Body Corporate and Community Management Act 1997, ss 130, 132, 133

Body Corporate and Community Management (Accommodation Module) Regulation 2008, s 120

[1] Emvalle Pty Ltd is the current caretaking and letting service contractor for the respondent body corporate (Aqua Vista). On 19 July 2010, Emvalle filed an application to resolve a complex dispute pursuant to the Body Corporate and Community Management Act 1997. The application states that it relates to a dispute arising out of a review of the terms of the service contract, pursuant to s 133 of the Act. Emvalle seeks, among other things, an order that its remuneration under the caretaking and letting agreement which it has with Aqua Vista be increased to $111,511.67 (plus GST) per annum as and from 19 July 2010.

[2] On 27 August 2010, Aqua Vista filed an application within the proceeding seeking to dismiss Emvalle's application, on the ground that the tribunal has no jurisdiction to hear the application because there has not been a review carried out and therefore there is no dispute arising out of a review carried out in accordance with s 133.

[3] In response to Aqua Vista's application, on 16 September 2010 Emvalle filed an application for leave to amend its principal application. By the proposed amended application, it added what it stated to be a dispute about a claimed or anticipated contractual matter, pursuant to s 149B of the Act. Emvalle proposes to allege, in its amended application, that there is a dispute concerning the services required to be performed by it under the caretaking and letting agreement, the services actually necessary for the discharge of Aqua Vista's obligations as body corporate, and the amount of reasonable remuneration payable for the necessary services where they exceed the agreed scope of services.

[4] These reasons concern the application by Aqua Vista to dismiss Emvalle's principal application and Emvalle's application for leave to amend its principal application.

[5] On 23 July 2007, Aqua Vista and Qld Rights Operations Pty Ltd made a caretaking and letting agreement in respect of the scheme (which I shall refer to as the "original agreement"). Aqua Vista engaged the caretaker as caretaker of the common property for a period of 10 years commencing on 19 July 2007 and expiring on 18 July 2017. The remuneration of the caretaker was set out in a schedule to the agreement and the caretaker's duties were described in clause 5 and schedule B. The caretaker was also authorised by that agreement to conduct a letting business for unit owners.

[6] Clause 13 of the agreement relevantly provided that the caretaker was entitled to assign its interest in the agreement with the consent of the committee of Aqua Vista. The committee could not withhold its consent arbitrarily or capriciously but, among other things, it was entitled to require, before giving its consent, "satisfactory evidence that the proposed assignee is a reputable responsible respectable person capable of satisfactorily performing the duties of the Caretaker pursuant to this agreement".

[7] Emvalle and Aqua Vista agree that the "original owner control period" for this scheme[1] ended no later than 20 September 2007. The importance of this date is that, under s 130 of the Act, the body corporate or a service contractor under a service contract (such as the original agreement in this case) may request a review of the functions and powers of the service contractor or the remuneration payable to the service contractor only if the service contract was made within the original owner control period and the contractor's term of engagement has not ended.

[8] On 23 April 2008, Aqua Vista, Qld Rights Operations, Blue Chip Holiday Accommodation Pty Ltd and two individuals (as guarantors) made an agreement under which Qld Rights Operations assigned to Blue Chip its interest in the original agreement and Aqua Vista consented to that assignment. That agreement relevantly provided:

"3.1 The Previous Manager transfers and assigns to the New Manager from the Assignment Date the Previous Manager's right title estate and interest as Caretaker and Letting Agent in, to and under the Agreement."

[9] The Blue Chip assignment agreement (described as a deed of assignment) went on to provide that the new manager (Blue Chip) agreed to perform all of the obligations in the original agreement from the assignment date as if it had originally been named as caretaker and letting agent in that agreement.

