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Litigation results summaries

Specialist adjudicator / expert determination

Building Acting for Brief summary
Nexus Towers Body Corporate We successfully argued that a residential body corporate is able to recover its costs in on-supplying bulk electricity to a commercial scheme in the same building.
Reflection Tower Two Body Corporate We successfully argued that a residential body corporate is able to recoup specific costs on a user-pays basis from a retail body corporate where the residential body corporate supplies power to all common areas in the building. 

 

Body Corporate Commissioner’s office

Building Acting for Brief summary
Frisco Lot owner We successfully argued that 14 votes against our client’s motion were cast unreasonably. We were involved in setting the strategy from the start and we wrote about it here
Pulse Resident manager We achieved a first – an order that a body corporate had acted unreasonably in imposing conditions on an assignment.
Pulse Resident manager We achieved an order that a body corporate conditioning an approval of an assignment to seek payments for non caretaking services was unlawful. Our client was granted a $13,200 refund.
Kensington Gate Resident manager A body corporate deducted what it argued were services it had to provide from our clients caretaking remuneration. We achieved an order that the deduction was unlawful and our client obtained a full refund.
Tennyson Reach Body corporate We achieved an order allowing $1 million of urgent spending in less than 24 hours notice after the 2011 Brisbane floods.
Seacrest Lot owner A very satisfying win where a body corporate committee tried all sorts of tricks to prevent our clients from keeping their pet galah (Joe the Galah) in their lot. 
Moroccan Body Corporate We successfully defended a wide-ranging application by a caretaker to seek its reappointment as well as allege that the Body Corporate failed to properly maintain, administer, manage or control the common property.
Miriwinni Mews Body Corporate We successfully achieved an order that a lot owner, who had installed an improvement which encroached on common property, must remove the encroachment. We further successfully argued that the Body Corporate’s refusal of an application by a lot owner to have exclusive use of the area of common property the subject of the encroachment was reasonable.

Victoria Towers

Resident Manager We successfully defended an Application lodged by a lot owner alleging the Resident Manager was committing a fraud on the minority. In this case the Resident Manager owned a majority of the lots and was able to succeed in or knock down any motion put to general meeting. The Application was dismissed in its entirety. 
Winchcombe Carson Body Corporate We successfully defended an application from a lot owner that the Body Corporate’s measures to stop water entering the building were indeed reasonable. The Applicant argued that the mitigation measures devalued their lot. The Adjudicator instead found that the Body Corporate had acted reasonably to maintain the common property and prevent water ingress to the building.
No 9 Port Douglas Road Body Corporate We successfully defended an appeal by a caretaker who argued that the Body Corporate was complicit in the caretaker suffering loss as a result of various breaches of its caretaking agreement (including a failure to maintain a current letting licence). The appeal was dismissed with costs on the basis that the Body Corporate acted reasonably and had no part in the loss suffered by the caretaker.
The Point Coolum Beach Body Corporate We successfully defended an adjudication brought by a lot owner in relation to the liability to pay an insurance excess related to an insurance claim on the body corporate’s insurance for an incident which affected only one lot. It was held that the Body Corporate’s requirement for that lot owner to pay the excess was reasonable in the circumstances.
11 Joseph Street Lot Owner We were wholly successful in an adjudication application against the other lot owner in a two-lot scheme. The other lot owner’s personal company had been acting as body corporate manager for the scheme for a number of years, and our client had been subject to a number of adverse actions. The adjudicator agreed that the other lot owner had not followed legislated procedures and a number of non-compliances were found. 
Riviera Southbank Apartments Body Corporate We successfully applied or an urgent order of an Adjudicator to approve spending above the Committee’s spending limit to upgrade fire systems to comply with legislation, in circumstances where the spending was of an urgent nature.
Noosa Lakes Resort Resident Manager / Lot owner We successfully argued, in a wide-ranging adjudication application, that a number of voting papers at a general meeting were invalid, this in turn meant that a motion approving a large amount of legal expenditure was invalid. The corollary was that the committee motion purportedly approving the expenditure was also invalid as the Body Corporate’s spending limit was exceeded.
19th Avenue Body Corporate We successfully defended an adjudication application where a lot owner sought to invalidate a motion which approved a large amount of expenditure to repair and renovate the pool and atrium area at the resort. It was ordered that the motion was valid, save for one minor phrase, and the relevant special levy was able to be struck and the project was able to proceed.
Atlantis East Body Corporate We successfully defended an adjudication application by a lot owner that sought to stop the body corporate’s balcony balustrade replacement project. The adjudicator found that the Body Corporate had a duty to maintain the balustrades, and that the balustrades were so old they represented a safety risk and had to be replaced. We also successfully argued for a finding that the Body Corporate be awarded the maximum possible costs amount on the basis that the application was misconceived and without substance.
The Rocks Resort Lot Owner We successfully argued that a lot owner should be granted access to documents that the Body Corporate claimed privileged. The adjudicator held that the Body Corporate bore the onus to prove that the documents requested were subject to legal professional privilege and we successfully argued that it failed to do so.
La Joya Body Corporate We successfully defended an application from a caretaker that the Body Corporate had acted unreasonably by failing to pass a motion that would have extended the management rights agreements at the Scheme. The Applicant also argued that the committee distributed material to owners that caused them to vote against the motion. The Application was dismissed in its entirety. 
Nexus Towers Body Corporate We successfully obtained a declaration that the annual general meeting of the Body Corporate could be held outside the time prescribed in the legislation in circumstances where the Body Corporate was negotiating with the caretaker regarding suggested amendments to the caretaking agreement. The adjudicator allowed the meeting to be held out of time so that the motion to vary the caretaking agreement could be considered at the AGM instead of at a separate EGM.  
Paradise Towers Body Corporate We successfully defended an interim order application by a majority lot owner who tried to obtain orders that the Body Corporate Committee be restrained from approving the transfer of management rights. The interim orders were dismissed and the Body Corporate was able to proceed with considering the assignment. 
Avalon Apartments Body Corporate We successfully defended an application by a lot owner who sought to increase the temperature of the pool and spa. The adjudicator dismissed the application in its entirety and found that it was misconceived and without substance. 
One Bright Point Body Corporate In this case, the applicant lot owner sought an order that the Body Corporate pay approximately $15,000 for repairs that the lot sustained due to water ingress during Cyclone Ita. The adjudicator found that damage sustained to the balcony and sliding doors were the applicant’s responsibility (and not that of the Body Corporate) because they were located entirely within the boundaries of the lot.  The adjudicator only ordered that the Body Corporate contribute toward the cost of repairing damaged ceiling panels in the beach room. 
Pure Kirra Lot Owner We successfully obtained interim orders that the Body Corporate not implement a motion passed at an EGM regarding a caretaking agreement that required the Body Corporate to maintain common property outside the scheme land. The agreement also contained other unreasonable clauses. The adjudicator held that, amongst other things, the decision to enter the agreement was unreasonable and meant that the Body Corporate was ‘contracting outside the BCCM Act.’ It is important to know that in this case, the decision was passed because the original owner held powers of attorney for many lots in the Scheme.    
Champagne Boulevard Body Corporate We successfully argued in an adjudication application that the owners of a lot must remove the caravan parked on that lot. The caravan was of such a size that its storage on the lot was such that it contravened a by-law requiring vehicles stored not to be visible from any other lot.
The Moroccan - View Tower  Body Corporate We acted for the body corporate (via a lot owner member of the committee) who successfully overturned the decision to enter into a letting agreement because of the unlawful conduct of the manager in offering a financial inducement to owners to support it. 
Mactaggarts Place  Body Corporate We acted for a body corporate defending an application by a real estate agent who also owned a lot in the scheme. The agent was arguing about the exclusivity of the resident manager’s letting rights in the by-laws. The body corporate was supportive of those rights and we were successful in having the application dismissed.
Mactaggarts Place  Body Corporate We acted for the body corporate in defending an application by a lot owner over the erection of a fence. The fence was a very contentious in the local community and opinions were divided. The adjudicator dismissed the application in its entirety and concluded that the decision to erect the fence was not objectively unreasonable. This case is an important one because it confirms in no uncertain terms that defects in minor procedural issues will not usually be enough to overturn a body corporate’s decision. 

