Nunn v Body Corporate for Skye Gardens CTS 20379

[2015] QCAT 8

CITATION: Nunn v Body Corporate for Skye Gardens CTS 20379 [2015] QCAT 8

PARTIES:	Lance St Lawrence Nunn (Applicant)
v
Body Corporate for Skye Gardens CTS 20379 (Respondent)

APPLICATION NUMBER: OCL055-14

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Deane

DELIVERED ON: 13 January 2015

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The Application for adjustment to the interest schedule lot entitlements is dismissed.

CATCHWORDS:

BODY CORPORATE – application for adjustment to interest schedule lot entitlements – insufficient evidence of market valuation

Body Corporate and Community Management Act 1997 (Qld), s 46B, s 47, s 48

Nunn v Body Corporate for Skye Gardens [2014] QCAT 559

APPEARANCES:

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 Nunn is an owner of a lot in a townhouse complex consisting of 18 lots. Mr Nunn applied for an adjustment of the contribution schedule lot entitlements (CSLE) and the interest schedule lot entitlements (ISLE). Mr Nunn also sought an order in relation to the way the Body Corporate charges the lot owners for the building insurance. I previously dismissed the application in relation to the adjustment of the CSLE and the way the Body Corporate charges the lot owners for the building insurance. I gave Mr Nunn additional time to file a relevant market value determination to assist with the application for an adjustment of the ISLE.[1]

   [1]Nunn v Body Corporate for Skye Gardens [2014] QCAT 559.

2. Some market value evidence has now been filed. Mr Nunn contends that the ISLE should reflect the market value of the lots.

3. The Body Corporate opposes the application on the basis that there is insufficient evidence.

4. I find that there is no basis upon which this Tribunal may order an adjustment to the ISLE on the evidence before me.

5. The ISLE is the basis for calculating the lot owner’s share of common property, interest on termination of the scheme and the value of the lot for the purpose of local government rates and charges imposed on the basis of value.[2]

   [2]Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’) s 47(3).

6. Section 48 of the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’) provides that an owner of a lot may apply for an adjustment of an interest schedule and that the order must be consistent with the market value principle.

7. The market value principle[3] is the principle that lot entitlements must reflect the respective market values of the lots except to the extent to which it is just and equitable for them not to reflect respective market values.

   [3]Ibid s 46B(1).

8. Mr Nunn has filed a Residential Valuation & Security Assessment for Mortgage Purposes.[4] It only relates to Mr Nunn’s lot and is dated 2 October 2013. I note that it expressly states that it is ‘for first mortgage purpose only and is not to be used for any other purpose’.

   [4]Linda Lee, Herron Todd White Residential.

9. The valuation was given over 12 months ago. There is no evidence that the valuation remains current or that the author has given permission for its use in these proceedings. A greater difficulty is that there is no valuation evidence of any of the other lots in the scheme.

10. There is therefore insufficient evidence to allow me to determine if the ISLE is not consistent with market values of the various lots. I have no basis upon which to determine what adjustment, if any, is required so that ISLE is consistent.

11. Mr Nunn is the applicant and bears the onus of satisfying the Tribunal that an adjustment is required. He has failed to do so despite being given an opportunity to file additional evidence to rectify the original inadequacy.