Mahoneys has successfully defended an application in the Supreme Court that sought to prevent building works being carried out by our clients at Sanctuary Cove.
Our clients (the first respondents in the proceedings) are adjoining neighbours with the applicant in a scheme at Sanctuary Cove.
Sanctuary Cove is governed by the Sanctuary Cove Resort Act 1995 (Qld) (Act). There are a number of bodies corporate in Sanctuary Cove, managed by a Principal Body Corporate (the second respondent in the proceedings).
All building works carried out at Sanctuary Cove must comply with the Development Control By-Laws (By-Laws) established in accordance with the Act. The Principal Body Corporate oversees all development applications at Sanctuary Cove, to ensure uniformity in the implementation of the By-Laws across the various schemes.
The lots in the schemes at Sanctuary Cove are divided into categories under the By-Laws, that apply varying building controls.
The applicant brought an application to the Supreme Court seeking to immediately halt the building works being carried out by our clients, significantly amend the plans approved under the development application and demolish any works carried out that did not accord with the amendments proposed.
This relief was sought on the basis that the development approval given by the Principal Body Corporate was invalid, due to the incorrect categorisation of our clients’ lot, and thus application of the incorrect building controls under the By-Laws.
The applicant argued that a purposive approach should be taken to the construction of the By-Laws, which would allow for a different categorisation of our clients’ lot to that which was recorded in the plan annexed to the By-Laws.
The respondents conversely argued that the more appropriate principle is that caution should be exercised in going beyond the language of the By-Laws and their statutory context to ascertain their meaning and a tight rein needs to be kept on having recourse to surrounding circumstances.
Mahoneys (instructing counsel) successfully defeated the application, demonstrating to the Court that:
- the categorisation of our clients’ lot was correct;
- our clients’ plans complied with the relevant building controls in the By-Laws;
- the approval granted by the Principal Body Corporate of our clients’ development application was therefore valid; and
- even if the above was incorrect, the hardship that would be caused to our client in granting the relief sought by the applicant, would largely outweigh that to the applicant if the relief was refused.
The approach taken by the Court in coming to this conclusion did not settle the differing opinions of the parties regarding the method of interpreting the By-Laws. Instead, His Honour considered the construction that would best achieve the purpose of the By-Laws, or the Act under which the By-Laws were made.
As a result, the application was dismissed and our clients are permitted to continue the building works without reservation. Further, no delay was caused to the building works as a result of the application brought, as the mandatory injunction sought by the applicant was avoided.
The Court’s ruling can be found here.
Mahoneys has a team of industry leading litigators who have developed a detailed understanding of, and expertise in, body corporate law. Their experience extends to supporting bodies corporate on all types of body corporate disputes, including:
- caretaker remuneration reviews
- caretaker performance
- levy and general debt recovery
- defamation and discrimination in bodies corporate
- disability access to scheme (and associated amenities)
- building defect disputes
- commissioner’s office disputes.