Dansur v Body Corporate for Cairns Aquarius CTS 1439

In the case of Dansur v Body Corporate for Cairns Aquarius CTS 1439, the dispute arose from a decision made by an Adjudicator regarding the removal of common property. The appellant, Dansur, opposed a motion brought by the second respondent to remove common property. This motion was passed by a simple majority. The Adjudicator ruled that there was no disposal of an interest in common property, despite it being uncontested that part of the common property was removed to facilitate the installation of a larger window on the common boundary. This change resulted in a modification to the building's façade, and there was neither compensation nor an offer of compensation provided to the lot owners within the scheme.

The legal issues before the court revolved around whether the removal of the common property constituted a disposal of an interest in that property. The court had to consider whether the Adjudicator's finding was correct and whether the removal of the common property, without any compensation, was permissible under the governing laws and regulations. The court also needed to determine if the Adjudicator's decision contained any errors of law that warranted setting aside the decision and the resolution passed by the First Respondent.

The court, upon review, found that the Adjudicator had indeed made an error of law. The removal of common property without compensation to the lot owners constituted a disposal of an interest in that property, contrary to what the Adjudicator had ruled. Consequently, the court allowed the appeal, set aside the Adjudicator’s decision dated 24 June 2020, and also set aside Resolution 10 of 12 September 2019 passed by the First Respondent. The removal of the common property without proper compensation was deemed unlawful, leading to the reversal of the lower court's decision.