Pintari [2010] QBCCMCmr 277 (23 June 2010)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Roger and Pauline Whinham, the Owner(s) of lot 3

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR'S REASONS FOR DECISION - REF 0141-2010

Pintari Community Titles Scheme (Pintari) is a 72 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act's Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by Roger and Pauline Whinham, owners of lot 3 (applicants) seeking orders against the body corporate (respondent). The applicants seek to overturn opposition to a motion by which the applicants were seeking to purchase part of the common property to include within their lot.

The main grounds in support of the application, provided on behalf of the applicants, were to the effect that:

• the applicants made a proposal to the committee that they swap a disused portion of the common room for a reception area desk in the foyer;
• The committee supported this proposal and requested the applications obtain a valuation;
• The proposal was supported by the committee and a motion put before the annual general meeting;
• At the annual general meeting 38 owners voted in favour of the proposal and only 2 owners voted against the proposal; and
• The two owners who voted against the proposal have now changed their minds and an order is sought to overturn their opposition to the motion.

Submissions supporting the application have been received from a committee member and from two owners. However, a submission from the owner of lot 15 was to the effect that she opposed the sale and had been manipulated and lied to in order to change her mind. This owner indicates that she opposes the sale of body corporate common property to anyone. It is submitted that she was willing to allow the sale to prevent the refurbishment of the lobby being held up if she was the only person opposed. However, as this refurbishment has now been performed without the sale going ahead, she opposes the sale.

The legislation provides that a resolution with dissent is required for a body corporate to sell common property (Standard Module, 161). The general rule is that members of a body corporate may vote in their own interests.[1] However, a body corporate is required to act reasonably in carrying out its functions, including in making or not making a decision (Act 94(2), 100(5)). Such a statutory requirement to act reasonably is only satisfied if the ultimate decision is objectively reasonable.[2] In this respect, the question is not whether the decision was the "correct" one but whether it is objectively reasonable.[3]

The applicants provided evidence that the two owners who initially opposed the motion proposing a sale of part of the common property subsequently ceased to oppose the sale. However, this is no longer the case. Also, the applicants have not provided any evidence that satisfies me that there are special circumstances that would make it objectively unreasonable for the body corporate not to proceed with the sale.

The present circumstances indicate that one of the owners who initially opposed the sale subsequently indicated that she would not prevent the sale if it caused the refurbishment of the lobby to be held up. However, I am satisfied that this owner was opposed to the proposed sale of this area of the common property at the time she cast her vote. Further, the result of the vote is not objectively unreasonable. In the absence of some convincing reason to the contrary, the sale or otherwise of common property is a matter of preference to be decided according to a vote.

In the circumstances, the application will be dismissed. Of course, this does not prevent the applicants putting any similar proposal up for a vote by owners at any subsequent general meeting.

[1] Dindas & Anor v Body Corporate for One Park Road [2006] QDC 302.

[2] Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125; Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 at page 12.

[3] Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 at page 34.