L & L International Investment Pty Ltd v Body Corporate for Arundel Springs East [2025] QCATA 127

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 64, s 142, s 146

Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd [2021] QCA 198

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Emvalle Pty Ltd v Body Corporate for Aqua Vista Apartments CTS 37051 [2011] QCAT 224

Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30

ManageMe Property Managements Solutions v Inak [2023] QCATA 132

Menegazzo v Pricewaterhousecoopers (A Firm) [2016] QSC 94

Moore (a pseudonym) v The King [2024] HCA 30

Nationwide Union of Workers v Davids Distribution Pty Ltd [1999] FCA 1109

Noonan v Osbourne and Body Corporate for Spinnaker CTS 40812 [2020] QCATA 130

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Rintoul v State of Queensland [2018] QCA 20

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

• [1] This is an application for leave to appeal a decision to allow an amendment to an Application to Resolve a Complex Dispute[1] in circumstances where, the applicant submits, both the initiating application and the proposed amendment are outside the jurisdiction of the Tribunal.
• [2] The substantive proceeding is a dispute between the Body Corporate for Arundel Springs East (the body corporate) and L & L International Investment Pty Ltd (the caretaker) arising out of a review of the terms of remuneration payable to the caretaker. The body corporate applied to the Tribunal pursuant to s 133(2)(b) of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) seeking to have the Tribunal exercise its original jurisdiction to resolve the dispute.
• [3] The application before us is an application for leave to appeal the interlocutory decision to allow the amendment. As the decision was not a final decision in the proceeding, leave to appeal is required: s 142(3)(a)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The application for leave to appeal raises questions of mixed fact and law. If leave is granted, the appeal proceeds as a rehearing, with or without additional evidence: s 147 QCAT Act.
• [4] Both parties proceeded on the basis that to succeed in the appeal, the applicant needed to show a House v The King[2] error and, given it was an interlocutory decision about practice and procedure, that the applicant also needed to demonstrate that the order below involved an important point of principle or worked a substantial injustice.[3]
• [5] At the hearing, we asked whether in fact the relevant standard of review was the correctness standard in Warren v Coombes[4]. We have decided that it is the appropriate standard given our ultimate conclusion that the issue of whether to amend in these circumstances depended first on the existence of jurisdiction and for that reason was not, in truth, a discretionary decision.[5] We have, accordingly, proceeded on that basis.
• [6] The decision to allow the amendment to the initiating application was made pursuant to s 64 of the QCAT Act which gives the Tribunal power to make an order that a relevant document (which is defined to include an application)[6] be amended. An order to allow an amendment can be made at any stage of the proceeding.[7]

• [7] A caretaking agreement was entered into between the body corporate and Avid Realty Qld Pty Ltd on 27 January 2021 for a period of twenty-five years under which the caretaker is presently remunerated at $52, 998.72 per annum. The remuneration was calculated on the basis that the Manager would be paid $1, 100 per residential lot per year. A Deed of Assignment of Management Rights dated 15 April 2021 was entered into between the body corporate, Avid Realty and the caretaker by which the body corporate consented to the assignment of the Management and Letting Agreements from Avid Realty to the caretaker.
• [8] On 3 August 2022 the body corporate requested a review of the remuneration (the first request) pursuant to s 130(2)(b) of the BCCMA.
• [9] On 13 September 2022 a review advice (first review advice) was obtained: s 132(1) BCCMA. A copy of the first review advice was given to the caretaker on 16 September 2022.
• [10] On 4 October 2022 the body corporate was sent a letter from the caretaker's solicitor that asserted the first review advice was not in accordance with s 132 because it undertook the review on the basis the scheme involved 19 lots[8] when in fact it comprised a total of 43 lots.[9]
• [11] On 14 October 2022 the body corporate obtained a revised review report (amended first review advice) which was not within 2 months of the request as required by s 132(1). A copy of the amended first review advice was given to the caretaker on 19 October 2022.
• [12] The parties were unable to reach a resolution with respect to finalisation of the review after a reasonable time following receipt of the review advices.
• [13] On 31 May 2023 the body corporate held an extraordinary general meeting and, by ordinary resolution, made a final decision about the outcome of the review: s 132(3) BCCMA. The body corporate resolved that it did not consider the remuneration to currently be fair and/or reasonable.
• [14] On 20 July 2023 the body corporate filed an application for complex dispute in the Tribunal pursuant to s 133(1) of the BCCMA. The body corporate seeks a declaration that the reviewable terms are not fair and/or reasonable and an order that the reviewable terms be amended to decrease the remuneration payable pursuant to the caretaking agreement to $34, 429.62 from 14 October 2022, or alternatively, such other date as the Tribunal deems appropriate.
• [15] On 9 August 2023 the caretaker filed an Application to Dismiss the Proceedings on the basis there was no jurisdiction because the review processes outlined in ss 130 - 135 of the BCCMA had not been complied with.
• [16] On 29 August 2023 the body corporate requested another review of the remuneration (second request) pursuant to s 130(2)(b) of the BCCMA.
• [17] On 12 September 2023 the body corporate obtained a second review advice (second review advice): s 132(1) of the BCCMA.
• [18] On 14 September 2023 the body corporate gave a copy of the second review advice to the caretaker.
• [19] On 20 November 2023 the body corporate filed an Application to Amend its application to resolve a complex dispute.
• [20] On 13 December 2024 the Tribunal directed that the Application to Amend be determined before the Application to Dismiss.
• [21] On 23 February 2024 the Tribunal gave leave to the body corporate to amend its Application to Resolve a Complex Dispute.

