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McKinnon v Adams

McKinnon v Adams

Case [2003] VSC 116 16 April 2003

Adverse Possession

Easements & Covenants

Native Title

Property Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8605 of 2001

JAMIESON BRUCE MCKINNON & ORS	Plaintiffs
V
HALINA WENDY ADAMS & ORS	Defendants

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 & 6 March 2003
DATE OF JUDGMENT:	16 April 2003
CASE MAY BE CITED AS:	McKinnon v Adams
MEDIUM NEUTRAL CITATION:	[2003] VSC 116

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Land – subdivision – body corporate – appointment of administrator – grounds for appointment – consequences of appointment – negative declaration – grounds for – s.38 Subdivision Act 1988.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr. N. Jones	McKean & Park
For the First Defendant	Appeared in person
For the Fourth Defendant	Mr. P. McCaffrey	J. N. Zigouras & Co

HIS HONOUR:

The plaintiffs in this proceeding are the owners of three of the six units in an older style block situated at 35 Alfred Street, Kew. The block was built about sixty years ago and was the subject of a strata title subdivision under the Strata Titles Act 1967 in 1982. The first defendant is the owner of the other three units, having purchased two of them in about November 1988, and the third, from her sister and brother in law, after this proceeding commenced. As originally filed, the originating motion which commenced the proceeding named Barbara Irene Macey and John Alfred Macey as the second and third defendants. They are the first defendant's sister and brother-in-law. The Maceys recently sold their unit to the first defendant and the proceeding was amended to delete them from it. The fourth defendant is the body corporate in respect of the subdivision.

The plaintiffs' claim is for the appointment of an administrator to the body corporate of the subdivision pursuant to the Subdivision Act 1988 and for consequential and ancillary relief, including relief by way of injunction, against the first defendant with respect to her activities in relation to the body corporate. Most importantly the plaintiffs seek a declaration that they do not owe any money to any of the defendants by way of unpaid levies or otherwise.

Upon the trial of the proceeding the plaintiffs were all represented by Mr N Jones of counsel. The first defendant, Ms Halina Adams appeared in person. The second and third defendants, Ms Adams' sister and brother-in-law, had, as has already been noted, sold their unit to Ms Adams prior to the trial, and were released from the action by consent. No order was made as to costs upon their being so released.

Adjournment application

The fourth defendant, the body corporate, was served with the originating motion, and other documents in this proceeding, but never entered an appearance. At the commencement of the trial Mr P McCaffrey of counsel announced an appearance for the body corporate and sought an adjournment of the trial. This application was opposed by the plaintiffs. Mr McCaffrey's instructions came, he said, from a Mr Walter Edwards, an employee solicitor of the firm…

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 McKinnon v Adams

Details

AGLC: McKinnon v Adams [2003] VSC 116
Case: [2003] VSC 116
Decision Date: 16 April 2003

CaseChat Overview and Summary

McKinnon brought a proceeding against Adams, the body corporate managing the subdivision in which both parties own property. McKinnon sought an order declaring that the appointment of Adams as an administrator of the subdivision was invalid. The case was heard in the Supreme Court of Victoria. The primary legal issue was whether the appointment of Adams was lawful under the Subdivision Act 1988. McKinnon argued that the appointment was invalid because it was not made for one of the specified grounds in section 38 of the Act. Adams, on the other hand, contended that the appointment was valid as it was based on a reasonable suspicion that the subdivision was being mismanaged.

The court examined the provisions of section 38 of the Subdivision Act 1988, which outlines the grounds for the appointment of an administrator. The court found that the appointment of Adams was based on a reasonable suspicion that the subdivision was being mismanaged, which was one of the specified grounds for appointment under the Act. The court also considered the evidence presented by both parties and concluded that the appointment was valid. The court rejected McKinnon’s argument that the appointment was invalid because it was not made for one of the specified grounds in the Act.

The court held that the appointment of Adams as an administrator of the subdivision was valid. The court found that the appointment was based on a reasonable suspicion that the subdivision was being mismanaged, which was one of the specified grounds for appointment under the Act. The court also found that the evidence presented by both parties did not support McKinnon’s argument that the appointment was invalid. The court rejected McKinnon’s claim and dismissed the proceeding. The court did not make any further orders.

Orders