Higham v The Body Corporate for the Palms 3 Warana

[2011] QCAT 21

CITATION:		Higham v The Body Corporate for the Palms 3 Warana [2011] QCAT 21
PARTIES:	Mrs Ailsa-Joyce Higham
V
The Body Corporate for the Palms 3 Warana

APPLICATION NUMBER:   OCL157-10

MATTER TYPE: Other civil dispute matters

HEARING DATE:     Decision on the papers

HEARD AT:  Brisbane

DECISION OF: Peta Stilgoe

DELIVERED ON: 17 January 2011

DELIVERED AT:      Brisbane

ORDERS MADE: The application is refused.

CATCHWORDS : 

BODIES CORPORATE – adjustment of lot entitlements – whether body corporate properly served – whether sufficient information to enable the tribunal to make a decision

Body Corporate and Community Management Act 1997 ss 48(6), 315

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. Mrs Higham is a resident in The Body Corporate for the Palms 3 Warana (“the body corporate”). She has applied for an adjustment of the contribution schedule lot entitlements.

2. On 10 November 2010, the correct name of the respondent body corporate was substituted for the manager of the body corporate. Mrs Higham was directed to serve a copy of the application on the body corporate.

3. Section 315 of the Body Corporate and Community Management Act 1997 (“BCCM Act”) provides that:

a)a legal document is served personally on a body corporate if it is served personally on the secretary or another member of the body corporate committee.

b)The address for service of the body corporate is the address that, on the advice of the body corporate given to the registrar from time to time, is recorded on the indefeasible title for the common property as the body corporate’s address for service.

1. The address for service noted by the registrar is Suite 13, 65 Bulcock Street Caloundra. Mrs Higham purported to effect service by:

a)Posting a copy of the application to PO Box 534 Caloundra;

b)Posting it to Mr K Salter at 141/2 Melody Court Warana.

1. Neither of those methods complied with the requirements of section 315. Therefore, service had not been effected. While this procedural defect could have been addressed, I have other concerns with Mrs Higham’s material.

2. It is true that 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. Mrs Higham asserts that:

a)all units have an equal opportunity to enjoy the lawns, gardens and water views because of the easements in the complex.

b)Any difference in unit size affects only the purchase price.

c)There is no reason why the fees for Unit 7 are higher than other units.

1. The tribunal should not consider the adjustment of a lot entitlement in a vacuum. Mrs Higham has provided a copy of the schedule to the Community Management statement but not a copy of the whole Community Management Statement. There is no way for the tribunal to verify Mrs Higham’s assertions. Further, the tribunal notes that the body corporate registered a new Community Management statement in 2007. Mrs Higham has not addressed why a new statement was registered, how it differed from the previous statement and whether or not the inequality of lot entitlements was addressed in the discussions leading up to the new statement. With respect to Mrs Higham, the budget papers for the body corporate do not assist the tribunal in its deliberations.

2. As there is insufficient information before the tribunal, and the application has not been properly served, the appropriate decision is to refuse the application. Nothing in this decision prevents Mrs Higham from making a fresh, properly made, application.