Heaton v. Body Corporate for “Windsong Apartments” CTS 31804

[2012] QCAT 45

CITATION: Heaton v Body Corporate for "Windsong Apartments" CTS 31804 [2012] QCAT 45

PARTIES:	Mrs Janet Mary Heaton
v
Body Corporate for "Windsong Apartments" CTS 31804

APPLICATION NUMBER:   OCL113-11  

MATTER TYPE: Other civil dispute matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Dr J R Forbes, Member

DELIVERED ON: 9 February 2012

DELIVERED AT:      Brisbane

ORDERS MADE:

1.       The application is dismissed.

2.       No order as to costs.

CATCHWORDS:

Application for adjustment to contribution schedule lot entitlement – whether grounds for application exist – no recognised ground shown – definition: “material change”

Body Corporate and Community Management Act 1997, ss 381-384, Sched 6

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Windsong Apartments is a home unit complex at 212 Marine Parade, Labrador, comprising a 15-storey tower block, and Garden Terrace. 

[1]

1. The Applicant, Janet Mary Heaton, is owner and occupier of unit 1501. She asks the Tribunal to adjust the contribution schedule for the scheme in accordance with a schedule exhibited to her application, marked “JMH-7”. For that purpose she relies principally upon section 384 of the Body Corporate and Community Management Act 1997 (“the Act”).  She also applies for costs.

1. The scheme was developed in 2003.  In December 2008, by order of Specialist Adjudicator McGowan, changes were made to the original contribution schedule lot entitlements (“CSLEs”).  But in August 2011 the Respondent resolved to revert to the original CSLEs.  The Applicant’s contention that this decision was invalid was rejected by an Adjudicator on 13 September 2011.

[2][3]

1. Section 384 is one of several significant changes made to the Act, as from 14 April 2011, by the Body Corporate and Community Management and Other Legislation Amendment Act 2011 (“the amending Act”).  It enables an adjustment to be made by this Tribunal, if an existing scheme is affected by a material change after pre-adjustment order entitlements were decided.  The Applicant submits that the recording of a new CMS subsequent to the Specialist Adjudicator’s order in December 2008 is a material change within the meaning of that section.

[4][5][6]

1. The Respondent, for its part, says that the 2008 adjustment is not a “material change”, and that accordingly the application lacks any proper basis in law. I pass quietly by the Respondent’s submission that “Christine” of the BCCM informed the Respondent’s chairman that the registration of a new CMS is not a material change. For that opinion, proof of expertise is no easier to discern than the informer’s surname. However, the Respondent also submits, albeit without supporting reasons, that a change is only “material”, in the s 384 sense, if it is a “physical change such as the building of more units or the partial demolition of the scheme” (emphasis added).

1. I accept that submission, for reasons I shall now attempt to explain.

1. As the Applicant correctly points out, the meaning of “material change” must be gleaned, so far as possible, from the definition of that phrase in the Sixth Schedule to the Act. But in quoting that definition in part, she does not mention that it offers two examples of its meaning and intent; each example is physical in character, namely: (i) the addition of one or more lots, other than by a subdivision not involving the addition of a subsidiary scheme; and (ii) the removal of one or more lots, other than by amalgamation.

[7]

1. The helpful provision of examples in legislative instruments now enjoys statutory recognition. Examples are not exhaustive; they may extend the meaning of a provision, but the example and the provision are to be read in the context of each other and the other provisions of the Act.

1. Section 384 (and the definition of material change) are part of a “package” (particularly ss 381-384) inserted by the amending Act. The three sections immediately preceding s 384 deal with changes of a manifestly physical character – subdivisions, amalgamations, and boundary changes; so do the examples attached to the definition of “material change”. Turning to the Explanatory Notes to the amending Act, as I am entitled to do,[8] I see a recitation of the three physical changes just mentioned, and then, without specifics, but also without a hint that something generically different is intended, the term “material change”.  Other manifestations of “material change”, perhaps, are irreversible damage to a seaside lot by marine erosion, or storm damage not economically or readily remediable.

   [8]        Acts Interpretation Act 1954, s 14B.

1. All in all, considering the specifics of ss 381-383, and the examples attached to the statutory definition, and the absence of any different indication in the Explanatory Notes, I consider that “material change” is to be read sui generis with the five species of physical change described in the Act. Section 384 appears to be a “dragnet clause” designed to pick up significant physical changes not anticipated in ss 381-383. The definition refers to two more such changes, and I have ventured to suggest other possibilities.

1. It follows that the application has no foundation in the Act, and must be dismissed.

1. The Applicant applies for costs.  I see no basis for an award under the Queensland Civil and Administrative Act 2009, or the Body Corporate and Community Management Act 1997.  Even so, it is regrettable that the Respondent has seen to disparage the Applicant as a time-waster and maker of vexatious and frivolous claims.[9]  The Adjudicator, in his decision of 13 September 2011, while criticising Mrs Heaton’s approach to the issues before him, noted that she “does not have a history of making unmeritorious applications”.  The reality is that everyone involved in this case has had to deal with novel, difficult and untested legislation.

   [9]        Response paragraph 6.

ORDERS

1. The application is dismissed.

1. No order as to costs.

[3]        Statement of claim annexed to application, paragraph 11(g).

[5]        Ibid, paragraph 4.

[6]But probably with brief dicta of the Adjudicator in mind: see Adjudicator’s decision 13 September 2011 paragraph 18.

[1]Jurisdiction is conferred by s 388 of the Body Corporate and Community Management Act 1997 (“the Act”.)

[2]        Or by a specialist adjudicator: ss 385(8), 388.

[4]Response dated 12 January 2012, paragraph 3.  A better authority than Christine may have been the dictum, albeit terse, of Adjudicator Toohey in paragraph 18 of his decision (13 September 2011) validating the committee’s resolution of 4 August 2011.

[7]        Acts Interpretation Act 1954, s 14D.