Brown v Southbank Towers [2016] QCAT 109

CITATION: Brown v Southbank Towers CTS 13224 [2016] QCAT 109 PARTIES: Gillian Brown (Applicant) v Southbank Towers CTS 13224 (Respondent) APPLICATION NUMBER: OCL004-16 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown DELIVERED ON: 15 April 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed. CATCHWORDS: BODY CORPORATE – jurisdiction of Tribunal – complex dispute – whether relief sought within jurisdiction of the Tribunal – whether application to resolve a complex dispute or otherwise within the jurisdiction of the Tribunal Body Corporate and Community Management Act 1997 (Qld),s 47AA, s 47B, s 48, s 133, s 149A, s 149B, s 178, s 227, s 385, s 387, s 405, s 412 Schedule 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10 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 4 -- 2 REASONS FOR DECISION What is this application about? [1] On 1 April 2016 I ordered the dismissal of an application to resolve a complex dispute filed by Gillian Brown. These are my reasons. [2] Gillian Brown owns a unit in South Bank Towers. Ms Brown says that the body corporate for South Bank Towers (‘the body corporate’) has failed to attend to necessary rectification work in respect of damage to her unit following a storm in November 2014. Ms Brown seeks orders from the Tribunal that legal proceedings by the body corporate against her and another unit owner be terminated, ‘remission of all legal costs and fees’ by the body corporate and body corporate manager, and ‘severe financial detriment caused by loss of rental’. The Body Corporate and Community Management Act 1997 (Qld) [3] The Queensland Civil and Administrative Tribunal is a creature of statute. The jurisdiction of the Tribunal, other than in respect of minor civil disputes, is conferred by various enabling Acts of the Queensland parliament.1 The Body Corporate and Community Management Act 1991 (‘the Act’) is an enabling Act. [4] The various categories of disputes contemplated by the Act are identified.2 Not all such disputes fall within the jurisdiction of the Tribunal. [5] The Act confers jurisdiction on the Tribunal in respect of certain specified disputes including complex disputes. A complex dispute is defined.3 Those matters in respect of which the Tribunal has jurisdiction include:  Changes in contribution schedule lot entitlements4  Adjustment of an interest schedule5  Adjustment of a contribution schedule6  Adjustment of contribution schedule lot entitlements7  Reviewing the terms of a service contract8  A dispute about the transfer of letting agent’s management rights9 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 10(1)(b). 2 The Act, s 227. 3 Ibid, Schedule 6. 4 Ibid, s 47AA(3)(b) and 47B(3)(b). 5 Ibid, s 48(1)(b). 6 Ibid, s 385(8)(b) and s 387(6)(b). 7 Ibid, s 405(2)(b) and s 412(2)(b). 8 Ibid, s 133; ‘service contract’ means a contract entered into with a person for the engagement of the person as a service contractor for a community titles scheme (refer the Act, schedule 6). 9 Ibid, s 149A. -- 2 of 4 -- 3  A dispute about a claimed or anticipated contractual matter about the engagement of a person as a manager or caretaking service contractor or the authorisation of a person as a letting agent10  A dispute about an exclusive use by-law11  The recovery of a debt12 [6] 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 QCAT exercising the tribunal’s original jurisdiction under the QCAT Act.13 [7] The only remedy for a dispute that is not a complex dispute is the resolution of the dispute by a dispute resolution process or an order of the QCAT appeal tribunal on appeal from an adjudicator on a question of law.14 In other words, a dispute that is not a complex dispute must first be referred to the Office of the Commissioner for Body Corporate Management to undertake dispute resolution. The only exception to this are disputes about the recovery of debts by the body corporate from a lot owner.15 The dispute and application to the Tribunal [8] In her application to resolve a complex dispute filed in the Tribunal, Ms Brown does not identify the dispute details at Part C of the application. She identifies that the relief sought is injunctive/interim and seeks orders that ‘The body corporate… for failure to attend to rectification works in a timely manner.’ She also seeks an ‘immediate approval and commencement of rectification works per proper quotations and engineer reviews…’. Orders are also sought terminating legal proceedings by the body corporate against Ms Brown and another (presumed) unit owner, ‘remission of all legal costs and fees by Body Corporate and Body Corporate Manager due to continuing and ongoing delays…’. [9] The Tribunal made directions that Ms Brown and the body corporate file written submissions regarding the jurisdiction of the Tribunal to hear and determine Ms Brown’s application. [10] Ms Brown made no submissions as such. Rather, she filed a large number of documents relating to the rectification works referred to in her application. There were no written submissions addressing the question of the Tribunal’s jurisdiction. [11] The body corporate says that the application filed by Ms Brown does not relate to a complex dispute and that the Tribunal does not have jurisdiction. The body corporate says that it has commenced proceedings against Ms Brown in the Magistrates Court for the recovery of outstanding body 10 The Act, s 149B. 11 Ibid, s 178. 12 Ibid, s 229A. 13 Ibid, s 229(2). 14 Ibid, s 229(3). 15 Ibid, s 229(3) and s 229A. -- 3 of 4 -- 4 corporate fees and that Ms Brown can agitate the issues raised in her application in that forum. Consideration and conclusion [12] The Tribunal’s jurisdiction is conferred by statute. It is not at large. The Tribunal’s jurisdiction in body corporate related disputes is limited by the Act to the determination of certain specified disputes. There is nothing in Ms Brown’s application which indicates that her dispute is one within the jurisdiction of the Tribunal. [13] Undoubtedly Ms Brown has issues with the body corporate relating to the rectification of storm related damage to her unit and she is entitled to pursue appropriate remedies. For the reasons outlined however, this Tribunal has no jurisdiction in respect of the remedies Ms Brown seeks. [14] The application is dismissed. -- 4 of 4 --