Barzinpour v Owners Corporation Unit Plan 999 & Ors (Unit Titles)

[2021] ACAT 69

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BARZINPOUR v OWNERS CORPORATION UNIT PLAN 999 & ORS (Unit Titles) [2021] ACAT 69

UT 41/2020

Catchwords:               UNIT TITLES – where common property was renovated without owners corporation approval and in the absence of a motion at a general meeting – removal of conifer hedge and installation of pavement – common property restored in part – owners corporation to consider special privilege in future – where settlement reached but no determination on the issue – application dismissed

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 7

Unit Titles (Management) Act 2011

Subordinate

Legislation cited:        ACT Civil and Administrative Tribunal Procedures Rules 2020 r 67

Cases cited:Frigger v Holbrook [2015] WASC 469

Packer v Meagher [1984] NSWLR 487

Tribunal:Presidential Member M-T Daniel

Date of Orders:  14 April 2021

Date of Reasons for Decision:      29 July 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          UT 41/2020

BETWEEN:

MASSOUD BARZINPOUR

Applicant

AND:

OWNERS CORPORATION UNIT PLAN 999

First Respondent

AND:

MARSHALL BLAIN

Second Respondent

AND:

JUDY BLAIN

Third Respondent

TRIBUNAL:     Presidential Member M-T Daniel

DATE:14 April 2021

ORDER

The Tribunal orders that:

Upon the parties having reached an agreement, without admissions or finding of fault, that the Owners Corporation gardener will remove the four camelias from the common property outside unit 1 and replace with three conifers, as noted below, it is ordered:

1.The application is withdrawn and dismissed.

The Tribunal notes: the replacement of the conifers will occur as follows:

(a)the camelias will be removed by the Owners Corporation gardener at an appropriate time/season and replanted elsewhere on the common property;

(b)the three replacement conifers will be of the kind previously removed;

(c)the maturity of the three replacement conifers will be determined by Mr Barzinpour who will pay for the conifers;

(d)the three replacement conifers will be replanted on the common property as much as possible where the original three conifers were removed from; subject to the Owners Corporation gardener determining how close to the fence wall to plant each specimen with regard to anticipated future growth.

(e)the Owners Corporation will maintain the three replacement conifers in future consistently with the height of the removed conifers (and current camelia hedge); unless the Owners Corporation in its management of landscaping on common property decides differently.

…………Signed……………..

Presidential Member M-T Daniel

REASONS FOR DECISION

1.On 14 April 2021 I made orders dismissing an application for orders under the Unit Titles (Management) Act 2011 (the UTM Act), upon that application being withdrawn. Subsequently reasons for that decision were requested. What follows are my reasons for that order.

Background to the litigation

2.On 28 October 2020 the applicant, an owner in Units Plan 999, lodged an application seeking orders under the UTM Act compelling the first respondent (owners corporation) to take action to remove a small paved pathway from the common property and reinstate a conifer hedge that had been removed from the common property. That application came before the tribunal for a directions hearing on 25 November 2020. Orders were made referring the matter for a preliminary conference to be conducted on 11 January 2021 and joining, as second and third respondents to the proceedings, the owners who were responsible for the work resulting in the small paved pathway and removal of the conifer hedge.

3.Prior to the conference the second and third respondents filed a response setting out their understanding that removal of the conifer hedge and the installation of the paving had been approved by the first respondent. The first respondent filed a response setting out that in its searches of records it was unable to identify a specific approval for those actions, however it had been reluctant to take any action given that the second and third respondents were insistent that there was approval.

4.The matter was not resolved at the preliminary conference, and directions were made for the second and third respondents to notify the Tribunal once they had access to their documentation (which was in transit), after which there might be a directions hearing arranged. The orders also provided the applicant with liberty to apply.

5.On 30 March 2021 the applicant lodged an application for interim or other orders, seeking to amend his application to seek that an administrator be appointed to the owners corporation. The matter was listed for directions hearing to be conducted by Webex on 14 April 2021, at which time that application was to be considered.

The directions hearing on 14 April 2021

6.When the matter came before me at 4:00pm on 14 April 2021 there were some initial technical difficulties. The representative for the owners corporation missed the first part of the discussion, which I summarised for him later when he ultimately telephoned in to the directions hearing. There is a transcript available for the larger part of the hearing, however some parts of the transcript appear to contain errors; this may have been due to the quality of the recording. Those parts of the transcript included in this decision do not appear to contain any obvious errors.

7.Early in the directions hearing I said to the applicant: [1]

I can see a file that’s almost two inches thick which seems to relate to, someone did some building work that was approved in the process that took out a couple of trees, conifers that were forming a hedge, and they put a bit of footpath down and you’re not happy with that because you, as a member of the owners corporation, think there should have been approval sought to take those conifers out.

You thought there should have been approval about that bit of paving. Can I say, it’s a very great impost on all of your time, that the file is actually two inches thick and I’m concerned that you are spending a lot of effort that may ultimately be misguided. Mr Barzinpour, in practical terms what do you want as the outcome?

