This article is reproduced with kind permission of Hynes Legal.
The longest running (and most expensive) dispute over a deck in Australia has been decided by the High Court. There are no appeals from there so we now have the definitive statement on what a body corporate’s decision making obligations are based on.
We wrote an article after the Supreme Court decision here.
The opponents to the deck won.
The smartest group of lawyers in the country (being the High Court) has decided that the opposition of seven owners to the assumption by one owner of 5 sqm of common property to build a deck was not unreasonable.
The test for overturning a failed resolution without dissent (as distinct from not acting reasonably) is not an objective balancing of all of the opinions in the decision making process of that particular body corporate. This is previously what has been accepted as the rule to determine whether a decision was ‘reasonable’.
The question was actually whether the opposition in the circumstances was unreasonable. That is a different position where you need to look at the reasons owners opposed the motion. In that context:-
‘the adjudicator’s task was to determine whether she was satisfied that it was objectively unreasonable for the seven Viridian owners who had purchased their homes recognising Viridian’s architectural merit and whose disquiet at the damage which the proposal, if implemented, would likely do to the original design intent was supported by the closely reasoned opinions of three eminent architects to oppose the motion. It was not for the adjudicator to reject one set of architectural opinions because she perceived them “to be importing a subjective view of the impact of the alteration.”
The High Court has held that objecting on this basis was not unreasonable.
The rationale for resolutions without dissent was also considered in this statement:-
‘The BCCM Act does not contemplate that the rights of a lot owner genuinely opposed to the reduction of his or her rights to common property attached to his or her lot may be overridden where that might be thought by an adjudicator to be a reasonable course to adopt, having regard to some standard of sympathy or altruism applicable between lot owners.’
None of this is to say that votes against a motion by resolution without dissent will all be valid. It was further held that:
‘opposition to a proposal that could not, on any rational view, adversely affect the material enjoyment of an opponent’s property rights may be seen to be unreasonable. Opposition prompted by spite, or ill-will, or a desire for attention, may be seen to be unreasonable in the circumstances of a particular case.’
As always, the decision doesn’t clarify everything we would have wanted, as there are some very technical distinctions that can still be made when opposing resolutions without dissent that would make the decision here less relevant.
To us, it is a bit like the answer to the ultimate question in the Hitchhikers Guide to the Galaxy. The answer was 42. But what was the question? Framed differently, the application could have had a very different result.
For the bush lawyers out there you can access the judgement here.