Platt v Ciriello [1997] QCA 33

Provisions of the Building Units and Group Titles Act 1980 bearing upon the substance of these disputes include s. 20(1), 27(3) and 37(1)(a) of the Act. Section 20(1) vests the common property in the proprietors as tenants in common; the disputes relate wholly to that property. As is explained by McPherson J.A., the common law allows each tenant in common to have possession of the whole of the commonly owned property; this formula has the advantage of simplicity, but has the disadvantage of being likely to lead to disputes, illustrated by the present case. The primary remedy which the Act provides to resolve such disputes is the power of the body corporate. It is given, by both s. 27(3) and s. 37(1)(a), the right and duty to control, manage and administer the common property.

Ordinarily one would expect disputes between the owners of lots as to the use of the common property to be resolved, at least in the first instance, by the body corporate, which not only may but must control, manage and administer that property. But where as here one of the parties in dispute has a majority of the voting power the exercise of this function by the body corporate may well be unsatisfactory. If control of the body corporate is more widely distributed, it might be expected that its resolutions would commonly produce a satisfactory solution to differences between the proprietors of lots about use of the common property. Proprietors dissatisfied with what the body corporate has done may then invoke the jurisdiction of the referee.

Apart from its general power to control, manage and administer the common property, the body corporate has a number of other more specific powers relating to it. I need not, for the purposes of this case, set them out exhaustively. The body corporate may, by resolution without dissent, lease part of the common property (s. 22(1)(b)). If it does so, then not only those who are proprietors at the time of the lease and have voted for the lease, or not dissented from the proposal, will lose part of their possessory right in the common property; their successors in title will of course be in the same position. I note also that the body corporate may, by unanimous resolution, grant an easement, under s. 23(1)(a).

A power which is important for present purposes is given by s. 30(7), under which the body corporate may by a resolution without dissent make a by-law conferring on the proprietor of a lot "the exclusive use and enjoyment of . . . the whole or any part of the common property . . . ". The expression of this power implies that the body corporate cannot by other means (for example, a resolution from which some proprietors dissent) grant exclusive use of part of the common property to the proprietor of any lot; no doubt it also implies that, absent steps properly taken under this provision, no proprietor has a right to exclusive use of part of the common property; the latter proposition merely conforms to what I take to be the general law, under which a tenant in common has no right to exclude co-tenants from possession.

This common law restriction, on the right of a tenant in common to exclude another, applies in my opinion not merely to total but also to partial exclusion. In Steadman v. Smith [1857] EngR 679; (1857) 8 El. & B., 1, the parties were tenants in common of a wall. The defendant altered the top of the wall and erected a building next to it whose roof occupied the whole width of the top of the wall. It was held that on these facts an action by a co-tenant for trespass would lie, rejecting the argument for the defendant that there was merely a reasonable alteration. Crompton J. pointed out that, "the same thing does not remain" and concluded:

" . . . and the plaintiff is excluded from the top of the wall: he might have wished to train fruit trees there, or to amuse himself by running along the top of the wall." (7)

This case is relied on in Elvin and Karas "Unlawful Interference with Land" (1995) for the proposition that:

"Disposition or ouster by a co-owner is not restricted to blatant cases of exclusion or expulsion, but may occur where part of the property is destroyed or removed by one co-owner, e.g. by the excavation and removal of the soil or removal of a wall."

The English case concerned destruction of part of a common property; in the United States the proposition appears to have been accepted that neither tenant in common has the right to exclusive possession of any portion of the common property: Evans v. Martin 56 A2d. 416, Bank of Mayne v. Gijuere 309A2d. 114 at 119. A similar view has been adopted in Nova Scotia: Zwicker v. Morash (1901) 34 N.S.R. 555 at 562:

"It is admitted that the defendants built a wharf over the remains of the old Rudolph Wharf on lot No. 3, and the question is whether this is evidence of an ouster, which would enable the plaintiff to recover in this action against his co-tenants, the defendants. An ouster has been defined to be an actual turning out or keeping excluded the party entitled to the possession, and it was decided in Steadman v. Smith, [1857] EngR 679; 8 El. & B, 1, and in Bennett v. Clemence, 6 Allen, Mass, 10, that the exclusive appropriation by one co-tenant of the land to his own use, by erecting a permanent structure thereon, would be evidence of an ouster of his co-tenant.

In my opinion the wharf erected by the defendants on lot No. 3 was a permanent structure, and the defendants, by erecting it, ousted the plaintiff, their co-tenant, from the portion of the lot which it covered."

Since one tenant in common has no right to exclude another from part of the co-owned property, for example by erecting a structure (e.g. a permanent advertising sign), it should be held that if the relevant statutory power to grant exclusive use to one proprietor is not exercised, then the ordinary right of a proprietor, not to be excluded from any part of the common property, subsists. It does not seem to me that under the general law or under the statute a proprietor may acquire any additional right in common property merely by the fact of taking it.

Further powers of the body corporate in respect of the common property which are of present relevance are contained in s. 37(1)(b) and s. 37(2)(g). The former requires the body corporate, where reasonably practicable, to "establish and maintain suitable lawns and gardens on the common property . . . ". As a practical matter the establishment of a garden, for example one which emphasises close planting, is likely to inhibit proprietors in the use of their possessory rights over the whole of the common property. The same applies to the making of improvements which may, subject to certain limitations, be done under s. 37 (2)(g). It is not difficult to think of examples of an improvement, such as a locked tool shed, the existence of which would partially prevent access by proprietors to the common property. I mention these topics in emphasizing the basic scheme of the Act, that the body corporate is in charge of the common property.

