Blain & Anor v Barzinpour & Anor (Appeal)
[2022] ACAT 48
•9 June 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BLAIN & ANOR v BARZINPOUR & ANOR (Appeal) [2022] ACAT 48
AA 29/2021 (UT 41/2020)
Catchwords: APPEAL – unit titles – application by one unit owner in relation to removal of conifer hedge and construction of path on common property by another owner – application to discontinue granted by Original Tribunal on basis of agreement on hedge issue – whether Original Tribunal was correct to allow discontinuance – whether Original Tribunal’s note summarising agreement was correct
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 47, 48, 55, 63, 79
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 67, 91
Cases cited:Barzinpour v Owners Corporation Unit Plan 999 [2021] ACAT 69
Council of the Law Society of the ACT v LP 201920 (David Chen) [2021] ACAT 16
Packer v Meagher [1984] NSWLR 487Frigger v Holbrook [2015] WASC 469
Ann Street Mezzanine Pty Ltd v Beck [2011] FCA 614
Bluescope Steel Ltd v Allianz Australia Ltd [2012] NSWSC 1178
Ritz Hotel Ltd v Charles of the Ritz Ltd (No. 8) (1987) 12 IPR 75
SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 311
Tribunal:Acting Presidential Member R Orr QC
Date of Orders: 9 June 2022
Date of Reasons for Decision: 9 June 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 29/2021
BETWEEN:
MARSHALL BLAIN
First Appellant
JUDY BLAIN
Second Appellant
AND:
MASSOUD BARZINPOUR
First Respondent
OWNERS CORPORATION – UNITS PLAN 999
Second Respondent
APPEAL TRIBUNAL: Acting Presidential Member R Orr QC
DATE:9 June 2022
ORDER
The Tribunal orders that:
The appeal is dismissed.
………………………………..
Acting Presidential Member R Orr QC
REASONS FOR DECISION
These proceedings concern an Application under the Unit Titles (Management) Act 2011 dated 28 October 2020 (Application) by Massoud Barzinpour (applicant or Mr Barzinpour), who owns a unit in Units Plan 999 which is called O’Malley Park (UP 999), against the Owners Corporation Unit Plan 999 (Owners Corporation or first respondent).
In the Application Mr Barzinpour sought orders that the Owners Corporation:
(a)“take action to remove the pathway (with raised edges) built by Unit 1 on the common property without the approval from the Owners Corporation (ignoring Unit Titles (Management) Act 2011 section 22(1)(a) as there is no evidence that unit 1 has obtained approval)” (pathway issue). I note that it seemed to be accepted that the small bit of the pathway Mr Barzinpour was concerned about is on the common property of UP 999;
(b)“remedy uprooting of a magnificent conifer hedge that was in the common gardens, at the entrance to O’Malley Park (OMP) (adjacent to Unit 1 fence)” (hedge issue); and
(c)take steps to recover the cost of (a) and (b) “as the remedies to above should not come at the expense of other owners”.
These proceedings were originally only against the Owners Corporation. By order of the tribunal made on 25 November 2020 Marshall Blain (Mr Blain or second respondent) and Judy Blain (Mrs Blain or third respondent) were joined as second and third respondents (jointly now appellants). Mr Blain and Mrs Blain are the owners of unit 1 in UP 999. In summary, the position of the second and third respondents was that the relevant actions had been approved.[1] The position of the Owners Corporation was that it was unable to identify a specific approval.[2]
[1] Second and third respondent’s response dated 7 January 2021
[2] First respondent’s response dated 8 January 2021
There was a directions hearing in this matter on 14 April 2021 heard by Presidential Member M-T Daniel (Original Tribunal). At that hearing the Tribunal investigated whether it was possible to resolve the matter without a substantive hearing. In summary, at the directions hearing Mr Barzinpour indicated that he was willing to discontinue his application on the basis of an agreement with the Owners Corporation that the hedge issue would be resolved.[3] Rule 67 of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (ACAT Procedures Rules) provides for the discontinuance of proceedings. Under that rule the Original Tribunal ordered that the application was withdrawn and dismissed. The Original Tribunal set out in the orders that this was done “upon the parties having reached agreement, without admissions or finding of fault” and that various steps would be taken by the Owners Corporation in relation to the hedge issue. The path issue was not specifically mentioned. The Original Tribunal provided reasons for this decision of 14 April 2021 on 29 July 2021[4] (Original Tribunal reasons).
