Melville & Anor v Body Corporate for Santorini By The Sea [2021] QCAT 285

Body Corporate and Community Management (Accommodation Module) Regulation 2008, s 59, s 158, s 201, s 201(5), s 202

Property Law Act 1974, s 257 (now s 347), s 347(1)(a), s 347(1)(b), s 347(1)(c), s 347(1)(d), s 347(2)

Partnership Act 1891 (Qld), s 8, s 9

Conveyancing Act 1919 (NSW), s 170

Acts Interpretation Act 1954, Schedule 1

Body Corporate and Community Management Act 1997, s 14, s 94, s 96

Queensland Civil and Administrative Tribunal Act 2009, s 64

Grant Thornton (Qld) Pty Ltd v Green Global Technologies Ltd [2009] QSC 262

Dwyer v Canon Australia Pty Ltd [2007] SASC 100 at [6]

Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWC 1216 at [12]

Grayprop Pty Ltd v Maharaj International Pty Ltd [2001] QSC 387

Sarikaya v Victorian Workcover Authority [1997] FCA 1372; (1997) 80 FCR 262 at 263

Kratzman (Toowong) Pty Ltd v Majorie's Investments Pty Ltd & Anor (1986) Q Conv R 54-3221 [1986] QSC 249

Bressan v Squires [1974] 2 NSWLR 460

Menkens v Wintour [2009] QSC 206

Ex Parte Dally-Watkins; Re Wilson (1956) 72 WN(NSW) 454

Elizabeth City Centre Pty Ltd v Corralyn Pty Ltd (1994) 63 SASR 235, (1994) SASC 5138

_Coastalstyle Pty Ltd v The Proprietors, Surf Regency Building Units Plan 4246 (_Unreported Judgment of QSC in No. 1336 of 1991 delivered on 20 December 1991)

Riltang Pty Limited v L Pty Limited [2002] NSWSC 625

Setena Pty Ltd v Permanent Trustee Nominees (Canberra) Limited [1987] NSW Con. VR 55-322

Piazza Trevi v Cromwell BT Pty Ltd [2017] NSWSC 794

Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12

Halsbury's Laws of Australia, paras. 245-3610, 355-6535, 355-6500 to 6505

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] 256 CLR

Biondi v Kirklington & Piccadilly Estates Ltd [1947] 2 All ER 59

Mackay v Dick (1881) 6 App Cas 251

The Sands Gold Coast Pty Ltd v The Body Corporate for the Sands CTS 14967 [2019] QCAT 336

Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435

Hadoplane Pty Ltd v Edward Rushton Pty Ltd [1996] 1 Qd.R. 156

XMR Holdings Pty Ltd v Body Corporate for Xanadu [2016] QCAT 27

Lavish Constructions Pty Ltd v Haywagner Investments Pty Ltd [2017] QCAT 52

Gates v The City Mutual Life Assurance Society Limited [1985-1986] 160 CLR 1

• [1] Mr and Mrs Melville conduct a business, in partnership, of caretaking service contractors for the Respondent Body Corporate.
• [2] The Respondent consists of 55 lots, including the manager's lot, and common property at 28 Chairlift Avenue, Miami on the Gold Coast. It is regulated by the Accommodation Module.[1] From at least 2011 to about 2018 the Respondent appointed Whittles Strata Management as its Body Corporate Manager.
• [3] The Melvilles commenced to operate the business from 1 October 2009 when the previous contractors assigned the Deed of Engagement dated 30 July 2002. The term of the engagement expired on 13 July 2012. That Deed had been amended in 2007 and again in 2009 to provide for a further two (2) options for five (5) years in addition to the remaining option in the Deed. The Melvilles had the benefit of three five year options from 2012. These three options are referred to below as the Second, Third and Fourth Options.
• [4] It is common ground between the parties that the Second Option extending the Deed of Engagement from 14 July 2012 to 13 July 2017 was properly exercised. The dispute is whether the Third and Fourth Options were exercised and were they validly exercised.

• [5] At the commencement of the trial Mr Strangman of Counsel for the Respondent informed the Tribunal that a number of claims in the Respondent's counter-application[2] were withdrawn. A Direction was made for the Respondent to file a Notice of Withdrawal for these claims in its counter-application.
• [6] Mr Strangman of Counsel also informed the Tribunal that other matters in the Respondent's Response[3] relating to the validity of the various agreements between the parties was no longer being pursued and neither was the allegation that the managers had not correctly performed their duties under the agreements.
• [7] Counsel for each of the parties informed the Tribunal that the matters for the Tribunal to decide were whether:

(i) the Third and Fourth Options to extend the Deed of Engagement had in fact been exercised; and

(ii) if so, whether the exercise of the Third and Fourth Options under the Deed of Engagement was valid and legally binding to extend the Deed of Engagement to 13 July 2022 and to 13 July 2027 respectively.

• [8] Mr Fawcett of Counsel for the Applicants said that if the Tribunal found in favour of the Applicants in (i) and (ii) above, there was an additional issue relating to unpaid remuneration under the Deed of Engagement for the period from June 2019 to April 2021.[4] A late Application was subsequently made for interest on any unpaid remuneration.

• [9] The Deed of Variation of 16 November 2007 amended the Deed of Engagement to add a third option in the following terms (remuneration details omitted):

"15A. The Manager shall have the option of extending the term for a further period of five (5) years from the date of expiration of the second renewed term upon the same terms and conditions as are set forth herein with the exception of this clause and remuneration. The remuneration payable ... . Such option must be exercised by the Manager giving notice in writing to the Body Corporate at least three (3) calendar months prior to the date of the expiration of the second renewed term."

• [10] A further Deed of Variation dated 28 July 2009 amended the Deed of Engagement to add a fourth option. This option was in similar terms to the third option and provided (remuneration details omitted):

"15B. The Manager shall have the option of extending the term for a further period of five (5) years from the date of expiration of the third renewed term upon the same terms and conditions as are set forth herein with the exception of this clause and remuneration. The remuneration payable ... . Such option must be exercised by the Manager giving notice in writing to the Body Corporate at least three (3) calendar months prior to the date of expiration of the third renewed term.

2. The parties acknowledge that the current term of the Deed of Engagement expires on 13 July 2012 and the Manager has the benefit of the grant of three further options to renew the term for a period of five years each (including the additional option contained in this Deed referred to in clause 1). On the assumption that all of the remaining options are exercised, the term of this agreement will expire on 13 July 2027."

• [11] The Deed of Engagement provided that any notice required to be given or served shall be given or served in the same manner as is provided for in s.257 of the Property Law Act 1974 (now s.347).[5]

What happened about the exercise of the options?

• [12] Mr Melville says that on 23 December 2011 he prepared three letters each exercising the Second, Third and Fourth Options. The terms of the three letters were identical, except for the dates of each option exercised. The letter exercising the Third Option was in these terms and had the address as follows:[6]

As the current Managers, we wish to exercise the option to renew the term available to us under the Deed of Engagement between the Body Corporate for Santorini By The Sea Community Titles Scheme 16829 and Daniel John Melville and Bernadette Mary Melville

• [13] It was not until 25 December 2011, a public holiday, that he posted the three letters to Whittles.
• [14] After posting the three letters, Mr Melville says he changed the date on each of the letters on his computer to 25 December 2011 to remind him of the date of postage.[7]
• [15] Mr Melville was the sole signatory to each of the three letters dated 23 December 2011. If the Applicants had a partnership deed it was not in evidence, neither was there any evidence of the terms of the partnership. However, Mr Melville was carrying on the business of the partnership and by his sole signature on the letters he did bind the partnership and his co-partner, Mrs Melville to any exercise of the option.[8]
• [16] On 3 January 2012 Whittles, the Respondent's Body Corporate Manager, received the letter dated 23 December 2011 exercising the Second Option. The Respondent asserts it did not receive the letters exercising the Third and Fourth Options.[9]
• [17] No response or acknowledgment of the receipt of the letters posted on 25 December 2011 was received, so on 11 April 2012 Mr Melville sent an email to Whittles seeking an acknowledgement "by return email" of receipt of those letters.[10]
• [18] As no return email was received, on 12 April 2012 Mr Melville attended the office of Whittles at Ashmore to hand deliver copies of the letters sent by post on 25 December 2011 but were now dated 25 December 2011. This would have been an appropriate occasion for a timely enquiry about whether Whittles and or the Respondent had received the three earlier letters sent by post on 25 December 2011. No such enquiry was made.
• [19] 13 April 2012 was the last day on which notice of exercise of the Second Option could be given to the Respondent.
• [20] On 17 April 2012 the Regional Manager for Whittles sent a letter to the Melvilles confirming receipt of a letter dated 25 December 2011 exercising the Second Option. No acknowledgment was made of receipt of the letters exercising the Third and Fourth Options. For whatever reason the Melvilles did not respond to this letter nor did they make any enquiries about the letters posted on 25 December 2011, and the letters hand delivered on 12 April 2012, exercising the Third and Fourth Options.[11]
• [21] It appears that Mr Melville received the Regional Manager's letter as on 17 October 2012 Mr Melville advised the Chairman of the Body Corporate Committee by email that he had "received acknowledgement of the first of three letters submitted". His email then makes the enquiry whether the three letters are recorded in a list of correspondence in the Body Corporate. No response or acknowledgement was made by the Chairman. Whether that was because of an "overseas virus" affecting the Melvilles' office computer is not known. Again the evidence is that there were no follow up enquiries made by the Melvilles enquiring whether the other two letters were recorded on any Body Corporate correspondence.
• [22] On 25 November 2015 Mr Melville, having previously made application pursuant to s.202 of the Accommodation Module, inspected the Respondent's records at Whittles' office at Cleveland. That inspection was arranged with the local Body Corporate Manager, Yvonne Barnes. While inspecting those records Mr Melville says he "sighted the three 'Option to Renew' letters" which had been placed at the back of one folder among the Body Corporate records.
• [23] Neither party sought to rely on any minutes of a committee meeting recording "incoming correspondence", if any, held from January 2012. It is possible that these minutes did not assist either party. Lynette Mortimer, a former Treasurer and Chairperson of the Respondent, said that "generally" details of incoming correspondence to Whittles and the Respondent were included in the committee meeting minutes. However, she left it open as to whether or not this was the universal practice followed by the Committee.

