Brudenall v The Owners - Units Plan No 202 (Appeal)
[2019] ACAT 96
•22 October 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BRUDENALL & ANOR v THE OWNERS – UNITS PLAN NO 202 (Appeal) [2019] ACAT 96
AA 53/2018 (UT 12/2018)
Catchwords: APPEAL – unit titles – meaning of special resolution about maintenance – does ‘roofing’ include removal and replacement of roof
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 79, 82
Unit Titles Act 2001 s 51
Unit Titles (Management) Act 2011 s 24
Cases cited: August v Commissioner of Taxation [2013] FCAFC 85
B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219
Brudenall v The Owners Corporation of Units Plan No. 202 [2018] ACAT 113
Brudenall v Owners Corporation Unit Plan No.202 [2016] ACAT 101
Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153
CDJ v VAJ [1998] HCA 67
Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192
Edwards v Noble (1971) 125 CLR 296
Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425
Hillier v R [2008] ACTCA 3
ISPT Pty Ltd v Commissioner for ACT Revenue [2013] ACAT 43
Jovanovic v R [2015] ACTCA 29
Leighton v The Queen [2017] ACTCA 55
Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2005] FCA 1812
Mansour v Dangar [2017] ACAT 49
Mulholland v Mitchell [1971] AC 666
NRMA Ltd v Parkin [2004] NSWCA 153
Paul v Registrar, Domestic Animals Act2000 [2019] ACAT 38
The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207
Theodorelos v Nexus Projects Pty Limited [2009] ACTSC 149
The Owners Corporation Units Plan 202 v Brudenall & Ors [2015] ACAT 64
The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207
The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270
Warren v Coombes (1979) 142 CLR 531
Tribunal: Presidential Member MT Daniel
Member D Mulligan
Date of Orders: 22 October 2019
Date of Reasons for Decision: 22 October 2019AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 53/2018
BETWEEN:
SUE BRUDENALL
Appellant
DUNCAN LESTER
Party Joined
AND:
THE OWNERS - UNITS PLAN NO 202
Respondent
TRIBUNAL: Presidential Member MT Daniel
Member D Mulligan
DATE: 22 October 2019
ORDER
The Tribunal orders that:
1. The orders of 8 November 2018 on matter UT 12/2018 are confirmed.
2. The application for appeal is otherwise dismissed.
………………………………..
Presidential Member MT Daniel
For and on behalf of the Tribunal
REASONS FOR DECISION
Background
1. This appeal relates to a unit complex, units plan number 202. Up until sometime in 2018, the appellant lived in the complex. The party joined currently lives in the complex.
2. Units Plan 202 is made up of 21 Class A units and 7 Class B units.
3. Class A units are apartments built in multi-unit buildings. Their roofs cover more than one apartment and are common property, thus being maintained by the owners corporation. Class B units are built as individual townhouses. Each own their own roofs, and they would normally be responsible for their own roof maintenance.
4. From its inception, the owners corporation for Units Plan 202 (the owners corporation) treated the exterior of the Class B units the same as the exterior of the Class A units, for maintenance purposes. This did not always go smoothly, and the legal basis for this approach was questioned.
5. On 6 May 2002, the owners corporation held an annual general meeting (the 2002 AGM).
6. At that time, section 51(3)(f) of the new Unit Titles Act 2001 provided a mechanism under which an owners corporation could impose upon itself the obligation undertake maintenance work on Class B units. It stated:
51 General duties
(3) An owners corporation must maintain the following:
…
(f) as authorised by a special resolution (if any)—all buildings on all Class B units on the units plan.
Example for par (f) A special resolution authorising the corporation to paint all buildings on the Class B units and to carry out roofing and structural repairs to all Class B units, but excluding responsibility for internal painting and minor repairs of Class B units.
7. Relying upon section 51(3)(f), a motion about maintenance on the Class B units, Motion 5, was passed at the 2002 AGM. It was recorded in the minutes as follows:
Maintenance –
MOTION 5
Moved Mr Fleming, seconded Mr Fletcher and carried that pursuant to section 51 (3)(f) of the Units Titles Act 2001 the Corporation be responsible to paint all buildings on the Class B units (being Units 1 – 7 inclusive) and to carry out roofing and structural repairs to all Class B units (being Units 1 – 7 inclusive) but excluding responsibility for internal painting and minor repairs of Class B units (being Units 1 – 7 inclusive).
It was agreed that Mr Fletcher should be notified if any roofing work is necessary as it transpires that the roofing contractors tend to ascend the roof in the vicinity of his unit.
8. Thirteen years later, an application was brought in the tribunal seeking orders declaring Motion 5 invalid on the basis that it had not been properly passed as a special resolution. A separate application was also brought, seeking orders setting Motion 5 aside after merits review.
9. The issue of whether Motion 5 was passed by way of special resolution was significant, as under the applicable legislation the owners corporation is only required to undertake and pay for maintenance work on Class B units, to the extent that it has bound itself to do so by way of special resolution.
10. Simply put, if there was no special resolution, the Class B unit owners would be responsible for the maintenance of their own units.
11. In The Owners Corporation Units Plan 202 v Brudenall & Ors [2015] ACAT 64 (the first decision), the tribunal considered how Motion 5 had been passed at the 2002 AGM and declared that Motion 5 was passed as a special resolution.
12. The tribunal then undertook merits review of Motion 5 in Brudenall v Owners Corporation – Units Plan No.202 [2016] ACAT 101 (the second decision). The tribunal considered the lengthy background to and reasons for the passing of Motion 5, and considered the arguments for and against retaining Motion 5. In relation to the submission that Motion 5 was ‘unlawful’, the tribunal held at paragraph 32, that the:
Costs of maintaining the Class B units as required by Motion 5 are an expense to the owners corporation as a whole, and these costs are met through the annual levying of contributions from owners in accordance with their unit entitlements. This state of affairs is correct according to law – the ‘law’ being the combination of the legislation, which is of general application, and Motion 5 which is a resolution specific to units plan 202.
13. The tribunal also addressed the argument that Motion 5 was unfair to the owners of Class A units as it required them to, in effect, subsidise the maintenance costs of Class B unit owners. The tribunal held, at paragraph 50:
In terms of fairness to members of the owners corporation, it can be concluded that every current owner now bound by the terms of Motion 5 either voted in favour of it in 2002, failed to cast a vote after being notified, or purchased their unit having been advised of the existence of a special resolution. There is no unfairness in requiring those members to continue to abide by Motion 5.