[1] Transcript of proceedings 14 April 2021, page 2, line 26ff

8.Mr Barzinpour confirmed that he wanted the conifer hedge on the common property restored, and he would pay for the plants, and that he wanted the paving removed and the paved area restored to grass and mulch.

9.I established with the applicant and second and third respondents that although the issue had been raised at an annual general meeting in 2019 and referred to the executive committee, to their knowledge there had been no formal decision in either forum.

10.The owners corporation representative then entered the directions hearing by telephone. The following exchange occurred:[2]

[2] Transcript of proceedings 14 April 2021, page 9, line 8ff

PRESIDENTIAL MEMBER: Yes. So Mr Pratt, let me update you. What I have discussed with the parties so far is, and mainly with Mr Barzinpour is, you know, my concern that this file is almost two inches thick and I’m really worried about all of you spending a lot of effort that is misdirected, and I wanted to ask Mr Barzinpour, and he clarified for me, exactly what he would really like as an outcome.

And what he would really like is that the owners corporation commits to having three conifers replanted, which he would pay for, but the OC gardener would take care of, and that the bit of paving on the common property be removed and replaced with mulch and soil, or, you know, basically garden restored. So that’s his end point, and being aware of that now, I wanted to know, has that ever been put to the owners corporation formally as a motion at a general meeting?

Because if it had been, then we would review that motion, that decision on that motion, but from what Mr Barzinpour has explained to me, it seems that although he raised this issue in the other business part of the 2019 AGM, there wasn’t formally a motion that the owners corporation voted on about the actual replacement and restoration of the area. It was referred to the executive committee and the executive committee hasn’t made a formal decision which could be subject to review, at least as far as Mr Barzinpour knows. Would you like to comment, Mr Pratt, on that summary of the AGM and EC process?

MR PRATT: To the best of my knowledge, no motion has ever been put before an AGM and that’s agreed to by the other two members of the EC here. Is there another question that we need to answer in that?

PRESIDENTIAL MEMBER: Yes, so it was raised in the other business of the 2019 AGM as an issue and I think that got referred to an executive committee, but there has not been a formal decision out of the executive committee about the issue?

MR PRATT: That is also correct.

PRESIDENTIAL MEMBER: Yes. So can I ask, one of the things Mr Barzinpour is suggesting now is that he wants – might even want an administrator appointed, and to the owners corporation just because of wanting this issue resolved, but I don’t know how many units are in your owners corporation.

MR PRATT: Thirty-five.

PRESIDENTIAL MEMBER: Thirty-five. So then Mr Barzinpour would have to serve a copy of the application on all 35. Then the owners corporation has to serve a copy of the application for appointment of an administrator on all of its creditors. Then we have to come back together and I have to give everybody who wants to the opportunity to be joined as a party to the proceeding. We also have to serve the Director-General of Justice & Community Safety with the application for appointment of an administrator. It is a lot of work and it’s usually done when the owners corporation is completely dysfunctional, or owes a lot of money and is going bankrupt. So I wouldn’t want to encourage you all down that path if there is an easier way to get to a quicker hearing.

MR PRATT: The consensus here would be that we don’t want to go down that path.

11.I next discussed with the parties whether a better approach would be for the issue to be formally placed before the owners corporation at a general meeting, with the applicant, if unhappy with the outcome, to seek review by the Tribunal of the decision. We discussed the machinery for that to occur in a timely and efficient manner, and the need for the second and third respondents to first obtain access to their records which were still in transit overseas.

12.I then discussed with the second and third respondents their attitude to the outcomes sought by the applicant, and suggested a compromise position:

PRESIDENTIAL MEMBER: But frankly, life is short. Any of us could get COVID at any time, and for two and a half grand, it’s a matter of, is it just the money and the principle of the thing, because it’s a pain in the neck when you did something you thought you had permission for, and now you’re hearing after the event, ‘Oh, well, we’re not sure we ever really gave you permission’. Do you really care or can we plant three trees back there, move the paving slightly and then just get on with life if somebody else pays for it.

MS BLAIN: I can see what you’re saying, but the paving – the paving is used regularly by us. We use that side gate and people coming to our home use that path and a path there is far safer than a garden mound that people could quite possibly turn their ankles on, so yes, you know, we wouldn’t ... (inaudible) ... .

PRESIDENTIAL MEMBER: I don’t know the dimensions of the space. Is the path where the plant – the conifers used to be?

MS BLAIN: No, they’re two quite separate areas and the path amounts to .0 or .08 square metres and it has been neatly done and it has been verified as being safe by QIA who does the safety report for the owners corporation.

PRESIDENTIAL MEMBER: Okay. So here I have a compromise situation. Can’t we just put the plants – some new plants in, keep the path there because the path sounds sensible if it’s near the side gate. There’s nothing worse than, particularly in the dark in winter in Canberra, you’re walking down an area, an access area that doesn’t have a path and you always turn your ankle, and none of us like that as we’re getting older. Frankly, I don’t anyway. So can’t we just reach a sensible solution and just do that? Ms Blain, could you and Mr Blain live with that? Keep the path and plant some more trees?[3]

[3] Transcript of proceedings 14 April 2021, page 24, line 10ff

13.This proposal, with some fine-tuning, was acceptable to the second and third respondents.

