MOST of us would be aware how difficult it is for Motions without Dissent to pass: just 1 ‘NO’ vote can have the final say, no matter how many ‘YES’ votes there are.
And we will have seen similar difficulties with Special Resolutions, where a small, but active minority can override the wishes of the majority.
Ordinarily, most owners accept these negative outcomes no matter how unreasonable they seem.
Recently however, some owners have not been happy with these outcomes and have gone to adjudication… often with startling success. In terms of authorative impact, it has all come together in the Viridian Decision.
THE VIRIDIAN DECISION
WHO would have thought a ‘7 FOR’ v ‘7 NO’ vote on a Motion without Dissent could be challenged successfully on the basis the Body Corporate was acting unreasonably? Maybe, just maybe, if there was only 1 lonely ‘NO’ vote… but not with numbers like these.
Well, an owner at Viridian Noosa Residences, Martin Albrecht, obviously thought differently and went to adjudication late-2012. In September 2013, the Adjudicator, I Rosemann, agreed with the owner and ordered:
- The Motion was not passed because of opposition that was unreasonable in the circumstances
- The Motion is deemed to have been passed
- The Body Corporate must lodge a new Community Management Statement incorporating the amendments proposed by the Motion ie a grant of exclusive use rights to the owner.[i]
The Body Corporate then appealed to the QLD Civil and Administrative Tribunal (QCAT), where the Member, Roney QC, decided in October 2014 the Body Corporate had acted reasonably in opposing the Motion, and overturned the Adjudicator.[ii]
For those of us following this matter, it was becoming clear there was serious interest in the outcome: