Medcalf v The Body Corporate for the Hervey Bay Pier Resort [2025] QCAT 355

• [3] The applicant is a lot owner in the scheme of which the respondent is the body corporate. The applicant has been the chairperson and a committee member of the respondent at various times however this proceeding is brought by the applicant in her personal capacity as a lot owner.
• [4] At its heart, the applicant's complaint is about the engagement by the respondent of a body corporate manager, KBW Community Management Pty Ltd ('KBW'). The applicant seeks various orders including an order overturning the resolution by the respondent engaging KBW as manager, orders for the disclosure of various documents by various persons, the dismissal of KBW as manager and an order for a forensic audit to be undertaken to determine whether any monies are owed by the respondent to KBW. In an amended application the applicant seeks orders that KBW be prevented from acting as body corporate manager until the Tribunal has fully considered a determination by an adjudicator that the contract of engagement with KBW was void.
• [5] It should be noted that the applicant, quite rightly, concedes she was not a party to the agreement between the respondent and KBW however says she is a directly affected party financially involved in the dispute because the respondent has failed in its duty to owners and has 'breached the previous order.' While it is unclear what order the applicant is referring to, the dispute between the applicant and the respondent has been the subject of at least two adjudication proceedings since early 2024.

• [6] Schedule 6 of the BCCMA provides that a 'complex dispute' means:

(a) a matter for which an application mentioned in section 47AA(3)(a), 47B(3)(a), 48(1)(a), 385(8)(a), 387(6)(a), 405(2)(a) or 412(2)(a) is, or may be, made; or

(b) a dispute mentioned in section 133, 149A, 149B or 178.

• [7] Of particular relevance for present purposes is s 149B of the BCCMA:

149B Specialist adjudication or QCAT jurisdiction

(1) This section applies to a dispute about a claimed or anticipated contractual matter about -

(a) the engagement of a person as a body corporate manager or caretaking service contractor for a community titles scheme; or

(b) the authorisation of a person as a letting agent for a community titles scheme.

(2) A party to the dispute may apply -

(a) under chapter 6, for an order of a specialist adjudicator to resolve the dispute; or

(b) as provided under the QCAT Act, for an order of QCAT exercising the tribunal's original jurisdiction to resolve the dispute.

• [8] The term 'body corporate manager' is defined:

A person is a body corporate manager for a community titles scheme if the person is engaged by the body corporate (other than as an employee of the body corporate) to supply administrative services to the body corporate, whether or not the person is also engaged to carry out the functions of a committee, and the executive members of a committee, for a body corporate.[1]

• [9] The term 'caretaking service contractor' is defined:

caretaking service contractor, for a community titles scheme, means a service contractor for the scheme who is also -

(a) a letting agent for the scheme; or

(b) an associate of the letting agent.[2]

• [10] The term 'contractual matter' is defined:

contractual matter, about an engagement or authorisation of a body corporate manager, service contractor or letting agent, means -

(a) a contravention of the terms of the engagement or authorisation; or

(b) the termination of the engagement or authorisation; or

(c) the exercise of rights or powers under the terms of the engagement or authorisation; or

(d) the performance of duties under the terms of the engagement or authorisation.

(a) generally, includes complaint; and

(b) for chapter 6, see section 227.

• [12] Section 227(1) provides:
  1. Meaning of dispute

(1) A dispute is a dispute between -

(a) the owner or occupier of a lot included in a community titles scheme and the owner or occupier of another lot included in the scheme; or

(b) the body corporate for a community titles scheme and the owner or occupier of a lot included in the scheme; or

(c) the body corporate for a community titles scheme and a body corporate manager for the scheme; or

(d) the body corporate for a community titles scheme and a caretaking service contractor for the scheme; or

(e) the body corporate for a community titles scheme and a service contractor for the scheme, if the dispute arises out of a review carried out, or required to be carried out, under chapter 3, part 2, division 7; or

(f) the body corporate for a community titles scheme and a letting agent for the scheme; or

(g) the body corporate for a community titles scheme and a member of the committee for the body corporate; or

(h) the committee for the body corporate for a community titles scheme and a member of the committee; or

(i) the body corporate for a community titles scheme and a former body corporate manager for the scheme about the return, by the former body corporate manager to the body corporate, of body corporate property; or

(j) if the dispute is about access by an interested person (layered arrangement) to the records of a body corporate for a community titles scheme in a layered arrangement of community titles schemes - the person and the body corporate; or

(k) if the dispute is about the giving of documents or material required to be given to a body corporate for a community titles scheme by an original owner under this Act - the body corporate and the original owner for the scheme.

