Henderson & Anor v The Body Corporate for Merrimac Heights [2011] QSC 336

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – OTHER MATTERS – where the defendant is the body corporate of a housing complex subject to a community titles scheme – where the defendant entered into a caretaking agreement and a landscape maintenance agreement with other parties – where the agreements were assigned to the plaintiffs and their duration extended until 14 April 2022 – whether the plaintiffs breached or repudiated the agreements – whether each agreement is enforceable against the defendant – whether the plaintiffs should be awarded damages for breach of contract for their lost profits from the performance of the landscape maintenance agreement

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – DISCHARGE BY AGREEMENT – GENERALLY – whether the landscape maintenance agreement was terminated by the agreement of the parties

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – GENERALLY – whether the landscape maintenance agreement was made beyond the defendant’s powers as a body corporate – whether it is beyond the power of a body corporate to supply, or engage another person to supply, services for the benefit of owners and occupiers of lots without having secured the recoverability of the costs of the provision of that service by having made an agreement with the relevant lot owners

PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – ATTEMPT TO OUST JURISDICTION OF COURT – where the parties made an adjudication application to QCAT in relation to the dispute the subject of proceedings BS 14479/09 which was dismissed by the Commissioner – where the dispute the subject of proceedings BS 1792/10 was transferred by the President of QCAT to the Supreme Court – where the dispute the subject of proceedings BS 1792/10 was a complex dispute within the meaning of Schedule 6 of the Body Corporate and Community Management Act 1997 (Qld) – where s 229(2) of the Act provided that the only remedy for a complex dispute is its resolution 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 (or an order on appeal from the adjudicator or the Tribunal) – whether the Supreme Court has jurisdiction in relation to proceedings BS 1792/10

Acted for body corporate, leading Philippa Ahern of counsel.