Clarke v Forster

CITATION: Clarke and Anor v Forster and Ors [2012] QCATA 252

PARTIES:	Robert Clarke Debra Clarke (Applicants/Appellants)
v
Robin James Forster Helen Maree Forster Body Corporate for Second Avenue CTS 5755 (Respondents)

APPLICATION NUMBER: APL404-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: K A Cullinane AM QC, Member

DELIVERED ON: 3 December 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Appeal refused.

CATCHWORDS:

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – where contribution schedule lot entitlement adjusted by order of court or tribunal – where application to revert to pre-adjustment order contribution schedule lot entitlement – whether body corporate consented to adjustment order

Body Corporate and Community Management Act1997, ss 289, 378, 379
Queensland Civil and Administrative Tribunal Act 2009, s 32, Schedule 3

Hallden Pty Ltd and Ors v Body Corporate LA Promenade CTS 9770 [2012] QCAT 109
Osland v Department of Justice (2010) 241 CLR 320
Pearce v Body Corporate for Riparian Plaza Apartments CTS 34665 [2012] QCAT 72

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).

REASONS FOR DECISION

1. This is an appeal pursuant to s 289 of the Body Corporate and Community Management Act1997 (‘BCCM Act’) to the QCAT Appeal Tribunal constituted under the QCAT Act[1].

   [1]        Queensland Civil and Administrative Tribunal Act 2009, Schedule 3.

2. The BCCM Act is an enabling Act for the purposes of the QCAT Act.

3. The right of appeal is limited to a question of law.  The principles in Osland v Department of Justice (2010) 241 CLR 320 are applicable.

4. The legislative background to the appeal is to be found in the transitional provisions of Chapter 8 Part 9 Division 4 of the BCCM Act, which came into force on the fourteenth of April 2011. In brief summary these provisions apply to existing schemes and confer on an owner whose contribution schedule lot entitlement (‘CSLE’) has been adjusted by an order of a court or tribunal a right to revert to the scheme’s pre-adjustment order CSLE and provides for the procedure to be adopted to achieve this.

5. This appeal concerns the proper construction of the statutory definition of an adjustment order. Section 378 of the BCCM Act defines ‘adjustment order’ in the following way:

   In this division

   adjustment order-

   (a)Means an order of a court, tribunal or specialist adjudicator, made before the commencement, for an adjustment of the contribution schedule for an existing scheme; but

   (b)Does not include an order of a court or tribunal giving effect to a decision that is not made by the court or tribunal or another court or tribunal (including a decision that is not, but is taken to have been made by a court or tribunal).

   Examples for paragraph (b)-

   ·     an order of a court or tribunal giving effect in the terms of the…