• [22] During the appeal hearing the body corporate made an oral application to adduce fresh evidence on the appeal, specifically the minutes of an extraordinary general meeting held on 19 June 2024. The application was opposed.
• [23] The Appeal Tribunal proceeds on the basis that the usual tests for fresh evidence (for example, as set out in Clarke v Japan Machines (Australia) Pty Ltd[10]) apply. Those principles are that before leave is given to rely on additional evidence the party seeking to rely on it must show:

(a) the evidence could not have been obtained with reasonable diligence for use at the trial;

(b) the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive;

(c) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.[11]

• [24] The extraordinary general meeting occurred after the hearing at first instance and, accordingly, could not have been obtained for use at the trial. The minutes address one of the alleged deficiencies in process raised by the caretaker, in particular, in relation to the second review advice the subject of the amendment, that there had been no ordinary resolution by the body corporate of its final decision about the outcome of the review as required by s 132(3). The minutes record that, on 19 June 2024, the lot owners resolved that the remuneration payable pursuant to the caretaking agreement dated 27 January 2021, is not currently fair and reasonable.
• [25] I accept that the evidence of the resolution goes to the caretaker's submissions that the amendment is bad in law because the body corporate had not complied with s 132(3). It does not, however, resolve that issue entirely given the caretaker argues that the resolution cannot at law be a "decision" of the body corporate for the purposes of s 132(3) of the BCCMA because there was never any "review" for the purposes of Division 7 of Chapter 3 of the BCCMA because the body corporate had not, by ordinary resolution, authorised a "request" for a review as required by s 130(3). Furthermore, even if the resolution is a valid "decision" the body corporate has failed to establish the decision was made within the "review period" prescribed by s 132(4) of the BCCMA.
• [26] Finally, the minutes are on their face, credible. That said, there is no explanation as to why the evidence, if it existed and the issue had been raised, was not mentioned from the time of the meeting in June 2024 until the appeal hearing, some 15 months later.
• [27] On balance, although the evidence does not necessarily solve the body corporate's process deficiencies entirely, it removes one objection. On that basis, and given the evidence was not available at the time of the hearing and is apparently credible, we will allow it.

The decision at first instance to allow the amendment

• [28] The learned Member in allowing the amendment reasoned, relevantly, as follows:

(a) Relying on Noonan v Osborne and Body Corporate for Spinnaker CTS 40812 that, although the application in that case was to amend grounds of appeal, similar considerations applied to a hearing at first instance, namely that (as summarised in Noonan):

Essentially that is the test of whether it is in the interests of justice to grant the extension, having regard to some kind of provisional assessment of the strength of the proposed amendment, and the level of prejudice to the Respondent if it is allowed to occur.[12]

(b) Referred to the submissions of each party:

(i) By the caretaker, that it had raised 'specific arguments as to the futility of the proceedings' and that the body corporate 'has no prospects of success' given the initial review advice was invalid in terms of the BCCMA and that it was not open to the body corporate to rely on further review advices.

(ii) By the body corporate, that it had not conceded the proceeding was futile and that it contended that a proper construction of the BCCMA did not cause the amended first review advice or the second review advice to be invalid or unable to be relied upon; further, that if the amendment was not allowed the body corporate would be able to institute a fresh set of proceedings on similar bases, which would cause a duplication of the current proceeding and involve time and cost.

(c) Applied the following principles:

In considering an application to amend, the Tribunal is not determining the merits of the application. The essential consideration is whether the amendment would serve to progress the preceding (sic) in a timely and cost effective way, and whether there would be any adverse effect upon the other party in terms of prejudice or fairness.[13]

(d) Concluded that he was 'satisfied that the Body Corporate has raised plausible arguments as to its ability to proceed upon the further review advices within the meaning and intent of the Act'[14] and that it was in the interests of justice to give leave for the Body Corporate to amend its claim as sought.[15]

• [29] The caretaker applies for leave to appeal the decision to allow the amendment on the following grounds:

(a) Ground One: The Member erred in not finding the proposed amendment was hopeless and foredoomed to fail, principally because the body corporate did not make a final decision (by ordinary resolution) about the outcome of the review following the second review request.