[10] The Blue Chip assignment agreement also provided that Aqua Vista released the previous manager, in essence, from the performance of its obligations in respect of anything that occurred after the assignment date. Aqua Vista also agreed to be bound by the provisions of the agreement as if the new manager were the caretaker and letting agent originally named in it. The assignment agreement provided that Aqua Vista and Blue Chip ratified and confirmed all of the terms and conditions of the original agreement and agreed to be bound by those terms and conditions.

[11] On 31 August 2009, Blue Chip, Emvalle and Aqua Vista, as well as Emvalle's director, Allan Vale, entered into a deed of assignment of the caretaking and letting agreement (the "Emvalle assignment agreement").

[12] The Emvalle assignment agreement recited (incorrectly) that Aqua Vista had entered into a caretaking and letting agreement with Blue Chip dated 23 July 2007 for a term of 10 years commencing on 19 July 2007, and Blue Chip had agreed to sell and Emvalle had agreed to purchase the interest of Blue Chip in the caretaking and letting agreement.

[13] The Emvalle assignment agreement went on to provide that Blue Chip "hereby assigns to [Emvalle] all its interest in the caretaking and letting agreement from 1 September 2009 ... for the residue then unexpired of the term of the caretaking and letting agreement on and from the assignment date", Emvalle accepted the assignment to it of the interest of Blue Chip and "all the rights, benefits and obligations of the Manager named in" the caretaking and letting agreement, agreed to be bound by its terms, and undertook to observe and perform the covenants and conditions contained in the agreement on the part of the manager. The agreement also provided that Aqua Vista consented to the assignment of the caretaking and letting agreement from Blue Chip to Emvalle and covenanted with Emvalle that Aqua Vista agreed to be bound by the provisions of the caretaking and letting agreement as if Emvalle was the manager originally named in it, and in every respect Aqua Vista confirmed the provisions of the caretaking and letting agreement. Finally, the agreement provided that Aqua Vista released Blue Chip from any liability in respect of the performance of Emvalle under the caretaking and letting agreement, from the assignment date.

[14] The phrase "caretaking and letting agreement" was defined in the Emvalle assignment agreement as meaning the caretaking and letting agreement dated 23 July 2007 between Aqua Vista and Qld Rights Operations and the deed of assignment dated 23 April 2008 between Aqua Vista, Qld Rights Operations and Blue Chip.

[15] On 19 April 2010, Watson & Quinn, solicitors for Emvalle, wrote to the secretary of Aqua Vista. Relevantly, they said that Emvalle was a party to the caretaking and letting agreement dated 23 July 2007 following its acquisition of its management rights under the Emvalle assignment agreement; that Emvalle sought a review of the terms of the agreement in order to decide whether the functions of the caretaker and the remuneration paid to the caretaker were fair and reasonable; and that Emvalle proposed to appoint an independent person to provide advice concerning those two matters, based on the review criteria described in s 134 of the Act.

[16] By a letter dated 29 April 2010, the secretary of Aqua Vista responded to Watson & Quinn's letter of 19 April. He asserted that, in accordance with s 130 of the Act, the original owner control period had ended before the Emvalle assignment agreement was made and therefore Emvalle had no legal entitlement to a review. He invited Emvalle to participate in a review of the scope of works under the agreement, but without any remuneration review.

[17] By a letter dated 5 May 2010, Watson & Quinn responded to the letter from the secretary of Aqua Vista, disagreeing with his construction of s 130 of the Act. They asserted that Emvalle stood in the same position as the entity to which the management rights were originally granted, as recorded in the successive deeds of assignment. They said that Emvalle remained open to a review of its duties and remuneration as outlined in their earlier correspondence. Emvalle reserved its rights to proceed with the procedure outlined in ss 130 and 131 of the Act.

[18] By a letter dated 11 May 2010, the secretary of Aqua Vista responded to Watson & Quinn, reiterating that s 130 did not apply as the original owner control period had ended at a time when the service contractor was not Emvalle.

[19] By a letter dated 13 May 2010, Watson & Quinn said that Emvalle intended to proceed with the process for review of remuneration.

[20] Emvalle then engaged a building management consultancy and services firm to review the duties and remuneration of the caretaker, having regard to Aqua Vista's obligations as body corporate of the scheme. That firm produced a report in which it recommended that a more specific schedule of the caretaker's duties and responsibilities be included in the agreement to better reflect the requirements of the complex, and that the annual remuneration of the caretaker be increased to $111,511.67 (excluding GST).

[21] Emvalle delivered a copy of that report to Aqua Vista on 15 July 2010 and, as I have said, commenced this proceeding on 19 July 2010.

[22] The principal basis upon which Aqua Vista seeks an order to dismiss the proceeding is that the agreement between Aqua Vista and Emvalle, which governs their relationship, is the Emvalle assignment agreement. As that agreement was made outside the original owner control period, s 130 of the Act does not apply.

[23] Aqua Vista contends that, although called a "deed of assignment", the Emvalle assignment agreement did not operate as an assignment of the original caretaking and letting agreement but as a new agreement (a novation of the caretaking and letting agreement) between Emvalle and Aqua Vista.

[24] In this respect, Aqua Vista relies on the principle of law that, while a party to a contract (A) can assign to another person (C) the benefits of the contract, the burdens of the contract (that is, the obligations that A has under it to the other party - B) cannot be assigned. The only manner in which the entirety of A's interest in the contract (the benefits and burdens) can be passed on to C is by a tripartite contract between A, B and C, in which B releases A from its obligations and B and C agree that C will effectively take over A's obligations and rights. The effect of such a contract is to create a new contract between B and C. This process is, in law, known as "novation".

[25] The differences between assignment and novation were usefully discussed by Mr Dorney QC (as his Honour then was) in Silva Care Australia Pty Ltd v Body Corporate for Indigo Blue Beachside Residences [2009] CCT KC003-07, at [34]-[36]. As Mr Dorney said, there is no principle that a total assignment of both benefits and burdens can occur in a continuing agreement without the contract being novated.

[26] Mr Dorney referred in particular to three important passages from the reasons for judgment of Finn and Sundberg JJ in Pacific Brand Sport & Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40; (2006) 149 FCR 395. Mr Dorney said:

"First, it is stated that while it is 'not legally possible to assign the burden of the contract (ie the obligation to render performance)', it may be possible to assign the 'entire benefit' of a contract or, if a right under a contract is separate and severable, such a separate and severable right or, if some only of the rights under a contract are assignable, those rights: at 404 [32]. Secondly, a third party may become a 'substituted contracting party' by 'novation of the original contract' but novation will, ordinarily, require the agreement of the original and the substituted party... But, on novation, there is 'no assignment of rights and obligations', but rather the creation of new rights and obligations in a new contract: at 405 [32]. Thirdly, 'a contractual obligation cannot be assigned without the consent of the other contracting party' ..., although 'for practical purposes' this 'requires novation of the original contract' (emphasis added) ... : at 405 [32].

What is abundantly clear from these considerations is that, where continuing contractual obligations are to be undertaken by a new party, the legal analysis must give rise to the consequence of novation; particularly should the original obligor be no longer required to undertake the performance of those contractual obligations."

[27] Mr Dorney went on to analyse the deed of assignment before him. That document appears to have contained very similar provisions to some of those in the Emvalle assignment agreement. In particular, looking at the Emvalle assignment agreement, Emvalle accepted the assignment to it of all the rights, benefits and obligations of the manager named in the "caretaking and letting agreement" (as defined) and undertook to observe and perform all the covenants and conditions of the manager that were in that agreement; Aqua Vista consented to the agreement between Blue Chip and Emvalle and agreed with Emvalle that Aqua Vista would be bound by the provisions of the caretaking and letting agreement as if Emvalle was the manager originally named in it; and Aqua Vista released Blue Chip and its guarantors from any liability in respect of the performance of Emvalle under the agreement from the assignment date.

