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Oceana on Broadbeach Community Titles Scheme 24163 v Searle

 

[2003] QCA 283

Reported at [2004] 1 Qd R 229

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Oceana on Broadbeach Community Titles Scheme 24163 v Searle & Ors [2003] QCA 283

PARTIES:

OCEANA ON BROADBEACH COMMUNITY TITLES SCHEME 24163
(appellant/applicant)
v
STEPHEN CHARLES SEARLE
(first respondent/first respondent)
THE COMMISSIONER FOR BODY CORPORATE AND COMMUNITY MANAGEMENT
(second respondent/second respondent)
R A MEEK
(third respondent/third respondent)

FILE NO/S:

Appeal No 5170 of 2003

DC No 931 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

11 July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

16 June 2003

JUDGES:

Davies and Williams JJA and Fryberg J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Parties allowed fourteen days from the date of delivery of these reasons to file written submissions as to the form of order which should be made

CATCHWORDS:

REAL PROPERTY – Strata and related titles and occupancy – Body corporate – Powers, duties and liabilities – Whether person authorised by the body corporate entitled to enter a lot to carry out maintenance to the common property – Body Corporate and Community Management Act 1997, s 163

Body Corporate and Community Management Act 1997 (Qld), s 163

Body Corporate and Community Management (Standard Module) Regulation 1997 (Qld), s 109

COUNSEL:

J A Griffin QC, with C J Carrigan, for the appellant

G J Gibson QC, with C C Heyworth-Smith, for the first respondent

No appearance for the second and third respondents

SOLICITORS:

Short Punch & Greatorix for the applicant/appellant

Biggs & Biggs for the first respondent

No appearance for the second and third respondents

  1. DAVIES JA:  I agree with the reasons for judgment of Fryberg J and with the orders he proposes.
  1. WILLIAMS JA:  I agree with the reasons for judgment of Fryberg J and with the orders proposed.
  1. FRYBERG J:  Oceana on Broadbeach is the name of two apartment buildings at Broadbeach on the Gold Coast.  The two buildings are some 15 storeys high.  The land on which they are built has been subjected to a community titles scheme under the Body Corporate and Community Management Act 1997[1] ("the Act").  The applicant is the body corporate for the scheme.  The first respondent,[2] Mr Searle, became the owner of the penthouse unit at the top of the southern building on 28 February 2001.  That unit consists of two levels, with the second level constituted by part of the roof of the building.  It is designated Lot 98 in the scheme.
  1. Under the scheme the external surfaces of the walls and windows of the buildings are part of the common property. Until about September 2001 it was the practice of the applicant to have those windows in the southern building (presumably, the external surfaces of them) cleaned by a window cleaning contractor. That cleaning covered the whole of the external surface at each window, not just the glass. Pursuant to an oral agreement between the body corporate and Mr Searle the contractor was given access to the roof of the building for this purpose. Equipment was placed on the roof and cleaners were lowered to the various windows. During 2001 a dispute arose between the body corporate and Mr Searle over "collateral water damage". As a result Mr Searle terminated the oral agreement in September of that year.
  1. On 4 June 2002 the body corporate applied to the Commissioner for Body Corporate and Community Management under s 238 of the Act to resolve a dispute. The application sought the following orders:

“1.A declaration pursuant to s 62(1) of the Body Corporate and Community Management Act 1997, that an easement exists in favour of the common property against Lot 98 for the supply of utility infrastructure to the common property.

  1. In the alternative, a declaration pursuant to s 125(1)(a), of the Body Corporate and Community Management Act 1997, that a person authorised by the Body Corporate be entitled to enter Lot 98 for the purposes of carrying out maintenance (window cleaning) to the common property.
  1. That the Body Corporate be permitted to have access to the rooftop of Lot 98 of the scheme and that such access be limited to window cleaning purposes to the exterior of the building.”

The applicant asserted that access would be required for one day three times a year on at least two to three weeks notice and at times negotiated between the building manager and Mr Searle.  The Commissioner referred it to an adjudicator.[3]  On 19 September 2002 the adjudicator, Mr Meek, dismissed the application.  He held that s 62 did not confer a right on the body corporate to access the roof through Mr Searle's lot.  He further held that the power to enter under s 125 of the Act did not allow that lot to be used as a means of access to common property.

