Williams v Body Corporate for Magic Mountain Apartments Two
[2013] QCATA 217
•22 July 2013
| CITATION: | Williams v Body Corporate for Magic Mountain Apartments Two [2013] QCATA 217 |
| PARTIES: | Paul Williams (Appellant) |
| v | |
| Body Corporate for Magic Mountain Apartments Two (Respondent) |
| APPLICATION NUMBER: | APL204-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 22 July 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 22 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for leave to appeal is dismissed. |
| CATCHWORDS: | Body Corporate and Community Management Act 1997 – 2013 amendments – contribution schedule of lot entitlements – request to body corporate to revert to arrangements as before last adjustment order – refusal of Commissioner to intervene – application for leave to appeal or to appeal – whether Tribunal has jurisdiction – jurisdiction excluded by 2013 amendments – no jurisdiction to give advisory opinions or to entertain policy arguments contra legislation – application dismissed Queensland Civil and Administrative Tribunal Act 2009, ss 32, 102 Body Corporate and Community Management and Other Legislation Amendment Act 2013, ss 2, 12, 13 O’Connell v Williams [2012] QCATA 134 Draper v British Optical Association [1938] 1 All ER 115 |
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
The applicant invites the Tribunal to answer hypothetical questions, and to disregard or reinterpret legislation on policy grounds. The Tribunal has no jurisdiction to provide such services. For the reasons following, this application must be dismissed.
The applicants own a unit in the residential complex known as Magic Mountain Apartments Two (“Magic Mountain”), at Nobby Beach, Gold Coast.
On 7 July 2003 the District Court at Southport, pursuant to section 46(1)(a) of the Body Corporate and Community Management Act 1997, (“the Act”) as it then stood, adjusted Magic Mountain’s contribution schedule of lot entitlements.
Pursuant to successive orders of an adjudicator, the Magistrates Court and this Tribunal[1], the applicant secured a reversal of the 2003 adjustment order according to section 379(2), as it then stood:
The owner of [a] lot may submit a motion proposing the adjustment of the contribution schedule for the existing scheme to reflect the pre-adjustment order entitlements for the scheme ... to [the] committee for the body corporate ...
[1] Williams v Magic Mountain Apartments 2 [2011] QBCCMCmr 511; Magistrates Court
order 5 June 2012 (administrator appointed); O’Connell v Williams [2012] QCATA 134; Yates & Anor v Williams (No 2) [2012] QCATA 048.
The law changes
However, on 27 March 2013[2], the Act was amended to negate the former section 379[3] and to provide:
An owner of a lot ... may submit a request to the committee ... for the body corporate proposing an adjustment of the contribution schedule lot entitlements ... to reflect the last adjustment order entitlements for the scheme.[4]
[2] Body Corporate and Community Management and Other Legislation Amendment Act
2013 (“the 2013 amendments”) s 13.
[3] The 2013 amendments s 12.
[4] Section 409(2).
On 12 April 2013 two unit holders, Ian Craig Leslie and Janice Frances Leslie, requested the Body Corporate committee to revert to the regime established by the order made by the District Court on 7 July 2003. Mr Leslie was the applicant for that order.
Naturally, the applicant strongly opposes the effective reversal of the restoration of pre-July 2003 contributions that he secured in 2012. Plainly he regards the recently amended law as arbitrary and unfair. No doubt other unit holders felt the same when the former section 379 enabled one owner (perhaps among hundreds) to upset the existing scale of contributions. But these considerations do not entitle the Tribunal to disregard the present law.
Exclusion of Commissioner’s and QCAT’s jurisdiction
On 10 May 2013 the applicant asked the Commissioner for Body Corporate and Community Management (“the Commissioner”) for an order staying any action under section 409, and contending that the “last adjustment order” was not the District Court order of July 2003, but rather the order of the Commissioner’s adjudicator on 17 November 2011.[5]
[5] Williams v Magic Mountain Apartments 2 [2011] QBCCMCmr 511 (Miskinis,
Adjudicator).
On 22 May 2013 the Commissioner rejected that application, holding that it was precluded by section 412(5), inserted by the 2003 amendments. Subject to exceptions now immaterial, that subsection provides that neither a department adjudicator, nor QCAT, has jurisdiction to deal with a dispute about entitlements changed by a committee or body corporate, pursuant to new[6] sections 409-411.
[6] I.e. sections inserted by the 2003 amendments.
Last adjustment was in 2003
As a matter of law, the only adjustment order made – and hence the last adjustment order within the meaning of section 409 – is the District Court order of 7 July 2003. The departmental adjudicator’s order in 2011[7] was not an adjustment order, but an order appointing an administrator to ensure compliance with the former section 379, when the committee refused or failed to do so. The Act[8] defines “last adjustment order” as:
the last adjustment order made in relation to the contribution schedule for the scheme before the commencement[9] of Part 9 Division 4.
[7] Williams v Magic Mountain Apartments 2 [2011] QBCCMCmr 511.
[8] Section 400, emphasis added.
[9] 14 September 2012, see 2003 amendments s 2(1).
Section 378, defining “adjustment order” also limits the term to contribution schedule changes.
It follows that this Tribunal has no jurisdiction to entertain the application for leave to appeal filed on 15 May 2013.
Furthermore, the Tribunal has no jurisdiction to give advisory opinions or answer hypothetical questions[10], or to substitute its own policies for those of the legislature, or to anticipate changes that may or may not be made to the Act “later this year”. The Act must be applied as it stands. The applicant’s case is not advanced by such extravagant rhetoric as “indefensible hypocrisy”, “a conflicted ambiguous Act”, “legislative thuggery” or vague and misconceived allusions to fair trading laws. I note that the Body Corporate does not press for costs on this occasion, but that is a future possibility[11] that the applicant could usefully bear in mind.
[10] Draper v British Optical Association [1938] 1 All ER 115; Mellstrom v Garner [1970] 2
All ER 9 (retired partner sought construction of a no-competition agreement, without
any real intention of testing the restriction); Luna Park Ltd v The Commonwealth (1923)
32 CLR 596 at 600 per Knox CJ.
[11] QCAT Act s 102.
The application must be dismissed for want of jurisdiction. There will be an order accordingly.
ORDER
The application for leave to appeal is dismissed.
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