The Body Corproate for Parkwood Villas v Grants Enterprises Pty Ltd
[2010] QCAT 461
•24 September 2010
| CITATION: | The Body Corproate for Parkwood Villas v Grants Enterprises Pty Ltd [2010] QCAT 461 | |
| PARTIES: | The Body Corproate for Parkwood Villas CTS25893 | |
| v | ||
| Grants Enterprises Pty Ltd | ||
| APPLICATION NUMBER: | OCL007-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | Decision on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe |
| DELIVERED ON: | 24 September 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The letting agreement made 19 August 1998 does not entitle the respondent to conduct the business of the sale of units from the complex. 2. The letting agreement made 19 August 1998 does not entitle the respondent to display signs on the common property or otherwise within the complex. |
| CATCHWORDS : | LETTING AGREEMENT – whether agreement permitted manager to sell lots in the scheme – where letting agreement silent as to sale of lots – where development approval for home business for sale and letting of lots – whether agreement permitted manager to advertise on common property – where billboard erected by original proprietor on exclusive use area – where bylaws allow agreements about signs – where letting agreement silent as to signs Body Corporate for Regatta Riverside Tower 1 CTS 31200 v Pacific Management Services Pty Ltd [2009] QCCTBCCM 26 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the
Queensland Civil and Administrative Tribunal Act 2009
REASONS FOR DECISION
The issue
Grants Enterprises Pty Ltd (“Grants”) has a letting agreement with the Body Corporate. It is conducting a real estate agency from its premises within the complex, both letting and selling units. The body corporate seeks two declarations:
a)That the letting agreement does not entitle Grants to provide a service to owners of lots at the scheme for the sale of lots.
b)That the letting agreement does not entitle Grants to display signs on the common property, including on the billboard sign currently erected on the exclusive use courtyard of lot 6.
Can Grants provide a service to owners of lots at the scheme for the sale of lots?
Clause 2(a) of the letting agreement is in these terms:
The Agent may carry on within the complex (herein called “the lot”) the business of a real estate agency for the letting of lots within the complex on behalf of such owners of lots in the complex as require that service together with all associated services commonly rendered in connection therewith.”
The Body Corporate says that clause 2(a) is explicit in allowing Grants to carry on a business of letting lots but not the sale of lots. It says that it made a deliberate decision, as is reflected in clause 2(a) that the right to carry on business would not be extended to the sale of lots.
Grants says:
a)The business of a real estate would ordinarily include offering lots for sale;
b)The sale of lots is included in the phrase “all associated services commonly rendered in connection therewith” in clause 2(a);
c)That the Body Corporate did not appeal a decision of the Planning & Environment Court in 2000 allowing a development application for a material change of use for lot 33 with this condition: “The operation of the home occupation (estate sales office) shall be limited to letting and sales transaction of property within the Community Title Scheme of the Parkwood Villas development only.”
I consider that Grants’ arguments are misconceived.
What the business of a real estate agent would ordinarily include is irrelevant. Clause 2(a) specifically gives consent of the business of a real estate agency for the letting of lots. By bylaw 41(a)(iii) the Body Corporate may make an agreement with the proprietor of lot 33 about the provision of sales, leasing and letting services. The agreement refers to letting; it does not refer to sales or leasing. That appears to be a deliberate omission.
The phrase “all associated services commonly rendered in connection therewith” in clause 2(a) must relate to “that service” which is, necessarily, relates to “the letting of lots”. “Associated services” cannot extend the concept of service beyond the letting of lots. It must refer only to those things that are ordinarily incidental to the letting of lots:- cleaning, repairs and maintenance, and perhaps the provision of services such as dry cleaning, tourism and basic food services. As Mr Mackenzie QC stated, on a similar fact matrix, in Body Corporate for Regatta Riverside Tower 1 CTS 31200 v Pacific Management Services Pty Ltd[1]:
“The notion that the term “ancillary services” has such an expansive meaning that it extends to facilitation by the respondent of buying and selling of units and has previously been held to be untenable.”
