Damiano v The Owners - Units Plan No 584
[2017] ACAT 63
•24 August 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
DAMIANO v THE OWNERS – UNITS PLAN NO 584 & ORS (Unit Titles) [2017] ACAT 63
UT 49/2015
Catchwords: UNIT TITLES – application to remove concrete barrier blocking stairway on common property – blockage in place for some time – application to remove signage from common property and pursue unit holder to using common property electricity – whether applicant had standing to bring the application – whether current arrangements for stairway and signage breach any law or are unsafe
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 10, 48
Limitation Act 1985 s 11
Unit Titles (Management) Act 2011 ss 19, 125, 128, 129
Tribunal: Senior Member R Orr QC
Date of Orders: 24 August 2017
Date of Reasons for Decision: 24 August 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) UT 49/2015
BETWEEN:
MARILENA DAMIANO
Applicant
AND:
THE OWNERS - UNITS PLAN NO 584
First Respondent
GUYZANCE MILL PTY LTD
Second Respondent
DELIA WAITES and MR WAITES
Third Respondents
TRIBUNAL: Senior Member R Orr QC
DATE:24 August 2017
ORDER
The Tribunal orders that:
1.The amended application under the Unit Titles (Management) Act 2011 dated 28 July 2017 made by Marilena Damiano is dismissed.
………………………………..
Senior Member R Orr QC
REASONS FOR DECISION
1.These proceedings are brought by A. Marilena Damiano (Ms Damiano or applicant) against The Owners – Units Plan No 584 (Owners Corporation or first respondent) and other individual owners (individual owners). Ms Damiano is the owner of unit 4. The other individual owners are the owners of units 7[1] and 6.
[1] Guyzance Mill Pty Ltd (Guyzance Mill or the second respondent) which participated in these proceedings
2.In an amended application under the Unit Titles (Management) Act 2011 dated 28 July 2016 (amended application), Ms Damiano sets out the reasons for her claim, which in summary are as follows:
(a)A structure has been built on common property without an unopposed resolution by way of approval blocking stairs. This structure blocks a stairwell to unit 7 and Ms Damiano argues it was built shortly before 2015.
(b)Signage concerning unit 7’s business has been affixed to common property and hooked up to common property electricity without an unopposed resolution as approval.
(c)Signage concerning unit 6’s business has been affixed to common property and hooked up to common property electricity without an unopposed resolution as approval.
(d)An asbestos report update, which is a legal requirement, has not been obtained.
3.Ms Damiano seeks various orders, which are set out in the discussion below, to remedy these issues.
Summary of decision
4.Ms Damiano’s position was that the stairwell was blocked shortly before 2015. Most of the evidence before the Tribunal suggests this in fact occurred in 1992, before Ms Damiano owned her unit, and before the owner of unit 7, to which the stairs led, owned it. The evidence is that the blocked stairs do not breach any law, and are not unsafe. There is no evidence that anyone wanted or needed to use the stairs.
5.The Owners Corporation conceded that apparently the formalities with respect to the use of that part of the common property were not observed at the time the stairwell was blocked. However, evidence was provided that the Owners Corporation: decided by general resolution on 28 July 2016 that no restoration of the stairwell is required; by general resolution on 27 October 2016 that there was no need or value in attempting to return the common property to its pre-1992 condition; decided by general resolution on 15 February 2017 to approve the alteration to the common property stairwell; and decided by unopposed resolution on 15 February 2017 to grant the owner of unit 7 a special privilege with respect to the use of the affected part of the common property.[2]
[2] See paragraph [37] below
6.In the light of these circumstances the Tribunal does not think any order in relation to the blocking of the stairwell should be made.
7.Similarly, the use of common property for signage and of body corporate electricity has been agreed by the Owners Corporation, and the position with regard to the asbestos report remedied. The Tribunal does not see any basis for making orders in relation to these matters.
Background to proceedings
8.In 1990 Unit Plan No 584 was registered under Part IV of the Unit Titles Act 1970 and the body corporate which is now the Owners Corporation formed. It appears that there were nine units. Prior to this the building had existed at Kingston shops for some time. [3] Ms Damiano became the owner of her unit in 2000. The dispute between Ms Damiano and the Owners Corporation and other individual owners first arose in 2015 and concerns a concrete slab constructed at some time on stairs leading to unit 7, signage in relation to units 6 and 7 and the use of electricity by those signs, and the asbestos report for the units. These are each discussed below.
