Gabrielli v Body Corporate for Nimolanca CTS 13318 (No 2)

[2011] QCAT 63

CITATION:		Gabrielli v Body Corporate for Nimolanca CTS 13318 (No 2) [2011] QCAT 63
PARTIES:	Mr Adrian Gabrielli and Mrs Janine Maree Gabrielli
v
Body Corporate for Nimolanca CTS 13318

APPLICATION NUMBER:   OCL173-10

MATTER TYPE: Other civil dispute matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe, Member

DELIVERED ON: 23 February 2011

DELIVERED AT:      Brisbane

ORDERS MADE: The contribution schedule of Body Corporate for Nimolanca CTS 13318 be adjusted so that the contribution schedule lot entitlement for each lot is “1”.

CATCHWORDS : 

Body Corporate and Community Management – Adjustment of contribution lot entitlement schedule – Whether any matters make it just and equitable that lot entitlements not be equal

Body Corporate and Community Management Act 1997 (Qld), ss 48, 49

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. Mr and Mrs Gabrielli filed an application for an adjustment of the lot entitlement schedule for the Body Corporate for Nimolanca CTS 13318 to make them equal for all lot owners.  The current lot entitlement schedule is that each lot has one entitlement, save lots 9 and 10, which have two each.

2. Section 48(6) of the Body Corporate and Community Management Act 1997 provides for the contribution schedule, that the respective lot entitlements should be equal, except the extent to which it is just and equitable in the circumstances for them not to be equal.

3. The matters that the tribunal may consider when determining an application to adjust lot entitlement are set out in section 49(4):

a)how the community titles scheme is structured;

b)the nature, features and characteristics of the lots included in the scheme;

c)the purposes for which the lots are used.

1. Mr Penny is the owner of a lot within the body corporate.  He says that the lot entitlements should not be adjusted because lots 9 and 10:

a)Have access to one flight of stairs and a stairwell whereas the other lot owners have to share a stairwell.  This means that lots 9 and 10 have increased common property rights.

b)Each have a stand alone garage which is a separate structure from the main building.

c)Have more external facing hardware than the other lots.

d)Require additional driveways to enable them to access their independent garages.

e)Are bigger, so have a higher occupancy capacity, which will create a greater demand of services.

f)Are on the top floor so there are additional costs in supplying, repairing and maintaining services to these lots.

1. Mr Penny asserts that these factors result in lots 9 and 10 imposing additional costs on the body corporate in repair and maintenance for which the other owners receive no benefit.

2. The leading decision on the adjustment of lot entitlements is Fischer & Ors v Body Corporate for Centrepoint CTS 7779[1].  It is plain from the decision of Justice Chesterman that contributions should be equal unless it can be shown that some lots give rise to particular costs to the body corporate that the other lots do not.

   [1] [2004] QCA 17.

3. Mr Penny has pointed to the additional costs that lots 9 and 10 impose on the body corporate but he has not provided any information that would justify those lots bearing 1/6 of the body corporate’s costs rather than 1/10.  Importantly, he has not demonstrated that the additional costs that the body corporate may incur as a result of these factors are disproportionate.

4. It is also apparent from the further submissions from Mr and Mrs Gabrielli that a number of Mr Penny’s submissions are not sustainable:

a)There are two staircases in the building.  Each staircase is shared by a number of lots, although it is true that the final flight of each staircase gives access only to either lot 9 or 10.  I accept the submission that the extra cost in maintaining the extra flight of stairs – which may well be required to access the roof space – could not so significant as to require an adjustment of the lot entitlements.

b)Access to the garage for lot 9 is not through an exclusive use driveway.  Access to the garage for lot 10 is via the common driveway, to which all lot owners have access.

c)It is settled, in previous decisions of the Commercial and Consumer Tribunal and this tribunal, the floor area, of itself is not a factor that would justify an unequal lot entitlement.[2]  A similar conclusion must apply when considering the location of the lot.

[2]        See, for example, Eleanor v The Body Corporate for Montego Court [2010] QCAT 24.

1. There may have been a case for the lot entitlement to be something other than equal to take account of the additional maintenance and repair costs incurred by the separate garage buildings enjoyed by lots 9 and 10.  However, as I have indicated, there is no material before me on which I can make that decision.  The appropriate order, therefore, is that the lot entitlements be adjusted so that they are equal.