The Body Corporate of Tradition CTS 32885 v The Body Corporate of Coomera Waters CTS 29693
[2012] QCAT 26
•23 January 2012
| CITATION: | The Body Corporate of Tradition CTS 32885 v The Body Corporate of Coomera Waters CTS 29693 [2012] QCAT 26 |
| PARTIES: | The Body Corporate of Tradition Community Title Scheme 32885 (Applicant/Appellant) |
| v | |
| The Body Corporate of Coomera Waters Community Titles Scheme 29693 (Respondent) |
| APPLICATION NUMBER: | OCL110-11 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 23 January 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is adjourned. 2. The Applicant is at liberty to file in the Tribunal one copy and give to the Respondent one copy of a relevant market determination by a duly qualified valuer, by 4:00pm on 5 March 2012. 3. In default of compliance with Order 2, above, the application for adjustment to interest schedule lot entitlements shall, without further order, be dismissed. 4. Application and cross-application for costs adjourned, to be listed for hearing upon seven (7) days notice in writing by either party to the other, and to the Registrar. |
| CATCHWORDS: | Application for adjustment to interest schedule lot entitlements – absence of expert evidence on applicant’s behalf – insufficiency of evidence – opportunity to supply deficiency – “guillotine order” Body Corporate and Community Management Act1997, ss 46, 46B, 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 (“BCCMA”) for adjustment of an interest schedule lot entitlement (“ILSE”). The Applicant (“Tradition Community”) is a subsidiary of Coomera Waters Title Scheme 29693 (“Coomera Waters”). The application was filed on 10 August 2011. Accordingly, the new “market value” principle[1], which came into operation on 14 April 2011, governs this case.
[1] BCCMA, ss 46B, 48(5). Jurisdiction is conferred on the Tribunal by s 48(3)(b).
Tradition Community’s quest began when two of its residents, Mr and Mrs Frolich, found that their local authority rates were markedly higher than those paid in another, seemingly more valuable part of Coomera Waters.
Subsequently the Applicant instructed its solicitors to prepare a case for alteration of its ILSE. The fruits of that exercise are contained in a letter (with annexures) from Piper Alderman to Tradition Community, dated 15 July 2011.[2] It may be noted at once that the letter came with a caveat:
“We confirm your instructions that you do not intend to obtain any independent advice from a valuer in this regard. Accordingly, we give no warranty that the ISLE in the schedule and this letter comply with the market value principle.”
[2] Annexure “C” to the Application.
Resisting the application, Coomera Waters points to an absence of expert evidence of market value, and submits that the proceedings should be dismissed.
Market value is not a figure to be plucked from the air, either by an inexpert party, or by the Tribunal. The Tribunal necessarily requires the assistance of an appropriately qualified, expert valuer. It is not incumbent upon the Respondent, in the first place, to collect and adduce evidence for the Applicant’s benefit, although it may, of course, tender expert evidence of its own, if the Applicant has already done so. In the absence of expert evidence there is no material upon which the Tribunal may properly act.
The Applicant says that, at a directions hearing on 4 October 2011 the Respondent indicated that it would obtain a valuation, but no such intention or undertaking is recorded on the official file.
The absence of expert evidence was fatal to the applicant’s case in Vyncan Pty Ltd, Hartley v Body Corporate for Nautilus On the Esplanade CTS 683[3], a decision of Mr Dorney QC. In that case too, the applicant sought to save itself the undoubted expense of a valuer’s report, but it was a false economy. Sympathetic as he may have been with the applicant’s “lament”[4] about valuers’ fees, the learned Member held that, in the absence of “cogent evidence”, the relevant part of the application must be dismissed. Examples of properly prepared cases are readily available.[5] Sympathy for recipients of valuers’ memoranda of fees cannot dispose of the fact that an intending litigant who is unable or unwilling to afford vital evidence is unable to afford the litigation.
[3][2009] QCCBCCM 30. See also Higham v The Body Corporate for the Palms 3 Warana [2011] QCAT 21.
[4][2009] QCCBCCM 30 at [33].
[5]See for examples Chesterton v Body Corporate for Kiwi Court CTS 12925 [2009] QCCBCCM 34; Mango Property Pty Ltd v Body Corporate for West End Central Commercial CTS 33391 [2011] QCAT 156; Maple v Body Corporate for Rutherford Apartments [2010] QCAT 520; Body Corporate No. 1 CTS 5908 v Di Marco Investments Pty Ltd [2010] QCATA 66.
However, instead of dismissing the application forthwith, I shall give Tradition Community an opportunity to consider its position, and, if it sees fit, to obtain, file and serve upon the Respondent a report by an appropriately qualified valuer. If that is not done within the time limited in the orders that follow, the substantive application (that is, the application for adjustment to interest schedule lot entitlements) will be forthwith dismissed, without any further hearing or order, but the parties’ respective applications for costs are adjourned, and may be re-listed by either party upon notice to the other party and to the registrar.
ORDERS
The application is adjourned.
The Applicant is at liberty to file in the Tribunal one copy and give to the Respondent one copy of a relevant market determination by a duly qualified valuer, by 4:00pm on 5 March 2012.
In default of compliance with Order 2, above, the application for adjustment to interest schedule lot entitlements shall, without further order, be dismissed.
Application and cross-application for costs adjourned, to be listed for hearing upon seven (7) days notice in writing by either party to the other, and to the Registrar.
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