McDermant v Body Corporate for Zanzibar Mooloolaba
[2010] QCAT 267
•9 June 2010
| CITATION: | McDermant v Body Corporate for Zanzibar Mooloolaba [2010] QCAT 267 |
| PARTIES: | Mr Gregory Robert McDermant Mrs Sharon Elizabeth McDermant |
| v | |
| Body Corporate for Zanzibar Mooloolaba CTS 27494 |
| APPLICATION NUMBER: | OCL012-09 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | BRISBANE |
| DECISION OF: | A Fitzpatrick - Member |
| DELIVERED ON: | 9 June 2010 |
| DELIVERED AT: | BRISBANE |
ORDERS MADE: | 1. The contribution schedule lot entitlements for Zanzibar Mooloolaba CTS 27494 be adjusted as follows: Lot number Contribution schedule lot entitlement 1 140 2 138 3 153 4 146 5 147 6 145 7 145 8 161 9 151 10 157 11 145 12 146 13 146 14 146 15 149 16 146 17 146 18 146 19 146 20 149 21 153 22 149 23 148 24 148 25 149 26 153 27 152 28 149 29 148 30 148 31 149 32 152 33 153 34 149 35 161 37 149 38 149 39 152 40 149 41 148 42 148 43 149 44 152 45 153 46 149 47 148 48 148 49 149 50 153 51 152 52 149 53 148 54 148 55 149 56 152 57 153 58 149 59 148 60 148 61 149 62 153 63 152 64 163 66 148 67 149 68 152 69 145 Aggregate 10,012 2. The Body Corporate for Zanzibar Mooloolaba CTS 27494, act in accordance with section 48(10) of the Body Corporate and Community Management Act 1997 (Qld) as quickly as possible, and in any event within 30 days from the receipt of a copy of this Order, in lodging a request to record a new Community Management Statement reflecting the adjustments ordered. |
| CATCHWORDS : | Sections 48-49 Body Corporate and Community Management Act 1997 (Qld), lot entitlement contribution schedule adjustment |
APPEARANCES and REPRESENTATION (if any):
| Decision on the papers |
REASONS FOR DECISION
Introduction
This application filed 14 December, 2009, seeks an adjustment of the lot entitlements for the contribution schedule for the Community Titles Scheme known as Zanzibar Mooloolaba CTS 27494. It was brought pursuant to section 48 of the Body Corporate and Community Management Act 1997 (BCCMA).
The applicants are the owners of Lot 35 in that Community Titles Scheme.
The respondent is the body corporate for that Community Titles Scheme.
The respondent has not filed a defence to the claim. By letter to this Tribunal, dated 17 February, Mr. Andrew Staehr, Body Corporate Manager advised that the Body Corporate does not wish to contest the application before the Tribunal in this matter.
On 23 February, 2010, the Tribunal directed that the application be determined on the papers.
The applicants attached to their application a report prepared by Del Linkhorn and Scott Simpson, dated 28 November, 2009. They seek orders that the contribution schedule lot entitlements for the Body Corporate for Zanzibar Mooloolaba CTS 27494 be adjusted in accordance with the schedule marked “A” and attached to their application, which is consistent with the recommendations in the Linkhorn and Simpson report.
Relevant Legislation
Section 48(6) of the BCCMA 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.”
Section 49(4) of the BCCMA provides that in determining whether it is just and equitable for the respective lot entitlements not to be equal, the Queensland Civil and Administrative Tribunal (QCAT), may consider, but is not limited to considering, the following:
“(a) how the community titles scheme is structured; and
(b) the nature, features and characteristics of the lots included in the scheme; and
(c) the purposes for which the lots are used.”
Section 48(10) provides that “if the Tribunal 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.”
Background
10.Zanzibar Mooloolaba, is a 10 storey high-rise building situated at 41-51 the Esplanade, Mooloolaba, Queensland.
11.The Linkhorn and Simpson report is the only detailed evidence before the Tribunal. It records that Zanzibar Mooloolaba, has been constructed as a mixed use development and contains a combination of fifty-four residential units, a Managers unit and fourteen commercial lots including a wide range of recreational and entertainment facilities for the residential lot occupiers and their guests.
12.Linkhorn and Simpson state at paragraph 7.9 of their report that:“Research of the scheme’s current contribution lot entitlement values has revealed that some owner’s (sic) present annual levy payments for the Body Corporate’s common property general services and maintenance costs appear to be out of proportion when compared to those of other lot owners (ie. some owners’ (sic) particular share of costs for the maintenance and cleaning of the scheme’s common property and facilities)”
13.Paragraphs 7.12, 7.13 and 7.14 of the report describe the process adopted in formulating an adjusted contribution schedule. Linkhorn and Simpson calculated that 84.04% of the Body Corporate’s annual common property maintenance and operating costs should be shared equally between each of the lots in the scheme. Where they found that any residential apartment should require or has incurred any additional costs or special items for maintaining the scheme’s common property or services, they have apportioned those specific additional costs to that particular lot accordingly. They conducted an analysis of the actual demand made on the services and amenities as provided by the Body Corporate to each of the scheme’s residential and commercial lots located throughout the complex. In particular, the Body Corporate’s actual expenses incurred for the operation, repairs and maintenance costs of the lifts and the recreational facilities.