[3] Transcript of proceedings on 14 April 2021 page 31
[4] Barzinpour v Owners Corporation Unit Plan 999 [2021] ACAT 69
Mr Blain and Mrs Blain now appeal this decision in summary on the basis that the pathway issue was not resolved.
Summary of the decision of this Appeal Tribunal
The decision of the Original Tribunal allowed Mr Barzinpour to discontinue the proceedings. It is generally undesirable that an applicant be forced to continue litigation unwillingly, and the tribunal has a wide discretion to allow discontinuance. An order allowing discontinuance did not require the agreement of Mr and Mrs Blain. Mr and Mrs Blain now disagree with the discontinuance, but in my view the discontinuance was not unjust and they were not prejudiced by the decision to allow Mr Barzinpour to discontinue. No order was made in relation to the path issue, and Mr and Mrs Blain were therefore wholly successful on this issue. There is no basis for overturning the order implementing the discontinuance by Mr Barzinpour.
Alternatively, Mr and Mrs Blain want it recorded in the outline of the agreement between the parties that Mr Barzinpour and the Owners Corporation accepts that the paved area on the common property had been duly approved and can remain in-situ undisturbed. But there was no such agreement. This is what Mr and Mrs Blain wanted, but it was not agreed by Mr Barzinpour or the Owners Corporation who thought this issue should be left to be dealt with by the Owners Corporation. Therefore no such amendment should be made.
No ground of appeal was made out, so the appeal is dismissed.
Original Tribunal proceedings
The Application by Mr Barzinpour contained very significant detail about his claim.
The Response by the Owners Corporation as respondent dated about 6 January 2021 and then 8 January 2021 contained a brief statement as follows:
Searches of the O’Malley Park Owners Corporation Executive Committee Minutes and the Owners Corporation General Meeting Minutes … have not found any approval by the Owners Corporation for the Owners of Unit 1 to remove the conifer hedge or to install paving on common property adjacent to Unit 1 O’Malley Park.
Searches have not located email correspondence granting any approval …
The Executive Committee was reluctant to pursue this matter while the owners of Unit 1 maintained that the approvals were granted to remove the conifer hedge and to install the paving, even though the owners of Unit 1 have not presented evidence of any approvals from the Owners Corporation. This remains the position of the Owners Corporation.
Mr and Mrs Blain also provided a response dated 7 January 2021. Their position was that the removal of the conifers and the installation of some paving were the result of actions approved by the Owners Corporation and the executive committee. They indicated that they had documentary evidence of the approval and would be able to provide this once their household goods arrived overseas where they had been posted. They also provided a six page response dated 5 January 2021 for a preliminary conference.
Original Tribunal hearing
There was a directions hearing on 14 April 2021. There is a partial transcript of that hearing. The appellants raised a number of matters about it which I address below, but I do note a number of points.
The first part of the hearing is not caught on the transcript, but the transcript begins with Mr Barzinpour stating that the only approvals were as part of the February 2015 and 2016 special general meetings. The Original Tribunal then noted the size of the ACAT file, that Mr Barzinpour’s effort might be misguided, and that he should indicate what he wants as an outcome. He said this was that “someone plants the trees back”, which he was happy to pay for, and that the paving be removed.[5] This is consistent with his Application as noted in paragraph [2] above.
