Clarke v James

[2018] NSWCATCD 67

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Clarke v James and Ors [2018] NSWCATCD 67
Hearing dates:	5 September 2018
Date of orders:	06 November 2018
Decision date:	06 November 2018
Jurisdiction:	Consumer and Commercial Division
Before:	J A Ringrose, General Member
Decision:	1. The application is dismissed 2. Each party is to bear their own costs
Catchwords:	Parking of vehicles on common property – whether there is compliance with by-laws – request to declare a motion invalid.
Legislation Cited:	Strata Schemes Management Act 2015
Category:	Principal judgment
Parties:	Derek John Clarke (Applicant) Alan and Yvonne James (First respondents) The Owners – Strata Plan No 61788 (Second respondent)
Representation:	Applicant (self-represented) First Respondents (self-represented) Ms Murray (Chairperson) (second respondent)
File Number(s):	SC 18/20912
Publication restriction:	Nil

reasons for decision

Application

1. By an application filed on 7 May 2018 the applicant as the owner of Villa 30 in Nulama Village 7, XXX XXX XXX, Taree brought an application against Mr Alan James as the owner of villa 31 seeking orders that he be directed to comply with the registered by-laws of strata plan 61788 including by-law 2 relating to parking, by-law 3 relating to obstruction, by-law 6 relating to behaviour and by-law 17 in relation to change of use. He also added in his application the words “and to please invalidate motion 20 AGM 4/8/17”.

2. Material filed with the application indicates that in fact the property owned by Mr Clarke is lot 28 in the strata plan being unit 30, whilst the property owned by Mr and Mrs James is lot 29 being unit 31. The schedule of current owners also establishes that Mr Durand is not an owner of any lot in the strata scheme.

3. When the matter came before the Tribunal on 6 June 2018 orders were made for the joinder of the Owners Corporation Strata Plan 61788 and the first respondent’s name was amended to include his wife, Yvonne James. Directions were then made for the applicant to file any further documents upon which he wished to rely by 20 June 2018 with the respondent to provide all of their or its documents by 4 July. Further documents were filed by the applicant on 6 June 2018 and it is noted that Mr Philip Durand, who described himself as the chairperson of DP 270210 and a director of Nulama Village Pty Ltd, sought to file documents to assist the applicant in his hearing in his capacity as the majority lot owner of DP 270210 having 67.9% of voting entitlements. It is noted that Mr Durand is not a party to the proceedings and has no interest in the strata scheme. The documents filed by him were not at that stage filed on behalf of the applicant.

4. Further documents were filed by the applicant on 22 June 2018 and it is noted that Mr and Mrs James filed material on 2 July 2018 whilst the Owners Corporation filed its documents on 22 August 2018.

5. On 20 July 2018 Mr Philip Durand wrote to the Tribunal noting that he had been advised the matter was set down for hearing in September and he wished to make the Tribunal member aware of his evidence and request that he be included as a witness in the matter on the basis that his company had legally enforceable rights as referred to in his earlier letter. He was advised by return mail the Tribunal did not accept electronic evidence and that his request should be put before the member but that any attachments should be forwarded via mail.

6. On 30 July 2018 a letter was received from Mr Clarke requesting that Mr Philip Durand be allowed to give support to his evidence as Mr Durand was involved in many aspects of his dealings concerning Mr James and the Owners Corporation. He noted “His testimony will help establish the truth in the face of lies expressed by the respondents in their responses to my application”.

Applicant’s Evidence

7. In setting out his reasons for the application in relation to by-law 2 being parking of a car on common property, and by-law 3 being obstruction on common property, Mr Clarke stated that the common driveway of villas 30, 31, 32 and 33 had a shared entrance and that villas 30 and 31 share a continuously curving driveway to their respective garages. He claimed that prior to Mr James’ residency he had always reversed his car into the garage with a clear driveway but now the process involved potential legal and costly outcomes in the event of a driving mistake which might damage Mr James’ car. He alleged that it was an unfair burden placed on his otherwise straightforward parking and being 82 years old he did not need any additional obstacles to safe parking.

