High Court rules on $1.3 million Noosa balcony dispute

IT WOULD have been the most expensive deck ever built, but a $1.3 million legal battle over five square metres of empty space has finally ended.

Architect John Mainwaring, pictured, split the balconies to minimise noise. Picture: Lyndon Mechielsen

ONLY in Noosa.

The star-studded Queensland resort town is the scene of an expensive High Court battle over a mere five square metres of empty space, in a landmark dispute that racked up a reported $1.3 million in legal fees.

A staggering figure by any standard, it’s enough to buy a comfortable family home in most Australian cities. But this is Noosa, where high-flying corporate types rub shoulders with celebs while escaping the winter chill.

Rebecca and Chris Judd are regularly photographed at the glitzy holiday destination on the Sunshine Coast, which has enjoyed a turnaround after the post-GFC luxury property crash, while Bert and Patti Newton have been regular visitors there since their 1974 honeymoon.

‘Nowhere I’d rather be.’ Rebecca Judd on holiday last year in Noosa. Picture: Instagram

For millionaire businessman Martin Albrecht, whose unit in the award-winning Viridian complex at Noosa Heads cost $1.5 million when he bought it in 2005, the only thing missing from his luxury apartment was a spacious deck on which to enjoy the fresh sea air.

But his plan to amalgamate two separately designed balconies was shot down by the building’s body corporate members — including its designer, archi­tect John Mainwaring, and Kjerulf Ainsworth, son of pokies billionaire Len Ains­worth.

After successfully defending his right to build the deck in the Supreme Court of Queensland’s Court of Appeal, Mr Albrecht was ultimately defeated by the nation’s highest court, ending a legal battle that dragged over four years. He will now face a costs bill in the hundreds of thousands of dollars.

Mr Ainsworth, who spearheaded the High Court challenge, spent between $600,000 and $800,000, he told The Australian.

Mr Albrecht’s balcony.

“The High Court held that opposition to a motion which was required to be passed by a body corporate without dissent was not unreasonable in circumstances where the proposal in question was apt to create a reasonable apprehension that it would affect adversely the interests of opponents of the proposal,” the court said in a statement after its decision on Wednesday.

“The Court further held that a lot owner may not be regarded as acting unreasonably in declining to assist another lot owner gratuitously to enhance that lot owner’s interest, where the enhancement of that interest is reasonably viewed as adverse to the interests of the other lot owner.”

In layman’s terms, it means that owners of units held under community title schemes can forget about tampering with any part of the building that forms part of the common property — including air space between balconies. Viridian’s balconies had been purposely designed to minimise noise associated with larger decks.

The High Court was scathing of the argument that Mr Albrecht should be allowed to modify the balcony as long as it did not interfere with the privacy and enjoyment of his neighbours, moving to shut down a potential precedent that could have opened the floodgates for unitholders wanting to enhance their properties at the expense of others.

Mr Mainwaring welcomed the decision, calling it “a victory for community title schemes”, while Mr Albrecht was said to be “gutted by the decision”, Fairfax Media reports.

Community title is an alternative to strata title used in apartment complexes, with titles defined by lot boundaries and surveyed measurements unlimited in height and depth.

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Originally published as High Court rules on $1.3 million Noosa balcony dispute