Reynolds v Body Corporate for Mount View Apartments [2018] QCAT 283

[5] The applicant contends that the application concerns a claim under s 149B of the Body Corporate and Community Titles Act 1997 (Qld) (BCCM Act), as it is a dispute about a claimed or anticipated contractual matter about his engagement by the respondent as a caretaking service contractor. Therefore, he contends, he is entitled to apply, under subsection 149B(2)(b), for an order of the tribunal, exercising its original jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), to resolve the dispute.

[6] The respondent contends that jurisdiction does not arise under s 149B because the dispute is not about a 'contractual matter' and the applicant was not a 'caretaking service contractor' when and since the application was filed. I summarise its reasoning below.

[7] Both parties accept that, by the time the application began, the applicant was no longer a 'caretaking service contractor' and there was no 'service contract' on foot, because one or other of the parties had terminated it.

[8] It is a prerequisite for a claim under s 149B that both these matters exist at the time of the application.

[9] A 'contractual matter' is defined in the dictionary to the BCCM Act, relevantly in these terms:

contractual matter, about an engagement of a service contractor, means -

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

(b) the termination of the engagement.

[10] A 'service contractor' is defined in s 15 of the BCCM Act relevantly in the following terms:

A person is a service contractor for a community titles scheme if the person is engaged by the body corporate (other than as an employee of the body corporate) for a term of at least 1 year to supply services (other than administrative services) to the body corporate for the benefit of the common property or lots included in the scheme.

[11] Section 149B only applies if the applicant is a service contractor, and he is a service contractor only if he is engaged by the body corporate. Section 15 does not say, 'if the person is or was engaged by the body corporate.'

[12] Although the applicant was engaged by the respondent as a caretaking service contractor, that has not been the case since the contract was terminated by one or other of the parties, which occurred before this application was filed. Therefore, the dispute is not about a 'contractual matter'.

[13] This was clearly the intention of Parliament, as elsewhere in the BCCM Act it expressly provides for jurisdiction to resolve disputes with former contractors. For example, s 227, which prescribes what types of dispute are covered by chapter 6,[4] relevantly provides:

227 Meaning of dispute

(1) A dispute is a dispute between -

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

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

[14] Section 227 provides for circumstances where the applicant can be a person who was, but no longer is, within one of the categories of persons who can make an application. Another example is s 239C. In contrast, s 149B makes no such provision.

[15] The respondent also points to what it says are the remedies available to the tribunal under sections 58 to 60 of the QCAT Act, to resolve a dispute between a body corporate and a service contractor: to make interim orders to preserve the status quo, to grant injunctions and to make declarations. By reason of those sections, the tribunal's power is only to resolve disputes about a service contractor prior to termination of the contract.

[16] Therefore, the respondent contends, the tribunal has no jurisdiction to resolve this dispute.

[17] The tribunal's jurisdiction is only that conferred on it by statute: namely, the QCAT Act or another statute. Neither party contends to the contrary.

[18] Section 10 of the QCAT Act relevantly provides that the tribunal's original jurisdiction generally is that conferred on it by s 11 and that conferred on it under an enabling Act to decide a matter in the first instance. Under s 9(3), an enabling Act confers jurisdiction on the tribunal to deal with a matter if it provides for an application to be made to the tribunal in relation to a matter. An 'enabling Act' is an Act other than the QCAT Act that confers original jurisdiction on the tribunal.[5]

[19] Section 11 confers jurisdiction to decide a minor civil dispute. Relevantly, such a dispute is defined in the dictionary as a claim to recover a debt or liquidated demand of money up to the prescribed amount, or a claim arising out of a contract between a consumer and a trader that is for the payment of money of a value not more than the prescribed amount. The prescribed amount is $25,000.

[20] Section 149B(2) of the BCCM Act provides for a party to a dispute about the matters described in subsection (1) to take either of two courses of action to resolve the dispute:

• (a) it may apply, under chapter 6 of the BCCM Act, for an order of a specialist adjudicator; or

• (b) it may apply, under the QCAT Act, for an order of QCAT, exercising its original jurisdiction, to resolve the dispute.