Were the Third and Fourth Options exercised by posting the letters on

• [24] The submission on behalf of the Melvilles is that Mr Melville's evidence that he gave notice to the Respondent by posting "a set of three notices exercising the options" should be accepted.
• [25] The Respondent's submission is that the Melvilles' evidence of posting is insufficient on the basis that:

(i) Mr Melville's evidence should not be accepted because it is inconsistent and lacks credibility;

(iii) the Melvilles' evidence of "posting" does not satisfy the requirements for service of notices in the Deed of Engagement which requires service in the manner provided for in s.257 of the Property Law Act 1974 (now s.347).

• [26] The Respondent's Counsel in cross examination demonstrated that Mr Melville's evidence relating to exhibits to his Statements said to be copies of the letters posted on 25 December 2011 contain an incorrect date and were not exact copies of the actual letters posted. However, their contents were otherwise the same except for incorrect dates. Mr Melville said in his Witness Statement he posted the three letters individually on 25 December 2011 but in cross-examination said he posted those letters in an envelope. However, the evidence is that at least one of these letters posted was received by Whittles on 3 January 2012. Mr Melville was cross-examined about the posting of these letters and he maintained the essential elements of his evidence that he posted the three letters on 25 December 2011. I accept the evidence of Mr Melville, despite the discrepancies in his witness statement and evidence, and find that as a fact he posted the three letters on 25 December 2011.
• [27] The Respondent submits that the issue of posting and deemed receipt of documents was considered in Grant Thornton (Qld) Pty Ltd v Green Global Technologies Ltd[12] where Daubney J considered whether posting of a statutory demand complied with the service of documents provisions in s.109X(1)(a) of the Corporations Act.[13] His Honour referred to several elements to prove posting identified in Dwyer v Canon Australia Pty Ltd[14] where Debelle J said:

"In order to be able to establish service by post upon a company it is therefore necessary to prove that the letter was:

• Properly addressed;
• Pre-paid;
  • Posted as a letter and;
• Sent to the registered office of the company."

• [28] Justice Daubney said that service by post will not be established unless each of the above facts have been proved. His Honour also referred to the observations of Brereton J in Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd[15] where the issue was whether the plaintiff's solicitors had properly served a Statement of Claim on the defendant's solicitors. The plaintiff's solicitors provided an affidavit stating that the document had been placed in an express post envelope addressed to the defendant's solicitors and the envelope to be placed in the firm's "outgoing mail". Brereton J said in respect of that affidavit as alleged proof of posting the statement of claim:[16]

"[12] However, there is no absolute entitlement to default judgment, and where no notice has been given of the application, strict satisfaction of the requirements is necessary. That has not been established in respect of service of the Statement of Claim. As proceedings had already been commenced and an appearance filed, only ordinary service as distinct from personal service, was required. But Mr Moriarty's affidavit, ... does not prove that the envelope containing the Statement of Claim was posted, let alone duly posted with the appropriate postage affixed. Proof of service by post requires, at least:

• Proof that the envelope bore the correct name and address;
• Proof that the envelope contained the relevant document to be served;
• Proof that the envelope bore the correct cost of postage and;
• Proof that the envelope was placed in the post."

• [29] In Grant Thornton (Qld) Pty Ltd v Green Global Technologies Ltd[17] Daubney J concluded that a statutory demand and supporting affidavit had not been properly served by posting those documents by prepaid post to the respondent's registered office and said:[18]

"... There is no evidence before me of any of the processes within the applicant's solicitor's office which could give me any proper basis for concluding that posting of the documents in question in an envelope addressed to the registered office of the respondent company actually occurred. Accordingly, I find that the applicant has not proved service of the statutory demand by post."

• [30] Mr Melville's evidence of posting the three letters whether individually or in one envelope does not meet the criteria set out above to establish proof of posting. There is no evidence of the address on the envelope. The only evidence of an address is:

(i) Mr Melville's evidence the letters were posted to Whittles at 207 Currumburra Road, Ashmore on 25 December 2011; and

(ii) the address which appears on each of the three letters posted on 25 December 2011.

There is no evidence of the existence of an envelope or that the three letters were placed in the envelope or envelopes, there is no evidence about the amount of value of the stamp used on any envelope apart from Mr Melville saying he posted the letters, and there is no direct evidence that anyone lodged any stamped envelopes at any post office or in any post box. The Tribunal has no evidence before it that any of the requisite matters to prove posting were undertaken by Mr Melville on 25 December 2011. In the circumstances the Tribunal accepts the Respondent's submissions that the Applicants have not proved service of the letters to exercise the Third and Fourth Options by post on 25 December 2011.

• [31] The Respondent also submits that Mr Melville's evidence of posting the letters on 25 December 2011 does not comply with the requirements of service of notices provided in the Deed of Engagement. That Deed provides the contractual terms for service of notices between the Melvilles and the Respondent as follows, that any notice:[19]

"... shall be given or served in the same manner as is provided for in s.257 of the Property Law Act 1974 ..."

• [32] It is common ground that s.257 of the PLA is now s.347. Section 347 requires notices to be served in the following manner:

(1) A notice required or authorised by this Act to be served on any person or any notice served on any person under any instrument or agreement that relates to property may be served on that person -

(a) by delivering the notice to the person personally; or

(b) by leaving it for the person at the person's usual or last known place of abode, or, if the person is in business as a principal, at the person's usual or last known place of business; or

(c) by posting it to the person by registered mail as a letter addressed to the person at the person's usual or last known place of abode, or, if the person is in business as a principal, at the person's usual or last known place of business; or

(d) in the case of a corporation by leaving it or by posting it as a letter addressed in either case to the corporation at its registered office or principal place of business in the State.

(1A) A notice so posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post the notice would be delivered.

(2) If the person is absent from the State, the notice may be delivered as provided in subsection (1) to the person's agent in the State.

(6) This section applies unless a contrary method of service of a notice is provided in the instrument or agreement or by this Act."

• [33] There is no evidence the Melvilles' posting of the letters on 25 December 2011, was by "registered mail" and accordingly there is no service on either Whittles or the Body Corporate in accordance with s.347(1)(c) of the PLA.
• [34] There is also no evidence of any address of each envelope for the posting of the three letters to Whittles on 25 December 2011. There is evidence of the address of Whittles which Mr Melville said he posted those letters to Whittles.[20] That address (set out in para. [12]) used a post office box and also a street address. There is no evidence from the post office personnel who arranged delivery of mail to Whittles as to whether they would effect delivery to a post office box or to a street address should the envelope have carried that same address. Assuming for the moment, that the address on the envelope for the three letters was the same as the address set out on the three letters then the letters are most likely to have been delivered to Whittles at either:

• [35] In Grayprop Pty Ltd v Maharaj International Pty Ltd[21] it was held that the posting of a notice to exercise an option addressed to a post office box did not comply with s.347 so as to attract the deeming provisions in that section relating to receipt of the notice. In that case Philippides J referred to Sarikaya v Victorian Workcover Authority[22] where Black CJ held:

"... a post office box is not, in my view, the "address of a place" at which a document may be "left" for a person. The ordinary notion of "post office box" is of a container at a post office into which mail that has been duly posted is placed by postal authorities for retrieval by or on behalf of the holder of the box. Whether or not such a box is, in this context, the "address of a place", it is not the address of a place at which a document may be "left" by way of service."[23]

• [36] Mr Melville by posting the letters on 25 December 2011, exercising the Third and Fourth Options addressed to Whittles' "post office box" did not send those letters to the Respondent's usual or last known place of abode or a business. The Respondent is situated at 28 Chairlift Avenue, Miami on the Gold Coast. There is no evidence of what postal address other than its Miami address, the Respondent was using in late 2011 when Whittles were the Body Corporate Managers. In any event service on an agent is permitted by s.347(2) of the PLA where the principal is absent from the state. That provision does not assist the Melvilles posting the letters to Whittles.
• [37] Accordingly, if Mr Melville had addressed the envelopes to Whittles at its post office box, the Tribunal finds that the Melvilles have not proved service on the Respondent of the letters posted on 25 December 2011, in accordance with s.347 of the PLA.
• [38] Alternatively, if the envelopes were addressed to Whittles at their street address at Ashmore, then that address would have been insufficient to satisfy s.347(1)(c) of the PLA. According to evidence, Whittles' street address at Ashmore was not the Respondent's usual or last known place of abode or place of business. The evidence is that the Respondent was located at Miami on the Gold Coast. Accordingly, the Tribunal finds that the Melvilles have not proved service in the manner provided by s.347(1)(c) of the PLA.
• [39] The Tribunal finds that if Mr Melville's posting of the letters dated 23 December 2011 to exercise the Third and Fourth Options was to the post office box or the street address of Whittles there was no compliance with s.347 of the PLA. The Melvilles cannot prove that by posting the letters exercising the Third and Fourth Options the Respondent received those letters in accordance with the contractual service requirements of the Deed of Engagement.
• [40] The next issue is whether service by post in accordance with s.347 of the PLA is the only means of service on the Respondent or can the Melvilles rely on an additional or alternative means of service by post? Can, for example, the Melvilles say they choose an additional or alternative means of service on the Respondent by posting to "Whittles at 207 Currumburra Road, Ashmore on 25 December 2011"?[24] The clause[25] in the Deed of Engagement required that service "shall be given" in the same manner as is provided in s.347 of the PLA.[26] This clause is in similar terms and effect as clause 21.1[27] considered in Menkens v Wintour[28] where McMurdo J stated:

"The apparent intention of cl 21.1 is to effectively import the terms of s 347 into the Unitholders Deed, so that it would have a contractual operation corresponding with its statutory operation. By cl 21.1, it was not intended to prescribe the only means by which a notice could be served. The applicants' interpretation would serve a commercially sensible purpose; the respondents' interpretation would not."

In Menkens v Wintour[29], the Deed provided that the provisions of s.347 "shall apply" to service of any notice or demand.

• [41] Justice McMurdo also referred to the judgment of Ex Parte Dally-Watkins; Re Wilson[30] which considered a similar statutory provision in s.170 of the Conveyancing Act 1919 (NSW). Street CJ said:

"Section 170 is not intended to put a clog on bringing a notice to the attention of the person to whose attention it is intended to be brought. It is a section designed to extend or widen the sets of circumstances which will amount to a sufficient service, but it is quite clear that it is not intended to be an exclusive description and to prescribe the only ways in which service can be effected."

