Page v Body Corporate 31 Rosewood Street Bardon

[2010] QCAT 268

CITATION: Page v Body Corporate 31 Rosewood Street Bardon [2010] QCAT 268

PARTIES:	Ms Amanda Page
v
Body Corporate 31 Rosewood Street Bardon CTS 17814

APPLICATION NUMBER:   OCL012-10  

MATTER TYPE: Other civil dispute matters

HEARING DATE:     On the papers

HEARD AT:  BRISBANE

DECISION OF: P McGrath

DELIVERED ON: 16 June 2010

DELIVERED AT:      BRISBANE 

ORDERS MADE: 1.    The lot entitlement schedule relating to the contribution schedule for the premises situated at 31 Rosewood Street Bardon must be adjusted so that the respective lot entitlements are equal.

CATCHWORDS :  Application to adjust contribution schedule, Body Corporate and Community Management Act 1997 sections 46-49

APPEARANCES and REPRESENTATION (if any):

Decision on the papers.

REASONS FOR DECISION

1. The Rosewood Grove Units at 31 Rosewood Street, Bardon comprise of three (3) residential units.  They are all of similar size, unit one (1) being 58m², unit two (2) being 56m² and unit three (3) being 53m². 

1. The Applicant before the Tribunal is Amanda Page, the owner of unit 3, 31 Rosewood Street, Bardon.  In her application she contends that the common areas of the units are used equally by all owners/occupiers, the current contribution schedule is Lot 1 = 31, Lot 2 = 33, Lot 3 = 36.  The Applicant is seeking an adjustment of the current lot contributions to make them all equal.

1. The Applicant says that as owner of Lot 3, she is currently paying 36% of the water bill and has done since she purchased the property in 2006, as there is one (1) water metre for all three (3) units for building purposes.  The Applicant contends that this makes her contribution for water consumption unequal, particularly when there have been two (2) occupants in other units and one (1) occupant in her unit, Unit 3.  There have been no documents filed on behalf of the Respondent.  By decision of the Tribunal dated 8 April 2010 the application was to be determined on the papers after 29 April 2010.

1. The relevant legislation is contained in the Body Corporate and Community Management Act 1997, section 48 (1) states:

   “The owner of a lot in a community titles scheme may apply—

   (a) under chapter 6, for an order of a specialist adjudicator for the adjustment of a lot entitlement schedule; or

   (b) as provided under the QCAT Act, for an order of QCAT exercising the tribunal’s original jurisdiction for the adjustment of a lot entitlement schedule.”

2. Section 48 (6) states:

   “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.”

1. In determining the criteria for deciding just and equitable circumstances, while section 49 states:

   …

   (3) the matters the specialist adjudicator or QCAT may have regard to for deciding a matter mentioned in subsection (2) are not limited to the matters stated in this section.

   (4) The specialist adjudicator or QCAT may have regard to—

   (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.

   …

1. The Supreme Court of Queensland in Fischer v Body Corporate for Centrepoint CTS 7779 [2004] QCA214 has given consideration to the statutory requirement for equality of lot entitlements.  In that case Chesterman J noted that the preferable view is that a contribution schedule should provide for equal contributions by lot owners except in so far as some lots can be shown to give rise to particular costs to the body corporate which other lots do not.

1. That case confirmed the question as to whether a schedule should be adjusted is to be answered with regard in the demand made on the services and amenities provided by a body corporate to the respective lots or their contribution to the costs incurred by the body corporate.  Where the starting point is equality any departure from that position is allowable only where it is just and equitable to recognise inequality.

1. The Tribunal is satisfied that the starting point in the present case must be to vary the current contribution lot entitlements to reach the position of equality.  The Tribunal can then consider whether a departure from that decision is justified.

1. In this case the Applicant provided evidence of the proportion of water usage between the respective units as far as her own unit is concerned.  The Tribunal is therefore satisfied that a departure from the position of equal contribution from all unit owners is justified and the Tribunal determines that the lot entitlement schedule relating to the contribution schedule for the premises situated at 31 Rosewood Street Bardon must be adjusted so that the respective lot entitlements are equal.