Parkrise [2006] QBCCMCmr 419 (1 August 2006)

Last Updated: 19 December 2006

Office of the Commissioner for Body Corporate and Community Management SPECIALIST ADJUDICATION (Adjustment of Lot Entitlements) Number: 0123A-2006

Applicant: LONG and ANOTHER



Respondent: BODY CORPORATE FOR PARKRISE

COMMUNITY TITLES SCHEME 14028

O R D E R
1 August 2006

THAT the application is dismissed.

Gary Bugden OAM
Specialist Adjudicator

Office of the Commissioner for Body Corporate and
Community Management

SPECIALIST ADJUDICATION
(Adjustment of Lot Entitlements)

Number: 0123A-2006

Applicant: LONG and ANOTHER



Respondent: BODY CORPORATE FOR PARKRISE

COMMUNITY TITLES SCHEME 14028

DETERMINATION
1 August 2006

1. This is an application under section 48(1)(b) of the Body Corporate and Community Management Act 1997 ("Act") seeking an order of a specialist adjudicator adjusting the contribution lot entitlement schedule in Parkrise community titles scheme 14028 ("Scheme") which is situated at 3 Alison Street, Surfers Paradise. The Scheme has 19 commercial lots.
2. The body corporate for the Scheme is automatically the Respondent to the application by virtue of section 48(2)(a) of the Act. Owners of lots in the Scheme may elect to become joined as a respondent, but no elections have been received. Instead a number of lot owners have made written submissions on the application.
3. At the body corporate’s annual general meeting held on 4 October 2005 a motion proposed by the applicant to change the contribution schedule lot entitlements was considered. The proposed change was in accordance with an expert’s report prepared by Mr Craig Brennan of Statewide Strata Management Pty Ltd dated August 2005, which was copied to owners with the notice of meeting. The proposed change was set out in Table 2 attached to that report. The motion was defeated and this application was made as a consequence of that result.
4. This application is supported by the same report prepared by Mr Brennan with the same Table 4 as an attachment setting out recommended adjustments to the contribution schedule lot entitlements. However, in the body of the application the applicant seeks an order adjusting the contribution schedule lot entitlements in accordance with a Table 4 attached to the application. The table 4 attached to the application and the Table 4 attached to Mr Brennan’s report are different. This became apparent to me when I was examining the methodology used in the report and checking some of the calculations made in support of the proposed new allocations.
5. After speaking to Mr Brennan, I convened a telephone conference on 7 July 2006 with Mr Robert Herd, the solicitor for the body corporate, Mr Clayton Glenister, the solicitor for the applicant and myself to hear submissions on how I should deal with this discrepancy. I indicated during the course of that conference that I was concerned that the report may not be acceptable as an expert’s report if the changes were made as a consequence of any input by or on behalf of the applicant. I received verbal submissions during the course of that telephone conference, but in fairness to the parties I put in place the following arrangements:

(a) Mr Glenister was to provide me with a written explanation as to the facts surrounding the existence of 2 versions of the Table 4;
(b) each party was to provide me and each other by 14 July 2006 written submissions as to how I should progress the application; and
(c) each party would have a right of reply to those submissions by 21 July 2006.

6. One thing was clear after my conversation with Mr Brennan and the telephone conference with Messrs Herd and Glenister, namely, that the Table 4 attached to the report is the correct table and the one attached to the application is an earlier draft and is the incorrect one.

7. Mr Glenister provided the explanation and submissions on 13 July 2006, but I have not heard from Mr Herd since the telephone conference, despite him being copied with the material that Mr Glenister provided to me. I can only assume that the body corporate has no interest in making further submissions in the matter. In the event, fortunately for the body corporate, this has had no bearing on the matter.

8. On the question of how I should deal with the application in light of the circumstances that confront me, Mr Glenister submitted that:

(a) I should allow the applicant to distribute to all owners a copy of the correct report and allow them a period of time to make any further submissions they feel inclined to make;
(b) none of the owners who made submissions referred to Table 4, so it was not a matter of concern to them;
(c) all owners received a copy of the correct report with the notice of the annual general meeting;
(d) Owners have not been materially prejudiced by the wrong table 4 being inserted in the application;
(e) Owners are not prejudiced as the difference between the draft report and the final report is limited to Table 4, therefore the calculation of the lot entitlements remains the same and it is only the conclusion that is affected; and
(f) if I do not allow the applicant to correct the position in the way suggested, the effect will simply be to require the applicant to make a fresh application in identical terms, except for Table 4 and this would result in further costs and delay.

9. On the question of the reliability of the report, there is a communication from Mr Brennan explaining why there was a draft report and why that report was changed. The explanation appears to me to be very reasonable and I am satisfied that the report is independent and in the nature of an expert’s report. I was particularly comforted by the concluding paragraph of that communication, which reads:

"I can categorically confirm that the report is an independent report and has not in any way been amended to appease any wishes or requirements of the lot owner, or any other person for that matter. The changes made by me were made after independent reflection on a draft report, which is my normal practice. The only input from the lot owner was his escorting me through the building during my initial walk through of the building, and then measuring undercover basement areas upon my request. He did not offer any suggestions whatsoever into the finalization of the report."

10. I understand how an earlier draft of a document can easily be mistaken for the latest draft and I am sympathetic to the submissions of Mr Glenister and the position that the applicant is now in. However, if I were to do as Mr Glenister has suggested I would effectively be allowing the application to be amended. This is because the error in this case is in the application, not in the evidence. As I understand the position, the report supporting the application is the correct report and the table in that report is the correct table. However, the table attached to the application is the table from the draft report and is incorrect. This means that the only way the situation can be corrected is to allow the correct table to be substituted for the incorrect one in the application. This is clearly allowing the application to be amended.

11. Had the table attached to the application been the correct one and the one attached to the report been the incorrect one, then I believe that I could have resolved the problem in the way suggested by Mr Glenister. In those circumstances I would have merely been allowing clarification of the evidence supporting the application – a matter well within my control.

12. However, section 245 of the Act deals with change or withdrawal of applications. It provides:

"(1) The applicant may, with the Commissioner’s permission, change the application at any time before the commissioner makes an initial dispute resolution recommendation under part 5.

(2) The commissioner has a discretion to give or withhold permission and, if the commissioner gives permission, the commissioner may impose conditions."

13. There is nothing else in the Act that allows an application to be amended once the commissioner has made an initial dispute resolution recommendation. Having referred the application to me for determination, the commissioner has clearly made an initial dispute resolution determination and section 245 is now spent. I cannot find any other provision that would authorize me to allow the applicant to amend the application at this stage. That is not illogical, given that an amendment at this stage would deprive the owners of the opportunity to make submissions on the amended application and to elect to become parties to it.

14. My jurisdiction is entirely statutory. I am bound by the terms of the statute and I have no inherent powers of the type I would require to allow an amendment of the application at this stage of the process.

15. Undertaking a de facto notification and submission process as suggested by Mr Glenister, despite being unauthorized by the Act, would not entirely correct the situation and may jeopardize the validity of any order I might subsequently make adjusting the contribution schedule lot entitlements.

16. As reluctant as I am to dismiss this application, I feel that I have no option but to do so. I propose to order accordingly. I do not propose to make any order as to costs.

Gary Bugden OAM
Specialist Adjudicator