Draper v Body Corporate for Winchcombe Place & Ors [2025] QCATA 66

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Draper v Body Corporate for Winchcombe Place CTS 15441 & Ors [2025] QCATA 66 PARTIES: KATHRYN DRAPER (appellant) v BODY CORPORATE FOR WINCHCOMBE PLACE CTS 15441 (respondent) SUSAN COLLARO (respondent) STEVEN WEEKS (respondent) LEX MCQUEEN (respondent) WENDY MCQUEEN (respondent) PENNY HALL (respondent) LAUREN BARNABY (respondent) GREGORY SOUSTER (respondent) JOANNE SOUSTER (respondent) APPLICATION NO/S: APL112-23 ORIGINATING APPLICATION NO/S: MATTER TYPE: DELIVERED ON: HEARING DATE: HEARD AT: DECISION OF: [2023] QBCCCmr 139 Appeals 26 June 2025 23 January 2025 Further submissions filed 14 May 2025 Brisbane Member Richard Oliver -- 1 of 19 -- 2 ORDERS: The name of the respondent body corporate be amended to Body Corporate for Winchcombe Place CTS 15441. The adjudication decision dated 29 March 2023 is set aside. It is declared that Motion 2 is deemed to have passed without dissent. The parties are to file an agreed draft order to include consequential orders as necessary to give effect to these reasons by 4:00pm on 18 July 2025. CATCHWORDS: REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES AND LIABILITIES – EXCLUSIVE USE – DISPOSITION OF COMMON PROPERTY – RESOLUTION WITHOUT DISSENT – OBJECTION TO RESOLUTION – OBJECTION MUST BE REASONABLE – where appellant is the owner of Lot 4 in the Scheme which is a ground floor unit – where Lot 4 has exclusive use of part of the ground floor terraced area adjacent and contiguous to Lot 4 – where renovation work carried out to Lot 4 and on the exclusive use area without the approval of the Body Corporate – where by resolution the Body Corporate retrospectively approved the renovation work to Lot 4 but not to the exclusive use area – where the appellant sought by Motion 2 at an extraordinary general meeting to amalgamate part of the exclusive use area into Lot 4 – where a Motion for the disposition of common property by a lot owner required to be passed without dissent – where Motion failed to pass without dissent – where appellant sought an adjudication on the grounds that the objections of the dissenting votes were unreasonable – where adjudicator held the objections to Motion 2 were reasonable and the Motion failed to pass – whether the grounds for objection to Motion 2 were reasonable in the circumstances – whether grounds for objection were relevant to and related to the disposition of the exclusive use area. Body Corporate and Community Management Act 1997 (Qld), s 3, s 4, s 94, s 271, s 272, s 289 Ainsworth v Albrecht (Viridian Residences, Noosa) (2016) 261 CLR 167 Allen v Queensland Building and Construction Commission [2024] QCA 24 Body Corporate for Viridian; Kjerulf Ainsworth & Ors v Martin Albrecht & Anor [2014] QCATA 294 Pivovarova v Michelsen [2019] QCA 256 -- 2 of 19 -- 3 APPEARANCES & REPRESENTATION: Appellant: Mr Strangman of counsel instructed by Grace Lawyers Respondents: Mr Walker of counsel instructed by LawSolve REASONS FOR DECISION [1] The appellant is the registered owner of Lot 4 in the Winchcombe Place community management scheme at Teneriffe. Lot 4 is on the ground floor of the apartment building. By-law 43 of the community management scheme allocated Lot 4 the benefit of an exclusive use area which is off and contiguous to the main living area of the lot. The exclusive use area is used as a private terrace/courtyard. It is inaccessible to the other lot owners in the scheme. [2] Lot 4 is one of four (4) ground floor residential units in a separate discrete building as part of the scheme. The floor plan of Lot 4 can be seen on the “plan showing exclusive use areas on level A” (“exclusive use floor plan”) as the hatched area of 141m 2 .1 [3] From about October 2022, the appellant commenced an internal renovation of her lot. As part of that work she sought to incorporate into her lot a small portion of the exclusive use area. At an extraordinary general meeting of the Body Corporate for Winchcombe Place on 27 July 2022, she proposed by Motion 2 that the Body Corporate resolve: To authorise and approve the amalgamation into Lot 4 of approximately 3.8m2 of common property over which Lot 4 is currently granted exclusive use (‘the relevant Area’) as shown on the plans attached and marked “A” (“the Amalgamation’) the exclusive use area (see the rectangular area enclosed by letters A, B, C, D, A); a) The relocation of the boundary of Lot 4, by the installation of glass sliding doors on the new Lot 4 boundary (‘the Boundary Doors’); b) Any works required to the common property for the installation of the Boundary doors, including the demolition and/or removal of the previous sliding doors and masonry …………………………………… [4] Motion 2 failed to pass even though there were 13 votes in favour and 10 votes against with one abstention. For Motion 2 to be successful it must pass without dissent as required by s 184(2) of the Body Corporate and Community Management (Standard Module) Regulation 2020 (Qld) because it involved a disposition of part of the common property.2 Section 184(2) provides: The body corporate may— (a) if authorised by resolution without dissent— (i) sell or otherwise dispose of part of the common property; or [5] The appellant considered that the basis of the negative vote submitted by the dissenting lot owners (“the dissenters”) was unreasonable (by reference to the grounds 1 Appeal Book page 44. 2 There is no dispute that the exclusive use area formed part of the common property. -- 3 of 19 -- 4 of objection), and relied on s 94(2) Body Corporate and Community Title Management Act 1997 (Qld) (‘BCCM Act’) which provides that: The body corporate must act reasonably in anything it does under subsection (1) including making, or not making, a decision for the subsection. [6] The appellant then lodged an Adjudication Application with the Office of the Body Corporate Commissioner challenging the result of Motion 2. The order and/or declaration sought in the application was that Motion 2 was passed without dissent because the opposition to it was, in the circumstances, unreasonable and fell afoul of s 94(2) of the BCCM Act. Therefore the adjudicator should have proceeded under Item 10 of Schedule 5 of the BCCM Act and deemed the Motion to be passed and make the further associated orders. [7] After considering submissions for all relevant parties, on 29 March 2023 the adjudicator dismissed the application. In the reasons for dismissal he considered how s 94(2) was to be applied having regard to the leading case on section 94(2), Ainsworth & Ors v Albrecht & Anor (2016) 261 CLR 167 (“Ainsworth”). Of all the objections to the motion the adjudicator referred to those of three lot owners, Lots 1, 9 and 21 because it was considered these owners made the strongest points,3 noting that if only one lot owner’s dissent was on reasonable grounds the motion must fail. He also referred to Lot 2’s objection about the compensation being offered by the appellant as being insufficient. Having regard to these objections, the adjudicator concluded that the grounds relied on by these lot owners were reasonable, therefore the Body Corporate acted reasonably in not passing the