Wadiwel v Algester Gardens Body Corporate
[2011] QCAT 49
•15 February 2011
| CITATION: | Wadiwel v Algester Gardens Body Corporate [2011] QCAT 49 | |
| PARTIES: | Mr Krish Wadiwel | |
| v | ||
| Algester Gardens Body Corporate | ||
| APPLICATION NUMBER: | OCL013-09 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 7 October 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Bridget Cullen Mandikos, Member |
| DELIVERED ON: | 15 February 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] The Application in Matter OCL013-09 is dismissed. [2] The parties are to bear their own costs of and incidental to the matter. |
| CATCHWORDS : | Caretaking/Letting Agreements – Validity of Notice to Extend or Renew – determination by QCAT that Agreements had expired. Body Corporate and Community Management Act 1997 (Qld), section 149B; Schedule 6 Seed v Body Corporate For Renaissance Golden Beach CTS 31880 [2008] QCCTBCCM 17 (26 August 2008) |
APPEARANCES and REPRESENTATION (if any):
The parties were self-represented.
REASONS FOR DECISION
The Respondent, Algester Gardens (CTS 23859) (the “Body Corporate”), is a 48 lot scheme registered on a Group Title Plan, operating under the Body Corporate and Community Management (Standard Module) Regulation 1997. The Applicant, Mr Krish Wadiwel (“Mr Wadiwel”), together with his wife, Vencencia Wadiwel, purchased the “management rights” (consisting of a Caretaking Agreement and Letting Agreement) to the complex in or around November 2003. The rights were assigned to Mr Wadiwel by a Deed of Assignment stamped 11 December 2003, following payment of stamp duty on the sum of $105,000.00.
In the Deed of Assignment, the Body Corporate acknowledged and agreed that:
6.1 (c)(ii)The Agreements include the following option for renewal of the Agreements –
§ 5 years commencing on July 7, 2009 and ending on July 6, 2014.
On 5 April 2009, Mr Wadiwel purported to extend the Deed of Engagement (conveying the rights held under the Caretaking Agreement) and the Deed of Appointment (conveying the rights held under the Letting Agreement), by email.
The Application initially sought a range of relief that fell outside of QCAT’s jurisdiction. Following a series of Directions Hearings[1], the issues in contention were reduced to the following:
§Whether the notice to extend or renew the Caretaking and Letting Agreements given by Mr Wadiwel to the Body Corporate on 5 April 2009 was given within the time limited for the giving of such a notice and in any form required for the giving of such notice;
§Whether on 5 April 2009 or 6 July 2009 there was an outstanding breach of the Caretaking and Letting Agreements by Mr Wadiwel entitling the Body Corporate to terminate the Caretaking and Letting Agreements; and
§Whether Mr Wadiwel acquiesced with the Body Corporate’s position that the Caretaking and Letting Agreements had expired.
[1]Decision of Member Bradley, dated 25 March 2010; Decision of Senior Member O’Callaghan dated 20 August 2010.
Although Mr and Mrs Wadiwel purchased the management rights together, this Application has been commenced by Mr Wadiwel only.
Was the notice to renew valid?
The Body Corporate alleges that Mr Wadiwel’s purported notice to extend the Caretaking and Letting Agreements was served out of time, and therefore invalid.
Specifically, the Body Corporate argues that at the time Mr Wadiwel entered into the Deed of Engagement (Caretaking Agreement) and Deed of Appointment (Letting Agreement) he adopted “the terms and conditions of the Caretaking [and Letting] Agreement[s] as varied under this Deed,” and that while some terms in the Caretaking and Letting Agreements were amended, the “Termination Date” in both Agreements was not amended. The Caretaking and Letting Agreements both define the term “Termination Date” as “July 6, 2004”, at Clause 1.1(s) of the respective agreements.
Clause 5 of the Deed of Engagement (Caretaking Agreement) provides that:
5. OPTION
5.1The terms of the option or options to extend or renew this Engagement or the term of it for a Further Term pursuant to clause 3.2 of the Caretaking Agreement will be as follows:-
5 years commencing on July 7, 2009 and ending on July 6, 2014.
Clause 2 of the Deed of Appointment (Letting Agreement) contains an analogous provision, also reflecting an end date of July 6, 2014. The Deed of Engagement and Deed of Appointment did not otherwise amend the clauses[2] of the Caretaking and Letting Agreements that relate to extending or renewing for a further term.
[2]Clause 3.2 of the Caretaking Agreement and Clause 3.2 of the Letting Agreement relate to extension and renewal.
[10] Clause 3.2 of the Caretaking Agreement provides that:
“If there is not, at the time the Caretaker gives notice under this Clause nor at the Termination Date, an outstanding breach of this Agreement by the Caretaker entitling the Body Corporate to terminate it, the Caretaker may by giving written notice to the Body Corporate not later than three months before the Termination Date, extend or renew this Agreement or the term of it for the Further Term commencing on the day after the Termination Date, otherwise upon the same conditions as are contained in this Agreement with the exception of this Clause 3.2 which will be deleted and except that the remuneration for the first year of the Further Term will be calculated in accordance with Clause 4.1.”
