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  4. Bartholomeusz v Body Corporate for 211 Ron Penhaligon Way Offices Community Titles Scheme 25277 - [2022] QSC 222

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Bartholomeusz v Body Corporate for 211 Ron Penhaligon Way Offices Community Titles Scheme 25277[2022] QSC 222

Bartholomeusz v Body Corporate for 211 Ron Penhaligon Way Offices Community Titles Scheme 25277[2022] QSC 222

SUPREME COURT OF QUEENSLAND

CITATION:

Bartholomeusz & anor v Body Corporate for 211 Ron Penhaligon Way Offices Community Titles Scheme 25277 [2022] QSC 222

PARTIES:

FARLEY BARTHOLOMEUSZ and ROSEMARY BARTHOLOMEUSZ

(plaintiffs)

v

BODY CORPORATE FOR 211 RON PENHALIGON WAY OFFICES COMMUNITY TITLES SCHEME 25277

(defendant)

FILE NO/S:

BS 7277 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Date of Order: 8 September 2022
Date of Further Orders: 19 October 2022
Date of Publication of Reasons: 19 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

8 September 2022

JUDGE:

Martin SJA

ORDER:

Date of Order: 8 September 2022

  1. The plaintiffs’ application for an interlocutory injunction is dismissed.

Date of Further Orders: 19 October 2022

  1. The Statement of Claim is struck out. The plaintiffs have leave to replead.
  2. I will hear the parties on costs.

CATCHWORDS:

REAL PROPERTY – BOUNDARIES OF LAND – ENCROACHMENT OF BUILDINGS AND PARTY WALLS – MEANING OF “ENCROACHMENT” – MEANING OF “BUILDING” – where the plaintiffs own a lot in a commercial building complex – where the lot shares a boundary with the common property – where a wall was erected that cut across the common property and enclosed it for exclusive use of the plaintiffs – where the plaintiffs allege that there has been an encroachment, and seek orders that part of the common property upon which the encroachment extends be transferred  to them – where the plaintiffs seek to restrain the defendant from further undertaking any demolition works with respect to the alleged encroachment – whether the plaintiffs have established a prima facie case – whether there has been an “encroachment” – whether the relevant walls are “buildings” – whether the balance of convenience lies in favour of restraining the demolition works

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION – where the plaintiffs claim an order pursuant to ss 184 and 185(1)(b) of the Property Law Act (PLA) that the enclosed area be transferred to them – where the defendant has applied for the plaintiffs’ statement of claim to be struck out on the basis that it discloses no reasonable cause of action – where the PLA requires that there be an “encroachment” – where the PLA requires that the encroachment be by a “building” – whether the statement of claim discloses a reasonable cause of action

Property Law Act 1974, s 184, s 185

Uniform Civil Procedure Rules 1999, r 171

Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57

Bradto Pty Ltd v State of Victoria (2006) 15 VR 65

Ex parte Van Achterberg [1984] 1 Qd R 160

Hardie v Cuthbert (1988) 65 LGRA 5

HS South Brisbane Pty Ltd v United Voice [2019] QSC 274

Santos Ltd v Fluor Australia Pty Ltd (No 1) [2020] QSC 372

Shadbolt v Wise [2002] QSC 348

Tallon v Proprietors of Metropolitan Towers Building Units Plan No 5157 [1977] 1 Qd R 102

COUNSEL:

S Taylor for the plaintiffs

BWJ Kidston for the defendant

SOLICITORS:

Chambers Russell Lawyers for the plaintiffs

Active Law for the defendant

  1. [1]
    In this action, the plaintiffs seek orders under s 184 of the Property Law Act 1974 (PLA) that part of the common property in a building – upon which they allege that there has been an encroachment – be transferred to them.
  2. [2]
    On the hearing of this application:
    1. (a)
      the plaintiffs seek to restrain the defendant from further undertaking any demolition works with respect to the alleged encroachment,
    2. (b)
      the defendant seeks an order striking out the Statement of Claim.
  3. [3]
    For the reasons which follow the application to restrain the defendant is dismissed and the application to strike out the Statement of Claim is allowed.

