The Owners - Unit Plan No 928 v Cochaud

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THE OWNERS – UNIT PLAN NO 928 v COCHAUD (Unit Titles) [2017] ACAT 66

UT 20/2016

Catchwords:              UNIT TITLES – tenants have built cabinetry and a woodworking bench in the car parking area of their unit – power of an owners corporation to make rules that prescribe how individual unit owners can or cannot use their units – whether such rules could be described as ‘ancillary or incidental’ to the ‘control, management and administrative of the common property’ – whether ‘control, management and administration of the common property’ should be read to include a function of ‘ensuring the enjoyment or amenity of lot owners’

Legislation cited:      Body Corporate and Community Management Act 1997 (Qld) s 169

Legislation Act 2001 ss 137, 140, 141, 143, 196

Owners Corporations Act 2006 (Vic) s 138
Strata Titles Act 1985 (WA) s 42
Strata Management Act 2015 (NSW) s 136
Unit Titles Act 1970 ss 35, 46, 80
Unit Titles Act 2001 ss 18, 46, 51, 128
Unit Titles (Management) Act 2011 ss 7, 9, 16, 19, 20, 21, 22, 23, 24, 28, 29, 32, 108, 112, 129,

Cases cited:               Al-Kateb v Godwin (2004) 208 ALR 124

In the Matter of the Ruling Tribunal Section 31 of the Unit Titles Management Act 2011 (Civil Dispute) [2017] ACAT 56
Gallagher v Rainbow & Ors [1992] QCA 375
Marshall v Director General, Department of Transport (2001) 205 CLR 603
Owners Corporation PS 501391P v Balcombe [2016] VSC 384
Pacific Seven Pty Ltd v Knox CC (1993) 11 AATR 325
Rothmans of Pall Mall (Australia) Ltd v Australian Broadcasting Tribunal [1985] FCA 91
Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority (2008) 233 CLR 259

List of

Texts/Papers cited:   Explanatory Memorandum to the Unit Titles (Management) Bill 2011

Sherry, C, Strata Title Property Rights: Private Governance of Multi-Owned Properties (Rutledge, 2017)

Tribunal:                   Senior Member H Robinson

Date of Orders:  5 September 2017

Date of Reasons for Decision:         5 September 2017

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          UT 20/2016

BETWEEN:

THE OWNERS – UNIT PLAN NO 928

Applicant

AND:

FIONA COCHAUD

Respondent

TRIBUNAL:   Senior Member Robinson

DATE:5 September 2017

ORDER

The Tribunal orders that:

1.The application is dismissed.

………………………………..

Senior Member Robinson

REASONS FOR DECISION

Introduction

1.At issue in this case is the power of an owners corporation to make rules that prescribe how individual unit owners can or cannot use their units. While this is the first occasion this question has come before the Tribunal, there will likely be many more such applications as an increasing number of Canberrans choose to live in commonly owned townhouses and apartment complexes.

2.In summary, I have determined that the rule in issue in this case is of no effect, as it is beyond the power of the owners corporation to make.  I reached this conclusion only after an examination of the historical antecedents to the current Territory legislation, and a comparison between the Territory legislation and that in other jurisdictions,…