Leslie v Buttner - [2022] QSC 131

SUPREME COURT OF QUEENSLAND

CITATION:

Leslie v Buttner & Anor [2022] QSC 131

PARTIES:

MAXWELL GORDON LESLIE

(applicant)

v
ROBERT JOHN ALEXANDER BUTTNER AND JANICE ANNE BUTTNER

(first respondents)
SANCTUARY COVE PRINCIPAL BODY CORPORATE GTP 202
(second respondent)

FILE NO/S:

BS 1993 of 2022

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2022; 19 May 2022; further written submissions received 25 May 2022 and 26 May 2022.

JUDGE:

Cooper J

ORDERS:

1. The originating application is dismissed.

2. The Court will hear the parties as to costs.

CATCHWORDS:

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BYLAWS – GENERALLY – where the applicant and first respondent own adjoining lots in Sanctuary Cove – where the second respondent is the principal body corporate of Sanctuary Cove – where the second respondent promulgated development control by-laws – where the first respondents’ application of proposed works was assessed by the Architectural Review Committee established under the by-laws and ultimately approved by the second respondent – where the by-laws established different types of building controls depending on the designation of a lot under the plan – where the plan identifies the applicant’s lot as a Development Parcel but the applicant contends it is a Controlled Aspect Lot – where the applicant alleges that the development approval given by the second respondent is unlawful and of no effect because the proposed work does not comply with the by-laws – whether the by-laws should be construed to classify the first respondents’ lot as a Controlled Aspect Lot, a Conventional Aspect Lot, or a Development Parcel – whether the development approval granted was unlawful – whether the applicant’s refusal or failure to agree to amenity measures is a condition precedent to the first respondents being able to undertake work pursuant to the development approval

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INJUNCTIONS FOR PARTICULAR PURPOSES – OTHER CASES – where the applicant and first respondents’ lots are governed by the second respondent’s development control by-laws – where the applicant seeks mandatory injunctive relief that would require the demolition and removal of the works performed on the western wall of first respondents’ house – where the applicant commenced proceedings approximately 6 months after becoming aware of the proposed works – whether any delay in commencing proceedings should weigh against the exercise of discretion to grant injunctive relief – whether significant wasted costs that would be incurred by the first respondents would be disproportionate to the benefit to the applicant of granting the injunction – whether the hardship to the first respondents would be disproportionate to the benefit to the applicant if an injunction was granted – whether the applicant seeks to obtain the benefit of any injunction to compel compliance with the by-laws while refusing to take any steps to address his residence’s non-compliance – whether a mandatory injunction should be granted

Acts Interpretation Act 1954 (Qld) s…

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.

Continue reading Leslie v Buttner

Details

AGLC: Leslie v Buttner [2022] QSC 131
Case: [2022] QSC 131
Decision Date: 7 July 2022

CaseChat Overview and Summary

Leslie v Buttner involved a dispute between adjoining lot owners in Sanctuary Cove, with the applicant, Leslie, seeking to challenge the lawfulness of a development approval granted by the principal body corporate, the second respondent, to the first respondents, Buttner. Leslie contended that the works approved by the body corporate did not comply with the development control by-laws and sought an injunction to prevent the works from proceeding. The applicant further sought a declaration that the approved works did not comply with the by-laws and an order that the works be demolished and removed.

The central legal issues were whether the approved works complied with the development control by-laws, and if not, whether the applicant was entitled to a mandatory injunction to compel the first respondents to remove the works. The court needed to determine the correct classification of the first respondents' lot under the by-laws and whether Leslie's failure to agree to certain amenity measures was a condition precedent to the first respondents undertaking the works.

The court found that the applicant had failed to establish that the approved works did not comply with the development control by-laws. Consequently, Leslie's challenge to the lawfulness and effectiveness of the development approval was dismissed. In exercising its discretion regarding the grant of an injunction, the court noted that while the applicant had delayed in bringing proceedings, the hardship to the first respondents from granting an injunction would be disproportionate to the benefit to Leslie. The applicant had also not addressed non-compliance issues with his own lot. The court held that the applicant was not entitled to the mandatory injunctive relief sought.

The court dismissed the originating application and ordered that the parties be heard as to costs.