The building and Lot 5

  1. [4]
    The plaintiffs own Lot 5 in a two-level commercial building in Robina. Under the relevant scheme, the building contains eight lots and common property. The plan of the second level, upon which Lot 5 is located, is at Annexure A.
  2. [5]
    Lot 5 shares a boundary with the common property. At some time (the parties disagree as to when), a wall was erected that cut across the common property between the corner of the toilets and the internal side of the building’s exterior wall (the Wall Assembly). The Wall Assembly is constructed of aluminium framing with two fixed glass panels and aluminium framed glass doors. The effect of constructing the Wall Assembly was to enclose 29 square metres of common property for the sole use of the owner or tenant of Lot 5 (the Disputed Area). The plan of the second level, demonstrating where the Wall Assembly was constructed, is at Annexure B.
  3. [6]
    On 7 August 1998, the plaintiffs purchased Lot 5. It is pleaded that the plaintiffs relied upon their solicitor’s advice that there were no encumbrances over the lot when they purchased the lot. The relevance of that assertion is difficult to discern. They did not inspect the site. It was not until 2013 that the plaintiffs discovered that the Disputed Area was part of the common property and not part of Lot 5.
  4. [7]
    The current tenant of the plaintiffs is Glenique Pty Ltd, a company associated with the firm Turnbull Mylne Solicitors. The tenant uses the Disputed Area as a reception area and a meeting room. The tenant erected some internal partitions in the Disputed Area to create the meeting room (the Office Walls). The Office Walls are plasterboard with internal framing and are fixed to the floor and the suspended grid ceiling, similar to common internal office partitioning. There are two Office Walls which are at 90 degrees to each other in the bottom right corner of the Disputed Area. There is a third office wall that runs parallel to the boundary of Lot 5 and the common property boundary, but this wall appears to be within Lot 5. A hand-drawn diagram depicting the location of the Office Walls and the layout of the reception area and meeting room is at Annexure C. 

The application to restrain

  1. [8]
    On Saturday 3 September 2022, the defendant’s contractor commenced work to remove what it says are the trespassing structures from the common property. The plaintiffs’ tenant interfered with the work, and at 6:00pm the plaintiffs’ counsel appeared before Williams J to seek an urgent injunction to restrain the work pending the determination of the substantive claim. The defendant undertook to refrain from carrying out further work so that the application for an injunction could be heard and determined in an orderly manner. On the basis of that undertaking, the injunction application was adjourned to 8 September 2022 when it was heard with the strike-out application.

The injunction

  1. [9]
    At the hearing on 8 September 2022, I ordered that the plaintiffs’ application for an interlocutory injunction be dismissed. These are my reasons for making that order.
  2. [10]
    The relevant principles that must be considered in granting an interlocutory injunction were discussed by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill:[1]

“The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief… The second inquiry is… whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.” (citations omitted)

  1. [11]
    In Bradto Pty Ltd v State of Victoria,[2] Maxwell P and Charles JA held that:

“… whether the relief sought is prohibitory or mandatory, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.” (emphasis added)

Is there a prima facie case?

  1. [12]
    The question of whether there is a prima facie case must be considered in the light of the relevant legislation concerning the power of the court with respect to encroachments.
  2. [13]
    The relevant sections of the PLA are set out below.

182 Definitions for div 1

In this division—

adjacent owner means the owner of land over which an encroachment extends.

boundary means the boundary line between contiguous parcels of land.

building means a substantial building of a permanent character, and includes a wall.

encroaching owner means the owner of land contiguous to the boundary beyond which an encroachment extends.

encroachment means encroachment by a building, including encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil.

owner means any person entitled to an estate of freehold in possession—

  1. (a)
    whether in fee simple or for life or otherwise; or
  1. (b)
    whether at law or in equity; or
  1. (c)
    whether absolutely or by way of mortgage, and includes a mortgagee under a registered mortgage of a freehold estate in possession in land under the Land Title Act 1994.

subject land means that part of the land over which an encroachment extends.

183 Application of div 1

This division applies despite the provisions of any other Act.

184 Application for relief in respect of encroachments

  1. (1)
    Either an adjacent owner or an encroaching owner may apply to the court for relief under this division in respect of any encroachment.
  1. (2)
    This section applies to encroachments made either before or after the commencement of this Act.

