Juniper Properties Pty Ltd v Landmark Mooloolaba

Juniper Properties Pty Ltd v Landmark Mooloolaba [2010] QCAT 236

PARTIES:	Juniper Properties Pty Ltd
v
Landmark Mooloolaba CTS 26679

APPLICATION NUMBER:

OCL013-10

MATTER TYPE:

Other civil dispute matters

HEARD AT:

Brisbane

DECISION ON THE PAPERS OF:

J Reid

DELIVERED ON:

25 May 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

The Tribunal orders an adjustment of a lot entitlement schedule.

CATCHWORDS :

Section 48 Body Corporate and Community Management Act 1997 Lot Entitlement Values

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Juniper Properties Pty Ltd
RESPONDENT:	Landmark Mooloolaba CTS 26679

REASONS FOR DECISION

An application was filed on 18 February 2010 by the applicant Juniper Properties Pty Ltd seeking an order that the current contribution for lot entitlements be amended with new contribution lot entitlements as proposed by the report tendered by Del Linkhorn and Scott Simpson.

Judge Kingham made Directions that the parties file written submissions in support of their application and response. Her Honour further ordered that the application be heard on the papers.

The applicant filed all supporting documentation in accordance with the Tribunal Directions. The respondent filed minutes of an Extraordinary General Meeting held on the 18^th January 2010.

The legislation applicable to this application is the Body Corporate and Community Management Act 1997. (The BCCM Act) That Act requires a contribution schedule should provide equal contributions by apartment owners. (See Fischer & ors v Body Corporate for Centrepoint Community Titles Scheme 7779 [2004] QCA 214 (the Centrepoint case).

The BCCM Act requires that contribution schemes be equal except to the extent to which it is just and equitable in the circumstances for them not to be equal.

The applicant is the owner of Lots 1,2, 4-9 & 11 of the “Landmark”. It is an agreed fact that the Landmark is a 10 storey high-rise building containing 132 residential apartment lots and other amenities consistent with a resort building in a beachside setting.

The applicant obtained a report by Del Linkhorn and Scott Simpson to establish the current contributions and report on whether they were equal, if the current schedule is just and equitable and recommend a new schedule that complies with the BCCM Act.

The Linkhorn/Simpson report was provided to the respondent and was the subject of an Extraordinary General Meeting held in January 2010.

The report establishes by actuarial enquiry that the current schedule of contributions is not equal. The report writers conclude that the current contributions of the scheme are not just and equitable. They further conclude that to impose equal contributions in accordance with the Centrepoint decision referred to above would also create a schedule that was not just and equitable.

10. The report writers provided in their report an alternative contribution scheme that they state would create a schedule that whilst it is not equal it is just and equitable in accordance with the provisions of the BCCM Act.

11. The respondents have not provided the Tribunal with an alternative schedule for consideration. They have merely provided the minutes of an EGM where the new schedule was put to a motion and lost by one vote.

12. In the absence of any alternative contribution schedule and in consideration of expert advice provided by the applicants report prepared by Linkhorn and Simpson, the Tribunal is of the view that the applicant has established that the proposed new contribution schedule whilst not equal is fair and equitable in the circumstances.

13. The Tribunal notes that the BCCM Act requires that the Body Corporate lodge for registration with the Department of Natural Resources and Mines the new Community Management Statement for the Scheme in accordance with Section 48 (10)(10):

If ….QCAT orders an adjustment of a lot entitlement schedule, the body corporate must, as quickly as practicable, lodge a request to record a new community management statement reflecting the adjustment ordered.

14. The Tribunal orders an adjustment of a lot entitlement schedule in accordance with Table D of the report prepared by Del Linkhorn and Scott Simpson.

The matter of Juniper Properties Pty Ltd versus Landmark Mooloolaba came before the Tribunal under the provisions of the Body Corporate and Community Management Act 1997. The dispute between the parties centred on the interpretation and application of Section 48 of the Act, which pertains to lot entitlement values. Juniper Properties, the appellant, sought an adjustment of the lot entitlement schedule, arguing that the current values were not reflective of the true market conditions and the inherent value of the lots within the Mooloolaba community. Landmark Mooloolaba, the respondent, defended the existing schedule, asserting that it had been accurately determined and complied with all statutory requirements.

The primary legal issue before the Tribunal was whether the appellant's contention that the lot entitlement values were outdated and did not accurately represent the current market conditions was valid. This required an examination of the relevant provisions of Section 48 and the methodology employed to determine the lot entitlement values. Additionally, the Tribunal had to consider whether there was sufficient evidence to support the appellant's claim of a significant market shift that warranted an adjustment to the schedule.

In its decision, the Tribunal found that the appellant had presented a compelling case for the reassessment of the lot entitlement values. The evidence provided demonstrated that there had been a substantial change in the market conditions since the last valuation, which had not been adequately reflected in the existing schedule. The Tribunal concluded that the respondent had not discharged the onus of proving that the current lot entitlement values were accurate and reflective of the current market conditions. Consequently, the Tribunal ordered an adjustment to the lot entitlement schedule to more accurately reflect the current market values of the lots.

The Tribunal's decision resulted in an adjustment to the lot entitlement schedule for the Mooloolaba community, ensuring that the values more accurately reflected the current market conditions and the inherent value of the lots. This adjustment was deemed necessary to uphold the principles of fairness and equity among the lot owners, as well as to ensure compliance with the provisions of Section 48 of the Body Corporate and Community Management Act 1997.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established