Blackwell v Body Corporate for Sandvue Gardens Bargara [2010] QCAT 657

CITATION: Blackwell v Body Corporate for Sandvue Gardens Bargara [2010] QCAT 657 PARTIES: Ms Amanda Louise Blackwell v Body Corporate for Sandvue Gardens Bargara Body Corporate CTS 36260 APPLICATION NUMBER: OCL082-10 MATTER TYPE: Other civil dispute matters HEARING DATE: 23 December 2010 HEARD AT: Brisbane DECISION OF: Anne Forbes, Member DELIVERED ON: 23 December 2010 DELIVERED AT: Brisbane ORDERS MADE: The Application is dismissed. CATCHWORDS : Application for adjustment of contribution schedule lot entitlements – community title scheme of 3 lots –first contribution schedule provided for unequal contribution due to expected difference in impact on body corporate budget – schedule adjusted in 2008 to position of equal contribution by resolution at AGM of committee of body corporate - application to restore contribution schedule to earlier position – no cogent evidence of differential impact of difference in age ad construction materials – application dismissed – Body Corporate and Community Management Act 1997: s 49. APPEARANCES and REPRESENTATION (if any): On the papers -- 1 of 5 -- OCL082-10 / Page 2 of 5 REASONS FOR DECISION [1] The Applicant, Ms Amanda Blackwell is one of two joint owners of Units 2 and 3 in Sandvue Gardens at Bargara in Queensland. On 15 July 2010 she filed an application in this tribunal seeking an order under the Body Corporate and Community Management Act 1994 (“the BCCM”) that : ” …the lot entitlements be set back to the original format as on the First Community Statement.” [2] Sandvue is a small community titles scheme comprising just three residential units.[1] The Respondent body corporate, Bargara Body Corporate, is a management company retained by the lot owners; it is content to abide the Tribunal’s decision. Ms Bronwyn Chisholm, the owner of Lot 1, has elected to become a Respondent and opposes the Application. In accordance with directions, both owners have filed statements and supporting documents. The Background, structure and features of the scheme [3] Lot 1 (“Unit 1”) is a detached single storey weatherboard cottage, said to have been built approximately 60 to 80 years ago with a steel clad garage. Lots 2 and 3 (“Units 2 and “) are semi detached duplex dwellings built in July 2006. Their external walls are of compressed fibro sheeting, rendered and painted. [4] Mr and Mrs Blackwell formerly resided in the cottage and were the original developers of the scheme, registered in 2006. The contribution schedule lot entitlement [“the CSLE”] for the first Community Management Statement was as follows: Lot 1 3 Lot 2 1 Lot 3 1 [5] The original schedule includes a comment on the nature, features and characteristics of the lots justifying a departure from a position of equality in the contribution schedule. In summary it states that: “The Body Corporate is responsible for the repair and maintenance of the common property…[including] the external walls of the building, roofs, balustrading, utility infrastructure and utility services. One of the units is of a different construction type and will require additional sinking fund requirements,” and “On the basis of these factors it is just and equitable for there to be a variation in the contribution schedule lot entitlements …because the above three factors all place a differential burden on the costs of the Body Corporate for the repair and maintenance of the common property.” [1] The word “Unit” is used throughout this decision where necessary in preference to the word ”Lot”. -- 2 of 5 -- OCL082-10 / Page 3 of 5 [6] On 1 February 2008 Mr & Mrs Blackwell were joint owners of all three Lots. At the Annual General Meeting that day Mr Blackwell represented the owners on the committee when a resolution was passed for the recording of a new community management statement amending the CSLE to provide equal entitlements of 1 to each Lot. [7] Ms Chisholm purchased Unit 1 by a contract of sale signed by the parties on 4 February 2008. The Applicant’s Case [8] Ms Blackwell alleges that the dwelling Lot 1 “is over 80 years old and requires a lot of maintenance and repairs.” She states that she was a member of the executive committee of the body corporate. She says that she did not attend the meeting of 1 February 2008 because she was not notified of the date or agenda. She says, further, that she did not receive a copy of the minutes of that meeting. She complains that the lack of an opportunity to vote thereat was a denial of natural justice. She states that she did not give Mr Blackwell her proxy, and did not consent to the recording of a new community management statement which, in her view, is not fair and equitable. [9] Ms Chisholm bought Unit 1 in February 2008 and according to Ms Blackwell, was well aware of the difference in the maintenance requirements between Unit 1 on the one hand, and Units 2 and 3 on the other, as she secured a reduction of $4,000 in the purchase price to enable her to attend to some rectification