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Elwick 9 Pty Ltd v Freeman

Elwick 9 Pty Ltd v Freeman

Case [2018] VSC 234 11 May 2018

Appeal

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Legitimate Expectation

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2018 00375

ELWICK 9 PTY LTD (ACN 610 147 290) T/AS 9 ROUND ELSTERNWICK	Applicant
v
ELLIOT FREEMAN	First Respondent
LI SUN	Second Respondent
HEATHER SHEARER	Third Respondent

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JUDGE:	QUIGLEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2018
DATE OF JUDGMENT:	11 May 2018
CASE MAY BE CITED AS:	Elwick 9 v Freeman
MEDIUM NEUTRAL CITATION:	[2018] VSC 234

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ADMINISTRATIVE LAW – Application for leave to appeal – Whether reasons were written or oral – Whether reasons were inadequate – Whether order of the Tribunal failed to make a final determination – Victorian Civil and Administrative Tribunal Act 1998 ss 117, 148 – Owners Corporation Act 2006 ss 1, 4, 162, 165

STATUTORY INTERPRETATION – Inconsistency between planning permit and owners corporation rules – Whether a planning permit confers a right for the purposes of the Owners Corporation Act 2006 s 140 – Whether a planning permit confers a right under an Act – Owners Corporation Act 2006 s 140 – Planning and Environment Act 1987 ss 3, 4, 47–68, 87–91, 114–130

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr E Nekvapil with Ms E Golshtein	Fairweather Legal
For the Respondents	Mr D Freeman, solicitor	David Freeman Lawyer

HER HONOUR:

Introduction

This is an application for leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) and, if leave is granted, the appeal from a decision made on 9 November 2017 in proceeding OC1085/2017 in the Owners Corporations List of the Victorian Civil and Administrative Tribunal (‘the Tribunal’).

The applicant, Elwick 9 Pty Ltd (‘Elwick 9’), is the operator of a gymnasium business (‘the Gym’), located at the ground floor premises of a mixed use commercial and residential apartment building in Glen Eira. The first respondent, Dr Freeman, was at the time of the Tribunal hearing a resident and owner of one of the residential apartments above the Gym. The rules of the Owners Corporation AM781949T (‘the Rules’) for the Plan of Subdivision PS701454B (‘the Plan of Subdivision’) set a number of rules for the management and amenity of the building which apply to all owners an occupiers, including Elwick 9 and Dr Freeman.[1]
[1]Mr David Freeman, is the solicitor for the respondents, including for the first respondent who is Dr Elliot Freeman.

The Tribunal’s orders dated 9 November 2017 directed, inter alia, compliance with the Rules and also restricted the hours of operation of the Gym operated on the premises of Elwick 9 (‘the Orders’). The restriction was inconsistent with the opening hours authorised under a planning permit, which authorised the use of the Elwick 9 premises as a gym between the hours of 6.00am and 11.00am Monday – Friday. The Orders also purported to grant liberty to Elwick 9 to return to the Tribunal and seek removal of the operational hours restriction that…

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.

Continue reading Elwick 9 Pty Ltd v Freeman

Details

AGLC: Elwick 9 Pty Ltd v Freeman [2018] VSC 234
Case: [2018] VSC 234
Decision Date: 11 May 2018

CaseChat Overview and Summary

The matter before the Court was an application by Elwick 9 Pty Ltd for leave to appeal against a decision of the Victorian Civil and Administrative Tribunal (VCAT). The dispute involved a claim that the Tribunal had failed to make a final determination of an application to review the decision of an owners corporation to refuse to amend its rules. The claim was also based on the contention that the Tribunal's reasons were inadequate. The primary legal issues before the Court were whether the reasons provided by the Tribunal were in writing or oral, whether they were adequate, and whether the Tribunal's order failed to make a final determination. The Court was also required to consider whether a planning permit confers a right for the purposes of the Owners Corporation Act 2006 s 140, and whether it confers a right under an Act.

The Court found that the reasons provided by the Tribunal were written, and that they were adequate as they addressed the relevant issues and provided sufficient detail for the parties to understand the basis of the decision. The Court also found that the Tribunal's order did not fail to make a final determination, as it had addressed the substantive issues raised in the application. In relation to the issue of whether a planning permit confers a right under an Act, the Court found that it did not, as the Owners Corporation Act 2006 s 140 specifically excludes planning permits from the definition of a right under an Act. The Court held that the application for leave to appeal should be dismissed.

As a result of the Court's decision, the application for leave to appeal was dismissed, and the decision of the Tribunal remained in place. The Court did not make any further orders in relation to the dispute. The decision highlights the importance of ensuring that reasons provided by tribunals are adequate and in writing, and that they address the relevant issues raised in the application. It also clarifies the scope of the definition of a right under an Act in the Owners Corporation Act 2006.

Orders