Harris v Body Corporate Noosa Harbour Community Title Scheme 11159
[2010] QDC 23
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- Unreported Judgment
- Harris v Body Corporate Noosa Harbour Community Title Scheme 11159[2010] QDC 23
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Harris v Body Corporate Noosa Harbour Community Title Scheme 11159[2010] QDC 23
Harris v Body Corporate Noosa Harbour Community Title Scheme 11159[2010] QDC 23
DISTRICT COURT OF QUEENSLAND
CITATION: | Harris v Body Corporate Noosa Harbour Community Title Scheme 11159 [2010] QDC 23 |
PARTIES: | PETER ROBERT HARRIS (Applicant) V BODY CORPORATE NOOSA HARBOUR COMMUNITY TITLE SCHEME 11159 (Respondent) |
FILE NO/S: | MD 2 /2009 |
DIVISION: | Civil jurisdiction |
PROCEEDING: | Hearing |
ORIGINATING COURT: | District Court at Maroochydore |
DELIVERED ON: | 12 February 2010 |
DELIVERED AT: | District Court at Maroochydore |
HEARING DATE: | 3 February 2010 |
JUDGE: | J.M. Robertson DCJ |
ORDER: | Appeal is dismissed. No order as to costs. |
CATCHWORDS: | REAL PROPERTY – STRATA AND RELATED TITLES AND OCCUPANCY – BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997 – where applicant claims that adjudicator made errors of law concerning adjustments to contribution schedule lot entitlements Body Corporate and Community Management Act 1997 (Qld) Fischer and Body Corporate for Centrepoint Community Title Scheme 779 [2004] 2 Qd R 638 Franklin and Ors and Body Corporate for La Porte D’or [2004] QDC 154 |
COUNSEL: | P. R. Harris as the applicant S.D. Anderson for the respondent |
SOLICITORS: | Success Law for the respondent |
- [1]Pressure Drop Pty Ltd was in August 2007, the owner of lot 71 in Noosa Harbour a three level resort complex comprising four separate free standing structures and a total of 66 residential lots, three commercial lots, basement under cover, and open parking facilities and various recreational facilities. It applied for an order that the body corporate record a new community management statement reflecting a change to lot and interest entitlements.
- [2]The Commissioner for Body Corporate and Community Management appointed Mr Bernard McGowan as a Special Adjudicator pursuant to the provisions of the Body Corporate and Community Management Act 1997 (the Act), to determine the application under the Act
- [3]Mr Peter Harris is the owner of lot 24 in the scheme and a retired Canberra lawyer. He elected to join the dispute resolution application as a respondent.
- [4]On the 24th October 2008, after hearing and receiving submissions from the applicant, the Body Corporate, Mr Harris and a number of other lot owners, Mr McGowan determined that the contribution schedule lot entitlements for the Body Corporate be adjusted in accordance with a schedule marked “A” which was attached to his order. Mr McGowan noted in his extensive reasons published the same day that although the application on its face sought variation of both lot and interest entitlements, only the application relating to lot entitlements was pursued.
- [5]Mr Harris has appealed to this Court against Mr McGowan’s order pursuant to s 289 of the Act. He has filed a number of submissions which I have considered. Despite some tardiness and initial failure to comply with earlier Court ordered timetables, the Body Corporate as respondent to the appeal has also filed its submission which I have considered. Other lot owners have filed submissions. They are not parties to the appeal and therefore their submissions will not be considered. Having said that, the other submissions appear to reiterate matters raised in the legitimate submissions which were also matters raised before Mr McGowan.
- [6]The right of appeal is limited only to questions of law. As I noted during oral argument, and no doubt because Mr Harris is so intimately involved in the dispute, his submissions both written and oral go well beyond alleged errors of law.
- [7]His submissions strayed far from the three grounds set out in his Notice of Appeal filed 6 January 2009. Unfortunately he had lost all his papers in a robbery late last year and although he had copies of his submissions he did not have a copy of the Notice of Appeal when he made his oral submission. A copy was made and provided to him during the course of argument.
- [8]His arguments took on a degree of flexibility which is probably due to his lack of advocacy experience and his intense sense of injustice occasioned by the Special Adjudicator’s decision. For example, he initially seemed to depart from the submission made to Mr McGowan (which was rejected), that the principles enunciated by the Court of Appeal in Fischer and Body Corporate for Centrepoint Community Title Scheme 779 [2004] 2 Qd R 638, did not apply to Noosa Harbour because it is a mixed commercial and residential complex, whereas the Centrepoint scheme was entirely residential. He then expressly embraced the Centrepoint decision and argued that the witnesses accepted by Mr McGowan did not follow the principles set out in that decision.
- [9]Later in his submission he seemed to retreat from this obviously correct concession by once again asserting that Centrepoint was distinguishable.
