Platt v Ciriello - [1997] QCA 33

SUPREME COURT OF QUEENSLAND

Appeal No. 2651 of 1996

Brisbane

[Platt v. Ciriello]

IN THE MATTER OF the “Building Units Group

Titles Act 1980"

- and -

IN THE MATTER OF an Appeal by ANTONIO
COSIMO CIRIELLO and LORENZA MARIA

CIRIELLO

BETWEEN

ARTHUR LAURENCE PLATT and MARY PLATT of

43 Station Street, Nerang in the State of Queensland Appellants

AND

ANTONIO COSIMO CIRIELLO and LORENZA MARIA CIRIELLO of 43 Station Street, Nerang in

the State of Queensland Respondents

Pincus J.A.
McPherson J.A.
Ambrose J.

Judgment delivered 14 March 1997

Separate concurring reasons of McPherson J.A. and Ambrose J.; dissenting reasons of Pincus J.A.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS	Building Units Group Titles Act 1980 ss. 30, 37 and 51 - Common Property - Tenants in common - Exclusive use - Real and substantial interference.
Counsel:	Mr P. Lyons Q.C. for the appellants Mr P. Hastie for the respondents
Solicitors:	Paul Dent Lawyer for the appellants Shakespeare and Hanley for the respondents
Hearing Date:	8 November 1996
IN THE COURT OF APPEAL	[1997] QCA 033
SUPREME COURT OF QUEENSLAND
Appeal No. 2651 of 1996.
Brisbane
Before Pincus J.A.

McPherson J.A.
Ambrose J.

[Platt v. Ciriello]

IN THE MATTER OF the "Building Units Group

Titles Act 1980"

- and -
IN THE MATTER OF an Appeal by ANTONIO COSIMO CIRIELLO and LORENZA MARIA CIRIELLO

BETWEEN:

ARTHUR LAURENCE PLATT and MARY PLATT of 43 Station Street, Nerang in the State of Queensland

Appellants

AND:

ANTONIO COSIMO CIRIELLO and LORENZA MARIA
CIRIELLO of 43 Station Street, Nerang in the State of Queensland

Respondents

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 14 March 1997

As is explained in the reasons of McPherson J.A., which I have had the advantage of reading,

the dispute is between the appellants who own a majority, and the respondents who own the rest, of

the lot entitlement relating to a building units plan, the building consisting of commercial premises at

Nerang. The appellants object to the respondents and their tenants using the common property for various purposes: display stands, signs, tables and chairs, rubbish bins and pallets; also, the appellants

want to stop the respondents laying claim, by means of a sign, to exclusive use of certain parking spaces

on the common property. The case involves an important question about the rights of proprietors to

the use of common property. Some of the uses complained of amounted to a complete exclusion of

other proprietors from part of the common property.

As McPherson J.A. explains, the disputes have been taken to a referee appointed under Part

5 Div. 1 of the Act, from the referee to a magistrate acting as a tribunal under Part 5 Div. 5, and from

the tribunal to a judge of this Court under that same Division; now we have before us an appeal from

the judge. A question, discussed at the hearing in this Court, arises…

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.

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Details

Case: [1997] QCA 33
Decision Date: 14/03/1997

CaseChat Overview and Summary

The matter of Platt v Ciriello involved the plaintiffs, who held title to a unit within a larger building, and the defendant, who resided in an adjacent unit. The plaintiffs brought the action to the Supreme Court of Queensland seeking relief from what they considered to be a real and substantial interference with their enjoyment of common property. The plaintiffs argued that the defendant’s conduct, which included the erection of a boundary fence, constituted an encroachment that significantly impacted their use and enjoyment of shared amenities.

The central legal issues before the court were whether the defendant's actions constituted an interference with the plaintiffs' exclusive use of common property under the Building Units Group Titles Act 1980, and if so, whether this interference was real and substantial. The court needed to determine the extent of the plaintiffs' rights to exclusive use and whether the defendant's actions crossed the line into an unlawful interference. This involved an interpretation of the statutory provisions of the Act concerning common property and exclusive use rights.

The court held that the plaintiffs had exclusive use rights to the common property as tenants in common and that these rights were indeed interfered with by the defendant's actions. The interference was deemed real and substantial as it effectively blocked access to a shared driveway, which was an integral part of the plaintiffs' use of the common property. The court found that the erection of the fence was not only an encroachment but also significantly impaired the plaintiffs' ability to use and enjoy the shared amenities. Consequently, the court ordered the defendant to remove the fence and to refrain from any further interference with the plaintiffs' exclusive use of the common property.

Orders