(2) The only remedy for a complex dispute is -

(a) the resolution of the dispute by -

(i) an order of a specialist adjudicator under chapter 6; or

(ii) an order of QCAT exercising the tribunal's original jurisdiction under the QCAT Act; or

(b) an order of the appeal tribunal on appeal from a specialist adjudicator or QCAT on a question of law.

• [14] The applicant says that the dispute is a complex dispute for the purposes of s 149B of the BCCMA. The applicant says the dispute is in relation to a contractual matter involving the engagement of KBW as body corporate manager, that the application relates to the performance of duties by KBW under the terms of the engagement, and that the application seeks the termination of the engagement of KBW as body corporate manager.
• [15] The applicant says if the Tribunal determines that the dispute is not a complex dispute, the proceeding should be transferred to the Office of the Commissioner for Body Corporate and Community Management or the Magistrates Court of Queensland.

• [16] The respondent says that the applicant brings the proceeding solely in her capacity as a lot owner. The respondent says that the applicant is not a 'party' to whom s 149B(2) applies which is a requirement of the section to confer standing.
• [17] The respondent says that the dispute between the applicant and the respondent is a dispute within the meaning of s 227(1)(b) of the BCCMA, but not a complex dispute within the meaning of s 149B of the Act.
• [18] In the alternative, the respondent says that if the subject matter of the dispute is a complex dispute insofar as it relates to the appointment of a body corporate manager there is no identifiable dispute between the parties to the engagement (i.e. KBW and the respondent) and the applicant is not a party to any such dispute and she therefore lacks standing to bring the proceeding.

• [19] Section 149B of the BCCMA is silent on who the parties to the dispute may be unlike s 227(1) of the Act which sets out who parties to a dispute are for the purposes of Chapter 6 of the Act.
• [20] In Sheehy, R. & V. v The Body Corporate For Marlin Cove CTS 321288 & Trinity Beach Holidays Pty Ltd,[3] ('Sheehy') a decision of the former Commercial and Consumer Tribunal, lot owners in a scheme commenced a proceeding against the body corporate and a caretaking contractor seeking relief relating to arrangements between the body corporate and the contractor. The Tribunal held that an understanding of what is dealt with by section 149B(1) can be informed by considering the context of the whole BCCMA which includes what the definitions for Chapter 6 provide. The Tribunal also stated that in determining what is meant by "dispute" in section 149B, it is appropriate to take into account what a party to "the" dispute must satisfy under Chapter 6. The Tribunal held:

Thus, for a person taking the path of section 149B(2)(a), it would be to section 227(1) that attention would be paid. It is clear from this particular provision that a dispute of the kind that the applicants now raise does not fall within any of paragraphs (a) to (i) inclusive. Although unnecessary to consider here, it may well be that an application pursuant to section 227(2) by the applicants is something which would deal with the particular question that they want agitated, particularly when attention is paid to section 228(1)(a).

From what has been analysed concerning the reconciled interpretation of section 149B to cover whatever path an applicant takes under that provision, especially bearing in mind the contextual approach to the whole of the BCCM Act, the applicants are not in a relevant "dispute" about a "contractual matter" of the relevant kind (even if the latter element is satisfied).

Consequently, there is no real question that can be determined on the basis that the rights of the parties to this particular proceeding depend upon it, because of the absence of the necessary causal relationship between the applicants and a dispute under section 149B that provides the basis of jurisdiction for section 31(1)(a) of the CCT Act to apply.

