Adams v Complete Management Group [2016] QCAT 351

CITATION: Adams v Complete Management Group [2016] QCAT 351 PARTIES: Allen Adams (Applicant) v Complete Management Group (Respondent) APPLICATION NUMBER: OCL025-16 MATTER TYPE: Other civil dispute matters DECISION OF: Senior Member Brown DELIVERED ON: 27 September 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The Application for the adjustment of a lot entitlement schedule is dismissed. CATCHWORDS: REAL PROPERTY – STRATA AND RELATED TITLES – GENERAL MATTERS – JURISDICTION AND POWERS OF COURTS AND TRIBUNALS – where judgement in Magistrates Court for outstanding body corporate levies – where applicant seeks to claim back amount of judgment debt – whether application in respect of a complex dispute – where application dismissed for lack of jurisdiction Body Corporate and Community Management Act 1997 (Qld) ss 47AA, 47B, 48, 133, 149A, 149B, 178, 229, 385, 387, 405, 412 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47 Walton v Gardiner (1993) 177 CLR 378 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 5 -- 2 REASONS FOR DECISION What is this application about? [1] Allen Adams was a lot owner in Stradbroke Court, a community titles scheme on the Gold Coast. Mr Adams sold his lot. He has filed an application for the adjustment of a lot entitlement schedule under the provisions of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA). Mr Adams has named Complete Management Group (CMG) as the respondent. CMG is the appointed body corporate manager. At a directions hearing on 19 July 2016 the parties were directed to file and serve submissions in relation to the determination of a preliminary point, namely, whether the Tribunal has jurisdiction in respect of the application. The statutory framework [2] The jurisdiction of the Tribunal in respect of body corporate and community titles disputes is conferred by the BCCMA. The Tribunal has jurisdiction to hear and determine a complex dispute.1 A specialist adjudicator may also hear and determine a complex dispute.2 The Tribunal also has jurisdiction to hear and determine appeals from decisions by specialist adjudicators and adjudicators on a question of law.3 [3] A complex dispute is defined.4 Relevant to this application, a complex dispute includes: a) A dispute arising out of a resolution by a body corporate to change the contribution schedule lot entitlements for the lots included in a scheme;5 b) A dispute arising out of: i) A belief by a lot owner that, as a result of a material change to a community titles scheme subsequent to the last time the contribution schedule lot entitlements were decided, an adjustment of the contribution schedule is necessary;6 ii) A belief by a lot owner that contribution schedule lot entitlements are not consistent with the deciding principle for the lot entitlements following a decision by the tribunal, a specialist adjudicator or a resolution passed by the body corporate;7 iii) A belief by a lot owner that the contribution schedule lot entitlements are not just and equitable following a formal 1 BCCMA s 229(2)(a)(ii). 2 BCCMA s 229(2)(a)(i). 3 BCCMA s 229(2)(b) and s 229(3)(b). 4 BCCMA Schedule 6. 5 BCCMA s 47AA. 6 BCCMA s 47B(1). 7 BCCMA s 47B(2). -- 2 of 5 -- 3 acquisition affecting a scheme resulting in a change to the schedule lot entitlements;8 c) An application for the adjustment of an interest schedule;9 d) A dispute arising out of a motion proposing adjustment of the contribution schedule;10 e) An application for adjustment of the contribution schedule lot entitlements to reflect decided entitlements or the last adjustment order entitlements under subdivision 5.11 What do the parties say? [4] The application and submissions by Mr Adams are somewhat difficult to fully understand. Mr Adams says: a) CMG was appointed body corporate manager in January 2015; b) he did not vote for the appointment of CMG as manager; c) he was overcharged by CMG for body corporate fees; d) he became aware in January 2016 of proceedings against him in the Magistrates Court of Queensland and of the existence of an Enforcement Warrant – Seizure and Sale of Property issued on 17 November 2015; e) In February 2016 he was advised by the Commonwealth Bank that an amount of $7,929.40 had been paid from his account to the solicitors for CMG; f) The judgement debt (the basis for the Enforcement Warrant) related to a claim for unpaid body corporate levies in 2013 and 2014; g) An amount was paid by the Gold Coast City Council to the body corporate in or about 2009 “for their purchase of a portion of the property” and that the direct financial benefit to each lot owner would be $4,524.65; h) The body corporate resolved to use the amount paid by the Council “to pay body corporate fees for the next financial years until the funds were used up.”; i) He was told at a meeting of the body corporate in November 2014 that he did not owe any arrears of levies.12 [5] In his application to the Tribunal, Mr Adams seeks to recover the amount of $7,929.40 which he says is the overpayment of levies taken from his 8 BCCMA s 47B(2A). 9 BCCMA s 48(1). 10 BCCMA s 385(8)(a) and s 387(6)(a). 11 BCCMA s 405(2)(a) and s 412(2)(a). 12 Applicant’s submissions. -- 3 of 5 -- 4 Commonwealth Bank account. He seeks an order that his “credit file to [sic] be cleared of any defaults caused by the Respondent.” [6] CMG says that the Tribunal does not have jurisdiction to hear and determine the application. CMG says that it should not be a respondent and that as the manager it only acts upon instructions from the body corporate. CMG says that as Mr Adams is no longer a lot owner he is not entitled to the relief sought. Discussion [7] The application by Mr Adams relates to a dispute over body corporate levies. There is a judgment in the Magistrates Court against Mr Adams for unpaid levies. Enforcement proceedings appear to have resulted in the payment of the judgment debt from Mr Adams’s bank account. Mr Adams seeks to recover the amount of the judgment debt. [8] The Tribunal is a creature of statute and its jurisdiction and powers are provided by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and various enabling Acts. The BCCMA is an enabling Act. The jurisdiction of the Tribunal in respect of disputes relating to community titles schemes is to be found in the BCCMA and is limited to the determination of complex disputes and appeals on a question of law from decisions by specialist adjudicators and adjudicators. [9] The application by Mr Adams does not relate to contribution schedule lot entitlements. Mr Adams seeks to claim an amount he has been ordered to pay as a result of a judgment obtained against him in the Magistrates Court. The application names the body corporate manager as respondent. Mr Adams seeks to substitute the body corporate as the correct respondent. Whether CMG or the body corporate is named as respondent, the same fundamental obstacle lies in the path of Mr Adams: his claim is not in respect of a complex dispute. The claim does not relate to the adjustment of a lot entitlements schedule nor is it a dispute about a review of the terms of a service contract,13 a dispute about the transfer of management rights14 or contractual matters,15 or a dispute concerning the review of an exclusive use by-law.16 [10] If Mr Adams seeks to challenge the claim for the recovery of the outstanding body corporate levies then the appropriate place for that to occur is in the Magistrates Court. This proceeding, and indeed any proceeding commenced by Mr Adams seeking the relief set out in his application, is very likely an abuse of process.17 In any event, the claim by Mr Adams is not a matter within the jurisdiction of the Tribunal and the Tribunal cannot hear and determine the application. 13 BCCMA s 133. 14 BCCMA s 149A. 15 BCCMA s 149B. 16 BCCMA s 178. 17 Walton v Gardiner (1993) 177 CLR 378. -- 4 of 5 -- 5 Order [11] In circumstances where a proceeding is misconceived, lacking in substance or otherwise an abuse of process the Tribunal may dismiss the proceeding.18 [12] The appropriate order is that the application for the adjustment of a lot entitlement schedule filed 18 May 2016 is dismissed. 18 QCAT Act s 47. -- 5 of 5 --