resolution. [8] This is an appeal from that decision. The appeal is brought under s 289 of the BCCM Act. Subsection (2) provides that an appeal to the appeal tribunal can only be on a question of law. [9] This narrows the ambit of the appeal, as the Court of Appeal said in Allen v Queensland Building and Construction Commission4 in relation to an appeal on a question of law: The distinction between an appeal only on a question of law, on the one hand, and an appeal on a question of fact or on a mixed question of fact and law, on the other hand, is absolutely fundamental in the present context. It goes to the jurisdiction of this Court to entertain an appeal from the Appeal Tribunal. An appeal which must be “only on a question of law” is of a narrower ambit than an appeal in which a question of law is merely “involved”. In order to be an appeal which this Court has jurisdiction to hear, the very subject matter of the appeal must be a question of law. [10] The grounds of appeal are generally, that as a matter of law, the adjudicator failed to properly consider and apply the principles articulated in Ainsworth, in particular impermissibly expressing a subjective opinion about the effect of the objections and whether the objection related to the substance of the motion. [11] In considering an appeal, some helpful general observations about the application of s 94(2) can be found in Re Body Corporate for Viridian; Kjerulf Ainsworth & Ors v Martin Albrecht & Anor [2014] QCATA 294. In that case, at [85], Member Roney KC set out a number of matters to consider when determining if lot owners were acting 3 Adjudicators Reasons at [20]. 4 [2024] QCA 24; following Pivovarova v Michelsen [2019] QCA 256. -- 4 of 19 -- 5 reasonably when rejecting a motion. For this appeal, of those matters, the following are relevant because seven of the dissenters did provide written reasons: (c) Where it is possible to ascertain what that reason or explanation was, one should examine insofar as it is known what it was, whether any of the expressed or known bases can be recognised as a reasonable basis. (d) If any for the known bases can be accepted as reasonable, even if there are a number, or even a majority of reasons which are unreasonable, the conduct of the Body Corporate reflected in that expression of will, will nevertheless be reasonable. (f) In cases where all of the grounds of opposition are known and they are unreasonable, or perhaps even as one regularly encounters in Bodies Corporate, perverse or arising out of dysfunctional activity in Bodies Corporate, the conclusion in most cases would inevitably be to conclude that the Body Corporate had acted unreasonably. [12] This is a useful guide to assist in considering whether the objections by the dissenting lot owners are reasonable without having to make findings of fact which would necessarily go beyond that which is strictly a question of law in this appeal. This appeal then involves a consideration of the basis of opposition by the lot owners, as expressed in their written objections and whether, objectively viewed, the objections were reasonable. Further Background [13] The renovation work to Lot 4 involved remodelling the kitchen and living area. To enlarge the living space the appellant sought to include part of her exclusive use area, about 3.8m 2 , by extending the living space into that exclusive use area (“the disputed area”). It is best described by reference to the exclusive use floor plan which shows the wall between the lot and the exclusive use area as a “L” section of the eastern masonry wall. Access to the exclusive use area from the living area of Lot 4 is through sliding glass doors. The change was to remove the existing sliding doors and masonry, and replacing them with new doors, so that the “L” shape goes, and the eastern wall becomes a straight wall.5 By making this change the appellant amalgamates the disputed area into the living space of her lot. [14] The appellant has in fact partially undertaken structural work by the removal of the L shaped wall (which incorporated a sliding glass door) adjacent to the kitchen and replaced it with a sliding glass door as can be seen at page 166 of the hearing book. The floor plan on page 156 of the hearing book shows the original configuration of the lot,6 the subject area being that adjacent to the notation “Patio 13.5m 2 ”. By reference to the plan showing exclusive use areas on Level A (ground floor) only lots 1 – 4 inclusive have a similar configuration, with lot 1 being the same as lot 4. Lots 3 and 4 have different floor plan but have similar exclusive use areas. Lots 11 and 12 do have the same floor plan and those lots have already been re-configured so that there is a straight wall from the living space to the patio. This work was carried out before approval of the disposition of the exclusive use area. This was retrospectively approved on 3 August 2021. 5 Annexure “A” to these reasons is a copy of the exclusive use floor plan with the disputed area marked up in red. 6 Hearing book page 194. -- 5 of 19 -- 6 [15] However, before embarking on the renovation work in the lot and the disputed area, the appellant failed to obtain the consent of the Body Corporate of the scheme, not only to carry out the works within her own lot but more importantly, the disputed area (being common property, albeit exclusive use). She also failed to obtain agreement, without dissent, to amalgamate the disputed area into lot 4. [16] At an extraordinary general meeting of the Body Corporate on 3 August 2021, the meeting, by resolution, retrospectively approved the renovation works carried out by the appellant to her lot and in the disputed area (acknowledging it is common property) in accordance with plans and specifications produced by her. That is the removal of the “L” shaped wall and replace it with a straight wall. The motion passed with a majority of 17 votes in favour and 10 against. [17] One of the dissenting parties to that vote, took issue with the validity of the resolution because it clearly involved the disposal of common property and had not passed without dissent to be a valid resolution. Thus, the issue was referred to the Office of the Commissioner for Body Corporate and Community Management (“BCCM”). On 22 February 2022 an adjudicator made an order that the motion approving the works, including incorporating the disputed area into the Lot 4, was void because it was not passed without dissent. It was further ordered that: …unless the second respondents (the appellant) obtains from the body corporate, by resolution without dissent, approval to extend a portion of the exterior wall approximately 0.8 meters into the exclusive use area, the second respondent (the appellant) is to reinstate the boundary of lot 4 including the masonry wall and glass stacker doors, within 6 months of the date of this order.7 [18] Pursuant to the adjudicator’s order, the Body Corporate convened another EGM on 27 July 2022. At that meeting Motion 2 sought approval for the amalgamation of the disputed area into Lot 4 on the terms set out in the motion referred to above. These terms include a number of machinery provisions, including provision of plans and specifications and amendments