1. The Applicants are owners of Unit 27E in a high-rise residential apartment building known as Second Avenue Apartments, Community Titles Scheme 5755, ("Second Avenue") situated in Burleigh Heads. On 16 March 2010 they lodged an application in this tribunal seeking orders that:

" 1. ... the approval of interim orders for the contribution schedule for 2nd Avenue apartments CTS5755 to be varied to revert to that which was existing prior to your approval dated 31.8.09 (KL052-09)."

1. The Body Corporate for Second Avenue has joined this application as Respondent and in accordance with directions, both parties have filed materials.

2. It appears that an application for adjustment of the Contribution Schedule Lot Entitlements (CSLEs) for the units was made to the former Commercial and Consumer Tribunal (the CCT) under the Body Corporate and Community Management Act 1997 ("the BCCM") in 2009. That application (KL052-09) was determined by the Chairperson of that tribunal on 17 September 2009 who ordered that:

" Upon consideration of Application filed on 24 August 2009, correspondence received on behalf of the Respondent dated 11 September 2009, and a Defence filed on 14 September 2009 but noting sections 48(6) and 49(4) of the Body Corporate and Community Management Act 1997, and the report of Leary and Partners Ltd dated 11 August 2009 and filed on 24 August 2009 ....

1. The Contribution Lot Entitlement Schedule for the Body corporate for 2nd Avenue CTS 5755 be adjusted as follows [SCHEDULE INSERTED].
2. The Respondent will prepare and lodge for registration in the Dept of Natural Resources and Water a new Community Management Statement accordance with the adjustment of paragraph 1 of this order."

3. The effect of those orders was to adjust the CSLEs for the subject apartment building in accordance with an analysis and expert report of the quantity surveyors (Leary).

4. The Queensland Civil and Administrative Tribunal ("QCAT") has now replaced the former CCT, and the application is one to be decided by this tribunal subject to review provisions in the former CCT Act and the provisions of the QCAT Act.

5. The Applicants rely on a statement colourfully entitled "Timeline in Treachery", in which they allege collusion and treachery by the Respondent in acting contrary to an agreement allegedly made at a meeting of the Respondent's committee on March 29 2009. They have also filed a copy of a press release of the Minister for Tourism and Fair Trading on February 19 2010 headed "Bligh Government to make body corporate fees fairer". In that document the Minister referred to the provision in the BCCM Act requiring lot entitlements to be equal and declared the Government's intention to amend the BCCM Act in accordance with previous legislation.

6. The Respondent asks that the application be dismissed and that the orders of the CCT in the earlier application be allowed to stand. It contends that the application is misconceived, being based on legislation that is merely proposed. It submits that the orders of the CCT were based on expert evidence and are consistent with the principles for adjustment of CSLEs in the BCCM Act.

1. It is not entirely clear from the framing of the application whether the Applicants desire it to be treated as a reopening of the existing order, or as a fresh application on the merits.

2. If they seek a reopening, their application is governed by sections 252, 276, and 137(b), and 138 of the QCAT Act and section 92 of the QCAT Rules. In combination these provide that:

• a final decision of a former tribunal (in this case the CCT) is taken to be a final decision of QCAT; and
  • if the decision could have been appealed under the CCT when QCAT commenced on 1 December 2009 it becomes a reviewable decision in QCAT; and
  • the Applicant must offer a ground for reopening, namely, that they "would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided"; and
  • the application must be made within 28 days of the date of the original decision, or 28 days of its receipt by the applicants.

3. The original decision was made on 17 September 2009. The present application was not filed until 16 March 2010. The Applicants have not provided any evidence of a delay in communicating the CCT decision to them, nor have they advanced any sufficient ground for extending the limitation period.

1. I do not find any "significant new evidence" in the applicant's allegation of collusion by the Body Corporate or oppression of the Applicants prior to the CCT decision. I note that a defence (presumably by unit owners) was filed to the application before that tribunal, and I see no reason why these matters, if indeed they had any substance, were not raised at that time in that forum. In my view, "new evidence" bears the same meaning as "fresh evidence" in the general law relating to appeals, namely, evidence which could not reasonably have been known to the applicants at the time of the original proceedings.

2. Further, I am not persuaded that a ministerial press statement about a possible future change to the present legislation can properly be described as "significant new evidence". That does not represent the present law, and it may not ever do so.

3. Accordingly I dismiss the application, insofar as it is a claim for the CCT decision to be reopened.

1. If these proceedings are treated as a fresh application, the Applicants bear the onus of proving that the suggested reversion to the original CSLEs meets the principles set out in sections 48(6) and 49 of the BCCM Act, or that a departure from those principles would be just and equitable in the circumstances. The Applicants have provided no information about the original CSLEs nor have they set out any circumstances that would enliven the tribunal's discretion to adjust the lot entitlements in question.

2. The application is dismissed. There will be no order as to costs.