Is it “The Vibe”? | Noosa Body Corporate Battle Goes to the High Court

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Noosa Body Corporate Battle goes to the High Court.

The High Court recently handed down a Decision in relation to a Lot Owner’s proposal to extend a balcony across common property at the Viridian Noosa Residences. The proposal put to the Body Corporate was to join two balconies using common property air space that lay between the two balconies and was of no practical use to any other Lot Owners.

The matter originally went to an Adjudicator who considered that the decision of the Body Corporate not to allow the balconies to be joined (which required a Resolution without Dissent of Lot Owners) was unreasonable. This was appealed to the Queensland Civil and Administrative Tribunal (QCAT) which held that the dissent to the motion was reasonable.

The matter was then taken to the Queensland Court of Appeal and this Court held that the failure to obtain a Resolution without Dissent was an unreasonable decision of the Body Corporate.

The matter was then appealed to the High Court of Australia and the High Court upheld QCAT’s Decision on the grounds that a Lot Owner has the right to dissent (or not agree) to a motion provided that opposition to the motion is not unreasonable.

In a rather complex review of the previous decisions from the lower Courts and the Adjudicator, the High Court noted that the original Adjudicator’s Decision (basically upheld by the Court of Appeal) was incorrect because the Adjudicator had concentrated on whether the dispute concerned a contravention of section 94 (2) of the BCCM Act in that the Body Corporate acted unreasonably in deciding not to pass the motion.

In fact, the correct issue for the Adjudicator to consider was whether the individual votes of dissenting Lot Owners were unreasonable, not whether the decision of the Body Corporate was unreasonable.

The High Court stated unequivocally that the Adjudicator’s attention should have been focused squarely upon whether the opposition by a Lot Owner or Owners to the passing of the resolution was unreasonable. The Adjudicator should not have been confused with the issue of whether the Body Corporate had achieved a reasonable balance of the competing interests that may be affected by the proposal for the decks.

The High Court made the comment that the BCCM Act does not require a Lot Owner to give up rights to his or her lot due to some standard of sympathy or altruism applicable between Lot Owners. Further, the BCCM Act allows opposition to a resolution to be overridden by an Adjudicator only where opposition by the Lot Owners is unreasonable. Lot Owners cannot be required to give up their property rights without consent to another Lot Owner unless the refusal to do so is unreasonable.

Nothing in the BCCM Act suggests that a Lot Owner may be required by an Adjudicator to assist another Lot Owner to enhance that Lot Owner’s interest, or be considered that they are acting unreasonably if they do not do so, particularly where by doing so it may be adverse to the interests of the Lot Owner refusing.

In the particular case the High Court found that certain opinions by Architects for the Lot Owners provided that the expansion of the deck in question could increase the deck use and the noise which may disturb other occupiers. It also did not have to be proved that this is the actual case simply that the Lot Owner held a reasonable apprehension that this was the case. Therefore, if the Lot Owner reasonably believed that there may be increased noise or other disturbance then the opposition to the motion was not unreasonable.

There were comments in the case that opposition prompted by spite or ill will may be seen as unreasonable but in this particular case this was not the case.

There is guidance in this case as to what must be considered by a Body Corporate when it is to be determined whether a Body Corporate is acting unreasonably, and whether a Lot Owner individually can be considered to be acting unreasonably when considering their own individual rights.

If you would like further information in regards to this, or the implication to Bodies Corporate, please contact the writer.

To obtain legal advice regarding your rights contact MMLaw on (07) 5443 1800.

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The content published in this Blog is in the form of academic papers and the opinions expressed herein are generalised. The information provided is for educational purposes, not specific legal advice.

The application of any principles referred to can alter from case to case and accordingly you should seek independent legal advice in respect of your individual circumstances.


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