to the Scheme to be paid for by the appellant. Also, the appellant had proposed to pay $20,000.00 to the Body Corporate by way of compensation for the acquisition of the disputed area. [19] The Motion failed to pass without dissent. There were 13 votes in favour with 10 votes against. Of the dissenting votes, only seven lot owners submitted written reasons why they objected to the Motion. [20] A further Motion 3 was also put to the meeting, being the approval of the internal renovations work undertaken to Lot 4 and the improvements made to the exclusive use area (other than those the subject of Motion 2) including the installation of frameless glass doors installed on the exclusive use patio area adjacent to the lounge room. This motion passed. [21] The appellant then lodged the Adjudication Application with the BCCM on 16 August 2022 seeking orders and declarations that the Motion 2 had passed without dissent because the objections to the motion were unreasonable and should not be taken into account. The adjudicator dismissed the application. The Adjudicator’s reasoning [22] Turning then to reasons for the adjudicator’s decision of 29 March 2023, he correctly identified his function in determining this dispute at [15] of his reasons. That is 7 Winchcombe Place [2022] QBCCMCmr 67 (“adjudicator’s reasons”). -- 6 of 19 -- 7 whether a resolution by the lot owners in relation to their property rights could be overridden under s 276 and Item 10 of Sch 5 of the BCCM Act. In deciding that question he had to consider the quality of the grounds of opposition of each dissenting lot owner, not the reasonableness of the decision of the Body Corporate.8 He ultimately concluded that the objections to Motion 2 were reasonable. [23] Although there were seven dissenting lot owners who had submitted written objections, the adjudicator decided to address the reasons of what he considered to be the three strongest cases.9 In doing so he had regard to various comments made in Ainsworth and how they applied to the factual background giving rise to Motion 2. It should be noted that there was no factual dispute as to history of the work undertaken by the appellant. Also that disposition of common property required the passing of a resolution to that effect without dissent. [24] Importantly, the substance of Motion 2 was the amalgamation of the disputed area into Lot 4. That involved, obviously, a disposition of a small part of the common property even though the appellant had exclusive use of it. Therefore it is the disposition issue, or loss of common property, to which the objection must relate and be relevant. [25] With that in mind, it is necessary to consider the substance of Lot 1’s objection. As recorded in the reasons10 it is as follows: Furthermore, many lot owners, including ourselves, have been through renovations and followed all applicable legislation and body corporate by-laws. We feel that it is critical that this is upheld that there is no risk of precedent, which would ultimately allow a lot owner to do what they wish, and put the whole scheme at a legal, financial and potential safety risk… e.g. removal of walls and other structural features without proper engineering assessment and approvals. If By-laws require updating, this should occur prior to renovations, including purchase of land, or as a minimum applied for with the original application.11 [26] It is apparent from this complaint that it relates the manner in which the appellant has sought to acquire the disputed area, that is doing work and seeking retrospective approval. It raises concerns about lot owners undertaking renovations without first complying with the by-laws of the Scheme and obtaining the approval of the body corporate. Concern was also raised that going about it this way could create a precedent which would disadvantage other lot owners. That is, a lot owner could simply go ahead with structural renovation work and, after the horse had bolted as it were, seek retrospective approval (as happened here). In addition it was contended that such a course could put “the whole scheme at a legal, financial and potentially safety risk” in addressing such an issue. [27] The adjudicator considered there was “logic to this view” because it may encourage lot owners to “strategically undertake unauthorised works” which would be difficult to undo. Adopting the objection of Lot 1, he accepted that sympathetic lot owners may feel that they then have to approve the works retrospectively.12 On the basis of this reasoning, the adjudicator found that the objection raised by Lot 1 was reasonable. 8 Ainsworth [47]. 9 These are the objections from Lots 1, 9 and 21. 10 Appeal Book page 498. 11 Adjudicators reasons [21]. 12 Ibid [22]. -- 7 of 19 -- 8 [28] The objection from Lot 21, as recorded in the reasons, was of a similar nature:13 In general, I have concerns as to the precedence of taking common property by an owner without proper approvals, and against the CTS scheme. It is concerning and raises the question of the ability of other owners, totalling 34 units, to be afforded the equal opportunity to obtain common property, due to the approved footprint and structure of the building. [29] The adjudicator read this objection as Lot 21 not wishing to “give up their and other owners’ interest in common property”. However, that is not what the objection says. The objection does not articulate a reason for opposition to Lot 4 acquiring the disputed area but rather a general objection to acquiring common property without obtaining “proper approvals” first. This is consistent with the rest of Lot 21’s four page objection. The very purpose of Motion 2 was to obtain the Body Corporate’s (lot owner’s) approval to “dispose” of the disputed area to Lot 4 before proceeding further with any renovations works. [30] The adjudicator accepted this objection as being reasonable. [31] The objection of Lot 9 was also general.14 The owner asserted, as recorded in the reasons, that his opposition to the Motion was “not unreasonable”. When matters [sic] affecting the building appearance and fabric, and also involve the resumption of common property are submitted to the community for consideration, I vote on the merit of the application. In this case, I believe these works set a precedent that is unhelpful for the future of the building. [32] This objection is in a similar vein as that of Lot 2 but did make reference to the loss of the disputed area impacting the “building appearance and fabric”. However, the objections did not specify how, or in what way, the building was impacted. There is no evidence of this, such as photographs or, like in Ainsworth, special design features. There was also a concern that the compensation offered was not enough and further, it should have been offered to the remaining lot owners and not the Body Corporate. Leaving aside the reasonableness of the offer of $20,000.00, the adjudicator did not consider, that in view of his findings, it was unnecessary to decide this point. [33] The adjudicator referred to comments made in Ainsworth about disposal of common property at [28] of the reasons: The appellant wishes to make something of the comment in Ainsworth that opposing a proposal that could not, on any rational view, adversely affect the material enjoyment of opponents property rights may be unreasonable. In this case there is an adverse effect: the other owners would no longer have an interest in the disputed area. The court in Ainsworth had said as much, as is shown in an extract above: it is an error to conclude that it is unreasonable to object to a proposed transfer of common property which was of no use to anyone but the proponent. Accordingly, I do not see that the argument assists the appellant.15 [34] The reference to the disputed area in Ainsworth was open space between two balconies on the same lot. The open space was common property which the appellant sought to acquire from the body corporate to join the balconies. The effect of this would be to build in between them, making one balcony, thereby utilizing the common property, being the air space. In reliance on this, the adjudicator rightly found that if Motion 2 13 Ibid [24]. 