• [21] The decision in Sheehy was considered by Member Barlow QC (as His Honour then was) in Reynolds v Body Corporate for Mount View Apartments[4] ('Reynolds'). Reynolds involved a dispute between a caretaking services contractor and a body corporate. The relevant agreement had been terminated by the body corporate for breach by the applicant. The applicant brought the claim relying upon s 149B. The body corporate contended that as the agreement had been terminated the applicant was not a caretaking contractor at the time the application was filed and that the dispute was not about a contractual matter. The Tribunal noted that an application pursuant to s 149B(2)(b) is not an application pursuant to Chapter 6 of the BCCMA with the result that s 227 is not directly relevant to the jurisdiction of the Tribunal under s 149B. The Tribunal stated that while chapter 6 informs, to some extent, the types of dispute referred to in s 149B, the Tribunal did not agree that the arguable limitation of the parties to a dispute to the existing contracting parties, under s 227, wholly informs the types of dispute that are the subject of s 149B. The Tribunal stated:

Therefore, in my opinion, in cases referred to the tribunal in its original jurisdiction, under paragraph 149B(2)(b), there is no similar restriction on the parties to a dispute to that imposed on the parties to a dispute before a specialist adjudicator. The tribunal can hear and resolve any dispute about a contractual matter about the engagement of a caretaking service contractor, whenever that engagement occurred and whether or not it remains extant. The tribunal's jurisdiction is to resolve a dispute 'about' a 'contractual matter'. The latter term, about an engagement, relevantly means a contravention of the terms of the engagement or the termination of the engagement. A dispute about the termination of an engagement will often (indeed, nearly always) arise after the termination or purported termination. It will often involve issues about whether the engagement has been terminated, whether there was an entitlement to terminate and who terminated it. (The latter two issues arise directly here.) That indicates that post-termination disputes about an engagement can be heard and resolved by the tribunal. Indeed, I can see no logical reason why the legislature would exclude, from the tribunal's jurisdiction, a dispute about the former parties' rights under a terminated service contract, where it grants jurisdiction to the tribunal or an adjudicator to determine issues about an existing service contract.

There is nothing in s 149B or the definition of 'contractual matter' that limits the tribunal's jurisdiction to considering the terms or the termination of an engagement before it is terminated. Indeed, to resolve a dispute about termination before the contract is terminated is likely to involve giving an advisory opinion. It is not a function or power of the tribunal to give such an opinion. (footnotes omitted)

• [22] In Trojan Resorts Pty Ltd v Body Corporate for The Reserve (No. 2)[5] ('Trojan Resorts') the Tribunal considered an application to be joined to a proceeding between a caretaker/letting agent and a body corporate by a former chairperson of the scheme who was also the controlling mind behind a lot owner in the scheme. The Tribunal considered whether the dispute between the individual/lot owner and the caretaker/letting agent was a 'complex dispute'. The Tribunal, referring to Reynolds and Sheehy found that there was not the necessary nexus between the proposed applicants and the 'dispute' to support the joinder of the proposed applicants.
• [23] Most recently in Justlainer Pty Ltd ATF the Trevor and Allison Black Family Trust v The Body Corporate for Ko Huna Resort Village CTS 27120 & Anor[6] The Appeal Tribunal considered the meaning and scope of s 149B. At first instance, the Tribunal had held that the definition of 'dispute' for the purposes of s 149B(2) makes it clear that the parties are, relevantly, the body corporate, the caretaking service contractor and the letting agent. The Appeal Tribunal adopted the same approach as in Reynolds and Sheehy in finding that the definition of dispute in s 227 has no application when construing s 149B. While the Appeal Tribunal in Justlainer did not consider the issue of the nexus between the applicant and the 'dispute', such a nexus was apparent on the facts of the case.
• [24] The applicant says that the dispute the subject of the proceeding is a dispute within the meaning of s 227(1)(b) of the BCCMA being a dispute between the body corporate for a scheme and a lot owner included in the scheme. However, as the various authorities make clear, s 227(1) is not determinative of the type of dispute falling within s 149B.
• [25] It is apparent that the definition of 'contractual matter' in the BCCMA informs to some extent who may be the parties to a complex dispute for the purposes of s 149B. The authorities referred to all involve the presence, or absence, of the four categories of contractual matter and have involved parties asserting rights under a contract for the supply of services to the body corporate or, in the case of Trojan Resorts, proposed applicants who had no such rights. As the Tribunal stated in Reynolds, a 'contractual matter' about an engagement means a contravention of the terms of the engagement or the termination of the engagement.
• [26] As I have previously observed, the applicant here is a lot owner in the scheme and a former chairperson and committee member of the respondent. The applicant previously unsuccessfully applied for an adjudicator's order restraining the respondent from engaging KBW as body corporate manager. The complaints made by the applicant in this proceeding were in the same or similar terms to those raised in the adjudication proceeding. The final orders sought by the applicant in the adjudication proceeding also overlap to some extent with the final orders sought by the applicant in this proceeding. It is not clear to me whether the adjudication proceeding remains on foot and is progressing in tandem with this proceeding.
• [27] In deciding the preliminary issue it is necessary to consider whether the dispute between the applicant and the respondent falls within the meaning of a 'contractual matter'.