[28] Mr Dorney said, of the agreement before him, "it is difficult to escape the conclusion from the Deed of Assignment that there has been a novation of the Caretaking Agreement, in particular because there was a 'new' set of obligations cast upon the applicants, and the Body Corporate agreed that the applicants were to perform those obligations in place of the previous manager" - at [38]. Those comments are entirely apposite to the Emvalle assignment agreement. The latter agreement does not appear to be relevantly distinguishable from the agreement before Mr Dorney.

[29] Mr Simpson, who appeared for Emvalle, submitted that the Act creates a new statutory type of contract, called a "transfer", which may be a type of amalgam of a deed of assignment and a contract for novation, and which allows both the benefits and the burdens of a service contract to be "transferred", intact, to another contractor, while keeping alive the original contract and simply substituting a party to it. He supported this submission by referring to the fact that part 4 (s 120ff) of the Accommodation Module provides for the "transfer" of service contracts, as contrasted with parts 2 and 3, which deal with the making of service contracts, and s 112 provides that the engagement of a service contractor under a new agreement must be approved by the body corporate in general meeting using a secret ballot, whereas the Emvalle assignment agreement was only approved by Aqua Vista's committee.

[30] The Accommodation Module is, of course, a regulation under the Act. There is some doubt whether the meaning of terms in an Act can be construed by reference to the terms of a regulation made under that Act, but even if it can the provisions to which Mr Simpson referred do not assist him. Section 120 expressly declares that approval of a "transfer" may be by the committee, so that overcomes the point arising from s 112. And part 4, in referring to the "transfer" of service contracts, is not inconsistent with a "transfer" taking effect as a novation, or simply being an assignment of rights. Indeed, s 120(1) refers to a transfer as being a transfer of a person's "rights" under a service contract, and s 120(5) specifically provides that the approval by a body corporate of a transfer may be given on condition that the transferee enter into a deed of covenant to comply with the terms of the service contract. That provision itself appears to allow for what would, in law, be a novation.

[31] Thus, the Accommodation Module does not, in my view, give rise to a new statutory creature known as a "transfer", which is somehow different from a novation of a service contract.

[32] I have also considered Mr Simpson's submission having regard to the terms of the Act that deal with the transfer of service contracts. Section 122(3) permits a regulation module to include provisions for payment of a transfer fee if any "rights" under a service contract are "transferred to another entity". And chapter 3, part 2, division 8 of the Act, which is immediately after the division concerning review of the terms of service contracts, provides for the required transfer of a letting agent's management rights. The division sets out circumstances in which a letting agent must "transfer" the letting agent's management rights for a scheme. Perhaps most relevantly, s 144 says, of a contract that has been transferred under ss 141 or 143, that the terms of the transferred service contract are the terms applying to the service contract immediately before the transfer. Do those provisions affect the ordinary law as to assignment and novation?

[33] In my view, they do not. First, s 122(3) is simply an empowering provision allowing the making of regulations. Secondly, division 8 deals only with the compulsory transfer of a letting agent's management rights under ss 141 and 143. It does not deal with transfer by consent of the terms of a letting agent's contract. Thirdly, although the sections only talk about transfer of the letting agent's "rights", clearly they are intended also to require the letting agent's obligations under its contract to be transferred. There is a way, under the existing law, to transfer both rights and obligations, namely by novation. There is no apparent need for a new statutory concept. It would have been easy for Parliament to make it clear if that had been its intention.

[34] Therefore, there is nothing in the Act that appears to alter the common law as to assignment and novation of contractual rights and obligations.

[35] Consequently, in my opinion the Emvalle assignment agreement effected a novation of the original caretaking and letting agreement. In other words, it constituted a new contract on the terms of the original caretaking and letting agreement.