14 Bearing in mind that the objections were not drafted by lawyers. 15 Adjudicator’s reasons [26]. -- 8 of 19 -- 9 passed the other owners would not have an interest in the disputed area. As matters presently stand, although technically the other lot owners have an interest in the disputed area, the appellant has exclusive use to use it as she sees fit. Here the interest is not on an equal footing with that in Ainsworth. In any event, this was not the dissenter’s complaint. They did not claim any specific interest in the disputed area. [35] The adjudicator also said he detected some ill feeling between the lot owners towards the appellant. He had regard to what the High Court observed in Ainsworth that if that was the reason for their vote, it may be unreasonable. However, the adjudicator found that because there was reliance only on the parties written submissions, that was not sufficient to find on balance any animosity, if it existed, which led to the rejection of the motion. Again, leaving aside the question of whether there was ill feeling or animosity, because the substance of the objections related to the failure to obtain approvals and compliance with by-laws, that does leave open a finding that the negative vote may have been prompted by antagonism towards the appellant for that reason. However, for such a point to succeed, such a finding would have to be made against all seven objectors. [36] On the basis of the objections articulated that the three lot owners, which the adjudicator took as meaning that they would no longer have an interest in the disputed area, he found the objections were reasonable and the application was dismissed. Grounds of appeal [37] The appellant’s written submissions, prepared by counsel, recognises that the adjudicators decision can only be set aside if there was an error of law. The error relied upon is that the objections raised by the dissenters were objectively unreasonable and when considering the adjudicator’s reasons, the adjudicator failed to adopt the test of reasonableness as articulated by Nettle J in Ainsworth at [101]: Nor is reasonableness 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 at the time of rejection of the defeated motion taking into account all relevant factors including factors which were extant but which the parties may not have identified or appreciated at the time, as is implied by the words “in the circumstances” appearing in Item 10 of Sch 5 to the BCCM act. Item 10 of Sch 5 is not to be read as if it contained the words “in the opinion of the adjudicator”, nor as if it otherwise threw the determination of what is unreasonable upon the subjective and unexaminable opinion of an adjudicator. Evidently, the BCCM Act so values the interest of lot owners in common property unanimity, subject only to proven unreasonableness, it conditions the disposition of the common property upon unanimity. It would require terms much different from and clearer than those in Item 10 of Sch 5 to substitute adjudicative discretion for a lot owner’s objectively not unreasonable exercise of self-interest. (footnotes omitted) [38] It is on this footing16 that the appellant contends, by reference to specific paragraphs of the adjudicator’s reasons, that the findings of reasonableness was not open by reference to the substance of Motion 2, and the specific complaints therefore constituted an error of law. In other words, the objections raised as to the disposition 16 And what the plurality said [54]–[63]. -- 9 of 19 -- 10 of the common property established proven unreasonableness because they, firstly; related to the failure to follow the proper processes under the by-laws to obtain necessary building approvals to build in the disputed area, and secondly; did not address a reasonable basis for not wanting to relinquish their interest in the disputed area. [39] For the purposes of this appeal I will only address the substantive grounds of appeal. [40] Both appeal grounds 1 and 2 are general grounds of appeal incorporating the balance grounds. Ground 3 [41] This ground of appeal relates to the adjudicator’s reasons in paragraphs [21]–[23] which considers the objection of Lot 1. The substance of this ground of appeal concerns: (a) What is submitted as the substituted subjective opinion that there is logic to the view that, by reference to the comments in relation to the objection of Lot 1 that by allowing retrospective approvals, this would create a precedent that the acquisition of common property is readily achieved. (b) A further subjective opinion not raised by the dissenters, that the general complaint about legal, financial or safety risks with work may crystallise in a future case where works proceed without approval. I would observe here that it is difficult to see how this is a subjective opinion, because it simply follows from what Nettle J, in Ainsworth at [107], saw as the consequences of setting a precedent which could generate adverse impacts. (c) The adjudicator’s failure to take into account that the dissenters did not object at the EGM held on 3 August 2021 to granting retrospective approval to Lots 11 and 12 to acquire common property (22 years earlier) or pay compensation. [42] Before considering this ground it is necessary to record, again, that by Motion 3, the renovation works for Lot 4, had been retrospectively approved except for any works that had occurred in the disputed area. Motion 2 did not seek ratification of any approved or unapproved renovation work in the disputed area. What the Motion sought was to amalgamate part of the common property, 3.8m 2 into Lot 4. [43] It is certainly the case that the background to Motion 2 was the carrying out of some renovation works in the disputed area, e.g. removal of the nib corner wall. The fact of the carrying out of that work, without approval, was relevant to the precedent issue. What is more relevant for the purposes of considering Motion 2 is any reasonable objection by lot owners to the disposition of the disputed area, not what had occurred up to the consideration of the Motion. In other words, was there any reasonable objection as to why the disputed area, over which the appellant had exclusive use, should not now be amalgamated into Lot 4. That seems to be what should