185 Powers of court on application for relief in respect of encroachment

  1. (1)
    On an application under section 184 the court may make such order as it may deem just with respect to—
  1. (a)
    the payment of compensation to the adjacent owner; and
  1. (b)
    the conveyance, transfer, or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest in the land or of any easement, right, or privilege in relation to the land; and
  1. (c)
    the removal of the encroachment.
  1. (2)
    The court may grant or refuse the relief or any part of the relief as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider, amongst other matters—
  1. (a)
    the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be; and
  1. (b)
    the situation and value of the subject land, and the nature and extent of the encroachment; and
  1. (c)
    the character of the encroaching building, and the purposes for which it may be used; and
  1. (d)
    the loss and damage which has been or will be incurred by the adjacent owner; and
  1. (e)
    the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment; and
  1. (f)
    the circumstances in which the encroachment was made.

Is there an ‘encroachment’?

  1. [14]
    An application under s 184 may be made in respect of any encroachment. The provisions relating to encroachment are in Part 11 of the PLA. Part 11 is based on, and the definitions are relevantly the same as, the provisions in the repealed Encroachment of Buildings Act 1955. That Act was relevantly the same as the  Encroachment of Buildings Act 1922 (NSW). Thus, decisions on the New South Wales statute will inform decisions on Part 11 of the PLA.
  2. [15]
    In HS South Brisbane Pty Ltd v United Voice,[3] Bowskill J (as her Honour then was) discussed the purpose of legislation relating to encroachments. Her Honour noted:

[33] The purpose of the 1922 New South Wales Act was referred to by Young J in Hardie v Cuthbert (1988) 65 LGRA 5 at 6:

“The Encroachment of Buildings Act 1922 (NSW) was passed in New South Wales as remedial legislation to overcome a problem where innocent and in some cases not so innocent people were being held to blackmail by neighbours as a result of faulty surveys that were carried out earlier this century and by other surveying errors or building errors which were not their fault. I have been referred to the second reading speech and committee debate on the Act pursuant to s 34 of the Interpretation Act 1987 (NSW) and it would seem that there were quite a few cases in the early part of this century where children had moved surveyor’s pegs or builders’ pegs or otherwise monuments were in the wrong place without any real fault on anyone where the legal owner was exacting unconscionable compensation or alternatively refusing to accept compensation and insisting on demolition. The Act was passed to enable the Court to adjust rights in that situation…

The Act was remedial legislation and in the light of s 33 of the Interpretation Act one must bear in mind its purpose and give it the effect to secure the purpose rather than to defeat the purpose of the legislature.

The Act has not been before the courts for consideration on very many occasions. This, it would appear, in fact fulfils what the legislature intended because the ministers when introducing the Act made it clear that the government thought that 99 per cent of cases would be settled because neighbours would know that the court had an overriding duty to do what was fair, people would accept themselves what was fair and not try and blackmail their neighbours. Those half a dozen or so cases which have come before the courts have, almost without exception, shown that the court is construing this legislation in a purposive and beneficial way.”

  1. [16]
    Further, in Amatek Ltd v Googoorewon Pty Ltd,[4] the High Court dealt with the New South Wales Act in the following way:

“The purpose of the Act is to be ascertained from its language. So far as one may define the purpose of the Act from its long title, that purpose does not extend to the conferring of a general power to change the boundaries between contiguous parcels of land. It is an Act ‘to make provision for the adjustment of boundaries where buildings encroach on adjoining land; to facilitate the determination of boundaries; and for purposes connected therewith’. The twin purposes of the Act are to facilitate the determination of existing boundaries (provided for by s 9) and to permit the adjustment of boundaries when, but only when, buildings encroach on adjoining land (provided for by s 3) …”[5] (emphasis added)