[11] Clause 3.2 of the Letting Agreement provides that:
If there is not, at the time the Letting Agent gives notice under this Clause nor at the Termination Date, an outstanding breach of this Agreement by the Letting Agent entitling the Body Corporate to terminate it, the Letting Agent may by giving written notice to the Body Corporate not later than before the Termination Date, extend or renew this Agreement or the term of it for the Further Term commencing on the day after the Termination Date, otherwise upon the same conditions as are contained in this Agreement with the exception of this Clause 3.2 which will be deleted.
[12] The net effect of Clauses 3.2 of both the Caretaking and Letting Agreements is that Mr Wadiwel was required to give the Body Corporate written notice of his intention not later than three months before the Termination Date as defined in the Caretaking and Letting Agreements of 6 July 2004. It is not disputed that Mr Wadiwel delivered his purported notice by email, on 5 April 2009.
[13] What this means, in practical terms for Mr Wadiwel, was that if he intended to exercise the option to extend or renew, he needed to do so prior to 6 April 2004. As he purchased the rights to the Caretaking and Letting Agreements in late 2003, this would have provided him with only a few months to consider this matter.
Was the Termination Date intended to be 6 July 2009?
[14] In order to obtain the relief Mr Wadiwel seeks in his Application, QCAT would need to determine that the Termination Date was intended to reflect a date of 6 July 2009, rather than 6 July 2004.
[15] Section 149B of the Body Corporate and Community Management Act 1997 (Qld) (the “BCCM Act”) provides QCAT with the following jurisdiction about caretaking and letting agreement contractual matters:
Specialist adjudication or QCAT jurisdiction
1) This section applies to a dispute about a claimed or anticipated contractual matter about--
(a) the engagement of a person as a body corporate manager or caretaking service contractor for a community titles scheme; or
(b) the authorisation of a person as a letting agent for a community titles scheme.
(2) A party to the dispute may apply--
(a) under chapter 6, for an order of a specialist adjudicator to resolve the dispute; or
(b) as provided under the QCAT Act, for an order of QCAT exercising the tribunal's original jurisdiction to resolve the dispute.
[16] Schedule 6 to the BCCM Act defines a “contractual matter” “about an engagement or authorisation of a body corporate manager, service contractor or letting agent” by the use of the term “means” (rather than “includes”) which, in the context of conferring jurisdiction upon QCAT, should be taken to be an exhaustive definition. It follows then that QCAT has jurisdiction to resolve the following four specific “contractual matters”:
§a contravention of the terms of the engagement, or authorisation; or
§the termination of the engagement, or authorisation; or
§the exercise of rights or powers under the terms of the engagement, or authorisation; or
§the performance of duties under the terms of the engagement, or authorisation.
[17] It is my view that Mr Wadiwel is asking QCAT to vary, rather than interpret, the existing contracts. This, I think, falls outside the parameters of the jurisdiction QCAT has with respect to contractual matters. Mr Wadiwel is not asking QCAT to consider the terms under the contracts, but to substitute a different term (namely, a different Termination Date) within the contracts.
[18] My views are galvanised by the comments made by Member Dorney (as his Honour was then) in Seed v Body Corporate For Renaissance Golden Beach CTS 31880 [2008] QCCTBCCM 17 (26 August 2008) (“Seed”). There, Member Dorney made reference to a previous decision of QCAT’s predecessor with respect to body corporate matters, the Commercial and Consumer Tribunal (“CCT”) wherein the CCT was called upon to consider its role in interpreting caretaking and letting agreements. Member Dorney (at para [14]) outlined the relevant legal principles as follows:
Such principles were recently considered by the Tribunal in JRH Pty Ltd (atf The Dolling Family Trust) v Body Corporate for the Penthouses CTS 11354 [2008] CCT KC002-07. Relevantly for present purposes, concerning the Agreement, they are:
§ the meaning of the terms of a contractual document is to determined by what a reasonable person would have understood them to mean, and that, normally, requires consideration of not only the text, but also the surrounding circumstances known to the parties, and the purpose and object of the transaction: at [19];
§ courts, and tribunals, are not able to disregard clear words and are unable, under the guise of interpreting a contract, to rewrite it: at [19];
§ courts, and tribunals, have no power to remake or amend a contract for the purpose of avoiding a result which is considered inconvenient or unjust: at [19];
§ in determining what evidence could be led for the purposes of construction in order to understand the commercial context in which a particular agreement was entered into, a person’s subjective beliefs and intentions are irrelevant and, in any event, such subjective perceptions might simply reflect, on occasions, a misunderstanding of the agreement: at [20]; and
§ evidence of payments, particularly where the payments are made by persons who are not direct parties to an existing agreement, does not reflect anything other than the subjective view of persons who made the payments, such that no help can be derived from them: at [23].
[19] The difficulty for the CCT in Seed, which is problematic for QCAT in this matter as well, is that neither party led any evidence relating to the circumstances surrounding the execution of the original agreements. Because of this, QCAT is in a position where it can only look to the contractual documents themselves. The definition of the term “Termination Date” is clear and unambiguous within the Caretaking and Letting Agreements.
