Hauswirth & Tompkins v Body Corporate for Trieste on Sunshine
[2010] QCAT 270
•16 June 2010
| CITATION: | Hauswirth & Tompkins v Body Corporate for Trieste on Sunshine [2010] QCAT 270 |
| PARTIES: | Mr Harvey Hauswirth and Mr Steven Tompkins |
| v | |
| Body Corporate for Trieste on Sunshine CTS 28419 |
| APPLICATION NUMBER: | OCL016-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Sharon Christensen |
| DELIVERED ON: | 16 June 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That the contribution schedule lot entitlements for Trieste on Sunshine CTS 28419 be adjusted such that the entitlements be as follows:
2. There are no orders as to costs. |
| CATCHWORDS : | Body Corporate and Community Management – adjustment of Contribution Schedule Lot Entitlements |
APPEARANCES and REPRESENTATION (if any):
The application was determined on the papers.
REASONS FOR DECISION
Introduction
Trieste on Sunshine CTS 28419 consists of 10 residential lots over 4 levels and one level of carparking. The scheme was created by registration of a building format plan and community management statement on 8 August 2000 pursuant to the Body Corporate and Community Management Act 1997.
By an application filed on 2 March 2010 the Applicants sought an adjustment to the contribution schedule lot entitlements for the Respondent Body Corporate pursuant to section 48 of the Body Corporate and Community Management Act 1997.
The Applicants are the owners of lot 9 at Trieste on Sunshine and dispute that the current contribution schedule lot entitlements for the scheme are just and equitable.
The Body Corporate response filed on 30 April 2010 supports the adjustment of contribution schedule lot entitlements requested by the Applicant.
An order was made on 9 June 2010 by the Tribunal that the Application be determined on the papers.
Legislation
Section 47 of the Body Corporate and Community Management Act 1997 (“the Act”) provides the general principles for the application of lot entitlements to a community titles scheme. According to s 47(2) the contribution schedule lot entitlement is the basis for calculating
a.the lot owner’s share of amounts levied by the Body Corporate unless the extent of the lot owners’ obligation to contribute to a levy for a particular purpose is specifically otherwise provided for in the Act; and
b.the value of the lot owner’s vote for voting on an ordinary resolution if a poll is conducted.
According to section 47(3), the interest schedule lot entitlement is the basis for calculating the lot owner’s share of common property, the lot owner’s interest on termination of the scheme including the lot owner’s share of body corporate assets on termination of the scheme, and the unimproved value of the lot for the purposes of a charge, levy, rate or tax that is payable directly to a local government, the commissioner of land tax or other authority and that is calculated and imposed on the basis of unimproved value.
Neither schedule is used to calculate liability of the owner for the supply of a utility service to the lot if the amount of the utility service is capable of separate measurement and the owner is billed directly: section 47(4).
Sections 48 and 49 provide for adjustment of a lot entitlement schedule by application to the Tribunal under the Queensland Civil and Administrative Tribunal Act.
An application may be made by an owner of a lot to the Tribunal. By section 48(2) of the Body Corporate and Community Management Act 1997, the Body Corporate must be the Respondent to the application.
By section 48(5) an order for adjustment of the contribution schedule lot entitlement must be consistent with section 48(6), which provides:
“48(6) For the contribution schedule, 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.”
Section 49 provides guidance in terms of the criteria to be used by the Tribunal for deciding what is just and equitable in the circumstances of each case. Without limiting the matters to which the Tribunal may have regard sections 49(4) and (5) provide:
“49(4) The specialist adjudicator or the CCT may have regard to–
(a) how the community titles 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.
(5) The specialist adjudicator or the CCT may not have regard to any knowledge or understanding the Applicant had, or any lack of knowledge or understanding on the part of the Applicant, at the relevant time, about –
a. the lot entitlement for the subject lot or other lots included in the community titles scheme; or
b. the purpose for which a lot entitlement is used.”
By section 49(6) the “relevant time” means the time the Applicant entered into a contract to buy the subject lot.