  1. The body corporate appealed from that decision to the District Court on 29 October 2002.[4]  The notice of appeal asserted a number of errors of law on the part of the adjudicator and sought orders in the same terms as those sought before the adjudicator.  The appeal was heard on 7 February 2003 and on 13 March judgment was given dismissing the appeal with costs.  The body corporate now seeks leave to appeal against that judgment.  Because the application was filed out of time it also seeks an order that the time for filing the application be extended.

The adjournment application

  1. When the matter was called on for hearing on 16 June, counsel for Mr Searle applied for an order adjourning the hearing of the application to a date to be fixed "pending the outcome of [Mr Searle's] Dispute Resolution Application lodged with the Commissioner for Body Corporate and Community Management on 13 June 2003". After hearing counsel the Court refused that application and stated that it would give reasons for the refusal when giving reasons for judgment on the hearing of the appeal. For that purpose it is necessary to record some further facts.
  1. The body corporate first applied for leave to appeal from the decision of the District Court by application filed on 28 March 2003. That application was listed for hearing on 4 June and outlines of argument dealing with both the application and the merits of any appeal were filed. Some time before that date it was realised that by filing the application without the authority of the special resolution the body corporate had breached s 312 of the Act. Steps were put in train to call a meeting for the purposes of passing such a resolution. The earliest date upon which this was possible was 12 June and that was the date for which the meeting was called. On 4 June the body corporate sought to have the application adjourned to 16 June, when hearing time was available, but this was opposed by Mr Searle. The court ordered:

“1.Application struck out;

  1. Applicant to pay the first respondent’s costs of today’s application for an adjournment;
  1. Material filed in this application is to be material filed in any future applications for extensions of time and leave to appeal against the decision of his Honour Judge Robin QC of 28 February 2003, filed on or before 13 June 2003;
  1. Order that the costs of this application be the first respondent’s costs of any such further applications; and
  1. In the event that there are no such further applications the applicant is to pay the first respondent’s costs of this application for leave to appeal, to be assessed.”

It was then envisaged that if the proposed resolution were passed on 12 June and further applications were filed, that application, together with any application for an extension of time for filing it, would be heard on 16 June.

  1. On 12 June the body corporate passed the following special resolutions:

“That the Body Corporate

(A)Pursuant to s.259(2) of the BCCM Act:-

(1)With respect to the Application for Leave to Court of Appeal against the District Court decision dated the 28th day of February 2003 (Citation – Oceana on Broadbeach Community Titles Scheme 24163 v Searle & Ors [2003] QDC 011), proceed with the Application and Appeal, if Leave is granted, as if the Body Corporate’s approval, by the passing of this resolution, had been given prior to the filing of the Application.

(B)Be authorised to expend from the Administration Fund, legal fees for the purpose of prosecuting this Application up to $16,500.00.”

  1. The Dispute Resolution Application referred to above was Mr Searle's response to those events. The application sought two outcomes:

“1.The resolution at the Extraordinary General Meeting held on 12 June 2003 be set aside.

2.The Body Corporate forward an Explanatory Memorandum to lot owners informing them of firstly, the Orders made by the Court of Appeal on 4 June 2003 in relation to the Body Corporate’s Application for Leave to Appeal No. 2838/2003, and secondly, the costs to the Body Corporate of the Appeal either succeeding or failing.”

The grounds of the application were stated in the following terms:

“The Body Corporate has failed to:-

(a)draft a properly worded motion;

(b)provide proper notice to lot owners prior to voting which would enable them to make a fully informed decision about the subject matter of the vote;

(c)amend the motion prior to putting it to a vote as the subject matter of the motion has changed since its drafting on 16 May 2003;

(d)inform the lot owners of the decision of the Court of Appeal delivered on 4 June 2003 prior to voting on 12 June 2003;

(e)quote an accurate amount for expenditure sought to be authorised, noting also that costs Orders were made against the Body Corporate by the Court of Appeal on 4 June 2003.

Refer to attached correspondence to the Body Corporate’s solicitors dated 6 June 2003, 10 June 2003 and 11 June 2003.”

 

The attached correspondence referred to semantic incongruities in the notice of motion and the motion itself, including for example an incorrect reference to the Act brought about by the renumbering of the Act.

