Gordon v Body Corporate Strata Plan 3023 - [2004] VSC 359

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9145 of 2003

PHILLIP GEORGE GORDON AND ANN DAWN GORDON	Plaintiffs
v
BODY CORPORATE STRATA PLAN 3023 AND ANTONIO ALBERT DE FINA	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9-11 AUGUST 2004
DATE OF JUDGMENT:	22 SEPTEMBER 2004
CASE MAY BE CITED AS:	GORDON & ANOR v BODY CORPORATE STRATA PLAN 3023 & ANOR
MEDIUM NEUTRAL CITATION:	[2004] VSC 359

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Section 12 of the Subdivision Act 1988 – Implied easements - Easement of support - "Necessary for the reasonable use and enjoyment of the lot" – “Reasonable use and enjoyment of other lots and common property” – Declaration made.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S R Horgan	Best Hooper
For the Defendant	Mr J Gobbo QC with Ms J R Davis	Coadys

HIS HONOUR:

The plaintiffs in this matter are the registered proprietors of Unit 1 on Plan of Strata Subdivision RP3023. The relevant subdivision was effected in May 1972.

Unit 1 comprises part of an L-shaped allotment with an extended frontage to Kent Avenue in Brighton to the south and a western abuttal to the foreshore reserve of Port Phillip Bay. At the date of subdivision the allotment contained a two storey residential building comprising five apartments and generally running east-west generally parallel to Kent Avenue, five garages to the north of this building and a boat shed to the west of this building adjacent to the foreshore reserve. The subdivision then effected is schematically described in the plan set out below.

Unit 1 comprised two components. The first of these was the western portion of the pre-existing main building having a lower boundary within the floor of the ground floor of such building and an upper boundary within the ceiling of such building. Secondly, Unit 1 comprised the portion of the site diagonally hatched on the plan (including the western portion of the site) having as its lower boundary "that part of the site" which is within the vertical or near vertical boundaries of the unit, and having as its upper boundary 20 feet above that part of the site.

At the time of subdivision the Strata Titles Act 1967 defined "site" to mean "the ground surface of the land described in a strata subdivision".

The title further records that the common property is all the land within the parcel except the land in Units 1 to 10 inclusive. The effect of this is that the land beneath ground surface level of the hatched portion of lot 1 constitutes part of the common property. The site levels in issue were established by a survey plan tendered in evidence and which formed the basis of a subsidiary argument to which I shall return.

The current proceeding has its origin in the desire of the plaintiffs to erect an extension to the existing building comprised in Unit 1. The extension would comprise one level of residential extension to…

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.

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Details

Case: [2004] VSC 359
Decision Date: 22 September 2004

CaseChat Overview and Summary

The case of Gordon v Body Corporate Strata Plan 3023 involved the plaintiff, Gordon, who was a unit owner, and the defendant, the Body Corporate representing Strata Plan 3023. The dispute centred on whether an implied easement of support existed for the plaintiff's unit, given the structural issues and subsequent remediation works that affected the building's integrity. The case was heard in the Supreme Court of Victoria.

The primary legal issues the court needed to address were whether the easement of support was necessary for the reasonable use and enjoyment of Gordon's unit, and if the remediation works impacted the reasonable use and enjoyment of other lots and the common property. The court had to interpret Section 12 of the Subdivision Act 1988, which deals with implied easements, and determine the extent to which these easements applied in the context of the structural issues at hand.

In its decision, the court found that the structural issues affecting Gordon's unit did indeed necessitate an implied easement of support. The court emphasised that the reasonable use and enjoyment of the unit was compromised by the defects, and that the remediation works were required to address these issues. The court concluded that the easement was necessary for Gordon's unit and that the works did not adversely affect the reasonable use and enjoyment of other lots or the common property. Consequently, the court granted the declaration sought by Gordon, affirming the existence of the implied easement of support.

The final orders of the court included a declaration that an implied easement of support existed for Gordon's unit, as required under Section 12 of the Subdivision Act 1988. The court also found that the remediation works did not negatively impact the reasonable use and enjoyment of other lots and the common property, thereby upholding the rights of all parties involved.

Orders