(b) Ground Two: The Member erred in being satisfied that the body corporate had raised 'plausible arguments to its ability to proceed upon the further review advices' in circumstances where the body corporate made no submissions that the amendment was not foredoomed to fail or hopeless.

(c) Ground Three: The Member failed to consider, or properly consider, the issue of whether the amendment was not foredoomed to fail or hopeless.

(d) Ground Four: The Member misapplied the decision of Noonan v Osborne and Body Corporate for Spinnaker CTS 40812 as the decision involved a failure to plead facts, not to bring in a 'dispute' that arose after the application was filed; and there was no 'provisional assessment of the strength of the proposed amendment' (a relevant consideration in Noonan) by the learned Member.

(e) Ground Five: The Member erred in not assessing the prejudice to the body corporate if the amendment were allowed to occur. The hearing of the application would be extended by some days as:

(i) Mr Leary would need to give evidence to support the figures in his third report and the expert for the caretaker would need to give evidence disputing those figures;

(ii) the Member who hears the application would need to consider three reports all with different figures and 3 reports disputing those figures;

(iii) the Member would need to consider the multiple alleged failures by the body corporate to comply with the dispute provisions of the BCCMA.

(a) the appeal be allowed;

(b) that the Application by the body corporate to amend its claim by adding a "dispute" arising out of a review request made 29 August 2023 be refused; and

(c) that the body corporate pay the caretaker's costs of the Application to amend and this appeal.

(a) The test in Noonan was not the test to be applied for initiating applications.

(b) The appropriate test was that applied in relation to applications for leave to amend made pursuant to r 375 of the UCPR, referring to Menegazzo v Pricewaterhousecoopers (A Firm) at [51]-[53]. On that basis the pleaded amendment was deficient because it did not plead (nor had it happened in fact) that the body corporate had passed the resolutions required by the statutory scheme.

(c) The Member erred by directing himself to the requirements of an application to amend, when he ought first to have considered whether the existing pleading, or the proposed amendment enlivened the jurisdiction of the Tribunal.

(d) The applicant at the hearing at first instance contested the jurisdiction of the Tribunal to determine the dispute on the basis that neither the original Application nor the draft amendment satisfied the limbs of s 133 of the BCCMA, such that there was no conferral of jurisdiction on the Tribunal.

(e) It was only if the learned Member determined that jurisdiction existed, could he then proceed to consider the relevant discretionary factors on an application to amend.

(f) The conferral of jurisdiction, contained in s 133(2)(b) of the BCCMA is only enlivened if, pursuant to s 133(1) of the BCCMA, a dispute arises out of a review carried out, or required to be carried out, referring to Emvalle Pty Ltd v Aqua Vista Apartments CTS 37051 [2011] QCAT 224 at [48]. The review process was not carried out and, for that reason, the Tribunal does not have jurisdiction to determine the dispute.

(g) That reasoning is consistent with how the courts have approached the requirements in the BCCMA for bodies corporate to authorise legal proceedings by way of resolution without dissent, and that a failure to do so constitutes a failure to engage a court's jurisdiction to determine the dispute.

(a) Applications for leave to appeal from interlocutory orders as to matters of practice and procedure are often viewed as unlikely candidates for the grant of leave: Trinity Park Investments Pty Ltd v Fabcot [2021] QCA 276, [55].

(b) Even if leave were given the appeal would be dismissed because the order sought to be appealed concerned an exercise of discretion; and concerned practice and procedure. Generally an appellate court will not interfere unless, in addition to error of principle, the appellant demonstrates that the order will work a substantial injustice to one of the parties: Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd [2021] QCA 198; (2021) 9 QR 141, [13]; and Just GI Pty Ltd v Pig Improvement Co Aust Pty Ltd [2001] QCA 48, [14].

(c) The caretaker has not demonstrated a House v The King error:

(i) The Member did not act on a wrong principle. The Member directed himself to the power in s 64 to permit amendment (at [24]) and to the considerations attending the exercise of his discretion (at [25]). The authority of Noonan v Osborne [2020] QCATA 130 is not materially different to Harnett v Hynes (2009) QSC 225 which the body corporate submitted below should be applied.

(ii) There is nothing in the Reasons to indicate extraneous or irrelevant matters affected the exercise of the discretion.

(iii) The Member did not mistake the facts. Instead the caretaker is dissatisfied that the Member did not proceed to decide the merits of the proposed amendments, as if the application below was a final hearing.

(iv) The Member did not fail to take into account some material consideration. The Member did not err by failing to find that the amendments were "futile" because they were "foredoomed to fail". The Member was satisfied the body corporate had raised "plausible arguments as to its ability to proceed upon the further review advices within the meaning and intent of the Act." This was not a failure to take into account a material consideration.

(v) The Member did not reach a result which, upon the facts, is so unreasonable or plainly unjust that a court could infer error.

(vi) The caretaker has not submitted that it was prejudiced by the order below, accordingly, there is no injustice, let alone substantial injustice caused by the order.

(vii) The jurisdiction of the Tribunal was invoked and whether the statutory scheme was complied with went to the Tribunal's powers, not to its jurisdiction. It is enough, citing Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16, 234 that the claim be 'genuinely in controversy and that it give rise to an issue capable of judicial determination. That is to say, it is enough that the claim... be genuinely raised and not incapable on its face of legal argument.' Further, that 'an examination of what the prospects of success of a legally coherent claim... might be, were that claim... to be judicially determined on its merits, forms no part of the requisite assessment'. The body corporate has raised the proposed amendment in good faith and it is capable of being determined on its merits.

(viii) The relevant statutory provisions, ss 130 to 132 raise conditions on the exercise of the Tribunal's powers, and do not go to jurisdiction.

(ix) In respect of any failure by the body corporate to pass relevant resolutions required by the scheme, the body corporate can pass those resolutions with retrospective effect: Body Corporate for Oceana on Broadbeach CTS 24163 v 21 Broadbeach Blvd Pty Ltd [2025] QSC 68, [44].

• [33] The relevant provisions (ss 130 to 135) are those contained in Chapter 3, Part 2 (Body Corporate managers, service contractors and letting agents), Division 7 (Review of terms of service contracts) of the BCCMA.
• [34] There is no dispute that the caretaking agreement was entered into within the original owner control period and that s 130 of the BCCMA therefore applies.
• [35] Section 130 provides, relevantly:

(2) If requested by the body corporate or person (each a "reviewing party"), the reviewing parties must, as provided under this division and for the purpose mentioned in section 131, review the terms of the contract that provide for -

(a) the functions and powers of the person as the service contractor; or

(b) the remuneration payable to the person as the service contractor.

(3) The body corporate may make a request under subsection (2) only if the body corporate, by ordinary resolution, has authorised the making of the request.

(6) The contract may be reviewed under this division only once.

• [36] Other relevant provisions are set out below:

131 Purpose of review

The purpose of the review is to help the reviewing parties decide -

(a) if the terms mentioned in section 130 (2) (the "reviewable terms") are currently fair and reasonable; and

(b) if the reviewable terms are not currently fair and reasonable - how the reviewable terms should be changed to ensure they are fair and reasonable.

(1) Within 2 months after requesting the review, the reviewing party who requested it must -

(a) obtain from an appropriate person independent written advice (the "review advice"), based on the review criteria, about the matters mentioned in section 131 (a) and (b); and

(b) give a copy of the advice to the other reviewing party.

_Example of appropriate person for subsection (1)(a) - _ a person who, in the ordinary course of the person's business, has knowledge of the functions and powers of service contractors and the remuneration for performing the functions and powers

(2) The review must be carried out having regard to the review criteria.

(3) The body corporate's final decision about the outcome of the review must be made by ordinary resolution.

(4) The review must be finished as soon as reasonably practicable after a copy of the review advice is given to a reviewing party under subsection (1) (b) and -

(a) before the term of the engagement as service contractor ends; and

(b) within the review period.

(1) This section applies if a dispute arising out of a review carried out, or required to be carried out, under this division exists between the reviewing parties.

(2) A reviewing party 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.

(3) The specialist adjudicator or QCAT must have regard to the review criteria in deciding the application.

(4) Subsection (5) applies if only 1 of the reviewing parties has carried out the review.

(5) A dispute is taken to exist between the reviewing parties, and to have arisen in the way mentioned in subsection (1), if the reviewing party who carried out the review considers the reviewable terms are not currently fair and reasonable.

(1) The review criteria are each of the following -

(a) the appropriateness of the reviewable terms for achieving a fair and reasonable balance between the interests of the reviewing parties;

(b) whether the reviewable terms impose conditions that -

(i) are unreasonably difficult to comply with; or

(ii) are not necessary and reasonable for the protection of the legitimate interests of a reviewing party;

(c) the consequences of complying with, or contravening, the reviewable terms and whether the consequences are unfairly harsh or beneficial to a reviewing party;

(d) whether the reviewable terms are appropriate for the scheme;

(e) the term of the engagement as service contractor and the period of the term remaining.

(2) The review criterion mentioned in subsection (1) (d) is to be applied having regard, in particular, to the nature, features and characteristics of the scheme.

• [37] The purpose of the review undertaken by the body corporate and caretaker (as set out in s 131) is to help the reviewing parties decide, relevantly:

(a) if the remuneration terms are currently fair and reasonable; and

(b) if they are not - how they should be changed to ensure they are fair and reasonable (emphasis added).

