Johnson & Anor v The Owners – Units Plan No 4373 (No 2) (Appeal)
[2021] ACAT 65
•12 July 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
JOHNSON & ANOR v THE OWNERS – UNITS PLAN NO 4373 (No 2) (Appeal) [2021] ACAT 65
AA 5/2021 (UT 32/2019)
Catchwords: APPEAL – unit titles – whether a communal dining room may be used for a home business – decision of Executive Committee to refuse that use set aside and replaced – orders made - parties made written submissions in respect of one Order – Order revised
Cases cited:Johnson & Anor v The Owners – Units Plan No 4373 [2021] ACAT 54
Tribunal: President G Neate AM
Senior Member B Meagher SC
Date of Orders: 12 July 2021
Date of Reasons for Decision: 12 July 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 5/2021
BETWEEN:
MARK JOHNSON
First Appellant
JANET JOHNSON
Second Appellant
AND:
THE OWNERS – UNITS PLAN NO 4373
Respondent
APPEAL TRIBUNAL: President G Neate AM
Senior Member B Meagher SC
DATE:12 July 2021
ORDER
The Tribunal orders that:
Order 3(e) made on 24 June 2021 be replaced by the following order:
(e)The use will be occasional only and not unduly frequent. In particular:
(i) The use will occur on not more than ten (10) occasions in a calendar year and on not more than two (2) occasions in a calendar month.
(ii) This limitation of use may be exceeded so long as it consistent with any limitation on comparable usage placed on all owners and residents.
(iii) Any increased use requires the permission of the Executive Committee, which will not be unreasonably withheld.
Order 3 as amended commences on 12 July 2021.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
REASONS FOR DECISION
On 24 June 2021, the Appeal Tribunal published reasons for decision in this appeal and made orders.[1]
[1] Johnson & Anor v The Owners – Units Plan No 4373 [2021] ACAT 54
Order 3 comprised the conditions on which the request by the appellants to use the Dining Room was allowed.
Those conditions included “(e) The use will be occasional only and not unduly frequent”.
By Order 4 the Appeal Tribunal granted the parties liberty to make submissions about the form of Order 3 within 14 days of these orders being made, and ordered that Order 3 would not come into force until:
(a)if no submissions are received within that time, 9 July 2021; or
(b)if submissions are received, on a date to be notified to the parties.
Each party made written submissions within the prescribed period. The submissions related only to Order 3(e).
Having considered each party’s submissions, we have decided that Order 3(e) be replaced with the following:
(e)The use will be occasional only and not unduly frequent. In particular:
(i) The use will occur on not more than ten (10) occasions in a calendar year and on not more than two (2) occasions in a calendar month.
(ii) This limitation of use may be exceeded so long as it consistent with any limitation on comparable usage placed on all owners and residents.
(iii) Any increased use requires the permission of the Executive Committee, which will not be unreasonably withheld.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
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