[21] Importantly, an application to QCAT under paragraph (b) is not an application under chapter 6. Therefore, s 227, which limits the persons between whom a dispute may be resolved by an adjudicator under that chapter, is not directly relevant to the tribunal's jurisdiction under s 149B.

[22] The respondent does not appear to contend that s 227 is directly relevant, but contrasts it with s 149B in the manner I have described in paragraphs [13] and [14] above. I accept that s 227 makes the distinction between current and former body corporate managers in the manner referred to and does not expressly refer to current and former caretaking service contractors. I also note that it has been held by an adjudicator in the past that the term 'caretaking service contractor', as used in s 227, is referring only to a service contractor und[6]r an existing contract.6 That may be correct, but it is relevant to s 149B only to the extent of an application referred to in paragraph 149B(2)(a) - that is, an application under chapter 6 to a specialist adjudicator. Section 227 limits the persons between whom a dispute of the nature described in s 149B must arise in order to entitle a party to the dispute to apply to a specialist adjudicator under paragraph 149B(2)(a). This is because only that type of application is made under chapter 6, which is the chapter within which s 227 appears. The definition of 'dispute' in the dictionary makes it clear that s 227 only defines 'dispute' for chapter 6.

[23] I do not accept that the same can be said of the term 'dispute' as it is used in s 149B generally, nor of the references, in the definition of 'contractual matter', to a service contractor and an engagement of such a person. Nothing in s 149B itself provides that a party to a dispute must be a service contractor, let alone a current service contractor. That section (and the definition of 'contractual matter') concerns the subject matter of a dispute, not the parties to a dispute. That alone distinguishes it from s 227 (which expressly limits the parties to a dispute who may apply to a specialist adjudicator under chapter 6) and from Suncorp (which expressly concerned a dispute 'between a landlord and tenant').

[24] The respondent relies on the following passage from a judgment of Mr K Dorney QC (as his Honour then was) in answer to a proposition put by the applicant that, as s 149B is outside chapter 6, s 227 does not limit the operation of s 149B. The respondent contends that the type of dispute referred to in s 149B is informed (and limited) by the types of dispute (or, more accurately, the limited parties to a dispute) provided for in chapter 6. Mr Dorney said:

... the definition of 'dispute' in Schedule 6, where it 'includes' a complaint, prefaces that definition by the word 'generally'. While it is true that Chapter 6, and in particular section 227, are not necessarily expressly engaged by section 149B(2)(b), it is clear, from both section 149B(2)(a) and from section 229(2)(a)(ii) - the latter of which is clearly within Chapter 6 - taken in the context of the definition of 'complex dispute' as meaning a dispute mentioned, relevantly, in section 149B, that an understanding of what is dealt with [in] section 149B(1) can be informed by considering the context of the whole Act which includes what the definitions for Chapter 6 provide. That is, in determining what is meant by 'dispute' in section 149B, it is appropriate, as a contextual task, to take into account what a party to 'the' dispute must satisfy under Chapter 6. This is because a party to a dispute may follow that path rather than the path that the present applicants have taken. The correct approach to interpretation means that a party to a particular dispute should not be faced with quite legal different requirements merely because of the path chosen to determine the dispute, unless it is abundantly clear that the Legislature has required such a distinction to be made.[7]

[25] Those comments were made in the context of an application made to the tribunal by a person who was not a party to the service contract that was in existence between the body corporate and the service contractor. The applicants were lot owners in the scheme and the respondents were the body corporate and the service contractor. I agree that chapter 6 informs, to some extent, the types of dispute referred to in s 149B. But I do not consider that the arguable limitation of the parties to a dispute to the existing contracting parties, under s 227, wholly informs the types of dispute that are the subject of s 149B. The latter section describes the subject matter of a dispute, not the allowable parties to the dispute and, as I have said, distinguishes between a dispute taken under chapter 6 and a dispute brought to the tribunal, by granting the right to adjudication under chapter 6 only to certain parties, but not so limiting the parties to an application to the tribunal. I do not consider it correct to say that this amounts to quite different legal requirements merely because of the path chosen to determine the dispute. Rather, the distinction is between two paths: one (an application to the tribunal) that is available to all parties and another, potentially shorter and less costly, that is only available to limited categories of parties. If, in reaching this conclusion, I might be seen to differ from his Honour, then I respectfully do so.