There is a question whether s. 51(1)(c) implies a right to use the common property in a manner or for a purpose that does not unreasonably interfere with the exercise of similar rights by others; McPherson J.A. has expressed the view that such a right is implied; but I respectfully disagree. So far as relevant this provision reads as follows:

"A proprietor . . . of a lot shall not - use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot . . . "

This prohibits A from doing things which interfere unreasonably with what B wants to do. Such a provision would not ordinarily imply that A may do anything he likes, so long as it does not conflict with the prohibition. For example, the immediately preceding paragraph, s. 51(1)(b), which prohibits the use of a lot so as to cause a nuisance to the occupiers of other lots does not, in my opinion, imply anything about the legality of uses which are not a nuisance; they may or may not be lawful, for quite other reasons. It will be noticed that a number of provisions in the Act deal with the body corporate's powers with respect to the common property, or otherwise have to do with rights in or the use of the common property; they include s. 20(1), s. 22(1), s. 23(1)(a), s. 27(3), s. 30(2), s. 30(7) and (7)B, s. 37(1), s. 37(2)(g) and s. 51(1)(c) itself. It appears to me, with respect, somewhat improbable that the legislature would have intended (but not troubled to express the intention) that some or all of the powers of the body corporate in respect of the common property, thus elaborately specified, should be over-ridden by an unstated requirement that nothing done should prevent any use of the common property which does not unreasonably interfere with its use by others. Such a restriction on the body corporate's authority appears too important a matter to have been left to mere implication.

I turn next to the procedural problems, referred to above. The statute sets up a three-tiered chain of complaint, from referee to tribunal to court. But it is not every dispute between proprietors which can follow this chain; for example, a dispute about an agreement between proprietors, relating to their respective lots, could not ordinarily go to a referee; the jurisdiction of a referee is principally that expressed in s. 77(1), discussed below.

Referees are appointed under s. 69 and the procedure on an application to a referee is set out in Div. 2 of Part 5. Section 75 gives the referee powers to make orders of various descriptions and imposes certain fetters on his power to make orders, but does not, as I read it, define the scope of the disputes which may come to the referee; the same applies to s. 76, dealing with interim orders.

Section 77, headed "General powers of referee to make orders", is so headed because a number of later sections give specific jurisdiction; for example, under s. 81 the referee may, if it is considered that the body corporate has unreasonably refused to acquire personal property, order it to do so. It is unnecessary to deal with these specific grants of jurisdiction. Section 77(1) empowers a referee to make an order -

" . . . with respect to the exercise of performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act in connection with that parcel."

The expression "that parcel" is a reference back to "a parcel" earlier in the provision and means a parcel the subject of an application.

So that to come within the section an application must in some way relate to "the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed . . . " by the Act. An example of a provision which confers or imposes a power, authority, duty or function within the meaning of s. 77(1) is s. 27(3), referred to above:

"Subject to this Act the body corporate shall have the powers, authorities, duties and functions conferred or imposed on it by or under this Act or the by-laws and shall do all things reasonably necessary for the enforcement of the by-laws and the control, management and administration of the common property".

An application for an order to settle a dispute, for example between a proprietor and the body corporate, relating to the body corporate's mode of control of the common property, would be caught by s. 77(1).

There were, as McPherson J.A. says, three applications to the referee, only two of which are presently in issue. Each sought an order or direction against the respondent to stop usage of the common property by the respondents, in various respects. There was material before the referee alleging that on 28 August 1992 at "the first inaugural meeting" it was resolved that the secretary write to the owners of Units 5 to 10 (the respondents) "advising them that they were in breach of the Act by having goods, signage and rubbish bins on the front common area and parking bays and must cease forthwith". When the applications were taken before the magistrate, minutes of a meeting of 30 July 1992, apparently of the body corporate, were tendered (Exhibit 5), but they are not in this record. In his reasons for decision the magistrate asserted that " . . . the body corporate has lawfully ruled that there be no exclusive use"; there is also other discussion in the reasons of what was done at a meeting, relevant to this dispute, but it is not easy to ascertain what happened. We have however been supplied, since the hearing, with an affidavit supplementing the record. This affidavit says that there were resolutions of the body corporate passed which (to put the matter simply) were against the uses of the common property mentioned above.

But for the resolutions I have mentioned, in the exercise of the body corporate's power of control of the common property, there would have been no jurisdiction in the referee, because the Act does not, under s. 77, give the referee jurisdiction merely because there is a dispute between proprietors or a complaint by a proprietor, relating to the parcel. Some identified exercise or performance of, or failure to exercise or perform, a power, authority, duty or function conferred or imposed by the Act in connection with the parcel is necessary to found jurisdiction under s. 77. The practical consequence, so far as disputes between proprietors about usage of the common property are concerned, is that generally such disputes must be taken to a meeting of the body corporate, in the first instance, and it will be the resolution of the body corporate which founds jurisdiction to take the matter further, to the referee.

The magistrate disagreed with the referee's decisions, holding that some of the usage complained of amounted to exclusive use of the common property and that "the body corporate has lawfully ruled that there be no exclusive use". When an appeal was taken to this Court, Derrington J, referring to the Magistrate's decision, remarked:

"It seems that he found that each obstruction on the common property amounted to exclusive possession, that it was therefore unlawful, and that there was no need to consider it further."

It is not clear to me that this was the sole basis of the magistrate's view; as I have pointed out, his Worship referred to a ruling by the body corporate as being relevant to the problem before him.

The primary judge expressed the opinion, in effect, that a body corporate may regulate activities on the common property by its by-laws. I am in respectful agreement with that and would add that its power to control, manage and administer the common property, under s. 27(3) and s. 37(1)(a) is not confined to the making of by-laws.