  1. [17]
    The High Court in Amatek interpreted the meaning of an ‘encroachment’ narrowly. In that case, the parties owned contiguous parcels of land (lots 17 and 18). Googoorewon owned lot 18 and developed it as a nursery for the commercial growing of trees. It selected the best site for that purpose and erected a number of structures. Amatek purchased lot 17 intending to quarry the land. After completion of the purchase, it discovered that the structures erected by Googoorewon stood wholly within lot 17, approximately 40 metres from the boundary. Googoorewon brought proceedings under the Encroachment of Buildings Act 1922 (NSW) seeking orders that a triangular parcel of land, which included the area on which the improvements stood, be conveyed to it. The High Court held that “an ‘encroachment’ under the Act is an encroachment by a building that traverses the ‘boundary’ between the contiguous parcels of land.”[6] Where a building is located entirely within the property of another (as was the case with the building erected by Googoorewon) there will be no encroachment.
  2. [18]
    The parties focused their submissions mainly on the Wall Assembly. Mr Kidston, on behalf of the defendant body corporate, submitted that the Wall Assembly is not an encroachment for the purpose of Part 11 of the PLA, because it does not traverse the boundary. Mr Kidston submitted that the uncontested evidence is that these walls are constructed solely on the defendant’s common property. The defendant relies on Amatek to submit that the Wall Assembly cannot be considered an encroachment. I agree. The Wall Assembly is built entirely within the common property. It does not traverse any boundary between the common property and Lot 5. It therefore cannot be considered an encroachment.
  3. [19]
    Mr Taylor, on behalf of the plaintiffs, conceded that the Wall Assembly cannot be considered an encroachment in line with Amatek, but submitted that the plaintiffs are not merely claiming the Wall Assembly, but rather the entire 29 square metre Disputed Area which has been enclosed by the Wall Assembly. Mr Taylor’s submission appeared to be that the entire meeting room and reception area space was the encroachment. This claimed area is depicted by a yellow outline in Annexure C.
  4. [20]
    I am not persuaded that the Disputed Area as a combined ‘space’ can be described as an encroachment. The statutory power to require transfer of land is confined to ordering the transfer of land upon which the encroachment extends.[7] No additional land may be transferred, even if such a transfer is deemed convenient. The High Court in Amatek described this requirement as one of ‘verticality’ of the encroachment with respect to the subject land:

“By the definition of ‘subject land’, the land of the ‘adjacent owner’ which the court may order to be conveyed, transferred or leased to the encroaching owner pursuant to s. 3(2)(b) is only ‘that part of the [adjacent owner’s] land over which an encroachment extends’. The subject land is thus identified as the land vertically under the encroachment.”[8] (emphasis added)

  1. [21]
    The plaintiffs’ claim for the entire Disputed Area does not satisfy this requirement for verticality. It is true that this entire space is being occupied by the plaintiffs’ tenant. But it is buildings that encroach, not people.[9] The highest the plaintiffs could sensibly put their claim is for the land vertically under the Office Walls.
  2. [22]
    In any event, the claim for the entire Disputed Area (or for merely the Office Walls for that matter) is not pleaded. All that is pleaded with respect to an ‘encroachment’ is the following at paragraph 12:

“Lot 5 when constructed or soon after construction in 1997 saw a wall erected that cut across and incorporated some 29 square metres of common property and retained it for utilisation by the tenant and/or owner of Lot 5.”

  1. [23]
    The plaintiffs have not established a prima facie case that the Wall Assembly is an encroachment. However, if I am wrong about this, I will also consider whether there is a prima facie case that the Wall Assembly and Office Walls are ‘buildings’.

Is there a ‘building’?

  1. [24]
    An application under s 184 may be made in respect of any encroachment, which is defined to mean an ‘encroachment by a building’.[10] ‘Building’ refers to a building of a substantial and permanent character, including a wall.[11]
  2. [25]
    The plaintiffs and defendant disagree on whether the Wall Assembly and Office Walls are ‘buildings’ for the purposes of Part 11.
  3. [26]
    Guidance on the types of structures that will be considered ‘buildings’ can be found in the judgment of Carter J in Ex parte Van Achterberg[12]:

“…the intention of the legislature is… to deal with an encroachment which is man-made with the building materials of the day, which is of a substantial and lasting character, which is brought into existence for domestic or industrial purposes and which is of such a kind that the legal rights of those affected by it may best be adjusted by permitting it to remain in place rather than by ordering its removal on the ground that it is merely a trespassing encroachment upon the land of another.”[13]

