Body Corporate for Club Tropical Resort v Commissioner of State Revenue [2014] QCATA 9

CITATION: Body Corporate for Club Tropical Resort v Commissioner of State Revenue [2014] QCATA 009 PARTIES: Body Corporate for Club Tropical Resort (Applicant/Appellant) v Commissioner of State Revenue (Respondent) APPLICATION NUMBER: APL002-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Hon J Jerrard QC, Member DELIVERED ON: 14 January 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for an extension of time within which to seek leave to appeal is allowed. 2. The applicant is granted leave to appeal. 3. The appeal is dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL – meaning of words “facility to further supply and further sell” in the Community Ambulance Cover Act 2003 (Qld) Community Ambulance Cover Act 2003 (Qld) ss 3, 12, 14, 22, 52, 53, 96, 105 Electricity Act 1994 (Qld) s 20 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 21 Monaghan v Bennett [2011] QCATA 078 Commissioner of Stamp Duties v Permanent Trustees Co Ltd (1987) 9 NSWLR 719 -- 1 of 16 -- 2 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), and a direction to that effect made on 13 April 2012. REASONS FOR DECISION [1] This matter involves 2 applications, one being an application for an extension of time within which to file an application for leave to appeal, and the second, an application for leave to appeal, or an appeal. The applicant in both is the Body Corporate for the Club Tropical Resort at Cairns (“the BC”) and it seeks leave to appeal from a decision of this Tribunal made in a matter GAR329-10 on or about 29 October 2011, and received by it on 1 November 2011. [2] The applicant BC is a body corporate under the Body Corporate and Community Management Act 1997 (Qld) (“the BCCMA”), for a mixed use complex called “Club Tropical Resort”, which comprises 57 separate lots, used mainly for residences, but some for businesses. The critical issue in the applications is the meaning of section 14(1)(d) of the Community Ambulance Cover Act 2003 (“the CACA”). The CACA (until it was repealed by the Community Ambulance Cover Repeal Act 2011) relevantly provided (in section 3) that: The objects of this Act are- a) To impose and collect a levy, to be known as the Community Ambulance Cover Levy, to fund ambulance services in Queensland; and b) To use the system of supply and sale of electricity as a basis for the imposition and collection of the levy. [3] Section 22 and the following sections of the CACA imposed a levy on “customer sale arrangements”, and section 52 of the CACA imposed a levy on “on-supply arrangements”. Those were defined in section 14 in these terms: 14. Meaning of on-supply arrangement (type 1) (1) An on-supply arrangement (type 1) exist for a separate area if the following circumstances apply – (a) electricity is being supplied to a person (the on-supplier for the on- supply arrangement) for the purposes of a building that includes the separate area; (b) the electricity is being sold to the on-supplier by an electricity retailer; (c) the supply of the electricity under paragraph (a) is measured by a meter; (d) the on- supplier has the facility to further supply and further sell some or all of the electricity for consumption at the separate area; (e) if the electricity is being consumed at the separate area, it is electricity that is being further sold to a person by one supplier for the consumption at the separate area. -- 2 of 16 -- 3 Examples of on-supply arrangements (type 1) – 1 Electricity sold by an electricity retailer to a shopping centre owner is further sold by the shopping centre owner for consumption at a shop in the centre. 2 Electricity sold by an electricity retailer to a body corporate for a residential building is sold by the body corporate to the building manager who further sells to an owner of a unit in the building. … [4] Section 12 of the CACA defined “separate area” in these terms: 12. Meaning of separate area A separate area is a building or part of a building in Queensland that is – (a) used, or, if not being used, available to be used, solely – (i) as a single self contained place of residence; or (ii) as a single place of business; or … and (b) wired for the supply to it of electricity. [5] Other relevant sections included section 53, which provided that “the levy imposed on an on-supply arrangement must be paid by the on-supplier for the arrangement” and section 105, which provided that if an electricity retailer became aware of a shortfall amount payable by a person, the electricity retailer must give the person written notice of the shortfall amount. Section 54 provided that a person must pay the levy for each on- supply arrangement for which the person was an on-supplier. It also provided that if a person was the on-supplier for 2 or more on-supply arrangements and a single billing arrangement was established for the purposes of the sale of electricity under all the on-supply arrangements, the establishment of the single billing arrangement did not affect the on- suppliers liability to pay the levy for each on-supply arrangement. [6] Section 96 of the CACA required an on-supplier to give to the relevant electricity retailer a return which gave details of: a) the number of on-supply arrangements; and b) number of exempt on-supply arrangements. [7] On 7 April 2009 Carla Tooth of Archers Body Corporate Management (“Archers”) completed a Community Ambulance Cover Form 21 (On- supplier Return), for the BC, which advised that the return must be completed “if you are an on-supplier” and that “you” must complete an “On-Supplier Return Form 21 for