Beaven and Anor v Hampton Court Apartments [2013] QCAT 63

CITATION: Beaven and Anor v Hampton Court Apartments CTS 15089 [2013] QCAT 63 PARTIES: Luke Beaven Christopher Beaven (Applicant) v Hampton Court Apartments CTS 15089 (Respondent) APPLICATION NUMBER: OCL073-12 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Sandra G Deane, Member DELIVERED ON: 5 February 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed. CATCHWORDS: Body Corporate – Application for adjustment to contribution schedule lot entitlements where scheme commenced before 14 April 2011 Acts Interpretation Act 1954, s 14B Body Corporate and Community Management Act 1997, ss 46, 46A, 47, 47B, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391 Gabrielli v Body Corporate for Nimolanca CTS 13318 (No 2) [2011] QCAT 63 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). -- 1 of 4 -- 2 REASONS FOR DECISION [1] This is an application under the Body Corporate and Community Management Act 1997 (BCCM Act) for adjustment of the contribution schedule lot entitlement (CSLE). [2] Hampton Court CTS consists of 14 lots. The Beavens own lot 14. [3] The Beavens seek to adjust the contribution schedule so that all the lots have an equal CSLE. Lots 1-12 have a CSLE of 1 each and lots 14 and 15 have a CSLE of 2 each. There is no lot 13. [4] The CSLE is generally the basis for calculating the lot owner’s share of the amounts levied by the body corporate and the value of the lot owner’s vote on ordinary resolutions if a poll is conducted.1 [5] The Body Corporate and Community Management Act 19972 sets out that in a CTS established after the commencement of s 46(7) of the BCCM Act the CSLE must be consistent with either the equality or the relativity principle. [6] The Beavens rely upon Gabrielli v Body Corporate for Nimolanca CTS 13318 (No 2) [2011] QCAT 63. This was a decision delivered on 23 February 2011. The BCCM Act has been amended since the Gabrielli decision was delivered. [7] The equality principle3 is the principle that lot entitlements must be equal except to the extent to which it is just and equitable for them not to be equal. [8] The relativity principle4 is the principle that the lot entitlements must clearly demonstrate the relationship between the lots by reference to relevant factors being: a) how the CTS is structured; b) the nature, features and characteristics of the lots; c) the purposes for which the lots are used; d) the impact the lots may have on the costs of maintaining the common property; e) the market value of the lots. [9] The CTS was established before the commencement of s 46(7) of the BCCM Act. There is evidence that the CTS was established in 1999. 1 Section 47(2) BCCM Act. 2 Section 46 BCCM Act. 3 Section 46A(1) BCCM Act. 4 Section 46A(2) BCCM Act. -- 2 of 4 -- 3 [10] There is no evidence before the Tribunal as to the CSLE applicable at that time. [11] Section 47B of the BCCM Act provides that an owner of a lot can apply to the Tribunal for an adjustment to the CSLE: a) where the CTS is affected by a material change since the last time the CSLE for the lots were decided; or b) where the CTS is established after the commencement of s 47B and the owner of a lot believes the CSLE are not consistent with the deciding principle for the lot entitlements. [12] There is evidence before the Tribunal that a new Community Management Statement was registered in 2001. This sets out the current CSLE. [13] There is no evidence before the Tribunal: a) of what changes were being registered; and b) of the last time the CSLE for the lots were decided. [14] Section 391 BCCM Act provides that ss 47A to 48 also apply to a CTS established before commencement ie before 14 April 2011. [15] This appears at odds with s 47B(2) which expressly refers to a CTS established after the commencement of the section. [16] I have had regard to the explanatory notes as I am permitted to do.5 The objectives are expressed to permit a limited ability to adjust contribution entitlements for schemes established before the commencement of the amendment Act. [17] Other than the express reference in s 47B(2) there is no reference to when the CTS was established in ss 47A to 48. [18] If s 391 was to override s 47B(2) this would give an extensive rather than limited right to adjust contribution entitlements. [19] In my view the preferable construction is that s 391 does not override the express limitation in s 47B(2) but was to clarify that the other provisions in s 47A to 48 which did not refer to when the CTS commenced were to apply generally. [20] In addition to s 47B of the BCCM Act, division 4 of the BCCM Act6 sets out provisions in relation to adjustment of CSLE for existing schemes where there has been an adjustment order. 5 Section 14B Acts Interpretation Act 1954. 6 Sections 378-390 BCCM Act. -- 3 of 4 -- 4 [21] There is no evidence before the Tribunal: a) in relation to a material change since the last time the CSLE for the lots were decided; b) which suggests there has been an adjustment order. [22] I therefore find that there is no basis upon which this Tribunal may order an adjustment to the CSLE. -- 4 of 4 --