• [42] In Elizabeth City Centre Pty Ltd v Corralyn Pty Ltd[31] clause 12.1 of a lease provided for the tenant to give notice of exercise of the option "if mailed by registered or certified letter ...". The tenant exercised the option in a letter sent by ordinary post. The letter was not received by the landlord. In the judgment of the Full Court of the Supreme Court of South Australia, it was said:[32]

"8. ... When the clause (cl 12.1) is read as a whole, its meaning is clear. It does not stipulate exclusive means by which a notice may be served. The ordinary rule applies that a notice may be given by any means which actually brings it to the attention of the person to whom it is given. The clause authorizes certain methods of service which are to be valid irrespective of whether they are effective to bring the notice to the attention of the other party. ... If the service is effected by registered or certified mail, it is deemed to be effective on the third business day next following the posting. ...

10. It was contended, however, that, quite apart from Clause 12.1 of the sublease, the dispatch of the letter by ordinary post was effective as an exercise of the option. This sublease does not purport to make the methods of communication authorized by Clause 12.1 exclusive. Other means of communication which brought the exercise to the attention of the respondent would be effective service. The letter, however, was not effective to bring the exercise of the option to the attention of the respondent. It did not reach the respondent. There was in fact no actual communication of the exercise of the option to the respondent."

• [43] The apparent intention of service clause in the Deed is to provide for proof of service of a notice but by its terms does not expressly exclude any other means of service. The case law referred to is that clauses such as the service clause in the Deed facilitate the service of notices. I do not construe the service clause as an agreement between the parties to exclude any other form of service. The Tribunal finds that the Deed of Engagement did not provide for the only way in which a notice could be served on the parties and it was open to the Melvilles and the Respondent to adopt a further or alternative means of service of a notice. But by using an alternative means of giving notice the onus would remain to prove on the balance of probabilities that an alternative means of giving notice of the exercise of the Third and Fourth Options by post on 25 December 2011 was received by the Respondent (Grayprop Pty Ltd v Maharaj International Pty Ltd[33]).
• [44] However, even if the Melvilles chose an alternative method of service by posting the letters to Whittles on 25 December 2011, that alternative method does not assist them in proving the exercise of the Third and Fourth Options. There is insufficient evidence to prove (for the reasons already discussed) the posting of the letters on 25 December 2011. For this reason it is unnecessary to proceed further to determine whether the Melvilles would satisfy the onus of proof that the Respondent received the letters posted on 25 December 2011.
• [45] In conclusion, the Applicants' submissions that the Melvilles posted letters on 25 December 2011 to exercise the Third and Fourth Options are not accepted by the Tribunal. The Respondent's submissions are preferred as:

(i) there was no proof of the posting of those letters; and

(ii) the posting of those letters did not comply with the requirement for service of notices under the Deed of Engagement and s.347 of the PLA.

In any event, the alternate method of service of the letters by the Melvilles, was not effective as there was no evidence to prove posting of the letters.

Accordingly, the Tribunal finds that the Melvilles have not proved that by posting the letters on 25 December 2011 they exercised the Third and Fourth Options.

Were the Third and Fourth Options exercised on 12 April 2012?

• [46] By April 2012 Mr Melville was increasingly concerned about the exercise of options to extend the Deed of Engagement as no acknowledgement of receipt had been received of his earlier letters posted on 25 December 2011.
• [47] Mr Melville was aware that the Second Option had to be exercised by no later than 13 April 2012 and the lack of receipt of any acknowledgement of his earlier letters heightened that concern.
• [48] On 11 April 2012 he sent an email to Whittles requesting confirmation by return email of receipt of the earlier letters posted on 25 December 2011. No reply was received that day.
• [49] On 12 April 2012 Mr Melville located the three letters on his computer now dated 25 December 2011, exercising each of the options to renew the Deed of Engagement. He printed copies of those three letters dated 25 December 2011. He and Mrs Melville signed the printed copies of each of the three letters. He then personally attended Whittles' office at Currumburra Road, Ashmore and hand delivered a copy of each of the three letters to a staff member in reception.
• [50] On 17 April 2012 the Regional Manager of Whittles wrote a letter to the Melvilles confirming receipt of the Melville's letter dated 25 December 2012 exercising the Second Option for the five year option to 13 July 2017. The Regional Manager did not confirm the receipt of the two further letters exercising the Third and Fourth Options.
• [51] Mr and Mrs Melville made no further enquiries of the Regional Manager or his staff about the letters exercising the Third and Fourth Options.
• [52] On 17 October 2012 Mr Melville sent an email to the Chairman of the Respondent Committee which, amongst other matters, stated that he had received acknowledgement of the first of the three letters dated 25 December 2011 and enquired whether all three letters were recorded on the Body Corporate's list of correspondence. He further stated that all three letters were hand delivered by him. No reply was received from the Chairman. The Melvilles made no further enquiries about those letters with the Chairman.
• [53] Some years later on 25 November 2015 Mr Melville organised an inspection of the Body Corporate's records. He specifically sought to search documents in the period from 1 October to 25 November 2015 dealing with a secret ballot of an AGM held on 26 October 2015.[34] The Body Corporate files were provided by Yvonne Barnes of Whittles for that inspection, and Mr Whittle says:[35]

"While there, I sighted the three 'Option to Renew' letters which had been placed at the back of one folder among the body corporate records."

• [54] For whatever reason Mr Melville did not take a copy of these letters or ask Yvonne Barnes to confirm the earlier receipt of those letters.
• [55] The Respondent relied on motions submitted by the Melvilles to Annual General Meetings held in 2014, 2015, 2016 and 2017 as an admission by them that the Third and Fourth Options had not been exercised because they said in those moions the Deed of Engagement expired on 13 July 2017. The motions at each AGM were similar and sought a variation of the Deed of Engagement to add a fifth option for a term of five years from 2027. All motions at each AGM were defeated. The Minutes of the AGM of 26 October 2015, for example, record the alleged admissions relied upon by the Respondent in motion 10 which, in part, states as follows:[36]

"15C. The Manager shall have an option of extending the term for a further five (5) years ...

(2) The parties acknowledge that the current term of the Deed of Engagement expires on 13 July 2017 and the Manager has the benefit of the grant of three (3) further options to renew for a term of (5) years each (including the additional option contained in this Deed referred to in clause 1).

(3) On the assumption that all of the remaining options are exercised, the term of this agreement will expire on 13 July 2032."

• [56] The Respondent submitted that motion 10 contradicted Mr Melville's evidence that he exercised the Third and Fourth Options by posting letters on 25 December 2011 and by hand delivering those letters to the Body Corporate Manager on 12 April 2012.
• [57] I do not think that these motions contain the alleged admissions relied on by the Respondent. Firstly, they are clauses for insertion into a proposed Deed of Variation drafted by Mr Melville, using a precedent he obtained from a firm of solicitors, to amend the Deed of Engagement rather than being a narrative of events. Secondly, motion 10 contains an "Explanation" inserted by Mr Melville in these terms:

"Explanation: the Body Corporate currently contracts with the Managers with regard to their activities as a service Contractor and letting agent by way of a Caretaking and Letting Agreement, the term of this agreement is due to expire on 13 July 2027."

This "Explanation" is consistent with the evidence of Mr Melville. Further, the Respondent added its own comments to Mr Melville's motion 10 in those Minutes as follows:[37]

"Note: The Committee do not wish to extend the current 1995 agreement which does not expire until 2027 but would support entering into a new agreement more in line with the current needs of the Body Corporate."

• [58] What is also curious is that at the AGM held on 28 November 2017[38] the Respondent proceeded with a motion by the Melvilles to add a fifth option to the Deed of Engagement from 14 July 2027 to 13 July 2032. According to the Respondent's case the Deed of Engagement had already expired on 13 July 2017. That motion was defeated by 21 votes to 13 with two votes abstaining.
• [59] An examination of the motions show that they are attempts to draft contractual clauses for a proposed variation rather than explain the history of the current term of the Deed of Engagement. Otherwise the motions with the accompanying explanations and notes contain contradictory statements to the Respondent's submissions. The Tribunal rejects the Respondent's submissions relying on these motions at the various Annual General Meetings for an admission by the Melvilles that the Deed of Engagement expired on 13 July 2017.
• [60] It is submitted on behalf of the Melvilles that Mr Melville's account of delivery of the three letters on 12 April 2012 supported by his further emails in 2012 demonstrate that he was a credible witness and his evidence should be accepted.
• [61] The Respondent submits that nothing Mr Melville says about the exercise of this option should be accepted. It is submitted that his evidence is contradictory, that everything Mr Melville says to support his factual account is incapable of being confirmed. The Respondent urged the Tribunal to rely on the contemporaneous conduct of Mr Melville, particularly where he does not follow up letters from Whittles dated 17 April 2012 and receives no reply to his email to the Chairman of the Body Corporate Committee in the latter part of 2012.
• [62] While Mr Melville says he hand delivered three letters to Whittles on 12 April 2012 he received an acknowledgement of receipt of only one letter of that date exercising the Second Option to 13 July 2017. No acknowledgement was made of the receipt of the two other letters he purportedly delivered exercising the second and third options.
• [63] However, there is evidence to support Mr Melville's delivery of the three letters on 12 April 2012.
• [64] On 17 April 2012 the Regional Manager for Whittles sent a letter to the Melvilles confirming the receipt of the letter dated 25 December 2011 exercising the Second Option to 13 July 2017.[39] That letter attached Mr Melville's letter of 25 December 2011 which was date stamped as received by Whittles on 12 April 2012. That date stamp is consistent with Mr Melville's evidence he attended Whittles on 12 April 2012 to hand deliver the letters. The Regional Manager's letter is apparently a response to Mr Melville's email of 11 April 2012 seeking confirmation of receipt of the three letters posted on 25 December 2011. The Respondent did not call the Regional Manager or any staff member of Whittles as witnesses. Mr Melville's evidence was challenged in cross-examination but he maintained he delivered those letters on that date.
• [65] Further support for the Melvilles is from events some six months later on 17 October 2012 when Mr Melville sent an email to the Chairman of the Respondent's Committee. That email advised he had received an acknowledgement of his letter dated 25 December 2011 to exercise the Second Option which was hand delivered to Whittles on 12 April 2012 and enquired whether the other letters hand delivered were recorded in the Body Corporate's list of correspondence. This enquiry about the two further letters was made at a time when the Third Option, at least, could have been exercised if the facts were that the Melvilles had not previously exercised that option. They had until 13 April 2017, in which to exercise the Third Option. This email is a request for confirmation of the whereabouts in the Body Corporate records of the other two letters which Mr Melville previously delivered to Whittles on 12 April 2012. The then Chairman did not give evidence. Mr Melville's evidence about his email was otherwise unchallenged.
• [66] About three years later, on 25 November 2015 Mr Melville inspected the Body Corporate records at Whittles office at Cleveland. He made those arrangements with Yvonne Barnes, a staff member of Whittles. He says while inspecting the records:[40]

"... While there, I sighted the three 'Option to Renew' letters which had been placed at the back of one folder among the body corporate records. ..."

