Body corporate wins appeal: caretakers barred from re-running a loss claim already decided (QCAT, 2026)

What happened

A couple bought the caretaking and letting business for a Gold Coast community titles scheme in October 2009, with the body corporate's consent. Their rights came from a management and letting agreement dated 28 August 1995, amended and carried into a Deed of Engagement dated 30 July 2002. Under that deed they did caretaking work and the body corporate paid an annual fee by monthly instalments in arrears. They said they put their life savings into the business and borrowed to buy it.

The relationship broke down in 2019 over a gate, how contractors were to be paid and whether invoices had been properly issued. On 15 May 2019 the body corporate wrote telling them they were no longer required to do caretaking duties and were no longer recognised as the caretaking service contractor. It gave no remedial action notice first (a written notice telling a contractor what to fix and giving them a chance to fix it). It stopped paying the monthly fee. On 20 May 2019 the caretakers said they did not accept that and kept the contract alive, which is called affirming the contract. From June 2019 the body corporate prevented them doing much of the work: locks were changed, access to cleaning equipment was blocked, and another cleaner was engaged for some of their tasks.

In the first tribunal case the caretakers asked for a declaration that the termination was invalid, an injunction to stop it, and payment of their unpaid monthly invoices as a debt. They told the tribunal they were not claiming damages and not claiming a quantum meruit (payment for the value of work actually done). An interim hearing was vacated when the body corporate paid $43,070.88 for six invoices covering December 2018 to May 2019. On 9 August 2021 the member found the deed had been validly extended to 13 July 2027, and that the body corporate had prevented the caretakers performing their duties. But he read the remuneration clause as requiring the work to be done before payment was owed, so no debt had arisen. He said their remedy was damages measured as net loss of profit, and because there was no evidence of their expenses he could not work out a net figure. The claim for $167,545.70 for June 2019 to April 2021 was dismissed.

That decision was not appealed. The caretakers went back to full caretaking work on 23 August 2021 and were paid again from then on. In October 2022 they wrote to the body corporate saying they would claim loss of profit of $182,811 excluding GST for 1 June 2019 to 22 August 2021, and on 30 November 2022 they filed a second complex dispute application for that amount. The body corporate applied to strike it out. On 27 June 2024 a member refused the strike-out, holding it had not been unreasonable for the caretakers to keep the contract alive rather than terminate it and sue for damages in the first case. The body corporate appealed.

What each side wanted

The body corporate argued the second case should be struck out as an abuse of process and because of an Anshun estoppel, which stops a party raising a claim in a later case if it was so closely connected to the first case that it was unreasonable not to raise it then. It said the caretakers should have run damages as an alternative in the first case and proved their net loss there, that a judgment in the second case would conflict with the first one, and that the member below had used the wrong test, had not applied the law on abuse of process, had not dealt with an equitable estoppel claim the caretakers raised, and had not given adequate reasons. The caretakers, who were self-represented and apparently without legal advice, said the body corporate had seriously breached the deed, that they had lost two years of income they had never been able to recover, and that they now had the evidence of net loss the first member said was missing.

What the tribunal decided

The Appeal Tribunal granted leave to appeal and allowed the appeal on two grounds. The members disagreed on the final orders, so under section 115 of the Queensland Civil and Administrative Tribunal Act 2009 the presiding Senior Member's decision is the decision of the Appeal Tribunal.

The orders were that the proceeding is remitted for reconsideration by the member below; that determination of a claim related to invoices rendered by the caretakers to the body corporate for the period May 2021 to August 2021 may proceed on further directions by the tribunal; and that any application for costs must be filed and given to the other party within 21 days of the order, after which further directions will issue.

No money was ordered to be paid by anyone. The second case was not dismissed outright, because the Appeal Tribunal held it could not resolve the whole matter in the body corporate's favour.

Why the tribunal decided it that way

Because the strike-out refusal was not a final decision, the body corporate needed leave to appeal under section 142(3)(a)(ii) of the QCAT Act, and had to show the appeal was necessary to correct a substantial injustice and that there was a reasonable argument of an error to correct. The underlying dispute was a complex dispute under section 149B of the Body Corporate and Community Management Act 1997, which is what gave the tribunal power to hear it.

On the first ground, the Appeal Tribunal accepted the member below had used the wrong test. He asked whether it had been unreasonable for the caretakers not to terminate the contract and sue for damages, and found it was not unreasonable, given the body corporate's history of eventually paying invoices, the hope of working together again, and the value of keeping the caretaking business saleable. The Appeal Tribunal did not criticise that reasoning as far as it went, but said the real question was different: whether a judgment in the second case would conflict with or contradict the first judgment, or whether any further cause of action had already merged in it. The caretakers could have kept the contract alive and still run a damages claim in the alternative in the first case. They did not, and the first member had already decided that damages for breach were their only remedy, limited to the net value of the work actually done, and that the evidence did not prove it. Because that decision was never appealed, those findings bind them. An Anshun estoppel and an issue estoppel were both established.

On the second ground, the member below had found no abuse of process without setting out the legal principles or giving reasons. The public interest behind an abuse of process finding is the same as behind an Anshun estoppel: finality in litigation, and that a party should not be vexed twice over the same matter. Given the estoppels, it was open to find an abuse of process at least for the invoices decided in the first case, and failing to address the point or give reasons was an error of law. The third ground, that the member had not explained why the case fell outside the authority on a repudiated contract, failed; leave was refused on it, and leave was also refused on the complaint about the equitable estoppel claim.

The Appeal Tribunal could not simply dismiss the whole second case, because one part of it had never been decided. The invoices for May 2021 to August 2021 were raised after the first hearing. The Appeal Tribunal reasoned that the body corporate's conduct was a continuing breach, not a once and for all breach: the deed implied an obligation to provide the work so the caretakers could earn their income, and continually blocking access to equipment and engaging another cleaner kept breaching it. Where a breach is continuing, damages are only assessed up to the date of assessment and a fresh case can be brought for later losses. Those four months of invoices were future losses at the time of the first hearing, so they survive as a fresh cause of action and were sent back for directions. The Appeal Tribunal noted the claim may need amending, because it is now framed as accepting the body corporate's repudiation when the contract was in fact affirmed throughout, and an election to affirm cannot be taken back. The published text ends part way through the second member's separate reasons, so his full reasoning is not available here.

What this means if you are in a similar position

If you are in a similar position, this decision shows how strictly tribunals apply the principle that litigation should be final. A tribunal decides the case that is actually put to it. If you choose one way of framing a claim, and leave out another way that rests on the same facts, you may not get a second chance to run the one you left out, even if the first member told you it was the claim you should have made. Here the caretakers won the key findings about the breach, but lost on evidence, and that closed the door because they did not appeal.

The decision also shows the difference between a one-off breach and a continuing one. Where the other side keeps on doing something that breaches the agreement, losses that had not yet been suffered when the first case was heard can be a separate claim later. That is a narrow exception, and it only covered four months of invoices here out of more than two years in dispute.

The third point visible in the facts is process. The body corporate stopped paying and shut the caretakers out without first giving a remedial action notice, which is why the agreement was still on foot years later and the dispute ran through several cases. In disputes of this kind, where one side has breached an agreement, most people start by putting the breach in writing and asking for it to be fixed by a set date, and only apply to the tribunal if that is ignored.

How to apply: our step-by-step guide to a QCAT application. More decisions: QCAT cases and strata and body corporate.

Source: Body Corporate for Santorini by the Sea CTS 16829 v Melville & Melville [2026] QCATA 132 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.