[5] Transcript of proceedings on 14 April 2021 page 3
The Original Tribunal then noted there did not appear to be a relevant decision of the Owners Corporation about these issues. As the Original Tribunal stated proceedings in the tribunal often seek review of Owners Corporation decisions on matters.[6] Without such a decision it was suggested that the hearing may be a mess and not resolve the issues.[7] I also note this allows the Owners Corporation to have a say on these issues under its democratic processes first, and the tribunal to review this if anyone is dissatisfied. There was discussion of adjourning the hearing until after a general meeting.[8]
[6] Transcript of proceedings on 14 April 2021 pages 5
[7] Transcript of proceedings on 14 April 2021 page 14
[8] Transcript of proceedings on 14 April 2021 page 15
After further discussion, there did seem to be agreement in relation to the replacement of the conifers. Mr Blain said: “We accept that there could be three conifers replanted, the paving stays …”.[9] Mr Barzinpour said: “I am happy that for the conifers to be restored”, though he also noted that the issue of whether the path which he wanted removed was dangerous was one for the Owners Corporation “not my issue”.[10] Mr Pratt for Owners Corporation said they would liaise with the gardener about the replacement of the trees.[11]
[9] Transcript of proceedings on 14 April 2021 page 26
[10] Transcript of proceedings on 14 April 2021 page 27
[11] Transcript of proceedings on 14 April 2021 page 29
As these comments note the position of the parties in relation to the path was a bit more complicated. However, the Original Tribunal summarised it as :“… what we could do today is decide not to … order that the bit of paving gets removed … [that] doesn’t mean that the owners corporation can’t, if issues do arise, come back to the Blains and say, ‘Look, this taking [sic] on the common property, we think it’s got issues …’”.[12] The Original Tribunal also stated that: “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” and “that will be an issue for the owners corporation in the future if they think it warrants it”.[13] The Original Tribunal later reiterated that it was for the Owners Corporation to manage the path since it was on common property; that issue was left for the Owners Corporation to manage the risk around the pathway.[14]
[12] Transcript of proceedings on 14 April 2021 page 28
[13] Transcript of proceedings on 14 April 2021 page 28
[14] Transcript of proceedings on 14 April 2021 page 31
It was on this basis that Mr Barzinpour said that he was happy to withdraw his application.[15]
[15] Transcript of proceedings on 14 April 2021 page 31
There was then further discussion about how the gardening changes would take place.[16] There was then discussion about whether Mr Pratt and others present properly represented the Owners Corporation.[17]
[16] Transcript of proceedings on 14 April 2021 pages 32-36
[17] Transcript of proceedings on 14 April 2021 pages 37-39
The Original Tribunal thanked the parties for resolving the matter. She noted Mr Barzinpour’s position of “recognising that you have to just let the Owners Corporation manage the risk around the bit of pathway …”.[18]
[18] Transcript of proceedings on 14 April 2021 page 40
As a result of that hearing the Original Tribunal made orders and gave reasons. The orders were as follows:
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 camellias 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 camellias 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 camellia hedge); unless the Owners Corporation in its management of landscaping on common property decides differently.
Original Tribunal reasons
The Original Tribunal reasons for the decision followed the discussion at the hearing summarised above. The Original Tribunal noted the agreement about the trees. She stated that towards the end of the hearing: “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”.[19]
[19] Original Tribunal reasons at [17]
The Original Tribunal noted that: 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 are not themselves an order; the only decision and order made was to dismiss the application; the Original Tribunal noted rule 67 which requires an order formally dismissing the application; the decision involves the exercise of a discretion; section 7 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) was noted in this regard; and it was noted that the law suggests that the interests of justice must be a significant consideration in making such an order.[20]
[20] Original Tribunal reasons at [19]-[24], citing Packer v Meagher [1984] NSWLR 487 and Frigger v Holbrook [2015] WASC 469
The Original Tribunal noted that she asked the applicant whether he wished to withdraw his application given the agreement about restoration of the conifer hedge, and confirmed with the parties that this would then finalise the proceedings; that there was agreement to this course of action, and that she 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.[21]
Appeal
[21] Original Tribunal reasons at [25]
The appellants appeal against this decision in an Application for Appeal dated 11 May 2021 (Application for Appeal). They state that the errors of law involved are as follows:
1. The Tribunal’s order of 14 April 2021 that the application is withdrawn and dismissed was made on the basis that a consent agreement had been reached between the parties.
2. The Second and Third Respondent [now the appellants] contend that an error of law and fact has been made as follows:
(a)The Tribunal erred in finding that the terms of the consent agreement were as recorded in the form of Order issued by the Tribunal dated 14 April 2021.
In paragraphs 4 and 5 the second and third respondents, now appellants, set out a number of reasons why the appeal should be granted, and I treat these as the grounds of appeal (grounds of appeal). I discuss them below. The substantive orders sought in the appeal were that the order of 14 April 2021 be set aside and the Application reinstated. Alternatively it was sought that the order, in fact the description of the agreement, be corrected to include as a new paragraph (f): “The Applicant (Mr Barzinpour) and the First Respondent (UP 99) accepts that the paved area on the common property outside the Second and Third Respondents (Mr and Mrs Blain [now the appellants] unit has been duly approved and can remain in–situ undisturbed”.