These provisions where considered by the Court of Appeal in Fischer & Ors v Body Corporate for Centrepoint CTS 7779 [2004] QCA 214. Chesterman J said, at [26]:
“That question, whether a schedule should be adjusted, is to be answered with regard to the demand made on the services and amenities provided by a body corporate to the respective apartments or their contribution to the costs incurred by the body corporate. A more general consideration of amenities, value or history are to be disregarded. What is at issue is the “equitable” distribution of the costs.”
After considering the explanatory notes to the legislation and to the second reading speech, his Honour continued, at [30]:
“These materials make it tolerably plain that the Act is intended to produce a contribution lot entitlement schedule which divides body corporate expenses equally except to the extent that the apartments disproportionately give rise to those expenses or disproportionately consume services. That determination can only be made by reference to factors which have a financial impact or consequence on the body corporate. It cannot be affected by factors which go to an apartment’s value or amenities.”
Evidence
The Tribunal has been provided with a copy of a report dated 13 January 2010 from Solutions IE commissioned by the body corporate committee “Solutions IE Report”. The report does not claim to be an expert report, nor has any particular expertise been claimed within the report by its author, who is unnamed. The report details the body corporate documentation utilised in the report and the outcome of a physical inspection of the complex.
The report provides the following description of Trieste on Sunshine:
“The complex of “Trieste on Sunshine” is situated at 33 Elanda Street, Sunshine Beach, Queensland ... and has been structured as a building with 10 apartments in total.
Level “A” Basement
· Secure car parks – including storage
· Internal access to the building
· Passenger lift
· Resident unit managers office
· Staircase to upper level
Level “B” Elanda Street Level
·Lots 1-4
·Outdoor swimming pool & guest furniture
·Passenger lift
·Staircase to upper level
·Driveway out to Elanda Street
Level “C”
· Lots 5-8
· Passenger lift
· Staircase to upper level
Level “D”
· Lots 9 & 10 (penthouse apartments)
· Passenger lift
· Lots 9 & 10 internal staircase to upper level
Level E
· Lots 9 & 10 (penthouse apartments) - rooftop
The report also explains other features of the scheme including vehicle entry, exclusive use parking, electronic security, garbage collection, swimming pool, lift and other parts of the common property that require regular maintenance by the body corporate.
The current contribution schedule lot entitlements for the scheme are not equal.
The Solutions IE Report concludes that after consideration of the structure of the scheme, the allocation of costs associated with administering the body corporate and the allocation of costs associated with the services provided to the lots and factors bearing on the same that:
a.the lots entitlements for the scheme should not be equal;
b.the current unequal contribution schedule lot entitlements are not just and equitable;
c.the contribution schedule lot entitlement should be varied in accordance with the table on page 29 of the report.
The Respondent filed a response on 30 April 2010 supporting the proposed adjustment in the Solutions IE Report.
Findings
I have considered the points raised in the Solutions IE Report concerning the allocations of costs and the factors bearing on the same. I am of the view that the methodology in the report accords with the decision of Chesterman J in Fischer & Ors v Body Corporate for Centrepoint CTS 7779 [2004] QCA 214 and with section 48 of the Act. Further, I am unable to discern any logical or analytical flaws in the report.
Having regard to the conclusions reached above, I am of the view that it is just and equitable in the circumstances of this case and taking into account how the community titles scheme is structured, the nature, features and characteristics of the building and the purpose for which the lots are and have been used, that the contribution lot entitlements should not be equal.
I also accept that the level of inequality as between the lots as currently reflected in the contribution schedule is not just and equitable.
I find that the apportionment given in the Solutions IE Report is just and equitable.
Orders
I order that the contribution schedule lot entitlement for Trieste on Sunshine CTS 28419 be adjusted such that the entitlements be as follows:
| Lot No. | Entitlement |
| 1 | 994 |
| 2 | 953 |
| 3 | 953 |
| 4 | 995 |
| 5 | 972 |
| 6 | 953 |
| 7 | 953 |
| 8 | 972 |
| 9 | 1127 |
| 10 | 1127 |
| 9,999 |
I make no order as to costs
Respondent’s Obligations
As required by section 48(1) of the Body Corporate and Community Management Act 1997, once the Tribunal orders an adjustment of a lot entitlement schedule the Respondent, as the relevant Body Corporate must “as quickly as practicable” lodge a request to record a new Community Management Statement reflecting the adjustment ordered.
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