• [67] Yvonne Barnes did not give evidence. The Respondent did rely on the evidence of Lisa Ann Rutland who conducted a search of the Body Corporate records several years later on 26 March 2020. She had limited instructions to search for two classes of letters dated 23 December 2011 and 25 December 2011 sent by the Melvilles exercising options to renew the Deed of Engagement. By this time there had been a change in Body Corporate Manager from Whittles at Cleveland/Ashmore to Value Strata Management at Ashmore on the Gold Coast. Lisa Ann Rutland located the following documents at Value Strata Management:

(i) the letter dated 23 December 2011 exercising the Second Option to 13 July 2017 which had a Whittles receipt date stamp of 3 January 2012; and

(ii) a letter dated 25 December 2011 exercising the Second Option to 13 July 2017 with Whittles date received stamp of 12 April 2012.

While she says the files inspected were maintained in a logical and organised way there was a manila folder which had loose documents arranged in no particular order where she located the original of Mr Melville's letter dated 23 December 2011. The subsequent letter from the Melvilles dated 25 December 2011 was located in another folder with documents relating to the Body Corporate agreements. She said she searched the five small boxes containing manila folders but did not know if these were the entirety of the Body Corporate records. She had no way of independently verifying whether these records were the entire records. The Manager or staff members for Whittles and from Value Strata Management did not give evidence.

• [68] The Accommodation Module[41] requires the Body Corporate to keep and dispose of certain records. Some documents can be disposed of after either two years or six years after their creation or receipt. However, documents having a current relevance to the scheme are to be kept which includes:[42]

"(a) a contract that is in force for longer than six years;

(b) a notice required to be given to the body corporate, if the information included in the notice is still current information."

While the letters exercising the Third and Fourth Options may have been given more than six years ago, the Accommodation Module would require those notices to be kept until at least 13 July 2022 and 13 July 2027 respectively.

• [69] The Tribunal is satisfied that on 12 April 2012 Mr Melville personally attended at Whittles' office at Ashmore and hand delivered the three letters each dated 25 December 2011 giving notice of the exercise of the Second, Third and Fourth Options.
• [70] The issue then, is whether the hand delivery of those three letters to Whittles was sufficient to exercise the Third and Fourth Options.[43] The Respondent submits that the letters (assuming they were delivered) should have been delivered in accordance with the contractual requirement in the Deed of Engagement as is provided for in s.257 of the PLA 1974 (now s.347 as discussed above). The Respondent submits the Melvilles did not comply with s.347 of the PLA.
• [71] The delivery of the letters to Whittles was not:

(i) personal service on the Respondent;[44]

(ii) nor were they left at the Respondent's usual or last known place of abode;[45]

(iii) nor were they left at the usual or last known place of business of the Respondent as a principal;[46]

(iv) even if the Respondent is a corporation[47] for the purposes of s.347 of the PLA, the three letters were not left at the registered office or principal place of business in the state;[48]

(v) service on an agent, such as Whittles. Service on an agent is only permitted when the principal is absent from the state.[49] That is not the case here.

• [72] The legislation provides that a Body Corporate must not carry on a business.[50] It is doubtful whether the Respondent would have a usual or last known place of business for the purposes of s.347(1)(b) of the PLA. The Respondent's functions are to:[51]

(ii) enforce the community management statement; and

• [73] Whether a Body Corporate was a "trading corporation" or engaged "in trade or commerce" to sustain a claim under the Trade Practices Act 1974 (Cth) was considered by Thomas J in Coastalstyle Pty Ltd v The Proprietors, Surf Regency Building Units Plan 4246.[52] His Honour held that possibly by some "unusual or radical action" a body corporate might be capable of being a trading corporation, by its nature and activities the Surf Regency Body Corporate "are merely potential and insubstantial and do not qualify it as a trading corporation in trade or commerce". His Honour said:[53]

"In my view the corporation which is required to be formed for the purposes of the proprietors of a home units building is essentially one to regulate the conduct and activities of the proprietors inter se in matters touching and concerning their occupancy of the building; there are also functions relating to external parties, but these are of a strictly limited character. ... Conversely, no activities are contemplated of the kind that bring it into existence as a trading corporation or that place its conduct in performing its functions into the stream of trade and commerce. ... The defendant corporation has no commercial activities. It makes no investment other than investment of levied funds in the bank. It purchases commodities for the purpose of doing improvements or maintenance to the building but solely for objects of that kind. It does not acquire commodities for commercial purposes. It operates no business as such. The funds that are obtained by levying the unit-holders are mutual funds. The common property is owned by the proprietors as tenants in common and the Body Corporate is the agent for the proprietors with the responsibility of controlling, managing and maintaining the common property."

• [74] The provisions in s.347 of the PLA relating to a person who is in business requiring service on its usual or last known place of business arguably do not apply to the Respondent. In any event, if the Respondent is regarded as carrying on a business, then it conducts the business under s.94 of the Body Corporate and Community Management Act 1997 at its address at Miami on the Gold Coast. Again service of the letters dated 25 December 2011 were not effected on that address on 12 April 2012.
• [75] The Tribunal accepts the Respondent's submissions that Mr Melville did not serve the letters in accordance with the contractual requirements provided for in s.347 of the PLA by hand delivering those letters to Whittles at Ashmore. The Tribunal finds that Mr Melville's service of the letters on Whittles on 12 April 2012, did not comply with the Deed of Engagement[54] requiring compliance with s.347 of the PLA. The Melvilles cannot rely on those provisions to successfully claim they exercised the Third and Fourth Options by delivery of the letters to Whittles on 12 April 2012.
• [76] However, the Melvilles can rely on an alternative means of service on the Respondent as discussed earlier when referring to Menkens v Wintour[55] so long as the Melvilles can prove on the balance of probabilities that the letters delivered on 12 April 2012 were received by the Respondent or otherwise brought to its notice (Grayprop Pty Ltd v Maharaj International Pty Ltd[56]).
• [77] As I have already made a finding that Mr Melville hand delivered those letters on 12 April 2012, the question arises whether service on Whittles is sufficient to establish the letters were received by or brought to the notice of the Respondent.
• [78] Notice of the exercise of the option must be communicated to the Respondent or brought to its notice (Bressan v Squires[57]). The problem for the Melvilles is that they notified Whittles, the Body Corporate Manager rather than the Respondent.
• [79] In Kratzmann (Toowong) Pty Ltd v Marjorie's Investments Pty Ltd and D.G.A. Pty Limited[58] a tenant gave notice of the exercise of an option to the managing agent, not the landlord. That case turned upon whether there was evidence showing that the landlord had authorised the managing agent to receive on their behalf the notice contemplated by the option clause or whether the landlord had held out the managing agent to do so. Moynihan J said after reviewing the evidence:

"... I am however quite unable to construe that as any sort of holding out of R.L. Hancock Pty. Ltd. as capable of satisfying the requirements of the option clause or that that was relied on by the plaintiff."

• [80] A different result was reached by Davies JA in Riltang Pty Limited v L Pty Limited[59] where a notice to exercise an option to renew a lease was sent to the managing agent as service upon the lessors. His Honour stated:[60]

"... It follows that the agent's authority to accept service of a notice of renewal must be determined having regard to the circumstances of the case, including the terms of the lease and the part which the agent performs in the relationship between the lessor and the lessee."

• [81] Davies JA also referred to two further cases. In Setena Pty Ltd v Permanent Trustee Nominees (Canberra) Limited[61] McLelland J found that service on a managing agent was sufficient and said:

"... The management of property leased to tenants would ordinarily embrace the receiving of a notice from a tenant exercising a notice of renewal of his lease, and in my view a managing agent of such property would, in the absence of proof of some relevant limitation to his authority, be presumed to have authority to receive such a notice. ..."

• [82] In Young v Lamb[62] Stein JA, with whom the President and Hodgson JA agreed, said:

"... Given that the lease contains no address of the lessor, how is the lessee to effect service 'on the lessor'? It seems to me to make perfect sense to serve the letter on the lessor's duly appointed agent, Dedricks. The respondent had been notified that Dedricks had been appointed as managing agent. Dedricks wrote to the respondents on 21 April 1998 reminding them of the option. There was no evidence to suggest that the agent's authority was in any way limited. Indeed, that Dedricks had authority to accept any letter exercising the option is reflected by the course of dealings between the parties."

• [83] In the present case, Whittles had been the Respondent's Body Corporate Managers from at least 2011. At each AGM in that period they were reappointed Body Corporate Managers. For example in the minutes of the AGM of 2014 the Respondent resolved to engage Whittles, "for the supply of administrative services as per the standard form of agreement which had been circulated to members ...". No standard form agreement was in evidence. Similar resolutions were made in other years.
• [84] The Accommodation Module[63] prescribes various matters for the appointment of a body corporate manager including:

(i) to carry out the body corporate's functions that would be carried out by its committee and each executive member of the committee and the powers of that committee;[64]

(a) requiring the body corporate manager to carry out all of the functions of the committee; and

(b) authorising the body corporate manager to exercise the powers of the committee.

• [85] In her oral evidence Lynette Mortimore, who was a former Treasurer from at least 2014 and had been Chairperson of the Respondent Committee in 2016, said that Whittles provided correspondence and documents at the Respondent's Committee meetings as part of their administrative services. Such correspondence and documents were "generally" recorded in the "incoming correspondence" section of the Committee's minutes. The address of the letter to exercise the Third and Fourth Options was to the Respondent care of Whittles' address. Whittles would, or should, have understood that the letter was for the Respondent and a document to be kept in its records pursuant to s. 201 of the Accommodation Module.
• [86] On 25 November 2015 Mr Melville at the inspection of the Respondent's records at Whittles' office sighted "the three 'Option to Renew' letters which had been placed at the back of one folder among the Body Corporate's records".
• [87] The Body Corporate must maintain a mailbox and make suitable arrangements for the receipt of mail.[65] No evidence was provided of the existence or whereabouts of the mailbox or of any suitable arrangements.
• [88] In the Respondent's Response and/or counter-application[66] in these proceedings it gave its address for service of notices and documents at its now current Body Corporate Manager's address as follows:

Contact phone numbers and email addresses are those of Value Strata Management. In 2012 there is correspondence from the Respondent's then Body Corporate Manager (Whittles) to the Melvilles acknowledging receipt of a letter delivered to that Manager but addressed to the Respondent[67].

