Hastway Pty Ltd v Birstar Pty Ltd

[1995] QSC 221

IN THE SUPREME COURT

OF QUEENSLAND  No. 1246 of 1995

Brisbane

[Hastway Pty Ltd v. Birstar Pty Ltd]

BETWEEN:

HASTWAY PTY LTD as trustee for the ACCOM NOOSA UNIT TRUST
  trading as ACCOM NOOSA
  Plaintiff

AND:

BIRSTAR PTY LTD
  Defendant

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered   06/09/1995

Counsel:  S. Couper Q.C. for the Applicant (Plaintiff)
  C. Brabazon Q.C. and C. Carrigan for the Respondent (Defendant)

Solicitors:  Ribgy & Company for the Applicant (Plaintiff)
  Short Punch & Greatorix for the Respondent (Defendant)

Hearing date:                   19 July 1995

IN THE SUPREME COURT

OF QUEENSLAND  No. 1246 of 1995

Brisbane

BETWEEN:

HASTWAY PTY LTD as trustee for the ACCOM NOOSA UNIT TRUST
  trading as ACCOM NOOSA
  Plaintiff

AND:

BIRSTAR PTY LTD
  Defendant

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 06/09/1995

The applicant (the plaintiff) carries on the business of unit management and letting at Noosa Heads under the name Accom Noosa as trustee of the Accom Noosa Unit Trust.
              In June 1995, the applicant entered into an agreement (the applicant's management agreement) with the proprietors of 17 of the 64 units in the Ocean Breeze complex at Noosa Heads and it was deposed on its behalf that it anticipates entering into agreement with more proprietors of units in the complex.
               By its management agreement, the unit owners (who are not party to any proceedings currently before the court) appointed the applicant as their sole agent for "the letting of, rent collecting for, managing of" their unit.  The applicant was authorised to pay its expenses and fees from rents collected and authorised to make certain expenditures up to a limit for repairs. 
               The unit owners also signed an authority, apparently at about the same time, addressed to the respondent (the defendant) requiring it to hand over to the applicant "all information on forward bookings and deposits held on our behalf for future guests".  The document also gave notice to the respondent that the "letting agreement" (the respondent's management agreement - including rights acquired by assignment in the term) between the unit owner and the respondent was terminated as at 9 a.m. 30 June 1995. 
               At the hearing before me the applicant produced notices addressed to the respondent by those unit owners who had appointed it as their management agent.  These purported to direct the respondent to allow access across common property to allow the individual owner's telephone line to be hooked up to the applicant's PABX system.  The same notice was expressed to instruct "solicitors for owners using Accom Noosa" to "approach the courts to gain the appropriate order to allow the telephone line in the owner's unit to be connected to Accom Noosa's PABX unit".  These notices were apparently prepared and executed when it had become apparent that the applicant's standing to bring the action and other issues arose for consideration in the proceedings before me. 
               The respondent maintains its management agreement continues to bind the proprietors under the Ocean Breeze Building Units Plan No. 4745 by which units and common area in the Ocean Breeze complex are held.  The respondent's contentions that its management agreement continues in force is controverted by the body corporate and the dispute between the respondent and the body corporate is the subject of a separate action in this court.  Undertakings have been given by the body corporate in that action not to interfere with the respondent's occupation of various common areas pending trial although, I was told, those undertakings do not bear on the dispute with which I am concerned.  I was also told that the outcome of the action between the respondent and the body corporate will not necessarily resolve the issues with which I am now concerned.                 I proceed on the basis that there are serious issues of both fact and law to be tried in the action between the respondent and the body corporate which is set for trial later in September.  These issues are canvassed by the written submissions placed with the file.  They raise the effect to be given to the Building Units and Group Titles Act 1980 - 1988 and by-laws of and resolutions by the body corporate, the course of conduct of the body corporate and the management arrangement under the respondent's management agreement which were in place over a number of years. 
               Each of the units in the Ocean Breeze complex has a telephone which is connected to a PABX telephone exchange situated in a room in the complex described in the material as the PABX room.  The applicant, having entered into its management agreement seeks to connect the telephones in those units which it manages to another PABX exchange situated elsewhere in the complex and which is under the applicant's control.  To do this, the applicant (I use the term to include its servants and authorised agents) needs to have access to the PABX room; in particular the applicant needs access to the main distribution frame which, together with or as part of the respondent's PABX system, is in the PABX room.  The main distribution frame consists of a number of terminating strips which are attached to a chipboard backing screwed onto the wall in the PABX room and enclosed in a laminex covered chipboard box.  Connection to the applicant's PABX system requires it to have physical access to certain of the terminating strips. 