14.The applicant was happy in relation to the reinstatement of the conifer hedge, but concerned about the position for the owners corporation posed by the path remaining on the common property long term. He said:

The kids are playing hide and seek there. I have personally witnessed one of them trip over there, but that’s owner corporation issue, not my issue. That’s their liability and it has not been remedied, but that’s owner corporation, not my – my issue.[4]

[4] Transcript of proceedings 14 April 2021, page 27, line 18ff

15.The owners corporation was happy with the proposal to restore the hedge, and with leaving the path in situ at the moment, but foreshadowed that a special privilege might need to be applied for in the future.

16.The second and third respondents did not want to apply for a special privilege. They pointed out the area of paving is less than 1 square metre and suggested that there be agreement that the executive committee grant permission for the paving as a minor use of common property.

17.It was clear by this stage that unlike the conifer hedge, the parties were unable in the time available to reach an agreement on the long-term future of the paving. I said:

PRESIDENTIAL MEMBER: Okay. So this is all about the owners corporation managing its property. The owners corporation can decide it’s going to take those three or four camellias out. Mr and Mrs Blain paid for them, so they’ll give them back to you, or they can go to wherever you want them to go to. The owners corporation will replant three conifers. The owners corporation can’t be taking no action in relation to the little bit of paving, and they’ll just manage that as an issue for the future. Mr Barzinpour has pointed out that he thinks it may raise safety issues.

Mr and Ms Blain say, ‘Well, we thought we had approval for it, and anyway it makes it safer for us’. That will be a matter for the owners corporation in the future if they think it warrants it. People’s landscaping extends on to the common property often, and whether that owners corporation decides to do something about it depends on what they think the risk is it poses and what it decides to do. So it’s an issue for you guys as a corporation to manage for the future.[5]

[5] Transcript of proceedings 14 April 2021, page 28, line 35ff

18.I proceeded to work through with the parties the wording of the agreement that had been reached around restoration of the conifer hedge, and around 5:50pm the directions hearing concluded. I congratulated the parties on having reached a sensible resolution of the underlying dispute.

The decision and orders

19.It is not unusual for parties to proceedings to reach an agreement at a preliminary conference, mediation or hearing, in consequence of which the applicant withdraws or discontinues their application. The terms of the agreement may sometimes be captured as a preamble or notation to the orders dismissing the application, at other times those terms may be kept private and known only to the parties. Where terms of an agreement are captured as a preamble or notation, they are not themselves an order.

20.In this matter, the only decision and order I made was to dismiss the application. I made that order because the applicant sought to end the proceedings, given the agreement that had been reached about the conifer hedge.

21.An applicant in proceedings before the Tribunal may seek to ‘withdraw’ or ‘discontinue’ their application at any time they wish.[6]

[6] In some court rules the concept of ‘discontinuance’ applies in relation to an application, and ‘withdrawal’ in relation to an appearance or response; however in the Tribunal these terms are used interchangeably.

22.Under rule 67 of the ACT Civil and Administrative Tribunal Procedures Rules 2020 an applicant can seek to end the proceedings by lodging a notice of discontinuance or by making an oral application to discontinue. However, the proceedings do not end simply upon the lodging of the notice or making of the application. Rule 67(5) provides that despite a request being made to discontinue an application, the proceedings continue until the Tribunal makes an order formally dismissing the application.

23.The decision whether to make an order dismissing the application upon it being discontinued or withdrawn involves an exercise of discretion. Rule 67 does not specify the factors to be considered by the Tribunal in exercising that discretion. However, section 7 of the ACT Civil and Administrative Tribunal Act 2008 sets out principles of general application:

7   Tribunal principles

In exercising its functions under this Act, the tribunal must—

(a)     seek to ensure the procedures of the tribunal—

(i)are as simple, quick, inexpensive and informal as is consistent with achieving justice; and

(ii)are implemented in a way that facilitates the resolution of the issues between the parties so that the cost to the parties and the tribunal is proportionate to the importance and complexity of the subject matter of the proceeding; and

(b)     observe natural justice and procedural fairness.

24.The jurisprudence on the question of discontinuance, albeit in a court and not tribunal context, suggests that the interests of justice must be a significant consideration. For example, an applicant will not be permitted to discontinue where to do so would amount to an abuse of process.[7]  

[7] Packer v Meagher [1984] NSWLR 487; Frigger v Holbrook [2015] WASC 469

25.In this case, I asked the applicant whether he wished to withdraw his application given the agreement about restoration of the conifer hedge, and I confirmed with the parties that this would then finalise the proceedings. There was agreement to this course of action. I was satisfied that it was consistent with the tribunal principles, and in the overall interests of justice, that the applicant be permitted to end the proceedings, and made an order dismissing the application on that basis.

………………………………..

Presidential Member M-T Daniel

Date(s) of hearing	14 April 2021
Applicant:	In person
First Respondent:	Mr C Pratt, Ms M Gerussi and Ms L Val, authorised representatives
Second Respondent:	In person
Third Respondent:	In person