each electricity account for which you are an on-supplier and forward it to your electricity retailer or electricity provider.” (The form on its face had been prepared by the Queensland Government). It was sent to Ergon Energy. [8] The form advised that the return should be completed and forwarded:  within 90 days of becoming an on-supplier; -- 3 of 16 -- 4  within 28 days of the number of on-supply arrangements changing;  within 28 days of the number of exempt on-supply arrangements changing;  upon changing electricity retailer (or receiving a new electricity account number); or  if requested by your electricity retailer in writing. [9] Ms Tooth identified the electricity retailer or electricity provider in the form as “Ergon Energy” and provided an electricity account number, the name of the BC, and the address as 2 Wharf Street (corner Macrossan Street) Port Douglas. In the second part of the form the account number was repeated, the total number of on-supply arrangements was described as 57, exempt arrangements as 1, and the number of Levies payable as 56. She also wrote the words: Commencement date 7th April 2004. [10] The printed form advised as to the nature of an on-supply arrangement, namely that an on-supply arrangement exists where a person buys electricity for a building from an electricity retailer and has the facility to on-supply the electricity to separate areas in the building. The person who further supplies the electricity is called an “on-supplier”. It is an on-supply arrangement in respect of each separate area regardless of whether electricity is consumed in the separate area. (The form advised that the italicised words were defined in the “Definitions” section in the form). It also advised that an on-supplier was liable for the levy for each non-exempt on-supply arrangement which you are the on-supplier. However you may recover the levy amounts that you have paid from the owners or occupiers of the separate areas. Please refer to www.ambulancecover.qld.gov.au for more information. It advised that the return should be sent to the electricity retailer or electricity provider at the address shown on the electricity account. [11] The application in GAR329-10 was filed on 4 October 2010, and the named respondent, the Commissioner of State Revenue filed a written submission in response on 4 November 2010, and, additionally, a helpfully indexed list of documents provided by it pursuant to s 21 of the QCAT Act, (unhelpfully) describing those as provided by the “applicant”. [12] The file in respect of GAR329-10 records that directions were prepared requiring the BC to file and serve its response to the material filed pursuant to section 21(2) of the QCAT Act. The file also includes a submission, apparently filed on 10 December 2010 by the BC, which submission is declared to be “in response to” material filed by the Office of State Revenue “in accordance with s 21 of the” QCAT Act, and that response follows (for convenience) the paragraph numbers referred to in the Respondent‟s written submission, which written submission referred, at paragraph 27, to document 27 in the bundle of documents filed by the -- 4 of 16 -- 5 Commissioner under s 21 of the QCAT Act, referring to that document by its number. It is clear that the BC was supplied with the listed documents. [13] Those documents include a document (25) which is an email from Carla Tooth, describing herself as the Accounts Manager, for Archers Body Corporate Management, of Spence Street, Cairns, addressed to a Jessy Gill at the Queensland Treasury at the Office of State Revenue, Queensland Treasury, which says: Hello Jessy, We received your request in the mail today. I have attached the information you have requested and filled out as much information as I have. Please let me know if you require more. Regards Carla Tooth. [14] Document 24 in the bundle of annexures is the On-Supplier Return (in Form 21) purportedly filled out by Carla Tooth on 7 April 2009, and the document which is number 25 (the email described above) says that its subject is the “Community Ambulance Cover Act 2003 – On-supply arrangements”. Document 23 is an email from an Electricity Billing Officer, dated 28 May 2009, directed to the Grants and Subsidies Division (GAS) of the Commissioner of State Revenue, describing how that officer had received “an On-Supplier Return Form 21 back on 14/04/09 from the customer and rang & spoke with your office who advised that I should back charge the 56 levies payable 5 years.” This resulted in back charges totalling $26,491.64. Other material in the file held by QCAT establishes that Ergon issued an electricity account tax invoice to the BC on 6 May 2009, which included a levy adjustment of $26,491.64. [15] Document 22 in that bundle of annexures is a file note dated 1 June 2009, by Mr M Martin of the Office of State Revenue, recording details of a telephone call made to Archers Body Corporate (Cairns) in its capacity as account managers, to discuss “issues raised in email from gas division dated 29/05/2009 relating to on-supply arrangements for Tropical Cub Resort.” (sic) [16] The file note describes the persons contacted as “Carla Tooth & Stephen”. Someone has written in the surname McCullough in biro after the Christian name “Stephen” appearing in that file note, which otherwise refers only to either “Carla & Stephen” or (once only) to “Steven”. [17] That files note records that “Steven” explained that the body corporate for Club Tropical read the meters for each lot owner/occupier and provided those readings to Archers. Archers then invoiced each lot owner/occupier for the electricity