In a document filed on 12 August 2021 headed Response to order of 18 June 2021 the appellants provided more detailed submissions in relation to the appeal with attachments (appellant’s submissions).
In the appeal Mr Barzinpour provided a document dated 2 June 2021 (Mr Barzinpour’s appeal comments) and a document in the nature of submissions dated 12 November 2021 with attachments (Mr Barzinpour’s appeal submissions).
The Owners Corporation provided a brief submission on 4 June 2021 by Chris Pratt, acting secretary which stated:
The Executive Committee of the O’Malley Park Owners Corporation is satisfied with both the process and outcome of the ACAT hearing that resulted in ACAT Order UT41/2020 14 April 2021 and which is the subject of the Appeal AA 29/2021 Blain & Anor v Barzinpour & Anor.
It does not support the setting aside of the Order, the reinstatement of the original Application, or the expansion of the Order through the addition of further conditions.
There was hearing of the appeal on 2 December 2021. It is useful to note a few general points before addressing the specific grounds of appeal.
Nature of appeal
The appeal was dealt with as a review under section 82(b) of the ACAT Act. On that basis, the appellants need to establish an error of fact or law in the Original Tribunal’s decision in order to succeed.[22] The decision to allow discontinuance was an exercise of a discretion by the Original Tribunal. As such there is a presumption in favour of the correctness of the decision appealed from, which should be affirmed unless the Appeal Tribunal is satisfied that the decision is clearly wrong, and it is not enough that the Appeal Tribunal considers that they would have exercised the discretionary power differently.[23]
Discontinuance of proceedings
[22] ACT Civil and Administrative Tribunal Act 2008 section 79(3)
[23] Council of the Law Society of the ACT v LP 201920(David Chen) [2021] ACAT 16 at [66], and the authorities cited in the discussion before this paragraph
Rule 67 of the ACAT Procedures Rules provides as follows:
67. Discontinuing proceedings
(1)An applicant, including a counterclaimant and an appellant, may apply to discontinue an application, counterclaim or appeal using the approved form.
Note A Notice of Discontinuance is an approved form.
(2)The tribunal may consider an oral application under subrule (1) if the tribunal considers it is appropriate, necessary or convenient to do so.
(3)A notice of discontinuance must—
(a)identify each respondent to the proceeding being discontinued; and
(b)be signed and dated; and
(c)be lodged; and
(d)be given to every other party.
(4) If a notice of discontinuance is lodged, the tribunal or the appeal tribunal may by order dismiss the application, counterclaim or appeal.
(5) Unless the tribunal makes an order dismissing the application, counterclaim or appeal, the application, counterclaim or appeal continues.
This makes it clear that a person who commences proceedings in the tribunal can apply to the tribunal to discontinue them. Under rule 67(2) this can be done by an oral application. Mr Barzinpour in effect requested this orally in the Original Tribunal hearing.[24]
[24] Transcript of proceedings on 14 April 2021 page 31
But an applicant needs the approval of the tribunal to discontinue. A number of points can be made about a court or tribunal’s consideration of an application for discontinuance.[25] First, there is a broad unfettered discretion to allow discontinuance. Second, because it is undesirable that an applicant should be compelled to pursue a claim if they no longer desire to so, an application will normally be granted. Third, there is no requirement in rule 67 or elsewhere for the agreement of the other parties for the applicant to discontinue. Other parties do generally need to be notified and be given an opportunity to be heard. As to the notification of a written application, rule 67(3) provides for this. This was in effect an oral application in a hearing, and the other parties were all present and therefore had notice and an opportunity to be heard. Section 55 of the ACAT Act deals separately with powers of the tribunal if the parties reach an agreement.
[25] See Ann Street Mezzanine Pty Ltd v Beck [2011] FCA 614 at [16]-[17], Kenny J; Bluescope Steel Ltd v Allianz Australia Ltd [2012] NSWSC 1178 at [33]; Ritz Hotel Ltd v Charles of the Ritz Ltd (No. 8) (1987) 12 IPR 75 at 77; SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 283 at 311, 331-332, 355-356
Fourth, the application will generally be given unless to do so would cause an injustice to another party by removing an advantage that they may otherwise enjoy in the proceedings, or by imposing a disadvantage. I note in passing that ACAT is generally a no costs jurisdiction, subject to sections 48 and 49 of the ACAT Act. None of the circumstances set out in the exceptions in section 48 and 49 arise here, so costs issues are not relevant, and these cannot be a relevant prejudice to the appellants. Fifth, generally if the proceedings have proceeded to a contested hearing it is often regarded as unfair to allow discontinuance. These proceedings had not progressed that far.
