20181085-ASC12 - Ballada Pty Ltd v North Point Brisbane & Anor [2013] QCATA 184

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                    [66]   In the absence of any established basis for determining that the EGM
                           notice or resolutions should be invalidated, there is no basis for such costs
                           to be paid by another party such as the QPCU.

                    [67]   The applicants have not articulated any comprehensible cause of action
                           that they have against the QPCU. Neither have they articulated any claim
                           against the body corporate requiring it to bring such action.

                    QPCU Earnings from rental of Car-Spaces

                    [68]   A raft of issues were raised in relation to the claim that the QPCU must
                           pay the body corporate any income it has earned from renting out its
                           exclusive use car spaces.

                    [69]   The history of the allocation of exclusive use car parking areas in this
                           scheme dating back to 1987 has been to some extent canvassed by the
                           Adjudicator in paragraphs [101] – [102] of the reasons for judgment. The
                           area of concern to the applicants is lot 3 from which QPCU carries on a
                           business of a credit union with customers coming and going via the upper
                           level car park. The applicants assert that the charging of fees or rent by
                           the QPCU with respect to the use of such areas is unauthorised and
                           unlawful, and interferes with private property rights of lot owners.

                    [70]   Exclusive use areas are a familiar feature of lot ownership. Sections 170
                           to 177 of the BCCM Act deal with the subject of exclusive use by-laws and
                           authorise the adoption of such by-laws. Grants of exclusive use to areas
                           of common property are normally made through exclusive use by-laws
                           recorded in the CMS.

                    [71]   Section 170(1) provides:

                                An exclusive use by-law, for a community titles scheme, is a by-law that
                                attaches to a lot included in the scheme, and gives the occupier of the lot
                                for the time being exclusive use to the rights and enjoyment of, or other
                                special rights about –

                                (a)   common property; or
                                (b)   a body corporate asset.

                    [72]   The relevant by-law for present purposes is number 30. It is duly
                           registered. It recognises the entitlement of each owner of a lot identified
                           in a schedule as “entitled to the exclusive use and enjoyment for
                           themselves and their licensees of their respective car parking spaces.” It
                           imposes a duty on the owner to keep the spaces clean and tidy, to use
                           them only for the purposes of car parking, and not to use them so as to
                           create a nuisance.

                    [73]   The submission of the applicants is that there is no provision in by-law 30
                           about the rents to accrue to QPCU. That is true: the subject is simply not
                           mentioned.




4GVTKGXGFHTQO#WUV.++QP/CTEJCV                                                           8GTKH[XGTUKQP


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Signed by AustLll

[66]

[67]

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In the absence of any established basis for determining that the EGM
notice or resolutions should be invalidated, there is no basis for such costs
to be paid by another party such as the QPCU.

The applicants have not articulated any comprehensible cause of action
that they have against the QPCU. Neither have they articulated any claim
against the body corporate requiring it to bring such action.

QPCU Earnings from rental of Car-Spaces

[68]

[69]

[70]

[71]

[72]

[73]

A raft of issues were raised in relation to the claim that the QPCU must
pay the body corporate any income it has earned from renting out its
exclusive use Car spaces.

The history of the allocation of exclusive use car parking areas in this
scheme dating back to 1987 has been to some extent canvassed by the
Adjudicator in paragraphs [101] — [102] of the reasons for judgment. The
area. of concern to the applicants is lot 3 from which QPCU carries ona
business of a credit union with customers coming and going via the upper
level car park. The applicants assert that the charging of fees or rent by
the QPCU with respect to the use of such areas is unauthorised and
unlawful, and interferes with private property rights of lot owners.

Exclusive use areas are a familiar feature of lot ownership. Sections 170
to 177 of the BCCM Act deal with the subject of exclusive use by-laws and
authorise the adoption of such by-laws. Grants of exclusive use to areas
of common property are normally made through exclusive use by-laws
recorded in the CMS.

Section 170(1) provides:

An exclusive use by-law, for a community titles scheme, is a by-law that
attaches to a lot included in the scheme, and gives the occupier of the lot
for the time being exclusive use to the rights and enjoyment of, or other
special rights about —

(a) common property; or
(b) a body corporate asset.

The relevant by-law for present purposes is number 30. It is duly
registered. It recognises the entitlement of each owner of a lot identified
in a schedule as “entitled to the exclusive use and enjoyment for
themselves and their licensees of their respective car parking spaces.” It
imposes a duty on the owner to keep the spaces clean and tidy, to use
them only for the purposes of car parking, and not to use them so as to
create a nuisance.

The submission of the applicants is that there is no provision in by-law 30
about the rents to accrue to QPCU. That is true: the subject is simply not
mentioned.

Retrieved from AustLII on 30 March 2020 at 16:29:45

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