Burnitt Investments Pty Ltd v Body Corporate for the Tower Mill Motor Inn CTS 1918

In the case of Burnitt Investments Pty Ltd v Body Corporate for the Tower Mill Motor Inn, the dispute arose from the renovations carried out by Burnitt Investments on the ground floor and basement of a motel, which affected the use of the common property. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary issue was whether Burnitt Investments could rely on rights granted by the by-laws to justify the improvements constructed on the common property, and whether they could rely on implied rights to use the common property under section 167 of the Body Corporate and Community Management Act 1997 (Q).

The Tribunal examined the relevant by-laws and the Act to determine if Burnitt Investments' actions were justified. It was found that the by-laws did not explicitly grant Burnitt Investments the right to make such renovations on common property. However, the Tribunal considered the implications of section 167, which provides for the use of common property by a proprietor in accordance with the by-laws and any reasonable incidental use. The Tribunal concluded that Burnitt Investments could rely on the implied rights to use the common property, as the renovations did not fundamentally alter the use of the property and were reasonably incidental to their use of the bar and restaurant.

Consequently, the Tribunal ruled in favour of Burnitt Investments on the second question, allowing them to rely on the implied rights under section 167 of the Act. The Tribunal did not provide an answer to the first question regarding the reliance on by-laws. The final orders were that Burnitt Investments could not rely on the by-laws to justify their renovations but could rely on the implied rights to use the common property.