Pitt v Body Corporate for Aqueous on Port CTS 33821

[2014] QCAT 245

CITATION: Pitt v Body Corporate for Aqueous on Port CTS 33821 [2014] QCAT 245

PARTIES:	Warren Douglas Pitt (Applicant)
V
Body Corporate for Aqueous on Port CTS 33821 (Respondent)

APPLICATION NUMBER: OCL022-14

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Hughes

DELIVERED ON: 5 June 2014

DELIVERED AT: Brisbane

ORDERS MADE:    

1.  The Application is dismissed; and

2.  Each party bears its own costs of the proceeding.

CATCHWORDS:

CONTRIBUTION SCHEDULE LOT ENTITLEMENTS – whether basis for application – where limited power in Tribunal to order adjustment - where no evidence of any basis for application - where no motion,  material change or Adjustment Order – where material change previously defined – COSTS – whether to award costs - where indicator against costs – where legislation novel and untested

Body Corporate and Community Management Act 1997 (Qld), sections 47AA, 47B, 379, 381, 382, 383, 384 and 385
Queensland Civil and Administrative Tribunal Act 2009 (Qld), sections 100 and 102

Heaton v. Body Corporate for “Windsong Apartments” CTS 31804 [2012] QCAT 45
Higham v. The Body Corporate for the Palms No. 3 Warana CTS [2013] QCAT 228
Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412
Thompson v. Capricorn Pacific Apartments CTS 5587 [2013] QCAT 227

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

What is this Application about?

1. Warren Douglas Pitt wants the Tribunal to adjust the contribution schedule lot entitlements for Aqueous on Port CTS 33821 to reflect the different sizes of the units and their position within the complex, consistent with the interest schedule.

2. The Body Corporate for Aqueous on Port CTS 33821 wants the Tribunal to dismiss Mr Pitt’s application. Aqueous claims that Mr Pitt’s application is wanting, both in jurisdiction and merit.

What is the basis for the Application?

1. As the Tribunal has noted in prior decisions, its power to order an adjustment is limited.[1]

   [1]        See for example, Thompson v. Capricorn Pacific Apartments CTS 5587 [2013] QCAT

   227 and Higham v. The Body Corporate for the Palms No. 3 Warana CTS [2013] QCAT

   228.

2. Mr Pitt owns Lot 26. He can apply under the Body Corporate and Community Management Act 1997 (Qld) for the Tribunal to adjust the contribution schedule lot entitlements in the below circumstances.

The Body Corporate passes a motion without dissent to change the entitlements[2]

[2]        Body Corporate and Community Management Act 1997 (Qld) section 47AA.

1. Aqueous states there has been no resolution to change contribution entitlements. Certainly, the Tribunal has no evidence of any resolution.

2. It is the passing of the motion to change entitlements that provides the basis for an application. There is no evidence of any motion even being put to the body corporate and therefore no change to the entitlements.

3. Accordingly, the absence of any motion and consequential change means that this does not provide a basis for Mr Pitt’s application.

The scheme is affected by a material change since the last time entitlements were decided[3]

[3]        Body Corporate and Community Management Act 1997 (Qld) s 47B(1).

1. A “material change” means a physical change such as the building of units or the partial demolition of the scheme.[4] Although this was previously considered in the context of section 384 of the Act, the reasoning applies pari passu to this ground because of the comparable wording. 

   [4]        Heaton v. Body Corporate for “Windsong Apartments” CTS 31804 [2012] QCAT 45 at

   paragraphs [5], [6], [9] and [10].

2. The Tribunal has no evidence of any material change. Indeed, the evidence is of no change to the community management statement since establishing the scheme.[5]

   [5]        First / New Community Management Statement dated 18 March 2005.

3. Accordingly, this does not provide a basis for Mr Pitt’s application.

The scheme is established after the commencement of section 47B(2) of the Body Corporate and Community Management Act 1997 and there has been no prescribed change to contribution entitlements[6]

[6]        Body Corporate and Community Management Act 1997 (Qld) s 47B(2).

1. Section 47B commenced on 14 April 2011. The scheme was established in 2005, well before then.

2. Accordingly, this does not provide a basis for Mr Pitt’s application.

A change to contribution entitlements because of a formal acquisition affecting the scheme[7]

[7] Ibid s 47B(2A).

1. The Tribunal has no evidence of any acquisition affecting the scheme. Again, the evidence is of no change to the community management statement since establishing the scheme.[8]

   [8]        First / New Community Management Statement dated 18 March 2005.

2. Accordingly, this does not provide a basis for Mr Pitt’s application.

To reflect pre-Adjustment Order entitlements following a motion proposing adjustment[9]; a decision of the Body Corporate or committee about the adjustment[10]; and a subdivision[11], amalgamation[12], lot boundary change[13] or material change[14] since the Adjustment Order  

[9]        Body Corporate and Community Management Act 1997 (Qld) s 379.

[10] Ibid s 385.

[11] Ibid s 381.

[12] Ibid s 382.

[13] Ibid s 383.

[14] Ibid s 384.

1. The Tribunal has no evidence of any of these. Again, the evidence is of no change to the community management statement since establishing the scheme.[15]

   [15]        First / New Community Management Statement dated 18 March 2005.

Does the Tribunal have jurisdiction?

1. Because Mr Pitt has failed to provide evidence of compliance with any of the above grounds, his application falls outside the Tribunal’s limited jurisdiction. His application is at the very least premature.

2. The Tribunal therefore does not have jurisdiction to determine Mr Pitt’s application and it must therefore fail.

What are the appropriate Orders?

1. The appropriate Orders are that the application is dismissed.

2. Costs in the Tribunal are not awarded as a matter of course. Each party must bear their own costs[16], unless the interests of justice require the Tribunal to order a party to pay the costs of another party.[17]

   [16]        Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100.

   [17] Ibid s 102.

3. There is therefore a strong indicator against awarding costs:

   Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s.100.[18]

   [18]        Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No. 2) [2010]

   QCAT 412 at paragraph [29].

4. Aqueous did not seek its costs and there is no compelling reason to depart from the strong indicator against costs. As the Tribunal has previously noted, this aspect of the legislation is relatively novel and untested.[19]

   [19]        Heaton v. Body Corporate for “Windsong Apartments” CTS 31804 [2012] QCAT 45 at

   paragraph [12].