AGM decision – can something done against it

Just a quick summary of your position.

Changes to common property require a special resolution (75% in favour), repairs require only a simple majority.

If the pro-work group are saying that  the current balustrades need to be changed because they aren’t up to code, then that is an alteration of common property that requires a special resolution (75% vote in favour).

If the pro-work group are saying this is only a repair, requiring a 51% vote, they have to show that the balustrades are broken (which they are presumably not).

There are a limited number of instances where building codes are retrospectively enforceable (fire ordinances and swimming pool fences, for instance).  Most other building code issues only become enforceable where there is work being done in the area where the non-code structures exist. 

If they dispute this, and they want legal advice, they do have a majority so they can force everyone to pay for it but you might have recourse under Section 149 of the Act to ask that levies be altered so that those who did not see the need for legal advice don’t have to pay for it (especially if they are found to be correct).  I would certainly present that as your intention if they insist on the owners corp paying for further legal advice in a matter that is already being considered by NCAT.

The simplest solution would be to let the upgraders upgrade their own balustrades at their own expense, with the condition that the same will apply to the other owners should they wish to do so, and that the individual owners accept responsibility for the repair and maintenance of the balaustrades in perpetuity.  The cost per owner will work out roughly the same without the need for lawyers (except to draw up the requisite by-law).

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.