History of proceedings
[3] Exhibit R1, tab 1
9.The amended application was made on 28 July 2016. The hearing in this matter was originally set down for 1 December 2016. At a directions hearing on 21 November 2016, this date was vacated, further procedural orders were made, and the hearing set down for 23 and 24 February 2017. In response to the amended application, the Owners Corporation was ordered to, and did, provide a points of defence dated 10 February 2017 (points of defence). Ms Damiano argued that the order for adjournment, the order for the points of defence, and the points of defence themselves, disadvantaged her in some way; apart from the slight delay it was not clear how that was the case.
10.These proceedings were heard on 23 and 24 February 2017. On 23 February 2017 Ms Damiano gave evidence and tendered various documents (exhibits A1-A17). A number of witnesses were subpoenaed and gave evidence. On 24 February 2017 Ms Damiano indicated she could not continue at that time because of illness, and sought an adjournment. The proceedings were however able to continue for some time on this day and Ms Damiano tendered more documents (exhibits A14-A15). Counsel for the Owners Corporation also outlined his client’s position, and provided Ms Damiano with the documents on which it relied (which became exhibit R1). Orders were made for the further conduct of the proceedings, in particular that Ms Damiano file and serve any further documents on which she relied for her amended application by 9 March 2017, and evidence in reply by 31 March 2017. She did neither.
11.A further hearing was held on 11 April 2017. Ms Damiano sought an adjournment at the commencement of this hearing, which was declined. Ms Damiano provided further documents at this hearing (exhibits A16-A17). Counsel for the Owners Corporation outlined the documentary evidence on which he relied (which had been provided to Ms Damiano on 17 March 2017). Mr Trobe of Guyzance Mill gave evidence, and was cross-examined by Ms Damiano. Orders were made at the end of that hearing for Ms Damiano to file and serve any documents in reply by 28 April 2017; her submissions by 12 May 2017; the Owners Corporation, and Guyzance Mill if it wished, were to file and serve their submissions by 26 May 2017; and Ms Damiano was to file and serve her submissions in reply by 2 June 2017. Ms Damiano filed no further evidence or any submissions by these dates, and still has not done so by the date of this decision. The Owners Corporation filed submissions dated 24 May 2017 (Owners Corporation’s submissions).
Preliminary legal matters
12.The points of defence raised a number of matters which were not directly pursued in the Owners Corporation’s submissions. However, because these go to fundamental issues concerning Ms Damiano’s claim, they are briefly addressed.
Standing of Ms Damiano
13.The points of defence stated that the only person who has legal standing to commence a claim in respect of the common property is the Owners Corporation, and that Ms Damiano could not bring this claim.
14.This does not appear to be correct. Standing to bring proceedings in the tribunal is generally determined by the relevant statutory regime. Section 125 of the Unit Titles (Management) Act 2011 provides that it applies to a dispute relating to an owners corporation for a units plan between the corporation and an owner or occupier of a unit in the units plan. A party to the dispute may apply to the ACAT for an order in relation to the other party if the application relates to the dispute. Section 128 provides that it applies to a dispute relating to an owners corporation for a units plan between two or more unit owners. A party to the dispute may apply to the ACAT for an order in relation to the other party if the application relates to the dispute. The dispute in this case falls within these provisions, which enable this claim to be brought by Ms Damiano. Further, section 19 provides that the owners corporation for a units plan holds the common property as agent for the unit owners as tenants in common in shares proportional to their unit entitlement.
Limitation period
15.The Owners Corporation also argued in the points of defence that the claim is outside the relevant limitation period. Reference was made to section 11 of the Limitation Act 1985 which provides that an action in any cause of action has a limitation period of six years. ‘Cause of action’ is defined in the Dictionary to mean a fact “that gives rise to a right to bring a civil proceeding.” This may well be a civil proceeding, but the relevant facts giving rise to it are the disputes covered by sections 125 and 128. These disputes are within the six year limitation period.