[20] Ultimately, the Body Corporate took the view that the Caretaking and Letting Agreements had expired, and held an Extraordinary General Meeting on 7 July 2009 at which lot holders declined to enter into a new Caretaking and Letting Agreement with Mr and Mrs Wadiwel. At that point, the Deed of Engagement (conveying the rights held under the Caretaking Agreement) and the Deed of Appointment (conveying the rights held under the Letting Agreement), had already expired (on the day prior, 6 July 2009).
[21] There was evidence given by the Body Corporate, which was not disputed by Mr Wadiwel, that he had not performed any duties pursuant to the Agreements since 6 July 2009, and further that he cooperated in removing his possessions from the common property when requested. In view of this, there is no evidence capable of suggesting that the Body Corporate did not intend for the Termination Date in the Caretaking and Letting Agreements to reflect anything other than the date of 6 July 2004.
Email not an approved method of service
[22] The Body Corporate argues that, even if QCAT were to determine that the Termination Date was 6 July 2009, Mr Wadiwel’s notice was still invalid in that it had not been properly served.
[23] The Caretaking Agreement specifies that, with respect to service of notices, the following:
10. NOTICES
10.1All notices and other communications between the parties may be sent by certified post with postage prepaid or by hand delivery to the party at the address shown in this Agreement or by facsimile transmission to the facsimile number of the party or to such other address or person as either party may specify by notice in writing to the other.
10.2All such notices or communications will be deemed to have been duly given or made
(a) If by mail 2 business days after being deposited in the mail with postage prepaid;
(b) If delivered by hand at the time of delivery; and
(c) If sent by facsimile transmission, when the sender’s transmission record indicates that the same was received without error.
[24] In view of Clause 10 of the Caretaking Agreement, the Body Corporate argues that as Mr Wadiwel’s purported notice was delivered by email, and the Body Corporate had not specified in writing that email was an acceptable method for service of notices, the notice was not valid.
[25] Mr Wadiwel, in a prolix Statement of Evidence appended to his Application[3], indicated that in addition to emailing the Body Corporate, he also sent a copy of his purported notice to the Body Corporate Manager. He received an acknowledgment from the Body Corporate Manager on 6 April 2009, which merely indicated that the email would be passed along to the Body Corporate for its consideration. I do not think this evidence is of any particular moment in making this decision, for the reason that the Body Corporate has disputed that the notice was properly delivered from the time of its receipt.
[3] Application dated 18 December 2009, Attachment 5.
[26] In any event, I do not consider it necessary for me to address this point further as I have determined that the collective effect of the contractual Agreements at play in this matter is that Mr Wadiwel was to notify of his intention to exercise the option to renew or extend. The Termination Date clearly stated within the Agreements required this notice to be given at an early juncture in the first few months following the Wadiwels’ purchase of the management rights. The contract is unambiguous.
[27] It appears that the Wadiwels were assisted by legal representatives at the time of their purchase of the management rights, which further cuts against any argument that the dates reflected in the contracts do not reflect the intentions of the parties at the time.
Misconduct in relation to the Caretaking Agreement
[28] The Body Corporate alleges misconduct in relation to the Caretaking and Letting Agreements, claiming that the Applicant caretaker, Mr Krish Wadiwel, persistently disregarded his duties under the Caretaking and Letting Agreements. Following on from this, the Body Corporate has taken the position that even if QCAT determined Mr Wadiwel’s notice was timely served, he was not entitled to extend, as he was in breach at the time that he purported to serve notice to extend the Caretaking Agreement, and further that the agreements expired before it was validly exercised.
[29] In view of my determination that the applicable Termination Date was 6 July 2004, I do not consider it necessary, nor productive, to make any decision with respect the numerous allegations of misconduct. It is readily apparent that the Body Corporate and Mr Wadiwel did not enjoy a harmonious relationship. There is copious correspondence from both parties debating minor maintenance issues, and placing a particular spin on interpersonal disputes that resulted in mutual aggression.
[30] There must have been very few minor management issues that the Body Corporate decided not to address – taking Mr Wadiwel to task over the most seemingly innocuous matters, such as whether a passionfruit vine could remain in situ on the premises, or whether it required removal to be replaced with nothing.
[31] Mr Wadiwel did not accept the ongoing direction of the Body Corporate kindly, viewing it as an intrusion into his domain. His responses to the Body Corporate give meaning to Walt Whitman’s ‘A Song for Occupations’ from his collective work ‘Leaves of Grass’. Mr Wadiwel could not separate himself from his "work" without separating himself from the process – his responses to mundane requests of the Body Corporate are not rational and factually based, but are fuelled by emotion and speculation.
[32] There is no practical benefit to either party in a determination being made on these misconduct allegations, in that it will not change the result in this matter.
Orders
[33] The Application in Matter OCL013-09 is dismissed.
[34] The parties are to bear their own costs of and incidental to the matter.
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