Craven & Gilks v The Owners Units Plan No 2839

Craven and Gilks, the appellants, appealed against a decision of the Original Tribunal in proceedings brought by The Owners Corporation, the respondent, for enforcement of an infringement notice issued to the appellants under the Owners Corporation Rules for installing wooden flooring in their unit in breach of the rules. The Original Tribunal ordered the appellants to lodge a new and compliant application for a hard floor, and to pay the Owners Corporation’s expenses of running the action once those expenses were quantified. The appellants brought an appeal to the Appeal Tribunal against the Original Tribunal’s decision. The Appeal Tribunal was required to determine whether Owners Corporation Rule 6.5 was invalid, whether the Rule was harsh, unreasonable, or oppressive, and whether the costs order was made in error. The appellants applied to provide further evidence on appeal, and the Appeal Tribunal was required to determine the relevant criteria and whether the hearing of the appeal should be de novo.

The Appeal Tribunal refused the appellants leave to provide further evidence. The appellants had not provided the written submissions required by the case management orders, and the appellants had not identified a witness who was available to give evidence. The Appeal Tribunal dismissed the appeal. The appellants had not demonstrated that Owners Corporation Rule 6.5 was invalid, and the Rule was for a proper purpose. The appellants had not demonstrated that the Rule was harsh, unreasonable, or oppressive. The appellants had not demonstrated that the Original Tribunal had erred in making an order for the appellants to pay the Owners Corporation’s expenses of running the action once those expenses were quantified.

The Appeal Tribunal made substitute orders in place of those made by the Original Tribunal. The appellants were ordered to lodge a new and compliant application for a hard floor, or advise the Executive Committee in writing that they propose to replace the timber floor in their apartment with carpet and underlay. The appellants were ordered to pay the Owners Corporation the sum of $8,960.78 in reimbursement of the expenses reasonably incurred by the Owners Corporation in relation to the application to ACAT and the original hearing of that application. If the respondent sought to recover from the appellants the expenses incurred by the respondent in responding to the appellants’ application for appeal, the respondent must give the appellants an itemised list of those expenses in writing within 14 days of the date of the orders. If the respondent and the appellants agreed to the amount of those expenses, the appellants must pay the respondent the agreed amount of those expenses by a date agreed by the parties. If the respondent and the appellants did not agree to the amount of those expenses, and the amount was not more than $25,000, the respondent could apply to the Appeal Tribunal for an order that the appellants pay to the respondent the amount of the expenses incurred by the respondent. In deciding whether the amount claimed constituted reasonable expenses reasonably incurred, the Appeal Tribunal could have those expenses assessed by a registrar of the tribunal.