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Case Study: Good reasons to not be unreasonable

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admin

Published on

May 1, 2026

Kings Way Apartments, Sunshine Coast
Decision: April 2026

Office of the Commissioner of Body Corporate and Community Management – QBCCMCmr 102.

Situation

A lot owner moved at consecutive Annual General Meetings for the body corporate to grant him exclusive use over a common property courtyard space adjacent to his ground-floor apartment – a motion requiring a vote without dissent.

Both times the motion was defeated by a single vote.

The applicant filed an application with the Office of the Commissioner for Body Corporate and Community Management with respect to the second refusal on the basis that opposition to the motion was unreasonable.

Background

The applicant’s argument to gain exclusive use over the courtyard was based, in part, on his claim that the area was not accessible by any other owner. He ended up proposing to pay the body corporate the market value for the space ($15,000, as determined by a suitably qualified valuer), and for the cost to update the CMS.

The applicant said the vote against was unreasonable as:

the Courtyard was not accessible to other owners
the Courtyard was currently maintained by the applicant and not the body corporate because the body corporate had no way of accessing it to maintain it
the owners had offered a fair and reasonable price for the exclusive use ($15,000), which was based on a professional valuation, and which equated to more than $1000 per owner being contributed to the sinking fund
the applicant had offered to pay for the costs of updating the CMS
the applicant would bear the cost of maintaining the Courtyard, and
a grant of exclusive use of the Courtyard would have no impact on other owners.

In a submission to the adjudicator, the dissenting voter effectively objected on three grounds:

legal advice the committee received prior to the motion for exclusive use that was proposed at the 2024 AGM that suggested there were other exclusive-use areas that needed regularising
the $15,000 offered did not represent market value, and
the previous owner of the lot did up the garden with herbs and flowers for all unit owners to enjoy, and the owner still wanted the right to use the area.

How did the adjudicator rule?

The adjudicator outlined a clearly constructed process of assessing the dissenting voter’s reasoning and whether or not the arguments were reasonable.

The first two grounds were dismissed. Just because there were other exclusive-use areas that could be documented didn’t mean that this one couldn’t be done on a stand-alone basis, and there was no evidence provided about why the $15,000 was not market value.

However, the final argument about the courtyard being available for all unit owners to enjoy carried significant weight.

The adjudicator said: “In my view, that is a personal preference relating to her property rights in the Courtyard with a subjective, but nevertheless rational basis. I am not satisfied this ground for opposing Motion 9 was unreasonable in the circumstances.”

On that basis, the applicant’s submission was dismissed.

What this means

When it comes to objecting to a motion requiring a resolution without dissent, issues that may be important to one voter, which might not be to anyone else, may be sufficient to justify a vote against the resolution.

On this occasion, it was sufficient to carry the day.

In their conclusion, the adjudicator noted: …. I was not satisfied the dissenting owner’s preference for retaining her right to use the Courtyard was irrational, unreasonable, or motivated by ill-will. In the words of the High Court,

Nothing in the BCCM Act suggests that a lot owner may be required by an adjudicator to assist another lot owner to enhance that lot owner’s interest, or be regarded as acting unreasonably in declining to do so, at least where the enhancement of the proponent’s interest is reasonably viewed as adverse to the interests of the opponent.

This ruling is a further evolution in what we think is the recent trend of adjudicators explaining their reasoning at length, detailing in clear language how they reach their decisions. If anyone wants a walk-through of how a decision on these styles of dispute will be approached by an adjudicator, this decision is a wonderful start.

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