[36] In fact, the original caretaking and letting agreement, between Aqua Vista and Qld Rights Operations, came to an end when the Blue Chip assignment agreement came into effect in April 2008, as that agreement also appears to have constituted a novation of the original caretaking and letting agreement.

[37] The consequence of this conclusion, for the purposes of s 130 of the Act, is that Aqua Vista entered into a service contract with Emvalle after the end of the original owner control period. Therefore, s 130 and the rest of division 7 do not apply to this contract and, insofar as this proceeding was brought under s 133(2)(b), it is misconceived and lacking in substance. It therefore ought be dismissed or struck out under s 47 of the Queensland Civil and Administrative Tribunal Act 2009.

[38] In case this matter proceeds further and I am held to be wrong in my conclusion above, I shall proceed to consider the other bases on which Aqua Vista seeks to have the application dismissed or struck out.

[39] The first is that the tribunal has no jurisdiction to hear the application because Emvalle did not comply with s 132(1) in that it did not, within 2 months after requesting the review, obtain a review advice and give a copy of the advice to Aqua Vista.

[40] In this respect, Aqua Vista contends that Emvalle requested Aqua Vista to review the terms of the contract, pursuant to s 130(2), by Watson & Quinn's letter dated 19 April 2010. Emvalle, on the other hand, contends that the request was made by Watson & Quinn's letter dated 13 May 2010. Clearly, if Aqua Vista is right, then the review advice was not obtained and given to Aqua Vista within 2 months of the request, as the report obtained by Emvalle was (it is agreed) dated 2 July 2010 and given to Aqua Vista on 15 July 2010.

[41] To my mind, there is no doubt that the letter of 19 April 2010 constituted a request for a review. It says so in so many words, namely "our client seeks a review of the terms of the agreement". The letter of 13 May 2010, which says, "we are instructed our client intends to proceed with the process for review of remuneration" does not, in my view, constitute a request, but is rather a confirmation that, having requested a review, Emvalle proposed to proceed to undertake a review in accordance with the process set out in the Act. Indeed, s 132 sets out the "procedure for review" and Emvalle purported to take steps in accordance with that procedure by seeking a review advice.

[42] Therefore, as the review advice was not obtained and provided to Aqua Vista within 2 months after Emvalle requested the review, it has not complied with s 132.

[43] However, does that mean that Emvalle is not entitled to apply to the tribunal under s 133?

[44] In Silva Care, Mr Dorney formed the conclusion that, where no step had been taken toward a review after the request for a review had been made, the failure to carry out a review "does deprive this tribunal of the jurisdiction to seek to resolve a dispute that, in reality, has not arisen." But this case is distinguishable from Silva Care because Emvalle has taken further steps, namely by obtaining a review advice and providing it to Aqua Vista, although outside the period of 2 months after requesting the review.

[45] In Clarke v The Body Corporate for Linear Kings Beach [2009] CCT KC 011-09, Mr Thomas AM QC said, at [13]:

"No 'review advice' was obtained by the trust within 2 months of making that request [for review]. Accordingly, so far as that request is concerned, the Trust failed to comply with a mandatory requirement of section 132. It would seem to follow that the applicant cannot succeed if he were to base his case upon that particular request."

[46] Mr Alexander, who appeared for Aqua Vista, contended that the effect of s 132(1) is similar to that of s 459G(2) of the Corporations Law. The latter subsection provides that an application to set aside a statutory demand served on a company may only be made within 21 days after the demand is served. If an application to set aside a statutory demand is not filed within 21 days after service of the demand, then the court has no jurisdiction to hear the application: David Grant & Co Pty Ltd v Westpac Banking Corp [1995] HCA 43; (1995) 184 CLR 265. Similarly, Mr Alexander contended, because s 132(1) provides that the reviewing party must obtain a review advice and give a copy of it to the other party "within 2 months after requesting the review", if it does not do so no review was required to be carried out under that division and therefore no dispute may arise under s 133 in respect of which this tribunal has jurisdiction.

