
[5] Ibid s 43(1).
[6] Ibid s 28(3)(b).
[7] Ibid s 28(3)(d).
The manner in which the Caretaker has set out its claim may not be what the Body Corporate would expect from an applicant with legal assistance or in court pleadings but the Caretaker acted on its own behalf in commencing the application and pleadings are not part of this Tribunal’s proceedings.
Rita Commisso Enterprises has been the resident manager or caretaking service contractor and letting agent at Acacia Lodge since 2002. The Caretaker claims a dispute with the Body Corporate has arisen in relation to the remuneration payable to it under the Resident Manager’s Agreement.
The Resident Manager’s Agreement provided that the Caretaker enjoyed exclusive occupation of certain common areas of the complex, including a kitchen and laundry[8]. The Resident Manager’s Agreement requires the Caretaker, amongst other things, to keep the common areas ‘in good order and a clean and neat condition’[9]. Schedule A sets the first year’s remuneration and provides that the remuneration is to be reviewed annually and unless otherwise agreed by the parties the remuneration is to be increased by CPI.
[8] Clause 5.
[9] Clause 3.
In 2010 a specialist adjudicator determined that the exclusive occupation provision was of no effect for non-compliance with section 89 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008. It appears that both parties have affirmed the contract and acted as if the exclusive occupation provision has been severed from the balance of the contract. The elimination of the exclusive occupation provision has changed the extent of the contract but not it seems the nature of the contract.[10]
[10] Cheshire and Fifoot’s Law of Contract, 9th Australian Edition, p946.
Rita Commisso Enterprises contends that:
a)the tenants in the complex now use these areas;
b)additional work is required to clean them because of the increased use by others;
c)additional remuneration is warranted to compensate for the additional work.
A motion to increase the remuneration was defeated at an extraordinary meeting of the Body Corporate on 17 February 2013. Subsequently Rita Commisso Enterprises applied to the Tribunal seeking an increase in remuneration.
The Body Corporate’s submissions contend that it is unclear on what basis the application has been brought. It submits that the:
a)first potential basis is as a dispute arising out of a review of terms of a service contract[11];
b)second potential basis is as a dispute about a claimed or anticipated contractual matter[12];
c)third potential basis is that CPI increases have not been applied.
[11] Body Corporate and Community Management Act 1997 (BCCM Act) s 133.
[12] Ibid s 149B.
Page 4 of the application filed by Rita Commisso Enterprises clearly indicates by a tick that the application relates to a dispute about a claimed or anticipated contractual matter under section 149B of the Body Corporate and Community Management Act 1997 (BCCM Act).
If the application related to a dispute about a review of terms under section 133 of the BCCM Act Rita Commisso Enterprises could have indicated that with a tick. It did not. The application clearly contends that CPI increases have been applied. It is not apparent to me why the Body Corporate contends that these may be bases for the application other than dealing with them out of an “abundance of caution”.
The Body Corporate contends that there is no real contractual dispute identified because the Body Corporate has not requested the Caretaker to carry out any additional services to those required under the Resident Manager’s Agreement and there is no dispute as to the remuneration to which the Caretaker is entitled under that agreement. In summary it is asserted the Body Corporate and the Caretaker have merely been unable to agree that a different level of remuneration is to apply, so that there is no arguable dispute and the Tribunal therefore has no jurisdiction and the application ought to be dismissed.
In order for the application to dismiss to succeed the Tribunal is required to find that there is no arguable case or it is “doomed to fail”. Rita Commisso Enterprises contends that at the time it assumed the obligations under the Resident Manager’s Agreement it was not contemplated by either party that the Caretaker would be required to undertake the extent of cleaning required as a consequence of the loss of the right of exclusive occupation and that in refusing to grant an increase the Body Corporate has acted unreasonably contrary to section 94(2) of the BCCM Act. The Body Corporate denies that section 94 of the BCCM Act is applicable.
The Body Corporate claims there is no evidence to support the Caretaker’s claim that additional work has been required. This is hardly surprising given that directions have not yet been given for the filing of evidence because the Body Corporate foreshadowed its preliminary strike out application based on a lack of jurisdiction. This is not a determination on the merits. It is to establish whether or not the Tribunal has jurisdiction or put another way whether the Caretaker has an arguable case. If the dismissal application is unsuccessful it will be necessary for the Caretaker to prove its case. Whether it is able to succeed on its case is a different question to the one under consideration in this application.
I am not satisfied that Rita Commisso Enterprises’ application is clearly beyond the jurisdiction of this Tribunal.
The Caretaker claims that the extent of the services required have increased beyond those contemplated by the parties and therefore the reasonable remuneration for those services ought to also increase. The nature of this claim is akin to a quantum meruit claim.
Section 149B of the BCCM Act confers jurisdiction on the Tribunal in relation to disputes about a claimed or anticipated contractual matter. ‘Contractual matter’ is defined to mean a contravention of the terms of the engagement or authorisation or the exercise of rights or powers or the performance of duties under the terms of the engagement.[13]
[13] Schedule 6.
The Tribunal has previously found that it has jurisdiction to hear claims in the nature of quantum meruit and that such claims are a claim for payment for carrying out a duty set out in the caretaking agreements.[14]
[14] SCV Group Limited v Body Corporate for Parkview Gardens CTS 24525 [2011] QCAT 299.
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