• [89] The Respondent accepted that the Melvilles exercised the Second Option. That exercise was contained in either their letter posted on 25 December 2011 or by the hand delivered letter to Whittles on 12 April 2012. It can be inferred from the Respondent's acceptance of the extension of the Second Option that that letter exercising that option although provided to Whittles, nevertheless has come to the attention of the Respondent.
• [90] It was appropriate in these circumstances for the Melvilles to serve the letters exercising the Third and Fourth Options on the Respondent by hand delivering those letters to Whittles on 12 April 2012 as it performed the administrative services for the Respondent. There is no evidence to suggest that there was any limitation on Whittles' apparent authority, or actual authority, to accept such correspondence. There was no evidence suggesting that the service on Whittles was ineffective to bring the letters exercising the Third and Fourth Options to the notice of the Respondent. As discussed earlier, neither the clauses in the Deed of Engagement nor s.347 of the PLA limited the manner in which notice could be served on the Respondent and Melvilles. The appointment of Whittles to undertake administrative services, which would include correspondence to and from the Body Corporate, would have been an authorisation to receive on the Respondent's behalf documents, including notices of exercise of options, or was a holding out that Whittles were capable of receiving such documents for the Respondent.
• [91] In the circumstances, Whittles' address was a suitable address for the service by the Melvilles of the letters exercising the Third and Fourth Options on the Respondent.
• [92] The Tribunal finds that by hand delivery of the letters to Whittles, on behalf of the Respondent, on 12 April 2012 the Melvilles exercised the Third and Fourth Options. Whether that was a lawful exercise of those options will be considered next.

Whether the exercise of the Third and Fourth Options was valid and legally binding to extend the Deed of Engagement from 13 July 2017?

• [93] The submissions on behalf of the Melvilles is that they validly and legally exercised the Third and Fourth Options on 12 April 2012 as:

(i) the option clause contained a "no later than" date for its exercise and did not contain a "not before" requirement. The option was exercised in accordance with its terms; and

(ii) the exercise of an option takes immediate effect. The exercise of the Second Option brought into existence the second renewed term as from 12 April 2012 (even though the new term commenced from 14 July 2012). Simultaneously with the exercise of the Second Option, the Third Option was also validly exercised. The same effect applies to the exercise of the Fourth Option.

• [94] The Respondent submits that the simultaneous exercise of the Third and Fourth Options with the Second Option on 12 April 2012 was ineffective as:

(i) the exercise of the Second Option brought about a second renewed term from 14 July 2012 which is a "new agreement". The legal right to extend the "new agreement" cannot arise before it commences. Accordingly, the Third Option could only be exercised after the second renewed term had commenced on 14 July 2012. The Fourth Option could only be exercised during the third renewed term;

(ii) on the proper construction of the Third and Fourth Options it was not contemplated that these options would be exercised all at once during the second renewed term.

• [95] The Respondent relies on Halsbury's Laws of Australia[68] and Piazza Trevi v Cromwell BT Pty Ltd[69] for the submission that the exercise of the option results in a "new agreement". The discussion in Halsbury's relates to covenants in a lease for the grant of a further lease of the premises to the lessee. In the Piazza Trevi case clause 13.1 of the lease provided an option in these terms:

"The Lessor agrees to grant and the Lessee agrees to accept a new lease of the premises for the term set out in Item 14 of the Reference Schedule ("the new lease") if:

(a) the Lessee notifies the Lessor in writing of the Lessee's intention to take up the new lease ("the Lessee's option notice") at least 9 months before the Termination Date of this Lease ...."

• [96] The terms of the Third and Fourth Options are different. The relevant terms for the grant of the Third Option (the terms of the Fourth Option are similar) are:

"15A. The Manager shall have the option of extending the term for a further period of five (5) years from the date of expiration of the second term upon the same terms and conditions as are set forth herein with the exception of this clause and remuneration." (my underlining)

• [97] The essential nature of an option has been variously described as a "irrevocable offer" or alternatively as a "conditional contract".[70] In the Piazza Trevi case this characterisation was considered important by Sackar J when considering the requirements for exercising options to renew and said:[71]

"In my view, the law as it stands in New South Wales treats an option as no more than an irrevocable offer to make a contract; ... The New South Wales Full Court ... in McCaul held at 123:

"In the present case the lessor irrevocably offered to grant a lease. Its offer prescribed the time and manner for acceptance. Only by performing the conditions prescribed could it be accepted and result in an agreement for a lease."

Halsbury's Laws of Australia provides that an option gives the grantee an enforceable right if the grantee elects to take up the option.[72]

• [98] For the proper construction of the terms of the Third and Fourth Option clauses the same rules of construction are used as for leases and contracts.[73] In Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd[74] Kiefel CJ, Bell and Gordon JJ said in respect of constructions of commercial contracts:

"It is well established that the terms of a commercial contract are to be understood objectively, by what a reasonable businessperson would have understood them to mean, rather than by reference to the subjectively stated intentions of the parties to the contract. In a practical sense, this requires that the reasonable businessperson be placed in the position of the parties. It is from that perspective that the court considers the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it ...

... the court is entitled to approach the task of construction of the clause on the basis that the parties intended to produce a commercial result, one which makes commercial sense. It goes without saying that this requires that the construction placed upon cl 4 be consistent with the commercial object of the agreement."

• [99] Whether the Third and Fourth Options are "a conditional contract" or a "irrevocable offer" a reasonable businessperson would understand the options as having a commercial purpose of extending the term of the caretaking service contractor for a further term of five years by each option in accordance with the terms of the Deed of Engagement. This purpose would be subject to the limitation of 25 years for such agreements in the Accommodation Module.
• [100] The commercial purpose and objects of these option clauses can also be ascertained from other events and circumstances external to the Deed of Engagement. In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd[75], French CJ, Nettle and Gordon JJ in discussing the approach to construing commercial contracts said:

"[49] However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating"."

• [101] The preamble to the Management and Letting Agreement[76] dated 28 August 1995 between the Respondent and the then caretaking service contractor provided:

"B. The Body Corporate is desirous of providing for the better caretaking, administration, control and use and enjoyment of the common property and keeping of the common property in a state of good and serviceable repair and the proper maintenance thereof by the manager under the guidance of the Body Corporate for the use and enjoyment of the proprietors and their invitees, licensees and tenants."

• [102] The Deed of Engagement is the successor to the Management and Letting Agreement. The commercial purpose is to enable the Body Corporate to carry out its functions under the Act by engaging a caretaker contractor on its behalf. Those functions stated in the preamble are of a continuing nature while the Body Corporate is in existence. The options to extend the term of the Deed of Engagement are to provide for the continuity of the Body Corporate's obligations into the future.
• [103] By the Third and Fourth Option clauses not containing any "not before" requirement for their exercise, the parties have, in my view, left the timing of the exercise of those options at the discretion of the caretaking service contractor provided of course that the option be exercised "no later than" three (3) calendar months before the date of the expiration of the relevant renewed term. The terms of both option clauses contain two preconditions for their exercise:

(i) whether the Manager elects to extend the terms of the Deed for a further five (5) years; and

(ii) if so, then the Manager must exercise the option by giving notice in writing to the Body Corporate at least three (3) calendar months prior to the date of the expiration of the second/third renewed term.

There is no requirement expressed in these preconditions for the Manager to wait until after the prior renewed term has commenced before exercising a further option or options. There is no requirement for the options to be exercised singularly during the renewed term of the prior option. There is no restriction, save for the preconditions, on options being exercised simultaneously if there exists more than one option.

• [104] The exercise of the Third and Fourth Options on 12 April 2012 was in accordance with the preconditions for the exercise of those options within the time limits provided by each of those options. Had the parties intended that an option could only be exercised after the commencement of a relevant renewed term they could have expressed that requirement in the option clause but they did not provide any such requirement. Of course to provide for a new renewed term there was a sequential order required for the exercise of each option.
• [105] I reject the first of the Respondent's submissions that the exercise of the Third Option could only be exercised after the second renewed term had commenced on 14 July 2012 and the further submission that the Fourth Option could only be exercised after the third renewed term had commenced on 14 July 2017.
• [106] The Respondent's further submission is that the Second, Third and Fourth Options cannot be exercised simultaneously. It submits that each option can only be exercised at least after the previous option renewal period had commenced.
• [107] This submission requires that as each new option renewal period commences every five years, then each option can only be exercised at least five years apart. It is submitted to exercise all options simultaneously is unreasonable.
• [108] The Respondent relies upon Biondi v Kirklington & Piccadilly Estates Ltd[77] where the option clause, the Respondent asserts, is similar to the Third and Fourth Options as it contained no "window clause". In that case a lease commenced in 1911 for a term of 35 years and contained an option for a further term of 14 years. The tenant exercised that option approximately ten (10) days after the lease commenced. The option clause was in these terms:

"The lessor hereby covenants with the lessees that the lessor will on the written request of the lessees made six calendar months before the expiration of the term hereby granted, and if there shall not at the time of such request be any existing breach or non-observance of any of the covenants on the part of the lessees, hereinbefore contained at the expense of the lessees grant to them a lease of the demised premises for a further term of 14 years from the expiration of the said term at the same rent and containing the like covenants and provisos as are herein contained with the exception of the present covenant for renewal, the lessees on the execution of such renewed lease to execute a counterpart thereof."

• [109] In Biondi's case it was held that the option was not capable of exercise at any time before 8 August 1945 (approximately 6 months before the expiration of the 35 year term) as no long interval of time was contemplated between the making of the written request for the further term and the granting of the further lease for several reasons including:

(i) the lessee before the expiration of the term was not to be in "existing breach or non-observance of any of the covenants"; and

(ii) the parties would not have contemplated a written notice being given in 1911 and then lying dormant until 1945.

• [110] Biondi's case is distinguishable from the present Third and Fourth Option clauses in the Deed of Engagement as:

(i) the written terms of each option clause are markedly different. In Biondi the request was to be "made six calendar months before ..." whereas the Third and Fourth Options notice was to be given "at least three (3) calendar months prior ...". The use of the words "made" and "at least" do not contain corresponding meanings, but suggest different timing sequences;

(ii) the option clause in Biondi's case had at least four different meanings but the preferred one was that there be "no long interval was contemplated between making the written request and granting the further lease". The terms of the Third and Fourth Options do not contain any similar terms to limit when those options can be exercised, other than the requirement that there be at least three (3) calendar months before the end of the term;

(iii) the option clause proviso in Biondi relating to there being no breach and non-observance at the time of the lessee's request does not appear in the Third and Fourth Options.

