Thorneton Avenue Pty Ltd v Body Corporate for the Avenues
[2013] QCAT 656
| CITATION: | Thorneton Avenue Pty Ltd v Body Corporate for the Avenues [2013] QCAT 656 |
| PARTIES: | Thorneton Avenue Pty Ltd (Applicant) |
| v | |
| Body Corporate for the Avenues CTS 19609 (Respondent) |
| APPLICATION NUMBER: | OCL155-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Forbes, Member |
| DELIVERED ON: | 17 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The parties are to proceed as directed on 1 October 2013, in the light of reasons given on 16 October 2013. |
| CATCHWORDS: | OTHER CIVIL DISPUTE – community home unit complex - remuneration of caretaker – order for appointment of valuer by Real Estate Institute of Queensland – valuer appointed by REIQ – valuation delivered by valuer – no agreement on consent orders – directions as to submissions on final orders - reasons sought for directions |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
By application filed on 10 October 2013 the applicant seeks reasons for directions issued on 1 October 2013.
This matter has a long history in the Tribunal. It was commenced on 1 October 2010. The substantive hearing took place in April and May 2012, and after extensions of time for submissions, a decision was given in January 2013.
It was then necessary, in terms of the subject caretaking contract, to appoint a valuer to determine a market remuneration for the caretaker in the period 5 April 2009 to 4 April 2010.
Absent an agreed appointment of a valuer, Mr D R Linkhorn was appointed by the chief executive of the Real Estate Institute of Queensland.
That appointment was challenged by the applicant, but was confirmed on 18 April 2013.
Mr Linkhorn delivered his valuation on 17 June 2013, determining a market remuneration for the period concerned as $63,440.10 (excluding GST) together with a caretaker’s office equipment allowance of $1,325.00 per annum.
It then remained to apply the decision of 15 January 2013, coupled with the said valuation, to the transactions of the parties in the period 5 April 2009 to 4 April 2010, to determine interest on any amounts payable or repayable in the light of the valuation, interest thereon, and applications for costs by each party.
Each party has indicated – and there is no reason to doubt the assurances – that it is anxious to finalise this matter, and to proceed normally with their business relationship. But unfortunately, efforts to arrive at consent orders notwithstanding, no such agreement has proved possible.
In the circumstances it is desirable that each party make submissions on orders to finalise the matter, in consultation with their legal advisers and accountants.
It appears that, in consequence of the said valuation, the remuneration actually paid for the period concerned was either excessive, or insufficient. It is now appropriate that the parties, in consultation with their respective accountants, should endeavour to arrive at an agreed amount payable by the respondent to the applicant, or repayable by the applicant to the respondent (as the case may be) and any interest payable thereon.
It is also appropriate that costs be agreed, or, in default of agreement, that bills be prepared in forms suitable for submission to an approved costs assessor.
In short, these are the desiderata which the directions of 1 October 2013 are designed to achieve. Paragraph 1 of those directions simply records the determination of the valuer. Paragraph 2 refers to the questions that I have endeavoured to explain above, and paragraph 2(e) leaves room for other relevant matters, if any.
It is obviously desirable that these proceedings be brought to an early conclusion, without unnecessary contention, lest substantial additional costs are added to what must already be a heavy costs burden weighing on each party.
The deadlines set for submissions, namely 25 October 2013 and 8 November 2013, were set before it was known that reasons for the current directions would be required. They may now require revision – preferably by an agreement of the parties, notified to, and approved by the Tribunal.
ORDER
The parties are to proceed as directed on 1 October 2013, in the light of reasons given on 16 October 2013.
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