Issue about counsel for the Owners Corporation
16.In the hearing, Ms Damiano indicated that she had some objections to Mr Orlov acting as counsel for the Owners Corporation. She was given an opportunity to make a formal application in relation to this matter, and indeed a hearing date was set for consideration of this matter; but no application was made.
Blocking of stairs
17.As set out in her amended application, Ms Damiano claimed that a structure had been built on common property without an unopposed resolution by way of approval, blocking the stairs which went up to unit 7.
Evidence relied on by Ms Damiano
18.Ms Damiano provided a statement in the proceedings dated 26 November 2016. She said there that she has owned unit 4 since 2000;[4] prior to that her father had owned it since 1995. She stated:
2. In late Feb 2015 I inspected my property and the fire stairwell at the rear of my shop, noticing a major structural change to the common property area. The fire stairs had been permanently sealed off not allowing me access my common property – that is, up one flight of stairs to one of the fire doors of unit 7.
3. I have inspected my property at least on an annual basis every year and often several times during the year. The inspection in late Feb 2015 was the first time I had witnessed the unauthorized use by unit 7 of my common property area.[5]
[4] It is noted that the Owners Corporation provided evidence that this occurred in 2004, but nothing turns on this: see exhibit R1, tab 7
[5] Exhibit A4
19.She also stated that despite searching, she could find no historical evidence of resolutions by the Owners Corporation which allows the owner of unit 7 exclusive use of any common property (paragraph (7)). She said she had asked the owner of unit 7 to rectify this, but they refused to do so (paragraph (8)).[6]
[6] Exhibit A4
20.Ms Damiano gave oral evidence to the Tribunal and confirmed her statement. She added that she located Brad O’Mara, of the previous strata manager, and asked him if he had seen the stairwell in this form, and that he was screaming on the phone: “No. What have they done?” Ms Damiano later stated that: “… I visit the property a lot … I’ve had a very difficult tenant. When I’m in Australia I’m sniffing around to see what they’re up to …” [7]
[7] Transcript of proceedings dated 23 February 2017, pages 63-64
21.The Tribunal notes that while the evidence of Ms Damiano was that the change did not allow her access to the common property in which she had an interest, there was no evidence given by Ms Damiano that she wanted to or needed to use the stairs, or indeed that she had ever sought to use them; she only noticed the change when she inspected the common property.
22.Ms Damiano refused to be cross-examined on her statement and evidence “without legal representation.”[8] Despite a hearing on three days, Ms Damiano never attended with legal representation. Mr Orlov, counsel for the Owners Corporation, indicated that he was prepared to forego cross-examination of Ms Damiano, on the basis that it was not held against him that he had failed to challenge a matter in her evidence.[9]
[8] Transcript of proceedings dated 11 April 2017, page 201
[9] Transcript of proceedings dated 11 April 2017, page 209
23.A letter was provided by Ms Damiano from David Sloan of LANDdata Surveys dated 2 March 2015 which stated that “a floor slab has been constructed within that part of the Common Property shown edged in red … [which] was formerly a stair way providing access to Unit 7 ...” It stated that a “concrete slab has been constructed within this stair way to add additional floor space to Unit 7” and that “the construction of the concrete slab means that the common property stair way is no longer accessible or useable.”[10]
[10] Exhibit A1
24.Mr Sloan also gave oral evidence and confirmed the statements in this letter. He stated that he had never seen a stairwell blocked before.[11] In cross-examination Mr Sloan agreed that when he referred to a new floor slab he meant “an infilled piece of concrete over what was previously a void”; he had “no idea when it [the infilled piece of concrete] was put there.”[12]
[11] Transcript of proceedings dated 23 February 2017, pages 35 and 38
[12] Transcript of proceedings dated 23 February 2017, page 42
25.Brad O’Mara also gave oral evidence for Ms Damiano. He owns Ray White Queanbeyan and was the previous strata manager for Units Plan No 584. Mr O’Mara gave evidence that when Ms Damiano sent him information about the infill he thought: “It is common property and it looked clearly that there was a floor added over a stairwell.” He said: I “cannot recall that stairwell in that condition ... but I cannot recall it being the other way either.” He also said he had not seen an egress blocked in this manner before.[13]
[13] Transcript of proceedings dated 23 February 2017, page 48
26.Ms Damiano also provided an email from Michael Sorensen, Principal Building Surveyor, BCA Certifiers Australia Pty Ltd (BCA Certifiers) dated 27 February 2015 which stated:
The exit appears to be one of three exits from an upper floor tenancy. Without the exit that has been blocked off there are two remaining exits that still satisfy the current requirements of the Building Code of Australia. It is our opinion that the work that was undertaken to block off the exit does not reduce the buildings level of compliance with the BCA. [14]
[14] Exhibit A8
27.Ms Damiano replied to this email by pointing out that there is only one remaining exit which “may not be assessable [sic] in accordance with the legislation”.[15] No evidence was provided or submission made to support the suggestion that there was a legal issue with the remaining exit.
[15] Exhibit A8
28.Ms Damiano complained to the ACT Government, Environment and Planning, who responded by letter dated 17 March 2015 that the relevant conduct, the blocking of the stairwell, is not a controlled activity, no further action is required, and there is no applicable law to enforce. The letter indicated that a range of proceedings could be commenced in the tribunal.[16]
[16] Exhibit A9, page 31
29.Ms Damiano also provided an email from Glen Cargill, Station Officer, Fire Safety, ACT Fire and Rescue dated 30 October 2015 which stated: “ACTF&R agree with the findings of BCA certifiers, that is, that no required exits have been deleted. ACTPLA, as the regulators of planning/application issues are also of the opinion that no laws have been breached by the removal of the stair.”[17]
Evidence relied on by respondents
[17] Exhibit A8
30.The principal position of the Owners Corporation was that the slab over the stairs was built in October 1992 by the predecessor in title of the current owner of unit 6 and with the knowledge or acquiescence of the then body corporate, and that the current owner of unit 7 purchased the unit in that condition. The Owners Corporation provided significant evidence of this, namely:
(a)A document showing the approval of the ACT Deputy Building Controller dated 15 September 1992 to alterations to the Grand Slam Bridge Centre, including construction of a slab over part of the internal stairwell.[18]
(b)A ‘Permit to Carry Out Building Work’ issued by the Department of Urban Services, ACT Building Control in relation to unit 7 with a date of 1 October 1992.[19]
(c)An inspection report dated 14 October 1992 in relation to “slab reinforcement to stair” which states that work appears to be substantially in accordance with the approved plans, and another dated 20 October 1992 in relation to “slab reinforcement to stair” which indicates that work does not meet the requirements of the approved plan and requires amended plans to be submitted showing changes to rooms.[20]
(d)‘Certificate of Occupancy and Use’ for internal alterations dated April 2000.[21]
[18] Exhibit R1, tab 9, pages 4 and 5
[19] Exhibit R1, tab 6
[20] Exhibit R1, tab 6
[21] Exhibit R1, tab 9, page 6
31.The Owners Corporation also provided a letter dated 22 October 2015 from Michael Sorenson of BCA Certifiers which stated that: “the rear stair subject to the complaint is not required to exit the tenancy.” He also stated that he had witnessed the plans approved in 1992 to cover part of the rear stair with a concrete floor and that this work subsequently obtained a certificate of occupancy in 2000.[22]
[22] Exhibit R1, Tab 9, page 8
32.The second respondent Guyzance became the owner of unit 7 in October 2002. Mr Trobe of Guyzance Mill gave evidence that “the stairs were in place in when I purchased the unit and it would seem incongruent to me that anybody could have walked up to them – walked up those stairs in 2012 …” It is clear Mr Trobe’s evidence was that the stairs were blocked when his company bought the unit in 2002.[23]
[23] Transcript of proceedings dated 11 April 2017, page 278
33.When Guyzance purchased the unit, A+P Leemhuis Builders Pty Ltd undertook an internal fitout. On their behalf, Darrell Leemhuis provided a statement that “the staircase condition is in exactly the same state as when we commenced work in the second half of 2002.” He stated that the work on the staircase “was carried out at least 13 years ago and prior to occupation by TT Architecture” and it “was in no way associated with any of the Fitout work carried out by our company.” Photographs taken in 2002 and supplied confirm this position.[24]
When was the stairwell blocked?
