The Owners - Units Plan No 68 v Haughey (Unit Titles)

The Owners – Units Plan No 68 (applicants) sought to remove a hot water system installed by Haughey (respondent) on the common property wall of a unit title scheme. The applicants argued that the installation was unlawful as it required approval from the owners corporation. The applicants also contended that the respondent had failed to follow the correct procedural steps for approval, specifically regarding the use of proxy nomination forms and the type of motion needed to authorise the installation. The case was heard in the Civil and Administrative Tribunal of New South Wales.

The primary legal issues concerned whether the installation of the hot water system required approval from the owners corporation and, if so, what type of motion was necessary to authorise it. Specifically, the court had to determine whether the installation constituted a minor use that could be authorised by a simple majority vote or whether it required a special resolution. The court also had to consider the principles governing meeting practice, including the validity of proxy nomination forms and the effect of the respondent’s failure to attend the meeting where the motion was raised.

The Tribunal concluded that the installation of the hot water system did require approval from the owners corporation and that the use was not minor, necessitating a special resolution. The Tribunal found that the meeting where the motion was raised was not properly conducted, primarily due to the use of proxy nomination forms, which were not in accordance with the statutory requirements. The Tribunal also held that the respondent’s failure to attend the meeting meant that the motion to approve the installation was not validly passed. Consequently, the Tribunal ruled that the respondent must either obtain the necessary authority for the installation or remove the hot water system within 90 days of the order.

The Tribunal ordered that within 90 days of the date of the order, the respondent must either obtain the necessary authority for the installation of the hot water system on the rear wall of the common property or remove the system from the common property. The Tribunal found the respondent's interim application statute barred, meaning it could not be considered further.