Body Corporate for Amity v Keating

[2012] QCATA 262

CITATION: Body Corporate for Amity v Keating and Anor [2012] QCATA 262

PARTIES:	Body Corporate for Amity CTS 17543 (Applicant)
v
Daniel Keating Lizabeth Keating (Respondents)

APPLICATION NUMBER: APL136-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Brabazon QC, Member

DELIVERED ON: 18 December 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The appeal is allowed.

2.    Order that subject to any other statutory requirements, the contribution schedule for the existing scheme is amended to reflect the pre-adjustment order entitlements that were in place before the District Court order of 18 August 2006.

3.    Liberty to apply for any further orders or directions.

CATCHWORDS:

Adjustment order – “Lot”

Body Corporate & Community Management Act 1997, s 379

Mousa v Body Corporate Q1 (APL367-11)
Battin v Body Corporate for Amity 2006 QDC 278

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. This appeal, against the order of an Adjudicator, concerns a dispute about the application of s 379 of the Body Corporate and Community Management Act 1997.

1. This judgment responds to the written submissions of 30 April 2012 (for the applicant) and 16 July 2012 (for the respondents). 

1. Mrs Allen and Mr & Mrs Keating both own lots in “Amity”, Mrs Allen wants the body corporate to “revert” to its former contribution lot entitlements.  She has been the owner of lot 41 since 2003.  She applied to the committee that the entitlements be returned to their original allocation, before an adjustment was made by the District Court on 18 August 2006.

1. See the decision in Battin v BC for Amity (2006) QDC 278. The effect of the Court’s adjustment order was an increase in her proportionate share of the CSLE. So, she was entitled to propose the motion. It is necessary to set out the sections of the legislation which allows for Mrs Allen to ask for that order:

   379 Motion proposing adjustment of contribution schedule

   (1) Subsection (2) applies if—

   (a)     an adjustment order increased the proportion of the total contribution schedule lot entitlements for all the lots included in an existing scheme that are attributable to a lot included in the scheme; and

   (b)     before the commencement, a new community management statement reflecting the increase has been recorded.

   (2) The owner of the lot may submit a motion proposing the adjustment of the contribution schedule for the existing scheme to reflect the pre-adjustment order entitlements for the scheme, subject to sections 381 to 384, to—

   (a)     if there is a committee for the body corporate—the committee…

1. On 25 May 2011, the Committee wrote to the lot owners, advising them of the proposal.  There were no submissions against the proposal. 

1. On 29 June 2011 “the Committee noted 4-0, with one member abstaining, that her submissions had to be approved,” there being no contrary submission.  The Committee asked its solicitor to draft and lodge a new community management statement.

1. On 2 August 2011, Mr and Mrs Keating took steps to oppose the committee’s order.  Their submissions were heard by an Adjudicator, and dealt with in a judgment given on 20 March 2012.  The Adjudicator decided that the Committee’s decision was invalid, and that the new community management statement had to be withdrawn.

1. The Adjudicator concluded that s 379 meant that there could be an adjustment order, only in a case where all the lots in a community scheme had their entitlements increased.  See in particular para 87 of the reasons.  That decision was given in March 2012.

1. So, the issue to be decided is this – what is the correct meaning and application of s 379 of the Act?

1. In June 2012, the judgment in Dr Mousa’s case was published. (See APL367-11, Mousa v Body Corporate for Q1 & McCarthy). That body corporate submitted that, for s 379(1)(a) to apply, it was necessary that the proportion of the total contribution lot entitlements must have been increased, by the adjustment order, for all lots in the scheme.

1. Justice Alan Wilson and Mr Barlow SC rejected that submission.  They adopted an explanatory note to the Body Corporate and Community Management Amendment Bill 2010, introducing s 379(2):

“the lot owner submitting the motion must have been an owner of the lot at the time the adjustment order was given effect and, as a result of the adjustment order, the proportionate share of contribution lot entitlements for the lot increased.” (emphasis added)

1. The explanatory notes to the Bill which proposed the revised s 379 said this:

“New section 379 provides that a lot owner may submit a motion to be considered by the body corporate committee or the body corporate proposing to revert the contribution lot entitlements to their original settings prior to any, and all, adjustment orders relevant to the scheme. The lot owner submitting the motion must have been the owner of the lot at the time the adjustment order was given effect and, as a result of the adjustment order, the proportionate share of the contribution schedule lot entitlements for the lot increased.”

1. The language of s 379(2), referring to the owner of the lot, “and lot entitlements … attributed to a lot” also supports that conclusion. I respectfully agree with those interpretations.

1. Here, the adjustment order increased the proportion of CSLE’s attributable to Mrs Allen’s lot, and a new community management statement reflecting that increase had been recorded before the commencement of s 379. She was entitled to submit the motion.

1. This is the appropriate order:

“Subject to any other statutory requirements – the contribution schedule for the existing scheme is amended to reflect the pre-adjustment order entitlements that were in place before the District Court order of 18 August 2006.”

1. The parties have liberty to apply for any further order or directions.