[24] Exhibit R1, tab 9, pages 16-19
34.On the basis of this evidence the Tribunal finds that it is likely that the blocking of the stairs occurred in 1992. The documentary evidence to this effect is significant. There is also evidence from Mr Sorenson (based on the documentary evidence), Mr Trobe (who was subject to cross-examination) and Mr Leemhuis that the stairwell was blocked when Guyzance Mill purchased the unit in 2002. It is only Ms Damiano (who declined to be cross-examined) who is of the view that the blocking occurred more recently, and there is no other person or documentary evidence which supports this. Mr Sloan and Mr O’Mara did not know when the stairwell was blocked.
35.On the basis of the evidence it is clear that the blocking of the stairwell did not make the building non-compliant with the BCA, or any law.[25] There was no evidence it made the building unsafe in any way.
[25] Subject to Owners Corporation approval of the use, as to which see paragraphs [37] and [47]
36.It seems likely that the changes were made with the knowledge or acquiescence of the then body corporate. The Owners Corporation referred to the minutes of a proprietors meeting held on 8 October 1992 which recorded the proprietors’ agreement that “in relation to the stairwells it was noted that each of these are for the benefit of a unit or group of units.” The stairwell in issue only gave access to unit 7, and the owner may well have proceeded to block it on the basis of this resolution.[26]
Approval by Owners Corporation
[26] Exhibit R1, tab 5; Owners Corporation’s submissions paragraph [6]
37.But the Owners Corporation conceded that the formalities with respect to the use of that part of the common property were not observed at the time the stairwell was blocked. However, evidence was provided that the Owners Corporation:
(a)decided by general resolution at a general meeting on 28 July 2016 that “no restoration of the staircase is required”;[27]
(b)decided by general resolution at an annual general meeting on 27 October 2016 that there was no need or value in attempting to return the common property to its pre-1992 condition and to take steps to formalise the position at a future meeting;[28]
(c)decided by general resolution at a general meeting on 15 February 2017 to approve the alteration to the common property stairwell;[29] and
(d)decided by unopposed resolution at a general meeting on 15 February 2017 to grant the owners of unit 7 a special privilege “for exclusive use of that part of the common property comprising the area within the stairwell, which runs from the rear alley common property up to unit 7, upon which a concrete slab has been erected …, with the area of the special privilege to be all that area of the common property on a horizontal plane from the top of the concrete slab to the vertical limit of the common property”.[30]
[27] Exhibit R1, tab 11; Ms Damiano apparently did not attend this meeting
[28] Exhibit R1, tab 12; Ms Damiano apparently did not attend this meeting
[29] Exhibit R1, item 11 concerning motion 5; Ms Damiano apparently attended some of this meeting, but was not present for this item
[30] Exhibit R1, item 11 concerning motion 6; Ms Damiano apparently attended some of this meeting, but was not present for this item
38.In the proceedings Ms Damiano orally raised issues in relation to these decisions. The Tribunal does have power to make orders in relation to the meetings, see for example sections 129(1)(e), (f) and (g) of the Unit Titles (Management) Act 2011. But Ms Damiano made no application for such an order, provided no evidence in support of such an order and made no submissions in relation to such an order. It is difficult to see how in these circumstances the Tribunal could consider making such an order. The Owners Corporation also submitted that a relevant application could not now be made because section 10(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act); it is not necessary to determine this.
Order sought
39.The relevant order which Ms Damiano sought was that “within 3 months owners corporation and unit 7 owners remove any structures on common property blocking stairwell as identified” on the relevant plan.
40.Section 129(1) of the Unit Titles (Management) Act 2011 provides for the kinds of orders that the tribunal can make. These include:
(a)an order requiring a party to do, or refrain from doing, a stated thing;
(b)an order requiring a party to exercise a function under this Act;
(c)an order requiring an owners corporation to do a stated thing that is ancillary to a function of the corporation under this Act …
Section 129(2) provides that the ACAT may make any other order it considers reasonably necessary or convenient to resolve a dispute and section 129(3) that this section does not limit the orders the ACAT may make in relation to a dispute.