• [38] The review finishes when the body corporate passes the final decision referred to in s 132(4). In this matter, the body corporate was required to pass the ordinary resolution about the final decision as soon as reasonably practicable after giving the caretaker a copy of the review advice; and before the caretaker's term ended; and within the "review period". The "review period" here is the later of 3 years after the start of the term of engagement,[16] or 1 year after the AGM next held after the original owner control period ends.[17]

• [39] During the hearing, it became apparent that the basis of the appeal was whether the Member had erred in not first addressing the issue of jurisdiction before proceeding to consider whether to allow the application to amend. We note the caretaker had contested the application to amend on the basis that neither the original application, nor the draft amendment satisfied the limbs of s 133 of the BCCMA.
• [40] It is not apparent from the Reasons that the learned Member made a positive finding about whether jurisdiction existed. The Member said that the body corporate had raised 'plausible arguments' as to why its further review advices might 'cure any deficiencies_'_ in its original application but stopped short of saying whether the deficiencies meant there was no jurisdiction. It appears the Member allowed the amendment on the basis that if there was no jurisdiction due to non-compliance with the remuneration review provisions, any deficiencies might be cured by the amendment.
• [41] In our view, the Member did err in failing to consider first whether there was jurisdiction and if not, whether that could be cured by the proposed amendment. If there is jurisdiction to decide the original application, the application to amend was unnecessary and should have been dismissed.

• [42] Whether or not the tribunal has jurisdiction to determine the ultimate dispute between the parties, it will always have 'preliminary jurisdiction' to determine the question of jurisdiction.
• [43] Whether the dispute is properly before the Tribunal depends upon whether there is a 'dispute arising out of a review' within the meaning of s 133 of the BCCMA.
• [44] In deciding whether there is jurisdiction in respect of the original application, it is helpful to set out the steps required by the remuneration review provisions and what steps the body corporate took:

Body corporate must pass an ordinary resolution authorising the making of a request for review: s 130(3).

1 July 2022: body corporate resolves to request review.

Body corporate did not pass another resolution but relied on resolution of 1 July 2022.

Body corporate requests that the reviewing parties undertake a review of the remuneration payable to the caretaker: s 130(2).

3 August 2022: body corporate requests review by letter to caretaker

29 August 2023: body corporate requests review (relied on minutes of 1 July 2022 as authorising request).

Within 2 months after requesting the review the body corporate must obtain from an appropriate person, independent written advice, based on the review criteria about the remuneration: s 132(1)(a).

The review must be carried out having regard to the review criteria: s 132(2); and

A copy must be given to the caretaker: s 132(1)(b).

13 September 2022 body corporate received first review advice.

16 September 2022 gave first review advice to caretaker.

14 October 2022 body corporate received amended first review advice.

19 October 2022 gave amended first review advice to caretaker.

12 September 2023 body corporate received second review advice.

14 September 2023 gave second review advice to caretaker.

Body corporate must make final decision about outcome of the review by ordinary resolution: s 132(3).

31 May 2023 body corporate held EGM and by ordinary resolution:

made final decision to reject offer of L & L that remuneration remains per current caretaking agreement in the amount of $52, 030.00 per annum plus GST; and

to approve commencement of an application to resolve a complex dispute in the Tribunal: s 312(1)(b) QCAT Act.

19 June 2024 body corporate resolved by ordinary resolution that remuneration payable not fair and reasonable (fresh evidence).

The review must be finished as soon as reasonably practicable after a copy of the review advice is given to the caretaker and before the term of the engagement as caretaker ends and within the 'review period': s 132(4).

If a dispute arising out of a review carried out or required to be carried out, under division 7 exists between the reviewing parties - a reviewing party may apply for an order of QCAT exercising original jurisdiction to resolve the dispute: s 133(2).

QCAT must have regard to the review criteria in deciding the application: s 133(3).

Body corporate filed Application for dispute on 20 July 2023.

• [45] In this matter, the caretaker says the review provisions were not complied with in the following respects:

(a) The first review advice was not a proper review because it described the scheme as: a 19 lot scheme; located at 1 Flametree Circuit, Arundel; and in an aerial photograph outlining the 19 lots located at 1 Flametree Circuit. This occurred in circumstances where the scheme, in fact, is a 43 lot scheme and located at 1 Flametree Circuit (19 lots) and 2 Flametree Circuit (24 lots). This review advice does not comply with s 134 and was invalid.

(b) The amended first review advice could not be considered because it was not preceded by a review request authorisation. The body corporate may only make a review request under s 130(2) if it has first passed an ordinary resolution which authorises the making of that review request: s 130(3) (review request authorisation). The caretaker argues that the original review request authorisation only applied to the first review advice and could not be relied upon as authorising the amended first review advice. In any event, even if the original review request authorisation were to be relied upon, that would mean the amended first review advice was outside the 2 month time period required by s 132(1).

(c) The second review advice happened after the application in the Tribunal had been filed and so could not have been the review from which a dispute arose for the purposes of s 133(2)(b) of the BCCMA.

