Oceana on Broadbeach Community Titles Scheme 24163 v Searle

[2003] QCA 325

SUPREME COURT OF QUEENSLAND

CITATION:

Oceana on Broadbeach Community Titles Scheme 24163 v Searle & Ors [2003] QCA 325

PARTIES:

OCEANA ON BROADBEACH COMMUNITY TITLES SCHEME 24163
(appellant/applicant)
v
STEPHEN CHARLES SEARLE
(first respondent/first respondent)
THE COMMISSIONER FOR BODY CORPORATE AND COMMUNITY MANAGEMENT
(second respondent/second respondent)
R A MEEK
(third respondent/third respondent)

FILE NO/S:

Appeal No 5170 of 2003
DC No 931 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

11 July 2003: 29 July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

16 June 2003

JUDGES:

Davies and Williams JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1.   Extend time for filing the application for leave to appeal to 13 June 2003.

2.   Leave to appeal granted.

3.   Appeal allowed.

4.   Set aside the order of the District Court made on 13 March 2003.

5.   In lieu order as follows:

(a)        appeal allowed;

(b)        set aside the order of the adjudicator made on 19 September 2002;

(c) in lieu, declare that under s 163 of the Body Corporate and Community Management Act 1997 a person authorised by the body corporate is entitled three times a year or more frequently if the circumstances so require to enter and remain on Lot 98 while it is reasonably necessary to do so for the purpose of maintaining the windows within the common property by cleaning them;

(d)        order that the first respondent pay the appellant's costs of and incidental to the appeal to be assessed.

6.   Order that the first respondent pay the appellant's costs of and incidental to the appeal to be assessed.

CATCHWORDS:

REAL PROPERTY – Strata and related titles and occupancy – Body corporate – Powers, duties and liabilities – Whether person authorised by the body corporate entitled to enter a lot to carry out maintenance to the common property – Body Corporate and Community Management Act 1997, s 163

Body Corporate and Community Management Act 1997 (Qld), s 163
Body Corporate and Community Management (Standard Module) Regulation 1997 (Qld), s 109

COUNSEL:

J A Griffin QC, with C J Carrigan, for the appellant
G J Gibson QC, with C C Heyworth-Smith, for the first
respondent
No appearance for the second and third respondents

SOLICITORS:

Short Punch & Greatorix for the applicant/appellant
Biggs & Biggs for the first respondent
No appearance for the second and third respondents