The concept Developer Pty Ltd v Conroy - [2015] VSC 464

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 06533

THE CONCEPT DEVELOPER PTY LTD (ACN 007 364 712)	Plaintiff
v
CHRISTINE LENORE CONROY & ORS	Defendants

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 AUGUST 2015
DATE OF JUDGMENT:	14 SEPTEMBER 2015
CASE MAY BE CITED AS:	THE CONCEPT DEVELOPER PTY LTD v CONROY & ORS
MEDIUM NEUTRAL CITATION:	[2015] VSC 464

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ADMINISTRATIVE LAW - Appeal from order made by the Victorian Civil and Administrative Tribunal – Alteration of lot liability on a plan of subdivision – Whether Tribunal correctly construed s 32 and s 33 of the Subdivision Act 1988 - Whether s 33(1) creates a right to apply to Registrar of Titles for a change in lot entitlement and lot liability independent of right to do so under s 32(k) - Meaning of ‘just and equitable’ in s 33(3) – Relevant considerations – ss 3, 32, 32AE, 33, 34D(1)(a), 34(2), 34(D)(3), of the Subdivision Act 1988 considered.

PROPERTY LAW - Plan of subdivision – Owners Corporation - Alteration of lot liability on a plan of subdivision - Whether s 33(1) creates a right to apply to Registrar of Titles for a change in lot entitlement and lot liability independent of right to do so under s 32(k) - Meaning of ‘just and equitable’ in s 33(3) – Relevant considerations – ss 3, 32, 32AE, 33, 34D(1)(a), 34(2), 34(D)(3), of the Subdivision Act 1988 considered.

STATUTES – Interpretation – s 32 and s 33 of the Subdivision Act 1988 - Context and purpose considered - Words and phrases - ‘change to lot liability’, ‘just and equitable’, ‘administrative and general expenses of the owner’s corporation.’

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	JJ Isles	Michael Whittington
For the Defendants	NP Jones	HWL Ebsworth

HIS HONOUR:

Background

A property known as 29 Gipp Street, Richmond was originally a warehouse but in 1988 it was subdivided into 6 apartments, 3 car parks and common property by Plan of Subdivision No SP030438K. The plaintiff is the owner of lot 12 and a car park lot in the subdivision. The first and second defendants owned lot 16 and 17 and a car park lot. The third defendant is the owners corporation created by the plan of subdivision.

The plaintiff appeals an order of the Victorian Civil and Administrative Tribunal.[1] The proceeding before the tribunal concerned the lot entitlements and lot liabilities of the owners in the subdivision. The plaintiff’s lot is the largest of the apartments and occupies the top of the main building. The lot extends 25 metres above the floor of the topmost story of the building, which is above the roofline. The roof of the building is part of lot 12, not part of the common property. Four of the 6 apartments and 3 car parks are located underneath lot 12. Originally, the plaintiff’s lots had a large entitlement and a small liability as set out in the…

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.

Continue reading The concept Developer Pty Ltd v Conroy

Details

AGLC: The concept Developer Pty Ltd v Conroy [2015] VSC 464
Case: [2015] VSC 464
Decision Date: 14 SEPTEMBER 2015

CaseChat Overview and Summary

The Concept Developer Pty Ltd sought judicial review of a decision made by the Victorian Civil and Administrative Tribunal (VCAT). The dispute involved an alteration to the liability of a lot on a plan of subdivision. The court was asked to determine whether VCAT correctly interpreted sections 32 and 33 of the Subdivision Act 1988. Specifically, the court had to decide if section 33(1) created a right to apply to the Registrar of Titles for a change in lot entitlement and liability, independent of the right to do so under section 32(k). Additionally, the court examined the meaning of ‘just and equitable’ in section 33(3) and the relevant considerations under the Subdivision Act 1988.

The court found that VCAT had correctly interpreted sections 32 and 33 of the Subdivision Act 1988. It held that section 33(1) does create a right to apply to the Registrar of Titles for a change in lot entitlement and liability, independent of the right under section 32(k). The court also clarified the meaning of ‘just and equitable’ in section 33(3) as requiring consideration of factors such as the administrative and general expenses of the owner's corporation and the equitable distribution of such expenses among the lot owners. The court emphasised the importance of context and purpose in interpreting the relevant provisions of the Subdivision Act 1988.

The appeal was dismissed, and the original decision of VCAT was upheld. The court found that VCAT had appropriately applied the relevant provisions of the Subdivision Act 1988 in making its decision. The meaning of ‘just and equitable’ was correctly interpreted in the context of the administrative and general expenses of the owner's corporation. The court determined that the Tribunal had considered all relevant factors in making its decision and that it had not erred in law.

Orders