Orders

Orders of the court

1. The originating application is dismissed.

2. The Court will hear the parties as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For those reasons, I do not consider that the failure or refusal of the applicant to agree to amenity measures in respect of the raising of the rear terrace level prevents the first respondents from undertaking work pursuant to the development approval.Conclusion on status of Development Approval The applicant’s challenge to the lawfulness and effectiveness of the development approval is based on his assertion that the works which are the subject of that approval do not comply with the DCBLs. For the reasons set out above, the applicant has failed to establish that the approved works do not comply with the DCBLs. On that basis, the application for the relief set out in paragraphs 3 to 6 of the amended originating application must be dismissed. Exercise of discretion In the event my views about the designation of Lot 98 under the DCBLs or the question of non-compliance with the DCBLs is wrong I will set out my conclusion on the exercise of discretion if I had found that the Development Approval was unlawful and of no effect. The principles which apply to the exercise of the Court’s discretion where a mandatory injunction is sought to enforce building covenants were recently considered by Brown J in BGM Projects Pty Ltd v Durmaz Corporation Pty Ltd.[15] Her Honour referred to a summary of those principles by Hall J in Miller v Evans.[16] [15][2020] QSC 87.[16][2010] WASC 127 at [24] – [29]. In essence, the hardship that would be caused to the applicant by the refusal of an injunction has to be weighed against the hardship that would be caused to the first respondents by the grant of an injunction. Nevertheless, the authorities recognise that the normal remedy for the breach of a restrictive covenant is an injunction and the court’s power to award damages in lieu of an injunction should be exercised with caution. Although the occasioning of hardship to a person in the position of the first respondents is a relevant consideration in the exercise of the discretion to grant an injunction, the mere fact of hardship will not be sufficient. Hardship will usually only justify refusal of a mandatory injunction if the hardship that would be inflicted on the first respondents would be disproportionate to the benefit to the applicant of granting the injunction. A further relevant factor is the extent of the first respondents’ knowledge that their acts were in breach of the DCBLs (if I had found that to be the case). The applicant became aware of the first respondents’ application for development approval at about the end of July 2021. On 19 August 2021, he sent an email to the Senior Body Corporate Manager for the second respondent asking for information about the proposed development. It appears that the second respondent did not provide any information in response to that request. On 7 September 2021, the applicant received an email from the Senior Body Corporate Manager informing him that the second respondent had approved the application in principle subject to the condition set out in [10] above. The email attached a copy of the Bauhinia Adopted Standards. The applicant then engaged in further correspondence with the second respondent in the second half of October 2021 raising concerns regarding the validity of the Bauhinia Adopted Standards as the controls against which the development application was to be assessed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Leslie v Buttner & Anor [2022] QSC 131
PARTIES:	MAXWELL GORDON LESLIE (applicant) v ROBERT JOHN ALEXANDER BUTTNER AND JANICE ANNE BUTTNER (first respondents) SANCTUARY COVE PRINCIPAL BODY CORPORATE GTP 202 (second respondent)
FILE NO/S:	BS 1993 of 2022
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 July 2022
DELIVERED AT:	Brisbane
HEARING DATE:	18 May 2022; 19 May 2022; further written submissions received 25 May 2022 and 26 May 2022.
JUDGE:	Cooper J
ORDERS:	1. The originating application is dismissed. 2. The Court will hear the parties as to costs.
CATCHWORDS:	REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BYLAWS – GENERALLY – where the applicant and first respondent own adjoining lots in Sanctuary Cove – where the second respondent is the principal body corporate of Sanctuary Cove – where the second respondent promulgated development control by-laws – where the first respondents’ application of proposed works was assessed by the Architectural Review Committee established under the by-laws and ultimately approved by the second respondent – where the by-laws established different types of building controls depending on the designation of a lot under the plan – where the plan identifies the applicant’s lot as a Development Parcel but the applicant contends it is a Controlled Aspect Lot – where the applicant alleges that the development approval given by the second respondent is unlawful and of no effect because the proposed work does not comply with the by-laws – whether the by-laws should be construed to classify the first respondents’ lot as a Controlled Aspect Lot, a Conventional Aspect Lot, or a Development Parcel – whether the development approval granted was unlawful – whether the applicant’s refusal or failure to agree to amenity measures is a condition precedent to the first respondents being able to undertake work pursuant to the development approval EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INJUNCTIONS FOR PARTICULAR PURPOSES – OTHER CASES – where the applicant and first respondents’ lots are governed by the second respondent’s development control by-laws – where the applicant seeks mandatory injunctive relief that would require the demolition and removal of the works performed on the western wall of first respondents’ house – where the applicant commenced proceedings approximately 6 months after becoming aware of the proposed works – whether any delay in commencing proceedings should weigh against the exercise of discretion to grant injunctive relief – whether significant wasted costs that would be incurred by the first respondents would be disproportionate to the benefit to the applicant of granting the injunction – whether the hardship to the first respondents would be disproportionate to the benefit to the applicant if an injunction was granted – whether the applicant seeks to obtain the benefit of any injunction to compel compliance with the by-laws while refusing to take any steps to address his residence’s non-compliance – whether a mandatory injunction should be granted Acts Interpretation Act 1954 (Qld) s…