consumed, and for the ambulance levy. The file note records further discussion about a “sample” invoice Archers had provided, and what it indicated, and Mr Martin wrote a note in these terms: I explained that an on-sale of electricity was in place as evidenced by these invoices and that the Ergon Energy electricity invoice they had provided indicated that a common account exemption was being claimed. -- 5 of 16 -- 6 [18] Mr Martin‟s reference in his file note of 1 June 2009, describing his conversations with Carla Tooth and Stephen McCullough, are probably a reference to the invoices which are numbered respectively 26, 27 and 28 in the bundle of attachments filed in this Tribunal by the Office of State Revenue on 4 November 2010, and which may be the “information” referred to by Carla Tooth in her email to that office dated 1 April 2009. Invoice number 26 in those attachments, and bearing date 1 April 2009, appears to be a copy of an electricity bill prepared for a lot owner/occupier in a building at the corner of Shields and Lake Streets in Cairns, (not the Club Tropical Resort which is situated on the corner of Wharf and Macrossan Streets, Port Douglas) and which invoice is from Archers, the invoice being for electricity. [19] Document 28 is a copy of an invoice from Ergon Energy to the Body Corporate for Club Tropical Resort addressed to it “C/- Archers Body Corporate Management”, dated as received on 9 March 2009, and that invoice from Ergon Energy – to the BC – records that Ergon regarded the Body Corporate as entitled to a “Community Ambulance Cover Exemption”. This is in contrast to the invoices, both dated 1 April 2009, sent by Archers to the lot owner/occupiers of the different lots at the building of Club Tropical Resort and the other building at the corner of Shields and Lake Streets, in which 2 invoices claims were made for the ambulance levy. [20] Those copies of those invoices demonstrate that Archers were doing what “Steven” was recorded as telling Michael Martin Archers were doing at the Club Tropical Resort, namely that “the body corporate for Tropical read the meters for each lot owner/occupier and provided those readings to Archers. Archers then invoiced each lot owner/occupier for the electricity consumed and for the ambulance levy.” It also appears that Archers did that for at least one other body corporate for which it was conducting management affairs (as demonstrated by the document annexure 26). [21] The reference to the Community Ambulance Cover exemption in the copy of the invoice from Ergon Energy to the BC, received 9 March 2009, is explained in the letter dated 28 July 2010 (a copy is “attachment 1” to the application for review filed on 29 September 2010 in Cairns – received in Brisbane 4 October 2010 – in which the body corporate sought to review that refusal decision by the Office of State Revenue). That letter included the following relevant statements: In the Body Corporate‟s situation, electricity retailer Ergon, sells electricity to the Body Corporate. This is evidenced by the tax invoice sent to the Body Corporate. The body corporate is liable for paying the tax invoice; s 53 of the Act. The Body Corporate then sells the electricity to the separate area. This sale is evidenced by the tax invoices sent to each of the owners of the separate areas by the Body Corporate. As well as being an on-supplier, the Body Corporate has a customer sale arrangement with Ergon in relation to the electricity consumption in the common facilities of the premises. Each customer sale arrangement is also liable for the levy however s 37C of the Act provides as follows- “A customer sale arrangement is an exempt customer arrangement if – -- 6 of 16 -- 7 (a) all electricity sold under the arrangement is sold for consumption at a multi-unit dwelling; and (b) the electricity is supplied for 1 or more of the following – (i) common facilities for the building (ii) 1 or more on supply arrangements; and (c) there is an electricity sale arrangement other than the customer sale arrangement, for each occupied separate area in the building. Due to the operation of s 37C of the Act, the Body Corporate‟s customer sale arrangement is exempt. [22] It appears from these provisions that a legislated policy of the CACA exempted the electricity bill supplied to a body corporate from the levy, while requiring the body corporate to pay the CACA levy on the electricity supplied to the individual lots. The letter dated 28 July 2010 included the following observation: Section 17 of the Act is relevant to note in this regard, especially example 1 which states- A body corporate for a residential complex could be both a relevant customer for a customer sale arrangement for the purchase of electricity from an electricity retailer for consumption in the residential complex, and also be an on-supplier for an on-supply arrangement for the further supply and sale of some of the electricity for the consumption at a residential unit in the complex. [23] Document 19 in the bundle of annexures recorded that on 29 June 2009, 4 weeks after the conversations between Mr Martin and “Stephen” and “Carla”, Mr Martin received and returned a phone call from the then Chairman of the Body Corporate for Club Tropical Resort, a Mr Holloway, and discussed with Mr Holloway the reason “why Ergon had advised them of an intention to disconnect electricity at the Resort.” [24] The next significant documents are emails between Mr Martin of the OSR and a Mr Barry Jones, (identified by Mr Martin as the director of Pent Pty Ltd, the trustee for the TNEPT Trust, which owned 5 units in the Club Tropical Resort); what