Oceana on Broadbeach Community Titles Scheme 24163 v Searle

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

CaseChat Overview and Summary

The case before the court involved Oceana on Broadbeach Community Titles Scheme 24163, the appellant, and Searle, the first respondent. The dispute pertained to the authority of a person authorised by the body corporate to enter a lot for the purpose of maintaining common property, specifically cleaning windows. The matter was heard in the Queensland Court of Appeal. The appellant sought to appeal against a decision of the District Court which had upheld an adjudicator’s ruling that the authorised person was not permitted to enter the lot.

The legal issues centred on the interpretation of section 163 of the Body Corporate and Community Management Act 1997. Specifically, the court had to determine whether a person authorised by the body corporate could enter a lot to carry out maintenance of the common property, such as cleaning windows, and if so, under what conditions and frequency this could occur. The appellant argued that the authorised person had the right to enter the lot three times a year, or more frequently if necessary, to maintain the common property.

The court examined the relevant statutory provisions and found that the authorised person had the right to enter the lot as per the statute. The court held that the authorised person was entitled to enter the lot three times a year, or more frequently if the circumstances required it, for the purpose of maintaining the common property. The court set aside the orders of both the District Court and the adjudicator, substituting an order that declared the appellant's entitlement to enter the lot as per the statutory provision. The court also granted leave to appeal and ordered the first respondent to pay the appellant's costs of and incidental to the appeal.

Orders of the court

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.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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