14. Having conducted a merits review the tribunal in the end declined to set Motion 5 aside, or replace it with an amended motion which set out differential methods of levying payment to finance the obligation. The tribunal highlighted the mechanisms the owners could adopt if they wished to change the obligation to maintain the Class B units, imposed by Motion 5, or the way unit owners were to contribute to those expenses:
51. For these reasons the Tribunal decided that of the two decisions open to it, the preferable decision was to allow Motion 5 to remain in place at this time. This outcome leaves the owners corporation with the facility at a future general meeting to either:
(a) put forward a Motion for an unopposed resolution setting out a method of calculating contributions to finance Motion 5;
(b) put forward a Motion for the repeal of Motion 5; or
(c) leave Motion 5 and the current method of levying contributions to finance Motion 5 unchanged.
15. For various reasons, the steps recommended by the tribunal to repeal, amend or supplement Motion 5 have not been taken and it continues to remain in force.
16. By late 2016 the owners corporation was intent on undertaking roof repairs on all the Class A and Class B properties.
17. Investigations were undertaken and plans were made about how best to proceed. It was proposed that all of the concrete tile roofs of the Class A and Class B units be removed and replaced with Colorbond pressed steel roofing. Factors such as performance, cost, and a desire for uniform appearance across the units were considered.
18. At the General Meeting of 15 November 2016 the owners corporation passed Motion 1(a) which stated:
Motion 1(a) it was resolved that, as the Owners Corporation has agreed it wishes to proceed with a complete roof replacement and restoration is no longer an option, the existing roofs of the apartments and townhouses be replaced with colorbond; the colour to be determined during the design phase of the project.
Proposed: Bob Calvert Seconded: Heidi Wilson
For: 17 Against: 5 Carried
19. A contract for these works was signed by the chairman of the executive committee on behalf of the owners corporation in November 2017. Copies of that agreement were not made available to the owners of the units and the document was not placed on the owners corporation web portal, where other relevant documents were normally posted and made available to unit owners.
20. The works were undertaken in 2017 and 2018.
21. The appellant was concerned that the replacement of the existing roofs on the Class B units went beyond the concept of ‘repair’ which was required, and authorised, by Motion 5, and that consequently it was inappropriate to require Class A unit owners to contribute to the costs of the new roofs on the Class B units. On 19 April 2018 the appellant filed an application at ACAT seeking four declarations:
1. That agreement to Motion 5 at the 2002 AGM pursuant to s51(3)(f) of the Unit Titles Act 2001 does not oblige the Owners Corporation to pay for improvements or upgrades to the Class B townhouses in addition to paying for their painting, roofing and structural and [sic] repairs
2. That the total replacement work which substantially alters each Class B townhouse roof from one of cement tiles to one of colorbond metal, with associated new roofing structures, is a capital works improvement which provides greater functional efficiency and increases value at a high cost for which Class A owners should not have been levied in 2017-18 as a requirement under Motion 5.
3. That each Class B owner should be invoiced by the Owners Corporation for the costs of his/her roofing upgrade to colorbond roofing (including for any associated improvements such as gutterguard and parapet capping) on the completion of the works and after payment of invoices in 2018; these costs to be calculated under UT(M)A 2011, s29 Work on behalf of particular unit owners and s30, Recovery of costs.
4. That the Contract signed in November 2017 by the Chair of the EC on behalf of the Owners Corporation UP 202 for the total roof replacement should be made available to all owners as each owner is a party to the Contract and as Section 119 and Section 121 of the Unit Titles (Management) Act 2011 apply.
22. The application was heard on 12 July 2018 and the decision reserved.
23. On 8 November 2018 the Tribunal (the Original Tribunal) handed down its decision declining to make the declarations sought. (Brudenall v The Owners Corporation of Units Plan No 202 [2018] ACAT 113) (the third decision).
24. In the third decision the Original Tribunal recast the basis of the first three declarations sought by the appellant in the following way:
11. It became apparent in the course of the hearing that the motivation for the applicant seeking the declarations numbered 1 to 3 in the orders sought was in order to settle a dispute in interpretation of use of this word ‘maintain’ in Motion 5. The applicant and some other owners were of the view that maintain as used in the Act and Motion 5, meant the repair of an existing structure, and did not include complete replacement of the structure. If the work was not maintenance, then there was no obligation cast on the owners corporation to undertake it and there should not be a charge spread among all owners in the units plan. They advanced a number of arguments in support of their contention which are set out at length in the submissions filed by the applicant in the proceedings. The owners corporation opposed this view.
12. Thus rather than examine each of the orders sought by the applicant, it is appropriate to examine the dispute underlying the orders sought by the applicant to solve it. Then, if appropriate, to decide what orders would be appropriate to resolve it. The dispute can be articulated as follows:
• Was the roofing work undertaken by the owners corporation which involved replacement of old concrete tile roofing with a pressed steel Colorbond product ‘maintenance’ for the purposes of the Units Title (Management) Act and Special Resolution 5?
13. The arguments advanced by the applicant appear to overlook the definition of ‘maintenance’ in the dictionary to the Act which is as follows.
maintenance, of a building, a facility for a utility service or a utility conduit, means maintenance in good repair and working order, and includes—
(a) repair; and
(b) replacement; and
(c) renewal; and
(d) restoration.
14. Thus ‘maintenance’ as an obligation of the owners corporation is considered on the scale of maintenance of a building as a whole and requires consideration of keeping it in good repair and working order. That process would include repair or replacement of parts of the building when they fell into disrepair or poor working order. The roof of a building is obviously part of the building.
15. It was quite clear on the evidence of witnesses and in the owners corporation minutes that the roofs of the strata complex required intermittent maintenance by way of minor repair from time to time. However over the years the condition of the roofs continued to deteriorate and a stage was reached, and passed, at which it was no longer functionally efficient to make minor repairs on an ad hoc basis. A different approach was required. Appropriate investigations were made and a decision was reached that the preferable way to restore the former efficient function of the roofing in the complex was replacement.
