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

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                    [80]   In this instance I am prepared to say that these points are adequately
                           dealt with by the Adjudicator in her carefully prepared reasons for
                           judgment from paragraphs [99] to [111] and that I agree with those
                           reasons and conclusions.

                    [81]   Even if a claim had been articulated against the body corporate requiring
                           it to reverse its grant of exclusive use to the QPCU, and requiring it to
                           endeavour to recoup any income which QPCU gained from such activities,
                           no basis is shown upon which success could be expected in relation to
                           any such claim.

                    [82]   In short no error of law is shown with respect to the Adjudicator’s decision
                           in this area, and no basis is shown for the relief which the applicants seek.

                    Claim against QPCU concerning its installation and use of an ATM in the
                    foyer of the common property

                    [83]   The applicants sought an order that the QPCU must forthwith account for
                           the body corporate for rental and compensation for the ATM which was
                           installed in the ground floor lobby. The amount was specified to be
                           $12,580.00 in the first year, increasing by 4% per annum. There was a
                           further claim that QPCU be required to execute a lease, be responsible for
                           all electricity used, and other declaratory relief requiring the payment of all
                           reinstatement costs if and when the ATM is removed.

                    [84]   There is evidence that the QPCU installed an ATM in the foyer on
                           common property. The body corporate refers to a resolution “passed
                           outside a committee meeting” on 17 June 2011 approving the relocation
                           of the ATM at the expense of QPCU.

                    [85]   No order was sought to set aside the committee resolution and no order
                           was sought against the body corporate in relation to the validity of the
                           resolution. The body corporate would be a necessary party if there were to
                           be a claim that the resolution be set aside.

                    [86]   The applicants have not shown any nexus or entitlement to make a direct
                           claim against the QPCU for the payment of money. In the absence of
                           special rights or special loss on the part of an individual lot owner, any
                           claim for rental and compensation arising out of the use of a machine on
                           the common property could only be made by the body corporate. If it was
                           intended that the body corporate should be ordered to bring such a claim
                           against the QPCU, obviously a specific claim to that effect would have to
                           be made against the body corporate.

                    [87]   It may well be that the permitting of installation and use of this machine on
                           the common property amounts to a disposition of common property, and
                           that such a decision can only be made by a body corporate resolution
                           without dissent,14 or, depending on the duration of the grant, at least a


                    14
                            Katsik alis v Body Corporate for “The Centre” [2009] QCA 77.




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


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[80]

[81]

[82]

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In this instance | am prepared to say that these points are adequately
dealt with by the Adjudicator in her carefully prepared reasons for
judgment from paragraphs [99] to [111] and that | agree with those
reasons and conclusions.

Even if a claim had been articulated against the body corporate requiring
it to reverse its grant of exclusive use to the QPCU, and requiring it to
endeavour to recoup any income which QPCU gained from such activities,
no basis is shown upon which success could be expected in relation to
any such claim.

In short no error of law is shown with respect to the Adjudicator’s decision
in this area, and no basis is shown for the relief which the applicants seek.

Claim against QPCU concerning its installation and use of an ATM in the
foyer of the common property

[83]

[84]

[85]

[86]

[87]

14

The applicants sought an order that the QPCU must forthwith account for
the body corporate for rental and compensation for the ATM which was
installed in the ground floor lobby. The amount was specified to be
$12,580.00 in the first year, increasing by 4% per annum. There was a
further claim that QPCU be required to execute a lease, be responsible for
all electricity used, and other declaratory relief requiring the payment of all
reinstatement costs if and when the ATM is removed.

There is evidence that the QPCU installed an ATM in the foyer on
common property. The body corporate refers to a resolution “passed
outside a committee meeting” on 17 June 2011 approving the relocation
of the ATM at the expense of QPCU.

No order was sought to set aside the committee resolution and no order
was sought against the body corporate in relation to the validity of the
resolution. The body corporate would be a necessary party if there were to
be a claim that the resolution be set aside.

The applicants have not shown any nexus or entitlement to make a direct
claim against the QPCU for the payment of money. In the absence of
special rights or special loss on the part of an individual lot owner, any
claim for rental and compensation arising out of the use of a machine on
the common property could only be made by the body corporate. If it was
intended that the body corporate should be ordered to bring such a claim
against the QPCU, obviously a specific claim to that effect would have to
be made against the body corporate.

It may well be that the permitting of installation and use of this machine on
the common property amounts to a disposition of common property, and
that such a decision can only be made by a body corporate resolution
without dissent,’* or, depending on the duration of the grant, at least a

Katsikalis v Body Corporate for “The Centre” [2009] QCA 77.

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

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