The Proprietors - Rosebank GTP 3033 v Locke & Anor

[2016] QCA 192

Queensland Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Real Property
2. › Strata and related titles
3. › Management and control
4. › By-laws
5. › By-law making power under s 30(2)
6. › Whether by-law authorising expenditure on land outside common property validly made
7. › Whether by-law inconsistent with the Act
8. › Building Units and Group Titles Act 1980 (Qld), ss 27(3), 30(2), 37, 38, 38A
1. Real Property
2. › Strata and related titles
3. › Management and control
4. › Body corporate: powers, duties and liabilities
5. › Disbursement of funds from sinking fund
6. › Whether expenditure on improvements to property not common property authorised
7. › Whether 'under this Act' in s 38(6)(b) includes by-laws
8. › Building Units and Group Titles Act 1980 (Qld), ss 38(3), 38(6)
1. Statutes
2. › Subordinate legislation
3. › Nature and effect
4. › Whether body corporate by-laws are statutory instruments
5. › Whether by-laws are instruments of a public nature
6. › Statutory Instruments Act 1992 (Qld), s 7
7. › Acts Interpretation Act 1954 (Qld), s 7
1. Courts and Judges
2. › Courts
3. › Jurisdiction and powers
4. › Whether Court of Appeal had jurisdiction to hear appeal from Tribunal under s 108(1)
5. › Whether 'the Court' defined as 'the Supreme Court' includes Court of Appeal
6. › Building Units and Group Titles Act 1980 (Qld), s 7, s 108(1)
7. › Supreme Court of Queensland Act 1991 (Qld), ss 4, 5, 29

Quick Take

A body corporate governed by the Building Units and Group Titles Act 1980 (Qld) cannot validly make a by-law under s 30(2) authorising expenditure of body corporate funds on improvements to land outside its common property, because such a by-law would be inconsistent with the disbursement limitations in ss 38(3) and 38(6). The expression 'under this Act' in those provisions does not extend to include by-laws. The question whether body corporate by-laws under BUGTA are statutory instruments within the meaning of the Statutory Instruments Act 1992 (Qld) was left open, though Philip McMurdo JA expressed doubt that they are.