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Last year we published an article regarding a QCAT decision by His Honour DJ McGill SC which reopened the door for applications to change contribution schedule lot entitlements (CSLEs) in community titles schemes. See article here.
We are delighted that the Queensland Court of Appeal has recently upheld His Honours decision, in Body Corporate for Anchorage One CTS 35311 v Huang [2025] QCA 84.
The Court of Appeal considered the proper interpretation and application of section 47B(1) of the Body Corporate and Community Management Act 1997 (BCCM Act), which requires that before an application to change CSLEs can be made, the community titles scheme must have been affected by a ‘material change’.
The appellant body corporate made five arguments, each of which was rejected by the Court of Appeal:
- The appellant body corporate argued that a material change must have a degree of permanence and concern the structure of the community title scheme, the nature / characteristics of the lots in the scheme, or the purpose for which the lot was used. This argument was rejected by the Court of Appeal as it would involve, in effect, re-writing s47B(1) to include additional requirements.
- The appellant body corporate also argued that a material change does not mean a change to a body corporate’s expenditure. Again, this was rejected by the Court as section 47B(1) is not restricted to non-budgetary issues.
- The appellant body corporate asserted that a body corporate’s expenditure can (and often does) change from year to year, such that using expenditure as a material change opens the floodgates to changing the CSLEs each time expenditure changes. The Court of Appeal disagreed, noting that not all expenditure changes will constitute a material change for the purpose of s47B(1) – but rather, the material change must have “a significant effect”.
- The appellant body corporate argued that the applicant lot owner needed to show evidence of the scheme’s “state of affairs” when the CSLEs were last changed in comparison to the circumstances. The Court of Appeal cautioned against unduly defining the comparison given that s47B(1) only requires that a material change has happened since the last time CSLEs were determined.
- The appellant body corporate also challenged the findings of fact made by His Honour DJ McGill SC on the basis that the evidence put forward only provided “fairly slender support” for His Honour’s findings. The Court of Appeal stated that so long as there was some evidence supporting those conclusions, then no error of law has occurred. The Court of Appeal also observed that the body corporate chose not to put forward evidence to contradict the applicant’s evidence, such that the little evidence put forward to support the applicant’s position outweighed the absence of evidence from the appellant body corporate.
So what does this actually mean for you?
In summary, if you are paying body corporate levies based on how the CSLE’s were set in the past, and one or more of the factors that set the CSLE’s has changed, and if that change was taken into account now your CSLE would be lower, then you may be able to apply to QCAT to change your CSLE and pay lower levies.
If you would like further information, or to take legal advice, please contact Kimberley Johnson or Michael Kleinschmidt
© Bugden Allen Group Legal Pty Ltd. This is general information only and not legal advice. You should not rely on this information without seeking legal advice tailored to your specific circumstances.
