Shannon v Body Corporate Surfers Hawaiian
[2012] QCAT 482
•3 October 2012
| CITATION: | Shannon v Body Corporate Surfers Hawaiian [2012] QCAT 482 |
| PARTIES: | Ian Hugh Shannon (Applicant) |
| v | |
| Body Corporate Surfers Hawaiian CTS 5682 (Respondent) |
| APPLICATION NUMBER: | OCL136-11 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 3 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. There be an adjustment of the interest schedule for the scheme so that the respective interest schedule lot entitlements recorded in the community management statement for the scheme reflect the market value principle and are in accordance with the schedule to this order. 2. The body corporate, within 30 days of this order, lodge a new community management statement incorporating changes to the interest schedule lot entitlements for the lots included in the scheme in accordance with these orders. |
| CATCHWORDS: | Body Corporate – interest schedule adjustment – market value principle Body Corporate and Community Management Act 1997, ss 46, 46B, 47(3), 48 |
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 (QCAT Act).
REASONS FOR DECISION
This is an application under the Body Corporate and Community Management Act 1997 (BCCM Act) for adjustment of the interest schedule lot entitlement (ISLE).
Mr Shannon is an owner of a lot and seeks to adjust the ISLE based upon the market value principle.
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.[1]
[1] Section 47(3) BCCM Act.
The Body Corporate and Community Management Act 1997[2] sets out that in a CTS established after the commencement of section 46(8) of the BCCM Act[3] ISLE must be consistent with the market value principle.
[2] Section 46 BCCM Act.
[3] 14 April 2011.
The CTS was established before the commencement of section 46(8) of the BCCM Act.
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] Section 46B(1) BCCM Act.
Buildings and improvements on a lot are to be disregarded when establishing the market value created under a standard format plan of subdivision or volumetric format plan.[5]
[5] Section 46B(2) BCCM Act.
It is necessary to consider the adjustment provisions.
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.
[10]Some apparently independent market value evidence has been provided by Willem J Bannink, Principal, Banesia International t/as CFL Realty – Clients For Life.[6] No information as to Mr Bannink’s qualifications, expertise or independence other than his position has been provided.
[6] Dated 29 June 2012.
[11]This evidence is that in current market conditions that:
a)there is no significant difference in the value of the 2 bedroom apartments whether they are renovated or not and whether they are on a lower or higher floor;
b)the value of the 2 bedroom apartments (lots 2-62) is between $350,000-$390,000;
c)the value of the 2 penthouse apartments (lots 63 and 64) is between $1 million-$1.3 million;
d)the value of the ground floor restaurant lot (lot 1) is between $800,000-$860,000.
[12]In the absence of contrary evidence I accept this evidence of market value.
[13]The ISLE is not currently consistent with the market value principle.
[14]There are no matters brought to the Tribunal’s attention as to why it would be just and equitable for the ISLE not to reflect the respective market values of the lots.
[15]I find that the ISLE ought to be adjusted to reflect the market value principle in accordance with section 48 of the BCCM Act.
[16]The market value of lots 2-62 are approximately:
a)one – third of the market value of lots 63 and 64; and
b)half of the market value of lot 1.
Orders
[17]There be an adjustment of the interest schedule for the scheme so that the respective interest schedule lot entitlements recorded in the community management statement for the scheme reflect the market value principle and are in accordance with the schedule to this order.
[18]The body corporate, within 30 days of this order, lodge a new community management statement incorporating changes to the interest schedule lot entitlements for the lots included in the scheme in accordance with these orders.
Schedule of Lot Entitlements
Lot on Plan
Interest
Lot 1
20
Lot 2-62 (inclusive)
10 (each)
Lot 63
30
Lot 64
30
Total
690
0
0
1