Armenores v The Body Corporate for the Peninsula Community Titles Scheme 9865 [2011] QCAT 537

CITATION: Armenores v The Body Corporate for the Peninsula Community Titles Scheme 9865 [2011] QCAT 537 PARTIES: Mr David Armenores v The Body Corporate for the Peninsula Community Titles Scheme 9865 APPLICATION NUMBER: OCL097-11 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Member DELIVERED ON: 3 November 2011 DELIVERED AT: Brisbane ORDERS MADE: The time for lodging a request to record a new community management statement pursuant to s 385(6) of the Body Corporate and Community Management Act 1997 is extended to three months after the date on which the tribunal makes final orders in the proceeding. CATCHWORDS: BODY CORPORATE – where decision to return to pre-adjustment contribution schedule – where lot owner made application to change entitlements – where body corporate did not lodge request within 3 months – where applicant wanted to prevent the body corporate lodging request within time Body Corporate and Community Management Act 1997, ss 279, 385(6), 385(7), 358(8), 385(9), 388(8), 388(9), 389(4), 390 Queensland Civil and Administrative Tribunal Act 2009, ss 58, 61 -- 1 of 5 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] On 20 July 2009, a member of the Commercial and Consumer Tribunal, Mr Dorney QC (as he then was), ordered that the contribution schedule for the Body Corporate for the Peninsula Community Titles Scheme 9865 be adjusted. [2] At a meeting on 18 June 2011, the body corporate committee resolved to adjust the contribution schedule to reflect the scheme immediately prior to the tribunal‟s decision.1 [3] Section 385(6) of the Body Corporate and Community Management Act 1997 requires the committee lodge a request to record a new community management statement within 3 months of that decision. In the meantime, Mr Armenores brought an application under s 385(8)(b) for an adjustment to the pre-adjustment contribution schedule. [4] At Mr Armenores‟ request, the committee gave an undertaking not to request a new community management statement until after a committee meeting scheduled for 6 August 2011. [5] As a preliminary question, I am asked to decide “the section 385 issue”. Mr Armenores submits that, in determining the question, I should make the following orders: a) That the body corporate be restrained from taking any action (to record a community management statement that reflects the pre-adjustment entitlements) until the determination of final orders. b) That the body corporate be required to lodge a request to record a new community management statement within three months of the final order. c) That the body corporate may rely on these orders as a bar to any proceeding brought by lot owners under s 389(4) of the Body Corporate and Community Management Act 1997. [6] The reasons for the parties‟ interest in this question is the significant costs involved in recording a new community management statement, which may be duplicated if Mr Armenores‟ application is successful. [7] Mr Armenores submits, with some justification, that the 6-month period in s 385(6) is prohibitively restrictive once the tribunal becomes involved. [8] The body corporate submits that, once an application is filed, the committee is no longer bound to lodge a new community management statement within 3 months. 1 Pursuant to s 385(4) Body Corporate and Community Management Act 1997. -- 2 of 5 -- 3 [9] Section 385(7) provides that s 385(6) will not apply (and the body corporate will not have to request a new community management statement within 3 months of the decision) if: a) the tribunal makes an order for an adjustment of the contribution schedule before the end of the 3-month period; and b) the order provides for a change to the contribution schedule lot entitlements. [10] Section 388(8) provides that, if the tribunal makes an order adjusting the contribution scheme, the body corporate must lodge a request to record a new community management statement within 3 months after the order is made. Section 388(8) does not apply, and a body corporate will not have to lodge a request, if the tribunal‟s order is the same as the contribution entitlement contemplated by the body corporate under s 385(6).2 [11] Section 385(7) makes sense. There is no point in recording a new community management statement if it will be replaced by another community management statement within a short period of time. [12] I consider that the body corporate‟s submission is misconceived. The Act does not release it from the obligation to lodge a request for a new community management statement except in limited circumstances. Those limited circumstances do not apply here. [13] The business of a body corporate must go on. While it is reasonable to assume that the business of a body corporate can continue for three months while there is some doubt about which contribution schedule operates, any longer period must start to cause difficulties. The committee must send notices to lot owners requiring payment of the contribution schedule, prepare financial reports for the current financial year and budgets for the next financial year. A lot owner‟s attitude to the financial records and budget will be coloured by that owner‟s individual liability to contribute. [14] The Act specifically allows the body corporate to “hold