Johnson v The Owners Units Plan No 4373 (Appeal)

Johnson and his wife appealed against the decision of the Australian Capital Territory Civil and Administrative Tribunal (ACAT) which dismissed their application under the Unit Titles (Management) Act 2011. The Johnsons sought to use the communal dining room of their unit plan for drawing classes. The Executive Committee of the respondent, The Owners Units Plan No 4373, refused the request. The ACAT dismissed the appeal. The Johnsons appealed to the Appeal Tribunal, which reviewed the merits of the decision of the Executive Committee. The Appeal Tribunal set aside the decision of the Executive Committee and allowed the appeal. The Tribunal found that the decision of the Executive Committee to refuse permission was not the preferable one and that the Johnsons' request should be granted subject to conditions. These conditions included that the drawing classes were for a period no longer than approximately 2.5 hours, the size of each class would not exceed 10 people, and the use of the Dining Room was occasional only and not unduly frequent. The Johnsons were also required to hold adequate public liability insurance and to ensure that the Dining Room was left clean and tidy after each class. The parties had liberty to make submissions about the form of the approval within 14 days of the orders being made. If no submissions were received within that time, the orders would come into force on 9 July 2021. If submissions were received, the orders would come into force on a date to be notified to the parties.

The appeal was allowed, and the decision of the Executive Committee of the respondent to refuse to allow the request by the appellants to use the Dining Room for drawing classes was set aside. The request by the appellants to use the Dining Room was allowed subject to conditions. The conditions included that Janet Johnson could use the Dining Room for drawing classes conducted by her, Mark and Janet Johnson must hold adequate public liability insurance in respect of that use of the Dining Room, each such use will be for a period no longer than approximately 2.5 hours, the size of each class (usually about three or four people) will not exceed 10 people, the use will be occasional only and not unduly frequent, the availability of the Dining Room for that use is subject to the Dining Room booking system now in place, and Mark and Janet Johnson are responsible for ensuring that the persons attending each class are quiet and respectful of residents and that the Dining Room is left clean and tidy after each class. The parties have liberty to make submissions about the form of Order 3 within 14 days of these orders being made, and that Order will not come into force until if no submissions are received within that time, 9 July 2021; or if submissions are received, on a date to be notified to the parties.