Costelloe v Body Corporate for Fortitude Court

[2010] QCAT 560

CITATION:		Costelloe v Body Corporate for Fortitude Court [2010] QCAT 560
PARTIES:	Rachel Lynn Costelloe
v
Body Corporate for Fortitude Court CTS 59782

APPLICATION NUMBER:   OCL091-10

MATTER TYPE: Other civil dispute matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 8 November 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

a)    The lot entitlement contribution schedule for Fortitude Court CTS 59782 shall be adjusted so that the respective lot entitlements recorded in the Community Management Scheme are equal.

b)    The Body Corporate for Fortitude Court CTS 59782 shall act as quickly as possible in lodging a request to record a new Community Management Statement reflecting the adjustments ordered.

CATCHWORDS :  BODY CORPORATE  - adjustment of lot entitlement – where 5 lots in the scheme – where lots are of different size and amenity - whether just & equitable for lot entitlement to be equal – whether disproportionate expense or benefit
Body Corporate and Community Management Act ss 48, 49
Fischer & Ors v Body Corporate for Centrepoint Community Title Scheme
Buist Investments Pty Ltd v Body Corporate "Sonata" [2010] QCAT 407

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

1. Fortitude Court is a complex of five residential units with a total lot allocation of 22. Units 1, 3 and 5 have a lot entitlement of 4, while units 2 and 4 have a lot entitlement of 5. Ms Costelloe has applied for the equalisation of the lot entitlements.

2. 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.

3. 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.

4. Ms Costelloe says that there is no reason for a disproportionate allocation of lot entitlements because units 2 and 4 do not receive any extra benefits, they do not consume any extra resources or cause any extra expense.

5. The owners of lot 5 contend that these factors are relevant:

   a)Lot 1 is the smallest unit and does not enjoy an undercover lock up car park.

   b)Lots 2 and 4 are three-bedroom units and can, therefore, house more people. Those units are larger than units 3 and 5, occupy a greater building envelope and enjoy the best aspect and amenity.

   c)It cannot be fair for a one-bedroom unit to have the same contribution as a three-bedroom unit.

   d)The Body Corporate and Community Management Amendment Bill will come before Queensland Parliament in the near future and QCAT should have regard to the foreshadowed changes.

6. The BCCM Act sets out that the starting point for my consideration is that the contributions should be equal between all lots. In determining whether it is just and equitable that the contributions should be anything other that equal, it is appropriate to identify the largest expenses of the body corporate and determine whether there is any disproportionate level of consumption of expense by any particular lot[1].

   [1] Buist Investments Pty Ltd v Body Corporate "Sonata" [2010] QCAT 407

7. Questions of amenity and use are not factors to be considered by the tribunal in determining these questions[2]. The tribunal can only determine the dispute in accordance with the law as it now exists. I have been provided with a copy of the proposed annual budget for 2010/2011; there is no evidence that units 3 or 5 create a disproportionate demand on the expenses of the body corporate. The owners of lot 5 have not demonstrated how the larger size units consume a greater proportion of the administration budget. Therefore, there is no good reason why the contributions should not be equal.

   [2] Fischer & Ors v Body Corporate for Centrepoint Community Title Scheme 7779 [2004] QCA 214 at paragraph 24

8. I order:

   a)The lot entitlement contribution schedule for Fortitude Court CTS 59782 shall be adjusted so that the respective lot entitlements recorded in the Community Management Scheme are equal.

   b)The Body Corporate for Fortitude Court CTS 59782 shall act as quickly as possible in lodging a request to record a new Community Management Statement reflecting the adjustments ordered.