Reasons why order is not made
41.It is arguable that these provisions would support the order sought by Ms Damiano. The Owners Corporation argued that the only way to obtain this order was through merits review of a resolution (under section 129(1)(f)). This does not seem correct in light of the breadth of the other paragraphs in section 129(1), but it is not necessary to determine this. There are a range of other reasons for not making the order sought.
42.First, the Tribunal has found that the structure blocking the stairwell has been in place since 1992, that is for 25 years. It was in place before Ms Damiano owned her unit, and before the owner of unit 7, to which the stairs led, owned it. This is a very significant passage of time, and it would generally be inappropriate to make a discretionary order after such a period.
43.Second, as the Owners Corporation argued, this position may have given rise to an estoppel or similar principle in relation to the current situation.
44.Third, the evidence is that the blocked stairs do not breach any law.[31]
[31] Subject to Owners Corporation approval of the use, as to which see paragraphs [37] and [47]
45.Fourth, there is no evidence that the current situation is unsafe.
46.Fifth, there is no evidence that anyone has wanted or needed to use the stairs since 1992. There was even no evidence that Ms Damiano wanted or needed to use the stairs, or indeed that she had ever used them. She only noticed the change when she inspected the common property.
47.Sixth, it is true Ms Damiano has some interest in the common property. But it is a minor interest which must be weighed against the other interests involved. There was also evidence that the blocking of the stairs in this way was unusual. But this is not a strong argument for now removing the blockage.
48.Seventh, the Owners Corporation has addressed the issue, and adopted a reasonable solution. Ms Damiano suggested that her concerns had been ignored by other unit owners and the Owners Corporation. This is not correct. Her concerns were considered at meetings on the 28 July 2016, 27 October 2016 and 15 February 2017. But these meetings did not agree with the solution proposed by Ms Damiano. Rather these meetings agreed, in various ways, that the restoration of the stairwell was not required. In light of points 1 to 5 noted above, this seems a reasonable and rational outcome to the issue raised by Ms Damiano.
49.As noted above, Ms Damiano orally raised issues in relation to these decisions, but did not challenge them. She indicated in effect that she would have voted against the resolution of 15 February 2017 if she had been present. This does not change the Tribunal’s position. As noted the current structure has been in place for 25 years without any practical detriment to anyone; the other owners are happy with the current arrangements; the recent concerns of Ms Damiano alone do not provide a basis for requiring a structural change.
50.For these reasons, the Tribunal declines to make the order requested by Ms Damiano that the Owners Corporation and the owner of unit 7 remove the structure on common property blocking the stairwell.
Signage
51.Ms Damiano in her statement dated 26 November 2010 indicated that she had also discovered unauthorised use of electricity from the body corporate mains electricity for light-box signs for units 6 and 7. She stated that the owner of unit 7 had admitted that the two light-boxes were installed during the renovation of the front stairwell to units 6 and 7 and on common property. She also said that she could find no documentation which allows units 6 and 7 the right to use common property and common property power for the signage.[32]
[32] Exhibit A4, paragraphs 9-11
52.Ms Damiano provided a quote from Brilliant Electrical Solutions dated 6 March 2015 to remove tenant lighting from the body corporate supply for $455.[33]
[33] Exhibit A5
53.Mr O’Mara stated that “it’s very common in commercial real estate with tenants that come in and out that they do put signs up … and they don’t get body corporate approval. If it came to light for me as a manager I would seek body corporate approval for that.”[34] He had earlier stated that if a tenant was using the common property electricity for a sign he “would try to work out how much power it runs and then use the consumption guide as that … and annualise that and reimburse it back to the body corporate.”[35]
[34] Transcript of proceedings dated 23 February 2017, page 51
[35] Transcript of proceedings dated 23 February 2017, pages 50
54.The Owners Corporation noted that the signs were installed on the common property with the approval of the Owners Corporation. They have apparently been in place since renovations to the front stairwell were carried out, it seems in about 2007.[36] The sign belonging to unit 6 is not connected to the Owners Corporation power. It was conceded that the sign belonging to unit 7 is connected to Owners Corporation power. The annual cost of the electricity used by the unit 7 sign is apparently minimal, approximately $35 per annum.[37]
[36] Exhibit A14, email from Mr Trobe dated 17 April 2015; Owners Corporation’s submissions at [19]
[37] Exhibit R1, tab 9, letter from ACT Strata Management dated 5 November 2015
55.The Owners Corporation resolved by general resolution at an annual general meeting on 27 October 2016 that it would meet the cost of electricity to unit 7’s sign in return for use of unit 7’s conference room to conduct meetings.[38] The Owners Corporation decided by unopposed resolutions at an annual general meeting on 15 February 2017 to grant special privileges to all unit owners with respect to signage and for the connection of signage to the Owners Corporation power.[39]
[38] Exhibit R1, tab 12; Ms Damiano apparently did not attend this meeting
[39] Exhibit R1, item 12 concerning motions 7-11; Ms Damiano apparently attended some of this meeting, but was not present for this item
56.The orders sought by Ms Damiano were that within three months unit 7, unit 6 and the Owners Corporation remove any signage on common property and repair damage, and that the Owners Corporation assess and seek recovery of electricity costs used by unit 7 and unit 6 since the signs were erected.
