McMillan v Owners Corporation - Units Plan No 79 (Unit Titles)

The case of McMillan v Owners Corporation - Units Plan No 79 (Unit Titles) involved the applicants, McMillan and others, and the Owners Corporation, in a dispute regarding the definition and classification of certain structures within a unit title complex. The applicants sought clarification on the nature of various elements in their unit, specifically whether a glass door was to be considered a wall or a window, and the implications for the definition of common property. The dispute was heard by the Civil and Administrative Tribunal of New South Wales (NCAT), which has jurisdiction over matters related to unit titles.

The central legal issue before the Tribunal was whether a glass door in the applicants' unit constituted a wall or a window, and consequently, whether it was part of the common property. The Tribunal was also tasked with interpreting the meaning of 'alteration' within the context of the unit title legislation. The applicants argued that the glass door should be considered a wall, thus making it part of their private property, and that any changes to the door should not require the Owners Corporation's approval. The Owners Corporation contended that the glass door was a window, and therefore part of the common property, requiring their consent for any alterations.

In its decision, the Tribunal held that the glass door was to be classified as a wall rather than a window. The Tribunal reasoned that the glass door was not translucent or transparent enough to be considered a window and, therefore, should be considered a wall. The Tribunal found that the glass door was part of the private property of the applicants and not common property. Consequently, alterations to the door did not constitute an alteration within the meaning of the unit title legislation, thus not requiring the Owners Corporation's approval. The Tribunal also found that the motions put forward by the applicants, which purported to deem certain actions taken by the Owners Corporation as invalid, were not valid and were therefore repealed.

The Tribunal's final order was that Motion 2 of 24 December 2018, which sought to deem certain actions by the Owners Corporation as invalid, was repealed. This decision clarified the classification of the glass door and its implications for the definition of common property, providing guidance for future disputes in similar circumstances.