Bartlett v Body Corporate for Beaches Surfers Paradise [2011] QCAT 91

CITATION: Bartlett v Body Corporate for Beaches Surfers Paradise [2011] QCAT 91 PARTIES: Mr William Bartlett ATF The WA Bartlett Family Trust v Body Corporate for Beaches Surfers Paradise CTS 15210 APPLICATION NUMBER: KC002-09 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers DECISION OF: Ms Anne Forbes, Member DELIVERED ON: 21 March 2011 ORDERS MADE: [1] Application for joinder dismissed. [2] Costs of the joinder application reserved. [3] The application is to be listed for a further directions hearing. CATCHWORDS: Application for joinder – no contractual basis – unexplained delay – undue complexity Queensland Civil and Administrative Tribunal Act 2009, s 42 REASONS FOR DECISION [1] This dispute involves an agreement assigned to the Applicant, as trustee of the W A Bartlett Family Trust, by consent of the Respondent body corporate, in June 2006. The agreement is for the caretaking of a large home unit complex bounded by Garfield Street, Frederick Street and The Esplanade, Surfers Paradise, and required Mr and Mrs Bartlett to occupy Unit 1, known as the caretaker’s unit. [2] On 25 October 2010 the Applicant filed an application (“the interlocutory application”) for an order that William Alexander Bartlett and Janette Ruth Bartlett be joined as Second and Third Applicants in these proceedings, and consequential orders. [3] This matter commenced on 9 January 2009, in the former Commercial and Consumer Tribunal. The Applicant has chosen to deliver formal pleadings, which are now at the stage of a Further Further Further Amended Statement of Claim (“the current claim”). Modern Supreme Court procedure envisages just three stages of pleading1. One hardly expects to meet the ghosts of 1 Uniform Civil Procedure Rules 1999, r 169. -- 1 of 4 -- KC002-09 / Page 2 of 4 rejoinders, surrejoinders, rebutters and surrebutters in the corridors of a tribunal commissioned to “act with as little formality and technicality and with as much speed as ... a proper consideration of ... matters ... permit[s]”: Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) s 23(3)(d). Elaborate formal pleadings and re-pleadings may occasionally be warranted, but not too many, and not too often. [4] Section 42 of the QCAT Act confers a discretion to allow joinder of parties if the Tribunal considers: (a) that the proposed new party should be bound by or have the benefit of a decision in the proceeding; or (b) that person’s interests may be affected by the proceeding; or (c) for another reason, it is desirable that the person be joined. The reference to interests in s 42(1)(b) denotes legal, as distinct from commercial, personal or emotional interests: Gertsch v Roberts; Estate of Gertsch (1993) 35 NSWLR 631; Coolum Properties Pty Ltd v Bunnings Group Limited and Maroochydore Shire Council [2007] QCA 299. [5] The present application is related to an allegation in Paragraph 6 of the current claim that the caretaking agreement includes an implied term that the Respondent is bound inter alia to ensure that the proposed new parties, Mr and Mrs Bartlett, in their own rights, have “quiet enjoyment of the caretaker’s unit and the caretaking business”. Paragraph 21A proceeds to allege: “By reason of the matters pleaded in paragraphs 1-21 of this Statement of Claim the [proposed] second and third applicants became parties to the Caretaking Agreement in so far as it applied to the Caretaker’s Unit, being bound by the Caretaking agreement and having the rights and benefits conferred by the terms of the Caretaking Agreement”. [6] Paragraph 66 seeks inter alia an order that the Respondent pay the [proposed] Second and Third Applicants the sum of $100,000 for the loss of the premium paid for unit 1, and an order that the Respondent pay the proposed applicants a further sum of $100,000 “as a global sum for distress, upset, inconvenience, intimidation, harassment, disappointment, anxiety, hurt feelings, and loss [of] enjoyment and peaceful occupation of the caretaker’s unit.” Respondent’s Submissions [7] The Respondent opposes the application for joinder on several grounds. It notes that the claims by the proposed new parties are based solely on contract, namely the caretaking agreement expressed to be made between Mr Bartlett, in the capacity of trustee, and the Respondent. The Respondent submits that, while terms may generally be implied, parties cannot be inserted or added by implication, and that accordingly the proposed actions by the Bartletts, in their own rights, have no reasonable prospects of success. [8] (The deed of assignment to the Applicant trustee, dated 27 June 2006, contains an explicit “entire agreement” stipulation: Clause 9.) -- 2 of 4 -- KC002-09 / Page 3 of 4 [9] The Respondent also submits that damages for distress, hurt feelings etc are not available in an action for breach of contract, citing such authorities as Mann v Capital Territory Health Commission (1982) 148 CLR 97 and Baltic Shipping Co v Dillon (1993) 176 CLR 344. However, in Mann (at 103) the court refrained from deciding the point, and in Baltic Shipping the general proposition was significantly qualified: see for example Deane and Dawson JJ on agreements to prevent molestation or vexation. Appellant’s Submissions [10] The Applicant, in reply, submits that substantially the same