8. Mr Clarke claimed that when he spoke to Mr James he suggested that his car was too big for the garage but Mr Clarke alleged that this was not true as his car needed the same width space as that of Mr James’ car. Photographs suggest that this could not in fact be correct. Mr Clarke claimed that the only variation in dimensions was that the vehicle owned by Mr James was taller and longer than his vehicle. He produced photos to demonstrate that his car had enough room inside the garage and suggested that, accordingly, the vehicle belonging to Mr James would fit in the same manner.

9. A statement of Diane Foster, the owner of villas 32 and 36 was also attached. She claimed that she attended the AGM on 4 August 2017 and she attached a copy of the relevant minutes. Ms Foster, on behalf of Mr Clarke, argued that the Owners Corporation had an obligation to all lot owners and in this instance to Mr Clarke to consult with the owners who are directly affected in considering permission to “contravene a by-law”. She went on to allege that the amendment of by-law 2 required a special resolution and an ordinary resolution was therefore invalid. She went on to note that all attempts by Mr Clarke and herself to have incorrect minutes of the meeting and many other meetings corrected to ensure correct accurate minutes had proven fruitless due to a “dysfunctional Owners Corporation strata committee and strata manager”. A copy of the notice of the Annual General Meeting was attached to her statement, the notice itself indicates that the person responsible for publishing the notice paper understood the difference between a special resolution (by reference to motion 17) and an ordinary resolution by reference to the lot 29 parking on common property which was motion 20. The explanatory note attached to the notice of the motion 20 read:-

Explanatory note: both owners struggle with mobility issues. It is not currently physically possible for the owners to exit their vehicle when it is parked within their allocated parking space. The owners need this area and there is room available for the owners to park their vehicle in this location, which they have done so for several years.

10. A copy of the minutes of the meeting held on 4 August 2017 were also attached. It was noted that the chairperson was Ms Rachelle Murray and a quorum of 30 out of 37 persons were present either in person or by proxy. It is noted that motion 15 which required a special by-law was voted for by unit entitlements. The motion number 20 in relation to lot 29 parking on property was resolved as a general motion, noting that it was merely a consent to park vehicles under by-law 2 and not a variation of that by-law.

11. A copy of the Model By-laws was attached and it is noted that by-law 2 reads:-

2 vehicles

An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the prior written approval of the Owners Corporation.

12. It is clear that the approval of the Owners Corporation was specifically provided in motion 20 at the 2017 Annual General Meeting.

13. Mr Clarke attached a copy of a letter dated 17 May 2017 addressed to the executive committee in which he formally requested that prompt action be taken to insist that Mr James use the garage for the car instead of permanently parking on the driveway. He expressed great concern that the obstruction by his car would cause an accident and he believed that he should not be subjected to this unlawful impediment causing him liability or inconvenience. The letter then went on to note that there was a by-law to obviate the parking on the drive and he hoped that the committee had learnt from their disregard of formalities in the past and would now act to make further process unnecessary.

14. The strata manager wrote a reply to Mr Clarke requesting that any further complaints relating to breaches of by-law should be addressed to the strata manager who is responsible for addressing such issues.

15. Attachment E to Mr Clarke’s evidence included a series of measurements and a series of photographs depicting Mr Clarke’s car comfortably inside the garage of villa 30.

16. A letter from Diane Foster who is the owner of villa 32 claimed that Mr James was always parking his car directly in front of her villa obstructing her view. She claimed the car was interfering with her peaceful enjoyment of the village although no photographs were produced to put this allegation into a perspective. She claimed that the presence of the vehicle dominated the early morning vista of wildlife feeding and many species of bird life. Ms Foster then complained that the parking in the driveway was in contravention of the by-laws although her assertion clearly misinterprets By-law 2.

17. Mr Clarke included a further letter dated 28 April 2018 alleging Mr James had parked both his car and caravan on the road outside of his villa in what he descried as a dominant position. He asserted that as he was taking a photograph of it he was assaulted and suffered an injury. An attached discharged notice from John Hunter Hospital stated that he was admitted on 9 December 2017 having sustained a right peri prosthetic hip fracture as a result of a mechanical fall.

