BODY CORPORATE COMMITTEE

08 Feb That Committee Decision – Was It Reasonable or Unreasonable?

That Committee Decision – Was it Reasonable or Unreasonable?

Each month in preparation of putting together the content for the next edition of Strata Today, I scroll through many Adjudicators Orders – which can be viewed at http://www6.austlii.edu.au/cgi-bin/viewdb/au/cases/qld/QBCCMCmr/.

More and more often I am finding the catchwords are around unreasonableness of a decision made by the Committee in declining an owners application, whether it be for a pet, installation of blinds, security screens or other requests made, which got me thinking – how do we determine whether a Committee decision is reasonable or unreasonable in the circumstances?

Section 100(5) of the Body Corporate and Community Management Act 1997 (the Act) states:

“The committee must act reasonably in making a decision”

However – in the above section of the Act, there is no definition of what “reasonable” actually is….

In a lot of the Adjudicators Orders where the reasonableness of a decision made by the Committee is discussed, reference is made to QCAT / Court proceedings where a “test of reasonableness” is explained. In the Adjudicators Order Waters Edge [2019] QBCCMCmr 23 (17 January 2019), it states:

“…reasonableness (is not) something about which informed views are likely to, or should, differ. Reasonableness does not mean whatever the adjudicator considers to be just and equitable and it does not involve the application of discretionary considerations of the kind that were essayed in Norbis v Norbis. The standard of reasonableness is objective and it is to be applied in this case and the time of rejection of (the defeated) motion taking into account all relevant factors including factors which were extant but which parties may not have identified or appreciated at the time, as is implied by the words “in the circumstances….””. It was also noted “…..reasonableness 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”.

It should also be clarified, that the onus is always on the applicant to prove that the decision of the Committee was unreasonable and contrary to the requirement under Section 100(5) of the Act rather than the Committee having to establish that its decision was reasonable.

The example of the Order mentioned above – Waters Edge [2019] QBCCMCmr 23 (17 January 2019) – the applicants sought approval from the committee for the installation of an external blind on the balcony of the lot, which was denied. The Adjudicator assigned to the case reviewed all of the information provided and sought submissions from all owners and in the end found that the Committee had in fact spent considerable time in researching the application and provided various reasons why the application had been declined.

As such – the order that the owner was seeking “that their request be deemed to have been approved” – was dismissed.

The full order can be read – 

http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr/2019/23.html