Webb v The Body Corporate for Riverplace Community Titles Scheme
[2012] QCAT 189
•9 May 2012
| CITATION: | Webb v The Body Corporate for Riverplace Community Titles Scheme [2012] QCAT 189 |
| PARTIES: | Leann Maree Joy Webb |
| v | |
| The Body Corporate for Riverplace Community Titles Scheme |
| APPLICATION NUMBER: | OCL003-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 9 May 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application dismissed. 2. No order as to costs. |
| CATCHWORDS: | Application to disallow reversion to pre-adjustment order position – whether removal of a unit effected a material change after pre-adjustment order entitlements decided – whether change significant Queensland Civil and Administrative Tribunal Act 2009, ss 32, 60 |
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
Leann Maree Joy Webb, the Applicant, owns a unit in “Riverplace”, a 38-level apartment tower in central Brisbane, established in 2002. The scheme comprises 314 residential units and 7 villas. Larger units, numbered 318 to 326, on the levels 36-38 of the tower, are described as penthouses. One such Unit is the Applicant’s.
Originally Unit 8 was designed as a caretaker’s residence, but it proved unsuitable for that purpose. In 2004 it was annexed to common property. Part of the former Unit 8 was devoted to improved recreation facilities, and at present the rest is fallow.
In 2010 Mr Rablin, a penthouse owner, successfully applied to this Tribunal for an adjustment of lot entitlements (“the new regime”).[1] His share of the communal expenses then fell from .899% to .439%. The Applicant and other penthouse owners enjoyed similar reductions.
[1] Rablin v The Body Corporate for Riverplace Apartments [2010] QCAT 303.
But their serendipity was not long-lived. In April 2011 important changes were made to the Body Corporate and Community Management Act 1997 (BCCMA).[2] It became possible for any eligible[3] unit holder in a scheme subject to an adjustment order to request the committee or body corporate to return to the scheme’s pre-adjustment order entitlements[4] (“the old regime”), provided that:
(i) a lot in the existing scheme had not subsequently been subdivided[5];
(ii) two or more lots had not been amalgamated[6];
(iii) no lot had undergone a boundary alteration[7];
(iv) no material change was made to the scheme after the old regime was established.[8]
[2]Body Corporate and Community Management and Other Legislation Amendment Act 2011.
[3] As to eligibility see BCCMA, s 379.
[4] BCCMA, s 379(2).
[5] BCCMA, s 381.
[6] BCCMA, s 382.
[7] BCCMA, s 383.
[8] BCCMA, s 384.
This case turns on proviso “(iv)”.
The BCCMA defines “material change” for its purposes as follows:
“a change that has, or may have, a significant effect on the contribution schedule lot entitlements for the lots included in the scheme, including, for example
(a) the addition of 1 or more lots, other than by a subdivision not involving the addition of a subsidiary scheme; or
(b) the removal of 1 or more lots, other than by an amalgamation.”[9]
[9] Schedule 6 (definitions).
Understandably, unit owners in this and other schemes who stand to benefit from a reversion to an old regime have been astute to use the 2011 amendments; equally understandably, those who prefer later allocations of financial responsibilities are anxious to avoid the impact of those amendments.
In this case, the respondent Body Corporate, upon a motion proposed by an eligible owner under s 379(2), resolved to return to the old regime.
The Applicant effectively asks the Tribunal to set that resolution aside, and to retain and confirm the new regime of 2010. The Applicant submits that the relevant resolution is invalid because
(a) notices of the motion did not disclose the name of the proponent; and
(b) the Respondent failed to take into account material changes that occurred after the pre-adjustment order entitlements were decided.
Non-Disclosure of Identity of Proponent
This point may be disposed of quickly. The Respondent submits, correctly, that section 379 does not require disclosure of the name of an owner seeking a return to the old regime[10], and the Applicant now concedes that that is so.[11] The Applicant does not dispute the Respondent’s claim that it duly satisfied itself that the persons who proposed the motion (W and S Fischmann, Unit 64) were eligible to do so.
[10] Response, 6 March 2012 paragraph 25.
[11] Applicant’s submissions filed 30 March 2012, paragraph 41.
Material Changes?
