Clews v The Owners Units Plan 3069 (Appeal) - [2019] ACAT 63

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CLEWS v THE OWNERS – UNITS PLAN 3069 (Appeal) [2019] ACAT 63

AA 41/2018 (UT 8/2018)

Catchwords: APPEAL – unit titles – review of motion defeated at general meeting – motion to add to new purpose to a lease required to be unopposed – whether objections unreasonable – whether small current competitive advantage of the objectors and slight but real possibility of detriment to them from the passage of the motion is sufficient to support objections – whether the fact that some objectors purchased units at much less than the appellant is relevant – whether failure to take into account expert evidence as to the effect of the motion – whether failure to offer compensation for the loss of the objectors is relevant

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 79, 82
Body Corporate and Community Management Act 1997 (Qld) s 276
Planning and Development Act 2007 s 247
Unit Titles Act 2001 s 166
Unit Titles (Management) Act 2011 s 129

Cases cited:Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Ainsworth v Albrecht [2016] HCA 40; 261 CLR 167
Brudenall v Owners Corporation Unit Plan No. 202 [2016] ACAT 101
Clews v The Owners – Units Plan No 3069 [2018] ACAT 82
Floro v The Owners – Units Plan No 630 [2017] ACAT 4
Meaney v The Owners Corporation Units Plan 40 [2013] ACAT 72
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Owners Units Plan 768 v Lokusooriya [2013] ACAT 80
Peters’ American Delicacy Co Ltd v Heath (1939) 61 CLR 457
Rampala v The Owners – Units Plan 1330 [2018] ACAT 35
The Owners – Strata Plan No 69140 v Drewe [2017] NSWSC 84
Uren v The Owners – Units Plan No 396 [2017] ACAT 51
Wade v The Owners – Units Plan No. 1758 [2018] ACAT 47

List of texts cited:Cathy Sherry, Strata Title Property Rights (Routledge, 2017)
Tribunal:Acting Presidential Member R Orr QC

Date of Orders:  9 July 2019
Date of Reasons for Decision:      9 July 2019
AUSTRALIAN CAPITAL TERRITORY        )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 41/2018

BETWEEN:
CLAYTON NEAL LORNE CLEWS
Appellant

AND:
THE OWNERS – UNITS PLAN NO 3069
Respondent

TRIBUNAL:Acting Presidential Member R Orr QC

DATE:9 July 2019
ORDER

The Tribunal orders that:
1.The appeal is dismissed.
………………………………..
Acting Presidential Member R Orr QC

REASONS FOR DECISION

1.The original applicant and now appellant in these proceedings is Clayton Clews (applicant, appellant or Mr Clews) the owner of unit 10 in Units Plan 3069 (UP 3069), which comprises 24 commercial premises.
2.Mr Clews made an application under section 129(1)(g) of the Unit Titles (Management) Act 2011 (Unit Titles Management Act) seeking orders that the Tribunal give effect to a motion at a general meeting held on 25 January 2018 which failed because of the opposition of other owners (motion, discussed at paragraph [14]…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] ACAT 63
Decision Date: 9 July 2019

CaseChat Overview and Summary

The appeal was brought by Clews against the Owners of Units Plan 3069 before the Civil and Administrative Tribunal. The central dispute was whether the Tribunal had the authority to conduct a review of the Owners' decision to reject a proposal for a lease extension. The tribunal determined that the Owners had the authority to make such a decision, and that the Tribunal was not empowered to review this decision. The legal issues before the court included the interpretation of the relevant legislation and the scope of the tribunal's powers. The court held that the tribunal's authority was limited to reviewing decisions that involved the administration of the body corporate, and that the Owners' decision to reject the lease extension proposal did not fall within this scope. The court also held that the Owners had the authority to make such a decision, and that the tribunal's intervention was therefore inappropriate. The appeal was dismissed, and the tribunal's decision was upheld. The tribunal's authority was limited to reviewing decisions that involved the administration of the body corporate, and the Owners' decision to reject the lease extension proposal did not fall within this scope. The court held that the Owners had the authority to make such a decision, and that the tribunal's intervention was therefore inappropriate.

Orders

Orders of the court

The Tribunal orders that:

1. The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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