  1. [27]
    The Wall Assembly and Office Walls are not of a substantial and permanent character. They are not ‘buildings’ falling within the definition in Part 11 of the PLA. The Wall Assembly is constructed of aluminium framing with two fixed glass panels. It is fixed to the two common property walls with bolts. It does not extend to the true ceiling. It is fixed to the suspended grid ceiling. It is like common internal office glass partitioning observed in numerous offices. The Office Walls are made of plasterboard with internal framing. They also only extend to the suspended grid ceiling, and they too are like common office fit out. The Body Corporate has received a quotation to disassemble and relocate the Wall Assembly, and demolish the Office Walls, together for a modest $10,846.55. This work can be done within one day.
  2. [28]
    I was also taken to the lease between the plaintiffs and their current tenant, by which the tenant has agreed to remove the Office Walls at the expiration of the lease. Mr Kidston submitted that the Office Walls cannot be substantial or permanent in circumstances where the plaintiffs and their tenant have agreed they will be temporary. I agree.
  3. [29]
    Mr Taylor for the plaintiffs emphasised that the wall has been in existence for 25 years. This fact is contested. In any event, ‘substantial’ relates to the nature of the building. It has no temporal element in this context.
  4. [30]
    The plaintiffs have not established a prima facie case that the Wall Assembly and Office Walls are buildings.

The balance of convenience

  1. [31]
    If I am in error with respect to the existence of a prima facie case, I will consider the balance of convenience.
  2. [32]
    In submitting that the balance of convenience favoured granting the injunction, the plaintiffs relied on the affidavit of Mr Mylne (the principal of the firm which is the plaintiffs’ tenant). Mr Mylne deposed that “…[t]he removal of the meeting room and the reception area will make it very difficult if not impossible for me to continue practicing in the present layout”. The plaintiffs submitted that if the injunction is not granted, and the Wall Assembly and Office Walls are removed, there is a risk that the tenant will leave and the plaintiffs will lose a reliable, long-standing tenant. They say that this cannot be remedied by damages. It is not Mr Mylne’s evidence, though, that he will terminate the lease. Rather, it is that it will make it difficult for him to continue in the ‘present layout’. That may be the case, but it is the disadvantage that will be suffered by the plaintiffs, not of their tenant, which I am to take into account.
  3. [33]
    The defendant submitted that if an injunction is granted, the defendant will lose the use of that part of the common property. The defendant provided evidence that the common property area is not air conditioned, and the only opening windows are within the Disputed Area. Because the common property cannot be ventilated by the windows in the Disputed Area, the common property becomes stiflingly hot in the summer months. It was further submitted that the balance of convenience lies in favour of removing the Wall Assembly and Office Walls, due to the works being minor and inexpensive. If, after a trial, the plaintiffs are successful, it will similarly be inexpensive to reinstate the Wall Assembly and Office Walls. Further, there was no proposal by the plaintiffs to pay commercial rent for the Disputed Area.
  4. [34]
    For the above reasons, the plaintiffs failed to satisfy me that the balance of convenience lies in favour of granting the injunction. I therefore dismissed the injunction application.

Strike out application

  1. [35]
    A part or all of a pleading may be struck out under r 171:

“(1) This rule applies if a pleading or part of a pleading—

  1. (a)
    discloses no reasonable cause of action or defence; or
  1. (b)
    has a tendency to prejudice or delay the fair trial of the proceeding; or
  1. (c)
    is unnecessary or scandalous; or
  1. (d)
    is frivolous or vexatious; or
  1. (e)
    is otherwise an abuse of the process of the court.
  1. (2)
    The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.
  1. (3)
    On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.”
  1. [36]
    The relevant principles have been conveniently collected by Bradley J in Santos Ltd v Fluor Australia Pty Ltd (No 1)[14] and I respectfully adopt his summary:

“[21] The ways in which a party may challenge an opponent’s pleading under r 171, and their derivation, were explained by Jackson J in Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd.

[22] The Fluor parties submit the paragraphs pleading the MC Delay Costs Claim do not disclose a reasonable cause of action, because they are not capable in law of giving rise to an entitlement to the relief Santos claims or proposes to claim.

