Hickey Lawyers partner, Joe Welch, was able to effectively utilise his community title/body corporate and dispute expertise with the litigation experience of Senior Associate, Vikki Cook, to strategise the process and to obtain the favourable Adjudicator’s order granting the exclusive use for owners, John Fletcher ex CEO of Coles Myer (through his wife, Noela ), and Sandy Cowell, an active Gold Coast property developer.
After discovering that the rooftop improvements for their penthouses encroached into common property, Fletcher and Cowell needed to put forward a motion to the body corporate to grant them exclusive use over the common property encroachment area. With the value of their apartments in the many millions of dollars and intentions to sell, it was vital to have a strategy to deal with the encroachment issue, otherwise the value of the properties could be significantly reduced. At worst they faced having to remove the roof from their recreation areas.
The motion to the body corporate called for resolution without dissent. Having endured a number of robust body corporate meetings in the past, dissenting voters were expected and that is what transpired with 7 out of the 18 body corporate members dissenting.
The path to resolving the potentially damaging situation lay in lodging an Adjudication Application with the Office of the Commissioner for Body Corporate and Community Management. That application had to demonstrate that the body corporate had acted unreasonably in failing to grant the exclusive use of the specified common property. The situation was complex and the legal argument was made even more difficult because of the unsettled legal position of the law. At the time we successfully obtained the Order, there was a similar case with different facts involving exclusive use of a balcony, then on appeal to the High Court.
It was against this back drop that Hickey Lawyers was able to achieve a successful outcome for our clients, that was to save the value of apartments and allow their sale.
Hickey Lawyers advised on the strategy to deal with the body corporate meetings, attended body corporate meetings, drafted the required motions and ultimately the successful submissions to convince the Adjudicator to give the Orders sought.
For particular information on resolving body corporate disputes or for community title projects in general please call Joe Welch on 5574 1000
