Units Plan No 202 contained both class A units and class B units. This case centred around a long-standing and important legislated distinction in the maintenance obligations of the owners of these units. Namely, that the owners of class A units are not responsible for the maintenance of the exterior of their units (such as external walls, roof, etc.) whereas the owners of class B units are.
This dichotomy was the cause of some disquiet within the owners corporation as class B owners were paying for some of the exterior maintenance costs of class A units as well as the entirety of the maintenance costs of their own class B units.
Therefore, at an AGM in 2002, a resolution was purportedly passed pursuant to the then equivalent of section 24(1)(g) of the UTMA. The relevant provision held that an owners corporation would be required to maintain all buildings on all class B units on the units plan if a special resolution was passed authorising this (this was identical to section 24(1)(g) of the UTMA).
Unfortunately, the minutes of that AGM did not record that the motion (motion 5) was passed as a special resolution, as required. This called into question the legal authority for subsequent acts undertaken by the owners corporation and consequently, the owners corporation commenced ACAT proceedings to resolve the issue.
ACAT, relying upon a High Court authority that the regularity of official appointment and action will be presumed unless rebutted, held that there was a presumption that the owners corporation had authority to deal with the maintenance obligations as provided by motion 5. It was for the respondents to bring some evidence to ACAT to satisfy ACAT that in fact motion 5 had not been properly passed.
No such evidence was forthcoming from any document or witness that the numerical requirements of a special resolution were not met for motion 5 at the 2002 AGM.