Thursday, December 3, 2020

Body Corporate And Community Management Act 1997

Chapter 8
Part 9
Division 4
Section 388

QCAT or specialist adjudicator deciding adjustment | Section 388

(1)This section applies in relation to an application under section 385(8) or 387(6) for an order of a specialist adjudicator or QCAT made by an owner of a lot included in an existing scheme.

(2)Despite any other law or statutory instrument, the respondent to the application is the body corporate.

Note—

The body corporate must be given notice of the application under—

(a)for an application to a specialist adjudicator under chapter 6section 243; or

(b)for an application to QCAT as provided under the QCAT Act—the QCAT Act, section 37.

(3)If the owner applies under chapter 6 for an order of a specialist adjudicator—

(a)at the election of another owner of a lot in the existing scheme, the other owner may be joined as a respondent to the application; and

(b)each party to the application is responsible for the party’s own costs of the application.

(4)An owner of a lot included in the existing scheme who elects, under subsection (3)(a), to become a respondent to the application must give written notice of the election to the body corporate.

(5)If the specialist adjudicator or QCAT orders an adjustment of the contribution schedule for the existing scheme, the adjusted contribution schedule lot entitlements for the lots included in the scheme must—

(a)be consistent with the deciding principle for the pre-adjustment order entitlements for the scheme, and be just and equitable to the extent the deciding principle allows; or

(b)if there is no apparent deciding principle for the pre-adjustment order entitlements for the scheme, be just and equitable.

(6)To remove any doubt, it is declared that, if there is a deciding principle for the pre-adjustment order entitlements for the existing scheme, the specialist adjudicator or QCAT can not change the deciding principle for the lot entitlements.

(7)The only matters to which the specialist adjudicator or QCAT may have regard for deciding the application are—

(a)if the pre-adjustment order entitlements for the existing scheme were decided on the equality principle, the matters to which the specialist adjudicator or QCAT may have regard under section 49; and

(b)whether any of sections 381 to 384 apply to the scheme and, if so, what adjustments should be made to the pre-adjustment order entitlements for the scheme under those sections.

(8)If the specialist adjudicator or QCAT orders an adjustment of the contribution schedule for the existing scheme, the body corporate must, within 3 months after the order is made, lodge a request to record a new community management statement incorporating the adjustment.

Maximum penalty—100 penalty units.

Note—

Under section 46(10), a change to a lot entitlement takes effect on the recording of the new community management statement incorporating the change.

(9)Subsection (8) does not apply if—

(a)the specialist adjudicator’s or QCAT’s order provides for a change to the contribution schedule lot entitlements for the lots included in the existing scheme that is the same as the change mentioned in section 385(6) or 387(4) (the change); and

(b)the body corporate lodges a request to record a new community management statement incorporating the change under section 385(6) or 387(4).

© Sourced from the Queensland Legislation website at 1 April 2020. For the latest information on Queensland Government legislation please go to https://www.legislation.qld.gov.au.

Disclaimer: Reproduced from the Body Corporate and Community Management Act 1997. This website does not give legal advice or other professional advice. You should seek legal or other professional advice before acting and not rely on any of the content on this website.

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