• [111] There does not appear to be any circumstances indicating it was unreasonable for the Second, Third and Fourth Options to be exercised simultaneously. Mr Melville's evidence is that an agreement with the Caretaking Service Contractor for a longer term are commercially advantageous. He says the sale of these agreements with a long term are viewed favourably as the agreement without longer terms are impossible to sell. He says a bank will only loan for these sales where there is at least 15 years remaining on the contract. By exercising all three options the Melvilles were locking in a longer term for the Deed of Engagement.
• [112] There was no evidence that there was any prejudice or disadvantage to the Body Corporate by locking in this longer term. Unlike in Biondi's case, the Deed of Engagement was very unlikely to be assigned from the Respondent to another party. It was always open for the Melvilles to assign their rights under that Deed but with the Respondent's approval.[78]
• [113] If the second renewed term brought about by the exercise of the Second Option commenced on 14 July 2012, then the hand delivery of the exercise of the Third Option on 12 April 2012 was approximately three months before the beginning of that term. There are no circumstances indicating any unreasonableness given that the Respondent was desirous of providing for a better caretaking, administration and controlled use and enjoyment of the common property in furtherance of its functions under the Body Corporate and Community Management Act 1997.
• [114] I have already discussed the two preconditions for the exercise of the Third and Fourth Options. None of those preconditions limit the exercise of the options in the way submitted for the Respondent that it was not contemplated they would be exercised all at once during the second renewed term. I reject the Respondent's submissions that the options cannot be exercised simultaneously.
• [115] I am of the view that the Applicants' submissions should be accepted that the exercise of the Third and Fourth Options was valid and legally exercised on 12 April 2012.
• [116] The Tribunal finds that the Third and Fourth Options were validly and legally exercised by Mr Melville delivering the three letters for each of those options to Whittles on 12 April 2012.

Melvilles' claim for unpaid remuneration and GST from June 2019 to April 2021

• [117] It is common ground that the Melvilles have not been paid remuneration under the Deed of Engagement since June 2019. Invoices to April 2021[79] record the unpaid remuneration as $152,314.27. GST on that remuneration is a further $15,231.43. In these proceedings the Melvilles claim $167,545.00 under both those heads.
• [118] Remuneration is paid in accordance with clause 2 of the Deed of Engagement which provides:

"In consideration of the performance by the Manager of the duties as herein set out the Body Corporate shall pay the Manager the remuneration as set out in Schedule "A" hereto by means of monthly instalments in arrears."

• [119] The duties of the Manager under the Deed of Engagement are contained in clause 3 which provides:

"The Manager shall personally, or by its employees or agents, and using cleaning and gardening equipment supplied by the Manager (excluding pool cleaning equipment), attend to and perform the caretaking activities in respect of the building ..."

Clause 3 specifies a number of duties in the common area of the building and other activities in Schedule "B" to be undertaken "in a good and workmanlike manner" at the timely intervals stated in the Schedule.

• [120] These parties have been in various disputes for some time and on 15 May 2019 the Respondent wrote a letter to the Melvilles stating they sought to clarify the status of the caretaking and building maintenance arrangements. The Respondent informed the Melvilles that many of the "duties are currently being performed by the committee via engagement of external contractors". That letter also contained an instruction to the Melvilles to this effect:

" You are no longer required to perform any caretaking duties for the scheme.

You are no longer recognised in any capacity as a service contractor or caretaking service contractor to the scheme.

You are no longer to pledge the credit of the body corporate to any other party.

You are to cease all communications to any member of the Body Corporate purporting yourselves to be the caretaking service contractor or disseminate any misinformation or defamatory comment, whether in your own names or anonymously via aliases or associates.

You are to prepare all property of the body corporate held in your possession for handover within 15 days."

• [121] The Melvilles did not accept the written instructions from the Body Corporate and on 20 May 2019 they advised the Body Corporate:

"Once again we wish to state for the record, and for the benefit of those on the committee who struggle to understand such legal documents, that we have a legally binding contract between ourselves as Caretakers and the Body Corporate.

This contract is current, valid and will remain so until it expires on 13 April 2027.

We have carried out and will continue to carry out our contracted duties until such time as our contract expires.

The Body Corporate is legally bound to make monthly remuneration payments as agreed in that contract until the contract expires."

Mr Melville says that he and his wife have been ready, willing and able to perform the duties of the caretaking agreement.[80]

• [122] Since June 2019 to April 2021 the Melvilles have sent monthly invoices to the Respondent seeking the monthly instalment of their remuneration and GST. For instance in June 2019, the monthly instalment invoiced was $6,525.89 with GST of $652.59 totalling $7,178.48 (the instalment amount was subject to CPI adjustments from 1 September of each financial year). The invoice (as did the remainder of invoices to April 2021) claimed that instalment for:

"... The performance of all caretaking activities specified in clause 3 of the Management and Letting Agreement dated 28 August 1995 and specially ... ."

• [123] However, the Melvilles were not performing "all caretaking activities" required under the Deed of Engagement.[81] Mr Melville's evidence is that the Body Corporate prevented him from carrying out a large number of the duties required by clause 3. He said he did what he could of those duties but this appeared to be only a small proportion of the overall duties. The evidence is that the duties in clause 3 and in Schedule "B" performed by the Melvilles are as follows:

(i) clause 3(p) - perform such other duties and things as are reasonably necessary and proper;

(ii) clause 3(r) - to occupy at all reasonable times Lot 9 on the ground floor level;

(iii) clause 3(v) - keep the office of the unit open in accordance with specified times; and

(iv) clause 3(w) - effect minor repairs and maintenance to common property of such a nature as not to require the services of a skilled tradesman.

Mr Melville says he did not attend Body Corporate and its Committee meetings pursuant to clause 3(s) as he was shut out of those meetings since May 2019.

• [124] In the circumstances the Melvilles have claimed their full remuneration by monthly instalments in the period from June 2019 to April 2021 but have performed very few duties required by the Deed of Engagement.
• [125] Since May 2019, the Melvilles have not elected to treat the Respondent's conduct as a breach, or a repudiation, of the Deed of Engagement and to sue for damages. Rather, the Melvilles have kept the Deed of Engagement remaining in full force and effect and have attempted to perform their contractual obligations. They remain ready, willing and able to perform those contractual duties. The issue then is what payment, if any, are the Melvilles entitled to under the Deed of Engagement.
• [126] It is necessary to properly construe the terms of the remuneration clause in the Deed of Engagement to ascertain whether the payment of remuneration is:

(i) dependent upon the Melvilles' performance of the duties; or

(ii) independent of the performance of duties under the Deed.

• [127] In The Sands Gold Coast Pty Ltd v the Body Corporate for The Sands CTS 14967[82] this question was considered by reference to Automatic Fire Sprinklers Pty Ltd v Watson[83] where Dixon J stated:[84]

"It is, of course, open to contracting parties to make what agreement they like about the matter. They may, if they choose, contract for payment of a sum certain at a time certain and make it clear that the payment is independent of the transfer of the goods. But that is not how an agreement to sell is ordinarily understood.

A contract for the establishment of the relation of master and servant falls into the same general category of agreements to pay in respect of the consideration when and so often as it is executed, and is, therefore, commonly understood as involving no liability for wages or salary unless earned by service, even though the failure to serve is a consequence of the master's wrongful act.

It is, of course, possible for the parties to make a contract for the payment of periodical sums by the master to the servant independently of his service. Indeed that is, in effect, what the Duke of Westminster persuaded the majority of the House of Lords he had done in Inland Revenue Commissioners v. Duke of Westminster (1936) AC 1. But, to say the least, it is not usual. The common understanding of a contract of employment at wages or salary periodically payable is that it is the service that earns the remuneration and even a wrongful discharge from the service means that wages or salary cannot be earned however ready and willing the employee may be to serve and however much he stand by his contract and decline to treat it as discharged by breach."

(ii) payment of remuneration by the Body Corporate to the Manager;

(iii) payment of remuneration by monthly instalments in arrears.

The requirement for payment of remuneration in arrears every month indicates an intention of the parties that by performing the duties during the month, payment will follow at the end of that month. The obligation to pay arises from the performance of the duties. The expression in clause 2 of "in consideration" adds further support for an intention that "the performance" earns "remuneration". On the proper construction of clause 2, I find that the payment of remuneration depends upon the duties in the Deed of Engagement being performed. Performance of the duties is the trigger for payment of remuneration. The terms of clause 2 make payment of remuneration dependent upon performance. Those terms do not provide a separate obligation on the Body Corporate to pay remuneration irrespective of performance. Clause 2 links remuneration to the performance of duties. The problem in these proceedings is that the Melvilles have been prevented by the Respondent from performing the duties and as a result have only performed a minor part of their overall duties.

• [129] On behalf of the Melvilles it is submitted that while the Body Corporate's obligation to pay is dependent upon the Melvilles' performance of the caretaking duties, they nevertheless contend that they are excused from performing the caretaking duties on account of the Body Corporate's acts of prevention. They further contend that the condition precedent to the obligation to pay the remuneration is taken to be satisfied.
• [130] The submissions on behalf of the Melvilles rely on Mackay v Dick[85]. That case related to a contract for the sale and delivery of a digging machine. The sale was subject to a precondition that it was capable of excavating a quantity of clay in a fixed time. The purchaser failed to provide the appropriate circumstances for the carrying out of the precondition. It was held the precondition was satisfied by reason of the purchaser's conduct and the purchaser was required to pay the purchase price to the seller in exchange for the digging machine.
• [131] Mackay v Dick is somewhat different to the present proceedings. The purchaser received the digging machine and the seller received the purchase price. The contract was taken to have been satisfied. In these proceedings the Melvilles were prevented from undertaking the majority of the duties which were performed by external contractors engaged by the Respondent and their entitlement to remuneration depends upon performance of those duties.
• [132] It is submitted on behalf of the Melvilles that the Respondent cannot disable the Melvilles from performing the duties and simultaneously allege that the Melvilles are not entitled to remuneration for failing to perform their caretaking duties. However, the contract they have with the Respondent requires performance in order to receive remuneration.
• [133] The Respondent submits that the claim for remuneration should be dismissed as:

(i) the duties in clause 3 have not been performed so there was no consideration. Accordingly no remuneration is payable; and

(ii) if the caretaker needed to perform their duties in clause 3 to be entitled to recover monthly payments and has been prevented from doing so by the Respondent, it is necessary to calculate the loss of profits and the Melvilles have produced no evidence of their loss of profits. The Respondent relied on The Sands Gold Coast Pty Ltd v The Body Corporate for the Sands CTS 14967[86].

