If the balustrades are common property, as they appear to be, and the OC decided to only upgrade some to current standard (where the adjacent unit owner wanted it and paid for it), and someone fell off a non-upgraded balcony, wouldn’t it be easy to make a case that the OC had been negligent? It would be hard to make the case that the OC was unaware of the issue.
If, say, a motion to upgrade all balconies had majority support but there were not 75% in favour, and there were legal advice to the OC that it should upgrade all to avoid liability, then I would say the EC should go to the Tribunal seeking an order to give effect to the failed motion. In such circumstances it could be reasonably secure in claiming it was acting to reflect a majority view and in accordance with appropriate legal advice. In the ACT, our Tribunal has powers to ‘give effect’ to a failed motion such as this if it would be ‘reasonable’ for it to have passed. Do other state tribunals have such powers?
In the ACT certain classes of motion require an unopposed resolution. Our OC has had small minorities (sometimes as few as one person out of >100 owners) oppose such motions even though they would suffer no loss or inconvenience whatsoever. They simply had the ‘wrong end of the stick’ about what the point of the motion was and would not be dissuaded from their misconceived opposition. In such cases the ACT Tribunal ‘gave effect’ to the failed motions.