Nunn v Body Corporate for Skye Gardens CTS 20379
[2014] QCAT 559
•4 November 2014
| CITATION: | Nunn v Body Corporate for Skye Gardens CTS 20379 [2014] QCAT 559 |
| 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: | 4 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Application for adjustment to the contribution schedule lot entitlements is dismissed. 2. The Application for an order that the building insurance provided by the Body Corporate is divided amongst the owners on the basis of re-installing the buildings on the lot and not done using the lot entitlements is dismissed. 3. Lance St Lawrence Nunn is to file two copies in the Tribunal and give to the Body Corporate for Skye Gardens CTS 20379 one copy of a relevant market value determination by a duly qualified valuer and any submissions in connection with the market value determination by 4:00pm on Monday 1 December 2014. 4. If Lance St Lawrence Nunn does not comply with Order 3 above the application for adjustment to the interest schedule lot entitlement shall without further order be dismissed. 5. If Lance St Lawrence Nunn does comply with Order 3 above a) the Body Corporate for Skye Gardens CTS 20379 must file 2 copies in the Tribunal and give one copy to Lance St Lawrence Nunn of any submission in response, by 4:00pm Monday 15 December 2014. b) the Application for adjustment of the interest schedule lot entitlement will be determined on the papers without an oral hearing not before 4:00pm Monday 15 December 2014. |
| CATCHWORDS: | BODY CORPORATE – application for adjustment to contribution schedule lot entitlements – where no material change – application for adjustment to interest schedule lot entitlements – no evidence of market value – opportunity to supply evidence – ‘guillotine order’ – application to order insurance costs divided on reinstatement cost basis Body Corporate and Community Management Act 1997 (Qld), s 47, s 47B, s 48 The Body Corporate of Tradition CTS 32885 v The Body Corporate of Coomera Waters CTS 29693 [2012] QCAT 26 |
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
Mr Nunn is an owner of a lot in a townhouse complex consisting of 18 lots. Mr Nunn seeks an adjustment of the contribution schedule lot entitlements (CSLE) and the interest schedule lot entitlements (ISLE). He contends that the CSLE should be equal and that the ISLE should reflect the market value of the lots. Mr Nunn also seeks an order in relation to the way the Body Corporate charges the lot owners for the building insurance.
The Body Corporate opposes the application because it says the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’) does not give the Tribunal power to make the orders sought.
The CSLE 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.[1]
[1]BCCM Act s 47(2).
There is little evidence before the Tribunal. The evidence before the Tribunal indicates that the CSLE has not changed since the scheme commenced and the scheme commenced before s 47B of the BCCM Act commenced.[2]
[2]14 April 2011.
The Tribunal’s power to order an adjustment is limited.
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 CSLE where the scheme is affected by a material change since the last time the contribution schedule was decided. As stated earlier in these reasons there is no evidence before the Tribunal in relation to a material change since the last time the CSLE was decided.
I find that there is no basis upon which this Tribunal may order an adjustment to the CSLE.
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.[3]
[3]BCCM Act s 47(3).
The notes to s 47(2)(a) of the BCCM Act states that
The regulation module applying to a community titles scheme might provide that a lot owner’s contribution of some or all of the insurance required to be put in place by the body corporate is to be calculated on the basis of the lot’s interest schedule lot entitlement.
Section 48 of the 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.
The market value principle[4] 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.
[4]BCCM Act s 46B(1).
There is no evidence of market valuation and so I am unable to be satisfied that the ISLE is not consistent with market values or to determine what adjustment is required so that the ISLE is consistent. The Tribunal has previously accepted that the Tribunal requires the assistance of an appropriately qualified expert valuer to permit it to exercise its powers.[5]
[5]The Body Corporate of Tradition CTS 32885 v The Body Corporate of Coomera Waters CTS 29693 [2012] QCAT 26.
Rather than dismiss this part of the application immediately it is appropriate to allow a short time for market value evidence to be obtained.
Mr Nunn submits that the insurance payable is calculated using the ISLE and that
the cost of replacing lots 8 and 13 would be slightly more than the cost to replace lot 6 it would certainly not be twice the cost of replacing lot 6.
There are no other submissions in relation to the Tribunal’s power to order the Body Corporate to charge lot owners for building insurance on the basis of re-instatement costs of the lots rather than using the ISLE. There is also no evidence of re-instatement costs.
I am not satisfied that the Tribunal has any power to make such an order.
1
0