The Respondent's first submission does not take account of the fact that it was the Respondent who prevented the Melvilles from performing the duties. Nor does it take account of the fact that the Melvilles did perform some, although minor, duties in clause 3. I do not accept that submission of the Respondent.

• [134] The Respondent's second submission takes account of the fact that the Melvilles were prevented and therefore failed to carry out duties which in the circumstances make it necessary to calculate loss of profits where they have performed some duties but otherwise have not been able to perform the balance of those duties.
• [135] In The Sands Gold Coast[87] the body corporate did not pay remuneration to its contractor and engaged other contractors to carry out general maintenance duties in place of the contractor. The contractor initially did not accept the Body Corporate's repudiation of their contract and kept it "on foot". The issue which arose was what was the contractor's appropriate remedy while the contract remained "on foot". Was the remedy for the contractor:

(i) entitlement to claim the full contract sum (as the Melvilles have done here); or

(ii) whether the contract was limited to a loss of profits claim (as the Respondent now submits).

• [136] In The Sands Gold Coast where the contractor was unable to perform the contract the Body Corporate argued there was no entitlement to the full contract sum as this would overcompensate the contractor who is, so far as money can do it, to be placed in the same position with respect to damages as if this contract had been performed.[88] In that case it was said:[89]

"[28] For the Contractor it is accepted that the situation is not the same as in the Scottish House of Lords case of White & Carter (Councils) Ltd v McGregor [1961] UKHL 5; 1962 SC(HL) 1, where a contractor refused to accept a wrongful repudiation, then continued to perform its obligations under the contract and then sued for the full contract sum. The difference is that here the Contractor could not perform its obligations without the co-operation of the Body Corporate which was not given. Despite this, it was argued that the terms of the GMC are such that the monthly fees are due in full from the beginning to the end of the period bearing in mind that the Contractor remained ready and willing to perform its obligations.

[30] It is understood that in some cases, an innocent party who is unable to continue performance under the contract because of the non-cooperation of the other party who has wrongfully repudiated the contract may be able to claim the full contract sum instead of being limited to a loss of profit claim. It depends on the terms of the contract. ..."

"[33] The usual case appearing from Automatic Fire Sprinklers is that where the contractor is unable to perform the contract because performance requires the co-operation of the repudiating party, the contractor is limited to damages for loss of profit. ..."

• [137] In The Sands Gold Coast[91] there was a discussion of the contractor being locked out by the Body Corporate and not performing duties being restricted to a loss of profits award.
• [138] In Hadoplane Pty Ltd v Edward Rushton Pty Ltd[92] the parties made a contract by which the plaintiff was to provide services to the defendant for a specific term in return for payment. The defendant wrongfully repudiated the contract and did not make payment under the contract. The plaintiff lost $197,150.00 by way of gross income. At trial damages were assessed after taking into account what the plaintiff would have received after paying expenses. On appeal it was argued that damages should be assessed on the gross income the plaintiff lost, disregarding expenses it would have incurred. However, the Court of Appeal held that net income, not gross income, was the proper amount to be recovered by the plaintiff. Pincus JA said:[93]

"The plaintiff argued here that it is entitled to be placed in the same financial position as if the contract had been performed, but that contention does not appear to me to assist it. Accepting, as the judge did, that if the defendant had not breached the contract the plaintiff would have profited by a much lesser sum than the gross fees of $197,150, it seems plain that that lesser sum is the amount which the defendant must on ordinary principles pay, to place the plaintiff in the same financial position as it would have occupied if the defendant had not breached the contract. If the plaintiff had undertaken to do building work, rather than the consultancy work which was the subject of the contract, "general principles" would put the normal measure at the contract price less the cost to the builder of executing or completing the work: McGregor on Damages, (15th ed., 1988), p. 677. And to justify what McGregor treats as the general principle, one need look no further than the authority on which the plaintiff relied before us, Cth v. Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 C.L.R. 64. There, the claim based on contract which was in issue was to recover wasted expenditure rather than income or profits, but it is clear enough that the High Court accepted that the prima facie measure of damages was nett profit rather than gross income ..."

"It was probable that the company would have continued to run its business the same way, and have incurred similar expenses including wages or drawings throughout the five-year period, and this was accepted by Mr Muir Q.C. for the appellant company. His contention however was that the amount the appellant chose to pay Mr and Mrs Gillett was irrelevant, and that the consequences of the breach of contract should be that the company should be put in the position of being paid moneys that would have been earned under the contract, leaving it to deal with such moneys as it considers appropriate. The answer to that contention is that if the contract had not been repudiated the appellant company would have had to perform it, and in order to do so it would probably have continued to remunerate Mr and Mrs Gillett at the same level. The normal method of assessment of damages would place the appellant company in the same position as it would have been if the contract had not been breached. ..."

• [139] The evidence is that the Respondent has prevented and frustrated the Melvilles from carrying out the majority of the duties. The Melvilles have performed part of their duties, but the vast majority of duties remain unperformed by them. This is also clear from the Respondent's engagement of other external contractors and its letter to the Melvilles dated 15 May 2019.
• [140] However, the contract made by the parties is that in performance by the Manager of the duties the Body Corporate "shall pay" the remuneration. There has not been "performance" of those duties so the liability of the Respondent to pay the gross amount of remuneration does not arise under clause 2.
• [141] Assuming the Respondent had not prevented the Melvilles from performing the duties, they would have had to proceed on the basis that they personally, or by their employees or agents, using cleaning and gardening equipment supplied by them attend to and perform those duties.[95] To place the Melvilles in that same position as if the Deed had not been breached, involves a consideration of those expenses arising, if any, by engaging employees or agents, the use of cleaning and gardening equipment and the cost of new or replacement equipment as well as any ongoing financial obligations. The Melvilles purchased this business in 2009 with finance from the Bank of Queensland. Whether that loan is still current is not known, nevertheless the evidence is that by 2019 they were suffering "severe financial stress" and also that they had major financial commitments of which the remuneration was meant to cover. Whether the partnership paid each of the Melvilles a salary or wage is not known. The Melvilles' loss through nonpayment of remuneration from June 2019 to April 2021 is to be determined on the basis of loss of profits.
• [142] In the view I take of the Deed of Engagement it was the intention of the Melvilles and the Respondent that the Melvilles needed to perform their duties in clause 3 and Schedule "B" to be entitled to the calendar monthly instalments in arrears. Performance of a few duties did not trigger payment of full monthly remuneration.
• [143] The problem in determining loss of profits is that the Melvilles have claimed the gross amount of the monthly instalments from June 2019. They do not claim the net monthly remuneration. There is no evidence of expenses or details of overheads which they incurred in that period. There are no partnership financial records of the Melvilles in evidence nor was there any profit and loss account for any of the relevant years.
• [144] I accept the Respondent's second submission that it is necessary to calculate the loss of profits and that the Melvilles have produced no evidence of the loss of those profits. I do not accept the submissions on behalf of the Melvilles that they are or were excused from performing the caretaking duties on account of the Body Corporate's acts of prevention and were otherwise entitled to full payment of remuneration under the Deed of Engagement.
• [145] The findings of the Tribunal are that:

(i) on the proper construction of clause 2 payment of remuneration is dependent upon performance of the duties set out in the Deed of Engagement;

(ii) performance of several of the duties where the majority of duties are unperformed, does not give rise to an entitlement to payment of full remuneration;

(iii) in these circumstances remuneration for the Melvilles is to be assessed on their net profits after taking account of expenses to be deducted from the remuneration.

• [146] I am not satisfied that there is any evidence on which an assessment of net profits from June 2019 to April 2021 can be made in accordance with the principle in Robinson v Harman. As explained in Gates v The City Mutual Life Assurance Society Limited[96] where there is no evidence of the relevant head of damages, there is no entitlement to damages. Accordingly, the Tribunal dismisses the Melvilles' claim seeking payment of $167,545.70 for their monthly instalments under the Deed of Engagement for the period from June 2019 to April 2021.

• [147] At the conclusion of the trial a claim was made for interest to be paid to the Melvilles on an award for unpaid remuneration. The claim for interest arises from the Deed of Engagement. In Schedule "A" to that Deed clause 3 is in these terms:

"In the event of delay by the Body Corporate in the payment of any payments of the remuneration on the due date, the Manager shall be entitled to payment of interest for the duration of any delay at the rate of fifteen per centum (15%) per annum."

• [148] The amount of interest claimed is $20,901.61. This is calculated at the rate of 15% on remuneration of $152,314.27 payable from June 2019 to April 2021.
• [149] The Respondent submits that interest is not payable as:

(ii) to allow an interest claim now would be "procedurally unfair";

(iii) the jurisdiction to award interest only arises in relation to "minor civil disputes" which this not such a claim;

(iv) the interest rate claim is 15% and far exceeds the current default rate and is not appropriate and constitutes a penalty rather than a reasonable estimate of loss likely to be suffered by the Applicants.

