Johnson & Anor v The Owners – Units Plan No 4373 (No 2) (Appeal)

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.