[26] One other provision must be considered. Subsection 229(2) of the BCCM Act (which is in chapter 6) relevantly provides that the only remedy for a complex dispute is the resolution of the dispute by an order of a specialist adjudicator under chapter 6 or an order of the tribunal exercising its original jurisdiction under the QCAT Act. Subsection (1) of that section provides that subsection (2) applies to a dispute if it may be resolved under chapter 6 by a dispute resolution process.

[27] 'Complex dispute' is defined in the dictionary to include a dispute mentioned in s 149B. 'Dispute resolution process' is relevantly defined as a number of available processes, including specialist adjudication but not including resolution by the tribunal.

[28] Section 229 might be said to demonstrate that an application to the tribunal in its original jurisdiction regarding a complex dispute is therefore under chapter 6, with the consequence that s 227 applies to limit the parties to such a dispute, because a dispute mentioned in s 149B may be referred for specialist adjudication. I do not consider that to be correct. Both s 149B and s 229 distinguish, in identical terms, between resolution by specialist adjudication under chapter 6 and resolution by the tribunal in its original jurisdiction under the QCAT Act. I do not consider that s 229 relevantly affects the construction of s 149B. Section 229 simply confirms that a complex dispute may be dealt with either under chapter 6 or, outside that chapter, by the tribunal in its original jurisdiction. Furthermore, the 'dispute' referred to in s 229 can only be one that is capable of being resolved under chapter 6, namely one that is between the categories of person listed in the definition of 'dispute' for chapter 6. Section 229 does not apply to disputes between other categories of person about one of the subjects listed in, relevantly, s 149B.[8]

[29] Section 229 also appears to be directed to ensuring that a complex dispute may only be heard and determined by the methods identified. That is, they may not be heard and determined by another method or body, such as a court. It may be termed an 'exclusive jurisdiction' clause. As such, it may have been better placed in another location within the Act, but in my view it does not alter the fact that a dispute that is the subject of an application to the tribunal is not a dispute that is to be resolved under chapter 6.

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

[31] There is nothing in s 149B or the definition of 'contractual matter' that limits the tribunal's jurisdiction to considering the terms or the termination of an engagement before it is terminated. Indeed, to resolve a dispute about termination before the contract is terminated is likely to involve giving an advisory opinion. It is not a function or power of the tribunal to give such an opinion.[9]

[32] This case raises disputes about whether each party breached the terms of the engagement of the applicant by the respondent and who was entitled to and did terminate the contract. It falls squarely within the type of dispute described in s 149B and, having been brought to the tribunal rather than taken to a specialist adjudicator, I consider that the tribunal has jurisdiction to hear and resolve it.

[33] The tribunal's jurisdiction under s 149B is to 'resolve the dispute'.

[34] The respondent submits that the tribunal's powers to resolve a dispute are limited to those given under sections 58, 59 and 60 of the QCAT Act. It submits that s 149B of the BCCM Act does not confer any express powers on the tribunal, such as that conferred on an adjudicator under s 276, to make an order that is just and equitable in the circumstances. Rather, s 149B simply allows a party to apply to the tribunal for an order exercising its original jurisdiction. It is therefore necessary to look to the QCAT Act to ascertain the tribunal's powers.