Within this legal context the appellants seemed to argue that they did not agree to the discontinuance. But as noted their agreement was not necessary. They also seemed to argue in part that they were prejudiced or suffered an injustice by the failure to fully determine the pathway issue. But I do not think this was the case. The order sought by Mr Barzinpour was that the pathway built by the appellants on common property be removed. The discontinuance was on the basis that no such order was made. The appellants were therefore wholly successful on this issue in the proceedings.
The appellants seemed to want the tribunal to make a finding that the path had been approved by the Owners Corporation. The applicant did not seek an order that the path was not approved, though it is true that his case seemed in part based on this proposition. But as the Original Tribunal pointed out, even if the tribunal had continued to a full hearing the pathway issue may not have been resolved. And even if it was determined that the relevant part of the path had been approved, this may not have prevented the tribunal ordering its removal because the path was on common property, nor prevented the Owners Corporation taking steps in relation to the path.
None of these arguments provide a grounds for overturing the decision of the Original Tribunal to allow Mr Barzinpour to discontinue.
The appellants also seemed to argue that in effect they were prejudiced by the failure of the Original Tribunal to record fully the agreement of the parties to the path remaining. This is not a ground for overturning the order allowing discontinuance. As an alternative to overturning the decision and holding a hearing, the appellants sought that the description of the agreement of the parties which went with the order include that Mr Barzinpour and the Owners Corporation accepts that the paved area on the common property had been duly approved and can remain in –situ undisturbed.
Amendment of description of the agreement
I am not sure that a party can appeal in relation to the note in the Original Tribunal’s order, set out at paragraph [20] above. But the appellants point to section 63 of the ACAT Act. This provides that the tribunal may correct an error in an order, including a decision, that arises from a clerical mistake or accidental slip or omission. This seems to extend to the note by the Original Tribunal. This Appeal Tribunal has all the powers of the Original Tribunal.[26]
[26] ACT Civil and Administrative Tribunal Procedures Rules 2020, rule 91(a)
The appellants particularly referred to statements as to the terms of their agreement at the hearing.[27] The Original Tribunal summarised the proposals as “plant the three trees, keep the path”.[28] Mr Blain said that they could accept “three conifers planted, the paving stays”.[29] The Original Tribunal summarised the position as “that the area be replanted with three conifers … but we keep the paving because that’s improving safety for the Blains”.[30]
[27] Appellant’s submissions at [11]-[20]
[28] Transcript of proceedings on 14 April 2021 page 25
[29] Transcript of proceedings on 14 April 2021 page 26
[30] Transcript of proceedings on 14 April 2021 page 27
As noted above, this position was reflected in the order made by the Original Tribunal. Mr Barzinpour’s application was for the path to be removed. At the directions hearing he agreed to discontinue the proceedings without any order that the path be removed. Mr and Mrs Blain were therefore wholly successful on this issue. The Tribunal order provided for no change to the paving; it stayed.
The principal reason for setting out the agreement in the note was in my view to show the basis for Mr Barzinpour’s application to discontinue. There could be no discontinuance without an application by him as applicant, and this application was in effect made because of the agreement of the Owners Corporation to address the hedge issue. The note set out this agreement and how it was proposed to implement it. As stated above, the agreement of Mr and Mrs Blain was not necessary for discontinuance.
Further, in relation to the summary of the agreement reached, I do not think it should or could have included an agreement about the path as now requested by the appellants, principally because there was no such agreement between the parties.
It is true that Mr Barzinpour no longer pursued his claim for removal of the path, but he thought this should be now a matter for the Owners Corporation, as he said in the context of the discussion referred to in paragraph [40] above. He specifically maintained his position that the path was dangerous but that it could be left as an Owners Corporation issue, that is an issue for them to address in some way.[31] He did not indicate his agreement to the proposition that it had been duly approved; nor that it should remain if the Owners Corporation thought it should be removed or adjusted in some way.
