Dunlop & Anor v Body Corporate For Port Douglas Queenslander CTS 886 & Ors [2021] QSC 85

Date: 27 April 2021
Court/Tribunal: Supreme Court of Queensland
Judicial Officer/Tribunal Member: Henry J
Human Rights Act 2019 (Qld) Sections: s 48
Rights Considered: N/A
Other Legislation: Australian Consumer Law (Cth), s 18, s 37, s 236; Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld) s 128(1)(c); Body Corporate and Community Management Act 1997 (Qld) s 96, s 149B, s 229(2), s 250(2), s 276(1); Property Occupations Act 2014 (Qld), s 100
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 52; Uniform Civil Procedure Rules 1999 (Qld), r 16, r 149(1)(b), r 150(1)(j), r 171(1)
Keywords: Public Law Considerations: Interpretation

The case concerned a claim for losses alleged to flow from a body corporate’s termination of letting and caretaking agreements. The Court considered that the authorities relevant to the interpretation of section 229(2) of the Body Corporate and Community Management Act 1997 (Qld) did not raise an ‘alternate realistically arguable interpretation’ that ought to be favoured due to the subsequent requirement under the Human Rights Act 2019 (Qld) that statutory provisions must be interpreted in a way that is compatible with human rights.

The case concerned a claim for losses alleged to flow from a body corporate’s termination of letting and caretaking agreements, made by the applicants against the body corporate, body corporate committee members and the solicitor consulted by the body corporate.

One issue that the Court needed to determine was whether the matter was a complex dispute to be resolved pursuant to the particular remedies listed in section 229(2) of the Body Corporate and Community Management Act 1997 (Qld). In the Court’s discussion of section 229(2), the Court considered that the relevant authorities indicate that the provision is more than a statutory bar to the remedy sought in the dispute and that its effect is to remove the court’s jurisdiction to resolve the dispute: at [64]. The Court then considered that these authorities did not suggest that the provision was ambiguous or lacked clarity, or raise ‘an alternate realistically arguable interpretation of the effect of s 229 which ought now be favoured because of the subsequent creation of the requirement in s 48 Human Rights Act 2019 (Qld) that statutory provisions must be interpreted in a way that is compatible with human rights’: at [68].

Overall, the Court considered that the conclusions ‘trend[ed] in favour of granting the application to set aside the claim and statement of claim in respect of the body corporate for the reason that it is a complex dispute’: at [70]. The Court ultimately 'refrain[ed] from reaching a concluded view on paragraphs 2 and 3 of the application pending the receipt of further submissions made in light of my orders and the matters canvassed in these reasons’: at [73].

Visit the judgment: Dunlop & Anor v Body Corporate For Port Douglas Queenslander CTS 886 & Ors [2021] QSC 85