McCullagh v Skygardens Caloundra Body Corporate

[2014] QCAT 463

CITATION: McCullagh & Anor v Skygardens Caloundra Body Corporate [2014] QCAT 463

PARTIES:	Graeme Keith McCullagh May Jennifer McCullagh (Applicants)
v
Skygardens Caloundra Body Corporate (Respondent)

APPLICATION NUMBER: OCL050-14

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Deane

DELIVERED ON: 16 September 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application is dismissed.

CATCHWORDS:

Body Corporate – application for adjustment to contribution schedule lot entitlements – where no material change

Body Corporate and Community Management Act 1997 (Qld), s 46A, s 47, s 47B

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Mr and Mrs McCullagh are owners of a lot in an apartment complex consisting of 20 lots. Mr and Mrs McCullagh seek an adjustment of the contribution schedule lot entitlements contending that it is not just and equitable for the entitlements to be equal. They contend that the relativity principle[1] should be the deciding principle. The Body Corporate opposes the application on the grounds that the Body Corporate and Community Management Act 1997 (Qld) does not give the Tribunal power to adjust the entitlements in the circumstances.

   [1]Body Corporate and Community Management Act 1997 (Qld) (BCCM Act) s 46A(2).

2. The contribution schedule lot entitlement is generally the basis for calculating the lot owner’s share of the amounts levied by the body corporate and the value of the lot owner’s vote on ordinary resolutions if a poll is conducted.[2]

   [2]Ibid s 47(2).

3. There is little evidence before the Tribunal. The evidence before the Tribunal indicates that the contribution schedule lot entitlement has not changed since the scheme commenced, the entitlements are currently equal and the scheme commenced before s 47B of the BCCM Act commenced.[3]

   [3]14 April 2011.

4. The Tribunal’s power to order an adjustment is limited.

5. In schemes established before the commencement of s 47B, as this one was, an owner of a lot can only apply to the Tribunal for an adjustment to the contribution schedule where the scheme is affected by a material change since the last time the contribution schedule was decided.

6. As stated earlier in these reasons there is no evidence before the Tribunal in relation to a material change since the last time the contribution schedule was decided.

7. I find that there is no basis upon which this Tribunal may order an adjustment to the contribution schedule.