The Owners Units Plan 3323 v Makeham (Appeals)

In the tribunal, the Owners Corporation for Units Plan 3323 appealed against an order made by the tribunal on 8 August 2023, which set aside a resolution made by the Owners Corporation at a general meeting on 9 January 2023. The resolution authorised the expenditure of Owners Corporation funds to repair and repaint the wooden doors and windows on units 1 and 2 of the complex. The owner of unit 3, Ms Makeham, applied to the tribunal for an order that the resolution was void for irregularity or, alternatively, that the tribunal amend the resolution to reflect the application of a decision in McMillan. Ms Makeham argued that the doors and windows were not common property and therefore the Owners Corporation was not responsible for their maintenance.

The tribunal was required to decide whether the doors and windows in question were common property and, if so, whether the Owners Corporation was responsible for their maintenance. The tribunal considered the definition of “common property” under the Unit Titles (Management) Act 2011 and the Unit Titles Act 2001, and whether the doors and windows fell within that definition. The tribunal also considered the decision in McMillan and whether it applied to the circumstances of this case.

The tribunal found that the doors and windows in question were not common property and therefore the Owners Corporation was not responsible for their maintenance. The tribunal held that the doors and windows were part of the units and not part of the common property, as defined in the Unit Titles Act 2001. The tribunal also found that the decision in McMillan did not apply to the circumstances of this case. The tribunal set aside the resolution and ordered that it be repealed.

The tribunal ordered that the order made on 8 August 2023 be set aside and replaced with the following order: “The resolution adopted on motion 4 of the general meeting of Units Plan 3323 held on 9 January 2023 is repealed.” The tribunal dismissed the appeal and ordered that the resolution be repealed.