57.The Tribunal is of the view that it is arguable that section 129 supports such an order, but does not think that such an order should be made. The use of the common property for the signs has been in place for some time. There was no evidence that the arrangement breaches any law[40] or is unsafe. There was no evidence that anyone else wanted or wants to use this aspect of the common property, including Ms Damiano. As with the stairwell, Ms Damiano’s concerns have been considered by the Owners Corporation but her solution has not been agreed to. Rather all unit holders, including her, have been granted special privileges concerning signage on common property. This seems a reasonable and rational outcome. Indeed it is consistent with that proposed by Mr O’Mara, a witness called by Ms Damiano.
[40] Subject to Owners Corporation approval of the use, as to which see paragraph [54] above
58.The use of common property power by unit 7 has also been addressed. The cost of the electricity is apparently minimal. As suggested by Mr. O’Mara, a reimbursement arrangement has been put in place with the electricity provided in return for the use of unit 7’s conference room. This is not exactly what Ms Damiano asked for, but it is close. Again, this is a reasonable and rational response to the issue, which the Tribunal will not disturb.
Asbestos
59.Ms Damiano stated that in June 2015 she discovered that every five years Unit Plan No 584’s Asbestos Report is required to be updated; she requested that be done; she received no response and therefore “the report remains outdated.”[41]
[41] Exhibit A4, paragraph 12
60.She seeks an order that the Owners Corporation be required to obtain an updated asbestos report.
61.The Owners Corporation resolved by general resolution at an annual general meeting on 27 October 2016 that a new asbestos report should be obtained.[42] There are therefore no grounds for the Tribunal to make the order.
Other orders
[42] Exhibit R1, tab 12; Ms Damiano apparently did not attend this meeting
62.Ms Damiano also seeks orders that the respondents pay the costs of the application, the survey by LANDdata Surveys dated 2 March 2015 ($445.50), legal costs (an invoice for $1,321.90 was provided) and interest.
63.Ms Damiano claimed these costs in her amended application and orally, but made no written submissions or oral submissions directed to this issue. She did not indicate any basis upon which these costs should be awarded. She has been unsuccessful in relation to her amended application. Generally in the tribunal the parties to an application bear their own costs.[43] The Tribunal is therefore unwilling to make this order.
[43] Section 48(1) of the ACAT Act, subject to section 48(2)
64.The Owners Corporation has indicated that if Ms Damiano were unsuccessful in the proceedings, it may wish to be heard on whether a costs order should be made against Ms Damiano. It may make an application in relation to this issue if it wishes.
………………………………..
Senior Member R Orr QC
HEARING DETAILS
FILE NUMBER:
UT 49/2015
PARTIES, APPLICANT:
Marilena Damiano
PARTIES, FIRST RESPONDENT:
The Owners – Units Plan No 594
PARTIES, SECOND RESPONDENT
Guyzance Mill Pty Ltd
PARTIES, THIRD RESPONDENTS
Delia Waites & Mr Waites
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, FIRST RESPONDENT
Mr Orlov
COUNSEL APPEARING, SECOND & THIRD RESPONDENTS
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENTS
N/A
TRIBUNAL MEMBERS:
Senior Member R Orr QC
DATES OF HEARING:
16 & 17 March & 11 April 2017
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