The Applicant submits that the following events are material changes within the meaning of section 384:
(a) The elimination of Unit 8 and amalgamation with common areas;
(b) An increase in operating costs due to expansion of gymnasium facilities;
(c) Anticipated future costs of refurbishing part of the former Unit 8 not devoted to the gymnasium;
(d) An increase in operating costs due to expansion and improvement of common areas;
(e) Rises in maintenance costs;
(f) Removal of priority lift access to penthouses;
(g) Upgrading of carpets in common areas to the disproportionate benefit of non-penthouse (“standard”) units.
Item “(f)” may be immediately set aside. The Respondent says that priority lift access to penthouses has never existed,[12] and the Applicant accepts that proposition.[13]
[12] Respondent’s response 6 March 2012 paragraph 61.
[13] Applicant’s submissions filed 30 March 2012, paragraph 63.
If the Applicant is entitled to a remedy with respect to any or all of items “(b)”, “(c)”, “(d)”, “(e)” and “(g)” above – namely rising costs, maintenance or refurbishments – it is to be found in section 48 of the BCCMA, not in section 384. In my view those items are not material changes within the meaning of the Act. In that regard, unless and until I am set right by higher authority, I adhere to my reasons and conclusion in Heaton v Body Corporate for Windsong Apartments.[14] I shall not prolong this decision by reciting them here; they are on the public record.
[14] [2012] QCAT 45.
However, item “(a)” – the removal of Unit 8 – requires further consideration. In my view, if the Applicant is to succeed, it must be upon her submission, based on section 384[15], that the abolition of Unit 8 was a material change, made after the pre-adjustment order entitlements for “Riverplace” were decided.
[15]As the Applicant “generally agrees”: Applicant’s submissions filed 30 March 2012, paragraph 38.
Is the Change “Material”?
The Respondent’s answer to this question is a confession and avoidance. It admits, as it must, that the removal of Unit 8 was a “removal of 1 or more lots, other than by an amalgamation”[16], but says that that removal did not have a significant effect on the contribution schedule lot entitlements (CLSEs) of the scheme.[17]
[16]As in example “(b)” accompanying the statutory definition of material change” in BCCMA, Schedule 6.
[17] Definition of “material change” BCCMA, Schedule 6, emphasis added.
In support of that submission, the Respondent notes that the removal of Unit 8 reduced an original total of 19,413 CSLEs by a mere 71, and that, of the 71, eighteen were added to Unit 19 (the caretaker’s unit), leaving 53 to be shared among 320 owners.[18] The result, in monetary terms, was that the average contribution for units increased by just $20.31 per annum (39 cents per week). The Applicant accepts those figures, but replies that she, as owner of Unit 322, became liable for an extra $49.34 per annum (94.8 cents per week) – more than double the average rise.[19]
[18] In Respondent’s response 6 March 2012 paragraph 43(b).
[19] Applicant’s submissions filed 30 March 2012, paragraph 53.
The question, then, is whether those increases are to be regarded as a significant effect of the removal of Unit 8.[20] “Significance” is, of course, a matter of judgment and degree, with an unavoidable element of subjectivity, but I am not persuaded that an average increase of 39 cents per week (or even 94.8 cents per week for penthouse owners) is a “significant effect”, within the meaning and intent of the Act.
[20] As the Applicant recognises: Applicant’s submissions filed 30 March 2012, paragraph 48.
It follows, then, that the removal of Unit 8 is not a “material change” after the old regime was decided, and therefore section 384 does not apply. Accordingly, I find that the subject resolution of the Respondent is valid, and that the old regime is restored.
The Applicant makes a broad complaint that the current Act is arbitrary and unfair and its application should be limited.[21] One may readily understand the chagrin of an owner who suddenly discovers that one eligible person can precipitate a reversion to an old regime that is less favourable to the party aggrieved. But in the nature of our legal system these are arguments to be addressed to legislators, not to courts or tribunals.
[21] See her submissions “Background and Introduction” and paragraph 47.
The Respondent seeks an order in these terms:
That the contribution schedule lot entitlements as set out in the committee’s notice of 23 December 2011, being the lot entitlements identified in the community management statement referred to ... have been determined in accordance with the BCCMA and that a new community management statement containing those lot entitlements be recorded for the scheme.
Such order would be in the nature of a declaration. That is a form of relief that I am unable to award in this branch of the Tribunal’s jurisdiction.[22] A dismissal of the application will suffice.
[22] See QCAT Act, s 60(5); compare and contrast Retail Shop Leases Act 1994, s 83(1).
There is no application for costs.
ORDERS
The application is dismissed.
No order as to costs.
1
2
0