16. At the time that decision was made an arguably more efficient and suitable roofing method than concrete tiles had become available using a pressed steel product called ‘Colorbond’. The Tribunal does not accept the argument that adoption of this product constituted a ‘capital improvement’ to the building. Maintenance is not restricted to using concrete tiles similar to those previously used, or continuing minor repairs long past the time that they were either an efficient or cost effective means of dealing with deterioration of the roofing. The buildings had to have efficient roofing and it was an available option to use the best available method to ensure the building had roofing in good working order. In replacing the deteriorated roofing with the pressed steel material the owners corporation acted in accordance with the definition of ‘maintenance’ in the Act by restoring the former efficient function of the roofing to units in the strata plan. Technology had advanced since the installation of the original concrete tile roofing and in the opinion of the Tribunal the owners corporation was not limited to the former product in its choice of materials in order to conform to its obligation to maintain.
25. For those reasons the Original Tribunal declined to make the first three declarations sought by the appellant.
26. The Original Tribunal also declined to make the fourth declaration requiring provision of a copy of the contract for the roofing works. The Original Tribunal also recast this issue, in the following way:
19. …Also as with the other three, it can be isolated as a single point of dispute as follows:
• Appropriate orders are sought by the applicant from the Tribunal that the owners corporation make available to qualified persons on application pursuant to Part 7 of the Unit Titles (Management) Act to inspect and if required take copies of documents referred to in S119(3) of the Act including a copy of the roofing contract.
20. The evidence fails to establish that any ‘eligible person’ for the purposes of section 119 had made a request and adopted the procedure set out in section 119(5) in attempting to gain access to a copy of the roofing contract. Therefore no dispute between the owners corporation and an owner or occupier was disclosed on the evidence.
21. In any event, there seems to be no utility in pursuing the issue further since documentary material produced by the respondent in the course of making written submissions, but on the face of it apparently admissible in the proceedings, indicates that the applicant is no longer the owner of her former unit in the units plan and has not been so since 20 July 2018. The applicant’s written submissions in reply agree that is the case.
27. The appellant now appeals the third decision.
Preliminary applications and orders relating to the appeal
28. On 21 December 2018, the tribunal heard an application relating to whether the appellant had standing to bring the appeal given that she was no longer a member of the owners corporation. On 29 January 2018, the tribunal resolved that the appellant did have standing to bring the appeal.
29. On 22 March 2019, an interested party, Mr Duncan Lester, was joined to the proceedings. He provided the Appeal Tribunal with written submissions but did not take an active part at the appeal hearing. He was represented by the appellant during the course of the appeal.
30. On 25 March 2019, the Appeal Tribunal determined an application to introduce fresh evidence made by the appellant. The application related to 17 documents.
31. In Paul v Registrar, Domestic Animals Act2000 the tribunal considered the power of the Appeal Tribunal to admit fresh or further evidence on appeal:
17. Section 21(c) of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (the Rules) provides that the Appeal Tribunal “may receive further evidence about questions of fact, either orally in a hearing, by written statement or in another way”. The Rules do not prescribe how the power is to be exercised. The approach of the Appeal Tribunal is to apply the principles established in relation to similar statutory powers in other jurisdictions.
18. The overarching principle is that the power is “remedial” and “exists to serve the demands of justice.”
19. At a systemic level, it is not usually in the interests of justice to allow new evidence on appeal because this is inconsistent with the appellate nature of the proceedings, and the public interest in finality of litigation.
20. However, in an individual case it may be in the interests of justice for new evidence to be admitted on appeal if it is established that:
(a) the evidence would, or was likely to, have produced a different result; and
(b) there is an acceptable reason for the evidence not being put before the Original Tribunal.
21. For the second factor, the Appeal Tribunal will consider whether the new evidence could have been procured with reasonable diligence for the original hearing, and if it could have been, why it was not. It has been said that a forensic decision not to call evidence at the original hearing “will weigh heavily against its reception on appeal” but evidence may more readily be admitted on appeal where an irregularity in the proceedings prevented a party from putting his or her case effectively.
32. After hearing the parties’ submissions on each document, the Appeal Tribunal accepted two of the 17 documents on the appeal. These were documents four and twelve:
(a) An email dated 19 December 2017 from the appellant to the strata manager requesting a copy of the signed contract; and
(b) A copy of a document entitled UP 202 Argyle Square Stage 1: Executive Committee Meeting, 30 January 2018.
33. The remaining 15 documents were not accepted as fresh evidence on the appeal; either because they were already before the Appeal Tribunal as part of the evidence before the Original Tribunal, or because they were unlikely to have produced a different result.
34. During the hearing of the appeal, a further document being a letter from the strata manager to the owners about proposed Motion 5, dated 9 April 2002, was also admitted as fresh evidence on the application of the owners corporation.
The appeal
35. The application for appeal relates to two statements made by the Original Tribunal in the November Decision. The two impugned statements are:
1. “Was the roofing work undertaken by the owners corporation which involved replacement of old concrete roof tile roofing with a pressed steel Colorbond product ‘maintenance’ for the purposes of the Unit Title (Management) Act and Special Resolution 5” (page 5 of Decision of 8 November 2018);
And,
2. “Appropriate orders are sought by the Applicant from the Tribunal that the owners corporation make available to qualified persons on application pursuant to Part 7 of the Unit Titles (Management) Act to inspect and if required to take copies of documents referred to in s119 (3) of the Act including a copy of the roofing contract.” (Page 6 of Decision of 8 November 2018)
36. In relation to the first impugned statement, the appellant submitted that the statement misquoted Motion 5 and thus misunderstood her argument, and pointed to 10 aspects of the third decision, many flowing from the first impugned statement, in which the Original Tribunal fell into error.
37. In relation to the second impugned statement, the appellant referred to Document 4 admitted on the appeal, to submit that a qualified person had already applied for a copy of the contract and thus the Tribunal was incorrect in not ordering it to be made available.
38. The appellant asked the Appeal Tribunal to make six orders:
1. That the Orders of 8 November 2018 be set aside.
2. That the Executive Committee of UP 202 be directed to implement Motion 5 of 2002 in accordance with its specified inclusions and exclusions, noting that maintenance obligations as required by s 24 of the Unit Titles (Management) 2011 Act for the common property Class A units are not also authorised under s 24 (1) (g) for the Class B units.
3. That the Strata Manager at Independent Strata Management invoice the seven (7) Class B owners, on a proportional basis, for the $48,588 which is the amount owing to Class A owners who contributed to the extra levies for the colour bond roof and its additional features. This figure is invoiced under s 29 work on behalf of particular unit owners or occupiers and s 30 Recovery of costs-agreements under s 29 of the UT(M)A 2011.
4. That each Class A owner who contributed to the extra levies of 2017 – 18 is to be reimbursed on a proportional basis from the $48,588 recovered.