be the focus of this appeal. [44] In support of ground 3, the appellant submitted that with respect to Lot 1’s objection the adjudicator self-postulated the concern expressed by Lot 1 by saying that firstly, there was “logic to that view” expressed in the objection; and secondly, that “giving retrospective approval for unauthorised actions might encourage others to strategically undertake unauthorised works which would be difficult or expensive to undo”. Although that might be a reasonable inference to draw from the wording of the -- 10 of 19 -- 11 objection, it is submitted the conclusion goes beyond the substance of the objections by Lot 1 and Lot 21. [45] The complaint is that no lot owner raised this specific objection relating to the acquisition of the disputed area after undertaking unauthorised work. Therefore, by doing this, the appellant submits, that the adjudicator has impermissibly attempted to replace or substitute his own subjective opinion as to the effect of approving the motion, and not consider the actual substance of the motion. It is submitted that to do so offends what was said in Ainsworth at [101], referred to above. [46] The respondents submits that the adjudicator did not self-postulate the concern expressed by Lot 1. The comments of the adjudicator are a summation of the consequences of Lot 1’s objection with respect to the risks to the Body Corporate of unauthorised renovation work. There is no basis, nor is it permissible in the appeal, to interfere with the adjudicator’s findings of fact, if it can be described as such, as to the consequence of unapproved building work. Once again, this is what Nettle J was referring to at [107]. [47] However, when considering the substance of the objection of Lot 1, it is an objection to the fact that the appellant undertook unapproved renovation work in both her Lot and the disputed area, by not following “all applicable legislation and body corporate by-laws”. Because of the failure to get approvals for that work first, Lot 1 now objects to her acquiring the disputed area, even though Motion 3 approved the work to her lot retrospectively. That is because a vote in favour of the disposition would mean that there would be a “risk of precedent which would allow a lot owner to do what they wish”, that is unauthorised building work, then seek retrospective approval. [48] In considering this objection about the risk of precedent of unauthorised work, the adjudicator when suggesting that it may encourage others to strategically undertake unauthorised work, was simply addressing some of the obvious consequences of retrospectively approving unauthorised renovation work. The statement is consistent with the substance of the objection, but the question remains is that a reasonable objection as to why the lot owners should not vote in favour of Motion 2 being the acquisition of the common property. I cannot see that this is a reliance on his own subjective opinion about Motion 2. [49] I make a similar observation about the second point in ground 3 that adjudicators comments about the Lot 1’s concerns may crystalise in the future. The adjudicator is merely articulating, by this hypothetical observation, an obvious consequence of setting any precedent of the retrospective approval of unauthorised work. [50] As required by Item 10 of Sch 5 the reasons for dissent must be considered “in all the circumstances”. Although these objections are not specific to the disposal of the disputed area but rather the future consequences of carrying out unauthorised work, they are directed at the precedent consequences of retrospective approval. It is the unauthorised work that is the subject matter relating to “precedent” in the objection. [51] The objection to Motion 2 does not identify any specific reason for not wanting to dispose of, or give up, the disputed area, or any disadvantage or loss caused to the owners, or the Body Corporate, of the disposition of the disputed area. It does not even go so far as to say that Lot 1 “values the interest” in the disputed area and does not want to give it up. It is also difficult to see how such an objection could be reasonable, when Lot 4 already has exclusive use of the area, unlike in Ainsworth -- 11 of 19 -- 12 where only common property was the subject of the disposition.17 The objection is confined to the process by which the appellant has sought to acquire the common property and the consequences of that process. That is by failing to get approval before embarking on the renovation work. This is exemplified by the removal of the “nib” wall,18 which then strengthens the sympathetic vote for retrospective approval. [52] As to the third point in ground 3, that is the retrospective approval for Lots 11 and 12 to acquire common property at the EGM on 3 August 2021. The submission is that if it was reasonable for the dissenters to pass this motion without dissent, it is disingenuous and unreasonable for them to oppose Motion 2. It is submitted that the adjudicator erred in law in not taking this into account. The fact the adjudicator did not take this into account is not particularly concerning if he was satisfied, as he was, that there were already reasonable grounds for dissent. In any event, as the appellant submitted each case has to be considered on its own merits. This point can only be really relevant to the strength of the precedent argument. [53] Subject to a consideration of the precedent argument, which will be addressed below, I have come to the view that the objection of Lot 1 was not reasonable because it did not focus on a reasonable basis to object to the substance of Motion 2. Rather it focused on the conduct of the appellant in the way the unauthorised renovation work was carried out and therefore because of that the disputed area should not be amalgamated into her lot. In a sense the objection was a response to the appellant’s failures in the way she undertook the renovation work. Ground 4 [54] This ground of appeal relates to the adjudicator’s reasons in paragraphs [24]–[25]. Here the adjudicator found that “another reason for dissenting is that some dissenters do not wish to give up their and other owner’s interest in the common property”. He relies on the objections of Lot 21 and Lot 9, set out above, in support of this finding. The appellant submits that it was not reasonable that Lots 9 and 21 did not want to give up their interest (and that of other lot owners) despite being offered adequate compensation. [55] The appellant accepts that a lot owner not wanting to give up part of the common property to another lot owner can be a reasonable objection if some good reason for not doing so is advanced.19 However, she submits that a simple refusal without more is not reasonable. That is particularly so where the appellant has exclusive use of the disputed use area. In other words, it must be coupled with something more, such as adequate compensation. There are obviously many other bases upon which an owner might not want to give up common property, e.g. a change to the appearance of the building, some use is made of the common property, it could devalue the lot owners interest in the scheme, it may interfere with privacy and many others. Here the contention is that appellant relies on the offer of reasonable compensation to the other lot owners through the Body Corporate. [56] Before dealing with this point further, I would observe that when the written objections from Lot 9 and Lot 2120 are considered, there is no specific mention by them of not wanting to give up their interest in the disputed area. Lot 9 is critical of 17 Ainsworth [6] 18 Some dissenters raised concerns about whether this is structural or not. 19 Ainsworth [62]. 