18. Further material was filed by the applicant on 22 June 2018 and in the further documents he alleged that the shared driveway only affected properties being villas 30 and 32 and the support given by other owners who attended hearings within should not be taken into consideration as they are not affected by parking. He then went on to address, what he described as, disgusting and intimidating pictures depicting Mr Durant, Ms Foster and himself and sought to address other issues in the strata complex, none of which have been substantiated by objective evidence. He went on to claim that the process used by the strata committee was dysfunctional and not acting in the best interest of the Owners Corporation and on the contrary was destroying relationships between neighbours. He referred to the dictatorial powers of the chairperson, Ms Michelle Murray and noted that many applications to NCAT over the last seven years, in an attempt to rectify the situation, were always dismissed. It is noted that there are 37 related files in relation to the Nulama Village between 2005 and the present date.

19. Mr Clarke questioned the disabilities of Mr James on the basis that he was apparently capable of towing a large caravan, parking it and uncoupling it.

20. A further letter from Diane Foster dated 13 June 2018 was attached but this letter merely repeated what she described as the negative impact caused by Mr James refusing to comply with strata regulations.

21. A diagram purportedly drawn to scale depicted vehicles parked in the garage with what was shown to be a 0.7 metre gap on the driver’s side and a 0.4 metre gap between the door and the wall on the passenger’s side. It is difficult to understand how a person with the disabilities could effectively enter and leave a vehicle with that amount of space.

22. On 25 June 2018 further material was filed with the Newcastle Registry on a letterhead of Nulama Village Pty Ltd. The material was signed off by Mr Philip Durand who described himself as chairperson DP 270210 and director of Nulama Village Pty Ltd. It is appropriate to note that Mr Durand is not a lot owner in strata plan 61788 and is accordingly not a member of the Owners Corporation. The material which was filed by him suggested that he was providing evidence on behalf of the applicant, and at the applicant’s request, to assist him at the Hearing.

23. Mr Durand suggested that strata plan 61788 was absolutely interdependent in relation to DP 270210 and could not exist as a legal entity in its own right without interdependence provided by lots 3 to 9 of DP 270210 owned exclusively by Nulama Village Pty Ltd. His assertions are legally unsound and his attempt to gain some basis upon which he can give meaningful evidence in relation to a dispute between the applicant and the respondents in this matter fails. Furthermore his assertion that there are numerous serious problems apart from the current application by Mr John Clarke in relation to the executive committee of strata plan 61788 is of no weight or no value to the Tribunal in this dispute but it is perhaps indicative of the fact that either Nulama Village or the Strata Plan has been the subject of some 37 previous applications since 2005. His request that the Tribunal give support to compulsory management of strata plan 61788 is ill founded as no application of that nature is before the Tribunal and there is no basis upon which such an application could be brought by Mr Durand in any event. Other communications from Mr Durand to the executive committee were included but these relate to matters which are not relevant to the present application. In similar terms Mr Durand apparently wrote to Mr James on 31 January 2018 in relation to the parking of a caravan. A further copy letter dated 24 April 2018 also appears to relate to the parking of a caravan. This correspondence is of no relevance to the present application.

24. On 30 July 2018 Mr Clarke wrote to the Tribunal asking that Mr Durand be allowed to give support to his evidence on the basis that Mr Durand was involved with many aspects of his dealings concerning Mr James and the Owners Corporation. He went on to suggest that the testimony of Mr Durand would establish the truth in the face of the lies expressed by the respondents in their responses to his application. As has already been noted Mr Durand has no right to be heard in the present proceedings and the material which has been provided by him has no relevance to the present dispute which concerns primarily the validity of a consent to enable the respondent, Mr James, to park his motor vehicle on the common property outside his garage.

25. Mr Clarke sought to have Mr Durand give evidence on his behalf in this matter or to in other ways assist him. The application to allow Mr Durand to become involved was refused as it was clear from the material he provided that he was not addressing issues relevant to this matter and there was no basis upon which Mr Durand should have been permitted to conduct the proceedings or make submissions on behalf of Mr Clarke. It is noted that in the most recent application to the Tribunal by Mr Clarke and Ms Foster which was heard on 15 February 2018, Mr Clarke was able to represent himself in that application before the Deputy President.

