Avranik Pty Ltd v Lloyd - [2013] VSCA 244

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0147

AVRANIK PTY LTD	Appellant
AVRANIK PTY LTD	v
RODNEY JOHN LLOYD & ORS	Respondents

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JUDGES	OSBORN and SANTAMARIA JJA and DIXON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	3 September 2013
DATE OF JUDGMENT	11 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 244
JUDGMENT APPEALED FROM	Avranik Pty Ltd v Lloyd & Anor [2012] VSC 306 (Garde J)

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OWNERS CORPORATION – Decision of the Victorian Civil and Administrative Tribunal – Appeal to the Trial Division of the Supreme Court of Victoria – Appeal to the Court of Appeal – Rules of owners corporation – Licenses for car spaces – Entitlement of members from time to time under the rules – Principles of construction – Owners Corporation Act 2006 ss 138, 162 – Appeal dismissed.

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APPEARANCES:

Counsel

Solicitors

For the Appellant

Mr M Pearce SC with

Mr R Hay

Donaldson Trumble Legal

For the Respondents

Mr M Shand QC with

Mr E J S Szabo

Hill, Perkins & Co

OSBORN JA:

This appeal concerns the interpretation of body corporate rules and a licence granted under those rules governing the entitlement (if any) of the first and second respondents to the use of a car parking space in conjunction with a penthouse apartment.

The appellant (‘Avranik’) was the initial registered proprietor of seven penthouse units created by the subdivision of a pre-existing lot comprising the penthouse levels of the relevant apartment building. Avranik obtained exclusive licences to the use of seven car spaces in conjunction with the ownership of the seven penthouse units.

The Victorian Civil and Administrative Tribunal (‘VCAT’) and in turn Garde J on appeal at first instance have concluded that when the first and second respondents purchased one of the penthouse units:

(a) they became entitled to the grant of one of the car park licences by the owners corporation; and

(b) the licence held by Avranik had terminated with respect to the car park in respect of which the first and second respondents became entitled.

In my opinion Garde J was correct to uphold the decision of VCAT for the following reasons.

Background facts

471 Little Bourke Street comprises a hotel and apartment complex. A plan of subdivision was registered on 26 March 1998 enabling the sale of separate apartments within the building. In early 1999 Avranik agreed to buy the penthouse floor of the building which was then comprised in lot 1100.

On 10 May 1999 the body corporate amended its special rules and on the same day a set of consolidated rules was registered with the Office of Titles.

The rules relevantly provided:

2 Car Spaces
The body Corporate must allocate car spaces in the basement area of the common property to members of the Body Corporate from time to time, as follows:
Lot 1100 – 7 car spaces (‘penthouse spaces’)
Lot G – 5 car spaces
Lot 100, 200 and 700 – 2 car spaces per lot
Lot 300, 400, 500, 600, 800, 900…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Avranik Pty Ltd v Lloyd

Details

AGLC: Avranik Pty Ltd v Lloyd & ors [2013] VSCA 244
Case: [2013] VSCA 244
Decision Date: 11 September 2013

CaseChat Overview and Summary

In the matter of Avranik Pty Ltd v Lloyd, the respondent appealed against a decision of the Victorian Civil and Administrative Tribunal (VCAT). The Tribunal had ruled that the respondent, as a member of an owners corporation, was not entitled to a license for a car space because he was not the owner of a unit at the time of the decision. The appeal was brought to the Trial Division of the Supreme Court of Victoria and subsequently to the Court of Appeal.

The central issue before the court was the interpretation of the rules of the owners corporation concerning the entitlement of members to licenses for car spaces. Specifically, the court had to determine whether the respondent, who was a member of the corporation but did not own a unit at the time of the decision, was entitled to a license under the rules. This involved examining the principles of construction of the rules and relevant statutory provisions under the Owners Corporation Act 2006.

The Court of Appeal found that the rules were clear and unambiguous in their terms. The rules stated that licenses for car spaces were to be issued to members who owned units, and since the respondent did not own a unit at the time of the decision, he was not entitled to a license. The court held that the principles of construction did not support a broader interpretation of the rules. The appeal was dismissed, and the decision of the Tribunal was upheld.

The final orders of the court confirmed the dismissal of the appeal and upheld the decision of the Tribunal that the respondent was not entitled to a license for a car space.

Orders