O'Sullivan v Roduner - [2017] QCATA 50

CITATION:

O’Sullivan & Ors v Roduner & Ors [2017] QCATA 50

PARTIES:	Mark O’Sullivan Susan O’Sullivan (First Applicants/Appellants) Robyn Maree Thorn (Second Applicant/Appellant)
v
Alfred Roduner Deanna Roduner The Body Corporate for Cutters Landing – Cook CTS 31994 (Respondents)

APPLICATION NUMBER:

APL082-16
APL096-16

MATTER TYPE:

Appeals

HEARING DATE:

14 October 2016

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan
Member Deane

DELIVERED ON:

21 April 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The appeal is dismissed.

CATCHWORDS:

REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – Appeal from Adjudicator – application for consent to install timber floors – where body corporate granted consent subject to conditions – whether conditions satisfied – proper construction of requirements in by-law – whether consent endures lapse of time and where by-laws amended before installation – whether body corporate seeking to amend conditions of consent is unreasonable – whether further approvals required

Body Corporate and Community Management Act (Qld) 1997, s 94, s 276, s289, s 294

Albrecht v Ainsworth & Ors [2015] QCA 220
Waterford v The Commonwealth (1987) 163 CLR 54
Australian Broadcasting Commission v Bond (1990) 170 CLR 321
Cutters Landing – Cook [2016] QBCCMCmr 63

APPEARANCES & REPRESENTATIVES:

FIRST APPLICANTS/
APPELLANTS:

SECOND APPLICANT/APPELLANT:

Mark O’Sullivan and Susan O’Sullivan represented by Mr M. O’Sullivan.

Robyn Maree Thorn in person.

RESPONDENTS:

Alfred Roduner and Deanna Roduner represented by Mr A. Roduner.

The Body Corporate for Cutters Landing – Cook CTS 31994 represented by Mr J O’Connor.

REASONS FOR DECISION

Mr and Mrs O’Sullivan, Mrs Thorn and Mr and Mrs Roduner are lot owners in the Cutters Landing – Cook Community Titles Scheme 31994, a 46-lot scheme. The scheme is part of a larger building complex of some 250 apartments in a number of buildings.
The O’Sullivans’ apartment is directly under the Roduners’ apartment. Mrs Thorn’s apartment is on the same level as the Roduners’ apartment. The entry doors are opposite each other across a carpeted lobby.
Mr and Mrs O’Sullivan and Mrs Thorn commenced separate appeal proceedings, which rely upon substantially the same grounds and so were heard together.[1] They seek to appeal the Adjudicator’s orders made 18 February 2016 permitting the installation of timber flooring by the Roduners.[2] The Body Corporate was joined as a respondent to APL082-16.[3]

[1]APL082-16 and APL096-16 respectively.

[2]Cutters Landing – Cook [2016] QBCCMCmr 63.

[3]Direction 15 March 2016.

Background

The Roduners want to install timber flooring to modernise their apartment by replacing some carpet and some tiles.
Under the then scheme by-laws, they applied for and were granted written approval by the Body Corporate in a letter dated 20 November 2013 to install timber flooring in their lot, subject to compliance with by-law 35 (the 2013 Approval).
The Body Corporate must enforce the community management statement (CMS), including the by-laws, and must act reasonably in anything it does in this regard, including making or not making a decision.[4]
[4]Body Corporate and Community Management Act (Qld)…

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 O'Sullivan v Roduner

Details

AGLC: O'Sullivan v Roduner [2017] QCATA 50
Case: [2017] QCATA 50
Decision Date: 21 April 2017

CaseChat Overview and Summary

The case of O'Sullivan v Roduner involved a dispute within a strata scheme over the installation of timber floors. The respondents, O'Sullivan and others, sought to install timber floors in their units but were initially denied consent by the appellant, Roduner, who was acting on behalf of the body corporate. The matter was referred to an adjudicator who ultimately found in favour of the respondents. The body corporate then appealed the adjudicator's decision to the Supreme Court of New South Wales. The central legal issue was whether the body corporate's consent to install the timber floors was granted subject to certain conditions and, if so, whether those conditions were satisfied. Another issue was the proper construction of the requirements in the by-laws, specifically whether the consent endured the lapse of time and if the by-laws were amended before installation. Additionally, the court had to determine whether the body corporate's attempt to amend the conditions of consent was unreasonable and whether further approvals were required.

The court examined the by-laws and the consent given by the body corporate. It found that the consent was indeed subject to conditions, which were not satisfied. The court also determined that the consent did not endure the lapse of time and that the by-laws were amended before installation. However, the court held that the body corporate's attempt to amend the conditions of consent was not unreasonable. Furthermore, the court found that further approvals were not required, as the initial consent was valid and the conditions were not met. Consequently, the appeal was dismissed, and the original decision of the adjudicator was upheld.

In light of the findings, the court confirmed that the appeal was dismissed. The decision reinforced the importance of adhering to the conditions of consent granted by a body corporate in a strata scheme and underscored the need for compliance with relevant by-laws. The court's ruling also highlighted the significance of the timing of by-law amendments in relation to consent for alterations within a strata scheme.

Orders

Orders of the court

1. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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