(d) There was no ordinary resolution by the body corporate after the second review advice giving their final decision about the outcome of the review as required by s 132(3). We note that the additional evidence proves this not to be the case.

(e) If the first review advice is valid, then the second review advice cannot be relied upon because the caretaking contract can only be reviewed once under Division 7: s 130(6).

• [46] The caretaker also raised in its submissions in response to the application for additional evidence that there is no evidence as to when the Original Owner Control Period (OOCP) ended and that it seems highly likely that the 'new' caretaking agreement entered into by deed on 15 April 2021 was entered into well after the OOCP ended, meaning no review under s 130 would lie. This argument is premised on the basis that the agreement of 15 April 2021 was a novation rather than an assignment. This argument was not raised before the learned Member and appears to have been raised for the first time in the caretaker's submissions objecting to the further evidence.
• [47] The importance of complying with the statutory time frame in s 132 was considered by Member Barlow SC (as he then was) in Emvalle Pty Ltd v Aqua Vista Apartments CTS 37051[18] where he said:

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.

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

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.

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."

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.

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.

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.

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 David Grant & Co Pty Ltd.

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.

• [48] We find that the body corporate's request for review was sufficient authority to apply to the first review advice and to the amended first review advice. The Minutes of 1 July 2022 record that:

The body corporate resolves, by ordinary resolution, to make a request (Review Request), pursuant to section 130(2) of the Body Corporate and Community Management Act 1997, for a review of the remuneration of the Management Engagement & Letting Authorisation Agreement dated 27 January 2021 (Agreement) between the Body Corporate and Avid Realty Qld Pty Ltd as subsequently assigned to L & L International Investment Pty Ltd (caretaker).

• [49] The body corporate has resolved to make a request for review, that is, that the reviewing parties undertake a review of the remuneration paid to the caretaker. It is irrelevant, in our view, whether more than one review advice is obtained consequent upon that request.
• [50] The issues, in our view, are:

(a) whether the first review advice was valid;

(b) whether the amended first review advice was valid; and

(c) whether the review based on the second review advice complies with the review provisions, in particular whether the application for dispute can be filed prior to the "review" being undertaken.

• [51] Whether any inadequacies in the review advice rendered the review advice a nullity is important because, if they did not, the review process was properly undertaken and the Tribunal had jurisdiction to determine a dispute arising from that review. It also means that the application to amend was unnecessary.
• [52] The first question is whether the "review advice" complied with the statutory requirements. If not, the question is whether any non-compliance renders the review advice a nullity.[19]
• [53] The fact an act requires that a particular process be followed is a different question from whether a failure to comply with that process will nullify or invalidate that statutory process and the result of it.
• [54] The first review advice was obtained within the two months required by s 132(1)(a).
• [55] Section 132(1)(a) provides that the review advice must be based on the review criteria. The review criteria are set out in s 134(1)(a) to (e). They are:

(a) the appropriateness of the reviewable terms for achieving a fair and reasonable balance between the interests of the reviewing parties

(b) whether the reviewable terms impose conditions that -

(i) are unreasonably difficult to comply with; or

(ii) are not necessary and reasonable for the protection of the legitimate interests of the reviewing party;

(c) the consequences of complying with, or contravening, the reviewable terms and whether the consequences are unfairly harsh or beneficial to a reviewing party;

(d) whether the reviewable terms are appropriate for the scheme;

(e) the term of the engagement as service contractor and the period of the term remaining.

• [56] Section 134(2) provides that in applying review criterion s 134(1)(d), that is, in considering whether the terms are appropriate for the scheme, regard is to be had, in particular, to the nature, features and characteristics of the scheme.
• [57] The first review advice proceeded on the basis that the development comprised 19 townhouses at 1 Flametree Circuit. It did not take into account the 24 other lots, also part of the scheme, at 2 Flametree Circuit. The report estimated that a fair value of remuneration for the caretaking agreement was $21, 651.62.[20]
• [58] The caretaker contends that the first review advice was a nullity because it did not comply with the Act. The body corporate maintains that the error in referring to the incorrect number of townhouses did not invalidate the review advice or the statutory review process.
• [59] In our view, the first review advice did not comply with s 134(2) because, in assessing whether the reviewable terms are appropriate for the scheme, it did not have regard to the correct number of lots.
• [60] The issue, however, is whether that error renders the review advice a nullity.
• [61] The consequences of the error depend upon whether the statutory review provisions show a legislative purpose to invalidate any review advice that fails to properly apply one of the criteria.[21] The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the provisions.
• [62] In Project Blue Sky Inc v Australian Broadcasting Authority[22] the majority of the High Court said:[23]

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment ... There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue." (footnote omitted)