[35] The respondent then submits that the effect of sections 9, 10 and 11 of the QCAT Act is that the tribunal's original jurisdiction is to hear and decide a minor civil dispute. In hearing such a dispute, the tribunal is given the powers to make orders under sections 58, 59 and 60, and otherwise its power is limited to the extent of its jurisdiction in determining a minor civil dispute, which is to a maximum of $25,000. As the applicant in this proceeding claims over $300,000, the tribunal does not have power to order that amount and this is not a minor civil dispute.

[36] I agree that this part of the applicant's claim is not a minor civil dispute. But this submission appears to ignore that the tribunal has two sources of jurisdiction under s 10 of the QCAT Act: minor civil disputes and jurisdiction granted under an enabling Act. This case is one of the tribunal's jurisdiction under an enabling Act. That Act, having granted jurisdiction 'to resolve the dispute', does not limit the tribunal's power, nor does it limit the extent of that jurisdiction by any monetary amount. One must therefore look to the QCAT Act to determine any limits to that power or jurisdiction.

[37] Sections 58, 59 and 60 give the Tribunal powers that, without express statutory imprimatur, it would not have. But those are not its exclusive powers. Indeed, they are procedural powers, as indicated by the heading to the division in which they appear. The tribunal's substantive power is to exercise its jurisdiction to 'resolve the dispute'.

[38] The dispute in this case concerns alleged breaches of a contract. One normal remedy for a breach of contract is to award damages. Section 229 of the BCCM Act appears to make it clear that a court cannot determine this dispute and, if there is a breach, award damages, because of the type of contract that is the subject of the dispute (that is, an engagement of a service contractor under the BCCM Act). Only the tribunal may resolve the dispute once an application is made to it.

[39] The respondent submits that there is no express conferral of power to award damages to resolve a dispute under s 149B of the BCCM Act. It says that that section is intended to give the tribunal the power to deal with disputes between a body corporate and its current contractor by granting injunctions or making declarations. I do not consider that the jurisdiction is not so limited.

[40] The respondent notes that there is no similar provision in either Act to s 77(3)(c) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), by which the tribunal may exercise a power to award damages. But, as the applicant points out, that paragraph is merely an example of the power granted under the section to the tribunal 'to resolve the dispute'. That power is not limited or expanded by the list of specific examples of the exercise of the power.

[41] The power under s 149B of the BCCM Act is expressed in identical words and, in the absence of an indication to the contrary (of which there is none), might be expected to have the same meaning as in the QBCC Act.

[42] The respondent also points to the absence of a provision such as s 68(1)(a)(i) of the District Court of Queensland Act 1967, which provides that that court has jurisdiction to hear and determine 'all personal actions, where the amount, value or damage sought to be recovered does not exceed the monetary limit including ... demand for recovery of money or damages, whether liquidated or unliquidated.' I agree with the applicant's submission that that provision is similarly unhelpful: the power to award damages is again an example of the more general power to determine all personal actions up to the prescribed monetary limit. It does not assist in construing the meaning of the unlimited phrase in the particular legislation with which I am concerned: 'resolve the dispute.'

[43] The QCAT Act does give the tribunal express power to award damages in four instances. Under s 22(7) it may assess damages for an undertaking as to damages on an application to stay an operative decision pending its review. It has a similar power to assess damages under an undertaking where it has made interim orders (s 58) or granted an interim injunction (s 59). Finally, under s 50A, it may assess unliquidated damages in an application for such damages where the respondent has defaulted in responding within a stated period.

[44] Nothing in the BCCM Act or the QCAT Act expressly gives the tribunal the power to award damages to resolve a dispute referred to it under s 149B. But similarly, nothing in those statutes limits the remedies that the tribunal may order to resolve the dispute. And s 50A recognises that the tribunal may hear a claim for and award unliquidated damages in some claims.

