Robley v Body Corporate for the Dalgety (Apartments)
[2013] QCAT 584
| CITATION: | Robley v Body Corporate for The Dalgety (Apartments) [2013] QCAT 584 |
| PARTIES: | Stephen Mark Robley and Barbara Joan Robley (Applicants) |
| v | |
| Body Corporate for The Dalgety (Apartments) CTS 41448 (Respondent) |
| APPLICATION NUMBER: | OCL070-13 |
| MATTER TYPE: | Other civil disputes matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | James White, Member |
| DELIVERED ON: | 15 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the contribution schedule lot entitlements for The Dalgety Apartments CTS 41448 be adjusted such that the entitlements be as set out in the attached table. 2. There are no orders as to costs. |
| CATCHWORDS: | Body Corporate and Community Management - adjustment of Contribution Schedule Lot Entitlements Body Corporate and Community Management Act 1997 ss 48(6), 49(4) Fisher & Ors v Body Corporate for Centrepoint Community Title Scheme 7779 [2004] QCA 214 Mango Property Pty Ltd v Body Corporate for West End Entral Commercial CTS 33391 [2011] QCAT 156 |
APPEARANCES and REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal 2009 (QCAT Act).
REASONS FOR DECISION
Introduction
The Dalgety Apartments CTS 41448 consists of 223 lots (6 commercial lots and 117 residential lots) together with car parking areas. It is a 21 level building situated at 84 – 106 Denham Street, Townsville.
On 2 October 2013 Mr & Mrs Robley lodged an application for the adjustment of the contribution schedule lot entitlement (CSLE) of the 223 lots in the scheme. The application is brought under the Body Corporate and Community Management Act 1997 (BCCMA).
The Respondent Body Corporate with the consent of the Applicants obtained a Valuation Report dated 30 September 2013 from Opteon (North Qld) Pty Ltd (Opteon) prepared by AD Dickinson, to determine whether their should be a revision of the Lot Entitlement in accordance with the BCCMA. The valuation date was 21 May 2013 (Opteon Report).
Legislation
The governing principle under the BCCMA is set out in ss 48 and 49 that ‘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]
[1]BCCMA s 48(6).
In determining what would be just and equitable circumstances to a change to the lot entitlements the Tribunal takes into account:
(a)how the community titles scheme is structured; and
(b)the nature, features and characteristics of the lots included in the scheme.[2]
[2]Ibid s 49(4).
The starting point is that the entitlements should be equal; a departure from the principle is allowable where it is just or fair to recognise inequality; and the allocation of lot entitlements is to be made on the basis of the impact that individual apartments make upon the cost of operating a community titles scheme; only to the extent that they affect the cost of operating the community titles scheme.[3]
[3]Fisher & Ors v Body Corporate for Centrepoint Community Title Scheme 7779 [2004] QCA 214; Mango Property Pty Ltd v Body Corporate for West End Entral Commercial CTS 33391 [2011] QCAT 156.
Consideration
Both the Applicants and the Respondent Body Corporate agree with the Opteon Report
All that remains is whether this Tribunal applying the BCCMA also agrees with the Opteon Report.
The Tribunal has considered the Opteon Report and the submissions filed by the parties. It takes the view that it is just and equitable to order that the contribution lot entitlements for the scheme be adjusted to reflect the lot entitlements proposed by the Opteon Report. In making this decision the Tribunal takes into account how the community titles scheme is structured, the nature, features and characteristics of the building and the purpose for which the lots are and have been used. All of these matters were properly addressed in the Opteon Report together with the valuation assessment.
The proposed changes to the lot entitlements are set out in the following table, which will be annexed to the formal order.
Lot Number | Entitlement | Lot Number | Entitlement |
| 101 | 134 | 604 | 265 |
| 102 | 156 | 605 | 290 |
| 103 | 164 | 606 | 290 |
| 104 | 133 | 607 | 315 |
| 105 | 173 | 701 | 330 |
| 106 | 97.5 | 702 | 365 |
| 201 | 315 | 703 | 270 |
| 202 | 245 | 704 | 270 |
| 203 | 245 | 705 | 295 |
| 204 | 285 | 706 | 295 |
| 301 | 325 | 707 | 325 |
| 302 | 250 | 801 | 340 |
| 303 | 250 | 802 | 375 |
| 304 | 290 | 803 | 275 |
| 401 | 285 | 804 | 345 |
| 402 | 335 | 805 | 465 |
| 403 | 255 | 806 | 350 |
| 404 | 255 | 901 | 360 |
| 405 | 280 | 902 | 390 |
| 406 | 280 | 903 | 285 |
| 407 | 295 | 904 | 360 |
| 501 | 295 | 905 | 480 |
| 502 | 345 | 906 | 365 |
| 503 | 260 | 1001 | 370 |
| 504 | 260 | 1002 | 340 |
| 505 | 285 | 1003 | 295 |
| 506 | 285 | 1004 | 370 |
| 507 | 305 | 1005 | 490 |
| 601 | 305 | 1006 | 375 |
| 602 | 370 | 1101 | 380 |
| 603 | 265 | 1102 | 410 |
| 1103 | 305 | 1604 | 430 |
| 1104 | 380 | 1605 | 435 |
| 1105 | 500 | 1605 | 550 |
| 1106 | 385 | 1701 | 440 |
| 1201 | 390 | 1702 | 470 |
| 1202 | 420 | 1703 | 365 |
| 1203 | 315 | 1704 | 440 |
| 1204 | 390 | 1705 | 560 |
| 1205 | 510 | 1706 | 445 |
| 1206 | 395 | 1801 | 450 |
| 1301 | 400 | 1802 | 480 |
| 1302 | 430 | 1803 | 375 |
| 1303 | 325 | 1804 | 450 |
| 1304 | 400 | 1805 | 570 |
| 1305 | 520 | 1806 | 455 |
| 1306 | 405 | 1901 | 475 |
| 1401 | 410 | 1902 | 505 |
| 1402 | 440 | 1903 | 385 |
| 1403 | 335 | 1904 | 475 |
| 1404 | 410 | 1905 | 580 |
| 1405 | 530 | 1906 | 480 |
| 1406 | 415 | 2001 | 670 |
| 1501 | 420 | 2002 | 880 |
| 1502 | 450 | 2003 | 885 |
| 1503 | 345 | 2004 | 720 |
| 1504 | 420 | 2101 | 680 |
| 1505 | 540 | 2102 | 890 |
| 1506 | 425 | 2103 | 895 |
| 1601 | 430 | 2104 | 730 |
| 1602 | 460 | 2201 | 1400 |
| 1603 | 355 | TOTAL | 49,172.5 |
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