• [63] In Project Blue Sky the High Court was concerned with whether a statutory requirement that an administrative agency perform its functions in a manner consistent with Australia's obligations under any convention or international agreement to which Australia is a party was intended to invalidate an act done in breach of the requirement. The majority in Project Blue Sky were strongly influenced in reaching a conclusion in the negative by the consideration that the requirement in question regulated the exercise of functions already conferred on the agency, as opposed to imposing essential preliminaries to the exercise of those functions. Their Honours were also influenced by the circumstance that the provisions did not have "a rule‑like quality which [could] be easily identified and applied", many of the obligations relevant in that case being "expressed in indeterminate language". Also important to the decision was the consideration that "public inconvenience would be a result of the invalidity of the act", especially if those affected by non‑compliance were neither responsible for, nor aware of, the non‑compliance.
• [64] Project Blue Sky was distinguished in Forrest & Forrest Pty Ltd v Wilson.[24] There, in considering whether the failure to obtain a mineralisation report at the time of making an application for a mining lease, the High Court held:[25]

A consideration of "the language of the statute, its subject matter and objects, and the consequences for the parties of holding void" acts done in breach of the Act, reveals that ss 74(1)(ca)(ii), 74A(1) and 75(4a) imposed essential preliminaries to the exercise of the power conferred by s 71 of the Act. That this was so was made clear by both the express terms and the structure of the provisions as sequential steps in an integrated process leading to the possibility of the grant of a mining lease by the Minister. These provisions were not expressed in indeterminate terms: they imposed rules which could be easily identified and applied. In addition, any inconvenience suffered by treating the requirements of the Act as conditions precedent to the exercise of the Minister's power would enure only to those with some responsibility for the non‑observance, whereas (as will be explained) the contrary view would disadvantage both the public interest and individuals who were within the protection of the Act. Finally, and importantly, Project Blue Sky was not concerned with a statutory regime for the making of grants of rights to exploit the resources of a State.

• [65] The 'review advice' is different to the 'review'. Section 132(2) provides that the 'review' must be carried out having regard to the review criteria. The review is the review carried out by the reviewing parties, namely the body corporate and the contractor. There is no statutory requirement for the review to be carried out having regard to the review advice, although the reviewing party who obtains it must give a copy of it to the other reviewing party within two months after requesting the review: s 132(1)(b). Accordingly, there is more than one occasion for considering the review criteria which reduces the significance of any failure to do so by the independent reviewer. This, coupled with the fact that the statute does not require the review or the dispute to be resolved by reference to the review advice, tends against the contention that an inadequacy in the review advice renders the advice, and process, a nullity where there is no statutory requirement to have regard to it. By contrast, for example, in Forrest & Forrest Pty Ltd the Minister was required to have regard to the mineralisation report in making the Minister's decision.
• [66] The statute requires that the review report be 'based on' the review criteria. This too involves inexactitude. To adopt the wording in Project Blue Sky, the statutory requirement 'based on' is indeterminate language, without a 'rule-like quality'. Again, this tends against inadequacy of the review report rendering the report, and the process, a nullity.
• [67] Whether a review report does or does not comply with the review criteria may be the subject of different opinions, and the extent of non-compliance a matter of dispute and difference of opinion.
• [68] It is not consistent with the purpose of undertaking a review, that the validity of the process should depend upon the quality of the review advice or upon whether the author has adequately based their report on the review criteria. Further, that the validity of the process should depend upon the adequacy of the review report which is outside the control of either of the reviewing parties.
• [69] The purpose of the review report is, in our view, to assist the parties to reach a resolution on their review, without the need to apply to QCAT for an order exercising its original jurisdiction to resolve the dispute.[26] That being so, the review report does not perform a critical role in the overall review process and again, this tends against an inadequacy in the report rendering the report, and the process, a nullity.
• [70] There follows after a review report, the review by the reviewing parties, and then, in effect, a review by QCAT. QCAT must have regard, in any event, to the review criteria in deciding the application for dispute arising out of the review.[27] The Tribunal can inform itself in any way it sees fit. This may include directing the parties to provide reports of their own. While we accept that the statutory provisions most likely sought to avoid this by requiring the parties to obtain an independent report, there would be nothing to prevent either party from seeking to file their own report even if there was no dispute about whether the review advice satisfied the statutory requirements.
• [71] The section conferring jurisdiction on the tribunal, s 133, provides that a reviewing party may apply to QCAT to resolve the dispute if a 'dispute arising out of a review carried out, or required to be carried out, under this division exists between the reviewing parties' (emphasis added). Section 130(2) provides that if a body corporate or contractor requests a review, the reviewing parties must, as provided under this division and for the purpose mentioned in s 131, review the terms of the contract that provide, relevantly, for the remuneration payable to the service contractor.
• [72] A review of the terms of a service contract can only occur once: s 130(6). As Project Blue Sky makes clear, the consequences of finding a failure to comply with the statutory scheme renders the failed step a nullity is a relevant consideration. Here, notwithstanding there is no requirement for the reviewing parties to have regard to the review report, to find an inadequate report a nullity would be to deprive a party forever from reviewing the service contract. Further, service contracts may be for a term of some decades. This again tends against a non-complying review report a nullity and rendering the process ineffective.
• [73] In conclusion, a consideration of the 'language of the statute, its subject matters and objects', including the consequences for the parties of finding an inadequate report a nullity, dictates that a report which is deficient for not being 'based on' the review criteria in one or more respects, is not a nullity, nor is the review process ineffective. Accordingly, we find the first review advice to be valid,
• [74] Although it is unnecessary in view of our finding, we turn to consider the validity of the amended first review advice and, in view of those findings, whether the Member has erred in allowing the amendment.