His Honour disagreed with the tribunal's (i.e. magistrate's) reasoning, on the ground that the exercise by a proprietor of exclusive possession of part of common property, not authorised by any by-law, is not necessarily unlawful; the judge, it appears, took the view that if such usage is challenged the question will be that posed by s. 51(1)(c) - i.e. whether it interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot or by any other person entitled to the use and enjoyment of the common property. It follows from what I have said above that I am in respectful disagreement with this approach of Derrington J. His Honour points out that the Act does not "expressly and directly forbid the arrogation by a unit holder of exclusive use of any portion of the common property" (emphasis added). I agree, but for the reasons given above have formed the opinion that, subject to the power of the body corporate to confer a right of exclusive use under s. 30(7), the law does not permit one tenant in common to do anything which could properly be described as an absolute exclusion of other tenants in common from the whole, or any part, of the common property. In application of this principle there will be grey areas; plainly, it would be unlawful for one proprietor to build out on to the common property an annex from the proprietor's lot, effectively excluding other proprietors from use of that part of the common property covered by the annex. At the other end of the range of possibilities (an example given by Derrington J.), simply standing in the common property, temporarily, excludes all except the person standing from part of it, but plainly that would not be such an exclusion as necessarily to infringe the rights of other proprietors.

It seems clear that some of the use complained of amounted to a unilateral claim to exclusive use of part of the common property. This is undoubtedly so with respect to advertising signs affixed to the roof; they constitute an absolutely exclusive use of part of the common property consisting of the relevant area of the roof and part of the air space. It appears to me that the same applies to the sign intended to take, without any lawful authority, exclusive use of two parking spaces. As to impermanent placement of articles on the common property, such as tables and chairs, it appears to me that this is prima facie lawful; that is so because it does not amount to what would under the general law be called an ouster - i.e. a taking of part of the common property for exclusive use. Uses not constituting an ouster are under the control of the body corporate, subject to the right to go to a referee. However, it seems to me clear that the referee would have no right to accord exclusive use (e.g. for advertising signs) of part of the common property to any proprietor; such a right depends entirely on the passage of a resolution in conformity with s. 30(7); I can find nothing in the Act which would permit the referee to grant such a use.

To go back to the beginning, it follows from what I have said that in my view the referee was in error in dismissing the applications in question; he did so substantially on the basis that he did not agree with what he regarded as the body corporate's exercise of discretion with respect to the matters in dispute. As to matters other than those in which a claim to exclusive use of part of the common property was in issue, there was no error of law in his decision; on the latter points, the referee was in my view mistaken, because there was no resolution under s. 30(7) authorising the claimed exclusive uses.

When the disputes were decided by the magistrate, his Worship decided them on the bases indicated above - i.e. in part because of what he took to be the effect of relevant resolutions of the body corporate and in part because there was no by-law authorising exclusive use.

It is my view that the magistrate was right about the latter point, but as to the former, did not perhaps appreciate that the body corporate's power of control is subject to challenge before the referee, whose decision may in turn be challenged, on grounds of fact and law (new evidence may be called) before the tribunal. That is, with respect to the uses of the body corporate (not being exclusive uses) subject to the body corporate's discretionary power of control, a decision by the body corporate is not necessarily final, but is subject to two levels of challenge.

The order the magistrate made setting aside the referee's orders was in my respectful opinion misconceived. All the referee had done was to dismiss the relevant applications; holding that course to be wrong, the magistrate should have considered the applications for himself and given the appropriate relief, not merely set aside the referee's orders dismissing the applications.

The order ultimately made by Derrington J. was that the appeal be upheld and the matter remitted to the tribunal to be determined according to law. In my opinion that was the proper order to make because, for the reason just given, the magistrate did not fully deal with the two applications. But for reasons I have also given, I am in respectful disagreement with the view of Derrington J. as to the basis on which the matter should be reconsidered by the magistrate.

Since writing the above, I have had the advantage of reading the reasons of Ambrose J. and note his Honour's views about policy. It seems to me that the requirement of s. 30(7)(a), that a by-law conferring on a proprietor exclusive use and enjoyment of part of the common property be based on a resolution passed without dissent, is perhaps unduly rigid. It might have been thought more convenient to allow relatively minor exclusive uses to be within the body corporate's general power of control of the common property. But I can, with respect, find nothing in the Act to justify the view that, even in the face of a contrary resolution of the body corporate, a proprietor may take part of the common property for a s. 30(7)(a) use, simply on his or her own say-so.

1. The disputed uses consist in part of uses involving a complete exclusion of one proprietor, by the other, from part of the common property; such an exclusion is unlawful unless it is done pursuant to a s. 30(7) by-law.

2. The exclusive uses referred to in 1. consist in the affixation of permanent advertising signs and also two parking places as to which exclusive use has been claimed.

3. The judge was right to set aside the magistrate's decision and to remit the matter to the tribunal to be determined according to law.

4. That determination should be done, in my view, not on the basis indicated by the primary judge, but in accordance with the principles set out in this summary, to which I would add that:

(a) With respect to exclusive uses requiring authorisation under s. 30(7), the tribunal should make an order requiring their cessation;

(b) With respect to non-exclusive disputed uses, the tribunal should consider any decision made by the body corporate in a broad discretionary way and do what seems fair and just.

In substance the appeal has succeeded; the principal basis of the appeal, the effect of s. 30(7), has been upheld. It appears to me, therefore, that the respondents Mr and Mrs Ciriello should pay the appellants' costs in this Court; there should in the circumstances be an indemnity certificate. The orders which I would make are as follows:

2. Vary the order for remittal made below to read: "The matter is remitted to the tribunal so that the two applications considered by the tribunal may be determined by the tribunal, admitting further evidence if the tribunal thinks proper, in conformity with the reasons given in this Court".

3. The order for costs made by the learned primary judge is set aside.

4. The respondents Mr and Mrs Ciriello are ordered to pay the costs of the appellants in this Court and before the primary judge.

5. The respondents are granted an indemnity certificate in respect of this appeal.

This appeal arises out of disputes between the proprietors of lots under a building unit plan no. 3894 registered on 10 February 1982 in respect of land comprising commercial premises known as the Panitz Centre at Nerang. There are 10 lots in the plan of which the appellants Platt own lots 1 to 4 which confer on them an aggregate lot entitlement of 609 out of 1000. The remaining Lots 5 to 10 owned by the respondents Ciriello confer the balance entitlement of 391 out of 1000.