20 Appeal Book pages 451 and 443. -- 12 of 19 -- 13 the lack of approval process and non-compliance by the appellant of by-law 18.1 and 18.5. These by-laws set out the procedures for alterations to both the common property and individual lots. [57] Lot 21 adopted a similar basis for objections as that of Lot 1. That is concerns about the “precedence of taking common property by an owner without proper approvals, and against the CTS scheme”. The objection then goes on to question the other owners being given an equal opportunity to obtain common property. This second point seems to ignore the fact that each and every lot owner has the right to seek the approval, by resolution without dissent, to acquire common property. [58] These two objections do not address a reasonable basis to object to the substance of Motion 2 other than from a precedent aspect. The first relates to the failure to get approvals for prior building work and the second could not be said to be reasonable simply because every lot owner has an equal opportunity to acquire common property under the by-laws. [59] As for Lot 9’s specific objection, simply asserting that one’s vote is not unreasonable, does not render it reasonable. Having said that, in Lot 9’s written objection she did go into considerable detail about the appellant failing to obtain approvals for the building work or comply with by-laws. Again, the substance of the objection is “these works set a precedent”. The substance of the objection is the unauthorised works the same as the objections of Lot 1 and also in part of Lot 21. The fact of previous unauthorised building work, could only be a reasonable bar for opposing the motion if it sets a precedent for other lot owners to adopt a similar method to acquire common property. [60] The respondents submits that the objections of Lots 9 and 21 were reasonable to consider, even though these objections do not address a specific and reasonable basis for not agreeing to the disposition of this exclusive use area to the appellant. In short, what they are saying is that because the appellant did not get approvals for the building work first, she should not be entitled to acquire the disputed area. In a sense, because the appellant already has exclusive use of the disputed area, all the objections in so far as they relate to the unauthorised work and failure to get approvals might be seen as a protest to remind other lot owners not to ignore the procedures under the by-laws to acquire common property. [61] The respondents submits that the objections do address the acquisition of common property and rely on what the plurality said in Ainsworth at [62]: A person with a property interest may reasonably insist on conserving that interest even if it is not presently being employed to that person’s material advantage. [62] Because of this statement, the respondents submit, it was not open to the adjudicator to find the objection was not reasonable. However, the statement is qualified by the words “reasonably insist” which obviously raises a question of reasonableness to which Item 10 of Sch 5 applied. Also, the disputed area could never be employed to another lot owner’s reasonable advantage. [63] Returning then to the opposition to Motion 2 on the basis that the dissenters do not want to give up their interest in the disputed area, as found by the adjudicator, the appellant relies on the rejected offer of reasonable compensation which then, she submits, renders the objections unreasonable. -- 13 of 19 -- 14 [64] In respect of the statement in Ainsworth in [61] above the appellant submits that even though there was an offer of compensation, it could not objectively be said there was any adverse effect upon the material enjoyment of the dissenters property rights. Reference is made to various passages of Ainsworth21 in support. In particular that the unreasonableness of opposition to a proposal to acquire common property must be considered in all the circumstances and its likely effect on the dissenters property interests. Also that opposition to a proposal that could not, on any rational view, adversely affect the material enjoyment of an opponent’s property rights may be seen to be unreasonable. [65] The principle opposition of each of the dissenters who made submissions22 was because the appellant did not get all the necessary approvals and comply with the by- laws before carrying out renovation work in her lot and the disputed area. Lot 21 also raised the question of inadequate compensation offered. Apart from a generalised statement by Lot 9 as to the change of appearance by the removal of the nib wall, there was no objection as to how the loss of the exclusive use area would adversely affect the material enjoyment of the dissenters rights over the disputed area. What the objections came down to was the setting of a precedent. [66] The adjudicator, in concluding that the objectors did not want to give up their interest in the disputed area did so in reliance on their objections to the process rather than identifying any reasonable basis for the retention of the disputed area as common property. In concluding this was reasonable was an error. Ground 5 [67] This ground of appeal relates to the adjudicator’s reasons in paragraphs [26]–[29]. In these paragraphs the adjudicator considered the issue of compensation and methodologies of calculating compensation. This is a reference to Lot 2’s contention that the compensation offered was insufficient. Therefore, the question is whether the objection on this basis was reasonable. [68] The appellant contends the adjudicator did not make any findings about the adequacy of the compensation offered to determine if it was reasonable. Then, he injected his own subjective opinion about the manner in which the compensation for the loss of the disputed area might be calculated by referring to the fact that there may be different methodologies to valuing the loss of the disputed area, and experts may reasonably differ as to which methodology is preferable. [69] The complaint is that the only evidence before the adjudicator about the compensation was the report of Acumentis dated 19 April 2022.23 The valuer, Mr Andrew Mullins valued the additional floor area (disputed area) at $20,000.00. That is it would add that sum to the value of the lot. [70] In the submission of Lot 2 an argument is put forward by the solicitors acting for Lot 2 that the allowance of $20,000.00 is insufficient. Various contentions are put forward why this is so. These include: that the complex is in a prime suburb close to the city, compensation should be assessed on the traditional basis of a willing seller and a willing buyer, by increasing the value of the appellant’s lot would necessarily decrease the value of the balance lots, the fact that the disputed area is exclusive area is irrelevant, consideration of the complex’s highest and best use and that the 21 [55], [59], [60]–[64]. 