26. On 22 August 2018 further material was filed by Mr Philip Durand in his capacity as the chairperson of Deposited Plan 270210 and a director of Nulama Village Pty Ltd. This material was not filed by or on behalf of a party to the proceedings although it was described as being a statement in relation to the application of John Clarke. The document appeared to trace through numerous Tribunal and Court hearings going back to 2010.

27. Mr Durand asked that it be noted that a further application was being lodged with the Tribunal by the Community Association on 31 July 2018 which included more than 500 pages of evidence incriminating the incumbent executive committee and strata professionals for a litany of breaches of strata plan 61788 for more than 11 years. He requested that it should be considered as evidence in relation to the further current complaint by the Community Association and Nulama Village Pty Ltd also seeking prosecution by the Office of Fair Trading and damages caused by the conduct of these parties without any care or concern of the legal consequences in separate actions against the parties concerned. The submissions went on:-

Nulama Village Pty Ltd insists that the Tribunal member on the evidence determines that it is absolutely imperative to recommend the compulsory management of Eddy Ryan (as per annexure attached letter 11/5/2018) effective immediately to mitigate the serious mismanagement by the executive committee and strata managers SP 61788 as there is no basis for the status quo of the current strata management to continue.

28. Leaving aside the question as to whether Nulama Village Pty Ltd may have a right to lodge an application for the appointment of a new strata manager, it is noted that the actions of the present management were fully considered by the Deputy President in March 2018 when the application by Mr Clarke and Ms Foster for appointment of a new strata manager was dismissed.

29. The evidence or material of Mr Durand is filed out of time and apart from referring to the material in general it is not proposed to address it in any more detail in this application as it does not address issues which the Tribunal is required to consider in the present matter.

Respondent’s Evidence

30. The first respondents Alan and Yvonne James provided material on 2 July 2018 in accordance with directions. A statement dated 25 June 2018 which was signed by both Mr and Mrs James noted that Mr James has had a physical disability for most of his life and that he had a problem with polio when he was young. He was never able to play any sort of sport and his walking ability had always been fairly restricted. In about 1998 he was assessed by committee and granted a disability allowance pension.

31. Mr Clarke explained that in relation to parking of his car he needed to be able to open his vehicle door as wide as possible as it was difficult for him to get in and out if he was required to twist. He pointed out that the neighbours in units 32 and 33 had never complained about the car being outside and it is significant to note that although Ms Foster, in support of Mr Clarke, has claimed that the view from her villa 32 was obstructed, that unit is apparently rented out and Mr James makes it clear that the tenants of that unit have never made a complaint.

32. Mr James has suggested that since he and his wife had moved into the village Mr Clarke had done nothing but harass them and that this was having a bad effect on his wife.

33. In addressing a photograph which had been provided by the applicant, Mr James noted the twin camper vehicle in the driveway was someone delivering something and they were only parked in that location for a few minutes.

34. In addressing an issue raised by Mr Durand concerning a caravan Mr Clarke suggested was parked in the driveway for two weeks, Mr James stated that the vehicle was only parked there for two days to fill the water tank and load supplies prior to he and his wife leaving on a trip.

35. In conclusion Mr James said that he would not be forced to sell his large car to satisfy Mr Clarke and questioned how Mr Clarke was able to park in other locations around town.

36. Further support has been provided for Mr and Mrs James by Mr Jim Stacey who is the owner of unit 23 and a member of the executive committee.

37. In his letter dated 27 May 2018 Mr Stacey pointed out that motion 20 at the Annual General Meeting held 4 August 2017 sought the consent of the Owners Corporation for Alan and Yvonne James to park their vehicle on common property in accordance with by-law 2. That motion was submitted for consideration and debated and it was then voted on by all present with the majority vote in the affirmative.

38. Mr Stacey pointed out that Mr James does hold a disability parking permit and that Mr and Mrs James were elderly, both had health and mobility issues and that they deserved better.