[31] Transcript of proceedings on 14 April 2921 page 27
The Owners Corporation did not agree the path had been approved and thought this was a matter for further consideration, probably by a general meeting. Again in the context of the discussion referred to in paragraph [40] above the Owners Corporation representative specifically stated that a special privilege may be needed by the appellants.[32] In the appeal, Mr Pratt again stated that “to use common property does require some sort of approval from the owners corporation specifying the grounds under which it’s placed there, as a minor use or special privilege …”.[33]
[32] Transcript of proceedings on 14 April 2021 page 27
[33] Transcript of proceedings on 2 December 2021 page 20
Mr Barzinpour and the Owners Corporation did agree to leave the path, but they clearly did not agree to the term now proposed by the appellants and set out at paragraph [25] above. On this basis there was no agreement to the appellants proposed addition, and it would have been wrong for the Original Tribunal to say there was, and wrong for this Tribunal to say so.
If the appellants wish the issue of whether the path was approved to be resolved, they could bring their own proceedings. Discontinuance by Mr Barzinpour does not prevent this. But as the Original Tribunal tried to point out as the relevant part of the path is on common property this will not determine its use. Again as the Original Tribunal pointed out, the appellants may be better waiting to see what the position of the Owners Corporation is, and if it takes an action they disagree with, bring this to the tribunal.
Generally, these basic principles suggest that there are no grounds to overturn the discontinuance, or add a paragraph to the description of the agreement on which it was based.
Grounds of Appeal
Exclusion of Owners Corporation from hearing
In relation to the specific grounds of appeal I make the following comments. Ground (4)(a) of the appeal states that:
The party who was best able to represent UP 999 (the First Respondent) was excluded from the hearing through no fault of its own for the first 20 minutes due to being unable to connect to the Webex link. As such, the hearing was commenced and progressed in the absence of, and without the benefit of, the First Respondent.[34]
The appellant’s may have withdrawn this ground,[35] but for completeness I consider it.
[34] Appellant’s submissions at [21(b)]
[35] Transcript of proceedings on 2 December 2021 page 24
It is true that the Owners Corporation was not present for the first part of the Original Tribunal hearing. But they were present for the balance of the hearing, and clearly expressed their views as to the course the Original Tribunal took. There was no failure to hear and take account of the Owners Corporation’s views. Further, they stated in the Appeal Tribunal hearing that they were happy with the process.[36] This ground of appeal is not made out.
No official view of Owners Corporation
[36] Transcript of proceedings on 2 December 2021 page 36
Ground (4)(b) of the appeal is that:
The tribunal identified that no official view of owners existed outside the general discussion of an agenda line item at two AGMs when the matter was raised by the Applicant (Mr Barzinpour). The Tribunal then proceeded to resolve the matter without any evidence of, or taking account of, the wishes of the owners.
Mr Barzinpour brought his application against the Owners Corporation. This was the appropriate course. The Owners Corporation fully participated in the proceedings and hearing, subject to the minor matter raised in Ground (4)(a). The Owners Corporation was able to provide the “official view” of owners, they expressed that view in the Original Tribunal proceedings and the hearing and the Original Tribunal clearly took these views into account, indeed it determined the matter in accordance with these views. The Owners Corporation also expressed its views in the Appeal Tribunal hearing.
It is true that these views were generally those of the executive committee. The executive committee had regard to the views expressed at general meetings. Further the position of the Owners Corporation was to allow for a general meeting to consider the path issue. This position was adopted by the Original Tribunal. The Original Tribunal clearly did not resolve the matter without any evidence of, or taking account of, the wishes of the owners. This ground of appeal is not made out.
Denial of procedural fairness
Ground (4)(c) of the appeal is that “further, the Tribunal did not afford the Second and Third Respondents procedural fairness during the directions hearing”. Ground (4)(c) states that the following are particular examples of ground (4)(c). Ground (4)(d) then provides that the Original Tribunal:
…did not give the Second and Third Respondents sufficient or any opportunity to explain their situation, namely that they are residing overseas and without access to the documents necessary to respond to these proceedings. These are matters about which the Tribunal has previously made orders, but those orders, and the reasons for them, were not explored and given due consideration by the Tribunal member at this directions hearing.
The appellants participated fully in the hearing on 14 April 2021. There were given opportunities to speak. The Original Tribunal was aware they were overseas and did not have access to their documents; as discussed above the documents were not relevant to the discontinuance issue before the Original Tribunal. At any rate the appellants have been able to raise all issues in this appeal. This ground of appeal is not made out.
