'F': a Maestri email confirmation for the 7-8 June 2009 booking (2BR apartment, 1 adult and 2children, $236pn).
('D' and 'F' talk of a $100 credit card "bond" being required on arrival "to cover incidentals").
Franco Appadoo - Council's investigations
72 Franco Appadoo is a Building Compliance Investigator with the Council. He swore an affidavit on 31 July 2009 ('Appadoo') in which he included the results of some searches of Council records and various internet sites, undertaken from when he was allocated the investigation of a "customer complaint" received on 2 October 2007 alleging unauthorised use of some Maestri units as serviced apartments.
73 Council received another customer complaint on 30 May 2008 regarding unauthorised use of some Kent Street units in Maestri as serviced apartments. Appadoo carried out a site inspection on 11 June 2008 with the complainant and others. He undertook further internet searches, and searches of Council's consent register, and then contacted Maestri. He spoke to the "Building Manager" and was referred to Leanne Saunders, described as Maestri's "Operations Manager" (c.f. [14] above where her wider group role is noted). Saunders responded to his inquiry of the Building Manager. She told him that "over 300 apartments were managed" at Maestri, under written agreements, that 10 apartments had "permanent tenants" (she listed only nine), and that Maestri's Owners Corporation had a "Caretaker Agreement" with Meriton Apartments Pty Ltd and yet another Oaks Group company, The Oaks Apartment Management Pty Ltd (the latter as "the Caretaker", but not as a strata manager - cls 29.1 and 29.2).
74 On 4 October 2008, the Chairman of the Owners Corporation sent Appadoo copies of tax invoices regarding bookings for unit 236 in Maestri between December 2003 and February 2004. The ACN number quoted on the invoices is that of Centrepoint Holdings Pty Ltd (see [13] above).
75 Mr Appadoo carried out another site inspection, on 30 July 2009, and observed the lift configuration etc. He then undertook additional internet searches.
76 Annexed to Appadoo are printouts of his various searches - 'A' is the 'Whitepages' telephone directory, and 'B', 'C', 'D', 'E', 'M' and 'N' are various internet items - together with 'F', his email exchange with Summers; 'G', five "Management Agency Agreements (Residential)"; 'H', the Caretaker Agreement; and 'L', the three Mowbray tax invoices etc. (I did not allow 'I', 'J', 'K', or 'O'.)
77 The Whitepages and internet material aligns the Maestri operation with various resort and/or hotel or serviced apartment operations (range of apartment sizes, traditional hotel services, etc), and makes clear that one and two night bookings are entirely acceptable. The management agency agreements in 'G' cover apartments 18 and 60 in the Kent Street Tower, and 183, 197 and 199 in the Sussex Street Tower. The respondent company has long-term (as in 6 or 12 month) leases or licences of these five apartments - the council says the respondent sublets them short-term, but I can find no evidence of that.
78 In the Caretaker Agreement (in 'H'), involving the Owners Corporation, Meriton Apartments Pty Ltd and The Oaks Apartment Management Pty Ltd, Recital D records that the Owners Corporation is desirous of engaging the Caretaker (i.e. the nominated Oaks company) "to provide letting and ancillary services to proprietors of lots in the scheme".
79 Among the "Operative Provisions" of the Agreement, cls 4-7, under the heading "Leasing and Sales Agency", provide that the Caretaker may, operating from the "Caretaker's Lots" (Nos.104 and 385), but not from any other lots or the common property, and pursuant to various By Laws under the Strata Schemes Management Act 1996 (such as those included in Schedule 3 to the Agreement), "conduct the business of providing" the following services, as agent for lot owners, on terms to be agreed with such owners:
"(i) Buying, selling, leasing, assigning or otherwise disposing of lots within the complex; and
(ii) Collecting rents payable in respect of any lease of lots within the Complex."
80 The Agreement provides that any such "agency" services must not derogate from any caretaker duties in Schedule 2, and the Caretaker must comply with the Agents Act.
81 The Caretaker's duties, as set out in Schedule 2 to the Agreement, focus largely on care and maintenance of the common property and the complex as a whole (lifts, garbage and other municipal services, etc). General Duty 1 (y) (on p18 - one of 44 such duties) envisages that the Caretaker may from time to time have custody of "funds or other property" of the Corporation or unit holders; Leasing Duty 3(a) requires the Caretaker to "account to owners for all rental income received on behalf of owners on a monthly basis"; and 3(c) envisages that the Caretaker will assist owners and lessees with equipment in units. 3(d) and (e) require caretaker involvement in chasing rental arrears. In 7½ typed pages of Caretaker duties the tasks I have just described come at the very end and occupy less than half a page.