The rear basement area of the centre is occupied and used by the appellants for conducting the business of a squash court and gymnasium. The building faces a public road, and the front of it is physically divided into five shops in which the businesses of a butcher, a chemist, a fruiterer, a takeaway food outlet and a real estate agent are conducted by the respondents or their tenants. The disputes, in the form in which they came before a referee under the Building Units and Group Titles Act 1980, sought orders that the respondents or their tenants refrain from placing on the common property in front of the shops items such as display stands with goods for sale, standing signs, and tables and chairs; and also from placing rubbish bins or pallets there. In addition, an order was sought to restrain the respondents from maintaining advertising signs on the fascia of the building, and also on the roof, which tends to obscure a sign at the rear advertising the squash gym. Complaint was also made about a sign "Emergency Prescriptions Parking Only" which, on one view of it, affects to appropriate a parking space or spaces on the common property for the use of customers of the chemist business.

The disputes were made the subject of three applications numbered 40-92, 41-93 and 42-93 to the referee. The applications were evidently heard together, but the referee made separate orders dismissing each of them. In his written reasons in reference no. 40-93 he said he regarded the placing of display stands or tables and chairs outside the chemist shop, fruit shop or takeaway outlet as "an expected and reasonable use of common property". He found that the rubbish bins were not being placed in the front but at the rear in the space provided for that purpose; and that, if the pallets were being left on the common property for more than short periods, then the tenant should remove them so as to avoid their being an obstruction. He dismissed application no. 42-93 on the ground that the advertising signs did not "so dominate the roof-top level area as to obscure [the appellants' signs] or any others". He considered that the "Emergency prescription" parking sign did not seek to appropriate or allocate part of the common property for the benefit of only one occupier, or to secure an exclusive car parking area for that purpose.

Under s.106(1) of the Act, an appeal from the referee's decisions was taken to the Building Units Appeal Tribunal. The stipendiary magistrate who constituted the tribunal decided that placing goods for sale, tables and chairs, and pallets on common property amounted to an exclusive use of those areas by the tenants of the shops concerned. He also considered that the "Emergency prescriptions" parking sign "could be construed as an attempt to exercise exclusive use of the two parking bays in question", which was something that was not authorised. Leaving aside certain blackboard and billboard signs, he held that the roof-top and fascia signs, together with another sign on a pylon, represented an exclusive and unauthorised use of the exterior of the building, which he held was common property. As to all those matters the appeals were allowed.

From an order made by the tribunal s.108(1) of the Act permits an appeal to the Supreme Court "on the ground that the order is erroneous in law but on no other ground ...". Pursuant to that provision an appeal was brought to a Judge in Chambers, who on 28 February 1996 reversed the decision of the magistrate sitting as the appeals tribunal. The matter now comes as an appeal from the decision of the Judge to this Court in the exercise of its ordinary appellate jurisdiction. At this level it is clear that in a matter like this we are competent to consider only errors of law on which an appeal is permitted to the Supreme Court under s.108(1) of the Act.

To identify the matter of law said to be at issue, it is necessary to refer to various provisions of the Act. Section 8(1) enables land to be divided into lots and common property by registering a plan of subdivision. Upon registration of the plan, the registrar is authorised to issue a certificate of title for each lot "showing that the proprietor holds the share of the common property appurtenant thereto in accordance with the lot entitlement set forth in the plan": see s.8(5). By s.20(1) the common property is to be held by the proprietors as tenants in common in shares proportional to their respective lot entitlements. In the present case, therefore, the common property is held by the appellants and the respondents as tenants in common in the proportion 609:391.

Apart from the rubbish bins mentioned in the referee's report, there appears to be no dispute that the signs and other objects in issue are located or occupy space on or in the common property. The display stands, tables and chairs, etc. are on a strip of land which apparently corresponds to an area in front of the shops that is designated on the registered plan as common property. In any event, s.7(1) of the Act defines "common property" to mean "so much of a parcel as from time to time is not comprised in any lot"; and parcel means "the land comprised in a plan". The result is that, after notionally excising the individual lots shown on the plan, all the land contained in the registered plan represents "common property" of which the appellants and respondents are tenants in common.

As regards the signs on the roof and fascias, s.9(4) of the Act provides that the common boundary of any lot with common property is the centre of the wall, floor, or ceiling, as the case may be. This has the consequence that the external surfaces of the building known as the Panitz Centre also form part of the common property held by the proprietors as tenants in common. In addition, because at common law ownership is considered as extending to the depths of the earth below and to the skies above, it would appear to follow that the appellants and respondents are co-owners of the earth beneath and of the column of air stretching above the land on which the building stands. On this footing, not only the roof and fascias, but also the air spaces occupied by the signs above the roof form part of the common property held by them as tenants in common under the Act.

Apart from the provisions of the Act of 1982, the rights of tenants in common are regulated partly by the common law and equity, and partly by statute. At common law, if one tenant occupied land held in common and took the whole of the profits, the other had no remedy while the tenancy in common continued unless that other tenant was excluded from possession, in which case he could proceed in ejectment. See Henderson v. Eason [1851] EngR 939; (1851) 17 Q.B. 701, at 718; [1851] EngR 939; 117 E.R. 1451, at 1457. A tenant in common of an undivided share in land was entitled to enter into possession and occupy the whole of the land: Moisley v. Maloney [1950] VicLawRp 55; [1950] V.L.R. 318, at 320. Provided there was no disturbance or exclusion of other co-tenants, "a tenant in common is entitled to exercise acts of ownership over the whole of the property without liability to be called upon to account in respect thereof". See Luke v. Luke [1936] NSWStRp 16; (1936) 36 S.R. (N.S.W. 310, at 313-314 (Long Innes C.J. in Eq.)