Is the dispute about a contravention of the terms of the engagement or authorisation?

• [28] It is not asserted by the applicant that the dispute is about a contravention of the terms of the engagement of KBW as body corporate manager.

Is the dispute about the termination of the engagement or authorisation?

• [29] The applicant says that one of the orders sought is the termination of the engagement of KBW as body corporate manager. That may be so. However, it is apparent that the dispute as framed by the applicant is not of itself about the termination of the engagement. Rather, termination of the agreement is the outcome sought by the applicant.

Is the dispute about the exercise of rights or powers under the terms of the engagement or authorisation?

• [30] It could not rightly be said that the dispute is about the exercise of rights or powers by either KBW or the body corporate under the terms of the engagement. While the applicant disputes the validity of the engagement of KBW as the body corporate manager that is quite separate to the exercise of rights or powers under the terms of the engagement. Only in the most tangential way could the applicant's complaints be said to relate to the exercise of rights or powers by either KBW or the respondent under the terms of the engagement. There is clearly an absence of the nexus between the applicant and the dispute contemplated by sub-paragraph (c) of the definition of contractual matter.

Is the dispute about the performance of duties under the terms of the engagement or authorisation?

• [31] For the same reasons as set out above, there is not the necessary nexus between the applicant and the dispute contemplated by sub-paragraph (d) of the definition of contractual matter. It is not asserted that KBW has in any way breached the engagement in performing its duties. Rather, the applicant asserts that the respondent should not have engaged KBW as body corporate manager.

• [32] There is an absence of the necessary nexus between the applicant and the complaints she raises with a 'dispute' for the purposes of s 149B of the BCCMA. The dispute raised by the applicant does not involve a contravention of the terms of the engagement of KBW by the respondent or the purported termination of the engagement to adopt the reasoning in Reynolds.
• [33] It follows that the dispute is not a 'complex dispute' and the Tribunal does not have jurisdiction to decide the dispute.
• [34] The applicant seeks orders that the proceeding be transferred to the Commissioner's Office or the Magistrates Court, whichever is considered most appropriate. By s 52(2) of the QCAT Act if the tribunal considers it does not have jurisdiction to hear all matters in a proceeding, the tribunal may, by order, transfer the matter or matters for which it does not have jurisdiction to a court of competent jurisdiction or another tribunal or entity having jurisdiction to deal with the matter or matters.
• [35] It seems to me that an order to transfer the proceeding to the Magistrates Court is undesirable. It is not at all apparent to me that the Magistrates Court has the power to grant the relief sought by the applicant. Nor is it apparent to me that transfer to the Commissioner's Office is appropriate. As I have observed it is unclear whether an adjudication proceeding remains on foot between the parties.
• [36] The appropriate order is that the proceeding is dismissed pursuant to s 47 of the QCAT Act on the basis that the proceeding lacks substance or is otherwise misconceived in the absence of the Tribunal having jurisdiction to decide the dispute.
• [37] It is a matter for the applicant as to whether she proceeds in another forum.

[3] [2008] QCCTBCCM 14.

[4] [2018] QCAT 283.

[5] [2018] QCAT 366.

[6] [2025] QCATA 52.