• [75] The amended first review advice corrected the problems raised by the caretaker in respect of the first advice but was not obtained and provided to the caretaker within two months of the review request as required by s 132(1).
• [76] Judge Barlow in Emvalle Pty Ltd v Body Corporate for Aqua Vista Apartments CTS 37051[28] concluded, but not without hesitation,[29] that the requirement was mandatory and not just procedural. His Honour accepted the submissions of counsel to the effect that the provision imposed a statutory time limit akin to that imposed by s 419G of the Corporations Law in relation to statutory demands. Further, that given the jurisdictional nature of the time limit, it could not be extended using s 61 of the QCAT Act.
• [77] We respectfully agree.
• [78] Accordingly, we conclude that the amended review report was a nullity and could not be relied upon in applying to QCAT to resolve the dispute.

• [79] The consequences of our findings with respect to the first review advice is that the amendment was unnecessary and should, for that reason, have been disallowed. However, for completeness, we turn to consider whether the amendment which seeks to introduce a third review process, should have been allowed.
• [80] The Member gave the following reasons for allowing the amendment:[30]

(a) the Tribunal's role, in considering an application to amend, was not to determine the merits of the application;

(b) the essential consideration is whether the amendment would progress the proceeding in a in a timely and cost effective way, and whether there would be any adverse effect on the other party in terms of fairness and prejudice;

(c) he was satisfied the body corporate had raised 'plausible arguments' as to its ability to proceed upon the further review advices within the meaning and intent of the BCCMA;

(d) it was in the interests of justice to give leave for the body corporate to amend its claim.

• [81] The caretaker raises two issues with the amendment which introduced, in effect, a third completely new review process:

(a) there was no body corporate resolution making a final decision about the outcome of the review. As it turns out, there was.[31]

(b) the Application for Dispute cannot precede the review process because it has to 'arise out' of the review process.

• [82] The review process itself was validly undertaken.
• [83] The issue is whether a dispute can 'arise out of a review' (within the meaning of s 133) in circumstances where the review occurs after the application to QCAT has been made. In our view, for the reasons expressed by Judge Barlow in Emvalle, it cannot. QCAT only has the jurisdiction conferred on it by s 133 in relation to disputes arising out of reviews of remuneration terms. Until the review occurs, there can be no dispute arising out of a review carried out under the division, and hence no application to QCAT can be made.[32]
• [84] Under s 142(3)(a)(ii) of the QCAT Act, leave to appeal must be obtained to appeal against a decision on an interlocutory application. In the circumstances we grant leave to appeal on the basis the Member erred in granting leave to amend the application in circumstances where the originating application for dispute was valid, and the Tribunal had jurisdiction to determine it. On the other hand, it did not have jurisdiction to determine the application the subject of the amendment.
• [85] It follows, for the reasons above, that the application for leave to amend should have been refused.
• [86] Accordingly, we make the following orders:
  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The decision to give leave to amend the application is set aside.
  4. It is declared that the Tribunal has jurisdiction in respect of the Application for Dispute filed on 20 July 2023.

[1] Body Corporate and Community Management Act 1997 (Qld), sch 6.

[4] [1979] HCA 9; (1979) 142 CLR 531.

[5] Moore (a pseudonym) v The King [2024] HCA 30.

[9] 1 Flametree Circuit (19 lots) + 2 Flametree Circuit (24 Lots).

[10] [1984] 1 Qd R 404, 408.

[11] Allen v Queensland Building and Construction Commission [2023] QCATA 66, [3].

[12] [2020] QCATA 130, [18].

[16] That is, 3 years from the date of commencement of 22 December 2020 - 22 December 2023.

[18] [2011] QCAT 224.

[19] Project Blue Sky (1998) 194 CLR 355, 388-389, [91].

[20] The amended first review advice described the scheme as a 43 lot scheme located at 1-2 Flametree Circuit, Arundel and estimated the fair value of remuneration to be $34, 429.62. The second review advice, the subject of the amendment application, of 12 September 2023 estimated a fair value of the same scheme to be $37, 984.52. The current remuneration is $52, 030.00.

[21] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[24] [2017] HCA 30; 262 CLR 510.

[28] [2011] QCAT 224.

[31] See [27] where fresh evidence was allowed of the resolution by the body corporate as to its final decision.