Ground (4)(e) provides that the Original Tribunal:
…spent the majority of the hearing time discussing matters with the Applicant, without awarding a similar opportunity to the Second Respondent and Third Respondent to put their arguments forward.
The proceedings are brought by the applicant. It is usual and appropriate to begin any hearing with him. Once he agreed to discontinue the proceedings, it was no longer necessary to continue discussing the substance of the case, since the respondents, including the second and third respondents, had in effect won. The only remaining issue was whether the applicant should be allowed to discontinue. There was significant discussion of the terms which would be used to describe the agreement reached, which the appellants participated in. It is true that they are now dissatisfied with those terms. But as discussed above I do not think that those terms were wrong. This ground of appeal is not made out.
Focus on settlement
Ground (4)(f) provides that the Original Tribunal “focussed on economy, speed and efficiency and seemed determined to settle or dispose of the matter rather than allow the issues to be properly ventilated”.[37]
[37] Appellant’s submissions at [9]-[10] and [21(a)]
Section 7 of the ACAT Act provides that the tribunal must “ensure the procedures are as simple, quick inexpensive and informal as is consistent with achieving justice”. The Original Tribunal was therefore required by law to consider the proceedings in light of these goals. It was clearly appropriate for the Original Tribunal to investigate thoroughly whether the proceedings could be resolved without a full hearing. This ground of appeal is not made out.
Assumption that approvals on portal
Ground (4)(g) states that the Original Tribunal:
…made an assumption, unsupported by any evidence, that if approvals existed, they would be on the First Respondent’s ‘portal’ and did not consider the possibility that the First Respondent’s portal was incomplete. And when explained by the First Respondent that the portal was incomplete did not duly take this into account.
The appellants provided no basis for suggesting there was such an assumption. There is no statement by the Original Tribunal to this effect. The Original Tribunal did ask: “Is it true that there’s an owners’ portal that has all approvals and AGM and EC minutes on it”, to which Mr Pratt of the Owners Corporation replied:
There is an over [sic] portal. It is not easy to navigate. I can’t tell you if they’re all there because portals have changed within the last year or two, in the last year, and I’m not the least bit convinced that the material has been transferred.[38]
It seems that the Original Tribunal accepted this statement. The appellants provided no basis for thinking the Original Tribunal did not accept this statement.
[38] Transcript of proceedings on 14 April 2021 page 22
At any rate this was only a directions hearing which did not get to the substantive issues. The Original Tribunal investigated if the matter could be resolved by agreement, and when the applicant agreed to discontinue the proceedings there was simply no need to consider the issue of whether an approval did exist. This ground of appeal is not made out.
Failure to consider if there were approvals for the camellias
Ground (4)(h) states that the Original Tribunal “did not explore or allow proper ventilation of the issue whether the approvals for the camellias existed”.[39]
[39] This is also raised in the appellant’s submissions at [7], [8] and [9]
Again this was only a directions hearing which did not get to the substantive issues. The Original Tribunal investigated if the matter could be resolved without a full hearing, and when the applicant agreed to discontinue the proceedings there was simply no need to consider this issue. The Original Tribunal only needed to consider whether she should allow discontinuance. This ground of appeal is not made out.
Original Tribunal offered only limited solutions
Ground (4)(i) states that the Original Tribunal:
…offered only two solutions: (i) proceed to an SGM [special general meeting] to determine the view of all the owners (which would be scheduled at a time prior to the Second and Third Respondent having access to their documents which are still in transit from Australia) or (ii) reach an agreement with the Applicant during the session. This applied undue pressure to the Second and Third Respondents to convince them to consent to the proposed outcome during the session.
First, the Original Tribunal stated that if there was no agreement, the matter could proceed to a hearing. Second, there was discussion of a special general meeting to resolve issues, which was appropriate given the nature of the issues. Third, the Original Tribunal encouraged resolution of the proceedings by some form of agreement which would support of discontinuance by Mr Barzinpour. In light of the terms of the ACAT Act noted above this was appropriate. Fourth, the Original Tribunal checked with the parties that they were happy with the agreement reached. There was significant discussion of the terms which would be used to describe the agreement reached, which the appellants participated in. It is true that now they are now dissatisfied with those terms. But as discussed above I do not think that those terms were wrong. This ground of appeal is not made out.
