Logo

uoaq logo

The very expensive balcony....Ainsworth v Albrecht [2016] HCA 40

(by Gary Wilson, member)

The above case, adjudicated on 12 October 2016 has attracted, (not for the first time), a lot of press comment in Queensland. This is because a relatively minor matter of one party wanting to extend a balcony into common property airspace has gone all the way to the High Court of Australia. Reports in the press sensationalise the matter, & report comments from observers, who say the parties cumulatively will have spent about $500,000 seeking to resolve the dispute. I make the observation that had some of this money been expended in other directions, possibly the dispute might have been able to have been resolved. Perhaps not, maybe this became a battle about other things?

Its interesting to the extent that in Body Corporate disputes, almost all participants "fold their cards" at the Administrative Tribunal level,  and it will be possibly a long time before another Body Corporate type case (from anywhere in Australia) will surface at the High Court.

The dispute was about one party (Albrecht) wanting to extend a balcony (in fact join up two balconies). To do this the required a General Meeting vote which had to be carried without dissent, which failed to occur. There is provision in the relevant legislation that an adjudicator can approve the proposal if the opposition was unreasonable in the circumstances.

This provision is in place, presumably, to protect a minority position being thwarted by the tyranny of the majority. Nevertheless I have found this provision somewhat disconcerting because a) if there is some objective standard, why have a vote, b) adjudications that have overturned votes often seem to lack any obvious rationale, (at least to me).

In this case the vote was overturned by the adjudicator as unreasonable, that decision overturned by Queensland Civil and Administrative Tribunal, but then the original decision was upheld by the Court of Appeal of the Supreme Court of Queensland. So obviously determining unreasonableness is not an easy thing!

The High Court said that the adjudicator and the Court of Appeal were completely wrong as they tried to balance the competing interests, and in the end decide who had won the debate. (my words) This was the wrong approach said the High Court, all they had to do was decide if the vote against the proposal was unreasonable, (not to decide if their objection was inferior or superior to the alternate case). The High Court upheld the original vote finding it not unreasonable.

I have alluded to my sense that some of the adjudications I have read have been arbitrarily plucked from the air. This ruling should make it a little harder for adjudicators to over-rule votes. Certainly, the High Court has honed in on what needs to be considered, and more importantly, by default what should not be considered.

The combatants probably have done the Body Corporate world in Queensland a favour, but after a five year legal stoush there is a least one legal team bruised and battered. As for the rest of us, what can we say when great legal minds get it wrong, ... and what would have happened if this matter had terminated at the QLD Court Of Appeal, (who seemed to received a diplomatic reprimand from the High Court in the penultimate paragraph of its judgment).

Maybe you can say the system works, ... if the combatants have the resources to press and defend their positions?