BODY CORPORATE AND COMMUNITY MANAGEMENT - TERMS OF AN AGREEMENT - JURISDICTION - where SCV alleges that it is owed money pursuant to agreements it claims to have with the Body Corporate - where SCV seeks, in the alternative, an order that if the terms of the agreements are void or unenforceable then SCV is entitled to be paid on the basis of a quantum meruit or on grounds resting upon equitable principles of unjust enrichment - where the Body Corporate has filed a counter-application seeking declarations that the agreements are void on grounds which include illegality or uncertainty, and declaratory relief including an order that SCV is estopped from seeking relief - where SCV now seeks an order confirming whether the dispute remains within QCAT's jurisdiction - whether QCAT has jurisdiction to hear and determine the dispute

Body Corporate and Community Management Act 1997, ss 4, 149B, 228, 229, sch 6

Queensland Civil and Administrative Act 2009, ss 3, 4, 6, 9, 15, 58, 59, 60

Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241 [2011] QCAT 277, cited

Independent Finance Group Pty Ltd v Mytan Pty Ltd [2003] 1 Qd R 374, cited

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, cited

P D Hay of Counsel, instructed by Hillhouse Burrough McKeown Lawyers

[1] SCV Group is the resident manager/caretaker, and provides the services of an on-site Body Corporate manager, at Parkview Gardens which is a group titles complex at Slacks Creek.

[2] SCV has brought proceedings in QCAT under the Body Corporate and Community Management Act 1997 (BCCMA) alleging that it is owed significant amounts of money pursuant to the agreements it claims to have with the Body Corporate which the latter has wrongly, it is said, failed or refused to pay.

[3] In the alternative it seeks, in its application filed in QCAT, an order that if the terms of the agreements are void or unenforceable then SCV is nevertheless entitled to be paid on the basis, in effect, of a quantum meruit or on grounds resting upon equitable principles of unjust enrichment.

[4] The Body Corporate has filed a response and counter-application in the Tribunal seeing declarations that the agreements are void on a number of grounds, including a want of approval from the Body Corporate; illegality; or uncertainty; and, relief in the form of rectification and other declaratory relief including an order that SCV is estopped from seeking the relief it claims, or has waived its rights to do so.

[5] SCV seeks a ruling to confirm that the dispute remains within the jurisdiction of QCAT. Both parties have filed written submissions about the question which, it is accepted, should be resolved by the Tribunal before the matter goes any further.[1]

[6] QCAT's jurisdiction to deal with the matter has its genesis in s 9(1) of the Queensland Civil and Administrative Act 2009 (QCAT Act). Section 9(1) gives the Tribunal jurisdiction to deal with matters that it is empowered to deal with under the QCAT Act itself, or an enabling Act. An enabling Act, defined in s 6(2), is another act that confers original, review or appeal jurisdiction on QCAT, or subordinate legislation that has that effect. Under s 9(3) an enabling Act confers jurisdiction if that Act provides for an application, referral or appeal to be made to QCAT '... in relation to the matter'.

[7] QCAT can exercise the original jurisdiction conferred by an enabling Act if an application is brought to it: s 15. In exercising that jurisdiction QCAT may perform the functions upon it by the QCAT Act or the enabling Act: s 16.

[8] Under s 9(4) the Tribunal also has jurisdiction to '...do all things necessary or convenient for exercising its jurisdiction'. The Tribunal's powers relevantly include, under s 60, the traditional equitable powers of courts to make declarations and, under ss 58 and 59, to make interim orders or grant injunctions.

[9] One of the announced objects of the BCCMA is to provide an efficient and effective dispute resolution process: s 4(i). The scheme for dispute resolution is set out in Chapter 6, and its purpose includes establishing arrangements for resolving disputes about matters arising under the engagements of persons as Body Corporate managers and service contractors: s 228(1)(d).

[10] Here, the applicant says its dispute with the Body Corporate is a 'complex dispute', a phrase which is defined in Schedule 6 to include a dispute mentioned, relevantly for present purposes, in s 149B. That section concerns disputes about claimed or anticipated 'contractual matters' about the engagement of persons as Body Corporate managers or care taking service contractors. It allows that parties to a dispute of that kind may apply for the appointment of a specialist adjudicator, or directly to QCAT, under the QCAT Act. (For the purposes of s 149B the term 'contractual matter' is defined in Sch 6 to include alleged contraventions of the terms of engagement, rights and powers, and the performance of duties under those terms.)

[11] Section 229(2) provides that the only remedy for a complex dispute is its resolution by an order of a specialist adjudicator, or an order of QCAT exercising this Tribunal's original jurisdiction.

[12] The Body Corporate does not appear to dispute any of these issues. Rather, it says that SCV's claim for payment under the contract may fall within QCAT's jurisdiction, but its alternative claim in a quantum meruit is outside it. It is said that a claim of that kind depends upon the absence of a valid contract and, once that is appreciated, it could never be classified as a 'contractual matter' under the BCCMA. The Body Corporate also argues that determination of the two claims would involve consideration of materially different facts. (It is appropriate to observe that the Body Corporate's response and counter-application may be categorised in the same way.)

[13] The weight of authority supports the view that s 229 precludes a party from litigating complex disputes in other courts or tribunals, including the Supreme Court.[2]

[14] The claim in quantum meruit does not arise out of a contract but by operation of law,[3] but it can also be categorised as a contractual matter under the definition in Schedule 6 because it concerns the performance of duties under the terms of the engagement. Even if those terms might subsequently be found to be void, that does not change the nature of the dispute which on any view is a claim for payment for carrying out a duty which, it is alleged, is set out in the caretaking agreements.

[15] QCAT's powers to adjudicate in matters having an obvious and practical connection with proceedings in which the Tribunal is, indubitably, invested with jurisdiction has been explored, recently, in the decision of the Tribunal in Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241 [2011] QCAT 277. As observed there, the Tribunal is invested under s 9 of the QCAT Act with jurisdiction to deal with matters under that Act or enabling Acts in the original, review or appeal jurisdictions - and, under s 9(4) it is given jurisdiction to '...do all things necessary or convenient for exercising its jurisdiction'.

[16] As also observed in that decision, the QCAT Act is to be interpreted in a way which will best achieve its purposes.[4] Provisions concerning QCAT's jurisdiction appear in a number of different places in the legislation. Section 3 sets out its objects which include, in s 3(b), the purpose of having a Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick. The Tribunal's functions relating to these objects include, in s 4, encouraging the early and economical resolution of disputes before the Tribunal; ensuring proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice; and, ensuring the Tribunal is accessible and responsive to the diverse needs to the persons who use it.

[17] It is not logical that a party should be compelled to bring proceedings in QCAT for one part of its claim pursuant to the exclusive jurisdiction invested in it under s 229 but obliged to pursue an alternative remedy, having an obvious connection with the original relief sought, in another jurisdiction. The effect would be to allow proceedings to be adversely affected by the kinds of sterile jurisdictional questions referred to by Atkinson J in Independent Finance Group Pty Ltd v Mytan Pty Ltd [2003] 1 Qd R 374 at 392.

[18] For these reasons, I am persuaded QCAT has jurisdiction in the dispute set out in the documents the parties have filed and that it is appropriate to make declarations to that effect.

[1] Skaines v Kovac Enterprises Pty Ltd [2007] 1 Qd R 98 at 100, per Fryberg J.

[2] James v Body Corporate for Aarons CTS 11476 [2003] QCA 329; [2004] 1 Qd R 386.

[3] Pavey & Matthews v Paul [1987] HCA 5; [1987] 162 CLR 221.

[4] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381.