Johnson v The Owners Units Plan 4373 (Unit Titles)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

JOHNSON & ANOR v THE OWNERS - UNITS PLAN 4373 (Unit Titles) [2020] ACAT 114

UT 32/2019

Catchwords:               UNIT TITLES – use of common property – approval from executive committee required – whether proposed use of common property is inconsistent with use permitted under Crown lease for units plan – whether refusal to permit use of common property interferes with owners right to use and enjoyment of common property – decision making process used by executive committee – allegations of unconscionable conduct – scope of tribunal’s powers

Legislation cited:        Building Units and Group Titles Act 1980 (Qld) s 51

Unit Titles (Management) Act 2011 ss 2, 3, 7, 8, 16, 19, 35, 127, 129

Cases cited:Piazza & Anor v Strata Corporation 10147 Inc & Anor [2020] SASCFC 27

Platt v Ciriello [1997] QCA 33

Tribunal:  Senior Member K Katavic

Date of Orders:  18 December 2020

Date of Reasons for Decision:      18 December 2020

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL      )         UT 32/2019

BETWEEN:

MARK JOHNSON

First Applicant

JANET JOHNSON

Second Applicant

AND:

THE OWNERS - UNITS PLAN 4373

Respondent

TRIBUNAL:Senior Member K Katavic

DATE:18 December 2020

ORDER

The Tribunal orders that:

1.The application is dismissed.

………………………………..

Senior Member K Katavic

REASONS FOR DECISION

Introduction

1.At the heart of this dispute is the use of a ‘Dining Room’, being common property within the Greenwich complex in Campbell in the ACT. The applicants considered it was an appropriate venue in which they could conduct drawing classes as part of their home business and sought approval from the executive committee to do so. The executive committee refused the request on the basis that it was not a use consistent with the permitted purposes of the units. The executive committee regarded the applicants’ proposed use to be for a commercial purpose and therefore not a permitted use. The applicants disagreed. They also took issue with the way the executive committee arrived at its decision, which included conducting an anonymous survey of unit owners on whether the ‘Dining Room’ should be used for commercial purposes. The applicants characterised the executive committee’s handling of their request as unconscionable.

2.The applicants applied to the Tribunal for relief under the Unit Titles (Management) Act 2011 (the UTM Act). Both parties filed extensive submissions and relevant material.

3.The parties jointly proposed that the Tribunal decide the application on the papers without conducting a hearing. The Tribunal agreed to that course. The decision was reserved on 14 July 2020 after the final direction was complied with and no further documents were to be lodged. As there were no objections to any of the material relied upon by either party, the Tribunal has had regard to all the documents lodged by the parties.[1]

Background

[1] Application dated 15 November 2019 including submissions and attachment M&J 002, Appendices A-D; Respondent’s Response dated 13 February 2020 including attachments; Respondent’s Supplementary Response dated 22 April 2020; Respondent’s Timeline; Witness Statement of Brian…