14.Linkhorn and Simpson set out at section 8 of their report the methodology for calculating a recommended new Contribution Schedule of Lot Entitlements for the Scheme. They rely on calculation component factors (Calcomps), being Calcomp”A” – costs shared equally between all lots; Calcomp”B” – each lot’s area percentage factors; Calcomp”C” – commercial lot annual expenses costs; Calcomp “D” – residential lot annual expenses costs; and Calcomp “E” – passenger lift costs for each of the building’s residential lots.
15.By way of conclusion, Linkhorn and Simpson have said at paragraph 9.2, “… in our opinion:-
§The present contribution lot entitlement schedule is not equal;
§The present contribution lot entitlement schedule is not just and equitable;
§An equal contribution lot entitlement schedule would not be just and equitable;
§A new contribution lot entitlement schedule, in the terms as we have compiled in the attached tables of this report, would be just and equitable.”
16.I have sought to discern from the proposed contributions set out in the report, the areas of unequal contribution and the reasons given for the lack of equality of contribution. I have drawn from Table D to the report that percentage contribution to Body Corporate costs by each lot owner is equal for Calcomp “A”. As between commercial lots the percentage contribution being Calcomp“C” is equal, but does not apply to residential lots. As between residential lots the percentage contribution being Calcomp”D” is equal, but does not apply to commercial lots. The lift costs for each lot, being Calcomp “E” are an equal percentage contribution except for those two commercial lots which do not receive a benefit from lift 1.
17.Calcomp “B” reveals the principal area of inequality of contribution. At paragraph 8.9 of the report Linkhorn and Simpson state that Calcomp “B” is based upon the area percentage factor associated costs for each lot in the scheme. These factors are said to influence particular requirements and expenses that are related to each lot’s individual area and are necessary for maintaining the building’s structure, support and shelter for all lots in the scheme. The percentage allocations relate to painting and wallpaper of internal walls, ceilings, external walls, eaves and balustrading and external repairs to render.
18.I do not have the advantage of any explanation for the current contribution of lot entitlements. It is apparent however that there is an inequality in contribution. One is not comparing “apples with apples” when comparing the denomination of the current contribution lot entitlements with the proposed contribution lot entitlements. However in the absence of any other evidence or any submissions from the respondent I must determine whether the recommendations made in the Linkhorn and Simpson report on behalf of the applicants fulfil the objectives of the BCCA.
Relevant Principles
19.In Dibb, J. v Body Corporate for Columbia Tower CTS 9911 (2008) QCCTBCCM 19, Mr. KD Dorney QC (as he then was), conveniently stated a few of the relevant principles emanating from the leading case of Fischer v Body Corporate for Centrepoint Community Titles Scheme 7779 (2004)QCA 214. He set the principles out at paragraph 18 of the decision.
“They are:
§The BCCM Act is intended to produce a contribution lot entitlement schedule which divides body corporate expenses equally except to the extent that the lots disproportionately give rise to those expenses, or disproportionately consume services…
§The determination of lot entitlements in a contribution lot entitlement schedule can only be made by reference to factors which have a financial impact or consequence on the body corporate, and cannot be affected by factors which go to a lot’s value or amenity…
§The starting point is that the entitlements should be equal, and a departure from that principle is allowable only where it is just, or fair, to recognise inequality, with the focus of the inquiry being the extent to which a lot unequally causes costs to the body corporate… and
§With respect to section 49(4), those identified matters are to be regarded only to the extent, if any, that they affect the costs of operating a community titles scheme…”
Findings
20.I accept the workings of Linkhorn and Simpson in their report in so far as they have identified costs, categorised them and allocated them among the lot owners.
21.I find that the proposed contribution lot entitlements is based upon equality of contribution except for a confined number of areas which appear to arise from a disproportionate expenditure of body corporate costs (Calcomp “B”); or different uses of the complex as between commercial and residential lots. I find that it is just and equitable for there to be inequality upon these bases. I find that the proposed contribution lot entitlements set out in attachment “A” to the application is just and equitable.
Orders
22.I order that the contribution schedule lot entitlements for Zanzibar Mooloolaba CTS 27494 be adjusted such that the lot entitlements be as follows:
Lot number Contribution schedule lot entitlement
1140
2138
3153
4146
5147
6145
7145
8161
9151
10157
11145
12146
13146
14146
15149
16146
17146
18146
19146
20149
21153
22149
23148
24148
25149
26153
27152
28149
29148
30148
31149
32152
33153
34149
35161
37149
38149
39152
40149
41148
42148
43149
44152
45153
46149
47148
48148
49149
50153
51152
52149
53148
54148
55149
56152
57153
58149
59148
60148
61149
62153
63152
64163
66148
67149
68152
69145
Aggregate 10,012
23.Further, I order that the Body Corporate for Zanzibar Mooloolaba CTS 27494, act in accordance with section 48(10) of the Body Corporate and Community Management Act 1997 (Qld) as quickly as possible, and in any event within 30 days from the receipt of a copy of this Order, in lodging a request to record a new Community Management Statement reflecting the adjustments ordered.
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