5. That the signed Contract for the roof works is to be made available by the Executive Committee via Independent Strata Managers to any owner on request.
6. that the application costs of the Appellant ($599) for the Appeal and for the original case ($150) are to be reimbursed by the Respondent.
39. The substantive appeal was heard on 16 April 2019.
40. At the commencement of the hearing, the respondent confirmed that the roofing contract, signed by the former chairman of the executive committee in November 2017, would be made available to all unit owners via the owners corporation web portal. The appellant advised that she had now been given a copy of the contract. Accordingly, the appeal insofar as it related to the second impugned statement and proposed order 5 did not require argument and was treated as resolved.
41. The appellant set out her submissions in relation to the first impugned statement and 10 alleged errors in the appellant’s written submissions of 18 February 2019. These submissions were augmented by the appellant’s oral submissions at the appeal hearing on 16 April 2019. The respondent also filed written submissions, and Mr Donohue on behalf of the respondent attended the hearing and made oral submissions.
42. The Appeal Tribunal thus had before it all of those submissions, together with all of the evidence received by the Original Tribunal and the fresh evidence. The parties also referred the Appeal Tribunal to their written submissions made before the Original Tribunal.
43. After hearing the appeal on 16 April 2019, we reserved our decision.
Principles applying to appeals
44. There is no appeal as of right from a decision of the Tribunal. Pursuant to section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), an appeal lies only on ‘a question of fact or law’. To succeed with an appeal the appellant must establish error of fact or law by the Original Tribunal, rather than simply persuading the Appeal Tribunal to reach a different conclusion on the merits.
45. Section 82 of the ACAT Act provides that the Appeal Tribunal may hear the appeal as a new application or as a review. In this case, the appeal was dealt with as a review. In an appeal conducted by way of review, an appellant must satisfy the Appeal Tribunal that the original decision-maker erred in fact or law, and that the error was material to the outcome.
46. When conducting an appeal by way of review, the Appeal Tribunal must proceed by reference to the original decision. In Mansour v Dangar, the tribunal said:
…appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal’s findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal’s primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal should not interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion..
47. The appellant provided a ‘list of errors of fact and/or law in the decision of 12 December 2018’ specifying 10 errors of fact and law, which if accepted by us were submitted to warrant the making of the orders sought by the appellant. We will address each asserted error specifically, although there is a degree of commonality to those that flow from the first impugned statement.
The first alleged error
“The Tribunal errs in fact and law in making the statement that the word ‘Maintain’ is included in the wording of Motion 5 of 2002. The word ‘Repairs’ is the actual word included in Motion 5’. The appellant submitted that this error has resulted in a significant misrepresentation by the Tribunal that ‘maintenance’ is therefore the legal obligation agreed on by the owners’ corporation for the Class B units. The fact is that ‘Repairs’ is the single component of maintenance specified by the Special Resolution of Motion 5.”
48. The text of Motion 5 does not contain the word ‘maintain’ but only the word ‘repair’. The appellant submits that this error in describing Motion 5 was material to the third decision, and pointed to multiple aspects of the third decision in which the misquotation, and the reasoning that flowed from it, was repeated or relied upon.
49. The appellant is correct in the assertion that Motion 5 does not include the word ‘maintain’. The Original Tribunal erred in fact in that regard. The question for the Appeal Tribunal is whether that factual error led the Original Tribunal to also err in its conclusion as to the meaning and thus effect of Motion 5.
50. There is a preliminary question of what principles should be applied to the interpretation of Motion 5: should it be approached using principles of statutory interpretation or should we apply principles developed in the interpretation of contracts?
51. An argument can be made that the passing of Motion 5 by special resolution entrenched it in the operation of the owners corporation by virtue of section 51 (and now section 24) with status equivalent to a rule. It connects with the legislation in a way that arguably gives it the character of delegated legislation. There is authority suggesting rules are in the nature of delegated legislation and should be interpreted using principles of statutory interpretation while other authority concludes that rules put in place by resolution should be interpreted using the ordinary rules of contractual construction. In many cases, this distinction will be of no significance given the similarity of many of the principles. Motions of a corporation are usually interpreted using principles of contractual construction, although some principles of contractual construction may be excluded where a motion serves a public purpose.
52. It is not necessary for the Appeal Tribunal to form a concluded view in this matter on the debate about interpretation of rules. We do not consider that Motion 5 is equivalent to a rule, or that it is delegated legislation, or that it serves a requisite public purpose: it is merely a motion expressing an agreement reached by the necessary majority of members, and is in its application limited to the internal administration of the body corporate.
53. We are satisfied that such a resolution of an owners corporation should be interpreted using principles of contractual construction rather than statutory interpretation.
54. There is also a preliminary issue as to whether the meaning of Motion 5 is a question of fact or law. As noted above at paragraph 46, if it is a question of law the Appeal Tribunal’s view of its meaning must be applied. Whether approached as statutory in nature, or contractual, the correct meaning of Motion 5 is a question of law on which the Appeal Tribunal’s view is to be adopted.
55. We turn then to the fundamental question of what Motion 5 means.
56. The extract of the minutes referring to Motion 5 is in the following terms:
10.3 Maintenance
MOTION 5
Moved Mr Fleming, seconded Mr Fletcher and carried that pursuant to section 51 (3) (f) of the Units Titles Act 2001 the Corporation be responsible to paint all buildings on the Class B units (being Units 1 – 7 inclusive) and to carry out roofing and structural repairs to all Class B units (being Units 1 – 7 inclusive) but excluding responsibility for internal painting and minor repairs of Class B units (being Units 1 – 7 inclusive).
It was agreed that Mr Fletcher should be notified if any roof work is necessary as it transpires that the roof contractors tend to ascend the roof in the vicinity of his unit.
57. The appellant views the use of the word ‘repairs’ in Motion 5 as being significant because it appears to have a subsidiary meaning to the term ‘maintain’, as defined in the Unit Titles Act 2001 and in the Unit Titles (Management) Act 2011.
58. The dictionary to both Acts defines ‘maintenance’ as:
maintenance, of a building, a facility for a utility service or a utility conduit, means maintenance in good repair and working order, and includes—
(a) repair; and
(b) replacement; and
(c) renewal; and
(d) restoration.
