Whitfield v Vardon Point Apartments

[2012] QCAT 543

CITATION: Whitfield and Anor v Vardon Point Apartments [2012] QCAT 543

PARTIES:	Steven Whitfield Ian Donald Rees (Applicants)
v
Vardon Point Apartments CTS 29516 (Respondent)

APPLICATION NUMBER: OCL083-12

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Sandra G Deane, Member

DELIVERED ON: 31 October 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The Application is dismissed.

CATCHWORDS:

Body Corporate dispute – whether Tribunal has jurisdiction to determine – whether contractual matter – whether complex dispute

Body Corporate and Community Management Act 1997, ss 94, 100, s149B, 152, 227, 229A, 276, Schedules 5, 6

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

1. Mr Whitfield and Mr Rees commenced an application to resolve a complex dispute under the Body Corporate and Community Management Act 1997 (BCCM Act) relating to a claimed or anticipated contractual matter.[1]

   [1] Section 149B BCCM Act.

2. Mr Whitfield and Mr Rees appear to be owners of lots in Vardon Point Apartments CTS 29516 (VPA), a subsidiary community title scheme which forms part of the Vardon Point Pelican Waters CTS 29418 (VPPW).

3. The Applicants seek an order requiring the VPA to reverse a decision which recommended to the committee of VPPW that it pay the costs of cleaning driveways and various other structures within the Vardon Point complex instead of passing the charge to the caretaker.

4. The Applicants contend that these costs should be borne by the caretaker as they are part of the duties set out in the caretaking agreement.

5. The caretaker has sold its interest in the caretaking agreement and settlement of this transaction occurred on 1 October, 2012.  The outgoing caretaker has agreed with the body corporate that the outgoing caretaker’s solicitor should hold an amount of $12,334 in its trust account pending the outcome of this application and another matter before the Body Corporate and Community Management (BCCM) Commissioner but for a period no longer than 3 months.

6. The Applicants contend that this is not in the best interest of the lot owners and have also filed an application for interim order seeking:

   a)An order that the funds be placed into a trust account until a final determination of these proceedings and the BCCM proceedings;

   b)An order that VPA be ordered to distribute a copy of the application in these proceedings and any subsequent documents to each lot owner as soon as possible;

   c)A commitment by the Tribunal to report the proceedings to the BCCM in order for BCCM to form a view about how the majority of the VPA committee have handled these matters.  

7. The Tribunal is a creature of statute and only has the powers vested in it by the QCAT Act and by relevant enabling acts such as the BCCM Act.

8. By direction dated 27 September 2012 the Tribunal directed the parties to file and serve submissions in relation to the interim orders sought and as to whether the Tribunal has jurisdiction under s 149B BCCM Act.

Does the Tribunal have jurisdiction?

1. Mr Whitfield and Mr Rees contend that they are seeking a ruling on a contractual matter.  They contend that this is a complex dispute.  The VPA has informed the Tribunal that it neither agrees nor disagrees that the Tribunal has jurisdiction.

2. The application has been commenced against VPA.  It has not been commenced against the outgoing caretaker. 

3. The categories of disputes contemplated by the BCCM Act are set out.[2]  Dispute is defined to include a dispute between the body corporate and the owner of a lot in the scheme[3] and between the body corporate and a caretaking service contractor[4] but not between a caretaking service contractor and an owner. 

   [2] Section 227 BCCM Act.

   [3] Section 227(1)(b) BCCM Act.

   [4] Section 227(1)(d) BCCM Act.

4. A complex dispute is defined.[5] It includes a dispute mentioned in section 149B, which applies to a dispute about a claimed or anticipated contractual matter about the engagement of a person as a caretaking service contractor. Contractual matter is defined to include a contravention, the exercise of rights or the performance of duties under the terms of engagement.[6]

   [5]        Schedule 6 BCCM Act.

   [6]        Schedule 6 BCCM Act.

5. The application seeks orders requiring VPA to take steps to enforce what Mr Whitfield and Mr Rees contend are contractual rights between the body corporate and the caretaking service contractor.  It indirectly relates to a contractual matter but is in substance a claim by Mr Whitfield and Mr Rees that the body corporate is not administering the common property and body corporate assets for the benefit of the owners of the lots[7] and has not acted reasonably[8].

   [7] Section 94(1)(a) or section 152(1)(a) BCCM Act.

   [8] Section 94(2) or section 100(5) BCCM Act.

6. Mr Horton of the Office of the Commissioner for Body Corporate and Community Management in his letter dated 10 August 2012 suggests that it is a complex dispute because the resolution of it would require the terms of the caretaking contract to be considered. 

7. The orders an adjudicator may make are set out in section 276 and Schedule 5 of the BCCM Act. At paragraph 16 of Schedule 5 an adjudicator may make an order requiring a service contractor to comply with the terms of the person’s engagement. It is difficult to see how such an order could be made without considering the terms of the caretaking contract.

8. In determining any dispute an adjudicator should look at the full factual matrix.  In doing so this may include contractual terms.  In my view this does not mean that the matter is necessarily a complex dispute.

9. The natural and ordinary meaning of section 149B is that the dispute about the contractual matter is a dispute between the parties to the contract and not some related dispute. The BCCM Act recognises related disputes in relation to a debt dispute.[9]  The BCCM Act has not extended disputes about contractual matters in a similar way.

   [9] Section 229A BCCM Act.

10. I find that the dispute is not a complex dispute within the meaning of section 149B of the BCCM Act and that the Tribunal does not have jurisdiction.

11. It is therefore unnecessary to consider the interim orders application.  

Order

1. The Application is dismissed.