Surace v. Rita Commisso Enterprises Pty Ltd & Anor

DISTRICT COURT OF QUEENSLAND

CITATION:

Surace v Rita Commisso Enterprises Pty Ltd & Anor [2009] QDC 198

PARTIES:

DOMINIC SURACE
(Appellant)

V

RITA COMMISSO ENTERPRISES PTY LTD
(First Respondent)

And

BODY CORPORATE FOR ACACIA LODGE HOSTEL COMMUNITY TITLES SCHEME 25755
(Second Respondent)

FILE NO/S:

Southport 356 of 2007

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Adjudicator under Body Corporate and Community Management Act 1997 (Qld)

DELIVERED ON:

7 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2008; 26 May 2009

JUDGE:

Rackemann DCJ

ORDER:

The appeal is allowed and the matter remitted to the specialist adjudicator to determine according to law

CATCHWORDS:

REAL PROPERTY – STRATA TITLE – MANAGEMENT AND CONTROL – whether exclusive occupation authority validly granted

Body Corporate and Community Management Act 1997 (Qld), s 289

Body Corporate and Community (Accommodation Module) Regulation 1997 (Qld) (repealed), s 76, s 77, s 89, s 144

COUNSEL:

Mr T Matthews for the Appellant

Miss C Heyworth-Smith for the First Respondent

SOLICITORS:

Stacks Gray Lawyers for the Appellant

Hynes Lawyers for the First Respondent

1. This appeal is against the decision of a specialist adjudicator as to whether the first respondent, as manager and letting agent for the Acacia Lodge Hostel, situated at Imperial Parade, Labrador, has exclusive occupation rights for the area of the kitchen and laundry, which are within the common property.  The argument focussed more on the kitchen, since the applicant/first respondent has, when requested, permitted residents to use the laundry.

1. The appellant is the owner of three of the six lots within the relevant scheme.  The first respondent owns the balance of the lots and is also the assignee of rights under a resident manager’s agreement (RMA) and a letting agreement (LA), each of which were entered into, on 21 August 1998, between the Body Corporate and the first respondent’s predecessor.  Each of those agreements purport, on their face, to give a right of exclusive occupation for the common property, as hatched on an attached plan. That includes the kitchen and laundry, as well as other areas.  There is a dispute as to whether exclusive occupation of those areas was validly granted.

1. Both the first respondent and its predecessor have, in fact, operated an on-site catering business from the kitchen in the common property.  In August of 2005 the appellant, as he was entitled to, decided to engage an external letting agent, rather than continue to use the services of the first respondent.  Thereafter, a dispute arose as to whether any of the appellant’s tenants would be permitted to use the kitchen to prepare their own meals.  The matter was due to be debated at an extraordinary general meeting of the Body Corporate, at which the appellant was to move a motion that the first respondent be served with a Remedial Action Notice.  This prompted the first respondent to successfully seek interim relief, preventing the Body Corporate from voting on that motion. Subsequently the specialist adjudicator made final orders including, relevantly, as follows:

“1.Clause 3 of the Letting…