59. The appellant argued that the concept of maintenance under the legislation combines the concepts of repair, replacement, renewal and restoration: ‘repair’ being a subset of maintenance and distinct from any of the other three concepts, particularly that of ‘replacement’.
60. The appellant submitted that the ordinary meaning of the word ‘repair’ does not include complete replacement.
61. The appellant argued that the proper interpretation of Motion 5 is that the owners corporation should be responsible for ‘roofing repairs’. In practice this would mean that Motion 5 authorised the owners corporation to repair the existing Class B unit roofs by swapping damaged concrete roofing tiles with new concrete tiles. In other words, a like for like repair of any damage to the roof.
62. The respondent submitted that the word ‘roofing’ can be adjectival or a verb or a noun, and that the absence of an Oxford comma in Motion 5 was not definitive. In other words, that Motion 5 could be parsed with ‘roofing’ as a separate concept to ‘structural repairs’ as legitimately as it could be parsed as meaning ‘roofing [repairs] and structural repairs’. The respondent submitted that there was no grammatical reason why the word ‘repairs’ must be read into Motion 5 after the word ‘roofing’.
63. The respondent submitted that the definition of ‘maintenance’ in the legislation is inclusive and does not specify or require that the subordinate words are mutually exclusive: in other words, activities which are ‘repairs’ may also be ‘removal’ or ‘replacement’. The respondent submitted that even if the word ‘repair’ was read in after the word ‘roofing’, on its ordinary meaning the word ‘repair’ included the concept of ‘replacement’.
64. The respondent pointed to the history and factual context of Motion 5 to submit that there was no basis on which to conclude that the owners corporation had intended ‘roofing’ in Motion 5 to have a limited meaning of “only repairs which do not constitute an improvement”. On the contrary, the respondent submitted that the ‘intention’ of Motion 5 was to treat class A and B units equally as much as possible in relation to maintenance. In this respect the respondent drew the attention of the Appeal Tribunal to the 2002 email, which had been before the first and second tribunal, noting that the email suggested that a special resolution could be passed to “treat both A and B class units equally as regards maintenance and levies”.
65. The Appeal Tribunal does not interpret the phrase in Motion 5 “to be responsible to paint all buildings on the Class B units and to carry out roofing and structural repairs” in the same way as either the Original Tribunal or the appellant.
66. According to the Oxford Dictionary of English, Second Edition, the word ‘roofing’ means the process of constructing a roof or roofs, as well as bearing a secondary meaning of material used to construct a roof. The Macquarie Dictionary also defines the term variously as “the act of covering with a roof”; “material for a roof”; and “a roof”.
67. Objectively, the text of Motion 5 is open to various interpretations. We have considered the statutory and factual context within the motion came to be passed, to determine its intended operation and assist in identifying the preferable interpretation. We are satisfied from the surrounding circumstances that the objective was to approach maintenance on the class B units in a way as similar as possible to maintenance of the common property on Class A units. This would provide a legitimate basis in the future for the approach the owners corporation had previously taken. The words used in Motion 5 were taken directly from the example to the (then) new legislation.
68. We consider what is being authorised by Motion 5 are three distinct types of maintenance on the Class B units:
(a) To paint all buildings (but not internal painting);
(b) To carry out roofing; and
(c) To carry out structural repairs (but not minor repairs);
69. We see that action of roofing as being distinct from the two other forms of maintenance authorised by Motion 5; painting and structural repairs.
70. We consider the term ‘roofing’ in Motion 5 authorised the executive committee to find and implement the most appropriate manner of maintaining the roof, just as it did with the Class A units, including by way of roofing with a new Colorbond roofing system. Motion 1(a) was then the decision of the owners corporation as to the work to be undertaken.
71. We take the view ‘roofing’ was undertaken on the Class B units’ roofs in 2017/2018 when the new Colorbond roofs were installed on the Class B units.
72. We note the submission by the appellant that there may have been additional insulation put in place as a part of the roofing works. It is a fine distinction to determine whether the addition of insulation after removal of a more insulating roof material and replacement with a less insulating material, is still maintenance of a roof or has become a different activity. This point was not fully developed at the appeal. Because of our conclusion about Motion 1(a), it is not necessary to determine this issue.
73. For completeness, we note that if the submission of the appellant were accepted, and the word ‘roofing’ read as ‘roofing repairs’, we interpret those words to include removal and replacement of the roof for the reasons submitted by the respondent as set out in paragraph 63.
74. That is not to say that the concept of when work becomes an ‘improvement’ rather than ‘maintenance’ is irrelevant. That distinction must always be borne in mind when considering the owners corporation’s statutory obligation to ‘maintain’ common property and other specified property. The distinction has been the subject of consideration in other jurisdictions, although there are risks in simply applying the approach taken in other jurisdictions because of the distinctly differently worded legislation that may be under consideration. Nonetheless, there is a broad consensus that ‘maintenance’ can include preventative maintenance, before property has fallen into disrepair. An improvement in functionality when undertaking maintenance, due to improvements in materials or construction techniques is also permissible, however there is no obligation on an owners corporation to provide as maintenance an improved functionality that did not previously exist. The Original Tribunal did not reference this case law in reaching its decision, however we think the approach taken by the Original Tribunal was, in the circumstances of the case, consistent with this authority.
75. In conclusion, we consider that the Original Tribunal erred in its description and interpretation of Motion 5. We have set out above our construction of Motion 5, which although different in approach is equivalent in effect to that adopted by the Original Tribunal.
76. It should be remembered that in order for the appellant to succeed on the appeal, it is not enough for the appellant to point to an error, but she must also show that the error is one which is material to the outcome.
77. Whilst the term ‘maintain’ was incorrectly incorporated into Motion 5 by the Original Tribunal, when the correct construction of Motion 5 is applied that error was not material to the outcome.
78. We turn next to a consideration of the remaining aspects in which the appellant submitted the Original Tribunal was in error.
The second alleged error
“The Tribunal errs in law, in relation to the Class B units, in stating that ‘in replacing the deteriorated roofing with pressed metal steel material the owners corporation acted in accordance with the definition of ‘maintenance’ in the Act by restoring the former efficient functioning of the roofing to units in the Strata plan.’ The owners corporation (OC) has ‘improved’ rather than ‘restored’ the original functioning of the roofing to all units when the obligation of the owners corporation for the Class B units as private property, under Motion 5, is for ‘repairs’ only”.
79. We agree with the view of the Original Tribunal that restoring former efficient function of a roof falls within the concept of ‘maintenance’ in the Act, despite a change in material or ancillary improvement in function.
