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DETAILS OF FINDINGS
Details of Findings
4. Ignored QCAT Appeal Tribunal declaration 2020
18. Defrauded residents who bought new unit - structure unfit for purpose, and unconscionable exit terms
19. Deceived residents - renaming of Village to Resort

4. Ignored QCAT Appeal Tribunal Declaration 2020

In Golding v Lusping Pty Ltd No 2 [2020] QCATA, the QCAT Appeal Tribunal made a declaration that the increases in fees, referred to in section 4, were and are unlawful. Despite this, the scheme operators continue to invoice residents for fees that were unlawfully increased. Furthermore, the scheme operators encouraged residents to vote for a resolution to accept the unlawfully increased fees at the 2020 AGM.

4.1 Lawful amount of General Services Fees (GSF)

4.1.1 In Golding v Lusping Pty Ltd No 2 [2020] QCATA, the QCAT Appeal Tribunal made the following declaration:

Evidence Document D6.4 - 01

4.1.2 I used Microsoft Excel to calculate the correct amount of General Services Fees (GSF) that should be paid by the residents, for singles and for doubles:

Evidence Document D6.4 - 02

4.1.3 A detailed explanation for the calculations used in Evidence Document D6.4 - 02 was submitted by me to the QCAT Appeal Tribunal, in APL340-19 on 28 September 2020. My data and calculations were not contested by the scheme operators in their submission of 8 October 2020:

Evidence Document D6.4 - 07

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4.2 Invoiced amount of General Services Fees (GSF)

4.2.1 Despite knowing the declaration of the law, as made by the Appeal Tribunal in In Golding v Lusping Pty Ltd No 2 [2020] QCATA, the scheme operators continue to charge residents excessive GSF for singles and for doubles:

Evidence Documents D6.4 - 03 and D6.4 - 04

4.2.2 Comparing the correct monthly GSF for the March quarter of 2021, from my Tables 2a and 2b in 4.1.2 above, with the invoiced GSF, it is clear that the scheme operators continue to charge excessive fees:

  • For singles: correct fee = $163.42 + GST; the invoiced GSF = $173.73 + GST
  • For doubles: correct fee = $205.79 + GST; the invoiced GSF = $217.27 + GST

4.2.3 According to the 2020-2021 budget, presented for voting at the 2020 AGM, the total monthly fees for singles and doubles, including GST, are:

Evidence Document D6.4 - 05

4.2.4. By subtracting the $33.00 Inc GST MRF contribution, then dividing the result by 1.1 to obtain the GSF fee Ex GST, the amount of GSF is the same as in the fees invoices shown above, i.e.:

  • For singles: ($223.00 - $33.00) / 1.1 = $172.73
  • For doubles: ($272.00 - $33.00 / 1.1 = $217.27

4.2.5 At the 2020 AGM, the scheme operators encouraged residents to vote for the excessive fees, despite knowing that the fees were unlawful, and failed to allow anyone to speak against the motion:

Evidence Document D6.4 - 06

4.2.6 Note the reference to a "Grandfather Clause" in the last line of the 2020-2021 budge shown in 4.2.3 above. This refers to a statement made by the scheme operators during the 2017 AGM that, instead of immediately increasing the rate for existing single residents to the rate for all new residents (single and double), their fees would be increased by a minimum of 5 % per year until they were equal to the new rate.

4.2.7 Because the Appeal Tribunal has declared that the GSF must not be increased by more than the increase in CPI, applying the minimum 5% increase in GSF would be unlawful. Including a reference to that so-called "Grandfather Clause" could therefore be reasonably construed as a threat that, if residents dissent or question the continuing unlawful fee increases, the minimum 5% increase in GSF would be applied.

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