 

QCAT / Appeal decisions

Building Acting for Brief summary
Liberty Resident manager We successfully argued that a body corporate could send material provided by a resident manager to owners with an agenda (thereby not invalidating a successful variation of a management rights agreement) 
Aarons Developer We acted for a developer in appealing an adjudicators order on a technical aspect about committee nominations.  Our appeal was successful. The BCCM Act was changed in 2008 as a result of this ruling to remove the technicality we took advantage of.
The Crest on Bonney Resident Manager We successfully achieved an injunction against the Body Corporate preventing it from acting on a breach notice to terminate our client’s management rights agreements. The Body Corporate had alleged a number of breaches of the management rights agreements which we successfully denied.
Sanctuary Cove PBC Body Corporate We successfully argued that proposed renovations to the lot owners’ lot would be against the Development Control By-Laws. The Applicants proposed to renovate their property such that setback requirements in the by-laws would be breached.
Hope Island PBC Body Corporate We successfully argued that an appeal against a decision of QCAT should be dismissed on the basis that the original member’s decision that various parts of a pontoon were the responsibility of a lot owner and not the PBC. The costs for the maintenance of the pontoon were for the lot owner to bear.
Hope Island Resort PBC Body Corporate We successfully argued in QCAT at first instance, and again on appeal, that a lot owner’s front masonry fence was not compliant with the development control by-laws and should be moved so as to ensure compliance. We were also able to obtain a costs order against the lot owner to recoup a portion of the Body Corporate’s legal expenses.
Aspect Caloundra Lot Owner We acted for a lot owner who strongly objected to the placement and operation of a commercial exhaust fan on common property. We successfully appealed the decision of an adjudicator in QCAT, and the matter was remitted back to the adjudicator for a further decision. The adjudicator found that the committee resolution approving the fan was invalid, and if the fan was not approved in general meeting, it must be removed. We successfully obtained a costs order in QCAT for the costs of the appeal.
Rosebank Body Corporate We successfully argued, before a referee and on appeal, that  a body corporate’s engagement of a body corporate manager was not invalid on the basis that its body corporate manager had continued to be engaged subsequent to the expiry of its agreement. The applicant had argued that the body corporate manager’s agreement had ended upon the expiration of the agreement. 

 

Court of Appeal

Building Acting for Brief summary
9 Port Douglas Road Body Corporate We successfully argued for a body corporate that the resident manager’s knowledge of its unlawful conduct in certain decisions was not something that entitled the manager to damages.
Followcastle Lot owner We successfully defended an application to wind up a corporate lot owner pursuant to a statutory demand issued by the Body Corporate in circumstances where the debt was disputed. We pushed hard for, and obtained, a finding that the proceedings to wind the company up were an abuse of process; we obtained costs on an indemnity basis. 

 

Other successful applications 

Building Acting for Brief summary
McWhirters Apartments Body Corporate We successfully applied to the Department of Environment and Heritage Protection (DEHP) for an Exemption Certificate so that the Body Corporate could undertake painting works. The application was required because the scheme was on the State Heritage Register and the painting works could not commence until such time as the Exemption Certificate was granted.