The lessor of 18 marina docks on the Brisbane River at Bulimba has won the first step in a contest over the validity of a body corporate lease termination relating to the berthing rights of sub-tenants due to damage sustained in the February-March flood.
The marina was ravaged by the February 28 flood but ten sub-lessees contended that the damage was quickly remediable and the docks were still capable of use.
The private berths were installed on a section of the river adjacent to a 24 unit development known as Addison Quays near Oxford St and occupied what is described as lot 800 in that community title scheme.
Allowable sublessees at the marina include Addison Quays owners and up to four outsiders.
The Body Corporate resolved on 20 June to terminate the 18 subleases in the marina because of damage to the extent that its use had been “substantially affected”.
At the same time, it resolved to surrender its 30-yr headlease over lot 800 from the State of Queensland.
The marina consists of a fixed gangway – supported by two piles – that is connected to a hinged gangway for access to a series of walkway pontoons and 10 finger pontoons.
A polystyrene floatation module provides buoyancy to the reinforced concrete floating pontoons that are restrained by 15 steel piles.
The disgruntled sub-lessees sought a declaration from the Supreme Court that the termination of the sub-leases was invalid.
The court heard from John Leman, Director of International Marina Consultants to the effect that the marina could be made operational notwithstanding very slightly tilted pylons – by utilising modified pile brackets.
That view was to some extent supported by engineer Paul Calver of Cardno but Dane Morris of The Jetty Specialist asserted that far more substantial remediation was required then merely replacing the pile brackets.
Ultimately Justice Peter Applegarth was not convinced the marina could be safely used even after installation of a pile bracket of an alternative design.
“The simple fact is that three of the piles are severely comprised,” he observed. “The fact that a number of berths are capable of being used does not mean that they are, or the remaining marina is, safe for use”.
He ruled that as at the date of the body corporate’s resolution, the marina was damaged to such an extent that use of it was “substantially affected” thereby entitling the termination of each sublease.