[1] [2009] QCCTBCCM 26 at [24]
It is not surprising that the Body Corporate did not oppose the material change of use application. As I have already noted, bylaw 41 allows the Body Corporate to enter into an agreement with the owner of lot 33 in relation to the provision of sales, leasing and letting, offering lots as serviced apartments and travel or tourist agencies. The more extensive the Council’s development approval, the more room both parties have to negotiate future agreements under bylaw 41.
It cannot be argued that the development approval overrides the specific terms of the letting agreement. The approval relates to land use; the letting agreement is the specific authorisation to conduct the business. Again, to quote Mr Mackenzie QC[2]:
“the requirements of the Brisbane City Council do not assist in resolving the issue between the parties, which depends upon a construction of the agreement”
[2] Ibid at [15]
10. Nothing prevents Grants carrying on the business of a real estate agency for the sale of lots that are in the complex but, because of the letting agreement, it cannot conduct that business from within the complex.
The letting agreement does not entitle Grants to display signs on the common property, including on the billboard sign currently erected on the exclusive use courtyard of lot 6
11. Grants say:
a)The sign on lot 6 has been in place since 1993. From 1993 to 2004, it bore these words “Sales and Rental Enquiries”.
b)In 2004, the body corporate approved an upgrade to the sign. At that time, the wording was changed to “Rent or Buy”.
c)Lot 6 is owned by Bruce and Margaret Grant, not Grants. To the extent that this application seeks orders against non-parties, it is of no effect.
d)Mr & Mrs Grant bought lot 6 with the sign in situ. They believed that they purchased the lot with exclusive use of any fixtures or fittings on lot 6, including the sign. They have authorised Grants’ use of the sign.
e)The Body Corporate has allowed off site real estate agents to place signs on site.
12. The Body Corporate says that:
a)Mr & Mrs Grant control Grants, so that they are effectively the alter ego of the company.
b)It has asked Mr & Mrs Grant to remove the billboard. That matter is now in dispute before an adjudicator.
c)The body corporate, although empowered by bylaw 41 to enter into an agreement relating to advertising, promotion and signage, chose not to do so.
d)Bylaw 41(d) provides that, save for bylaws 41(a) and 43, each lot in the complex shall be used for residential purposes only. The use of the billboard is not a residential purpose.
13. I note the terms of bylaw 9:
“Proprietor or occupiers shall not paint, affix or display any signs, advertisements, notices…to or on any part of the building …without the prior consent of the Committee.
14. “Building” is not defined but an examination of the plans, unsurprisingly, show a difference between the buildings – that is the structures – and the common property. The argument is not about a sign on the building. The relevance of the bylaw is the attempt to control strictly unauthorised signage throughout the complex.
15. The Body Corporate’s power to make agreements with the owner of lot 33 extends, by bylaw 41(a)(viii) to agreements about:
“the display of signs or notice on the building manager’s lot and common property for the purposes of offering for sale or for lease or for letting any lot and of the advertising of the provision of services.”
16. Bylaw 43 provides that:
“The original proprietor may, without the consent of the Committee display signs or notices in or about the building and the common property for the purposes of offering for sale or letting any lot in the building, and may use any unit in the building of which it remains a proprietor as a display unit,”
17. Mr & Mrs Grant, by their own admission, are not the original proprietors. The letting agreement contains no clause about signs or advertising at all, so it is clear that the Body Corporate did not exercise its power under bylaw 41(a)(viii). The result is that Grants has no right to advertise within the complex and that Mr & Mrs Grant may use the billboard in lot 6 only for a residential purpose (whatever that may be).
18. There appears to be some suggestion in Grants’ submissions that the Body Corporate is in some way estopped from allowing Grants to use the billboard on lot 6 for advertising. It is only a suggestion. There is no material before the tribunal that would enable me to determine that issue. Given that it would necessarily involve Mr & Mrs Grant in the proceedings, it is not something that could be determined on this application. As the continued presence of the billboard is the subject of another proceeding, it is a matter best left to that tribunal.
Conclusion
19. The letting agreement is simply that, a letting agreement. Grants has no right to operate a real estate sales business from the complex.
20. Grants has no right to advertise within the complex. Mr & Mrs Grant may use the billboard on lot 6 for residential purposes only.
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