questions arise between the Respondent, the Applicant, and the proposed new parties, in that a decision on the caretaker’s issues will affect Mr and Mrs Barrett personally, as owners of Unit 1. Separate proceedings, it is said, will lead to unnecessary costs, and possibly to inconsistent decisions. They are proper parties to these proceedings because of a relationship “peculiar to this type of agreement which makes them parties to the caretaking agreement”. If they ceased to be the owners of Unit 1, the Applicant trust would lose its rights under the caretaking agreement. [11] There is a point taken in a letter of the Respondent’s solicitors dated 3 November 2010 that is not pursued in the formal submissions. It is contended there that QCAT’s only jurisdiction under the Body Corporate and Community Management Act 1997 is contained in s 149B thereof, and that all other disputes under that Act are assigned to the Commissioner for Body Corporate and Community Management. Section 149B relevantly provides that a contractual dispute about the engagement of a person as a body corporate manager or caretaking service contractor for a community titles scheme may apply to QCAT to resolve the dispute. Section 167 deals with allegations of nuisance by one unit holder against another, and s 227(1)(b) defines a dispute as one between the body corporate and the owner or occupier of a lot included in the scheme. [12] While it is not correct to say that all disputes other than s 149B matters are beyond QCAT’s jurisdiction (see for example, ss 149A, 229(4)) this question need not detain us, for the Tribunal has decided that it may allow joinder of a claim that is beyond its jurisdiction, provided that the matter is then referred to a court: Rodgers Pools v SQ Pty Ltd (2007) QCCT B 179; Bach v Majestic Pools & Landscapes Pty Ltd [2010] QCAT 581 at 54; MDC Developments Pty Ltd v G & M Van Der Vegt Nominees Pty Ltd [2010] QCAT 489 at [26]. Consideration and Decision [13] Be that as it may, I am not persuaded that there is a prima facie contractual relationship between Mr or Mrs Bartlett (in their own rights) and the Respondent, and no other basis for their proposed action is suggested. [14] That is not the only obstacle facing the interlocutory application. Further, there was a long and unexplained delay on the Applicant’s part before the fifth version of the Statement of Claim introduced the claim on which this joinder application is based. The affidavit of Glendon Francis Young, sworn on 2 October 2010, accompanying the interlocutory application, offers no -- 3 of 4 -- KC002-09 / Page 4 of 4 explanation for the fact that almost two years and four versions of the Applicant’s claim elapsed before the “implied parties” claim came to light. Unexplained and lengthy delay is a recognised ground for refusing to exercise the s 42 discretion (Bach v Majestic Pools & Landscapes Pty Ltd [2010] QCAT 581 at [57]; MGM Containers Pty Ltd v Wockner [2006] QCA 502; Villinger Group Ltd v. Redmond [2009] QSC 60 at [12]; MDC Developments Pty Ltd v G & M Van Der Vegt Nominees Pty Ltd [2010] QCAT 489; Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27 at [102]-[103]) and in my view it is a cogent reason for refusing the order sought in this case. I consider that it would be unfairly prejudicial to the Respondent to permit the Applicant to enlarge and complicate the case at this late stage. In February 2010 the Respondent filed a Defence based on the fourth version of the Statement of Claim. The delay cannot be explained by a hiatus or change in legal representation. The same firm of solicitors issued the second, third, fourth and fifth versions of the Statement of Claim. [15] Another recognised reason for refusing a joinder – one that clearly arises for consideration in this case – is that the addition of parties (and hence causes of action) would considerably add to the complexity of proceedings already complicated by no fewer than five versions of the Applicant’s Statement of Claim. [16] Joinder would not merely raise two new causes of action for the Respondent and the Tribunal (or a court of referral) to contend with. It would also raise an issue of estoppel by prior adjudication that is outlined in paragraphs 52-54 of the Respondent’s submissions, and summarily disputed in paragraph 7 of the Applicant’s response. The threat of a late introduction of complexity was a principal reason for the dismissal of the joinder application that was upheld by the Court of Appeal in MGM Containers Pty Ltd v Wockner (2006) QCA 502. See also Villinger Group Ltd v. Redmond [2009] QSC 60 at [14]. [17] The application for joinder is dismissed. [18] There remains a question of costs of the interlocutory application. Understandably it is not raised in the Defence, which preceded the fifth Statement of Claim. See, however, paragraphs 61-71 of the Respondent’s submissions. While they deal with the law relating to ss 100 and 102 of the QCAT Act, they do not provide any assistance with quantum. Rather than delay this matter still further by requiring further oral or written submissions on this issue, I shall reserve it to the member who conducts the determinative hearing. Orders [1] Application for joinder dismissed. [2] Costs of the joinder application reserved. [3] The application is to be listed for a further directions hearing. -- 4 of 4 --