Consideration and Findings
82 As already noted, the parties have asked the court to make findings on the evidence, and not proceed, at this stage, to make any declarations or grant further relief ([28]).
83 There is no dispute between the parties as to what amounts to use of any of the lots/units in the subject development as a "serviced apartment", as compared with some other longer term occupancy.
84 Oaks Group companies "manage over 300 apartments at Maestri" (Summers' email 21 July 2008, in Annexure 'F' to Appadoo). The source of that information was identified as "Operations Manager" of Maestri (Appadoo, par 14) and responded on its behalf to Council's inquiries ([73]).
85 Apartments ("rooms"?) in Maestri can be "under management" (Prospectus - Exhibit C2 - p12), without being made available or used as "serviced apartments" ([17] cf. [30]-[31] above).
86 It is clear from the evidence that:
(1) contrary to Mr Hale's contention, there is indeed a link between lot numbers and apartment numbers (see Exhibit C1 );
(2) no apartments in the Kent Street Tower are allowed to be used as serviced apartments (as defined in either LEP);
(3) the approvals for the Sussex Street Tower do not allow " any 24 " of its apartments to be so used, and the fact that 24 or fewer are used at any one time does not speak against a clear breach of a requirement to use only a particular 24;
(4) only the apartments in the Sussex Street Tower, numbered as apartment/lot 111, 113, 208, 209, 127, 128, 141, 142, 143, 144, 157, 158, 159, 160, 173, 174, 175, 176, 189, 190, 191, 192, 205, and 206 - four on each of six levels (2 to 7) of that Tower, and accessed by a dedicated lift ('E2' to Harding) - are approved for such use; and
(5) as the restrictive covenant was required by the Sussex Street Tower consent to specify which 24 apartments could be used as serviced apartments, any exceedence of that specification must be a breach of the condition.
87 The documents analysed by Nash cover 90 apartments, but, of the 24 designated as serviced apartments, only No.176 (which is recorded by Council as being actually owned by Oaks 2) is included in the 90.
88 When Harding sought overnight accommodation in Maestri on four occasions, the confirmations and "welcome" documents he received were typical of short-term-stay "rooms", covering concierge services, security arrangements, daily servicing, additional linen, access to facilities, checkout/payment arrangements, etc.
89 However, he was allocated on only one of his four occasions an apartment which clearly enjoys approval for use as a serviced apartment (No.111). On two other occasions he was allocated apartments in the Kent Street Tower (Nos.13 and 172), and on the fourth occasion an apartment (No.61) in the Sussex Street Tower. None of those three enjoy such approval. Nash had copies of agreements for only Nos. 13 and 172, but Harding experienced similar procedures when renting No.61.
90 Mr Hale relies on the Caretaker Agreement, among other pieces of evidence, to support his argument that the Council has proceeded against the wrong entity as respondent. He says the respondent is merely an estate agent, and only one of several agents dealing with Maestri, but nothing in the evidence, nor in the Council's submissions, suggests that a plurality of agency arrangements or possibilities is at all relevant to these proceedings.
91 The issue before the court is whether or not the present respondent, Oaks 2, could be held to be in breach of the law by virtue of its "using" any of the "land" in the complex, in breach of the relevant consent.
92 The definitions of "real estate agent" and "real estate transaction", contained in s 3 of the Agents Act, and other relevant provisions of that Act, do not preclude a finding that the activities of Oaks 2 in respect of Maestri, which may include but are not limited to the traditional tasks of a real estate agent (including "property management services", not specifically defined), amount to "using' the subject land.
93 Oaks 2, as the applicant for consent in the DA the subject of the class 1 appeal (see Exhibit R1), announced itself as manager of the serviced apartments in Maestri (in its Statement of Environmental Effects at cl 4.2). The way it deals with the units in its care (offering apartments for short term lettings, setting tariffs, taking bookings, maximising income, informing short-term occupants in detail, organising servicing, etc) is clearly to "use" them as serviced apartments, in many cases beyond the conditions of consent.
Conclusion
94 On the basis of these findings the Council would appear prima facie to be entitled to the relief it seeks, subject, of course, to discretionary and some other considerations (see [28] above).
95 As the relevant class 1 proceedings have been heard but not yet decided, these class 4 proceedings are stood over for call-over by the Registrar on Wednesday 27 October 2010, so that she can consider their further disposition (including as to costs).
96 The exhibits may be returned.