Mr Jones wanted to know was the basis upon which “it was decided that the Body Corporate of Club Tropical Resort was an „on-supplier‟ as defined by the CACA”. Mr Jones invited Mr Martin to contact the Manager of the Body Corporate, Mr Stephen McCullough of Archers Body Corporate Management, for authorisation to provide Mr Jones with that information. [25] Mr Martin effectively responded by a letter dated 16 February 2010 (document 10 in the annexures), addressed to Mr McCullough of Archers Body Corporate, following a conversation between Mr Martin and Mr Stephen McCullough, initiated by Mr Martin. A file note (document 11 in the annexures to the respondents documents filed on 4 November 2010) records that Mr Martin had telephoned Mr McCullough, after Mr Barry Jones had requested details in an email relating to the issue of a shortfall notice in respect to on-supply arrangements existing at the resort complex. Mr Martin had wanted to ascertain from Mr McCullough whether Mr Jones was a committee member of the Body Corporate electricity -- 7 of 16 -- 8 account holder. Mr Martin‟s file note records that Mr McCullough had complained about the issuing of the notice by Ergon Energy, for an amount in excess of $30,000 in one lump sum, and had been advised by Mr Martin that the individual invoices “provided by him” showed an amount of ambulance levy had been charged to the lot owner/occupier, and had subsequently been collected and paid to the body corporate account holder. Mr Martin asked what had happened to those funds (which Mr Martin‟s file note records “should have been returned to the OSR.”) The file note recorded that Mr McCullough “stated that they would have been used for general funding with the body corporate being unaware of the requirement to return them to the OSR.” Following that, Mr Martin sent a letter dated 16 February 2010 to Mr McCullough and Archers Body Corporate, referring to previous correspondence and to the telephone conversation, and providing the definition of an on-supply arrangement, including the contentions that Ergon Energy supplied electricity to the BC for Club Tropical Resort (the on-supplier) and that Archers – as agent for the body corporate electricity account holder – issued individual invoices to each owner/occupier for the amount of electricity consumed, together with the amount of an ambulance levy payable for the period covered by the invoice. [26] That letter also contended that payments of these invoices, which were returned to the body corporate account holder “may have been used for general funding issues by the Body Corporate Club Tropical Resort in error.” It further advised that section 96 of the CACA required an on- supplier to give a relevant electricity retailer a return which detailed the number of on supply arrangements and the number of exempt on-supply arrangements. [27] On 3 March 2010 Mr Martin and Mr Jones spoke on the telephone, with Mr Jones advising Mr Martin (as recorded in a file note by Mr Martin – document 9 in that list of annexures filed by the respondent) that Mr Jones was of the opinion that a “sale” of electricity had not occurred. Then on 10 March 2003 Mr Jones wrote to Mr Martin, by email, describing how “Mr McCullough has kindly forwarded me a copy of your letter to him of 16 of last month, which, for ease of reference, I‟ve attached hereto.” That email is part of annexure 6. Mr Jones argued in that email, focussing on the terms of the CACA, that: the Body Corporate must be able to both „further supply and further sell‟ electricity which it purchases from Ergon onto the owners of the individual strata lots. [28] Mr Jones submitted that the body corporate was unable to do either of those 2 things because, (and Mr Jones referred to dictionary definitions of both sell and supply), the BC did not possess the electricity supplied to each individual strata titled lot. He argued: … a key element of possession is the possessor‟s ability to withhold supply and the Body Corporate has no ability to withhold the supply of electricity to an individual strata lot. [29] He further argued that the situation at the Club Tropical Resort was that (with the exception of 3 specified lots which each had their own account -- 8 of 16 -- 9 with Ergon) all of the electricity consumed within the other strata lot numbers was supplied directly to each by Ergon. The account for the supply, which was measured via a single Ergon fitted meter, was billed to the Body Corporate for convenience purposes only, in the submission of Mr Jones. Accordingly, he argued, the BC for the Club Tropical Resort was not an “on-supplier”, and not liable for the levies which had been backdated to April 2004. [30] Mr Martin‟s reply was that because the electricity account holder was the Body Corporate for the Club Tropical Resort, it had the right to object the decision made in regard to the existence of on- supply arrangement at the Resort, and that any further correspondence should be dealt with through the objection process. That resulted in a letter dated 11 March 2010, signed “for and on behalf of the Body Corporate for Club Tropical Resort,” by a signature which is identifiably that of Stephen McCullough, in which Mr McCullough objected to the assessment for the community ambulance cover levies back dated 5 years to April 2004, payable by the Club Tropical Resort, upon identical grounds to those urged by Mr Jones in the email 1 day earlier. That objection resulted in the decision published on 28 July 2010, disallowing the objection,” and relevantly quoting the definition of “separate area” in s 12 of the CACA, the definition of an