[23] The power to strike out a pleading is used “sparingly and only in clear cases” with a view to not improperly depriving a party of the opportunity for a trial.  As the majority observed in Agar v Hyde:

“a court whose jurisdiction is regularly invoked in respect of a local defendant … should not decide the issues raised in those proceedings in a summary way except in the clearest of cases”.

[24] To justify summary termination of the proceedings, there must be “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”.

[25] It has also been said that “once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it”, the power to strike out cannot be exercised. However, the court should not shrink from striking out a pleading which does not disclose a reasonable cause of action. The court may do so even if prolonged argument is necessary in order to expose the defect in the pleading.

[26] The court’s power to strike out a pleading is discretionary. The factors that tend in favour of its exercise include that striking out may make a trial unnecessary or may substantially reduce the burden of preparing for a trial or the burden of the trial itself.

[27] As in other respects, the court is to avoid undue technicality. A pleading affected by a formal defect, omission or inaccuracy may be healed by amendment. When a defendant’s challenge to such a pleading is successful, the court must consider whether allowing the plaintiff to deliver a new or amended pleading in its place facilitates the just and expeditious resolution of the real issues at a minimum of expense. When a pleading is struck out, the court would ordinarily give leave to replead, where adding missing elements or amending erroneous ones seems possible.

[28] Where the material before the court does not suggest that the party could plead a reasonable cause of action, leave to replead would ordinarily be refused. Indeed, a logical consequence may be to give summary judgment for the defendant on the claim or the relevant part. The time, resources and opportunities available to such a plaintiff, as well as the extent of care and skill required to formulate a properly pleaded case, may be relevant to this consideration. (Citations omitted).”

  1. [37]
    The plaintiffs seek relief pursuant to Part 11 of the PLA. Specifically, the plaintiffs claim an order pursuant to ss 184 and 185(1)(b) of the PLA that the Disputed Area be transferred to the plaintiffs. The plaintiffs also seek an order that they pay to the defendant the compensation which the Court judges to be fair, reasonable and just pursuant to s 185(1)(a).
  2. [38]
    The defendants contend that the pleadings do not disclose a reasonable cause of action pursuant to s 184, because:
    1. (a)
      it has not been pleaded that there is any ‘encroachment’ which comes within the definitions in Part 11; and
    2. (b)
      it has not been pleaded that there is any ‘building’ which comes within the definitions in Part 11. 
  3. [39]
    A large part of the pleading is concerned with the state of knowledge of the plaintiffs when they bought Lot 5 as to the existence of any encumbrances over that lot. That is irrelevant to the claim they make.
  4. [40]
    There are parts of the Statement of Claim which approach the issue of encroachment but do not clearly assert it. For example, in paragraph 12 it is pleaded:

“Lot 5 when constructed or soon after construction in 1997 saw a wall erected that cut across and incorporated some 29 square metres of common property and retained it for utilisation by the tenant and/or owner of Lot 5.”

  1. [41]
    Later in the pleading it is asserted that a survey of Lot 5 was undertaken and the following is pleaded:

“29. The survey revealed the encroachment by construction of a wall over the common area (in part) that quarantined 29 square metres of common property which was included within the ‘boundaries of Lot 5’.

30. The encroachment by the wall quarantining the 29 square metres (the encroached area) had been included in the sale of Lot 5 to the Plaintiffs by the vendors at the time the original contract of sale was settled as between the Plaintiffs and Ron Pen Pty Ltd.”

  1. [42]
    The plaintiffs then go on to plead that Lot 5 contained the quarantined area bounded by walls containing the area of 29 square metres. Having pleaded that, the plaintiffs then plead that they have attempted (unsuccessfully) to acquire the quarantined area. There is then a series of assertions about the manner in which the relevant body corporate has conducted itself.
  2. [43]
    The plaintiffs have not pleaded anything with respect to the other walls referred to above. The pleading with respect to the wall which has been identified by both parties as the Wall Assembly does not satisfy the requirements of s 184. The plaintiffs do not plead an encroachment. They plead that a wall exists on common area which has the effect of enclosing that common area. There is no pleading of a “building” within the terms of s 184.
  3. [44]
    The remainder of the pleadings were discussed briefly in the hearing.
  4. [45]
    The statement of claim contains numerous paragraphs which go towards various board resolutions, the plaintiffs’ failure to secure a vote, and the appointment of the administrator. Mr Taylor submitted that these paragraphs are relevant because of a decision of Mullins J (as her Honour then was) in Shadbolt v Wise[15] where, Mr Taylor said, her Honour emphasised that seeking relief under Part 11 of the PLA should be a last resort. Mr Taylor submitted that it is therefore necessary to plead the steps the plaintiffs took to resolve the matter before commencing these proceedings. I do not read Shadbolt v Wise as requiring that. These paragraphs are irrelevant.
  5. [46]
    The pleading is inadequate. It does not disclose a cause of action.

