In Ainsworth v Albrecht [2016] HCA 40, the High Court of Australia has unanimously allowed an appeal from the Queensland Court of Appeal. This is one of the most significant strata cases since the High Court’s decision on building defects.


The First Respondent, Mr Albrecht, was the owner of a lot in Veridian Noosa Residences (the Complex). The Appellants include several lot owners within the Complex.

Mr Albrecht wanted to extend the deck of his home but could only do so if the Body Corporate for Veridian Noosa Residences (the Body Corporate) approved it. The deck would require the use of approximately 5 square metres of airspace between two balconies. This airspace was a part of common property. Mr Albrecht required the Body Corporate to approve it by way of resolution without dissent.

The motion did not pass.

Application to the Office of the Commissioner for Body Corporate and Community Management

Mr Albrecht complained to an Adjudicator and sought orders that effect be given to his motion. Mr Albrecht argued the owners acted “unreasonably” in refusing his motion. The Adjudicator agreed and deemed the motion approved.

Appeal to the Queensland Civil and Administrative Appeal Tribunal

The lot owners appealed the Adjudicator’s decision. QCATA allowed the appeal and set aside the Adjudicator’s orders stating the Body Corporate’s decision to refuse the motion was reasonable.

Appeal to the Queensland Court of Appeal

Mr Albrecht appealed to the Queensland Court of Appeal. The Court of Appeal unanimously allowed the appeal. The lead judgement was given by the President of the Queensland Court of Appeal, Justice Margaret McMurdo who stated: “The adjudicator’s reasons make clear that she conscientiously considered all of the material and submissions relied upon by the applicant and the respondents, made findings of fact, all of which were open on that material, and was ultimately satisfied as a matter of fact that the applicant’s motion was not passed because of the respondents’ opposition to it that in the circumstances was unreasonable.”

Appeal to the High Court of Australia

Mr Ainsworth and the other lot owners within the Body Corporate appealed to the High Court. The High Court overturned the decision of the Court of Appeal and reinstated the initial decision of the Body Corporate to oppose the motion. The lot owners opposed the motion as they were of the view:

1. It would adversely affect the architectural integrity of Viridian – a position supported by three separate architects;

2. It may increase noise emanating from Mr Albrecht’s lot – a position supported (in part) by the architect who designed Viridian to avoid large decks; and

3. It may offer Mr Albrecht greater visibility into neighbouring lots, effectively reducing the level of privacy they enjoyed.

In allowing the Appeal, the High Court held:

[64] The proposal in question was apt to create a reasonable apprehension that it would affect adversely the property rights of opponents of the proposal and the enjoyment of those rights. In these circumstances, opposition of the lot owners who dissented from the proposal could not be said to be unreasonable.” (emphasis added)

Ultmately, the decision of the body corporate to oppose the motion was a reasonable one. It is worthy to note however, that if the opposition to the motion was based on spite or ill-will, or there was no reasonable apprehension that it would affect their property rights, their opposition would have likely to have been found unreasonable.