Although the common law rules are helpful as a starting point, it is not necessary to determine to what extent they continue to apply to common property under the Building Units and Group Titles Act 1982. The Act contains provisions that for the most part govern the questions arising here. By s.37(1) a body corporate is required to:

"(a) control, manage and administer the common property for the benefit of the proprietors ...".

Under s.30(7)(a) the body corporate may, "pursuant to a resolution without dissent" from other proprietors, make a by-law conferring on the proprietor of a lot specified in the by-law "the exclusive use and enjoyment of ... the whole or any part of the common property" upon conditions specified in the by-law. In addition, s.51(1) provides that the proprietor of a lot shall not:

"(c) use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is a proprietor or not) or by any other persons entitled to the use and enjoyment of the common property."

It is not suggested that any by-law of the kind described in s.30(7)(a) has been adopted by the body corporate of the Panitz Centre. According to the grounds stated in application no.40-93 to the referee, a resolution was passed at the first meeting of the proprietors on 28 August 1992 that the secretary write to the owners of units 5 to 10 (who are the respondents) "advising them that they were in breach of the Act by having goods, signage and rubbish bins on the front common area and parking bays and must cease forthwith". The statement describes the minute in question as being: "Highlighted in yellow in the minutes"; but the minutes are not in evidence and the statement in the grounds of the written application is the only version before this Court of the terms of the resolution in question.

In this Court the appellants rely on the resolution as in effect a decision of the body corporate exercising the power under s.37(1)(a) of controlling, managing and administering the common property for the benefit of the proprietors. Their submission is that s.37(1)(a) prevails over s.51(1)(c). However, although the provisions of s.51(1)(c) do not in so many words expressly confer a right to use the common property in a manner or for a purpose that does not unreasonably interfere with the exercise of similar rights by others, it is implicit, if not explicit, in those provisions that they have that effect. They assume the existence of a right to use and enjoy the common property, provided it does not interfere unreasonably with the right of others to do likewise. Section 51(1)(c) speaks of use or enjoyment "by the occupier of any other lot ... or by any persons entitled to the use and enjoyment of the common property". The "entitlement" referred to is that of using and enjoying the common property in the manner described in s.51(1)(c). It is a specific provision conferring or acknowledging the existence of a right, which qualifies the general power of the body corporate under s.37(1)(a) to control the common property.

The body corporate is, however, invested by s.30(7)(a) with the power, pursuant to a resolution without dissent, of making a by-law conferring on a proprietor the exclusive use and enjoyment of the whole or part of the common property. It is difficult to see how this power could be exercised without interfering in some way with the entitlement under s.51(1)(c) of using and enjoying the common property. It would therefore appear to follow that the entitlement under s.51(1)(c) is in its turn also qualified to the extent that the body corporate has validly exercised its power under s.30(7)(a) of making a by-law conferring exclusive use and enjoyment of the common property on a specified proprietor. It is, however, not necessary to arrive at a final conclusion on the point because no such by-law has been adopted by the body corporate in this instance. What s.30(7)(a) does not say, at any rate in express terms, is that without such a by-law a proprietor may not make exclusive use of common property without interfering unreasonably with the entitlement of others to use it as well.

The magistrate who constituted the Building Units Appeal Tribunal appears, on one reading of his reasons, to have decided that, in authorising the body corporate to confer on a specified proprietor a right of exclusive use of the whole or part of the common property, s.30(7)(a) of the Act necessarily precluded a proprietor who was not so authorised from appropriating a part of that property to his exclusive use. At one point in his reasons he spoke of "the simple fact ... that the body corporate has lawfully ruled that there be no exclusive use". This appears to be a reference to the resolution identified in the grounds of application no. 40-93 as having been passed at the first meeting on 28 August 1992. However, that resolution can be justified, if at all, only as an exercise of the power conferred by s.37(1)(a) on the body corporate of controlling, managing and administering the common property. For the reasons already given, that power of the body corporate must be read as being subject to the entitlement under s.51(1)(c) of a proprietor to use and enjoy the common property without unreasonably interfering with the entitlement of others to do the same.

In the court below, the learned Judge considered that the question to be determined was not simply whether the conduct of the proprietor involves a use that is exclusive, but whether it transgresses the prohibition imposed by s.51(1)(c) and judged by the standard prescribed in that provision, which is whether, in manner or purpose, it unreasonably interferes with the entitlement of others under that provision to the use and enjoyment of the common property. On such an inquiry the fact that the use is exclusive is not by itself decisive, although it may be a factor to be considered in determining whether or not the conduct complained of contravenes s.51(1)(c). It was because the magistrate, sitting as the appeals tribunal, had not approached the question in this way that the Judge allowed the appeal, set aside the tribunal's decision, and remitted the matter for re-determination by that tribunal. In interpreting the relevant provisions of the Act there was an error of law within the terms of s.108(1), which consequently exposed the tribunal's decision to an appeal to the Supreme Court.

From what has been said, it follows that his Honour was correct in interpreting the statutory provisions as he did. The approach adopted by the referee in determining the applications also appears to have accorded generally with that view of the law. It is, however, not possible simply to restore the decision of the referee that the use being made of the common property in placing the signs and other things on it was not unreasonable. An appeal under s.107(1) to the Building Units Appeal Tribunal is, at least in some sense, a hearing de novo. Evidence may be admitted that was not before the referee when the order under appeal was made. It may be that, if the tribunal had applied the appropriate test, the conclusion might perhaps have followed that the manner or purpose of the use by the respondents (or their tenants) of the common property, or some part of it, did in fact interfere unreasonably with the use or enjoyment of the common property by the appellants or by some other person entitled to use it. What constitutes unreasonable interference is a question of fact. The erection of commercial advertising signs may well interfere unreasonably with the enjoyment of the common property of residential units, but not necessarily with the enjoyment of a common property of a commercial complex. The referee here held that the respondents' use of the common property did not unreasonably interfere; but, having regard to the approach erroneously adopted by the magistrate, that question has not yet been determined by the appointed appeal tribunal.