22 Lots 1, 2, 8, 9, 12, 15, and 21. 23 Appeal Book page 165. -- 14 of 19 -- 15 compensation should be paid to the lot owners and not the Body Corporate. There are references to the passages in Ainsworth ([61]–[62]) to support the contentions. Therefore it is argued that the objection on the insufficiency of compensation is reasonable. [71] There are two issues about this submission. Firstly, it is just that, a submission and not evidence. The submission is unsupported by any expert evidence or any evidence at all, as to the applicability of any of the usual criteria generally relied on in valuation evidence. Secondly, the submission was put to Mr Mullins for comment.24 He reaffirmed his view that his approach was the most practical and economical based on sales data. The Acumentis reports are the only probative evidence both before the adjudicator and this Tribunal as to what might be reasonable compensation for the loss of the disputed area. [72] Although the adjudicator was in receipt of Lot 2’s submission on the methodology of valuation, the only evidence on the method of valuation and value was that of Mr Mullins. Therefore any comment about methodology in the face of that evidence was irrelevant. [73] Further of some relevance, is that in an Explanatory Memorandum in respect of compensation the Committee of the Body Corporate accepted the calculation by the Strata managers of $16,722.09 for the disputed area. [74] The respondents submit that the adjudicator did not have to find whether the compensation was adequate or sufficient because to do so would put him into a position of arbiter of the lot owner’s opinion. Further it was reasonable for him to consider Lot 2’s submission and considerations about, inter alia, willing seller and willing buyer when no such a situation could exist in the circumstances of this case, etc. Therefore, no alternate valuation by the Body Corporate was necessary. [75] What the respondents’ submission fails to grasp is not whether the compensation was adequate or sufficient but more importantly, in the face of the valuation by Mr Mullins, and in the absence of any evidence to the contrary, whether the objection on the basis of inadequate compensation was reasonable. Simply making an assertion which contradicts evidence from an expert as to the adequacy of compensation offered could not be said to be reasonable. [76] In any event the adjudicator did not make any findings about the adequacy of otherwise about the compensation offered. There was certainly a discussion about it, and indeed he said it may have been generous, but did not grapple with the real issue that is the reasonableness of the objection. Perhaps given his comments in [28] he considered it unnecessary. [77] The only conclusion open on the evidence was that the compensation was reasonable, and I find so in the absence any other probative evidence about compensation . This is not disturbing a finding of fact because of the absence of any such finding by the adjudicator. The question of compensation is relevant when considering whether the lot owners are being asked to give up their interest in the disputed area for “no return to the body corporate or other lot owners”.25 An offer of compensation was made and the adjudicator was in error in not finding there was adequate compensation. In the circumstance to contend there was not, by the lot owners, was unreasonable. 24 Acumentis Further Report dated 25 January 2023. Appeal Book page 544. 25 Ainsworth [55]. -- 15 of 19 -- 16 Ground 6 [78] This ground relates to [30] of the reasons which addresses the “floodgates” argument. In respect of this issue the adjudicator considered the objections of Lots 9 and 21 and said: Perhaps they do not want their own slice of common property, but nonetheless it is a reasonable concern that a transfer a common property in this case may open the floodgates to similar proposals from other owners, which would likely have substantially stronger prospects of success if the appellant in this case succeeds. Given the comments in Ainsworth about the floodgates argument, extracted above, I'm not satisfied that it is an unreasonable basis for dissent. [79] Insofar as there is concern of setting the type of precedent referred to by Nettle J in Ainsworth at [107], (the floodgates argument) the circumstances here are quite different. In Ainsworth there were a number of lots with the same configuration and “it was unreal to suppose that, if his proposal was approved, there would not then be others seeking to make similar deck modifications”. The proposed modifications were even promoted by Mr Ainsworth to other lot owners. [80] Whereas in Ainsworth there were 23 identical lots, here there is only one other lot with a similar configuration, Lot 1.26 Therefore, even though any lot owner can, by following the proper procedures, acquire common property, there will not be multiple applications to the Body Corporate because of the limited number of lots. Even so, it is easy to see how this case might be seen as a precedent but its application in the circumstances of this scheme is limited. Further, there has been no evidence put before the adjudicator about how the floodgates argument would apply to this scheme. [81] The precedent argument put by the dissenters related to the ratification of unapproved building work rather than the future acquisition of common property. Lot 2’s objection raised this only in an oblique way by saying “taking common property without proper approvals”. The objection essentially related to the retrospective approval process which the adjudicator then described how it could impact future resolutions which may or may not include the acquisition of common property. To this extent the objection was not confined to the latter issue. [82] Lot 9 simply said “these works set a precedent”, again not referring to the acquisition of the disputed area. Also, unlike the applicant in Ainsworth, here Lot 2 has exclusive use of the disputed area, although that is not decisive, but it does limit any legitimate complaint to the loss of an interest in the disputed area as it is configured. The applicant’s exclusive use of the disputed area will not change in the future, save for exceptional circumstances, nor will it impact the other lot’s owner’s interest in the common property [83] The adjudicator was in error in finding that the dissenters reliance on the precedent argument in the circumstances of this vote was reasonable. Further Submissions [84] In considering this appeal I was concerned that the parties submissions did not directly address whether the failure to obtain necessary approvals in carrying out the renovation work was a reasonable basis to oppose Motion 2. To ensure procedural 26 Although the floor plan of Lots 3 & 4 may lend themselves to a similar adjustment. -- 16 of 19 -- 17 fairness I made directions for the filing of further submissions directly addressing this issue. [85] On 14 May 2025 further submissions were filed by the solicitors for the