JURISDICTION - BODY CORPORATE - APPOINTMENT OF SPECIALIST ADJUDICATOR - Body Corporate and Community Management Act 1997, ss 149A and 149B - where Act invests Commissioner with exclusive right to make recommendations about appointing specialist adjudicator - where applicant sought appointment of specialist adjudicator or adjudicator - whether Tribunal has jurisdiction to appoint adjudicator

CORPORATIONS LAW - RECEIVERS AND MANAGERS - Corporations Act 2001, s 420(2)(k) - STANDING - where receiver and manager appointed over the applicant's assets and undertakings - where receiver and manager did not authorise proceedings on applicant's behalf - whether applicant has standing to initiate proceedings

LEGAL REPRESENTATION - CORPORATIONS - Queensland Civil and Administrative Tribunal Act 2009, s 43 - where director of applicant company purported to authorise accountant as officer of the company - where director of the applicant purported to authorise accountant with right to represent applicant - whether representation in the circumstances is in the interests of justice

PROCEDURE - QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL - INJUNCTION - FILING APPLICATIONS - where applicant sought injunctive relief - where applicant did not seek primary relief in Tribunal - whether relief should be refused on basis of shortcoming in application

Body Corporate and Community Management Act 1997, ss 126, 149A, 149B

Corporations Act 2001, ss 82A, 420(2)(k)

Queensland Civil and Administrative Tribunal Act 2009, ss 28(3)(d), 43

Mr N Ferrett of Counsel instructed by Nicholsons Solicitors

1. Ralacom Pty Ltd was the caretaking service contractor at the Paradise Island Apartments Community Titles Scheme. Disputes arose between it and the body corporate for the scheme. On 28 May 2010 the body corporate, following an extraordinary general meeting, resolved to terminate the caretaking agreement and an associated letting agreement.
2. On 8 June 2010 Ralacom applied to QCAT for an injunction prohibiting the body corporate from acting on that resolution and for the appointment of a specialist adjudicator under the Body Corporate and Community Management Act 1997 (BCCMA). The application first came before QCAT on 25 June 2010 when it was ordered that the parties file and serve submissions and affidavits in anticipation of a hearing on 30 June.
3. Since the extraordinary general meeting a receiver and manager has been appointed to Ralacom. Under s 126 of the BCCMA the body corporate was required to give Ralacom's financier notice of its intention to terminate the caretaking service contract and that financier, Westpac, notified the body corporate of its intention to appoint a receiver.
4. Ms Julie Williams was appointed by a consent order of Atkinson J on 9 June 2010. So far as Ralacom's control of its affairs is concerned, the appointment is virtually absolute: it requires the company deliver up possession and control of all its assets and undertakings, and restrains it from dealing with them in any way save with the receiver's consent.
5. Ms Williams has not consented to nor authorised these proceedings on Ralacom's behalf, and in its name. The terms of the appointment indicate that the sole power to initiate proceedings has passed to her[1]. Any order would not bind her and the proceedings are, in that sense, a futility. They are also in disharmony with Ralacom's apparent consent to Ms Williams' appointment in the Supreme Court. It was suggested, for the body corporate, that the proceedings are in contempt of that order. I do not think it is necessary to determine that question because, on any view, the order removes any foundation for Ralacom's applications here and renders it pointless.
6. The matter has other complications. At the hearings on both 25 June and 30 June the company sought leave to appear through Mr Will Jamieson, an accountant. He produced an authority signed by Ms Yvonne Raschilla, said to be the sole director of Ralacom, authorising him to represent the company, and another document under which she purported to appoint him an officer of Ralacom. While the former may have some effect it is unclear how the latter makes him a proper officer for the purposes of s 82A of the Corporations Act.
7. Under s 43 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) a corporation may be represented by a person who is not a lawyer. Leave may also be granted if the interests of justice require it. The material filed for Ralacom was voluminous, and had the hands of Mr Jamieson and his staff all over it. At the first hearing he had some degree of familiarity with it. He was accompanied by persons he said were company officers. No objection was taken to his appearance for Ralacom. The circumstances warranted leave.
8. The first and third orders sought by Ralacom were for the appointment of a specialist adjudicator, or an adjudicator, under the BCCMA or the QCAT Act. The BCCMA invests the commissioner under that Act with exclusive jurisdiction to make dispute resolution recommendations regarding the appointment of a specialist adjudicator and it does not appear that this Tribunal has jurisdiction. During his submissions, Mr Jamieson conceded this. He was unable, otherwise, to point to a power in QCAT to appoint an adjudicator, specialist or not.
9. As to the application for injunctive relief the body corporate conceded that the matter is what the BCCMA calls a "complex dispute", potentially giving this Tribunal jurisdiction.[2] The concession is appropriate in light of the fact that Ralacom's material indicates the dispute began around its caretaking service contract with the body corporate, and what appears to be a complicated history of disputes about its terms and operation.
10. Ralacom has failed, however, to seek primary relief within QCAT's jurisdiction. Its application seeks no more than an injunction restraining the body corporate from acting on the resolution of 28 May 2010 pending orders by a specialist adjudicator. Mr Jamieson spoke of Ralacom's desire for conciliation and it may be assumed that, in truth, Ralacom seeks to see itself reinstated as the manager under its agreements. The QCAT Act exhorts the tribunal to eschew formality and technicality[3] and a failure, by a party which is not represented by lawyers, to plead its primary relief with precision ought not deny it a right to ancillary relief if, as here, what is actually sought is tolerably clear. I would not deny Ralacom relief merely because of a shortcoming in the application it filed.
11. But it faces other, more serious problems. First, for the reasons explored earlier, it has no apparent standing to bring these proceedings. Second, events have overtaken its applications. The body corporate notified the financier, and it has acted to appoint a receiver and manager. Since then Ms Williams and the body corporate have had a number of meetings regarding the ongoing performance and administration of the caretaking service agreements, and is operating under them.
12. Third, Ralacom has not acted with any expedition. Twenty-one days' notice of the extraordinary general meeting was given but it did not act until after that meeting had been held and the body corporate had acted in pursuit of the resolutions, and its statutory obligations.
13. Nor has Ralacom attempted with any clarity, in its material, to meet the usual tests to determine if urgent interlocutory injunctive relief should be granted. The material filed with the application indicates a history of disputation but does not point to some facts or circumstances suggesting there is a serious question to be tried. It is, of course, a serious matter that the body corporate has acted to terminate the agreements and it might be said, for the company, that this is enough.
14. As to the balance of convenience, however, the company runs up against the fact that a receiver is now installed, and operating in its stead under an order of the Supreme Court. If QCAT was to order that the body corporate not act on the resolution, it would effectively be immediately in breach on account of the actions it has, apparently lawfully, already taken in the face of that order.
15. Because the agreements remain on foot but under the control of the receiver and manager notwithstanding the resolution of the extraordinary general meeting, it is also difficult to see how Ralacom will suffer any further damage or loss in the event that injunctive relief is not granted.
16. Ralacom lacks standing to pursue the relief it seeks and has, in any event, failed to establish grounds warranting that relief. Its applications must be refused.

[1] Corporations Act, s 420(2)(k)