Searle v Oceana on Broadbeach Community Titles Scheme & Ors

[2004] HCATrans 386

[2004] HCATrans 386

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B64 of 2003

B e t w e e n -

STEPHEN CHARLES SEARLE

Applicant

and

OCEANA ON BROADBEACH COMMUNITY TITLES SCHEME 24163

First Respondent

THE COMMISSIONER OF BODY CORPORATE AND COMMUNITY MANAGEMENT

Second Respondent

R.A. MEEK

Third Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 OCTOBER 2004, AT 12.09 PM

Copyright in the High Court of Australia

__________________

MR G.J. GIBSON, QC:   If it please your Honours, I appear for the applicant with my learned friend, MS C.C. HEYWORTH‑SMITH, of Counsel.  (instructed by Biggs & Biggs)

MR J.A. GRIFFIN, QC:   If the Court pleases, I appear with MR C.J. CARRIGAN of Counsel for the first respondent.  (instructed by Short Punch & Greatorix)

McHUGH J:   Yes, Mr Gibson.

MR GIBSON:   This application arises out of the construction of certain provisions of the Body Corporate and Community Management Act (Qld). Your Honours, section 163 of that Act, a summary of which appears at application book 26 - section 163(1) of the Act authorises a:

body corporate for a community title scheme under the Act may enter a lot . . . 

(b)      to carry out work the body corporate is authorised or required to carry out.

Content is given to that phrase by section 109(2)(b) particularly, of the relevant regulation made under the Act.  That provision obliges a body corporate for a community title scheme under the Act to maintain common property “in good condition”.

CALLINAN J:   Why is not cleaning down windows, which presumably have some kind of metal or timber frame – I would think metal – on the beachfront where they can become encrusted with salt, maintenance?  This is a 14‑tower block residential tower on the beachfront of Broadbeach, is that right, at the Gold Coast?

MR GIBSON:   That is so, your Honour, yes.  It was not put as an argument on behalf of the body corporate that the cleaning down of the windows or, indeed, the frames around the windows was, for example, a step taken to prevent corrosion or address the prospect of corrosion of the window frame.

CALLINAN J:   It might be so obvious that that is what it was, and, fenestration does not simply consist of the glass, it includes the frames.  That is all part of the window.

MR GIBSON:   We accept that.  In our submission, the operation of the relevant phrase, the error into which the Court of Appeal fell in interpreting the phrase “maintain in good condition” is that the Court of Appeal erred in not accepting that that phrase means something materially different from simply keeping clean.  It requires, in our submission, a physical deterioration or physical disrepair, not merely a state of uncleanliness. 

CALLINAN J:   What about something that could lead to disrepair, something done in anticipation of deterioration?

MR GIBSON:   In the sense of preventative works or preventative treatment we accept that that would fairly come within the scope of the phrase but as I said, with respect, your Honours, this matter proceeded before an adjudicator under the Act and then on appeal to the District Court judge and the material upon which the body corporate relied was not to the effect that there was some preventative maintenance aspect of the window cleaning that was carried out.

The condition of an object, in this case windows, including the frames, in our submission, is not represented by its state of cleanliness and that whilst work, as I have indicated, undertaken to prevent deterioration or disrepair ‑ ‑ ‑

McHUGH J:   I do not know why you contend that.  In many circumstances maintaining something in good condition surely includes keeping it clean and if you see somebody in a shabby suit with stains all over it you would not say that the suit was kept in good condition, would you?

MR GIBSON:   Your Honour, perhaps in a colloquial sense that may be fair comment but in our submission the context in which this provision appears militates against that interpretation.  May I draw the Court’s attention to the principle expressed in the case of Coco v The Queen which was on our supplementary list where – it is a principle with which the Court is well familiar but in particular at page ‑ ‑ ‑

McHUGH J:   This is a new application of it, is it not?

MR GIBSON:   It is an application in an analogous situation, I accept that, your Honour, but the proposition on which we rely in this context appears from the foot of page 435 in the joint judgment, the last paragraph on that page, going over to page 436 and particularly the second sentence at 436 which reads:

Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language.

We accept that this legislation does express an intention to permit body corporates to engage in activities ‑ ‑ ‑

CALLINAN J:   The “tortious conduct” would be a technical trespass, is that right?  Would it be anything else – causing no harm or damage?

MR GIBSON:   With respect, the factual background to this issue between the parties shows that it was the causation of damage which caused the applicant here to withdraw his consent to the body corporate accessing his apartment.

CALLINAN J:   That was something done beyond the mere trespass.  There would be a separate remedy for that.

MR GIBSON:   Indeed, but it was a consequence of what would otherwise be a trespass.  With respect, we accept your Honour’s proposition but perhaps take issue with the use of the word “technical” in the circumstances.  Your Honour is quite right.

CALLINAN J:   You would only get nominal damages, would you not?

MR GIBSON:   In the absence of proof of some damage, yes, that is so.  The fact remains, however, that this power, the authority conferred by the provision, is not worded with specificity.  There is ambiguity, in our submission, in the phrase in question, the phrase “maintain property in good condition”.  It would have been a simple matter for the legislature to have specified cleanliness or cleaning of the property or the common property as being a matter which would entitle a body corporate to enter on to a lot.

Indeed, as Justice Fryberg noted in his reasons, section 119 of the (Standard Module) Regulation provides specifically to that effect.  That may be found in volume 2 of the respondent’s material at page 436.  I will assist your Honours by pointing out that section 119(1) provides that:

The body corporate may supply . . . services for the benefit of owners and occupiers of lots, if the services consist of 1 or more of the following –

(a)      maintenance services, which may include cleaning –

et cetera.  That reflects a legislative intention that where cleaning is intended to be included in an otherwise general term it was specifically referred to.  Its absence from section 109(2)(a) is, in our submission, significant and in the context of the principles to which I have referred reveal the error of construction into which the court fell.  The fact that the cleaning of an object is unlikely to have been contemplated by section 109 appears also from the range of objects which are listed in that provision.

Our submissions extract only (2)(a)(ii) but could I ask your Honours to briefly turn to page 428 of volume 2 of the respondent’s material and one sees that the other objects which the body corporate is authorised to maintain in good condition are specified as “railings, parapets and balustrades . . . doors, windows and associated fittings”.  In our submission, a question of cleanliness of railings and parapets and balustrades is likely to be of such peripheral interest to a body corporate or, indeed, lot owners as not to be fairly within its purview.

For those reasons, in our submission, the Court of Appeal erred in its construction and, your Honours, it is our submission that special leave is warranted in this case because the point raised is one of obvious importance, certainly in the State of Queensland, having regard for the potential scope of application of the court’s decision and, secondly, because contrary to the respondent’s submissions, the decision does, in our submission, have significance with respect to the application and operation of interstate provisions.  Those provisions are conveniently summarised in the respondent’s outline at page 48 and then extracted through to page 55 of the application book.

It is true, of course, that the wording of the interstate analogues is not identical to that of the provision now under consideration.  However, the substance of those provisions is such that in our submission it could hardly be seriously denied that this decision will be of materiality in terms of the application to those interstate provisions.  Unless there are any other matters, your Honour, those are our submissions.

McHUGH J:   Yes, thank you, Mr Gibson.  The Court does not need to hear you, Mr Griffin.

The Court of Appeal of Queensland held that the expression “maintain common property in good condition” applies to the state of cleanliness of the common property and extends to the cleaning of windows.  We see no reason to doubt the correctness of the decision of the Court of Appeal.  Accordingly, the application for special leave is refused with costs.

The Court will now adjourn to reconstitute.

AT 12.22 PM THE MATTER WAS CONCLUDED