on- supply arrangement (type 1) in s 14 of that Act; referring to s 52 and 53, and quoting s 5, which required that an on-supplier pay the levy for each on supply arrangement for which a person was an on-supplier; and the provisions of s 105(1) to the effect that if an electricity retailer becomes aware of a shortfall amount payable by a person, the retailer must give written notice to the person of the shortfall amount. It also quoted provisions in s 105(3) of the CACA, providing that that written notice might be included in an electricity account. [31] That letter contained the following statement: As the Body Corporate declared it commenced an on-supplier on 7 April 2004, Ergon calculated that the Body Corporate should have paid the levy from that date on each of its on-supplier arrangements. As a consequence, the total amount of levy outstanding, backdated to 7 April 2004 with $26,491.64. This was included in the tax invoice issued on 6 May 2009 in accordance with s 105 of the Act. [32] The decision discussed the arguments advanced by the BC as to the meaning of “sell”, and the argument advanced that the BC had not had possession of the electricity, supplied to the individual lot numbers, at any relevant time subsequent to that electricity. The author remarked that: … it is possible to sell something without having physical possession of that something. [33] The decision also quoted the argument by BC that electricity was supplied directly to each separate area by Ergon, which then billed the BC (measured by a single Ergon fitted meter) for „convenience purposes only‟. The decision continued: Whilst this situation may be convenient to the individual owners of the separate areas, it is also evidence of an on-supply arrangement. -- 9 of 16 -- 10 [34] The decision then cited from the examples of on-supply arrangements (type 1) in the CACA, particularly example 2, and there then followed the conclusion that: In the Body Corporate‟s situation, the electricity retailer Ergon sells the electricity to the Body Corporate. This is evidenced by the tax invoice sent to the Body Corporate. The Body Corporate is liable for paying the tax invoice; s 53 of the Act. The Body Corporate then sells the electricity to the separate area owners. This sale is evidenced by the tax invoices sent to each of the owners of the separate areas by the Body Corporate. [35] The decision then quoted from s 37C of the Act, and the unchallenged conclusion that the effect of that section was that the Body Corporate‟s own customer sale arrangement with Ergon was exempt from liability to pay the levy, and further quoted from section 17 of the CACA, and example 1 therein. The decision concluded: In summary, the Body Corporate is an on-supplier for the purposes of the Act and invoice for the levy back dated to 7 April 2004 has been correctly raised. [36] That resulted in an application for review, filed as described in this Tribunal on 4 October 2010, in which application Mr Barry Jones was nominated as the applicant‟s representative, with his business and mobile and fax numbers being supplied, accompanied by a carefully prepared written argument consisting of some 6 pages. That written submission included a history of the Club Tropical Resort Building, describing how it was purpose built in 1989 as an all suite hotel then comprising 50 rooms, 2 restaurants, 2 manager‟s apartments, a resort boutique, and a conference room. The argument informs that Ergon Energy (“Ergon”) had supplied the complex with its electricity since its construction, consumption of which was measured by an Ergon fitted meter. [37] The argument continued with the description of how the hotel had opened its doors for business just weeks before the 1989 airline pilot strike, which strike had restricted commercial passenger air services throughout Australia for the next 12 months, and was catastrophic for the hotel. In 1990 the complex was placed in receivership by its mortgagee (Westpac) and in 1993 Westpac sold the complex to Pent Pty Ltd (“Pent”), and the Ergon account was transferred into Pent‟s name as its newly registered proprietor. In 1994 Pent had received approval from the Shire of Douglas, for the complex to be strata titled, and 57 separate strata title lots were created, of which 52 were currently being used for short term residential accommodation, with the other 5 lots being used for various commercial/retail purposes. The argument described how it was not a condition of the Shire‟s approval that the new strata title lots were each to be provided with their dedicated electricity supply and accordingly the way in which Ergon supplied electricity to the complex was unaffected by the registration of the new Building Units Plan (“BUP”); that is, Ergon remained the single supplier of electricity to the complex as a single entity. [38] The written submission described how in the months after the registration of the BUP, Pent had sold all of the 52 residential lots to various third parties on a lease back arrangement, which leases had various -- 10 of 16 -- 11 commencement dates, with each lease expiring on 28 February 1999. Between 1994 and that date (28/2/1999), Pent had continued to operate the complex as a hotel. Its leases provided that it pay all the rates, taxes and strata levies raised directly in respect of the residential strata lots, as well as all expenses incurred by the complex as a whole (including electricity) for the duration of the lease term. For that reason, even thought the Body Corporate for Club Tropical Resort had come into existence upon the registration of the BUP, Ergon‟s electricity account for the