In these circumstances the order made by the primary Judge must stand. The appeal tribunal must consider the matter afresh in accordance with these reasons. In doing so, the appeal tribunal may under s.107(1)(a) admit evidence that was not before the referee when he made his order; and, under s.107(2)(b), it may affirm, vary or revoke the order appealed against, or substitute another order. The essential question for determination is whether the respondent or their tenants have, in relation to the matters complained of, used the common property in a manner or for a purpose that unreasonably interferes with use or enjoyment of it by the respondents or other persons entitled to use it. It is this "duty" imposed by s.51(1)(c) of the Act that attracts the jurisdiction of the referee under s.77(1) and the consequential appeal under s.106. Assuming that the law is correctly applied, the question that remains to be determined is one which is for the appeals tribunal and not for this Court to decide.

In view of the conclusion arrived at in these reasons, the appeal should be dismissed with costs. It is perhaps unnecessary but may be right to add that the hearing and determination of the appeal remitted to the Building Units Appeals Tribunal should take place before a different magistrate.

I have had the opportunity of considering the reasons for judgment of Pincus JA and McPherson JA which sufficiently set forth the facts and the relevant statutory provisions canvassed upon the appeal. I would observe merely that perusal of minutes of meetings of the Body Corporate "The Panitz Centre" Building Units Plan No. 3894 which were placed before this Court with the assent of both appellants and respondents makes it abundantly clear that very considerable disharmony has arisen between the appellants who have slightly more than 60% of unit entitlement and the respondents who have slightly less than 40% of unit entitlement. The appellants have sought (unsuccessfully) the exclusive use of part of the common property. The respondents were willing to consent only on condition that as a quid pro quo they be given exclusive use of another part of the common property. The appellants were unwilling to reach this compromise and in the absence of unanimous support of all unit holders, none has been given "exclusive use" - whatever that term might connote - of any part of the common property.

The appellants' complaints concerning the respondents' use of common property for the display of signs, storage of pallets and rubbish containers from time to time etc seem to have been motivated by the respondents' dissenting from the appellants having exclusive use of part of the common property to the rear of the building except on condition that the respondents obtain exclusive use of another part of the common property.

This is the background to the appellants' complaints which are the subject matter of this appeal which is based fundamentally upon the appellants' contention that because they are tenants in common of common property within the building units plan they are entitled to have other tenants in common prevented from making use of common property for the purpose of displaying signs advertising their business services and putting articles including rubbish tins and loading pallets on it to facilitate business operations.

The basis of this contention is that in doing the things of which the appellants complain the respondents are making "exclusive use of" those parts of the common property involved and that this is unlawful without the unanimous consent of all persons entitled to use the common property.

The appellants as unit holders have dissented and therefore it is contended the respondents ought be required to cease doing those things on the common property about which the appellants complain.

It is clear on the material that in fact the appellants have also erected on the roof of the building concerned a large sign - presumably without the benefit of a Body Corporate resolution reflecting lack of dissent from any of the other proprietors of common property. The appellants say that signs erected by some of the respondents impact adversely on the effectiveness of the appellants' sign from certain parts of public highways etc. It would seem to follow inevitably that if the appellants' contentions are correct concerning the advertising signs displayed by the respondents on or from common property they also are in breach of the relevant statutory provisions and body corporate by-laws and are also acting unlawfully in displaying their sign on the roof of the building.

I turn now to the provisions of the Building Units and Group Titles Act 1980 which are said to support the appellants' contention.

Section 20(1) provides:

"20(1) The common property shall be held by the proprietors as tenants in common in shares proportional to the lot entitlements of their respective lots."

Section 20(3) provides that no share in the common property can be disposed of except as appurtenant to the lot of the proprietor of that share.

The proprietor of course is the person registered as the proprietor of a lot under the Act.

The first observation to make about the rights of a proprietor of a lot as tenant in common of the common property appurtenant to that lot is that they are of a nature similar to those of an owner of land which enjoys an easement over another parcel of land.

The Act really provides a legal framework to regulate the ownership of land categorised as building units and the various rights and obligations of persons owning or in various ways involved with the use, enjoyment and commercial dealing with it.

Section 20(1) provides that the common property is to "be held by" the proprietors of the various lots proportional to their lot entitlements; it does not indicate how it is to be used or enjoyed.

Upon registration of a building units plan each of the lots is capable of being held by a different proprietor. However the common property also delineated on the plan is not registered in the name of any proprietor and it is clear from the terms of the Act that it is the body corporate registered under the plan which has the power and legal obligation to manage and control the common property for the use and benefit of the various proprietors of the lots in the building units plan - vide s.37 et seq. Under s.27 of the Act the proprietors of the various lots contained in the plan become the body corporate of that plan. Except where otherwise provided the decisions of the body corporate on any business matter reflect the wishes of the proprietors of lots who together have the majority of the unit entitlements under the plan. In the present case that means that the appellants will normally in the event of any dispute with the respondents control the decision making of the body corporate.

An exception to this general rule is found in By-law 3 of the statutory by-laws, which are contained in schedule 3 to the Act, when read with s.30(7) of the Act.

Section 30(1) provides that except as provided in s.30 the by-laws set forth in schedule 3 "shall be the by-laws in force in respect of each plan".

3. A proprietor or occupier of a lot shall not obstruct lawful use of common property by any person."

"(7) With the written consent of the proprietor or proprietors of the lot or lots concerned, a body corporate may, pursuant to a resolution without dissent make a by-law -

(a) conferring on the proprietor of a lot specified in the by-law, or on the proprietors of the several lots so specified -

the whole or any part of the common property, upon conditions (including the payment of money at specified times or as required by the body corporate, by the proprietor or proprietors of the lot or several lots) specified in the by-law; or

(b) amending, adding to or repealing a by-law made in accordance with this subsection."

I will refer in passing to by-laws 7 and 10 under schedule 3 which provide:

"7. A proprietor or occupier of a lot shall not deposit or throw upon the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using the common property."