80. Indeed, subject to there being a factual basis for maintenance, an owners corporation can authorise as ‘maintenance’ works that may in other contexts be described as improvements or capital works.
81. For the reasons given in relation to the first alleged error, the Appeal Tribunal takes the view that roofing work authorised by Motion 5 is limited to ‘maintenance’ but is not limited to ‘repairs’, further we do not consider that ‘repairs’ or ‘maintenance’ is limited to actions that do not constitute improvements. It follows that the re-roofing of the Class B units was expressly authorised by the use of the term ‘roofing’ in Motion 5.
82. In addition, Motion 1(a) expressly called for the replacement of the concrete tile roof with a Colorbond pressed steel roof.
83. There is no error by the Original Tribunal in this part of the third decision.
The third alleged error
“The Tribunal states that it ‘does not accept the argument that adoption of this product constituted a ‘capital improvement’ to the building’. The Tribunal errs in giving no justification for failing to take account of the rulings of the ATO at s97/23 as the ‘expert’ in the field and as stated by Simon Spriggs, Tax Accountant”.
84. The appellant had submitted that capital improvements cannot be classed as repairs and as a consequence the re-roofing of the Class B units fell outside the ambit of Motion 5.
85. In support of this argument the appellant relied upon on a statement made by Mr Simon Spriggs, who is a tax accountant with the Australian Tax Office (ATO), that replacement “of an entire roof is considered a capital works deduction and not repairs and maintenance”. Mr Spriggs expressed this view to the appellant by way of an indicative advice he provided her in November 2016.
86. It is correct that the Original Tribunal did not provide specific reasons for its comment, although we note that paragraph 16 of the third decision provides a rationale for any consequential improvements in this case falling within the concept of maintenance. More importantly, for the proceedings before the Original Tribunal it was not relevant whether the ATO view the re-roofing as a capital improvement, repairs or maintenance.
87. The ATO operates under a separate Act and determines issues related to taxation. Words and concepts used in that legislative scheme have developed accepted meanings and scope, the appellant could not point us to any reason why those meanings or distinctions should be applied where those words are used in the ACT unit titles legislation.
88. The ATO does not operate under the Unit Titles (Management) Act 2011 and does not make determinations related to it. It is irrelevant for the ACT legislation whether the authorised works in a special resolution amount to what the ATO views as maintenance, repairs or a capital improvement.
89. The Original Tribunal was not in error in declining to accept the argument from the ATO put forward by the appellant in this respect.
The fourth alleged error
“The Tribunal errs in stating that ‘the applicant was of the view that ‘maintain’ as used in the Act and Motion 5 meant repair of an existing structure and did not include replacement of the structure’. The applicant did not state this viewpoint either at the Hearing or in her submissions.”
90. The appellant is correct in the submission that the appellant did not make the statement attributed to her by the Original Tribunal. The error is minor and was not material to the outcome. The consequence of the error was merely that the Tribunal considered, and dismissed, an argument that might have been put in support of the appellant’s case.
91. Much of the appellant’s arguments relating to this fourth alleged error, as set out on pages 6-8 in the appellant’s list of errors were not limited to whether or not the appellant used the phrase in issue. The thrust of the arguments advanced by the appellant relating to the fourth alleged error were focused on a separate issue; the amount of money owed by the Class B unit owners to the Class A unit owners, for the roofing works relating to the Class B units. These issues are addressed when we consider alleged error 7.
The fifth alleged error
“The Tribunal errs in fact in stating that ‘the motivation for the applicant in seeking declarations numbered 1- 3 was in order to settle a dispute in interpretation of use of this word ‘maintain’ in Motion 5’. The applicant did not state this at the hearing or in her submissions”
92. The appellant is correct in saying that she did not describe her motivation in drafting and seeking the three declarations; had she described her motivation it would not have referred to the use of the word ‘maintain’ in Motion 5, because that word does not appear in Motion 5. The motivation is one that has been inferred by the Original Tribunal and attributed to her on the basis of the orders sought, submissions and evidence during the course of the proceedings.
93. We have found that the Original Tribunal was in error in posing for itself the question of the meaning of the word ‘maintain’ in Motion 5, that word is not used in Motion 5. However, the existence of a dispute about the meaning of Motion 5 is an uncontroversial fact. The actual motivation of the appellant in seeking resolution of that dispute is irrelevant to its disposition.
94. To the extent that the Tribunal erred in describing the appellant’s motivation, this error had no effect on the outcome.
The sixth alleged error
“The Tribunal errs in fact in stating ‘The application seeks declarations relating to expenditure by the respondent owners corporation on roofing maintenance’. The applicant sought declarations relating to expenditure on improvements or upgrades to the private property Class B townhouse roofs.”
95. The appellant is correct in the assertion that the Tribunal misstated the nature of the declarations being sought by the appellant. The declarations sought did refer to ‘improvements’ not ‘maintenance’.
96. Again, the error is of a minor nature and arises as the Original Tribunal was trying to summarise the relatively complex nature of the declarations sought by the appellant, in a short-hand manner.
97. We take the view that either of itself or in combination with any other matter this error had no effect on the outcome.
The seventh alleged error
“The Tribunal errs in fact in stating that the applicant was of the view that ‘if the work was not maintenance then there was no obligation cast on the owners corporation to undertake it and there should not be a charge spread among all owners in the units plan.’ The applicant did not express this view at any point at the hearing or in her submissions.”
98. For clarity, below, we have set out the appellant written submissions under this head of appeal.
7.1 The applicant stated at the hearing, ‘the fact that the owners decided on a colour bond roof is a superior and more expensive roof means that Class B owners must be prepared to make an additional contribution for the upgrade to their private property.’ (Transcript P 16, line 38) Class B owners are thus only being asked to pay the costs for their upgrade, not for the ‘repairs’ component which was authorised by Motion 5.
7.2 all owners agreed to contribute via levies and the accumulated Sinking Funds to enable the roof works. No evidence was supplied by the respondent or quoted by the Tribunal that the applicant opposed the undertaking of the works, the raising of the funds by unit entitlement or the use of Sinking Funds contribute to the cost.
99. We understand the appellant’s position about who should be paying for what in relation to the Class B roofs to be predicated on a finding that Motion 5 did not authorise improvements to the Class B unit roofs.
100. In the written submissions, the appellant submits that the total cost of re-roofing the Class B units in Colorbond was $236,616.