complex had remained in Pent‟s name until the leases expired on 28 February 1999, after which date the account was transferred into the name of the body corporate. [39] The written submission contended that the transfer of the account name from Pent to that of the BC was “under the type of arrangement that‟s provided for in s 196(4) of the BCCMA”. The submission quoted that section, submitting that it applied to a community title scheme where, as was still the case at Club Tropical Resort, there is no practicable way available to the utility service provider to measure the extent to which the utility service is supplied to… each lot included in the scheme and … the common property and … the supply of the utility service to scheme land is charged according to usage. [40] The written submission continued: in such cases s196 stipulates that „a lot owner is liable to the utility service provider for a share of the total amount payable for the provision of the utility service to scheme land … and … the share is proportionate to the contribution schedule lot entitlement for the lot. [41] The written submission continued: Alternatively, s 196(4) provides that „the body corporate may, by arrangement with the utility service provider, take on liability for owners or occupiers for the lots for the utility service supplied for the benefit for owners or occupiers’ and s 196(5) that, if such an arrangement is in force „the utility service provider cannot separately charge the owners or occupiers for the utility service to which the arrangement relates, and the body corporate must satisfy the liability to the utility service provider out of (a) the contributions paid by lot owners to the body corporate under the regulation module applying to the scheme; or (b) a levy imposed on the individual lot owners … for lots which the body corporate has a way of measuring to extent to which the utility service is supplied to each lot – according to the extent of supply; and (c) for lots for which the body corporate does not have a way of measuring the extent to which the utility service is supplied to each lot – (i) equally between the lot owners; or (ii) proportionately among the lot owners according to the contribution schedule lot entitlement for each lot. [42] The submission contended that from 1/3/1999 the Ergon account was paid out of the quarterly contributions levied by the BC on each strata lot owner; this meant that the Ergon account was apportioned between the various strata lot owners in accordance with the contribution schedule lot -- 11 of 16 -- 12 entitlement for each lot, rather than in accordance with the electricity actually consumed within that lot. The submission contended that apportionment method was obviously inequitable, but that section 196 of the BCCMA required that it be done in that manner. Nevertheless, it had created considerable discontent among the residential strata lot owners, because of the simple fact that the 52 residential lots varied substantially both in size and in the number of days per billing period in which each lot had occupation. Further, while 3 of the 5 commercial/retail lots had higher contribution schedule lot entitlements, 2 of them operated as restaurants, and their usage of electricity was likely to be much greater, by far, than that consumed in any of the residential lots. The submission informed that: This situation continued until 2006 when in August of that year when it was informally agreed among a majority of lot owners that a flow meter would be installed for each lot and that the Body Corporate Manager would then allocate each future Ergon bill in accordance with the readings taken from those meters and raise an invoice to each lot owner for the usage so calculated. [43] The submission argues that the flow meters were fitted “retrospectively”, and that the ability of those meters to accurately isolate all of the electricity being consumed within the particular lot was highly questionable, and, if challenged by a lot owner, unlikely to be upheld in a “Court of Law”. The submission then referred to the definitions in the CACA and the absence of any statutory definition of supply or sell, about which submissions were made, based on dictionary definitions. The written argument accepted the statement in the decision under review that it was possible to sell something without having physical possession of it. Nevertheless, the written submission contended that for the BC to be able to “supply” electricity to the individual strata lots, the BC must first have possession of that electricity, and a capacity to withhold the supply of electricity – which it lacked – and that the BC was unable to “sell” electricity to the individual strata lot owners because they did not have first have ownership of that electricity. The written submission argued that at the Club Tropical Resort the electricity was supplied to the 57 strata lots by Ergon, directly and to each of those lots, but Ergon billed the Body Corporate for all of the electricity consumed within the complex (both within the strata lots and the common property), and the BC had levied each lot owner for the proportion of the Ergon bill, based on the flow meter reading. The submission contended that should the strata lot owner be unable to or refuse to pay their proportion of the Ergon bill, the BC had no means of withholding the supply of electricity to that lot. [44] The contents of the written submission which accompanied the application to review reveal that it was the work of Mr Jones, who refers to “What I was contending”, when making written submissions responding to the contents