Harvard Investments v Body Corporate

[2013] QCAT 254

CITATION: Harvard Investments v Body Corporate [2013] QCAT 254

PARTIES:	Harvard Investments Pty Ltd (Applicant)
V
Body Corporate for Villa Venetta CTS 18072 (Respondent)

APPLICATION NUMBER: OCL009-13

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Sandra G Deane, Member

DELIVERED ON: 29 May 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application is dismissed.

CATCHWORDS:

Body Corporate – claim for the cost of repairs to fixtures and fittings – whether Tribunal has jurisdiction – whether a complex dispute

Queensland Civil and Administrative Tribunal Act 2009 – ss 9, 12(3)
Body Corporate and Community Management Act 1997 – ss 47AA(3)(a), 47B(3)(a), 48(1)(a), 133, 149A, 149B, 178, 227, 229, 229A, 281, 385(8)(a), 387(6)(a), 405(2)(a), 412(2)(a), Schedule 6

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Harvard Investments is a lot owner in a community title scheme. It claims $49,328.40 for the cost of repairs to fixtures and fittings damaged in the January 2011 flood.  Harvard Investments contends that the Body Corporate failed to fully insure the body corporate’s assets and ought to reimburse these costs.

2. The Tribunal is a creature of statute and only has the powers vested in it by the QCAT Act and by relevant enabling acts[1] such as the Body Corporate and Community Management Act 1997 (BCCM Act).

   [1] Section 9 QCAT Act.

3. By direction dated 12 April 2013 the Tribunal directed the parties to file and serve submissions in relation to whether the Tribunal has jurisdiction to determine the application.

4. The categories of disputes contemplated by the BCCM Act are set out.[2]  Dispute is defined to include a dispute between the body corporate and the owner of a lot in the scheme[3]. 

   [2]         Section 227 BCCM Act.

   [3]        Section 227(1)(b) BCCM Act.

5. A complex dispute is defined.[4]  QCAT has power to determine a complex dispute.[5] 

   [4]        Schedule 6 BCCM Act.

   [5]        Section 229(2)(a)(ii) BCCM Act.

6. I find that this is not a complex dispute as it is not an application:

   a)involving lot entitlements[6];

   b)relating to service contract disputes[7];

   c)relating to transfer of management rights[8];

   d)relating to claimed or anticipated contractual matters about the engagement of a person as a body corporate manager, caretaking service contractor or letting agent;[9]

   e)relating to an exclusive use by-law[10].

   [6]        Sections 47AA(3)(a), 47B(3)(a), 48(1)(a), 385(8)(a), 387(6)(a), 405(2)(a), 412(2)(a)   BCCM Act.

   [7]        Section133 BCCM Act.

   [8]        Section 149A BCCM Act.

   [9]        Section 149B BCCM Act.

   [10]        Section 178 BCCM Act.

7. The application is not a debt dispute[11] which could be determined as a minor civil dispute by the Tribunal as the Body Corporate is not the party seeking to recover a debt under the BCCM.  In any event the Tribunal’s minor civil dispute jurisdiction is limited to claims of not more than $25,000.[12]

   [11]        Section 229A(7) BCCM Act.

   [12] Section 12(3) QCAT Act.

8. Harvard Investments seeks orders which would fall for determination by an adjudicator[13] except that the amount claimed exceeds $10,000.[14]

   [13]        Section 281(1)(b) BCCM Act.

   [14]        Section 281(2)(b) BCCM Act.

9. Section 229 of the BCCM Act provides exclusive dispute resolution processes if the dispute may be resolved under Chapter 6 of the BCCM Act.  It appears that this dispute is not one that may be resolved under Chapter 6 and therefore the exclusivity provisions would not apply.

10. I find that the dispute is not a complex dispute nor does it fall within the jurisdiction of the Tribunal’s minor civil disputes jurisdiction.

11. I therefore find that the Tribunal does not have jurisdiction.