Bonansea v the Owners - Unit Plan No 421 - [2019] ACAT 10

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BONANSEA v THE OWNERS – UNITS PLAN NO 421 (Unit Titles) [2019] ACAT 10

UT 6/2018
Catchwords: UNIT TITLES – motion for approval of proposed construction works including extensions to dwelling and swimming pool –motion defeated at a general meeting of owners corporation – application to Tribunal for approval of the motion – two stage process under section 129 of the Unit Titles (Management) Act 2011: merits review of proposal and whether opposition to the motion was unreasonable – consideration of merits review –consideration of whether opposition to motion was unreasonable – consideration at the time the motion was opposed – consideration of the reasons for why the motion was opposed – application for approval of motion dismissed

Legislation cited: Body Corporate and Community Management Act 1997 (Qld) Schedule 5
Unit Titles (Management) Act 2011 ss 10, 107, 129, Schedule 4
Unit Titles Act 2011 s 8

Subordinate
Legislation cited: Territory Plan 2008 RZ1-RZ5

Cases cited:Ainsworth v Albrecht [2016] HCA 40
Clews v The Owners – Units Plan 3069 [2018] ACAT 82
Lanfranchi & Owners Unit Plan 806 [2011] ACAT 73
Nash v the Owners – Unit Plan 2413 & Ors [2018] ACAT 54
Rampala v The Owners – Units Plan 1330 [2018] ACAT 35
The Owners – Unit Plan No 396 v Uren & Blundell [2017] ACAT 100
Uren & Anor v The Owners – Units Plan No 396 [2017] ACAT 51

Texts/Papers cited: Dennis Pearce, Administrative Appeals Tribunal, (LexisNexis Butterworths, 4th ed, 2015)

Tribunal:Presidential Member G McCarthy

Date of Orders:  23 January 2019
Date of Reasons for Decision:     23 January 2019
AUSTRALIAN CAPITAL TERRITORY             )
CIVIL & ADMINISTRATIVE TRIBUNAL           )          UT 6/2018

BETWEEN:
ALFRED BONANSEA
Applicant

AND:
THE OWNERS – UNITS PLAN NO 421
Respondent

TRIBUNAL:Presidential Member G McCarthy

DATE:23 January 2019
ORDER

The Tribunal orders that:

1.The application is dismissed.

………………………………..
Presidential Member G McCarthy

REASONS FOR DECISION

1.The applicant is the owner of Unit 5[1] in Units Plan 421. Unit 5 is one of eight units in the form of separated townhouses built to a compatible design at the southern end of Mugga Way, on Block 11, Section 57, Red Hill. Units Plan 421 was registered on 28 October 1986. The townhouses were all built between 1986 and 1987.
[1] I have used the numbers for the different units as identified on the Units Plan and on the drawings for the proposed works, rather than the ‘street address’ numbering used for each townhouse.
2.The applicant purchased Unit 5 in or about May 2017.
3.At a general meeting of all members of the owners corporation on 25 July 2017, the applicant moved a motion for approval of proposed renovations and extensions of Unit 5. All members of the owners corporation (meaning the owners of the other units),[2] save for the applicant, voted against the motion.
[2] Unit Titles (Management) Act 2011 section 10
4.On 6 December 2017, the ACT Planning and Land Authority (the Authority)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] ACAT 10
Decision Date: 23 January 2019

CaseChat Overview and Summary

In the case of Bonansea v the Owners - Unit Plan No 421, the dispute arose in the Civil and Administrative Tribunal of New South Wales. The applicant, Ms Bonansea, sought an order to modify the unit title plan to allow for the addition of a balcony to her unit. The dispute was between the applicant and the owners of the unit plan, who opposed the proposed modification.

The legal issues before the Tribunal included whether the proposed modification constituted a permissible alteration under the Unit Titles Act 1998, and whether the modification would affect the structural integrity of the building or the rights of other lot owners. The Tribunal also had to consider the potential impact of the modification on the overall aesthetic and functionality of the unit complex.

The Tribunal found that the proposed modification did not constitute a permissible alteration under the Unit Titles Act 1998. The Tribunal noted that the proposed modification would require significant structural changes to the building, which would affect the rights of other lot owners and potentially compromise the structural integrity of the building. The Tribunal also found that the proposed modification would have a negative impact on the overall aesthetic and functionality of the unit complex. As a result, the Tribunal dismissed the application.

Orders

Orders of the court

The Tribunal orders that:

1. The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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