McGahey v Body Corporate for Ambience on Burleigh
[2012] QCAT 61
•15 February 2012
| CITATION: | McGahey and Anor v Body Corporate for Ambience on Burleigh CTS 37449 [2012] QCAT 61 |
| PARTIES: | Mr Michael John McGahey Mrs Rosemary Ann McGahey |
| v | |
| Body Corporate for Ambience on Burleigh CTS 37449 |
| APPLICATION NUMBER: | OCL131-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr John Forbes, Member |
| DELIVERED ON: | 15 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed. 2. No order as to costs. |
| CATCHWORDS: | Application for adjustment to contribution schedule lot entitlement – whether grounds for application exist – no recognised ground shown Body Corporate and Community Management Act1997, ss 46A, 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 (QCAT Act).
REASONS FOR DECISION
The home unit tower “Ambiance on Burleigh” was completed about September 2007. On 18 September 2007 a community management plan was lodged in the Department of Environment and Resource Management (“the Department”). In that plan there was provision for units 2051 and 2052. In the course of selling the units the developer decided to amalgamate those two units, and in a plan lodged on 20 November 2008, they emerged as a single unit, numbered 2051, with a contribution schedule lot entitlement (“CSLE”) of 1190 – the sum of the original CSLEs of unit 2051 and 2052 respectively. There was no revision of lot entitlements in the light of the amalgamation.
Amalgamated unit 2051 was purchased by a Mr Brett Watson on 10 December 2008. Watson, with a 5th floor unit comprising 244 square metres found himself liable for substantially higher body corporate levies than residents on the 14th and 15th floors, with areas about 23-32% larger than his.
It is common ground that:
(i)a “lot entitlement assessment report” dated 20 August 2010, prepared by Quality Building Management Pty Ltd recommended an adjustment of the CSLEs, according to the “just and equitable” principle;
(ii)on or about 17 September 2010, and again on 9 November 2010 the then proprietor of unit 2051, Watson, sought a consensual reassessment of his obligations to the body corporate, on the basis of the Quality Building Management report;
(iii)Watson’s request was unsuccessful;
(iv)on 27 October 2010, three weeks before a transfer of unit 2051 from Watson to the Applicants was lodged with the Department, the Appellants sent an email to a Mr Andrew Ramsay reading in part: “Please pass this letter on to Brett [Watson] and ask him how he is proceeding [scil in his quest for a reduced levy]’. Obviously we will have to continue with the dispute after settlement ...”.
Despite the unresolved dispute the Applicants purchased the unit in question. Almost one year later, on 12 October 2011 they began these proceedings. Meanwhile important amendments were made to the Body Corporate and Community Management Act 1997, (“the Act”) to which it will be necessary to refer in some detail. It should be noted at once that the Quality Building Management report was prepared some eight months before those legislative changes were made.[1]
[1]By the Body Corporate and Community Management and Other Legislation Amendment Act 2011 No 9 (date of assent 14 April 2011).
In the initial statement of their case the Applicants relied on sections 46A and 47B of the Act, which came into operation on 14 April 2011.
Section 46A establishes an “equality principle” for deciding CSLEs, “except to the extent to which it is just and equitable in the circumstances for them not to be equal.”
Section 47B(3)(b) enables a unit owner to apply to this Tribunal for an adjustment of the CLSE governing the applicant. However, the right to apply is not at large; s 47B is applicable in two situations only:
(a)where the community titles scheme in question is affected by a material change that has happened since the last time the contribution schedule lot entitlements for the lots included in the scheme were decided (“the material change ground”); or
(b)where the scheme is established after the commencement of this section [i.e. 14 April 2011] (“the post 14.4.2011 ground”).
In each case the provision adds, rather unnecessarily, that the applicant must hold a belief that an adjustment of the contribution schedule is warranted. Unsurprisingly, that is common ground.
The Respondent’s answer is that the Applicants have no right to maintain these proceedings. With respect to the “material change” ground, the Respondent relies on the definition of that expression in Schedule 6 to the Act: “A material change, for a community titles scheme, is a change that has, or may have, a significant effect on the contribution schedule lot entitlements ... including, for example ... the removal of 1 or more lots, other than by an amalgamation” (emphasis added). This is a nice example of the power of statutes to set ordinary language aside.
Turning to the “post 14.4.2011 ground”, the Respondent submits that the community titles scheme to which the Applicants object is not one that was established after the commencement of s 47B. It is undisputed that the subject scheme was established on 20 November 2008, three years and several months before s 47B took effect. Manifestly – so the submission proceeds – the Applicants are not entitled to rely on s 47B(2), and the application must fail.
In a response filed on 10 January 2012 the Applicants adopt a variety of positions. They reiterate that, in their application of 12 October 2011, they rely on s 47B of the Act in seeking a re-apportionment, or a reduction of the CLSE for their unit.[2] But at the top of page 2 of the response they state: “[W]e do not rely on s 47B of the Act in seeking a just and equitable apportionment of the costs and expenses of the Respondent payable by all lot owners of the scheme”.
[2] Response 10 January 2012 paragraph 3.
Later in the response the Applicants assert (contrary to paragraph 9 of their original claim): “Our application does not rely on a material change as specified in the Act. We are not relying upon section 47B(1) ... and therefore do not need to establish a material change”.[3] And further: “Our application does not does not rely upon section 47B(2) ...”.
[3] Response paragraphs 21-22.
Those concessions leave the Applicants’ case wholly dependent on s 46A. Indeed, on page 5 of the response, in a continuation of paragraph 23 (possibly intended to be paragraph 24) the Applicants affirm: “Our Application ... made reference to section 46A ... As stated in our submission we apply section 46A.”
This calls for an examination of the relationship between s 46A and s 47B. In my view, s 46A is not in itself a ground of application, but a test to be applied if, and only if, one of the two grounds in s 47B is established. (Similarly, if an adjustment of an interest schedule lot entitlement were sought, the test in s 46B could only be applied if the ground in s 48 were first shown to exist.) In other words, s 47B must provide a “trigger” before s 46A can come to the aid of the Applicants. The draftsman’s placing of the test before the grounds on which it operates is apt to cause confusion.
Naturally these considerations do not appear in the Quality Building Management report tendered by the Applicants, because that report was written some eight months before the April 2011 amendments inserted sections 46A and 47B.
It follows that the Applicants have not shown a material change, within the meaning of the Act, and accordingly they do not have a cause of action pursuant to section 47B(1), and it is undisputed that the scheme that includes their unit was not established after 14 April 2011. Sympathy for the Applicants’ position cannot alter the fact that, as a matter of law, their application has no proper basis in law. Accordingly it must be dismissed.
ORDER
The application is dismissed.
No order as to costs.
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