In The Owners – Units Plan 68 v Haughey (Unit Titles)  ACAT 131 the respondent installed a hot water system on the back wall of his unit which was common property where it remained for nearly five years. Ultimately, a question arose as to whether the respondent had permission to place the hot water system on common property and whether a special privilege right was required.
Senior Member Robinson reviewed the judgment of Douglas J of the Queensland Court of Appeal in Katsikalis v Body Corporate for “The Centre”  QCA 77 and concluded that the reasoning in that judgment applied equally to ACT legislation and should be applied. That is, where there is to be a disposal or alienation of the common property, then it is necessary that that be done by a clear and unopposed process that is consistent with the legislative scheme. The granting of a special privilege would have required an unopposed resolution of the owners corporation following appropriate notification but this requirement was not met.
The respondent argued that he had obtained permission for the installation under rule 4(1)(a) which only required a special resolution on a motion that could be brought from the floor.
Senior Member Robinson rejected this argument on two grounds. Firstly, the relevant section of the ACT legislation was a statutory provision and as such it prevailed over any inconsistent article or rule (see Unit Titles (Management) Act 2011 (ACT) s 128(4)(a)). Secondly, rule 4 did not remove or ameliorate the requirement for a special privilege in any case. Adopting the reasoning of Douglas J, rule 4(1)(a) cannot be read independently of the ACT provision. A resolution under a rule could not grant a special privilege or otherwise authorise the exclusive use of the common property.
In conclusion, the installation of the hot water system on the complex wall amounted to an appropriation of the common property for the personal use of the respondent. Two steps, which did not occur, were required to be completed for this to happen:
- the words and nature of the motion for an unopposed resolution to grant the special privilege at the general meeting had to be notified to all members – and these words needed to clearly state that the hot water system was to be placed on the wall; and
- at that general meeting there had to be the express act of an unopposed resolution of the owners to grant the special privilege over the common property.
Consequently, the respondent did not have authorisation to install the hot water system on the complex wall.