[45] Subsection 9(4) of the QCAT Act provides that the tribunal may do all things necessary or convenient for exercising its jurisdiction. The word 'necessary' has been said, in a context similar to that appearing in s 9(4) of the QCAT Act, to identify a power to make orders which are reasonably required or legally ancillary to the accomplishment of specific remedies. In that setting, it is to be subjected to the touchstone of reasonableness.[10]

[46] No specific remedies are stated in either statute in this case. But, as Alan Wilson J said when he was President of this tribunal,

Even in the absence of an express power, however, an inferior court may have an implied power to grant certain kinds of relief. As Dawson J observed in Grassby v R [1989] HCA 45; (1989) 168 CLR 1 at 16-17 while inferior courts are unable to draw upon the unrestrained and undivided powers of superior courts, they may possess jurisdiction arising by implication, on the principle that a grant of power carries with it everything necessary for its exercise.[11]

[47] In the absence of any limitation, the extent of the power to resolve the dispute must be considered by reference to normal and reasonable remedies. The award of damages is a normal remedy for breach of contract. There is no limit expressed on the tribunal's jurisdiction or power to award damages. In my opinion, it has power to award damages for breach of a service contract in respect of which an application has been made to it to resolve a dispute.

[48] The applicant proffered an alternative submission as a basis for the tribunal's power to award damages for loss of use of the principal damages that it claims.[12] He contends that that part of his claim for damages may be for less than $25,000 and may be a minor civil dispute because, although not for a debt under $25,000, it is nevertheless claimable as relief for a minor civil dispute, being a dispute between a trader and a consumer. In this respect, he contends that he is a trader and the respondent is a consumer, as defined in the dictionary of the QCAT Act.

[49] I consider that submission to be wrong in several respects. First, Hungerfords v Walker damages form part of the total damages claimed and cannot be separated into a different category of claim. Secondly, it is not clear that this element of the applicant's alleged loss will amount to no more than $25,000. Thirdly, 'consumer' is relevantly defined as 'an individual for whom services are supplied for fee or reward.' 'Individual' is not defined, but it is clearly used in the Act to refer to a natural person, as opposed to a body corporate or other non-natural person. For example, 'child' is defined as 'an individual under 18 years.' This is consistent with the treatment of 'individual' in the Acts Interpretation Act 1954 (Qld), s 32D. That section provides that, in an Act, a reference to a person generally includes a reference to a corporation as well as an individual. The section then gives examples of express references to an individual as adult, child and spouse. Clearly, 'individual' means a natural person.

[50] The respondent is not an individual and therefore it is not a consumer.

[51] The tribunal has jurisdiction to hear and determine the applicant's claim, both for damages and for the alleged debts. It has power to award the damages claimed. It also has power to order payment of the alleged debts, which in themselves would amount to a minor civil dispute.

[1] I say 'purported' in each case only because these are the allegations made. Of course, in doing so I do not prejudge whether or not the allegations are correct.

[2] This is the limit of its minor civil disputes jurisdiction.

[3] That is, strictly speaking the preliminary issue raises two issues: the first, one of jurisdiction and the second, one of power. I shall consider them separately on that basis.

[4] In the dictionary, 'dispute' is defined as '(a), generally, includes complaint; and (b) for chapter 6, see section 227.'

[6] Unicentral [2012] QBCCMCmr 538, [9] and Aspect North II [2016] QBCCMCmr 258, [12]. The adjudicator relied on the decision of Dowsett J in Suncorp Insurance and Finance v Retail Shop Lease Tribunal [1995] 2 Qd R 429 (Suncorp), 433-434. These cases were, quite properly, referred to by the applicant's counsel in his submissions. They were not directly relied on by the respondent, but they appear, at first blush, to support the respondent's contention that s 227 does not refer to former caretaking service contractors.

[7] Sheehy v Body Corporate for Marlin Cove [2008] QCCTBCCM 14 (Sheehy), [27].

[9] Except, perhaps, in the sense of declaring parties' rights in appropriate cases.

[10] Pelechowski v Registrar, Court of Appeal [1999] HCA 19; (1999) 162 ALR 336, 348; partly cited by Alan Wilson J in Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder [2011] QCAT 277 (Batwing), [19].

[12] 'Hungerfords v Walker' damages, named after Hungerfords v Walker [1989] HCA 8; (1989) 171 CLR 125.