  1. The present application was filed on 13 June and, as was earlier envisaged, was listed for hearing on 16 June.
  1. On behalf of Mr Searle it was submitted that the application should be adjourned in order to avoid the risk that the decision of the court would pre-empt that of an adjudicator. It was submitted that having regard to the statutory scheme for dispute resolution the proper exercise of the court's discretion would be to allow the processes in the Act to be completed. That should be done, it was submitted, as a matter of comity. That was the only factor relevant to the adjournment question to which counsel referred. He submitted that the court should not have regard to what it perceived to be Mr Searle's prospects of success before the adjudicator. Consistently with the grounds of the Dispute Resolution Application, counsel did not submit that the special resolution was void. Nor was it submitted that the application in this Court should be struck out on the ground that it was unauthorised. Finally, it was not submitted that anything in s 279 prevented the court from considering the issues to be raised before the adjudicator in deciding the adjournment application.
  1. The grant of an adjournment involves an exercise of discretion. In the present case I was not persuaded that this was a situation where the court should defer to the adjudicator. I was prepared to accept that the outcome of the appeal might have a pre-emptive effect on the adjudicator's decision, but I was unpersuaded that this was a sufficient reason for adjourning the application. In the circumstances of the case I did not think it mattered if the determination of the appeal rendered the application to the adjudicator futile. Moreover I was unpersuaded that Mr Searle had good prospects of success before the adjudicator even if the application in this court were adjourned. Some of the arguments proposed to be put on his behalf before the adjudicator (for example, the renumbering point referred to above) had the ring of desperation. The decision of an adjudicator could not retrospectively involve the court in condoning an illegality even if he or she were to decide to set aside the resolution, nor could it relieve the body corporate of a liability duly authorised at the time it was incurred. It was in my view desirable that the long drawn out dispute about the cleaning of the windows be resolved promptly; the parties were ready to argue it; the time had been allotted by the court; and a large number of unit owners might have the amenity of their units adversely affected by any delay. For these reasons I concurred in the order refusing the application for adjournment.

The application for an extension of time and the application for leave

  1. Counsel for Mr Searle made no submission in opposition to the grant of an extension of time, nor to the grant of leave to appeal. The circumstances already referred to warrant extending time. The points of law which the applicant desires to argue are important and affect a considerable number of people. It is an appropriate case for leave to appeal.

The appeal

  1. The first question raised in the appeal was whether, on the proper interpretation of s 115P of the Land Title Act 1994 (formerly s 62 of the Act) an easement of the type described in that section exists.  As argued that question involved an examination of the terms "utility infrastructure" and "utility service" as defined in the Act and the application of those terms to the provision of window cleaning services.  Counsel for the body corporate argued that the District Court had adopted too narrow a view of the words.  Counsel for Mr Searle supported the interpretation adopted by that court.  He also argued that in any event, the question was one which fell outside the jurisdiction of the adjudicator by reason of s 285 (which provides that the adjudicator does not have power to resolve a question about title to land) and s 228 (which in effect limits the types of disputes capable of resolution by an adjudicator).  The latter argument was not foreshadowed in his outline of argument and had not been raised in any previous hearing.  For this reason counsel for the body corporate was unable to deal with it effectively.
  1. That circumstance, together with the fact that my conclusion in relation to the second question makes it unnecessary to resolve the first, persuades me that it is undesirable for the court to express any opinion on the first question.
  1. The second question was whether on its proper interpretation s 163 of the Act (formerly s 125) entitled a person authorised by the body corporate to enter Lot 98 for the purposes of maintenance of the common property by cleaning the windows. Section 163 provides:

“163  Power to enter lot

(1)A person (an “authorised person”) authorised by the body corporate for a community titles scheme may enter a lot included in the scheme, or common property the subject of an exclusive use by-law, and remain on the lot or common property while it is reasonably necessary –

(a)to inspect the lot or common property and find out whether work the body corporate is authorised or required to carry out is necessary; or

(b)to carry out work the body corporate is authorised or required to carry out.

(2)The power of entry may be exercised –

(a)in an emergency – at any time; and

(b)in other cases –

(i)for entry to the lot mentioned in subsection (1) – at a reasonable time after at least 7 days notice of the intended entry has been given to-

(A)  the owner of the lot; or

(B)  if the owner is not in occupation of the lot – the occupier of the lot; and…

(iii)in compliance with the security or other arrangements or requirements ordinarily applying for persons entering the lot or the common property.”