Original Tribunal did not consider the majority of the owners
Ground (4)(j) states:
…importantly, the Tribunal, without any knowledge of the majority of the owners, proceeded to focus on a solution that treated the Applicant as if he were the sole owner of UP999 and, by doing so, derogated the interests of the remaining 34 owners of the units plan (O’Malley Park) who have a proprietary right to make decision about the use of the common property.
First, the Owners Corporation was a party to the proceedings. I do not see any basis for suggesting that the Original Tribunal treated the applicant as the sole owner. Rather the Original Tribunal sought the views of those who represented the Owners Corporation, who clearly expressed their views. They have also clearly expressed their views in these Appeal Tribunal proceedings. The discussion of a special general meeting indicated that the views of all the owners should be sought in relation to the path issue. In contrast the position now proposed by the appellants pays no regard to the views of the other owners, and does not provide for this to be determined. This ground of appeal is not made out.
Original Tribunal failed to record agreement about the path
Ground (5)(a) is that in the alternative, the Original Tribunal “failed to take account of, and record, it was a stated condition and an integral part of the outcome that the paved path remains in-situ”. As stated above, the order made does leave the path in situ. The applicant discontinued the proceedings and the appellants were wholly successful on this issue. The appellants now seek the note to state that there was an agreement on the path in terms which neither Mr Barzinpour nor the Owners Corporation agreed with at the Original Tribunal hearing, and in this appeal they continue to not agree with it. I do not see how it could be recorded that there was an agreement when it is something only the appellants want, but which neither Mr Barzinpour nor the Owners Corporation agree with. This ground of appeal is not made out.
Ground (5)(b) is that “the written note of the Second and Third Respondent record: ‘provided the path stays’”. It is clear that Mr and Mrs Blain want the path to stay. Nothing in the Original Tribunal hearing or decision suggests otherwise. Mr Barzinpour’s application was for the path to be removed. At the directions hearing he agreed to discontinue the proceedings without any order that the path be removed. Mr and Mrs Blain were therefore wholly successful on this issue. This ground of appeal is not made out.
Ground (5)(c) is that “s63 of the ACAT Act, states: ‘The tribunal may correct an error in an order, including a decision, of the tribunal that arises from a clerical mistake or accidental slip or omission’”. It is true that the tribunal may correct an error. But the appellants have not made out an error. This ground of appeal is not made out.
Ground (5)(d) is that:
the proposed new paragraph (f) [set out above at paragraph [25]] to the notes on the orders dated 14 April 2021 describes a key part of the agreement reached between the parties during the hearing before Presidential Member Daniels on 14 April 2021, but it has through clerical mistake or accidental slip or omission not been recorded in the form of orders produced by the Tribunal.
As noted, Mr Barzinpour wished to discontinue his proceedings without any order that the path be removed. Mr and Mrs Blain were therefore wholly successful on this issue. Mr Barzinpour thought that the path issue should be resolved by the Owners Corporation, as did the Owners Corporation. The paragraph proposed by the appellants sets out the position of the appellants, but it does not set out the position of the other parties, and there was therefore no such agreement. This ground of appeal is not made out.
Ground (5)(e) is that: “therefore, pursuant to section 63 of the ACAT Act, the order ought to be corrected to include, as a new paragraph (f)”, set out above at paragraph [25]. Again, as noted, Mr Barzinpour wished to discontinue his proceedings without any order that the path be removed. Mr and Mrs Blain were therefore wholly successful on this issue. Mr Barzinpour thought that the path issue should be resolved by the Owners Corporation, as did the Owners Corporation. The paragraph proposed by the appellants sets out their position, but it does not set out the position of the other parties, and there was therefore no such agreement. This ground of appeal is not made out.
Summary
The appellants have failed to make out an error of fact or law in the Original Tribunal decision, nor a basis for amending the note of the Original Tribunal. Their appeal is therefore dismissed and no amendment of the note is made.
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| Date(s) of hearing | 2 December 2021 |
| First Appellant: | In person |
| Second appellant: | In person |
| First Respondent: | In person |
| Second Respondent: | Mr C Pratt, Ms J Cook, Ms J Vale, authorised representatives |
Acting Presidential Member R Orr
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