[47] Although not without some hesitation, I agree with Mr Alexander's contention. A review must be carried out (that is, it is required to be carried out) once a request is made under s 130(2): that subsection provides that if requested the reviewing parties must review the terms of the contract. I agree, with respect, with Mr Dorney insofar as he says that, if no further step is taken after a request, then there is no review in respect of which a dispute may arise. Similarly, the requirement under s 132(1) to obtain a review advice and provide it to the other party is obligatory. If it is not complied with, then no review has been undertaken and no dispute may arise. As a consequence, the tribunal has no jurisdiction.

[48] Notwithstanding the word "must" in subsection 130(2), it is arguable that the provision is, to use some old terms, directory only and not mandatory: it is procedural and the act does not indicate that a failure to comply with the procedure set out results in there being no jurisdiction in the tribunal to hear a dispute. But in my view the purpose of the division is to enable a review to take place promptly and within a certain period. Indeed, the period for a review is limited not only by the period of 2 months from the date of a request, but also by the fact that a review must be completed within the "review period". (In this case, the parties agree that the review period ended on 26 July 2010.) The strict time limits indicate, to my mind, an intention by Parliament that the right of review only persists if the time limits are complied with. To paraphrase the words of Gummow J in David Grant & Co Pty Ltd (at 270), the division of the Act providing for the review of service contracts constitutes a legislative scheme for a limited right to an early and quick resolution of the extent of duties and remuneration under service contracts. And (at 277) the effect of the requirement that a review advice "must" be obtained and given within 2 months and that a review "must" be finished within the review period, is to define the limited circumstances in which the right of review arises. Once that right of review is lost, there can be no review out of which a dispute may arise for this tribunal to determine.

[49] Mr Simpson relied on s 61 of the QCAT Act to seek an order extending the time limit provided by s 130(2). However, s 61 only allows for an extension of procedural time limits. As I have found that s 130(2) is not merely procedural, but sets out a substantive requirement, s 61 provides no power to extend the time limit. The relationship between the two sections is similar to that between s 459G(2) and s 1322(4)(d) of the Corporations Law which were considered by the High Court in Dabid Grant & Co Pty Ltd.

[50] Therefore, on this ground as well I consider that the application is misconceived, because there is no dispute in respect of which the tribunal has jurisdiction under s 133.

[51] Another submission made on behalf of Aqua Vista was that, even if a request had been made and the review advice was given to it within 2 months of the request, or a period of 2 months was not mandatory, subsection 132(4) provides that a review must be finished as soon as reasonably practicable after a copy of the review advice is given to a reviewing party and within the review period. The review advice was given to Aqua Vista on 15 July 2010, only 8 days before the end of the review period. Aqua Vista could not possibly undertake its review and make a decision about the outcome of the review before the end of that period, because subsection 132(3) provides that a body corporate's final decision about the outcome of the review must be made by ordinary resolution. That would require a general meeting of the body corporate to be called, which could not be done within 8 days. Mr Alexander relied in this respect upon the decision of this tribunal in Mynex Pty Ltd v Body Corporate for Captain's Corner [2010] QCAT 157. In that case, Ms Reid said that, as the body corporate had not been afforded sufficient time to consider the review document in a reasonably practical timeframe, or one that would permit it to respond to the applicant's request to consider the review advice, the tribunal could not exercise its jurisdiction under s 133.

[52] That case involved a similar circumstance to this, as the review advice was provided 10 days before the end of the review period.

[53] With all due respect to Ms Reid, I disagree with the proposition that, because a review advice is delivered very shortly before the end of the review period, thus disabling the other party to the review from undertaking its own review, there is then no dispute arising out of a review. Subsection 133(4) says that subsection (5) applies if only one of the reviewing parties has carried out the review. Subsection (5) provides that a dispute is taken to exist between the reviewing parties if the reviewing party who carried out the review considers the reviewable terms are not currently fair and reasonable.

