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

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                    [74]   The submission continues that exclusive use is not the equivalent of an
                           estate in fee simple, and again this seems correct. It is a statutory right in
                           the nature of the contract involving multiple parties:12

                                Once it is registered, the community management statement takes effect
                                as a statutory contract between the body corporate, each member of the
                                body corporate, each registered proprietor and each occupier of a lot or
                                common property.13

                    [75]   Section 129 of the Commercial Module provides that an exclusive use by-
                           law may impose conditions, including conditions regarding payments to
                           the body corporate or lot owners.

                    [76]   By-law 30 imposes no special limitations or conditions upon the grant of
                           exclusive use to the QPCU of the designated areas. The fact that the body
                           corporate has not at any stage chosen to fetter the grant or to impose
                           special conditions by requiring recompense to itself for any activity in the
                           relevant areas may be itself illuminating. It did not choose to exercise any
                           such power or impose any such condition.

                    [77]   In my view a party who has the exclusive right to use and possess
                           property prima facie has the right to its fruits and profits. Unless particular
                           types of dealing are prohibited with respect to the subject spaces, or some
                           special limitation is imposed, persons with the right of exclusive use are
                           entitled to retain such profits as they can make from lawful use of the
                           property, provided of course they do not create a nuisance or permit it to
                           be used for some purpose other than car parking. It is significant that by-
                           law 30 contemplates the exclusive use and enjoyment not only of lot
                           owners, but also “their licensees”. “Licensees” is not limited in any way
                           such as to bare licensees, and would include licensees who pay for the
                           privilege. It is likely that many lot owners who do not personally need to
                           use their exclusive use car places make arrangements for reward with
                           third parties to use those spaces. It would be surprising if any lot owner
                           holding the benefit of an exclusive use car space were obliged to account
                           to the body corporate for any benefits received in respect of it.

                    [78]   In the absence of some special limitation in an exclusive use by-law, I
                           consider that the grant of the exclusive use of a car parking space permits
                           the grantee to grant a license to others and to retain the profits of lawful
                           use of the space. There is no obligation to account to the body corporate
                           for any such profits, at least under an exclusive use by-law such as by-law
                           30.

                    [79]   A number of other points were raised both before the Adjudicator and on
                           appeal in relation to the car park area, including a suggestion of invalidity
                           of the original body corporate decisions granting the exclusive use,
                           although no clear legal objection was formulated.

                    12
                            North Wind Pty Ltd v Proprietors – Strata Plan 3143 [1981] 2 NSWLR 809, 814;
                            Independent Finance Group Pty Ltd v Mytan Pty Ltd & Anor [2001 QCA 306 at [88] per
                            Atkinson J, with whom the other members of the court agreed (“Mytan”).
                    13
                            Mytan at [88].




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


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Signed by AustLll

[74]

[75]

[76]

[77]

[78]

[79]

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The submission continues that exclusive use is not the equivalent of an
estate in fee simple, and again this seems correct. It is a statutory right in
the nature of the contract involving multiple parties: '

Once it is registered, the community management statement takes effect
as a statutory contract between the body corporate, each member of the
body corporate, each registered proprietor and each occupier of a lot or
common property."

Section 129 of the Commercial Module provides that an exclusive use by-
law may impose conditions, including conditions regarding payments to
the body corporate or lot owners.

By-law 30 imposes no special limitations or conditions upon the grant of
exclusive use to the QPCU of the designated areas. The fact that the body
corporate has not at any stage chosen to fetter the grant or to impose
special conditions by requiring recompense to itself for any activity in the
relevant areas may be itself illuminating. It did not choose to exercise any
such power or impose any such condition.

In my view a party who has the exclusive right to use and possess
property prima facie has the right to its fruits and profits. Unless particular
types of dealing are prohibited with respect to the subject spaces, or some
special limitation is imposed, persons with the right of exclusive use are
entitled to retain such profits as they can make from lawful use of the
property, provided of course they do not create a nuisance or permit it to
be used for some purpose other than car parking. It is significant that by-
law 30 contemplates the exclusive use and enjoyment not only of lot
owners, but also “their licensees”. “Licensees” is not limited in any way
such as to bare licensees, and would include licensees who pay for the
privilege. It is likely that many lot owners who do not personally need to
use their exclusive use car places make arrangements for reward with
third parties to use those spaces. It would be surprising if any lot owner
holding the benefit of an exclusive use car space were obliged to account
to the body corporate for any benefits received in respect of it.

In the absence of some special limitation in an exclusive use by-law, |
consider that the grant of the exclusive use of a car parking space permits
the grantee to grant a license to others and to retain the profits of lawful
use of the space. There is no obligation to account to the body corporate
for any such profits, at least under an exclusive use by-law such as by-law
30.

A number of other points were raised both before the Adjudicator and on
appeal in relation to the car park area, including a suggestion of invalidity
of the original body corporate decisions granting the exclusive use,
although no clear legal objection was formulated.

North Wind Pty Ltd v Proprietors — Strata Plan 3143 [1981] 2 NSWLR 809, 814;
Independent Finance Group Pty Ltd v Mytan Pty Ltd & Anor [2001 QCA 306 at [88] per
Atkinson J, with whom the other members of the court agreed (“Mytan’).

Mytan at [88].

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

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