- [10]At its heart Mr Harris’ argument comes down to this: the expert reports relied upon by Mr McGowan did not comply with the Centrepoint decision and Mr McGowan was in error in holding that they did. Mr Harris also makes another submission about the failure of the Specialist Adjudicator to take into account historical legitimate expectations of lot owners.
The Law
- [11]It is not necessary for me to reiterate the applicable statutory framework. This is set out by Mr McGowan in paragraphs 14 to 22 of his reasons. The leading judgment in Centrepoint was given by Chesterman J (as his Honour then was) (with whom McPherson JA and Atkinson J agreed). Since its delivery on 25 June 2004, in a number of decisions of this Court and the Civil and Commercial Tribunal the principles set out by his Honour have been accepted as the guiding principles governing any adjustment of contribution schedules under the Act.
- [12]His Honour, after referring to the statutory framework, said at paragraphs [30] to [32];645:
“[30] These materials make it tolerably plain that the Act is intended to produce a contribution lot entitlement schedule which divides body corporate expenses equally except to the extent that the apartments disproportionately give rise to those expenses, or disproportionately consume services. That determination can only be made by reference to factors which have a financial impact or consequence on the body corporate. It cannot be affected by factors which go to an apartment’s value or amenity.
[31] Secondly, the nature of a contribution lot entitlement schedule itself suggests that the allocation of lot entitlements is to be made on the basis of the impact that individual apartments make upon the costs of operating and running a community titles scheme. Contribution lot entitlements determine the apartment’s share of the outgoings. The starting point is that the entitlements should be equal. A departure from that principle is allowable only where it is just, or fair, to recognise inequality. The departure must take as its reference point the proposition, from which it departs, that apartment owners should contribute equally to the costs of the building. The focus of the inquiry is the extent to which an apartment unequally causes costs to the body corporate.
[32] The third consideration is that if this principle not be the applicable one then there is no basis on which applications for adjustment of contribution lot entitlement schedules can consistently be made. As the evidence in this application shows, if the inquiry is limited to the extent to which an apartment creates costs, or consumes services, above or below the average, one can readily determine what the contribution lot entitlement should be. The high degree of similarity in the reports of Mr Sheehan and Mr Linkhorn demonstrates this. If the inquiry be wider and include such nebulous criteria as the structure of the scheme, or the nature, features and characteristics of the apartments in the scheme, and the purposes for which they are used, there is no intelligible basis on which there could be a consistent and coherent determination of applications for adjustment of lot entitlements. Each case would be determined idiosyncratically and a vast variety of circumstances might be relied upon to depart from, and therefore erode, the principle said to be paramount, that there should be an equality of entitlements.”
- [13]It became clear that Mr Harris’ arguments fundamentally misconceived the principles set out in Centrepoint. His argument seemed to assume that unless all the methods adopted by one of the experts in that case (Mr Sheehan) were adopted by the experts relied upon by Mr McGowan, then they (the experts) did not follow the approach mandated by Centrepoint. He has mistaken his Honour’s summary and analysis of the expert evidence in that case for statements of principle with universal application. It is clear that both expert reports considered by Mr McGowan adopted the Centrepoint approach, and in particular the report of Linkhorn and Simpson commissioned by the Body Corporate for the purposes of the proceedings before the Specialist Adjudicator. It follows that Mr McGowan was not in error in accepting the analysis in those reports.
- [14]Mr Harris also argues that Mr McGowan fell into error by not taking into account the length of time that the existing schedule had been in place. Mr McGowan held that this was an irrelevant consideration. As the respondent pointed out in its submission, this argument was not made to Mr McGowan expressly and he had no evidence before him on the issue. In any event, having regard to the principles in Centrepoint such a consideration would fall into the category of “nebulous criteria” which, if considered, would have the tendency to depart from the paramount principle of equality of entitlements. To the extent to which the judgment of Robin QC DCJ in Franklin and Ors and Body Corporate for La Porte D’or [2004] QDC 154 (delivered some months before Centrepoint) says otherwise, I respectfully disagree.
- [15]Finally, Mr Harris submits that Mr McGowan erred in not taking into account the purpose for which individual lots are used. As can be seen from paragraph 32 of Chesterman J’s judgment in Centrepoint, purpose is not a relevant consideration. Mr McGowan expressly adopted Mr Harris’ argument that purpose was relevant, but it is clear from his reasons that he only took this into account to the extent to which different lots caused costs to the body corporate.
- [16]In my view, the other and many varied arguments made by Mr Harris do not reveal any error of law and/or misapprehend the evidence before Mr McGowan by substituting Mr Harris’ own opinion about various physical features of the complex for the evidence before the specialist adjudicator.
- [17]The appeal is dismissed. The respondent does not seek costs.