Blain & Anor v Barzinpour & Anor (Appeal) - [2022] ACAT 48

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 487
Frigger 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] ACAT 48
Decision Date: 9 June 2022

CaseChat Overview and Summary

In the case of Blain & Anor v Barzinpour & Anor (Appeal), the appellants sought to challenge the decision of the Original Tribunal to grant an application to discontinue a proceeding. The dispute involved the removal of a conifer hedge and the construction of a path on common property, which was brought by one unit owner against another and the Owners Corporation. The appeal was heard by the Appeal Tribunal, which had to determine whether the Original Tribunal was correct to allow the discontinuance and if the summary of the agreement was accurate.

The primary legal issues before the Appeal Tribunal were whether the Original Tribunal had correctly allowed the discontinuance and whether it had accurately summarised the agreement. The appellants argued that the Owners Corporation was not properly heard, that there was no official view of the owners, and that the Tribunal did not afford procedural fairness to the respondents. The Tribunal had to assess if the Owners Corporation's views were properly considered and if the procedural fairness was maintained throughout the proceedings.

The Tribunal found that the Owners Corporation was present for the majority of the Original Tribunal hearing and had expressed their views, which the Tribunal took into account. There was no failure to hear and consider these views. Regarding the lack of an official view, the Tribunal determined that the Owners Corporation had indeed expressed their official stance, and this was considered in the decision-making process. As for procedural fairness, the Tribunal noted that the appellants had been given opportunities to speak and were aware of the respondents' situation, although this was not directly relevant to the discontinuance issue. The Tribunal concluded that the grounds of appeal were not substantiated.

In summary, the appeal was dismissed, affirming the Original Tribunal's decision to grant the application to discontinue and its summary of the agreement. The Tribunal upheld the process and decisions of the Original Tribunal, finding that the appellants' claims of procedural errors and lack of consideration of the Owners Corporation's views were unfounded.

Orders

Orders of the court

The Tribunal orders that:

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.