Julian-Armitage v the Proprietors Astor Centre

[1998] QCA 111

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9124 of 1997.

Brisbane

BeforePincus J.A.

McPherson J.A.
Derrington J.

[Julian-Armitage v. The Proprietors Astor Centre]

BETWEEN:
  ANGELA JULIAN-ARMITAGE

(Respondent)  Appellant

AND:
  THE PROPRIETORS ASTOR CENTRE BUP NO. 8932

(Appellant)  Respondent

Judgment delivered 29 May 1998

Separate reasons for judgment of each member of the Court; each concurring as to the order made.

APPEAL DISMISSED WITH COSTS

CATCHWORDS:     CIVIL - Building Units and Group Title - whether appellant or body corporate to bear costs of operating lifts - interpretation of by-law -  meaning of word “maintain”.

John Fairfax & Sons Ltd v. Australian Telecommunications Commission [1977] 2 NSWLR 400.
Greetings Oxford Koala Hotel Pty. Ltd. v. Oxford Square Investments Pty. Ltd (1989) 18 NSWLR 33.
Galashiels Gas Co. Ld. v. O’Donnell [1949] A.C. 275

Counsel:Mr P.A. Keane Q.C., with him Ms A. Julian-Armitage, for the appellant.

Mr J.C. Sheahan S.C., with him Mr J.K. Bond for the respondent.

Solicitors:Counsel briefed directly by the appellant.

Mallesons, Stephen Jacques for the respondent.

Hearing Date:            14 May 1998

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 29 May 1998

I have read and agree with the reasons of McPherson J.A. and with the orders he proposes.

REASONS FOR JUDGMENT - McPHERSON J.A.

This is an appeal from a decision in the Supreme Court concerning the liability of the proprietor of a lot in a registered building units plan to bear a share of the cost of electricity used to operate a lift or lifts serving the building comprised in the plan.  The building, which is residential and is known as The Astor Centre, has 13 levels designated A to M accommodating a total of 45 lots or units.

Lot 1, of which the appellant is proprietor, occupies the whole of Level A, which is at ground level and is referred to in the material as being below street level.  As such, there is no need to make use of the passenger lifts, of which there are two in the building, in order to have access to that lot; and in fact the lifts do not serve or “service” that unit or level but only those above it.

The first Annual General Meeting of the proprietors of the Astor Centre was held on 26 April 1989.  Minutes of that meeting show that it was resolved that the following By-law be added to those previously approved:

“The proprietors for the time being of Lots 2 to 45 shall be entitled to the exclusive use and enjoyment for themselves, their invitees and their licensees of that part of the common property which is delineated in red on the plans marked ‘A’ (‘the area’).  In addition to the grant of exclusive use and enjoyment the proprietors for the time being of Lots 2 to 45 shall also be entitled to special privileges for themselves, their invitees and their licensees of being permitted to operate the two passenger lifts which have been installed in the area.  The grant of exclusive use and enjoyment and special privileges are made subject to the following terms and conditions:

(a)       The area shall only be used for the operation of passenger lifts;

(b)No proprietor shall create a nuisance or hazard by his use of any of the passenger lifts;

(c)No proprietor shall misuse or permit to be misused any of the passenger lifts and shall not obstruct or damage the same or otherwise interfere with or impede with their normal operation;

(d)The proprietors shall observe the terms of any notice displayed in any of the passenger lifts by the body corporate or by any relevant statutory authority;

(e)The proprietors shall ensure that, at all times, no rubbish, litter or other unsightly materials or substances be allowed to accumulate in or upon the area or in or upon the internal surfaces of the lift wells;

(f)The proprietors shall ensure that the area and the internal surfaces of the lift wells are at all times kept in a clean and tidy condition;

(g)The proprietors shall at their own cost and expense carry out all the usual and necessary inspections and tests (including any necessary statutory tests) with respect to the passenger lifts;

(h)The proprietors shall at their own cost and expense rectify and make good all stoppages and malfunctions in the operation of the passenger lifts;

(i)The proprietors shall at their own cost and expense properly maintain and keep in a state of good and serviceable repair (including where reasonably necessary renew or replace the whole or part thereof) the two passenger lifts and all associated equipment and appurtenances (including both electrical and mechanical components and wiring);

(j)The proprietors shall at their own cost and expense be responsible for the payment of the costs associated with any lift maintenance agreement which the body corporate may have entered into with respect to the passenger lifts;

(k)The terms and conditions contained in this by-law bind the proprietors jointly and severally;

(l)The liability of the proprietors for the payment of any monies payable under this by-law shall be in shares proportional to the lot entitlement of their respective lots; and

(m)In respect of any monies payable by a proprietor under this by-law, then the proprietor of a lot is, liable, jointly and severally with any person who was liable to pay those monies when that proprietor became the proprietor of that lot, to pay such part of the monies as are unpaid when he became the proprietor of that lot;

and that for the purpose of meeting actual or expected liabilities incurred as a result of this By-Law the proprietors of Lots 2 - 45 contribute to a special fund established for lift maintenance and eventual replacement at a rate of $5.00 entitlement per quarter from 1st May, 1989, which amount shall be reviewed annually each year by the Committee of the body corporate in accordance with lift service agreement increases, maintenance requirements and evaluations as to the life expectancy of the lifts and such fund shall be properly maintained by the body corporate manager/treasurer and presented as part of the financial report for each annual general meeting.”