  1. The District Court judge held that the body corporate’s claim under s 163 was “incapable of succeeding in respect of window cleaning in ordinary circumstances". He expressed doubt "whether cleaning windows represents 'work' for the purposes of s 125". He wrote,

"In my opinion, 'work' effects a change more significant than rendering something cleaner.  I accept qualifications would have to be made to a broad proposition along those lines.  For example, cleaning out air conditioning ducting to enhance efficient functioning or guard against health risks could be seen as work.  In other contexts, undoubtedly, cleaning would constitute work."[5]

He observed that if lots could be used for access to common property for a wide range of what might be seen as "everyday" purposes, lot owners’ ability to enjoy their property might be grossly impaired.  He concluded:

"It might be said that it is unsatisfactory that the body corporate will be able to maintain its buildings wholly clean and sparkling only at unnecessary expense, in view of the adjudicator's and the court’s conclusions.  This may be seen as a deficiency in the Act, but it is unrealistic to expect legislation to provide an easy solution for every practical situation.  The true fault lies with those who devised or approved unsatisfactory, inadequate building and 'subdivision' designs, or failed to establish binding arrangements which would overcome deficiencies in secure legal and practical access for the body corporate to parts of buildings it might be useful or important to get to in practice."[6]

  1. Doubtless in response to that reasoning, counsel for the body corporate embarked upon an elaborate examination of the meaning of "work".  However, as counsel for Mr Searle conceded, "As a matter of ordinary parlance of course there wouldn't be any serious contention that the activity of cleaning a window would [not] fall within the description of 'work'."  Quite apart from whether the meaning of such a commonplace word is a question of law, it seems to me that the applicant’s approach is misdirected. A person authorised by the body corporate is plainly entitled to enter and remain on Lot 98 while it is reasonably necessary "to carry out work the body corporate is authorised or required to carry out".  In my judgment the question is whether cleaning the windows was work which the body corporate was authorised or required to carry out.
  1. In support of an affirmative answer to that question counsel for the body corporate referred to s 109 of the Body Corporate and Community Management (Standard Module) Regulation 1997.  It was common ground that the present scheme was covered by that section.  It provides:

“109 (1)The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.

(2)To the extent that lots included in the scheme are created under a building format plan of subdivision, the body corporate must –

(a)maintain in good condition –

(ii)doors, windows and associated fittings situated in a boundary wall separating a lot from common property …”

Counsel submitted that by reason of that section the body corporate was obliged to maintain windows in good condition.

  1. For Mr Searle it was originally argued that window cleaning was not maintenance and that the activity therefore could not fall within s 109 of the regulation. However in the course of argument counsel conceded that the body corporate had the right to enter and clean windows when it was necessary for maintenance purposes. He submitted that "maintain in good condition" meant something quite different from "keep clean". Maintenance, went the submission, first required the building to be in a state of structural decay or deterioration or physical disrepair. Only if a state of uncleanliness became so profound as to warrant the conclusion that part of the structure, namely the windows, was in a state of disrepair would the body corporate be entitled to enter the premises.
  1. To answer the question posed above[7] it is necessary to keep the precise words of the section being construed in mind. Those words are "maintain in good condition".  References to "maintenance" or "maintenance work" abstracted from a context are unhelpful.  "Maintenance" may in some contexts be apt to refer to the process of keeping property in good repair.  On the other hand, it may have a wider meaning.  Under s 119(1)(a) of the regulation "maintenance services" may include both cleaning and repairing, as well as painting, pest prevention or extermination and mowing. However it is a distraction to consider whether cleaning falls within "maintenance". "Maintain" may mean "keep".  That is the sense in which it is used in s 110:

110(1)   The body corporate must –

(a)maintain a mailbox clearly showing the body corporate’s name in a suitable position at or near the street alignment of the scheme land; or

(b)make suitable alternative arrangements for the receipt of mail.

(2)The body corporate may maintain a notice board for the   display of notices and other material of interest to the owners or occupiers of lots in a suitable position on the common property.”

That is its usual meaning in covenants to "maintain in good repair" or "maintain in good condition".  It is used in that sense in s 109.

  1. "Condition" is not a word of precise meaning. However, as Davies JA pointed out during argument, similar phrases used in the context of the law of landlord and tenant may be relevant. In that context one invariably finds covenants to maintain premises in good repair. The form of words varies. Sometimes a covenant will require a party to maintain premises in good repair and condition. Care must be used in applying such cases. The English Court of Appeal has said:

"The language of repairing covenants, and commercial and social contexts in which they occur, are very variable.  A decision on the language of one clause is never decisive, and may sometimes not even be helpful, as to the meaning of another clause, even though it uses some of the same words."[8]

In that case the court held that an obligation to maintain a dwelling in good condition was "intended to mark a separate concept and to make a significant addition to what is conveyed by the word repair." The obligation required the carrying out of works to prevent severe mould.

