Bowler v Hilda Pty Ltd

Case [2001] FCA 342


FEDERAL COURT OF AUSTRALIA

Bowler v Hilda Pty Limited ACN 008 556 616 (in liq) [2001] FCA 342

TRADE PRACTICES - misleading and deceptive conduct - contravention arising from representation that unit purchased by the applicants could be lived in, rented out privately or rented out as a serviced apartment -whether this representation was false because the unit purchased by the applicants could not lawfully be used as a residential unit.

LOCAL GOVERNMENT - town plan - interpretation of registered document of title - whether material extrinsic to register admissible in aid of interpretation of registered units plan

INTERPRETATION - power of court of construction to give effect to intention of parties to registered document of title, not accurately reflected in the express provisions of the document

Unit Titles Act 1970 (ACT)
Land (Planning and Environment) Act 1991 (ACT)
Land Titles (Unit Titles) Act 1970 (ACT)
Land Titles Act 1925 (ACT)

B & B Construction (Aust) Pty Ltd v Brian A Cheeseman & Associates Pty Ltd (1994) 35 NSWLR 227 referred to
Re United Pacific Transport Pty Ltd [1968] Qd R 517 referred to
Fitzgerald v Masters (1956) 95 CLR 420 applied
Gwyn v Neath Canal Co [1868] LR 3 Exch 209 applied
Glynn v Margetson & Co [1893] AC 351 referred to
Consolidated Development Pty Ltd v Holt (1986) 6 NSWLR 607 referred to
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 referred to
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 referred to
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 referred to
Watson v Phipps (1985) 63 ALR 321 applied
North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 71 LGRA 432 referred to
Grant v Estill Holdings Pty Ltd (Federal Court of Australia, unreported, 5 February 1990) referred to
Cousin v Grant (1991) 103 FLR 236 referred to
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 applied
Gange v Sullivan (1966) 116 CLR 418 referred to
Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 referred to
Morpath Pty Ltd v ACT Youth Accommodation Group Inc (1987) 16 FCR 325 referred to
Bowler v Hilda Pty Ltd [2000] FCA 899 referred to
Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 referred to
Winn v Director General of National Parks & Wildlife [2001] NSWCA 17 referred to
Leichhardt Municipal Council v Terminals Pty Ltd (1970) 21 LGRA 44 referred to
The Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 referred to
Beames v Leader [2000] 1 Qd R 347 referred to

The Laws of Australia, Section 25, title “Interpretation”, par 17
Cheshire & Fifoot’s, Law of Contract, 7th Australian ed, at par 10.12
Equity:  Doctrines and Remedies, 3rd ed, Meagher, Gummow & Lehane at par 2608
Norton on Deeds, 2

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AGLC
Bowler v Hilda Pty Ltd [2001] FCA 342
Case
[2001] FCA 342
Decision Date

CaseChat Overview and Summary

The case of Bowler v Hilda Pty Ltd dealt with the interpretation and application of the Land Titles (Unit Titles) Act 1970 in the context of a dispute over the use of a unit within a strata title scheme in the ACT. The plaintiff, Bowler, sought to enforce certain restrictions on the use of a unit in the unit titles development owned by the defendant, Hilda Pty Ltd. The primary issue before the court was whether the restrictions on the use of the unit, as outlined in the unit titles plan, could be enforced against the defendant.

The court considered the statutory provisions of the Land Titles (Unit Titles) Act 1970, which outline the process of subdividing a parcel of land into units, the effect of registration, and the establishment of leases for the units and common property. The court also noted the unique position of Crown leases in the ACT, which serve as the root of all title, and the significance of purposes clauses in such leases. The court found that the restrictions on the use of the unit were clearly outlined in the unit titles plan and were enforceable against the defendant as the owner of the unit.

In reaching its decision, the court emphasised the importance of adhering to the statutory framework governing unit titles in the ACT. The court concluded that the restrictions on the use of the unit were valid and enforceable, and that the defendant was in breach of those restrictions. The court further found that the defendant's arguments challenging the enforceability of the restrictions were without merit. The cross-appeal by the defendant was dismissed, and the court's decision upheld the enforceability of the restrictions on the use of the unit as outlined in the unit titles plan.

Orders

Orders of the court

1. The cross-appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DRUMMOND, DOWSETT AND GYLES JJ (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

The Land Titles (Unit Titles) Act 1970 is, in effect, consequential upon the Unit Titles Act 1970 (ACT) which introduced a scheme akin to a strata title scheme for the ACT. It provided, inter alia, for the process of subdivision leading to registration of a units plan, the effect of that registration and for a management corporation to administer the plan and, in particular, common property. The effect of registration, so far as is relevant here, is:“Subdivision of parcel made by registration24. On and after the registration of the units plan, the parcel is subdivided in the manner specified in the diagrams in the units plan and the boundaries of the units, of the unit subsidiaries (if any) and of the common property shall be ascertained in accordance with those diagrams and with sections 14 and 15 as if a reference in those sections to proposals were a reference to the units plan.Leases of units and common property25(1) On the registration of the units plan –(a)the lease of the parcel is determined;(b)the person who was, immediately before the registration of the units plan, the lessee of the parcel becomes possessed of an estate of leasehold in each unit for the term fixed under subsection (2) and subject to the provisions, covenants and conditions set out in the units plan in relation to that unit as if a separate lease of that unit for that term and subject to those provisions, covenants and conditions had been granted to him or her by the Commonwealth under the Land Act; and(c)the corporation becomes possessed of an estate of leasehold in the common property for the term fixed under subsection (2) and subject to the provisions, covenants and conditions set out in the units plan in relation to the common property as if a lease of the common property for that term and subject to those provisions, covenants and conditions had been granted to the corporation by the Commonwealth under the Land Act. (emphasis added)(2) The term of the lease of a unit and of the lease of the common property commences on the registration of the units plan and expires on the date specified in the units plan, being the date on which, but for the operation of this section, the term of the lease of the parcel would have expired.(3) The estate of which a person or the corporation, as the case may be, becomes possessed under this section – (a)is subject to any mortgage referred to in section 10 of the Land Titles (Unit Titles) Act 1970; and(b)is subject to, and has appurtenant to it, the easements created by section 27 of this Act and any easement referred to in section 10 of that Act.” The special position of Crown leases in the ACT is of importance. Effectively, for relevant purposes, a Crown lease, rather than fee simple, is the root of all title. Transactions take place in relation to those leases, which are different in function from ordinary inter partes leases. It is also necessary to appreciate the significance of purposes clauses in Crown leases. They have traditionally been a principal means of administering planning controls in the ACT (for example, Morpath Pty Ltd v ACT Youth Accommodation Group Inc (1987) 16 FCR 325). Section 175 of the Land (Planning & Environment) Act 1991 (ACT) makes unlawful the use of land other than for purposes authorised by the lease. That Act also seeks to ensure harmony between purposes authorised by the Crown lease and the Territory Plan (ss 8 and 65(4)(a)). In the present case, all of the possible uses covered by the purposes clause are within the Territory Plan as it applied to the land in question.