Higham v. The Body Corporate for the Palms No. 3 Warana CTS

Ailsa Joyce Higham applied to the Queensland Civil and Administrative Tribunal (QCAT) for an adjustment to the contribution schedule of her residential complex in Warana. The contribution schedule assigns lot entitlements of 5, 6, or 7 to each of the 52 lots in the complex. Mrs Higham sought an adjustment to equalise the lot entitlements. Approximately half of the other lot owners supported her proposal, while about a quarter opposed it. The QCAT was required to decide whether the application could be entertained under the relevant legislation and, if so, whether the application should be granted.

The legal issues involved interpreting the relevant sections of the Body Corporate and Community Management Act 1997 (Qld) and the Body Corporate and Community Management and Other Legislation Amendment Act 2013 (Qld) to determine the scope of the Tribunal's power to order an adjustment to the contribution schedule. The application needed to be considered in light of the recent legislative amendments and whether the application was an incomplete adjustment matter. The Tribunal also had to consider whether the application was a division 4 dispute and whether there was a material change since the last time the contribution schedule was decided. The Higham contended that the equality principle should apply, as per section 46A of the BCCM Act, but this was challenged by the express reference in section 47B(2) of the same Act.

The Tribunal found that the application was not an incomplete adjustment matter because no order had been made, and there was no evidence of a motion proposing adjustment, a decision of the Body Corporate or committee in relation to such an adjustment, an adjustment order, a subdivision, an amalgamation or a boundary change of a lot, or a material change since the contribution schedule was decided. The Tribunal also found that the application was not a division 4 dispute because it did not meet the criteria set out in section 397 of the BCCM Act. The Tribunal concluded that there was no basis upon which it could order an adjustment to the contribution schedule because there was no evidence of a material change since the last time the contribution schedule was decided, and the equality principle did not apply to schemes established before the commencement of section 47B of the BCCM Act.

The Tribunal dismissed the application, and no orders were made. Mrs Higham's application for an adjustment to the contribution schedule was denied.