Chrisgard Pty Ltd atf the Gardner Family Trust v The Emerald Noosa

CITATION:		Chrisgard Pty Ltd atf The Gardner Family Trust v The Emerald Noosa [2010] QCAT 532
PARTIES:	Chrisgard Pty Ltd atf The Gardner Family Trust
v
The Emerald Noosa CTS 3894

APPLICATION NUMBER:

OCL118-10

MATTER TYPE:

Other civil disputes matters

HEARING DATE:

Decision on the papers

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe

DELIVERED ON:

29 October 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

The application to adjust the lot entitlement is dismissed

CATCHWORDS :

ADJUSTMENT OF CONTRIBUTION SCHEDULE – where adjustment proposed – where schedule provided – where applicant did not provide copy of scheme or justification for proposal
Body Corporate and Community Management Act ss 48, 49
Buist Investments Pty Ltd v Body Corporate Sonata
Roscho Investments Pty Ltd & Ors v The Body Corporate for the Residences CTS 27131

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

Chrisgard Pty Ltd is the owner of lot 2 in The Emerald Noosa CTS 3894. It has applied for an adjustment of the lot entitlement in accordance with a table prepared by QBS Strata Management.
Section 48 of the Body Corporate and Community Management Act (“BCCM”) provides that the owner of a lot in a community title scheme may apply for an order for the adjustment of a lot entitlement schedule. Section 48(6) of BCCM provides that, for the contribution schedule, the respective lot entitlements should be equal, except to the extent to which it is just and equitable in the circumstances for them not to be equal.
Section 49(3) of BCCM relevantly provides that the Tribunal, in deciding whether it is just and equitable in the circumstances for the respective lot entitlements not to be equal, may have regard to:

a)how the community title scheme is structured; and
b)the nature, features and characteristics of the lots included in the scheme; and
c)the purposes for which the lots are used.

The correct approach to a consideration of an adjustment to a lot entitlement schedule is set out in the tribunal’s decision of Buist Investments Pty Ltd v Body Corporate Sonata[1]:
“The BCCM Act prescribes that the starting point for contributions is that they be equal between all lots. …

the more appropriate and useful method of determining whether it is just and equitable, in such cases, that contributions be other than equal, would be to identify the largest expenses of a body corporate (both recurring, and of a sinking fund) and, in respect of those expenses, to identify whether any particular lots disproportionately give rise to those expenses or disproportionately consume the services to which those expenses relate. If there is a disproportionate level of expense or consumption, giving rise to a substantial expense incurred by the body corporate which it would be just and equitable to be shared solely by one or some of the lots, then it might be appropriate to adjust the contributions so that they are other than equal.”
[1] [2010] QCAT 407 at paragraphs 22 and 23

The report from QBS Strata Management identifies that lots 1 and 2 do not use the lift but there is no way of determining whether those lots are entitled to use the lifts. As I pointed out in Roscho Investments Pty Ltd & Ors v The Body Corporate for the Residences CTS 27131[2] a contribution schedule based on a principle of “user pays” does not, and cannot, work.
[2] [2010] QCAT 117 at paragraph 12
The tribunal has not been provided with a copy of the scheme or any material sufficient to confirm the adjustments proposed by QBS Strata Management. The proposal may well meet the objectives of BCCM but it is the tribunal’s decision and, in all the circumstances, it is unable to make that decision.
Chrisgard’s application is dismissed.

The case of Chrisgard Pty Ltd atf the Gardner Family Trust v The Emerald Noosa was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary dispute involved the adjustment of a contribution schedule, specifically whether the proposed adjustment of the lot entitlement was valid and warranted. Chrisgard Pty Ltd, acting on behalf of the Gardner Family Trust, sought to adjust their lot entitlement, while The Emerald Noosa opposed this application. The matter required QCAT to determine whether the proposed adjustment was justified given the circumstances.

The legal issues before QCAT centred on whether the applicant had adequately justified the proposed adjustment of the contribution schedule. The key points included whether the applicant had provided a copy of the scheme or a sufficient justification for the proposed changes. The Emerald Noosa argued that the applicant had failed to substantiate the proposal adequately, thus challenging the validity of the adjustment. QCAT needed to assess the sufficiency of the justification provided by Chrisgard Pty Ltd to decide on the legitimacy of the adjustment request.

QCAT found that Chrisgard Pty Ltd had not provided a copy of the scheme or a proper justification for the proposed adjustment. The Tribunal emphasised the importance of the applicant demonstrating a clear basis for the adjustment in their submissions. Given the lack of supporting documentation or a coherent rationale, QCAT concluded that the applicant had not met the necessary threshold to warrant an adjustment of the contribution schedule. Consequently, the application to adjust the lot entitlement was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established