Raby v Body Corporate for 1 Holman Street
[2011] QCAT 449
•16 September 2011
| CITATION: | Raby v Body Corporate for 1 Holman Street CTS 31236 [2011] QCAT 449 |
| PARTIES: | John Raby Deirdre Raby (Applicants) |
| v | |
| Body Corporate for 1 Holman Street CTS 31236 (Respondent) |
| APPLICATION NUMBER: | KL012-07 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 16 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Declare that the orders made by the previous Tribunal on 8 May and 26 June 2008 are Adjustment Orders, as that term is defined in s 378 of the Body Corporate and Community Management Act 1997. 2. If any party wishes to seek costs, that party should deliver written submissions to the other party and to QCAT within 14 days; and, the other party may deliver written submission in response within 14 days thereafter. |
| CATCHWORDS: | Body Corporate and Community Management Act 1997, ss 47, 378, 379, 380-388 Acts Interpretation Act 1954, s 14B Queensland Civil and Administrative Tribunal Act2009, ss 60, 100 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
The Body Corporate and Community Management Act 1997 (BCCMA) sets up a scheme of ‘lot entitlements’ for each lot in a scheme. The entitlements for each individual lot are then reflected in a ‘contribution schedule’ which forms the basis for determining each lot owner’s share of amounts levied by the Body Corporate – in effect, of course, the amount of levy each owner must pay.[1]
[1] BCCMA, s 47.
This matter involves a units building at Kangaroo Point. Its contribution lot entitlement schedule was adjusted by QCAT’s predecessor, the Commercial and Consumer Tribunal, in 2008. The question the Body Corporate, and Mr and Mrs Raby bring to QCAT is whether or not the 2008 order was an ‘Adjustment Order’ under a definition of that term in s 378 of the BCCMA. As framed in the application filed in QCAT, the Body Corporate seeks a declaration that the 2008 order is an ‘Adjustment Order’ although, in written submissions to the Tribunal, it has taken a neutral position about whether that is, or is not, the case.
Because what is sought by the parties is, in effect, a declaration about a matter in a proceeding it must be determined by a Judicial Member of QCAT.[2] I determined that the matter would be conducted by written submissions from the parties, which they have provided.
[2] QCAT Act, s 60.
There is no dispute about the facts. Mr and Mrs Raby own a unit at Holman Street and in 2007 began proceedings seeking an order that the lot entitlement contribution schedule be adjusted. That was contested by the Body Corporate, and ultimately determined by Mr Dorney QC (as his Honour then was) who made an order on 8 May 2008 that the contribution schedule lot entitlements
… are adjusted, such that the contribution schedule lot entitlement allocated to each lot is that which the parties agree is the consequence of the conclusions that the Tribunal has reached about equal, and unequal, respective lot entitlements for that contribution schedule.
The order went on to say, however, that ‘… if the parties cannot agree as to the process, or results, of applying the conclusions that the Tribunal has reached’ then each party had liberty to re-list the matter before the Tribunal for further consideration. The order also said that if the parties could agree, they could inform the Tribunal of the terms of their agreement after which the Tribunal would make a specific order.
That is what happened. The parties subsequently wrote to the Tribunal advising they had agreed about the result of the new contribution schedule and attached a copy, and on 26 June 2008 the CCT Chairperson, Ms J Schafer, made an order referring to the correspondence from the parties; on its face, the order is made ‘by consent’ and ‘notes’ that ‘… the application is settled between the parties’. The order then sets out the new contribution lot entitlement schedule and directs that the Body Corporate prepare and lodge a new Community Management Statement in accordance with it.
In May this year, however, the owners of another lot lodged a motion with the Body Corporate that the entitlements revert back to the original contribution schedule. Although that motion has been withdrawn, those owners have indicated to the Body Corporate that they will probably persist with it. Their request is what the BCCMA describes in s 379 as a motion proposing adjustment of a contribution schedule. An owner may submit a motion of that kind to reflect ‘pre-Adjustment Order entitlements’.
The question the parties bring to the Tribunal is whether or not the order(s) made by the previous Tribunal in 2008 was an ‘Adjustment Order’.
That term is defined in s 378 to mean an order of a court, tribunal or specialist adjudicator made before the commencement, providing for an adjustment of the contribution schedule for an existing scheme.
[10] The definition goes on, however, to provide that an Adjustment Order does not include an order of a court or tribunal giving effect to a decision that is not made by the court or tribunal.
[11] The BCCMA provides examples of the latter including
an order of a court or tribunal giving effect to the terms of settlement of a dispute between an order of a lot … and the body corporate, if the terms provide for the adjustment of the contribution schedule for the scheme.
[12] The written submissions from both parties are helpful, and comprehensive. Neither is, however, able to point to any previous decisions on the question. Mr and Mrs Raby contend that the earlier order was not an Adjustment Order because, in short, the Tribunal did not determine the adjusted contribution lot entitlements and the adjustment reflected in the ultimate order was, rather, a consent order reflecting an agreement between the parties. It is said this means that the orders come within the exception in the definition and the circumstances in which it was made are entirely consistent with the example the Act gives for that exception. The Body Corporate takes a neutral stance.
[13] Uncertainty arises about the correct answer because, with respect, of the wording of the two orders made by different members of the former tribunal. The first order of 8 May 2008 plainly says that the entitlements ‘are adjusted’ but then makes it clear that this can be done either by the parties, and in a way which reflects ‘… the conclusions that the Tribunal has reached’ or, if the parties cannot agree, by a further determination by the Tribunal itself. The ‘conclusions’ were reflected in Reasons for a decision given by the learned Member.