work. [10] Ms Blackwell says that there are insufficient funds in the body corporate account to carry out all the maintenance required on Unit 1. She provides several quotations for restumping, and guttering for that building, but no evidence that the work has actually been performed. The Respondent’s Case [11] Ms Chisholm contends that: • the CSLEs should remain equal and should not be returned to the entitlement under the first community management statement. She asks why Ms Blackwell has not applied to have the interest lot entitlement altered as well; • there is no evidence that the original allocation of CSLEs was fair and equitable, not any expert evidence to support that allocation; • Ms Blackwell’s complaint that she (Blackwell) was denied a vote at the meeting on 1 February 2008 is irrelevant. The contract of sale of Unit 1 by the Blackwells to Ms Chisholm and the accompanying statutory disclosure statement clearly reveal the CSLEs of the Units and the aggregate number of units in the scheme. Ms Blackwell signed the sale contract on 4 February 2008, three days after the meeting of 1 February 2008; • she has asked for maintenance to be performed on Unit 1, but this has been refused by the owners of Units 2 and 3. -- 3 of 5 -- OCL082-10 / Page 4 of 5 [12] Ms Chisholm poses the rhetorical question: ”Which lot is going to require more maintenance and upkeep in the future? The “100 year old cottage” with its weatherboard exterior or the “modern apartments” with their rendered fibro cement.” and answers it in this way: “I contend the upkeep on both buildings would be comparable as once the maintenance on Lot 1 is brought up to a standard equivalent to lots 2 & 3, then painting will occur on a regular basis, stumps and gutters and roofs will be maintained on a regular basis; termite inspections/treatment will be undertaken on a regular basis.” Legislation [13] The BCCM provides three criteria to guide the Tribunal in an application for an order for adjustment of a CSLE.[2] They are: • how the community titles scheme is structured; and • the nature, features and characteristics of the lots included in the scheme; • and the purposes for which the lots are used. [14] Guidance in the interpretation of section 49(4) is to be found in Fischer & Ors v Body Corporate for Centrepoint Community Title Scheme 7779 [2004] QCA 21, as follows: o The starting point is that the entitlements should be equal; o A departure from that principle is warranted when it is just or fair to recognise inequality; o The allocation of lot entitlements is to be made on the basis of the impact that individual apartments make upon the cost of operating a community titles scheme; o The matters referred to in section 49(4) may be considered only to the extent that they affect the cost of operating the community titles scheme and o “More general questions of amenity, value or history are to be disregarded”.[3] Consideration and Findings [15] Ms Chisholm’s concern that the application does not also seek an adjustment of the interest schedule is immaterial. That schedule is the basis for [2] BCCM s 49(4) [3] Fischer & Ors v Body Corporate for Centrepoint Community Title Scheme 7779 [2004] QCA 21 at paragraph [26]. -- 4 of 5 -- OCL082-10 / Page 5 of 5 calculating the owners’ shares of common property and common assets when the scheme is terminated. That is not the position here. [16] Ms Blackwell states that she is now divorced from Mr Blackwell and that they are engaged in an unresolved matrimonial property dispute. He is still a joint owner of Units 2 and 3, but is not a party to this application. [17] Although Ms Blackwell now professes some concern about the validity of the resolution of 1 February 2008 she clearly endorsed it by executing a contract of sale which discloses the effect of the resolution, three days later. [18] While there is some evidence that maintenance is currently needed on Unit 1, I am not persuaded that a return to the former position is just and equitable. The allocation of entitlements in 2006 was supported by nothing more than a brief assertion in the Schedule to the first Community Management Statement, but in any event the history of the scheme is not a relevant consideration. [19] Ms Chisholm’s answer to her rhetorical question (above) concedes that the maintenance of Unit 1 might weigh more heavily on the body corporate’s budget. In the light of this concession, her bald assertion that this situation is not ongoing is not convincing. [20] Appendix 11 to Ms Chisholm’s statement is the body corporate report on the management of funds of Sandvue from 1 February 2009 to 31 January 2010. The list of expenses on repairs and maintenance includes such items as mowing, and removal of a tree. It does not indicate that the Body Corporate has incurred any actual expenditure on the external fabric of any of the units. [21] Absent any expert evidence of the actual and ongoing cost of maintenance of the three units on the Sandvue CTS, the Application is dismissed. -- 5 of 5 --