MQ Investments Pty Ltd & Anor v Body Corporate Strata Plan 342154N & Ors (No 1)

[2008] VSC 329

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8714 of 2006

MQ INVESTMENTS PTY LTD and HA NGUYEN (trading as QUEEN PROPERTIES)	Plaintiffs
V
BODY CORPORATE STRATA PLAN 342154N, BING SUN SONG and YU PING SONG	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15-18 JULY 2008
DATE OF JUDGMENT:	17 JULY 2008
CASE MAY BE CITED AS:	MQ INVESTMENTS PTY LTD v BODY CORPORATE STRATA PLAN 342154N (No. 1)
MEDIUM NEUTRAL CITATION:	[2008] VSC 329

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REAL PROPERTY – Use of common property by unit holders in a body corporate – Assignment of common property to individual unit holders – Whether that assignment included common property adjacent to lift – Construction of a bathroom intruded over part of common property – Whether a nuisance.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S. Woolley	Kenyons
For the First Defendant	Mr R.A. Harris	Bradley Lawyers
For the Second and Third Defendants	Dr P. Vout	Henry Carus & Associates

HIS HONOUR:

1. Body Corporate Plan No. 342154N is the owner of the common property of the  building on the north-east corner of Little Collins and Queen Streets, Melbourne.  The property has been subdivided in accordance with the Subdivision Act 1988.  A men’s footwear store and an entrance and lift lobby occupy the ground floor.  Lots 3, 4, 5 and 6 occupied the upper floors.  On Wednesday 7 October 1998 the Body Corporate held its Annual General Meeting.  The minutes record that it was then “resolved to allow a change of use for Lots 3, 4, 5 and 6 from commercial to residential” and, consistently with this, “to allow each of [those] Lots … to be subdivided into residential apartments”.  A further resolution approved “an amendment of existing plan of subdivision P.S. number 342154N to reflect an assignment of the common area, currently used as toilets on each level as that [sic] this area forms part of Lots 3, 4, 5 and 6 respectively”.  Lot 6 was and is located on level 5.

1. It seems to me that I am bound on the evidence which is presently before me to find that the area shown hatched on the plan dated 27 November 1998 (a copy of which is at page 57 of the plaintiffs' court book) was and is the area referred to in the latter resolution as the toilets on level 5.  The evidence before me is that, in the case of each of the relevant lots, the toilet area was, apart from its position within the levels of the building, identical.

1. If the toilets on level 5 had occupied a different area to that occupied by the toilets on the other floors, then one would expect that the resolution would have specifically noted the difference, so that there could be no dispute about what it meant.  Not only does the plan to which I have referred show the toilet area as being identical in relation to each relevant Lot, or so nearly identical as to be practically so, but (as I understand the evidence about the physical characteristics of the property) the toilets in fact on each of the relevant levels occupied the same area.

1. There was, as Dr Vout has mentioned, some reference in some of the documentation to an airlock, but no witness saw that airlock.  There is no evidence that the airlock was in place at the time of the passing of the relevant resolution in October 1998, and even if the airlock was then in existence, there is nothing to suggest that that airlock formed part of what is referred to in the relevant resolution as the "toilets".

1. The evidence therefore as it currently stands seems to me to impel the conclusion that the area occupied by the toilets on level 5 matched the area occupied by the toilets on the other relevant floors of the building, and that the resolution in question sought to make no relevant distinction between the toilets on any of those levels.  That being the case, there was no assignment of any of the common property on level 5 other than the common property shown hatched on the plan on page 57 of the plaintiffs' court book.

1. Despite there being no relevant assignment, the then owners of Lot 6 constructed a bathroom on level 5 which incorporated more than the area the subject of the resolution of 7 October 1998.  As Dr Vout has conceded, in those circumstances the persons who constructed or caused to be constructed the bathroom over so much of the common property which went beyond the area of the toilets on level 5, created a nuisance.  They had no equitable or other right to incorporate into their Lot part of the common property that had not been assigned to them.  It follows that there must be judgment for the plaintiffs on their application for a declaration that so much of the bathroom as extends beyond the area formerly occupied by the toilets (and shown as hatched on the relevant plan) is unlawful.  There must also be an order that the second and third defendants remove that portion of the bathroom that unlawfully occupies common property.

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