This additional By-law, which was duly registered or recorded on the plan, was numbered By‑law 56.  It is the subject of this application, which, before coming before the Court had already been before a referee under the Building Units and Group Titles Act 1980, followed by an appeal to the Tribunal and then to the Supreme Court, from which this appeal now comes.

The effect, briefly stated, of the first part of By-law 56 is to confer on the proprietors and their invitees and licensees, the exclusive right to use the access area or areas on each level of the common property delineated on the accompanying plan “A” together with the “special privileges” of being permitted to operate the two passenger lifts in question.  The validity of the By-law is not challenged in these proceedings.  What is in issue is the proper interpretation to be given to it. 

The only question for determination is whether under its terms the appellant is in law justified in insisting that only those proprietors who enjoy the exclusive rights or privileges of using the lifts should be obliged to pay for the electricity needed to operate it.  What this comes down to in the end is whether the cost of that electricity is a charge to be met out of the funds of the Body Corporate derived from the levies paid by all the proprietors; or whether those entitled to use the lifts, and not the appellant, are bound to meet that expense from the special fund constituted under the last part of the By-law.

By-law 56 deals in paragraph (h) with the cost of carrying out usual and necessary inspections and tests with respect to the lifts, and in paragraph (i) with the cost of properly maintaining and keeping in good and serviceable repair, “the two passenger lifts and all associated equipment and appurtenances (including both electrical and mechanical components and wiring)”.  As to those matters of expenditure, the cost is to be met by proprietors who are privileged to use the lifts.  Under paragraph (j), they are also to be responsible for paying the costs associated with any lift maintenance agreement entered into by the Body Corporate.

The By-law does not refer specifically to the cost of the electricity used in operating it.  The omission may have been deliberate, or it may have been the result of accidental oversight.  The appellant submits that that particular cost or expense is covered under paragraph (i) by the requirement in that paragraph that the privileged proprietors are at their own cost and expenses to “properly maintain and keep [the lifts] in a state of good and serviceable repair ...”.  Without keeping the electric current flowing, the lifts, it is said, will not be either maintained or serviceable; in short, it will not be possible for those proprietors to operate the lifts, which is what the first part of By-law 56 expressly says that they are “permitted” to do.  In effect, therefore, the expression “maintain” ought, it is submitted, to be read as meaning “maintain in operation”.

In support of these submissions, reliance was placed on John Fairfax & Sons Ltd v. Australian Telecommunications Commission [1977] 2 NSWLR 400, 413, where in the context of a contractual duty to maintain two teleprinters, Mahoney J.A. said that the word “maintain” referred “not to the placing of the services with the plaintiff but, in general, to the keeping of them in operating condition”. The appellant also relied on Greetings Oxford Koala Hotel Pty. Ltd. v. Oxford Square Investments Pty. Ltd (1989) 18 NSWLR 33, 39, where Young J. quoted from Galashiels Gas Co. Ld. v. O’Donnell [1949] A.C. 275, 286, in which Lord McDermott said that the word “maintained” was synonymous with “serviced” or “looked after” or “attended to” but, in the context of the legislation considered there, concluded that the expression “every hoist to be properly maintained” connoted the continuance of a state of working efficiency. None of these authorities is, however, of any real assistance to the appellant here. On the contrary, they tend, if anything, to suggest that machinery or equipment is “maintained” if it is in working order, so that it will operate if power or fuel is supplied to make it do so. It is not the ordinary expectation of consumers who hire or purchase equipment, such as photocopiers or computers, that the obligation of someone who undertakes to service or maintain them extends to providing the electric power needed to make the equipment function.

In the end, however, it is probably right to say that equally little help is to be gained from examples of this kind, which do not involve arrangements like those encountered in building units, in which proprietors own separate units or lots, but share the right to use as well as the obligation to pay for the upkeep and maintenance of common property.  As to that, the general principle adopted in the Act is that proprietors share the expense of maintenance and running costs rateably in proportion to their lot entitlements, and that they do so irrespective of the extent to which they in fact make use of the common property or its facilities

In providing an exemption from liability to bear some of the expense associated with lifts which the appellant is not privileged to use, By-law 56, apparently in the interests of fairness to the proprietor of Lot 1, introduces a qualification upon that general principle.  The fact that it fails in all respects to achieve a completely fair result is not sufficient justification for interpreting the word “maintain” in such a way as to alter its natural or ordinary meaning of ensuring it is in a state of working efficiency rather than keeping it operating.  Complete fairness would be virtually impossible to attain.  Almost inevitably, some proprietors or their licensees will make more use of the lifts than do others; and, as was pointed out in the course of the hearing, those who live at the upper levels of the building will almost certainly use more electricity in doing so than others who reside at lower levels.  By-law 56 does not, and probably could not be, expected to cater for or equalise all differences of that kind.

It follows that the primary judge was correct in his interpretation of By-law 56.  The appeal should be dismissed with costs.

REASONS FOR JUDGMENT - DERRINGTON J

I agree with the orders of McPherson JA and with his reasons.