[54] Where a party obtains a review advice and, having reviewed that advice, considers that the reviewable terms are not currently fair and reasonable, then a review has been carried out, although not by both parties who are required to carry it out. If that review is carried out too late for the other party to carry out a review within the review period, in my opinion that does not prevent subsections 133(4) and (5) from applying. Subsection (5) appears to me to apply whenever one party has not completed a review, for whatever reason, provided that the other party has completed a review and formed the necessary opinion.

[55] Therefore, if this were the only ground upon which Aqua Vista had contended that there was no dispute giving rise to this tribunal's jurisdiction, it would not succeed.

[56] In the face of the application to dismiss or strike out the principal application, Emvalle seeks leave to amend its application. It wishes to contend that there is a dispute between it and Aqua Vista about a claimed or anticipated contractual matter about its engagement as a caretaking service contractor and its authorisation as a letting agent, and therefore it may apply to this tribunal under s 149B of the Act.

[57] The dispute which Emvalle wishes to raise by its proposed amendment is said to arise from the following circumstances:

1. the report comprising the review advice stated that, for the body corporate effectively to carry out its obligations, the caretaking and letting agreement ought to provide for a considerably greater number of services to be carried out by the caretaker than it does;

2. Aqua Vista has asked Emvalle to review the services required to be provided under the agreements and Emvalle has agreed to review those services provided that Aqua Vista also agrees to review its remuneration;

3. because Aqua Vista has sought to increase the duties provided by Emvalle but has refused to consider a review of remuneration, there is a dispute concerning the services contract.

[58] Mr Alexander, for Aqua Vista, submitted that there is no dispute identified in the proposed amended application because, although Aqua Vista asked Emvalle to review the services which it provided under the contract, it has not insisted that Emvalle carry out any services additional to those which it is required to carry out under that contract.

[59] In my view, that is correct. No real dispute has been identified by Emvalle as to the extent of services which it is obliged to provide, or the remuneration to which it is entitled, under the existing service contract. It is irrelevant whether the services which it is obliged to provide under the contract are sufficient to enable the Body Corporate to carry out its obligations to maintain the common property. If they are insufficient, then it would be to Aqua Vista's benefit to seek to reach agreement that Emvalle provide additional services, for which it might expect to have to pay additional fees. But at present there is no current dispute that I can see arising from the matters set out in the proposed amendment. It simply alleges that Aqua Vista "seeks to increase the duties provided by" Emvalle and has "refused to consider a review of remuneration payable" under the contract. In other words, Emvalle and Aqua Vista have been unable to agree on a different contract to the existing one. But neither has insisted that the existing contract imposes obligations which the other party disputes. The proposed amendment does not demonstrate any arguable dispute about the existing contract.

[60] Therefore, I do not consider it appropriate to give Emvalle leave to amend its application.

[61] Having reached this conclusion, I do not need to consider Aqua Vista's submission that, if the proceeding as currently constituted does not raise an issue for the tribunal, there is no proper proceeding on foot in which an amendment may be allowed.

[62] The consequence of my conclusions above is that the proceeding ought be dismissed or struck out. The QCAT Act does not make clear what the difference is between dismissal and striking out. Having regard to the practice in courts in Queensland, which was well known when this Act was passed, I consider that to strike out an application would be akin to striking out a pleading - that is, the proceeding remains on foot, but the pleading is treated as if it does not exist. The party concerned may be able to obtain leave, either at the time of the order or later, to file an amended pleading (or, in this tribunal, an amended application). On the other hand, an order dismissing the proceeding brings it to a complete end (subject, of course, to any rights of appeal).

[63] Emvalle has not demonstrated any basis on which it may be able to make a valid application in this proceeding. In that circumstance, I consider that it is not appropriate simply to strike out the application. It ought be dismissed.

[1] See definition of "original owner control period" in schedule 6 to the Act.