(a) save where the body corporate provides some other means of disposal of garbage, maintain within his or her lot, or on such part of the common property as may be authorised by the body corporate, in clean and dry condition and adequately covered, a receptacle for garbage;

(b) comply with all local government local laws and ordinances relating to the disposal of garbage;

(c) ensure that the health, hygiene and comfort of the proprietor or occupier of any other lot is not adversely affected by his or her disposal of garbage."

It seems that before the acquisition by the appellants of their lot entitlement in the "The Panitz Centre" Building Unit which gave them the capacity to control the decision making of the body corporate except in the limited cases where resolutions may only be carried in the absence of any dissent, the respondents had by arrangement with the appellant's predecessors in title apparently kept the usual covered garbage containers on that part of the common property level with their lots at street level from where business was conducted. The appellants however have procured the passing of a Body Corporate resolution that henceforth garbage is to be deposited only in containers at a lower level than that occupied by the respondents - which happens to be on the level of the appellants' lots to the rear of the building and very inconvenient to the respondents.

I will turn now to consider the basic contention of the appellants: that the use of the common property by the respondents of which complaint is made involves "their exclusive use" of that property and this is contrary to the by-laws in the absence of a resolution made without dissent of any proprietor of any lot pursuant to s.30(7) of the Act.

The first thing to observe about this contention is that the by-laws do not talk about "exclusivity of use" at all. By-law 3 simply provides that a proprietor of a lot "shall not obstruct lawful use of common property by any person".

A moment's reflection makes it clear that in very many cases the proprietor of a lot will not be able to make any use whatever of common property which does not at the time he is using it exclude other persons from making a similar use of that property: when the proprietor of a lot or his invitee or licensee uses a parking lot constructed on common property to park a vehicle for a period of time all other persons, whether proprietors of lots or not, will be excluded from using it during that period of time for that purpose and for most other purposes. The same may be said of persons walking across common property. In the very nature of things they will be making an exclusive use of the common property across which they walk at the time they are occupying the space above its surface as they walk. I do not understand from the example given by Crompton J in Steadman v. Smith [1857] EngR 679; (1857) 8 EL & B 1 how one co-tenant might be able to train his fruit tree over or amuse himself by running along the top of a wall of which he was a tenant in common without also excluding the other tenant in common from training his fruit tree over the same part of the top of the wall or amusing himself by running along the top of it at the same time.

On the assumption that tenants in common of property each have the right to use it for lawful purposes, it will very often be the case one would think that the use of part of that property by one will effectively exclude the use of the same part by the other at the same time. Doubtless the use of the property for a purpose which does not involve its physical use for any activity will not entail the usual consequence to which I have referred. Such unusual uses however might be thought to be extremely infrequent in respect of many parts of common property under a building units plan and in particular in respect of the particular plan under consideration upon this appeal. On one view all the lot proprietors at the same time take advantage of and "lawfully use" the roof of the building which constitutes common property to keep the rain and sun out of the building itself. To that extent none of them makes an exclusive use of it. The appellants' contention is that the parts of the roof used to support the respondents' signs are used for that purpose to the exclusion of the same or similar use of those parts by the appellants.

In my view, if accepted, the contention advanced on behalf of the appellants would lead to very unsatisfactory results in the orderly use and management of a building unit development where a number of proprietors of lots, by reason of the very design of the building units, must share with as little friction and dissent as possible, parts of the building designed for their common benefit and use.

"51(1) A proprietor, ... lessee or occupier of a lot shall not -

(b) use or enjoy that lot, or permit that lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is a proprietor or not); or

(c) use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is a proprietor or not) or by any other person entitled to the use and enjoyment of the common property."

These statutory constraints upon the use of both lots and the common property appurtenant to those lots by proprietors are akin to the constraints imposed upon the proprietor of a servient tenement to protect the rights given by easement and the law of nuisance generally to the proprietor and his tenants etc. of a dominant tenement.

In considering the contentions of the appellants I find it of more assistance to refer to legal authority touching on the protection and vindication of rights appurtenant to a dominant tenement under the terms of an easement than I do to older authorities (in the main) which touch upon the rights of co-owners of realty whether they be joint tenants or tenants in common. We were not referred to any authority and I have been unable to discover any which deals with disputes between co-owners of property as to the use which each may make of it for his own purposes without regard to the inevitable constraint which it may place on a use at the same time being made by other co-owners.

There are however many authorities relating to the grant of easements to a number of dominant tenements over the same servient tenement. Such a case was In Re Ellenborough Park [1956] 1 Ch 131, where each of the owners of many houses was granted an easement to use and enjoy in common with other house owners a large garden or park area, each being obliged to contribute towards the cost of its maintenance and upkeep.

With respect to the grant of easements of right of way the occupier of the dominant tenement is given a prima facie right to the reasonable use of every part of the passage, delineated in it but an action for disturbance will not lie unless there is a real and substantial interference with the enjoyment of that way - see Sketchley v. Berger (1893) 69 LT 754 and Pettey v. Parsons [1914] 2 Ch 653.

In Pettey v. Parsons the court considered an easement of way granted to one of a number of dominant tenements. Swinfen Eady LJ at p. 665 stressed that:

"The defendant is granted an easement of way in common with all other persons entitled to use the way. It is not an exclusive right of way. ... The law is that when an easement has been granted the grantor cannot derogate from his grant, that is to say he cannot substantially interfere with the easement as granted ... that is the true test in such cases whether the easement has been substantially interfered with. The law is not the same with regard to a private road and a public road. In the case of a public highway there can be no lawful obstruction of the highway, no obstruction which is appreciable. If it is an appreciable obstruction, whether substantial or not, it is a nuisance, and is indictable at common law."

His Honour then analysed Reg v. United Kingdom Electric Telegraph Co (1862) 31 LJ (MC) 166 and went on to comment with respect to that decision:

"If that had been merely a private way, a grant of an easement where the grantee had sufficient space for the traffic, and could pass along as freely as before, and there was no substantial interference with his right, the result would have been different. The question that arises in the present case is whether a gate is necessarily an interference. In my opinion it is not."