               The applicant, claiming the respondent has denied it access to the main distribution frame, sued the respondent claiming injunctions in effect restraining the respondent from interfering with its access to effect the connection and has brought this motion for an interlocutory injunction to the same effect.
               The respondent disputes the applicant's standing to bring the action and seek the interlocutory injunction.  It asserts ownership of the equipment to which the applicant seeks access and denies that the applicant has any right to have the access it seeks.  The respondent offers to provide telephone services through its system to all proprietors up to the trial.
               Whether one characterises what the applicant seeks to enforce as a contractual right or a legal privilege or freedom, it seems to me it has to be founded on the applicant's management agreement. 
               Neither the management agreement nor the associated authorities which are in evidence directly address the issue or confer any express right or obligation on the applicant in respect of telephone services.  It is said that the agreement provides for the provision of management services and that providing those involves the connection of telephones, presumably to the applicant's system. 
               Given the evidence before me and the principles expounded in cases such as Codelfa Constructions Proprietary Limited v. State Rail Authority of New South Wales (1982) 149 C.L.R. 337 it seems to me to be drawing a very long bow to imply a term in the relationship between the applicant and the unit owners whose units it manages to the effect of authorising or obliging the applicant to access the PABX and associated equipment. It by no means follows that this is necessary for the applicant's management agreement to have commercial efficiency that this specific arrangement be carried out.
               Whatever may be their consequence the later documents signed by the owners are no more than commands addressed to the respondent, and perhaps authorise the applicant's solicitors to commence an action for the unit holders.  They confer no authority or obligation on the applicant in respect of the connection of the telephones.
               The applicant in my view is no more than a commercial competitor of the respondent for the business of unit owners in the Ocean View complex.  It has no private right, privilege or freedom in respect of the equipment in issue here.    The applicant is not asserting any public right.  In the circumstances it is difficult to see that cases such as Australian Conservation Foundation v. The Commonwealth 146 C.L.R. 439 and Fido v. Hervey Bay Town Council (1983) 2 Qd.R. 72 have any application. The applicant has no standing to bring the application.
               The main distribution frame and the associated terminating strips are either a fixture to the common property or the property of the respondent.  Whether or not the chattels are a fixture involves a consideration of principles expressed and applied in many decided cases - the statements in which are not susceptible of easy reconciliation, the construction of the relevant documentation and the resolution of factual issues of some complexity;  see for example N.H. Dunne Pty Ltd v. L.M. Erickson Pty Ltd (Court of Appeal New South Wales 1979 A.N.Z. Conv. R. 300). So far as the evidence presently stands however there is much to be said for the view that the purpose of the fixation of the PABX and its component is to facilitate its use by the respondent in its business of managing agent rather than for the better enjoyment of the property to which it is affixed. It does not appear that there is any great degree of physical annexation. These considerations tend to favour a conclusion that the chattel has not become a fixture.
               As I have said, the contrary view is that the equipment is a fixture to the common property.  Although it is said that the particular issues in dispute here will not necessarily be resolved by the action between the respondent and the body corporate I find it difficult to accept that that action will not involve the resolution of the respondent's entitlement to access to common property and so may bear on its rights to control access to the equipment in question. 
               The applicant refers to cl.3.1.3 of the respondent's management agreement.  This provides to the effect that the manager is to allow "a lawful authorised person in the course of his duties, free access to any part of the building or of the common property so authorised at all reasonable times".  As I have earlier indicated, the respondent, in my view, cannot point to any such lawful authorisation or entitlement to free access. 
               Although on the view I take of the matter, the issue of the balance of convenience does not arise, it by no means follows that it would rest with the applicant.  This is given considerations such as the pending resolution of the issues between the respondent and the body corporate, the respondent's undertaking as to the maintenance of telephone services, the respondent's long standing operation as letting agent and the effect on the respondent's business.  The respondent also points to the applicant's undertaking being offered as a trustee.
               The considerations being those referred to the notice of motion should be dismissed.
               Subject to there being considerations not so far drawn to my attention, costs should follow the event.