101. The appellant argued that Motion 5, properly construed, only required the owners corporation to undertake like for like repairs (concrete tile for concrete tile) on the Class B units’ roofs and that the costs of re-roofing the Class B units in this manner (allowing for inflation) would have been $117,000.
102. The appellant submitted the Class B unit owners contributed $70,251, in levies and contributions to the sinking fund, for the roofing of all the units.
103. The appellant argued that the Class B unit owners should be responsible for any costs of the roofing of their properties which exceeds:
(a) The amount properly authorised by Motion 5 for repairing the roofs on a like for like basis; and,
(b) their contributions for the works made by way of payments made to a sinking fund and levies.
104. The appellant submitted that the following calculation needed to be undertaken in order to determine how much the Class B owners owe the Class A owners:
$236,616 – Total cost of roofing the Class B units.
-$117,000 – Amount properly authorised by Motion 5.
-$70,251 – Amount paid by Class B owners in levies and to the sinking fund.
$49,365
105. The appellant submitted that on this basis the Class B owners owe the Class A owners $49,365. The appellant believed this amount needed to be refunded to the Class A owners in proportion to their contributions to the sinking fund and additional 2017 – 2108 levies.
106. The real issue is whether the owners corporation was required, by Motion 5, to undertake the roofing of the Class B units. The Appeal Tribunal is of the view it was.
107. Motion 5 authorised maintenance by way of ‘roofing’ not merely ‘roofing repairs’.
108. The use of the term ‘roofing’ required the owners corporation to undertake roofing works and to undertake roofing construction to provide an effective roof by current standards. This would allow the owners corporation to analyse the deficiencies of the existing roofs and to work out how best to repair or replace them. They would be free to use new and improved products and to try and ensure they achieved a standard of roofing the owners corporation was comfortable with.
109. As noted in the second decision, absent an appropriate resolution to vary the apportionment of costs of this maintenance obligation, the costs of this work would be met by the owners of all units in accordance with their unit entitlements.
110. In addition, as discussed below, Motion 1(a) unambiguously authorised the re-roofing to be undertaken using Colorbond on all Class B units. As a consequence the owners corporation as a whole are responsible for the costs associated with the roofing works on the Class B units.
111. Consequently, while the Original Tribunal did err in characterising the appellant’s views in the way it did, that error is of no effect because the question of apportionment arises only if the works were not authorised.
The eighth alleged error
“The Tribunal states ‘it was an available option to use the best available method to ensure the building had roofing in good working order’. The Tribunal errs in that it does not acknowledge the higher costs of the ‘best available method’ or that additional features were added at extra cost to improve the functioning of the roof. Neither of these fell within the scope of ‘repairs’ for the Class B units
112. We do not consider that the Original Tribunal erred in not considering the costs of the work in concluding that it was within the scope of Motion 5, there is no aspect of Motion 5 that contains this requirement.
113. We also do not consider the Original Tribunal erred in failing to qualify the scope of ‘roofing’ in Motion 5 by implying it was limited to ‘repairs’.
114. The Original Tribunal considered whether the additional features or improved functionality for the new roofs fell within the concept of maintenance, and concluded that it did. We agree with the Original Tribunal’s conclusion in that respect.
115. We agree with the Original Tribunal’s conclusion that the work undertaken was within the scope of Motion 5, albeit because of the interpretation of Motion 5 that we have adopted.
The ninth alleged error
“The Tribunal errs in law in not making the distinction between Class A as common property and Class B as private property in its generalised comment ‘in the opinion of the Tribunal the owners corporation was not limited to the former product in its choice of materials in order to conform to its obligations to maintain’.
116. The appellant’s written submissions in relation to alleged error 9 stated:
9.1 As stated at the Hearing (Transcript P 15, line 2), the EC did not allow a discussion on the type of replacement roofing due to its unfair arrangement of Motions on the Agenda for the meeting in 2016. It was clear from this deliberately devious method that the only option which the EC supported and wish to be agreed was a roof replacement with colorbond. There was therefore no possibility that any other product such as cement or clay tiles could be chosen as there was no discussion.
9.2 The obligation to maintain relates only to the common property Class A buildings. The obligation to Class B is for roof repairs as stated in Motion 5. As owners agreed at the general meetings of 2016 and 2017 to replace the roofs with colour bond, and to add additional functions and features, at OC expense, the extra costs of these for the Class B roof work must be paid for by the owners concerned.
117. We do not consider the Original Tribunal failed to draw the distinction between the Class A and Class B units, on the contrary this was a starting point for the third decision. As already discussed, we are satisfied the Original Tribunal was not in error in not limiting the scope of motion 5 ‘roofing’ to ‘roofing repairs’ or ‘roofing repairs which do not constituted improvements’.
118. As discussed below, we take the view that Motion 1(a), which on 15 November 2016, was passed by a 17 to 5 majority, clearly expressed the majority of owners’ view that they wanted to roof the Class A and Class B properties in Colorbond. Although a number of documents before the Original Tribunal suggested dissatisfaction by the appellant and others, over a number of meetings, with the extent of discussion embarked upon, there is no detailed evidence of what occurred at the meeting in November 2016. We note that at a meeting it is not necessary that motions be addressed in the order they are set out in the agenda. A motion for amendment may be put from the floor, debate and discussion may occur, a motion may be deferred until later in the agenda. There is no record in the minutes of any of these approaches having been adopted, only that the majority of owners supported Motion 1(a).
119. In relation to paragraph 9.1 of the appellants’ written submission, we do not find there was “unfair arrangements of motions” or that the order of business on the agenda for the November 2016 meeting warrants description as a “deliberately devious method”.
The tenth alleged error
“The Tribunal errs in fact and law by ignoring that ‘minor repairs’ are specifically excluded in Motion 5 for Class B units. The Tribunal states ‘the roofs of the strata complex required intermittent maintenance by way of minor repair from time to time’
120. The appellant’s written submissions in relation to alleged error 10 were as follows:
10.1 Since 2002, the fact that Minor repairs are stated as excluded for Class B units has been largely ignored by the Strata Manager and refuse consideration by the executive committee in spite of queries by owners. In particular, in 2017 a Motion to the AGM to enable a definition and to require a budget line for minor repairs was disallowed on trivial grounds by the Chair of the EC so that there could be no discussion. (Transcript P9, line 14).
