Re Ciriello & Ciriello

[1996] QSC 27

IN THE SUPREME COURT

OF QUEENSLAND  No. 316 of 1994

[Re Ciriello & Ciriello]

IN THE MATTER of the Building Units and Group Titles Act 1980

- and -

IN THE MATTER of an appeal by Antonio Cosimo Ciriello and Lorenza Maria Ciriello

JUDGMENT  -  DERRINGTON J.

Delivered:28 February 1996

CATCHWORDS:     Building Units - Appeal from decision by Tribunal reviewing decision of Referee - Signs and obstructions on common property - Whether exclusive possession of area of common property unlawful - Whether Tribunal applied correct test - Building Units and Group Title Act 1980 ss.20(1), 30(2), 30(7), 51(1)(c).

Counsel:Mr P. Hastie for the Appellants

Mr G. Radcliff for the Respondent

Solicitors:Shakespeare and Haney for the Applicant

Paul Dent for the Respondent

Hearing Date:   9 February 1996

IN THE SUPREME COURT

OF QUEENSLAND  No. 316 of 1994

IN THE MATTER of the Building Units and Group Titles Act 1980

- and -

IN THE MATTER of an appeal by Antonio Cosimo Ciriello and Lorenza Maria Ciriello

JUDGMENT  -  DERRINGTON J.

Delivered 28 February 1996

This is an appeal from the decision of a tribunal under the Building Units and Group Titles Act 1980 reviewing the decision of a referee on a question whether certain signs on building and obstructions on the footpath outside shops contained in the building were unlawful as being in breach of the Act. The signs and obstructions were all on common property of the premises in which the units occupied by the shops were contained.
           The referee found that the obstructions were reasonable, which is rather surprising when the owner of the chemist shop in the complex had a sign limiting two bays of the limited parking area to persons having emergency prescriptions, a totally unauthorised act.
           The tribunal overruled the entire decision of the referee.  It seems that he found that each obstruction on the common property amounted to exclusive possession, that it was therefore unlawful, and that there was no need to consider it further. He gave no attention to any question as to whether any of the matters complained about adversely affected to an unreasonable degree the enjoyment of the occupants of the premises or those lawfully using the common property.  The question therefore is whether exclusive possession by a unit holder of an area of the common property, as he found it, is forbidden by the Act.
           The relevant provisions of the Act are as follows:

"20(1)  [Proportions] The common property shall be held by the proprietors as tenants in common in shares proportional to the lot entitlements of their respective lots."

. . .

"30(2) [Body corporate's powers]  Save where otherwise provided in subsections (7) and (11), a body corporate, pursuant to a special resolution, may, for the purpose of the control, management, administration, use or enjoyment of the lots and common property the subject of the plan, make by-laws amending, adding to or repealing the by-laws set forth in the Third Schedule or any by-laws made under this subsection."

. . .

"30(7)  [By-laws in respect of common property]  With the written consent of the proprietor or proprietors of the lot or lots concerned, a body corporate may, pursuant to a resolution without dissent make a by-law -

(a)conferring on the proprietor of a lot specified in the by-law, or on the proprietors of the several lots so specified -

(i)the exclusive use and enjoyment of;

or

(ii)special privileges in respect of;

the whole or any part of the common property, upon conditions (including the payment of money at specified times or as required by the body corporate, by the proprietor or proprietors of the lot or several lots) specified in the by-law;

or

(b)amending, adding to or repealing a by-law made in accordance with this subjection.

. . .

"51(1)(c)use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is a proprietor or not) or by any other person entitled to the use and enjoyment of the common property."

The structure provided for by these provisions is that the holder of a unit may engage on those activities on the common area appropriate to the rights of a tenant in common, but the body corporate may regulate such activities by its by-laws.  Conversely, a by-law passed without dissent may grant exclusive possession of part of the common area so that the beneficiary of the grant may exercise that right notwithstanding that it might per se otherwise contravene other provisions.
           Significantly, the Act does not expressly and directly forbid the arrogation by a unit holder of exclusive use of any portion of the common property.  Whilst exclusivity may be the subject of a positive grant through a by-law, when the Act turns to the prohibition of conduct on the common property otherwise than through the instrument of a by-law, it turns to criteria of which exclusivity of use is not a decisive measure.  It may be a factor that should be considered when applying the relevant measures, but it is not a necessary factor nor are its consequences necessarily absolute.
           The measure prescribed by the statute itself is simply whether the use or enjoyment of the common property is had in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of it by the occupiers of other lots or any other person entitled to use and enjoy it.  Accordingly, absent any by-law on the point, if a unit-holder were exercising exclusive possession of a part of the common property that did not transgress that standard, then no prohibition of it appears in the Act; but if there is a by-law granting exclusive possession, then an aggrieved party could not later challenge it on this ground.  It should be remembered that simply by standing in common property a person would be, albeit temporarily, exercising exclusive possession of the space that he occupies; so the mear fact of exclusive possession cannot be the test.
           As the tribunal applied the incorrect test, its conclusions cannot be sustained and the matter should be remitted to it for determination according to law.
           The appeal is upheld.  The matter is remitted to the tribunal to be determined according to law.  The respondent is to pay the appellant's costs of the appeal to be taxed.