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[2025] QCA 84
The key issue for determination on this appeal was whether, upon the correct interpretation of s 47B(1) Body Corporate and Community Management Act 1997, a material change had taken place which affected a community titles scheme since the last time the lot entitlements were determined, with the result being the respondent was entitled to adjusted lot entitlements. In finding that she was, the Court clarified that the provision “merely requires a material change that has happened since the last time the lot entitlements were determined”, based upon an assessment of what has altered from one point in time to another.
Flanagan JA, Bradley JA, Freeburn J
27 May 2025
The applicant, a body corporate, argued that a judicial member of QCAT had incorrectly found that the respondent, the owner of the only commercial lot in the scheme, satisfied the threshold requirements of s 47B(1) Body Corporate and Community Management Act 1997, and that her application to adjust the lot entitlements could proceed. Relevantly, the scheme was registered eight years before the respondent purchased her lot. At the time the scheme was registered, each lot was allocated 12 “lot entitlements” save for hers, which was allocated 10 “lot entitlements”. [4]–[5].
The legislation
In addressing the merits of the appeal, the Court examined the proper interpretation and application of s 47B(1) of the Act, which provides that if a community titles scheme is affected by a material change that has happened since the last time the contribution schedule lot entitlements for the lots included in the scheme were decided; and the owner of a lot included in the scheme believes an adjustment of the contribution schedule for the scheme is necessary due to the material change, then the specialist adjudicator (or QCAT) is able to order adjustments to the contribution schedule. The phrase “material change” is defined by Sch 6 of the Act as follows:
“1A material change, for a community titles scheme, is a change that has, or may have, a significant effect on the contribution schedule lot entitlements for the lots included in the scheme, including, for example—
(a)the addition of 1 or more lots, other than by a subdivision not involving the addition of a subsidiary scheme; or
(b)the removal of 1 or more lots, other than by an amalgamation.
2However, if a community titles scheme is intended to be developed progressively, a change arising from development proposed in the community management statement for the scheme is not a material change for the scheme.”
Consideration
In addressing whether the judicial member had erred in finding that the respondent satisfied the threshold requirements of s 47B(1) of the Act, the Court held as follows:
1.There is an oddity about the expression “a significant effect on the contribution schedule lot entitlements for the lots”. In the current matter, the judicial member had correctly rejected the proposition that to be material, the change must alter the contribution schedule itself. Notwithstanding the imprecise language, the evident purpose is to identify as material those changes in the effect of the contribution schedule because of changes implemented since the last time the schedule was adjusted. [14].
2.That the purpose of the legislation is to restrict the ability of lot owners to modify contribution schedule allotments to instances where, since the last (or first) apportionment of lot entitlements in the contribution schedule, changes have taken place which have resulted in, or will result in, a significant effect on the contribution regime. What amounts to a material change will turn upon the particular circumstances of the individual scheme. To fall within the definition a change must have a significant effect on the contribution regime. [15]–[16].
3.Having regard to the ordinary and literal meaning of the section, it was not the case, as argued by the applicant, that the material change must have a degree of permanence, and must concern: (a) the structure of the community title scheme; (b) the nature and characteristics of the lots in the scheme; or (c) the purpose for which the lot was used. [18]–[19].
4.It is also incorrect that a modification in the body corporate’s expenditure is unable to be considered a material change. The definition of “material change” is not confined to non-budgetary matters. [20].
5.It is not necessary that a comprehensive “before and after” comparison be undertaken in order to assess whether a material change has occurred. Whilst the concept of a change requires that an assessment of what has altered from one point in time to another occur, the comparison ought not be unduly confined. That is because s 47B(1)(a) merely requires a material change that has happened since the last occasion on which lot entitlements were decided. [25].
Disposition
Whilst leave to appeal was granted the appeal itself was dismissed with costs.
A Jarro