[14] The reference in the order itself to the conclusions makes it clear that the order is intended to be read and construed by reference to those Reasons. In them the learned Member said, at [28]:
Concerning those few items for which the Tribunal accepts that there is cogent evidence which makes it just and equitable in the circumstances for such expenses not to be based on equality, the recommended contribution schedule lot entitlements for the various lots … need to be adjusted before any final order can be made.
[15] Then, in [31] the Reasons note that if the parties cannot agree, after conferring, about the process or the result to reach an appropriate adjustment ‘… it will be necessary to relist the matter before the Tribunal for a further determination, as the Tribunal should deem necessary’.
[16] As previously observed, however, the later order of 26 June 2008 records that it is made ‘by consent’ and contains terms showing that it reflects the fact that ‘… the application is settled between the parties’. It then records that ‘the parties agree that the contribution lot entitlement schedule is to be as follows: …’ and the new schedule is then set out. Finally, in its third paragraph the order directs that the Body Corporate will prepare and lodge the new Statement ‘… in accordance with the agreed adjusted contribution lot entitlement schedule’ (emphasis added).
[17] Mr and Mrs Raby contend, in their submissions, that there was no actual change affected to the schedule in the first order. Because ss 379-388 of the BCCMA provide for adjustment of the contribution schedule to reflect the ‘pre-adjustment order entitlements’ an ‘Adjustment Order’ must, they say, change actual contributions. The initial order did not, they submit, do that – but the second order, made by consent, did so. On its face, as they point out, the second order was a ‘consent order’ reached after an agreement between the parties. The Tribunal was not, therefore, ever called upon to determine the adjusted contribution lot entitlements for the Scheme. Their submission is that, had the parties not been able to reach agreement, and if the Tribunal had then been obliged to determine the matter, the product of that exercise that would have constituted an Adjustment Order.
[18] It is said that the definition, viewed in the light of recent amendments to the BCCMA, was intended to provide a mechanism for overturning adjustments made by a court, tribunal or adjudicator – something that would usually occur only where a lot owner is in dispute with a Body Corporate about entitlements – rather than the case of an agreement between the Body Corporate and the lot owner. The submissions go on to suggest that this accords with public policy and that it could not be the intention of the legislature to allow a party to renege on an agreement, which was then duly entered as a consent order by the Tribunal; and, that this proposition is reflected in the exclusion in part (b) of the definition.
[19] The tension and uncertainty which arises in the construction here occurs because, as the Body Corporate’s submissions point out, the first order (and the Reasons which accompanied it) specifically provide that the entitlements ‘are adjusted’.
[20] For reasons which follow I do not think the example of the exception (‘an order of a tribunal giving effect to the terms of the settlement of a dispute …’) is of particular assistance here, but it is appropriate to note that for the purposes of finding the proper meaning of the definition, s 14B of Queensland’s Acts Interpretation Act 1954 permits regard to be had to examples, like this one, included in the text of the legislation.
[21] The answer, I think, lies in phrases used in the definition itself, and in the exception.
[22] The definition of an Adjustment Order is said to mean, relevantly, an order of a tribunal ‘… providing for an adjustment of the contribution schedule’. The exception is, again relevantly, of an order of a tribunal giving effect to a decision that is not made by the tribunal.
[23] The first order here announces, in plain terms, that the schedule for this scheme and its contribution schedule lot entitlements are adjusted. While it then goes on to, in effect, invite the parties to reach agreement and return with a consent order, it is also made clear that the Tribunal will, if necessary, (and in the absence of agreement) determine the actual adjustments to the entitlements.
[24] On its face the order, then, adjusts the entitlements and is an ‘Adjustment Order’. That conclusion is not contradicted, I think, by the fact that it then contains a mechanism which will enable the parties to comply with the order, through agreement if they wish. In other words, the first order is an ‘Adjustment Order’ and the additional verbiage in it about that mechanism does not detract from that conclusion, or take the case into the exception.
[25] The second order merely reflects the fact that the adjustment directed under the adjustment order has happened, pursuant to one of the mechanisms offered by the learned Member.
[26] The exception in the definition is, rather, intended to apply to a different circumstance where parties reach agreement before any determination is made by the Tribunal, and simply seek that the Tribunal makes an order giving effect to their agreement. That conclusion is supported by the two examples given for it.
[27] For these reasons I am satisfied that it is appropriate to declare that the orders made by the previous Tribunal on 8 May and 26 June 2008 are Adjustment Orders, as that term is defined in s 378 of the BCCMA.
[28] The application was brought, on its face, by Mr and Mrs Raby but it is signed on behalf of the Manager of the Body Corporate. It attaches a draft statement of claim for proceedings between the Rabys and the Body Corporate seeking the declaration just made (or, in the alternative, a declaration that earlier orders fall within the exception) – but, also, costs. It is not clear whether the Body Corporate has agreed to pay Mr and Mrs Raby’s costs, and the submissions from the parties do not address that question. Under s 100 of the QCAT Act each party in the proceeding before this Tribunal is usually expected to bear its own costs. The question posed to the Tribunal was not without difficulty and was brought to it, quite reasonably, for determination. In that circumstance, s 100 would usually apply.
[29] Nevertheless, if any party wishes to seek costs that party should deliver written submissions to the other party and to QCAT within 14 days; and, the other party may deliver written submission in response within 14 days thereafter. The issue, if it arises, can then be determined on the papers.
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