off” if, within the 3- month period, the tribunal determines that another contribution schedule should apply. The omission of any mechanism to deal with a longer period does not seem to me to be an omission or oversight. Rather, the interaction between ss 385(7) and 388(9) leads me to the conclusion that the Legislature did intend that the body corporate would request the pre- adjustment contribution schedule be recorded while it was waiting for a decision by the tribunal. [15] My view of the interaction between ss 385(7) and 385(9) is confirmed by s 390. The body corporate is responsible for the costs of dealing with a motion to revert to the pre-adjustment contribution schedule and the costs of preparing and recording the new community management statement.3 That obligation does not extend to the costs associated with an application such as Mr Armenores has made. It is conceivable, although not 2 Section 388(9). 3 Section 390(1). -- 3 of 5 -- 4 inevitable, that “the costs associated with an application” would include the costs of a further new community management statement. [16] Mr Armenores has referred the tribunal to the decision of Shaftson Towers4. In that case, the debate was, as here, whether the adjustment was a decision of a court, tribunal or adjudicator or whether it was simply an order giving effect to an agreement. The adjudicator ordered that, pending a final determination, the body corporate was not to lodge a new community management statement to re-adjust the lot entitlements. The order remained in effect for two months only. The decision was made on the basis that: a) Significant cost and inconvenience would flow if the body corporate actually lodged the community management statement, adjusted levies accordingly and then had to lodge a new community management statement and readjust owners‟ levies. b) The issue in dispute appeared to be “so simple”. c) If the parties were unable to resolve the dispute, a final order could be made “in the near future.” [17] The adjudicator in Shaftson Towers relied on the power to make interim orders contained in s 279. Section 279 allows an Adjudicator to make an interim order if the Adjudicator is: satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. [18] No such power is granted to the tribunal by the BCCM Act. However, the President, Justice A Wilson SC has clearly articulated the approach in situations such as this5: “QCAT can exercise the original jurisdiction conferred by an enabling Act if an application is brought to it: s 15. In exercising that jurisdiction QCAT may perform the functions upon it by the QCAT Act or the enabling Act: s 16. Under s 9(4) the Tribunal also has jurisdiction to „…do all things necessary or convenient for exercising its jurisdiction‟. The Tribunal‟s powers relevantly include, under s 60, the traditional equitable powers of courts to make declarations and, under ss 58 and 59, to make interim orders or grant injunctions.” [19] The tribunal‟s powers to grant an interim order are contained in s 58(1) of the Queensland Civil and Administrative Tribunal Act 2009. The power can be exercised if the tribunal considers that an order is in the interests of justice including, for example: a) to protect a party‟s position for the duration of the proceeding; or b) to require or permit something to be done to secure the effectiveness of the exercise of the tribunal‟s jurisdiction for the proceeding. [20] The tribunal has power to grant injunctions6 and make declarations7 but they are powers that can only be exercised by a judicial member of the tribunal. 4 [2011] QBCCMCmr 320 5 McDonald’s Australia Ltd v Emaaas Pty Ltd [2011] QCAT 293 at [24], [25] -- 4 of 5 -- 5 [21] The tribunal also has the power to extend a time limit fixed by an enabling Act.8 An extension may be given even if the relevant time for complying with the relevant requirement has passed.9 The tribunal cannot extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.10 [22] I am not persuaded that the parties view the issues in the present application is “so simple” but, logically, there are good reasons to make orders which do not require the body corporate to lodge a request for a new community management statement until final orders have been made: a) The final hearing is set down for hearing on 1 February 2012. b) No lot owner has applied for an order under s 389(4) requiring the body corporate to lodge the request. c) Neither the body corporate nor Mr Armenores want the body corporate to incur the expense of lodging the request for the new community management statement until final orders have been made. d) There is no suggestion that any party will suffer prejudice by delaying the request for a community management statement. [23] As the body corporate has shown no inclination to apply to record the new community management statement, I do not consider it necessary to grant an injunction. Given the powers available under s 61 of the QCAT Act, the appropriate solution is simply to extend the time for lodging a request to record a new community management statement pursuant to s 385(6) of the BCCM Act to three months after the date on which the tribunal makes final orders in the proceeding. 6 Section 59 QCAT Act. 7 Section 60 QCAT Act. 8 Section 61(1)(b) QCAT Act. 9 Section 61(2) QCAT Act. 10 Section 61(3) QCAT Act. -- 5 of 5 --