of the decision maker‟s letter dated 28 July 2010. That letter had (at page 4, at the foot thereof) rejected an argument made – purportedly by the BC – in the written objection dated 11 March 2010, which repeated the same submission made in person by Mr Jones by email on 10 March 2010. -- 12 of 16 -- 13 [45] The written submission in support of the application to review contained the following argument, put forward as a challenge to the proposition that the BC had the facility to further “sell” electricity to the separate area owners. The argument was: in response I submit that (rather than it „selling‟ electricity to the separate area owners) the Body Corporate is merely recovering from each strata lot owner their respective proportion of the amount invoiced by Ergon. The function of the Body Corporate in this instance is akin to that where, for the convenience of the restaurateur, one of a group of friends at a restaurant elects to pay the bill for the table and later recovers from each friend their respective share of the bill. In that very common situation the person who pays the table‟s bill is hardly considered to be “on selling” food to his friends merely by virtue of having collected payment from them of their share of the bill. [46] This analogy would be a good argument for the BC, were it not for the evidence in the invoices supplied (apparently, by Archers Body Corporate Management) to Ergon, and by the latter to the Office of State Revenue, which disclose on their face – as the Office of State Revenue has repeatedly asserted – that the body corporate charged each lot owner/occupier for a portion of the bill paid by the Body Corporate to Ergon, as permitted by the provisions of the BCCMA. This fact is asserted by Mr Jones in that written submission, and he gave an explanation as to why. The problem with the argument is that the provisions of the BCCMA, quoted by Mr Jones, recognise that a body corporate may, “by arrangement with the utility service provider” take on the liability of owners or occupiers of the lots “for the utility service supplied for the benefit for owners or occupiers.” The provisions in that Act – cited by Mr Jones – result in the position that the utility service provider (here, Ergon Energy) cannot separately charge the owners and occupiers of the individual lots for the utility service to which the arrangement relates, and the body corporate must satisfy the liability to the utility service provider. Provision is made in that legislation for the body corporate to impose a levy on individual lot owners or occupiers; and the body corporate must “satisfy the liability to the utility service provider out of” that levy. The written submission accompanying the application for review describes how such a levy was imposed after “informal” agreement among a majority of the lot owners” at some time after August 2006, (after flow meters were fitted to the lots) and that before then, from 1 March 1999, the Ergon account was paid out as a quarterly contribution levied by the Body Corporate on each strata lot owner. [47] Accordingly, the written submissions filed by Mr Jones supporting the application to review appear to overlook or ignore the provisions of the BCCMA, quoted by Mr Jones, making the BC liable for the utility service provided to the lot owners, from whom the BC is authorised by statute to repay itself, for the monies extended by it satisfying the utility service providers account. This submission also overlooks the fact that historically – on the information supplied by Mr Jones – the BC has shown that it can and does “facilitate” both the sale and supply of electricity to the individual lot owners and occupiers. It does so as envisaged by the provisions of the BCCMA, and Mr Jones made the submission that it did so “under the -- 13 of 16 -- 14 arrangement that‟s provided for in s 196(4)” of the BCCMA. The BC facilitates the sale and supply of electricity to each lot owner/occupier by Ergon, by paying the account delivered by Ergon to the BC, and causing each lot owner/occupier to be charged an amount considered proportionate to that lot owner/occupiers use of the electricity so provided by Ergon. The written submission of Mr Jones in this matter focus too much on the individual words “sell” and “supply”, appearing in the legislation, rather than the provision in the Act describing an “on-supply arrangement (type 1)” as existing for a separate area, if, inter alia, „the on- supplier has the facility to further supply and further sell some or all of the electricity for consumption at the separate area‟. The BC has demonstrated exactly that facility for a number of years, and it was not necessary, to have such a facility, that the BC had either ownership or possession at any earlier time of the electricity so consumed at each separate area. [48] The respondent Commissioner of State Revenue filed a written response to the application for a review, on 4 November 2010, in which it contended1 that the CACA should be applied and interpreted in the context of the Electricity Act 1994 (Qld) (“the Electricity Act”), which, the submission read, regulated the system for supply and sale of electricity in Queensland. The written submission did not identify any particular provisions of the Electricity Act which would have significance when construing the terms of the CACA. The applicant BC, in a written submission supporting the application for review under the hand of Mr Jones (“For and on behalf of the Applicant”), argued that if that contention was correct, then the definition of an “on-supplier” in the Electricity Act had to be taken into