appellant, prepared by counsel, and the solicitors for the Body Corporate, also settled by counsel. Further submissions were received from some individual lot owners namely, Susan Collaro (lot 9), Penny Hall and Lauren Barnarby (lot 1) and the McQueens (lot 2) and Steven Weeks (lot 21). [86] The submissions from the lot owners went much further than responding to Direction 6 which solely related to how the failure to obtain approvals related to the objection to the disposition of the common property. In so far as this occurred and there was reliance on new issues and factual matters to justify the objections, I do not have regard to that because I can only decide this appeal on a question of law having regard to the material put before the adjudicator and the reasoning for his decision. [87] I would also observe, having regard to the objection by the appellant as to the receipt of these submission, that none of these lot owners actively participated in the appeal but seemed to be content to let the lawyers for the Body Corporate to conduct the appeal. That does not disqualify them from making the further submission but it is not an opportunity to argue a case they might have put at the hearing of the appeal or filed submissions in accordance with the directions made by the Tribunal leading up to the hearing of the appeal. Discussion [88] In considering this appeal concerning the disposition of part of Body Corporate’s common property, over which the appellant has exclusive use, it is of assistance to have regard to what plurality said in Ainsworth at [55]: It is no light thing to conclude that opposition by a lot owner to a resolution is unreasonable where adoption of the resolution will have the effect of: appropriating part of the common property to the exclusive use of the owner of another lot, for no return to the body corporate or the other lot owners; altering the features of the common property which exhibited at the time an objecting lot owner acquired his or her lot; and potentially creating a risk of interference with the tranquilly or privacy of an objecting lot owner. [89] In the submissions to the adjudicator the dissenters did not identify any reasons as to how the loss of the disputed area could affect their material enjoyment of any of the dissenters common property rights in the disputed area. Because of the appellant’s exclusive use it is difficult to see how they could. Even having regard to the comment about the building appearance and fabric, there were no particulars or detail as to how the change materially impacted the building, again unlike in Ainsworth. [90] Not only was there a lack of reasoning specific to the loss of the disputed area, but also reasonable compensation had been offered to all lot owners. The adjudicator was in error in not giving consideration to the only evidence about the amount of compensation and its adequacy in exchange for the disposition of the common property. [91] That then leaves the precedent argument which is the central theme of the objections. Again, the reasonableness of this objection must be considered in the circumstances of the motion before the EGM. Because of the limited number of lots that might adopt a similar approach, and in the absence of any substantive reasonable objection to -- 17 of 19 -- 18 Motion 2, the precedent argument carries little weight in the circumstances of this case. Also, it related to undertaking work without the necessary approvals. [92] The conclusion the adjudicator should have come to is that there was no reasonable basis for the negative vote to Motion 2. I therefore propose to set aside the adjudication. The Balance written objections [93] Rather than send the appeal back for further consideration by the adjudicator, s 294 of the BCCM Act permits the tribunal to “exercise all the jurisdiction and powers of an adjudicator under this Act”. I therefore propose to consider the balance of the objections to determine if any of those objections support the dissenting vote for Motion 2. [94] The objection of Lot 8 does not address the substance of Motion 2. The owners are critical of the appellant in carrying out the work, in particular they raise concerns about the structural integrity of the nib wall. They are also critical of the appellant’s attempts to override the earlier adjudication order and the cost to the Body Corporate. However they do not proffer a reason for wanting to retain the disputed area. [95] Lot 12’s objection explained that the failure to obtain the necessary approvals was an attempt by the appellant to take community land without approvals. The objection does not address the substance of the motion. [96] The objection of Lot 15 was critical of the appellant because, as she had held the position of Chairperson or Secretary of the Body Corporate for many years she was aware of the correct procedures to undertake building work in her lot and to undertake any work to the common area. The failure to abide these procedures was the reason he voted against the motion. Her objection did not address the substance of Motion 12. Summary [97] The objections to Motion 2 relied upon by the dissenters did not impact their property rights in the disputed area. They were based on the appellant’s failure to abide the Body Corporate by-laws and obtain the necessary approvals before undertaking the renovation work in both Lot 4 and the disputed area. The adjudicator was in error in transposing this to an objection going to the loss of their interest in the common area. [98] The reasonableness of the objections can be tested this way. Assume the appellant had not already undertaken any of the renovation works and had started the process from scratch. Her first step was to put forward a motion to the Body Corporate at a General Meeting to amalgamate that part of disputed area into Lot 4. Leaving aside any objection to undertaking the work without approval, there is nothing in the objections which could be said to be a reasonable objection to that proposal. Even the precedent issue is concerned with the floodgates consequences of doing renovation work without the appropriate approvals. [99] As to the precedent effect, although this can be a reasonable objection it must be considered not only having regard to the circumstances of the particular disposition but also to impact to the particular scheme. In other words, just asserting the “precedent effect” will not necessarily be a reasonable objection. In this case, having regard to configuration of the lots, the “floodgates” consequences are virtually non- -- 18 of 19 -- 19 existent. The adjudicator was in error in concluding precedent effect was a reasonable basis for the dissenting vote. [100] I have come to the conclusion the adjudicator made an error of law in concluding that the basis of the objections to Motion 2 were reasonable. Therefore, the adjudication decision of 29 March 2025 is set aside. There will be an order to that effect and declaring that Motion 2 was passed without dissent. There are mechanical orders to be made consequential to the passing of Motion 2. I propose to direct that the parties file a draft order to include any further orders to give full effect to these reasons. -- 19 of 19 --