  1. Section 109 uses only "condition", not "repair".[9]  The obligation imposed by the section to maintain "in good condition" must include an obligation to keep in good repair.  That is evident from the list of objects which must be maintained in good condition under sub-s (2) and from the reference to structurally sound condition in sub-s (1).  There is however nothing in the wording of the section to suggest that the obligation to maintain in good condition is limited to an obligation to maintain in good repair.  "Condition" naturally conveys a wider notion than that.  It does no violence to language to apply it to the state of cleanliness of the common property.  Cleaning the windows is one activity which may constitute maintaining the property in good condition.
  1. Whether at any given time it is necessary to clean the windows in order to maintain them in good condition will necessarily be a question of fact. It must be judged by reference not only to the nature and extent of the dirtiness of the windows, but also to the location of the building and the use of a lot within it. Perfect cleanliness is both unattainable and unmaintainable. What amounts to good condition must be determined by reference to the circumstances. I make no finding of fact in asserting that the obligation to maintain the exterior of windows in good condition includes the obligation to clean them from time to time. In the environment of the Gold Coast that is a matter of commonsense.
  1. Given the refusal of Mr Searle to permit any cleaning to take place, the adjudicator ought to have made the declaration sought. He refused it because he followed a decision of another adjudicator that "the general power to enter a lot as provided by section 125 of the Act does not allow a lot to be used as a means of access to the common property". He held that the basis for entry to a lot under the section must be to inspect the lot or the common property in order to find out whether work is necessary or alternatively to carry out such work. The District Court judge expressly refrained from commenting on this reasoning. Counsel for Mr Searle did not support it in this Court. It suffices to say that it discloses no reason for refusing the declaration sought by the body corporate.

Orders

  1. Although the appeal is only on questions of law it is necessary to formulate a workable form of order. Such an order would be:
  1. Extend time for filing the application for leave to appeal to 13 June 2003.
  1. Leave to appeal granted.
  1. Appeal allowed.
  1. Set aside the order of the District Court made on 13 March 2003.
  1. In lieu order as follows:

(a)appeal allowed;

(b)set aside the order of the adjudicator made on 19 September 2002;

(c)in lieu, declare that under s 163 of the Body Corporate and Community Management Act 1997 a person authorised by the body corporate is entitled three times a year or more frequently if the circumstances so require to enter and remain on Lot 98 while it is reasonably necessary to do so for the purpose of maintaining the windows within the common property by cleaning them;

(d)order that the first respondent pay the appellant's costs of and incidental to the appeal to be assessed.

  1. Order that the first respondent pay the appellant's costs of and incidental to the appeal to be assessed.
  1. I would allow the parties 14 days from the date of delivery of these reasons to file written submissions as to the form of order which should be made.

Footnotes

[1] In early 2003, while the application to this Court was pending, the Act was renumbered and certain sections were relocated into the Land Title Act 1994.  Statutory references in these reasons are to the relevant provisions as renumbered and relocated.

[2] The other respondents took no part in the proceedings in this Court.

[3] Section 267.

[4] Section 289(2).

[5] [2003] QDC 011 at para [17].

[6] Ibid at para [19].

[7] Para [19].

[8] Welsh v Greenwich LBC [2001] L & TR 12 at para [20].

[9] Ibid at para [21].

Close

Editorial Notes

  • Published Case Name:

    Oceana on Broadbeach Community Titles Scheme 24163 v Searle & Ors

  • Shortened Case Name:

    Oceana on Broadbeach Community Titles Scheme 24163 v Searle

  • Reported Citation:

    [2004] 1 Qd R 229

  • MNC:

    [2003] QCA 283

  • Court:

    QCA

  • Judge(s):

    Davies JA, Williams JA, Fryberg J

  • Date:

    11 Jul 2003

Litigation History

Event Citation or File Date Notes
Appeal Determined (QCA) [2003] QCA 283 11 Jul 2003 -
Special Leave Refused [2004] HCATrans 386 08 Oct 2004 -

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)