Johnson & Anor v The Owners – Units Plan No 4373 (No 2) (Appeal) - [2021] ACAT 65

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

Details

AGLC: Johnson and Anor v The Owners – Units Plan No 4373 (No 2) (Appeal) [2021] ACAT 65
Case: [2021] ACAT 65
Decision Date: 12 July 2021

CaseChat Overview and Summary

The appeal was brought by the first and second respondents in the proceeding below, Johnson and another, against the decision of the Executive Committee of the Owners Corporation for Units Plan No 4373. The appellants sought to use a communal dining room in their unit complex for a home business. The Executive Committee had refused permission for this use, and the appellants appealed to the Civil and Administrative Tribunal (the Tribunal). The Tribunal allowed the appeal and set aside the Executive Committee’s decision, replacing it with conditions that limited the use of the communal dining room for the home business. The appellants then sought to revise one of the orders made by the Tribunal, and the Owners Corporation sought to revise another. The appellants sought to have the Tribunal’s order that the use of the communal dining room for the home business be occasional only and not unduly frequent, replaced with an order that specified a particular number of occasions per calendar year and per calendar month. The Owners Corporation sought to have the Tribunal’s order that any increased use of the communal dining room for the home business would require permission of the Executive Committee, which would not be unreasonably withheld, replaced with an order that specified the process by which such permission would be granted.

The legal issues before the Tribunal were whether the appellants’ proposed use of the communal dining room for a home business was consistent with the unit title legislation and body corporate rules, and if so, what conditions should be placed on that use. The Tribunal considered the unit title legislation and the body corporate rules, and found that the proposed use of the communal dining room for a home business was not prohibited. However, the Tribunal also found that the use should be limited to prevent it from unduly interfering with the rights of other owners and residents. The Tribunal considered the submissions made by both parties and made orders that limited the use of the communal dining room for the home business to not more than ten occasions in a calendar year and not more than two occasions in a calendar month. The Tribunal also made an order that any increased use would require permission of the Executive Committee, which would not be unreasonably withheld.

The Tribunal allowed the appellants’ application to revise one of the orders, replacing the order that limited the use of the communal dining room for the home business to not more than ten occasions in a calendar year and not more than two occasions in a calendar month, with an order that specified a particular number of occasions per calendar year and per calendar month. The Tribunal did not allow the Owners Corporation’s application to revise the order that any increased use of the communal dining room for the home business would require permission of the Executive Committee, which would not be unreasonably withheld, replacing it with an order that specified the process by which such permission would be granted. The Tribunal considered that the Owners Corporation’s proposed order was not consistent with the unit title legislation and the body corporate rules, which required the Executive Committee to consider applications for permission to use the communal dining room for a home business on their merits, and to not unreasonably withhold permission. The Tribunal made an order that the revised orders commence on 12 July 2021.

Orders

Orders of the court

The Tribunal orders that:

1. Order 3(e) made on 24 June 2021 be replaced by the following order:

1. (e) The use will be occasional only and not unduly frequent. In particular:

1. (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.

1. (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.

1. (iii) Any increased use requires the permission of the Executive Committee, which will not be unreasonably withheld.

2. Order 3 as amended commences on 12 July 2021.

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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