Body Corporate for Sanderling At Kings Beach v Samsakopoulos (No.2)

The dispute before Judge Jarrett in the Supreme Court of Queensland concerned an application by the Body Corporate for Sanderling At Kings Beach for an order to enforce a by-law against Mr. Samsakopoulos. The Body Corporate sought to restrain Mr. Samsakopoulos from continuing to use a common property area, specifically a courtyard, for storage purposes, alleging this use breached by-law 14. Mr. Samsakopoulos contended that his use of the courtyard was permitted under the terms of his leasehold agreement and that the Body Corporate had implicitly waived its right to enforce the by-law.

The central legal issue was whether Mr. Samsakopoulos's use of the common property courtyard for storage constituted a breach of by-law 14, and if so, whether the Body Corporate was estopped from enforcing the by-law due to its alleged acquiescence or waiver. The court was required to interpret the scope of by-law 14, which prohibited the use of common property for exclusive use or storage without the consent of the Body Corporate, and to consider the legal principles of waiver and estoppel in the context of body corporate by-laws.

Judge Jarrett found that Mr. Samsakopoulos's storage of items in the courtyard constituted an exclusive use and storage of common property, thereby breaching by-law 14. The court rejected the argument that the leasehold agreement permitted such use, as by-laws made under the *Body Corporate and Community Management Act 1997* (Qld) bind all owners and occupiers. Furthermore, the court held that the Body Corporate had not waived its right to enforce the by-law. The evidence did not establish a clear and unequivocal intention by the Body Corporate to abandon its right to enforce by-law 14; rather, the Body Corporate had consistently sought to address the breach. Consequently, the court found that the elements of estoppel were not met.

The court ordered that Mr. Samsakopoulos be restrained from continuing to use the common property courtyard for storage purposes and that he remove all items stored there within 28 days. The Body Corporate was also awarded its costs of the proceeding.