• [150] It is the case, as the Respondent submits, that the Tribunal has no general power to award interest other than interest in minor civil disputes and on debts or liquidated demands when making a decision by default (XMR Holdings Pty Ltd v Body Corporate for Xanadu[97]). However, here the claim for interest arises under the Deed of Engagement and is a contractual term. The interest claim is part of the issues in these proceedings giving rise to a complex dispute as defined by the Body Corporate and Community Management Act 1997 and the tribunal has jurisdiction to determine the claim.
• [151] The Melvilles' Application makes no claim for interest. The claim arose late in the proceedings and was made orally. The Respondent further submits that it would be "procedurally unfair" to allow the claim. However, notice of the claim, albeit late, was given and both parties have had the opportunity to be heard on the matter and have made submissions. There was no prejudice identified by the Respondent in proceeding with the claim. Pursuant to s.64 of the Act[98], I intend to make an Order allowing the Melvilles to amend their Application to make a claim for interest in accordance with Schedule "A", clause 3 in the Deed of Engagement.
• [152] The interest claimed under clause 3 of the Deed arises in the event of delay in payment of remuneration on the due date. The payment of remuneration means the remuneration payable in accordance with clause 2 of the Deed of Engagement. The evidence is that remuneration has not been paid monthly in arrears from June 2019 to April 2021. However, for the reasons already discussed above the Tribunal's finding is that the remuneration in clause 2 is not payable. Rather, the Melvilles' entitlements are for net profits for that period. The interest provisions in clause 3 of Schedule "A" are limited to remuneration and not to any loss of profits. That is the remuneration less expenses and contingencies that would arise during that period. Further, for the reasons already explained, there has been no determination of the amount of net profits. In these circumstances, an award of interest cannot be determined or made.
• [153] The Respondent submits that an interest rate at 15% exceeds the current default rate and is not appropriate as it constitutes a penalty. In Lavish Constructions Pty Ltd v Haywagner Investments Pty Ltd[99] there was a claim for interest calculated at 25%. In that case as there was no evidence of the relevant Reserve Bank rate to establish any entitlement under the terms of the written contract to interest the interest claim was refused.
• [154] In these proceedings there was no evidence of the current default rate or other circumstances on which the Respondent relies. In the circumstances it is unnecessary to make a determination as to whether 15% is appropriate or whether it constitutes a penalty as the interest clause in the Deed does not entitle the Melvilles to an award of interest where the assessment for net profits.
• [155] In the circumstances, I am not satisfied an award of interest can be made. The Tribunal dismisses the claim for interest based upon Schedule "A", clause 3 of the Deed of Engagement.

• [156] The Application seeks an order that the Respondent pay the Applicants' costs of the Application including the costs of an interim injunction application.
• [157] In the submissions on behalf of the Melville dated 6 May 2021 at paragraph 54 the Applicants seek to be heard on costs.
• [158] I intend to make directions that should either party seek a costs order, as they may be advised, to file submissions and evidence, if any, on costs following the delivery of these reasons for decision and orders.

• [159] The Tribunal makes the following orders:

1. It is declared that the Applicants did not give notice to the Respondent of the exercise of the options in clauses 15A and 15B of the Deed of Engagement dated 30 July 2002 to extend the Deed:

respectively, by the posting of the letters dated 23 December 2011 to Whittles Strata Management at 207 Currumburra Road, Ashmore.

2. It is declared that the Applicants gave notice to the Respondent of the exercise of the options in clauses 15A and 15B of the Deed of Engagement dated 30 July 2002 to extend the Deed:

respectively, by delivering on 12 April 2012 letters dated 25 December 2011 to Whittles Strata Management at 207 Currumburra Road, Ashmore.

3. It is declared that on 12 April 2012 the Applicants validly exercised the options in clauses 15A and 15B of the Deed of Engagement dated 30 July 2002 to extend the term of the Deed from:

respectively, by the delivery of letters dated 25 December 2011 to Whittles Strata Management at 207 Currumburra Road, Ashmore.

4. The Applicants' claim for unpaid remuneration from the Respondent for $167,545.70 (inc. GST) is dismissed.

5. (i) Pursuant to s.64 of the Queensland Civil and Administrative Tribunal Act 2004 the Applicants' claim for interest in accordance with Schedule "A", clause 3 of the Deed of Engagement dated 30 July 2002, can be made by amendment to the Application filed 26 July 2019 and the Applicants are to file an Amended Application for that claim in the Tribunal and serve a copy on the Respondent on or before:

(ii) The Applicants' claim for interest of $20,901.91 pursuant to Schedule "A", clause 3 of the Deed of Engagement dated 30 July 2002 is dismissed.

6. If either party seeks an order for costs of these proceedings including costs of the interlocutory proceedings, then:

(i) that party must file in the Tribunal two (2) copies and provide one (1) copy to the other party of any submissions and evidence they rely upon for an order for costs by:

(ii) any party intending to respond to submissions and/or evidence filed in accordance with (i) above, must file in the Tribunal two (2) copies and provide one (1) copy to the other party of any submissions and evidence they rely upon by:

(iii) an Application for costs, if any, will be determined on the papers and without an oral hearing based upon the submissions and evidence filed in these proceedings;

(iv) if no Application for costs is made in accordance with these orders, then there will be no order as to costs in the proceedings.

7. Otherwise, the decisions of the Tribunal are reserved and the matter is adjourned to a further date to be notified to the parties by the Registry.

[1] Body Corporate and Community Management (Accommodation Module) Regulation 2008 at all relevant times but now the Body Corporate and Community Management (Accommodation Module) Regulation 2020.

[4] Exhibit 9 - Invoices dated June 2019 to April 2021 included.

[5] Deed of Engagement dated 30 July 2002 at clause 2 incorporating the Management and Letting Agreement of 28 August 1995 at clause 17.

[6] Statement of Daniel John Melville filed 12 February 2020 at para. 25 and Statement of Daniel John Melville filed 29 April 2020 at paras. 1.7 - 1.9.

[7] Statement of Daniel John Melville filed 29 April 2020 at para. 1.10.

[8] Partnership Act 1891 (Qld) ss. 8 and 9.

[9] Statement of Lynette Mortimer page 5 and Exhibit "G"; Statement of Lisa Ann Rutland at para. 6 Exhibit 3. Exhibit "G" also contains a different typeface at the foot of that document confirming receipt of a different letter dated 25 December 2011.

[10] Statement of Daniel John Melville at paras. 25 and 26 and at Exhibit 11.

[12] [2009] QSC 262.

[13] Section 109X(1)(a) provides that a document may be served on a company by "posting it to, the company's registered office".

[14] [2007] SASC 100 at [6].

[19] Deed of Engagement dated 30 July 2002 at clause 2 and Management and Letting Agreement dated 28 August 1995 at clause 17.

[20] Statement of Daniel John Melville filed 12 February 2020, para. 25 and Exhibit 10.

[21] [2001] QSC 387.

[22] [1997] FCA 1372; (1997) 80 FCR 262 at 263.

[23] Above note 22 at 263; see also Croker v Ewen; Croker v Challoner [2000] NSWCA 186 per Giles JA at para. 4; Kratzman (Toowong) Pty Ltd v Majorie's Investments Pty Ltd & Anor (1986) Q Conv R 54-3221.

[24] Witness Statement of Daniel John Melville sworn 29 April 2020 at para. 1.9.

[26] Deed of Engagement dated 30 July 2002 at clause 2 and Management and Letting Agreement dated 28 August 1995 at clause 17.

[27] Clause 21.1 provided that s.257 (now s.347) of the PLA "shall apply to any notice or demand authorised or required to be given by any party to any other under this Deed".

[28] [2009] QSC 206 at para. [42].

[30] (1956) 72 WN(NSW) 454 at 456-7; see also to the same effect Young J (as he then was) in Tsaoucis v Gallipoli Memorial Club Ltd (No. 1) (1998) 9 BPR 16, 265.

[31] (1994) 63 SASR 235, (1994) SASC 5138.

[33] Above note 21 at paras. [55] to [68].

[34] Witness Statement of D J Melville filed 12 February 2020 at para. 29 Exhibit 13.

[35] Witness Statement of D J Melville filed 12 February 2020 at para. 29.

[36] Witness Statement of Lynette Mortimore filed 1 April 2020 at Exhibit "T" motion 10, pages 21-22.

[37] Witness Statement of Lynnette Mortimore filed 1 April 2020 at Exhibit "T" at page 22.

[38] Witness Statement of Lynnette Mortimore filed 1 April 2020 at Exhibit "V" at page 46-47.

[39] Statement of Lisa Ann Rutland filed 1 April 2020, paras. 11 and 12 and Exhibit 4.

[40] Witness Statement of D J Melville filed 12 February 2020 at para. 29.

[41] Body Corporate and Community Management (Accommodation Module) Regulation 2008.

[42] Above note 41 s.201(5) of the Accommodation Module.

[43] Witness Statement of D J Melville filed 12 February 2020, Exhibit 3, clause 15 at page 42.

[47] Acts Interpretation Act 1954, Schedule 1 - a "corporation" is defined as including "a body politic or corporate".

[50] Body Corporate and Community Management Act 1997 in s.96 provides that a "body corporate must not carry on a business".

[51] Body Corporate and Community Management Act 1997 s.94.

[52] Unreported Judgment of QSC in No. 1336 of 1991 delivered on 20 December 1991.

[54] Clause 2 and the Management and Letting Agreement, clause 17.

[56] [2001] QSC 387 at [55].

[57] [1974] 2 NSWLR 460.

[58] [1986] QSC 249; [1986] Q.Conv.R. 54-3221.

[59] [2002] NSWSC 625.

[61] [1987] NSW Con. VR para. 55-322.

[63] Body Corporate and Community Management (Accommodation Module) Regulation 2008.

[64] Above note 63 at s.59.

[65] Above note 63 at s.158.

[67] Witness Statement of Lisa Ann Rutland filed 1 April 2020 at Exhibit 4.

[68] Renewal of Lease Contract, para. 245-3610

[69] [2017] NSWSC 794

[70] Halsbury's Laws of Australia at para. 355-6500 to 6505.

[73] Halsbury's Laws of Australia at para. 355-6535 referring to Brennan v Kinjella Pty Ltd (1993) 6 BPR 13,168.

[74] [2017] HCA 12 at 16-17.

[75] [2015] HCA 37; [2015] 256 CLR 104 at para. [49].

[76] Witness Statement of Daniel John Melville filed 12 February 2020, Exhibit 4 at page 55 of the Exhibit.

[77] [1947] 2 All ER 59.

[78] Deed of Engagement, clause 2 and Management and Letting Agreement, clause 8(a).

[80] Witness Statement of Daniel John Melville filed 12 February 2020 at para. 109.

[81] The Deed of Engagement incorporated the Manager's duties set out in the Management and Letting Agreement dated 28 August 1995.

[82] [2019] QCAT 336.

[83] [1946] HCA 25; (1946) 72 CLR 435.

[84] Above note 83 at pages 464-465, above note 82 at para. [32].

[85] (1881) 6 App Cas 251.

[88] Above note 82 at [23] and [29] referring to the principle in Robinson v Harman [1848] EngR 135; (1848) 1 Ex 850 at 855.

[89] Above note 82 at [28] and [30].

[91] Above note 82 at paras. [45] and [46].

[92] [1996] 1 Qd.R. 156.

[95] Deed of Engagement, clause 2 and Management and Letting Agreement, clause 3.

[97] [2016] QCAT 27 at [5], [11]-[14].

[98] Queensland Civil and Administrative Tribunal Act 2004.

[99] [2017] QCAT 52.