Ainsworth v Albrecht [2016] HCA 40

HIGH COURT OF AUSTRALIA

FRENCH CJ, BELL, KEANE, NETTLE AND GORDON JJ

KJERULF AINSWORTH & ORS APPELLANTS

AND

MARTIN ALBRECHT & ANOR RESPONDENTS

Ainsworth v Albrecht [2016] HCA 40 12 October 2016 B37/2016

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 6 November 2015, except insofar as it orders in paragraph 1 that leave to appeal be granted, and in its place order that the appeal be dismissed with costs.

3. The first respondent pay the appellants' costs of the appeal to this Court.

On appeal from the Supreme Court of Queensland

Representation

S S W Couper QC with K N Wilson QC for the appellants (instructed by Australian Property Lawyers)

D R Gore QC with M J Batty for the first respondent (instructed by Mahoneys Lawyers)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Ainsworth v Albrecht

Real property – Community titles scheme – Use of common property – Body Corporate and Community Management Act 1997 (Q) – Dispute between owners of lots in community titles scheme – Where one lot owner sought to use common property airspace to expand balconies – Where proposal put to body corporate for alteration of rights of lot owners to allow lot owner exclusive use of common property – Where proposal required resolution without dissent – Where motion defeated – Where proponent applied for dispute resolution – Where adjudicator concluded that opposition by other lot owners to proposal unreasonable – Whether adjudicator erred in approach to decision – Whether grounds for opposition to motion by individual lot owners unreasonable – Whether necessary to balance competing interests.

Words and phrases – "adjudicator", "body corporate", "common property", "original design intent", "resolution without dissent", "unreasonable in the circumstances".