30. Mr Stacey commented that Mr Clarke and Ms Foster were, in his view, continuing to cause upset and distress to many of the elderly residents in the community at Nulama Village. He pointed out that the Tribunal records show that many applications which had been brought in the past by Mr Clarke and Ms Foster which had subsequently been dismissed. That comment in itself will not assist the Tribunal in determining the present case although Mr Stacey described the present action by Mr Clarke which is supported by Ms Foster as vexatious.

31. The Owners Corporation Strata Plan 61788 provided material through its chairperson, Rochelle Murray and its secretary Shirley Crisp. They noted specifically that the present application related to car parking allocations for Mr and Mrs James and specifically indicated that they were not proposing to respond to other items submitted with this matter as they were not relevant.

32. Ms Murry and Ms Crisp described the strata committee as being democratically elected to provide a cooperative service to all owners and claimed that no favouritism was provided to any owner as they were aiming to promote harmony and respect among all owners and tenants.

33. They pointed out that the decision in this matter was made at a full Owners Corporation meeting where it was pointed out that Mr Clarke had been able to park his vehicle in his garage whilst Mr and Mrs James resided at the village. It was noted that Mr Clarke did not make any requests in relation to parking and any time prior to 2017 and that Mr and Mrs James had resided there for approximately five years and had always parked the car in front of the garage of unit 31 (otherwise being lot 29). They pointed out that Fair Trading notes and instructions from the strata manager indicated that the motion did not require a special resolution as the specific by-law provided:-

An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the prior written approval of the Owners Corporation.

43. When Mr and Mrs James lodged the motion for inclusion in the 2017 AGM it was simply to seek approval to park in the specified location. The explanatory note indicated that both owners struggled with mobility issues and that it was not currently physically possible for the owners to exit their vehicle when it was parked within their allocated parking space. It was pointed out further that the owners needed this area and there was room available for owners to park their vehicles in this location which they have done for several years.

44. 30 of the 37 units were represented either in person or via proxy and Mr James spoke and referred to his disability. Mr Clarke and Ms Foster were in attendance and voiced their disapproval to the location but a vote was then taken and the motion was passed. A copy of the minutes indicating that the motion was passed have been attached to the second respondent’s statement.

45. It was pointed out that the Owners Corporation did not have skills to assess disabilities referred to by the owner but reference was made to medical reports and an article about disabled parking which provided some assistance.

46. They pointed out some aspects about the size of the garage that were only relevant in the sense that the doors of the car could not be fully opened to allow the owners to easily access the vehicle and the request was not in relation to the size of the vehicle.

47. In relation to allegations that the common property was being obstructed the members of the executive committee denied that this was occurring and they also denied that the use of the lot had been changed pointing out that Mr and Mrs James simply lived in their unit and there had not been any change of use which would impact on insurance.

48. They sought to address the accusation made by Mr Clarke that he was assaulted by Mr James but in doing so pointed out that the only witness was Mrs James and she did not confirm Mr Clarke’s allegations. It was suggested further that inquiries with the Taree Police Department as to an event number and details of the officer investigating did not produce a report or an entry concerning that day.

49. Photographs provided an overview of the complex and various aspects of it and Ms Murray and Ms Crisp affirmed that Ms Diane Foster does not reside in unit 32 and that the unit was let out. They also affirmed that the view from that unit would not be obstructed by Mr James’ car parked in the driveway as it was behind her lattice providing privacy to her clothesline. Reference was made to a photograph to corroborate that matter as well.

50. A copy of the model of by-laws confirms the wording of by-law 2 and confirms that no reference is made to the need for a special resolution for the granting of consent required under that by-law. The form of the motion in the notice and in the minutes makes it clear that Mr and Mrs James were only seeking a grant of consent to park their vehicle on the common property in accordance with by-law 2.

51. A medical certificate dated 28 May 2018 from Dr Simon Holliday certified that Mr Alan James had trouble getting in and out of his vehicle as did his wife Yvonne. The certificate requested consideration to facilitate those disabilities. The material included a photograph which clearly displayed the applicant’s vehicle and the respondent’s vehicle side by side outside of the garage doors. The photograph itself makes it relatively clear that the width of the applicant’s car is less than that of the respondent’s station wagon.