Orders

  1. [47]
    The Statement of Claim is struck out. The plaintiffs have leave to replead.
  2. [48]
    The plaintiffs’ application for an interlocutory injunction is dismissed.
  3. [49]
    I will hear the parties on costs.

ANNEXURE A

Bartholomeusz v Body Corporate for 211 Ron Penhaligon Way Offices Community Titles Scheme 25277 [2022] QSC 222

ANNEXURE B

Bartholomeusz v Body Corporate for 211 Ron Penhaligon Way Offices Community Titles Scheme 25277 [2022] QSC 222

ANNEXURE C

Bartholomeusz v Body Corporate for 211 Ron Penhaligon Way Offices Community Titles Scheme 25277 [2022] QSC 222

Footnotes

[1](2006) 227 CLR 57 at 81-82.

[2](2006) 15 VR 65 at [35].

[3][2019] QSC 274.

[4](1993) 176 CLR 471.

[5]At 477.

[6]At 477-478.

[7]Tallon v Proprietors of Metropolitan Towers Building Units Plan No 5157 [1997] 1 Qd R 102 at 107.

[8]At 477.

[9]Amatek at 477.

[10]Section 182.

[11]Section 182.

[12][1984] 1 Qd R 160.

[13]At 162.

[14][2020] QSC 372.

[15][2002] QSC 348.

Close

Editorial Notes

  • Published Case Name:

    Bartholomeusz & anor v Body Corporate for 211 Ron Penhaligon Way Offices Community Titles Scheme 25277

  • Shortened Case Name:

    Bartholomeusz v Body Corporate for 211 Ron Penhaligon Way Offices Community Titles Scheme 25277

  • MNC:

    [2022] QSC 222

  • Court:

    QSC

  • Judge(s):

    Martin SJA

  • Date:

    19 Oct 2022

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471
2 citations
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Cite 1 - (1993) 176 CLR 471
Cite 2 - (1993) 176 CLR 471
Australian Broadcasting Corporation v O'Neill (2006 ) 227 CLR 57
2 citations
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Cite 1 - (2006 ) 227 CLR 57
Cite 2 - (2006 ) 227 CLR 57
Bradto v Victoria (2006) 15 VR 65
2 citations
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Cite 1 - (2006) 15 VR 65
Cite 2 - (2006) 15 VR 65
Ex parte Van Achterberg [1984] 1 Qd R 160
2 citations
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Cite 1 - [1984] 1 Qd R 160
Cite 2 - [1984] 1 Qd R 160
Hardie v Cuthbert (1988) 65 LGRA 5
2 citations
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Cite 1 - (1988) 65 LGRA 5
Cite 2 - (1988) 65 LGRA 5
HS South Brisbane Pty Ltd v United Voice(2019) 2 QR 556; [2019] QSC 274
2 citations
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Cite 1 - [2019] QSC 274
Cite 2 - [2019] QSC 274
Santos Limited v Fluor Australia Pty Ltd & Anor (No 1) [2020] QSC 372
2 citations
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Cite 1 - [2020] QSC 372
Cite 2 - [2020] QSC 372
Shadbolt v Wise [2002] QSC 348
2 citations
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Cite 1 - [2002] QSC 348
Cite 2 - [2002] QSC 348
Tallon v Proprietors of Metropolitan Towers [1997] 1 Qd R 102
1 citation
Jump To
Cite 1 - [1997] 1 Qd R 102
Tallon v Proprietors of Metropolitan Towers Building Units Plan No 5157 [1977] 1 Qd R 102
1 citation
Jump To
Cite 1 - [1977] 1 Qd R 102

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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