Body Corporate for Noosa on the Beach CTS 6417 v Hollis Partners Pty Ltd

[2002] QDC 86

DISTRICT COURT OF QUEENSLAND

CITATION:

Body Corporate for Noosa on the Beach CTS 6417 v Hollis Partners Pty Ltd [2002] QDC 086

PARTIES:

BODY CORPORATE FOR NOOSA ON THE BEACH CTS 6417 (appellant)

V

HOLLIS PARTNERS PTY LTD (respondent)

FILE NO/S:

24/01

DIVISION:

District Court at Maroochydore

PROCEEDING:

Appeal

DELIVERED ON:

9 May 2002

DELIVERED AT:

Maroochydore

HEARING DATE:

8 March 2002

JUDGE:

Dodds DCJ

ORDER:

Appeal allowed.  Order of the adjudicator set aside.  Order the respondent be prohibited from advertising and/or conducting the leasing, letting or sale of property whatsoever other than property part of CTS 6417 from lot 21 and/or the common property of CTS 6417.  Order the respondent pay the appellant’s costs of and incidental to the appeal and to the mention before the registrar.

CATCHWORDS:

PRACTICE – Appeal against adjudicator’s decision made pursuant to the dispute resolution provisions of Chapter 6 of the Body  Corporate and Community Management Act 1997 – whether the use of a lot under a Community Titles Scheme for general real estate activities is permissible under the Scheme by-laws – whether the adjudicator’s interpretation of by-law 14 was correct - where the adjudicator dismissed the appellant’s application that the respondent be restrained from conducting a general real estate business from the lot and/or the common property of the Scheme and for costs.

Body Corporate and Community Management Act 1997, ss 131(a)(i) and (ii), 237(2); 241;

Uniform Civil Procedure Rules 1999, rr 452(2), 757, 789, 982(1),

Hope v Bathurst City Council (1980) 144 CLR 1;

Humphries v Proprietors “Surfers Palms North” Group Titles Plan 1955 (1994) 179 CLR 597;

Vetter v Lake Macquarie City Council (2000) 75 ALJR 578.

COUNSEL:

Mr C J Carrigan for the appellant

Mr G W Scott for the respondent

SOLICITORS:

Short Punch & Greatorix for the appellant

Klooger Phillips Scott for the respondent

1. This is an appeal by Body Corporate for Noosa on the Beach, Community Titles Scheme 6417 (the Body Corporate) from an adjudicator’s decision made pursuant to the dispute resolution provisions of Chapter 6 of the Body Corporate and Community Management Act 1997 (the Act).

1. On 31 July, 2001 an adjudicator dismissed the body corporate’s application that Hollis Partners Pty Ltd be restrained from conducting a business known as Accom. Noosa BN 1779400 from lot 21 and/or the common property of Community Titles Scheme 6417 and for costs.

1. Pursuant to Part 12 of Chapter 6 of the Act, the Body Corporate may appeal to the District Court “but only on a question of law”: s 237(2) of the Act.

1. The appeal before the adjudicator called up the meaning of certain by-laws of the body corporate and provisions of a caretaking agreement and a letting agreement entered into by the appellant and the respondent. 

1. Community Title Scheme 6417 (the Scheme) comprises 31 lots.  Lots 1 to 10 are for commercial business and/or retail use, not residential.  Lots 11 to 20 and 22 to 31 are for residential purposes only.  Lot 21 is for use for…