Decision

52. The applicant as the owner of lot 28 in Strata Plan 61788 which is known as unit 30/7 Manning River Drive, Taree 2430 seeks orders that the owners of lot 29, being unit 31 in the strata complex, comply with the registered by-laws of Strata Plan 61788 and in particular by-laws 2, 3, 6 and 17. He also seeks an order that the motion number 20 at the Annual General Meeting held on 4 August 2017 be declared invalid. Each of these orders are opposed by the first respondent, Mr James and his wife and by the second respondent, being the Owners Corporation Strata Plan 61788.

53. The relevant by-laws provide as follows:-

2 Vehicle

An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the prior written approval of the Owners Corporation.

3 Obstruction of common property

An owner or occupier of a lot must not obstruct lawful use of common property by any person except on a temporary and non-recurring basis.

6 Behaviour of Owners and Occupiers

An owner or occupier of a lot when on common property must be adequately clothed and must not use language or behave in a manner likely to cause offense or embarrassment to the owner or occupier of another lot or to any person lawfully using common property.

17 Change in use of lot to be notified

Any occupier of a lot must notify the Owners Corporation if the occupier changes the existing use of the lot in a way which may affect the insurance premiums of the strata scheme (for example, if the change of use results in hazardous activity being carried out on the lot, or results of a lot being used for commercial or industrial purposes rather than residential purposes).

54. There is no evidence that the use of lot 29 or unit 31 has been changed in any manner likely to affect the insurance premiums of the strata scheme. As the Owners Corporation has noted, the lot has always been used as a dwelling and that use continues.

55. No evidence has been provided to address the behaviour of either of the first respondents in a manner which would be contrary to by-law 6.

56. In relation to by-law 3 the applicant has failed to provide evidence that the parking of the first respondent’s vehicle in an area approved by the Owners Corporation under by-law 2 has constituted at any obstruction to the lawful use of the common property by any person and in particular by the applicant. It is clear that by-law 3 must be read in conjunction with by-law 2 and the decision of the Owners Corporation at the Annual General Meeting to permit the first respondent to park his vehicle on the common property area outside of his own garage entry.

57. In relation to by-law 2 it becomes necessary to determine whether the consent of the Owners Corporation has been obtained in writing to permit the applicant to stand his vehicle on common property. The applicant has conceded that the resolution was passed but seeks to have it set aside on the basis of invalidity. It is alleged in particular that the motion seeking consent to park on common property as provided for in by-law 2 required a special resolution.

58. Section 108 of the Strata Schemes Management Act sets out a procedure for authorising changes to common property which are directed particularly in relation to erection of a new structure. Under s.108 of the Act the Owners Corporation or an owner seeking the changes is required to have the request passed by a special resolution.

59. Section 111 of the Act restrains a lot owner from carrying out work on common property unless that work is authorised by an approval of the Owners Corporation given by special resolution and s.112 enables an Owners Corporation to grant a licence to use common property in a particular manner or in a particular purpose provided the Owners Corporation has granted the license by a special resolution.

60. The motion proposed by the first respondents in the present case did not seek a licence but rather it sought consent to do something which was already authorised under by-law 2 providing that consent was obtained.

61. There is no doubt that if the Owners Corporation sought to change a by-law pursuant to s.141 of the Act then a special resolution would be required for that purpose and in like manner if it had been necessary to confer rights or privileges over the common property independently of by-law 2 then s.142 of the Strata Schemes Management Act 2015 would necessitate a special resolution again.

62. In the present circumstances Mr and Mrs James had three alternatives to obtain consent from the Owners Corporation to park in the area outside their garage space. They selected the option of merely seeking consent which required only an ordinary resolution. Had they sought to apply for a licence with a creation of a special by-law and quite clearly a special resolution would have been required. The information before the Tribunal does not indicate whether the voting for consent was achieved to the level required by a special resolution but voting of that nature was unnecessary as the request was simply for consent and that was clearly obtained.

63. It follows that the application to declare the motion number 20 at the Annual General Meeting held 4 August 2017 to be invalid must fail. The first respondents have obtained the consent in writing of the Owners Corporation of Strata Plan 61788 and accordingly they are not in breach of by-law 2 and the application must be dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 30 January 2019