10.2 As Class A owners pay 70% of every bill for minor repairs, the apparent failure by the EC and the Strata Manager to observe this exclusion in Motion 5 has been at a significant cost to those owners in terms of regular roof repairs and a significant benefit to the Class B owners.
10.3 Although the Applicant’s case to ACAT concentrated on examining Motion 5 in relation to improvements or upgrades for the Class B units, this does not mean that exclusion of minor repairs should not also be affirmed by the Tribunal is required under Motion 5.
121. If one reads paragraph 15 of the November Decision in its entirety, it is clear that the Original Tribunal is doing no more than narrating how the roofs deteriorated over the years and how ultimately it was determined by the owners corporation to require replacement of the existing roofs with Colorbond roofs.
122. The case advanced by the appellant before the Original Tribunal did not require a determination to be made in relation to minor repairs previously undertaken, and the Original Tribunal did not make any determination in relation to minor repairs. Contrary to the suggestion contained in paragraph 10.3 the Original Tribunal has no duty to make any affirmations in relation to an un-litigated issue.
123. The appellant has not established any material error in this respect.
The significance of Motion 1(a) of 15 November 2016
124. Motion 1(a) in its terms is a decision by the owners corporation to replace all of the apartments and townhouses’ existing concrete tiled roofs with a Colorbond roofs. There was no accompanying resolution to apportion the costs between the different classes of units.
125. As already noted, Section 24(1)(g) of the Unit Titles (Management) Act 2011 provides that an owners corporation is required to maintain Class B units to the extent that they are authorised by special resolution.
126. If Motion 1(a) was passed as a special resolution then this of itself imposes an obligation on the owners corporation to undertake and pay for the re-roofing works, on the Class B units, as contemplated by the resolution.
127. At the hearing of the appeal the significance of Motion 1(a) was raised with the parties. The appellant submitted that Motion 1(a) was not a special resolution because she did not recollect it being notified as such, but was unable to point to the requirement for such notification.
128. A special resolution is defined in the dictionary to the Unit Titles (Management) Act 2011, as a resolution of a general meeting passed as required by schedule 3, section 3.16 of that Act, which provides:
Special resolutions
(1) For an owners corporation with more than 2 members, the requirements for passing a special resolution at a general meeting are that—
(a) unless a poll is taken—
(i) the number of votes cast in favour of the resolution is greater than the number of votes cast against it; and
(ii) the votes cast against the resolution number less than 1/3 of the total number of votes that can be cast on the resolution by people present at the meeting (including proxy votes); or
129. It follows that for Motion 1(a) to be a special resolution:
(a) The Motion has to have been passed at a general meeting; and,
(b) The number of votes cast in favour of the resolution must exceed the number of votes cast against it; and,
(c) the votes cast against the resolution number less than 1/3 of the total number of votes that can be cast on the resolution by people present at the meeting (including proxy votes).
130. Section 3.14 of Schedule 3 to the Unit Titles (Management) Act 2011, provides that decisions at a general meeting must be made by ordinary resolution unless the Act otherwise requires.
131. There is no statutory requirement for the resolution to be described as an ordinary, special, unopposed or unanimous resolution on the face of the minutes.
132. An interested party can determine the type of resolution that was passed by seeking a certificate pursuant to section 3.19 of Schedule 3 to the Unit Titles (Management) Act2011.
133. This section gives an owners corporation the power to give a certificate, sealed with the corporations seal, which records the fact that a general meeting was held on a stated date and that a resolution in the terms set out in the certificate was passed. The certificate will also state whether the resolution was passed as an ordinary, special, unopposed or unanimous resolution.
134. A certificate of that description has not been admitted into these proceedings either in relation to Motion 5 or in relation to Motion 1(a).
135. There are no other legal criteria for determining whether a resolution is, or is not, a special resolution other than it satisfying the requirements of section 3.16. For example unlike some other types of resolution there is no obligation on an executive committee to give advance notice to unit owners that a proposed resolution is a special resolution prior to a general meeting.
136. Motion 1(a) is a rare example amongst the minutes supplied to the Original Tribunal which records the number of votes for and against a resolution (17 for and 5 against), from which it is possible to determine mathematically whether a resolution has been passed as a special resolution.
137. On its face, Motion 1(a) meets all three of the criteria set-out in section 3.16 and thus it is a special resolution of the owners corporation which binds it to undertake the re-roofing of all the Class B units in Colorbond steel at the cost of the owners corporation.
138. In our view the existence and clear intent of Motion 1(a), and our satisfaction that it was passed as a special resolution, is itself an answer to the appellant’ case.
Conclusion
139. We are satisfied that the Original Tribunal was in error throughout the decision when it referred to Motion 5 containing the word ‘maintain’. It does not. This error affected the Original Tribunal’s construction of Motion 5, and its engagement with the application and arguments of the appellant.
140. However, the concept of ‘maintenance’ and whether proposed work is not ‘maintenance’ but an ‘improvement’ is still important, because under the legislation Motion 5 can only require an owners corporation to ‘maintain’ buildings on Class B units. In this respect, the Appeal Tribunal considers that the conclusion of the Original Tribunal that the work undertaken in this case constituted maintenance, albeit with some improved functionality, was correct.
141. The Appeal Tribunal has considered the meaning of Motion 5, and has reached the conclusion that Motion 5 is not limited to ‘roofing repairs’ or to ‘roofing repairs that are not improvements’ but encompasses all roofing which is required for maintenance. We agree with the approach of the Original Tribunal that the meaning of ‘maintain’ can accommodate an improvement in functionality.
142. Although there are errors in the third decision, we do not consider those errors, individually or taken together, have a material effect that when corrected would lead to a different outcome.
143. In any event, the owners corporation by Motion 1(a) decided by special resolution what roofing work was to be undertaken, thus overtaking the question of interpretation of Motion 5 for that issue.
144. The orders of the Original Tribunal should be confirmed and the application for appeal dismissed.
………………………………..
Presidential Member MT Daniel
For and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER:
AA 53/2018
PARTIES, APPLICANT:
Sue Brudenall
PARTIES, RESPONDENT:
The Owners - Units Plan No 202
PARTY JOINED
Duncan Lester
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
Mr C Donohue
COUNSEL APPEARING, PARTY JOINED
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
Donohue & Co
SOLICITOR FOR PARTY JOINED
N/A
TRIBUNAL MEMBERS:
Presidential Member MT Daniel
Member D Mulligan
DATES OF HEARING:
16 April 2019
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