I know that this is a topic that we have covered previously, however it is a common theme among the adjudicators orders that I have been reviewing since we started circulating this newsletter.
The legislation is very clear that a Committee and a Body Corporate must act reasonably in undertaking its functions including in making a decision.
In many of the adjudicator’s orders they note that the difficulty is what the “test” for reasonableness in regards to decisions made by the Body Corporate or the Committee. In the order The Scarborough Grand (2020) QBCCMCmr70 the adjudicator notes “Reasonable decision-making involves an evaluation of the known facts, circumstances and considerations that tend to have a rational bearing on the issue…and…requires that all relevant matters are taken into consideration and irrelevant ones are left out”
Now if a Lot Owner would like to challenge a decision that has been made they need to be aware that they bear the onus of proving that the decision was unreasonable sufficiently enough for an adjudicator to make a ruling to overturn the decision of the Body Corporate or the Committee.
In the order referenced above, the applicants seeking to have the decision made by the Body Corporate overturned, had made application for permission to install shutters on their balcony which the Committee put to General Meeting for all owners to vote on. Of the 131 lots in the scheme only 43 votes were cast and the motion was defeated – 13 votes in favour and 30 against.
The applicants expressed their view that the explanatory note was biased; they noted that some owners had advised they were unaware of the motion & that the building has shutters on the rear balconies which were installed at the time of construction.
The adjudicator sought submissions in response to the application and received submissions from the Committee and 12 owners, 10 of these opposed the application for varied reasons.
In this case, the adjudicator dismissed the application on the grounds that from the submissions received from other owners in the scheme, as well as the Committee they carefully considered the proposal put forward to the general meeting and did not just automatically reject it. The applicants have not demonstrated that the resulting outcome was not open to the body corporate to decide in the circumstances.
The adjudicator has noted however that if the owners consider that the provision of different information to owners would result in a different outcome, they have the ability to canvass owners and submit a further motion to a future general meeting with their own explanatory note.
The full order can be read – http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr/2020/70.html
And more information can be obtained by visiting the Commissioners Office Website –https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/bccm