Cozens-Hardy MR at p. 662 made the same distinction when he observed:

"It must not be forgotten that this is not a highway; it is a private road. It must not be forgotten that the rights of interference with a right of way are by no means the same in the case of a public highway as in the case of a private road. In a public highway any obstruction is a wrong if it is appreciable. ... Any appreciable obstruction in a highway can be prevented by indictment or otherwise, but in the case of a private right of way the obstruction is not actionable unless it is substantial. There must be a real substantial interference with the enjoyment of the right of way."

"With regard to a private road, unless there are words otherwise expressing it, there is a right of way granted over that piece of land, the dimensions of which are given, but so long as there is reasonable access to the land, and a reasonable opportunity of exercising the right of way, there is not any obstruction to it, and there is no derogation from the grant. What the plaintiff proposes to do here is to put up a gate which we have now been told is to be kept open during business hours, and only to be shut after business hours, and on Sunday, in order to keep trespassers and passers-by from straying on to a piece of land on which they have no right. Such a gate does not seem to me to be an interference with the right which was granted to the defendant. The defendant's contention ... has been that to put a gate there at all would be an obstruction; that the mere putting of posts into the fairway, if I may call it so, of the right of way is an obstruction. That contention I think cannot be maintained."

In Gohl v Hender (1990) SASR 158 at p.162 Napier J applied Pettey v. Parsons and observed on the facts before him:

"These things may cause some physical obstruction to the passage of the defendants, but that is not an obstruction or an interference with the right. I am not prepared to say that a gate to keep in the stock depastured on the land is distinguishable in principle, or, in other words, that the proper conclusion - as a matter of law - is that any gate must necessarily restrict or interfere with the right and liberty of passing and repassing. I think that Pettey v. Parsons (supra) decides that the question is one of fact to be determined upon the circumstances of the particular case, with a due regard to the competing rights and interests of the parties. For the reasonable use and enjoyment of their property the plaintiffs are entitled to fence it in, and, for that purpose, to maintain their gate, if in so doing there is no substantial interference with the defendants' right to pass and repass."

In Thorpe v. Brumfitt (1873) 8 Ch App 650 at 656 it was held that the dominant owner could not complain about the obstruction of a private way unless he could prove an actual injury - unlike in the case of trespass which gives a right of action without the necessity of proof of damage.

In Gale on Easements, (15th ed) at p. 387, it is observed:

"It is not every interference with the full enjoyment of an easement that amounts in law to a disturbance; there must be some sensible abridgment of the enjoyment of the tenement to which it is attached, although it is not necessary that there should be a total destruction of the easement. The injury complained of must be of a substantial nature in the ordinary apprehension of mankind, and not one arising merely from the caprice or peculiar physical constitution of the party aggrieved."

In Keefe v. Amor [1965] 1 QB 334 at 346 Russell LJ observed that the grantee of a right of way could only complain about such activities of the owner of the servient tenement as substantially impeded the reasonable exercise of the rights given by the easement.

The grant of a right of way to a number of dominant tenements ordinarily only confers a right to a reasonable use of that way by the grantees in common with all the other grantees - and what is a reasonable use of a right of way where there is a partial obstruction has been held to be a question of fact - vide Hawkins v. Carbines (1857) 27 LJ EX 44.

"In deciding what is a substantial interference with the dominant owner's reasonable user of the way, all the circumstances must be considered; for example, the reciprocal rights of the persons entitled to use the way; also the case of persons carrying burdens along the way. ...

The owner of a right of way cannot recover damages for physical damage to the servient tenement. The right to damages lies in the unlawful interference with the right to use the way, and if there is no substantial interference there is no cause of action - see Weston v. Lawrence Weaver [1961] 1 QB 402."

In my judgment having regard to the likelihood of disputes arising between proprietors of lots in a building unit development and the desirability of reconciling their individual rights and obligations in their use of common property within it, the object of part 5 of the Act is to empower a duly appointed referee to resolve such disputes. With respect to the present dispute I refer only to ss. 77 and 78 of the Act.

When any proprietor of a lot makes use of the common property for a reasonable purpose from time to time, he will often be making an exclusive use of it while doing so.

In my judgment however that lot proprietor will not be making "the exclusive use" of the common property in such cases to which s.30(7)(a) of the Act refers. The "exclusive use" contemplated by that section is the sort of exclusive use which a proprietor makes of his lot. While he is proprietor of that lot no other person without his assent may use it for any purpose - subject of course to any personal obligation upon him founded upon contract or equitable principles which gives some other person entitlement to use it.

In my judgment the sort of "exclusive use" contemplated by by-law 30(7) is that to which the body corporate may give a right in respect of a designated part of the common property which is similar to the right which a proprietor has with respect to his lot.

In my view it is not directed at all to the sort of use of common property by the respondents of which the appellants complain. They complain about the "excessive" exercise of the respondents' reciprocal rights as tenants in common.

To the extent that the appellants' rights to use any part of the common property are substantially impeded or interfered with by the use which other co-owners of the common property make of it, it is my view that the appellants' would be given a right to take action in nuisance the success of which would depend upon whether, to use the words of Cozens-Hardy MR in Pettey v. Parsons, they could show such impediment or interference constituted a real and substantial interference with their use and enjoyment of the common property in common with the other persons entitled to a reciprocal use and enjoyment of it with them. I can find nothing in the Act or By-laws to suggest that they need establish anything less than a real and substantial inference with their use and enjoyment of the common property to obtain the relief they sought from the referee.

For the reasons given by McPherson JA I take the view that the appeal tribunal should consider the matter afresh considering whether use has been made of the common property by the respondents in a manner and for a purpose which unreasonably interferes with its use and enjoyment by the appellants and other persons entitled to use it.