consideration, when deciding the review decision. [49] The applicant‟s written submission referred to the statutory definition of “on-supply” in the Electricity Act and other definitions in the Electricity Act, and submitted that the body corporate did not meet the definition of an “on-supplier” within the Electricity Act, as that definition required that a body corporate be either the owner or occupier of premises to which electricity was supplied. The argument by the applicant overlooked that the Electricity Act provided a definition of an “on-supplier”; the CACA Act provided instead a definition of an “on-supply arrangement (type 1)”. The learned Member who constituted QCAT to determine the review application did not consider it necessary to make a final ruling on the point, but was not satisfied that on the material the BC came within the terms of the definition in s 20 of the Electricity Act of on-supplier. The member went on to hold that “I do not accept that the Community Ambulance Cover Act 2003 and the Electricity Act 1994 need to be read together. The starting point in ascertaining whether the applicant is part on-supply arrangement is to first construe the Community Ambulance Cover Act 2003. Example 2 in s 14(1) of that Act makes it quite clear that the applicant as the body corporate, can be part of such an on-supply 1 In paragraphs 21-23. -- 14 of 16 -- 15 arrangement, and there is nothing in s 14(1) which makes me come to a contrary conclusion.” [50] The Member had reached a conclusion2 that the BC was a part of an “on- supply arrangement” within the meaning of s 14(1)(d) of the CACA. The Member held that the on-supply arrangement was the provision of electricity by the electricity retailer, Ergon Energy, to the applicant body corporate which further sold the electricity to the owners of units in the building. [51] The Respondent‟s written submission, contending that it is proper, when a number of Acts form a scheme of legislation, to look at the Acts comprising the scheme and interpreting them, referred to the decision of the NSW Court of Appeal in Commissioner of Stamp Duties v Permanent Trustees Co Ltd (1987) 9 NSWLR 719, and the applicant BC did not contest the applicability of the principle. I consider it appropriate when interpreting the provisions of the CACA, to have regard to the provisions of the BCCMA (as, apparently, on one occasion, did Mr Jones). [52] The grounds of appeal, in the application for leave to appeal, contend that the form 21 dated 7.4.2009 was completed by a “junior employee” of the applicants appointed manager. The grounds of appeal also contend that: This form was forwarded to Archers by Ergon and Ergon then pressured them to quickly complete it and return it to Ergon. [53] Mr Jones has not filed any affidavit or other written material which describes the pressure put on Archers by Ergon to complete quickly that return, but is on stronger grounds in the submission that “regardless of whether or not that employee was either authorised to make this declaration or competent to make it (and believe what they were declaring to be true and correct) the matter in issue is whether or not this employee’s declaration was, in fact, correct.” [54] I respectfully agree that was the issue, but that issue was decided by the learned Member, on the evidence, against the body corporate, and the decision is supported by the terms of the BCCMA, quoted by Mr Jones in these proceedings, and the history of the management of the resort also provided by Mr Jones. In the light of that history, there can be no doubt that the form was filled in accurately by Carla Tooth. [55] The written submission for the respondent refer, with respect to the relevant principles regarding an application for leave to appeal, to the judgment of this Tribunal in Monaghan v Bennett [2011] QCATA 078, and when a decision of this Tribunal would be to the public advantage, namely upon the proper construction of s 14(1)(d) of the CACA. I note that the Commercial Counsel for the respondent has written to this Tribunal remarking that: 2 At [24] of the review decision. -- 15 of 16 -- 16 The Commissioner has a particular interest in resolution of the appeal, as a matter concerns a point of public taxation administration. and contending that a copy of that letter had been forwarded to the applicant BC. [56] Because of the tenacity and skill with which Mr Jones has concentrated his arguments upon the meaning of the words “sell” and “supply”, overlooking the qualification of both of those by “for the facility”, I am persuaded that it would be appropriate to grant leave to the applicant to appeal, but that its appeal should be dismissed. I also consider that the applicant has shown sufficient grounds for an extension of time within which to lodge that application for leave to appeal, which was lodged approximately 1 month after the due date. I would grant that extension because the respondent had received an unsealed copy of the application for leave to appeal (without any supporting grounds), within the limitation period, so that the Respondent was notified of the Applicant‟s intention to seek leave to appeal within the limitation period. The applicant body corporate has provided an explanation for its delay, which explanation is not actually challenged by the respondent, and because of the importance of the issue of the construction of the CACA, I am prepared to grant the extension. Accordingly I order: 1. The application for an extension of time within which to seek leave to appeal is allowed. 2. The applicant is granted leave to appeal. 3. The appeal is dismissed. -- 16 of 16 --