Friday, June 13, 2008

Oaks and Aurora

This is what the Supreme Court of Queensland wrote in a judgment concerning management rights for Aurora. It appears that the original developer did not want the building managed by Oaks as that would hurt sales. Aurora is now managed by Oaks.

"Oaks is in the business of providing accommodation for travellers, holiday makers and semi-itinerant urban workers. The news that the plaintiff, the proposed letting agent for the Aurora complex, would become an Oaks subsidiary caused considerable anxiety in the minds of the defendants’ directors. Rightly or wrongly they associated Oaks with a distinctly plain, perhaps plebeian, approach to the provision of accommodation. To maximise profit from its development the first defendant asked high prices for Aurora’s residential lots and promoted the development as one suitable for those who enjoy wealth and its display. They thought that Oaks’ reputation and its method of operation would be inimical to achieving that result.

The first defendant had two concerns. The first was Oaks’ involvement as the letting agent. The second was the operation of ‘short term accommodation, serviced apartments or hotel style accommodation typically used as holiday and nightly business or corporate accommodation ...’ from the tower. Mr Morris anticipated that about one third of the buyers of residential lots would live in the units but the balance, about 320 owners, would let their apartments to tenants. Mr Morris believed that letting a large number of units on a short term basis would be inimical to the first defendant’s proposed marketing strategy. As he said:

‘... the operation of a short term accommodation business from the Aurora Tower, particularly of the kind which appears from the Oaks prospectus would be conducted by Oaks, would be completely inconsistent with the way the development had been promoted, advertised and marketed and inconsistent with the type of development that buyers were told it would be.’

Both Mr Potts and Mr Morris were disposed to deny that Oaks’ involvement in the letting of units in Aurora was a particular concern. They maintained that it was the prospect of frequent numerous changes of tenants in the building which would reduce its appeal to buyers, regardless of the identity of the letting agent. If it matters I express my satisfaction that Messrs Potts and Morris were particularly alarmed at the thought that Oaks would be the letting agent. Indications of this fear appear in the correspondence, and I thought their denials unconvincing.


The plaintiff’s solicitors’ file note records the discussion:

‘Having sold the units to owners on the basis of it being a high quality residential complex ... owners would have some claim against the developer and possibly some way of getting out of the contracts if it became branded as an Oaks hotel/resort. It was acknowledged that the sale of contract contemplated that ... owners could let out units for short term lettings but it was never promoted as a short term letting complex, hotel or resort.’


It should perhaps be noted briefly that the possibility of the plaintiff operating a hotel from Aurora Tower was so slight as to be disregarded by any sensible person. The building is not suitable for use as a hotel. It does not have sufficient lifts, storage space, staff quarters or vehicular access to function as a hotel. This was accepted by all parties. The first defendant cannot sensibly have thought that the plaintiff, or Oaks, would conduct a hotel from the tower.

It is possible to let a substantial number of the units as serviced apartments but to do so would require some physical alteration to the building. There would need to be a large storage room for bed linen and towels and probably facilities for the cleaning staff. These alterations could only occur with the approval of the body corporate. The consequence is that the letting agent could only let a large number of apartments as serviced ones with the approval of the body corporate which would have to effect the alterations on its common property. The first defendant could hardly complain about lots let as serviced apartments if the parties to the letting agreement agreed on that course and, if necessary, varied the letting agreement to effect it."
But Aurora is now a hotel: Brisbane Times

No comments: