Feng v The Owners - Up 840 (Unit Titles & Civil Dispute)
[2022] ACAT 23
•21 March 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
FENG & ANOR v THE OWNERS – UP 840 (Unit Titles & Civil Dispute) [2022] ACAT 23
UT 19/2020 & XD 681/2020
Catchwords: UNIT TITLES & CIVIL DISPUTE – applications made in dual jurisdictions, civil dispute for a claim and damages in negligence, unit titles for alleged contraventions of the Unit Titles (Management) Act 2011 – broad allegations of ‘illegal’ actions by the owners corporation – whether second applicant was properly authorised to communicate on behalf of a unit owner – contested expenditures made under to Unit Titles (Management) Act 2011 – whether expenditures on common property issues were reasonable – unit owner’s request for information under section 117 – orders sought which are without power under both the ACT Civil and Administrative Tribunal Act 2008 and Unit Titles (Management) Act 2011 – absence of persuasive evidence to support claims – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008
Common Boundaries Act 1981
Limitations Act 1985 s 11Unit Titles (Management) Act 2011 ss 24, 29, 30, 35, 39, 40, 77, 83, 88, 108, 117, 119, 121, 129, sch 1
Cases cited:Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Casino Canberra Limited v Kidman [2022] ACAT 22
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Tribunal:Senior Member K Katavic
Date of Orders: 21 March 2022
Date of Reasons for Decision: 21 March 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) UT 19/2020
XD 681/2020
BETWEEN:
ADAM FENG
First Applicant
KAREN FENG
Second Applicant
AND:
THE OWNERS – UP840
Respondent
TRIBUNAL:Senior Member K Katavic
DATE:21 March 2022
ORDER
The Tribunal orders that:
The applications in UT 19/2020 and XD 681/2020 are dismissed.
………………………………..
Senior Member K Katavic
REASONS FOR DECISION
Introduction
The applicants in these proceedings are brother and sister. Mr Feng is the owner of a unit in the complex. It was purchased sometime in 2012. Ms Feng resides in the unit and has no other interest in it. Issues began to emerge between Ms Feng and the respondent. It set off a forensic inquisition into the conduct and management of the respondent over several years, predominantly driven by Ms Feng, and resulted in the commencement of these proceedings. The applicants commenced proceedings in the tribunal’s unit titles jurisdiction and civil dispute jurisdiction against both the owners corporation and the strata manager in relation to a variety of issues. The applicants allege negligence and various other contraventions of the Unit Titles (Management) Act 2011 (the UTMA) against the respondent and seek relief in the form of damages and other orders.
The proceedings and the hearing
The applicants commenced separate proceedings by way of an application under the UTMA against the owners corporation and a civil dispute application against both the owners corporation and strata manager. In general terms, the purpose of the civil claim was to recover damages caused by the negligence of the respondents and the purpose of the UTMA application was to stop the respondents from contravening the UTMA. It was claimed these alleged contraventions were the cause of emotional and financial damage. The proceedings against the strata manager were settled and discontinued prior to hearing. They played no further part in the proceedings.
The applicants filed a comprehensive volume of material in support of their claims. They were as follows:
(a)A submission comprising 161 pages, attaching:
(i) the notices and minutes for each annual general meeting (AGM) from 2012 to 2019;
(ii) supporting evidence called email evidence 1-6, letter to resolve and get answers, images, unit plan, sinking fund forecast and disputed invoices.[1]
(b)A summary of claims filed on 3 September 2020.[2]
(c)A document titled ‘Additional for ACAT case: After receiving meeting minutes’ filed on 6 October 2020.[3]
(d)Timeline filed on 15 October 2020.[4]
[1] Together called Exhibit A1
[2] Exhibit A2
[3] Exhibit A3
[4] Exhibit A4
The applicants added to their claim by way of amendment to include a document tilted ‘2020 addition to the ACAT application’.
Ms Feng appeared on behalf of herself and Mr Feng at the hearing. Mr Feng did not play an active role in these proceedings. I regarded the exhibits, in particular A1, as a witness statement as it was authored by Ms Feng. Understandably it contains a mix of asserted fact, speculation, opinion and submission. It was nonetheless helpful. Pragmatically, the respondent did not object to this course.
The respondent was represented at the hearing by Mr Rowley and relied upon the following:
(a)A response including a table setting out the respondent’s position on each issue raised.[5]
[5] Exhibit R1
(b)A timeline in relation to the 2013 fence dispute including attachments.[6]
[6] Exhibit R2
(c)A timeline in relation to insurance and plumbing issues including attachments.[7]
[7] Exhibit R3
(d)A timeline in relation to the camera issue including attachments.[8]
(e)A timeline in relation to the trees issue including attachments.[9]
(f)Additional documentary evidence.[10]
(g)Orders the respondent seeks.[11]
(h)Witness statement of Stephen Rowley dated 2 November 2020.[12]
(i)Witness statement of Vincent Daria dated 4 November 2020.[13]
(j)Witness statement of Sylvia Grey dated 2 November 2020.[14]
(k)Two witness statements of Hugh McGowan dated 15 October 2020.[15]
(l)Witness statement of Hugh McGowan dated 2 November 2020.[16]
(m)Witness statement of Sara Hogwood dated 1 November 2020.[17]
[8] Exhibit R4
[9] Exhibit R5
[10] Exhibit R6
[11] Exhibit R7
[12] Exhibit R8
[13] Exhibit R9
[14] Exhibit R10
[15] Exhibits R11 and R12
[16] Exhibit R13
[17] Exhibit R14
Each of the respondent’s witnesses gave evidence before the Tribunal and were cross-examined.
The hearing was conducted over three days via Webex, the last day being 3 February 2021. It was less than ideal. There were various technological issues across all active participants and at times Ms Feng was inaudible. Each time the Tribunal ensured Ms Feng was audible again and her participation was restored before proceeding. There was a significant delay in the provision of the transcript of the second hearing day, where the service provider denied the existence of a transcript, yet a monitor from the provider participated in the hearing. This was less than satisfactory and was a contributing factor to the delay in the preparation of this decision. Such a situation not only disadvantages the parties it delays the delivery of justice to the parties. Another contributing factor to the delay in the preparation of these reasons was my health. This was unforeseeable and not ideal.
I have read the material submitted by all the parties and considered the transcripts of the proceedings. Much of the hearing was dominated by traversing irrelevant or tangential issues that did not directly arise from either claim. Even when directed back to relevant issues or asked as to the relevance of a line of inquiry, Ms Feng persisted in her endeavours. It became apparent Ms Feng was motivated to conduct a wholesale inquiry into the conduct and decisions of the owners corporation with limited focus. That is not the purpose of the tribunal’s unit title jurisdiction. The issues raised and relief sought must correlate with the UTMA. A claim for damages must be supported by evidence. Ms Feng was given the opportunity to ensure the applicants’ case aligned with that course, at times however, it did not. Ms Feng may view these reasons as inadequate because not all of the voluminous material she has provided is referred to in the reasons, however it was not necessary to do so.[18] Further, in Casino Canberra Limited v Kidman,[19] the appeal tribunal considered the adequacy of reasons and the role of an appeal tribunal when considering reasons and said:
43. As to (a), it is unnecessary for a judge to refer to all evidence led in proceedings or to indicate which of it is accepted or rejected. Nor is it necessary for reasons to be lengthy or elaborate. No mechanical formula can be given in determining what reasons are required. These authorities are increasingly applied in a tribunal context, where some decisions historically made by courts are now made. While the public interest in the provision of reasons remains the starting point, the objectives of timeliness and efficiency mandated by the ACAT Act oblige the Tribunal to approach the preparation of written or oral reasons in a proportionate manner.[20] The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker. It is not necessary to refer to every piece of evidence. When considering the adequacy of the reasons the decision must be read as a whole.
44. As to (b), the cautions expressed in Collector of Customs v Pozzolanic[21] as to overzealous scrutiny of reasons for administrative decisions also resonate in the quasi-judicial tribunal context. It is not the role of an appeal tribunal to pore over written or transcribed oral reasons searching for possible inadequacies but rather to consider whether, taken as a whole, the reasons disclose that the original tribunal fell into error. A tribunal at first instance should not feel obliged to slavishly record every detail of the evidence given by every witness, or to set out fine nuances or points of distinction, in order to demonstrate to a hypothetical appeal tribunal or court that due consideration and weight has been given. The primary audience for reasons remains the parties, and reasons which set out the necessary elements in a manner proportionate to the context of the matter will ordinarily be sufficient.
[18] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259
[19] [2022] ACAT 22
[20] See ACAT Act section 7
[21] (1993) 43 FCR 280
It was difficult to extract precisely what the issues were amongst the copious amount of written material Ms Feng submitted. This was because much of her statements were cloaked in conspiracy theories, misunderstandings and general disagreement with the conduct and roles of the strata manager and the owners corporation. I have carefully distilled the below issues with as much precision as possible from her statements and submission. I also add that at times some of the language and tone Ms Feng has used in her correspondence and dealings with the strata manager and the owners corporation is intemperate. It came across as antagonistic, rude and unreasonable. For example, on many occasions, including during the hearing she referred to other unit owners and members of the executive committee as idiots.[22] Such conduct is discourteous and unhelpful. It was also unwarranted.
[22] Transcript of proceedings 3 February 2021, pages 103-104
I deal with each of the issues raised by the applicants separately below. Ultimately, for the reasons that follow, I am not persuaded the applicants’ claims have merit.
Issue 1: Ms Feng’s authorisation to communicate with the respondent/strata manager
This issue may be summarised as Ms Feng’s apparent authorisation to communicate with the strata manager and act on Mr Feng’s behalf in relation to the property being revoked by the strata manager without notice and arbitrarily. She says the prohibition in her dealing with the strata manager on behalf of Mr Feng was driven by the respondent when an issue regarding a camera she had erected emerged. She considers it was part of a conspiracy with the respondent to silence her.
Ms Feng claims that initially in 2012 the strata manager accepted she was the appropriate contact for the property[23] and the correct email and mailing addresses had been registered. She says this subsequently changed in 2017 when she was advised by the strata manager that all future correspondence with them was to come from the owner, Mr Feng because she herself was not an owner.[24] The strata manager requested a power of attorney from Mr Feng authorising Ms Feng in relation to the unit.
[23] Exhibit A1, email evidence 1 pages 1-2
[24] Exhibit A1, email evidence 1 pages 3-4
The applicants claim this change caused stress and inconvenience. They seek compensation for time wasted in seeking to resolve the issue. The applicants also claim the strata manger’s conduct contravenes various provisions of the UTMA.[25]
[25] Exhibit A1, submission page 32
The proceedings in relation to the strata manager were discontinued. As this issue seeks to agitate issues against them when they are no longer a party, I make no findings against them. I am satisfied that the 2012 email confirmed contact information which is different to authorisation to act on behalf of an owner. As Ms Feng is not an owner it was correct to seek proper authorisation from Mr Feng to enable Ms Feng to deal with matters regarding the unit, including communication with the strata manager and the owners corporation. There was no evidence before me of a conspiracy with the owners corporation or that the owners corporation was involved in the strata manager seeking the proper authorisation for Ms Feng to have dealings with them regarding the unit. Even so, I am not satisfied that there was anything inappropriate or incorrect about requesting proper authorisation.
For this reason, the allegations regarding issue 1 are not made out and the applicants are not entitled to any relief.
Issue 2: changes to correspondence
The applicants claim that they advised the strata manger in 2012 to send all relevant notices regarding the unit to its postal address. Ms Feng submits that this was confirmed by email.[26] The email Ms Feng refers to specifically requested that “all associated water, rates etc” to be sent by post. However, all other notices regarding AGMs, minutes and related owners corporation business continued to be sent by email to an address for Mr Feng. Ms Feng said this email address was not checked and not accessed by her and inconsistent with the instruction that was given in 2012 regarding correspondence. She submitted that the use of ‘etc’ in her email was referring to all other notices.
[26] Exhibit A1, email evidence 1 page 2
The applicants seek relief in the form of compensation against the strata manager on the basis that it was negligent in providing all relevant documentation in the manner instructed for a prolonged period which caused Ms Feng to have to review historical records from 2012 to 2018. She says this was caused by the change in how the applicants received correspondence, i.e. not all by post. She says the applicants did not consent to receiving notices by email. In the alternative, the applicants seek compensation from the owners corporation if this change in how notices were sent was at its direction.
Again, the proceedings against the strata manager were discontinued and as a consequence, there is no basis upon which I can nor would grant the relief sought. The evidence does not rise to a level that suggests the 2012 email Ms Feng relies upon was clear enough to encompass all notices from the strata manager. It was not unreasonable to send those specified by post and the remaining directly to Mr Feng at his email address. There is no evidence before me that the owners corporation gave any direction to the strata manager regarding how and where notices were sent. It is not for the strata manager or the owners corporation to have any knowledge about the applicants’ personal family arrangements and the systems they have in place for managing their affairs.
For these reasons, the allegation regarding issue 2 is not made out and the applicants are not entitled to any relief.
Issue 3: fence spending in 2013
The applicants claim that in 2013 the respondent spent money on fences without approval to do so. There are two parts to this issue. The first issue related to spending $9,738 to replace an existing timber fence with a 1.8m high Colorbond fence along the common boundary with the Uniting Church. This amount was based on a quotation provided by Jim’s Fencing Higgins. The second issue relates to spending more than $28,000 on fence replacement from the sinking fund. This was also based on a quotation from Jim’s Fencing Higgins.
A Special General Meeting was held on 5 April 2013 to consider a motion to spend up to $28,000 from the sinking fund as a once off expense for the replacement of external fencing.[27] Mr Feng submitted a proxy and did not attend the meeting.[28] The motion was not carried.[29] Instead the minutes of that meeting state the following:
[27] Exhibit R2, page 2
[28] Exhibit R2, page 3
[29] Exhibit R2, page3
The meeting noted the concerns in relation to the body corporate taking on the responsibility of all the fencing that faced the common areas due to the expense. The meeting noted that they would approve the expenditure of the boundary fence between the church and the Body Corporate. A percentage of this costing would be met by a pending insurance claim as some units sustained storm damage and the Uniting Church would fund 50% of the boundary fence.
2 quotations where obtained for these works.
Allen & Newton (Boundary Fencing) - $12,000.00
Jims Fencing Higgins (boundary Fencing) - $9,738.00
Motion 1a: It was resolved that Jims Fencing Higgins be appointed to replace the existing timer fence with a 1.8m high Colorbond fence (colour to be discussed by Executive Committee). The Body Corporate agrees to a one off expenditure to erect the fencing however all future maintenance costs to be borne by the individual Owner. CARRIED
The meeting noted that they weren’t in a position to approve the internal fencing at this point as further quotations where required. It was resolved that the Manger liaise with the executive committee to undertake the following.
· Form a plan of the proposed internal fencing.
· Seek 2 further quotations from alternate supplies (Alto industries).
· Proposal to be presented at this years upcoming AGM in May-June for consideration by all Owners. [errors in original]
Ms Hogwood gave evidence in relation to this meeting and the fence. She told the Tribunal that her timber fence had been replaced in 2008 and was not in need of repair. She also did not want her timber fence replaced with Colorbond. She said she raised this at the April meeting and that her fence would be excluded from any fence replacement.[30] This is not reflected in the minutes. She followed this up with an email to the strata manager dated 18 April 2013.[31] She also said her understanding was that the Uniting Church would pay half the costs of the boundary fence replacement and the balance was to be covered by the owners corporation partly as an insurance claim and partly as an expense as not all the fence was captured by the insurance claim.
[30] Exhibit R14
[31] Exhibit R14, Attachment C
The resolution of the broader fence replacement issue did not occur at the AGM on 18 June 2013 apart from the colour of any Colorbond fence.[32] A Special General Meeting held on 24 October 2013 resolved the following:
MOTION 1:That the Owners Corporation of Units Plan 840 agree to expend up to $28,000.00 from the Sinking Fund as a once off expense for the replacement of the external fencing as per the Recommendations in the attached ‘Quotation from Jims Fencing Higgins. CARRIED[33]
[32] Exhibit R2, page 6
[33] Exhibit R2, page 7
Neither applicant attended the last two meetings.
The sinking fund plan dated 18 August 2009 for the 15 years commencing 1 May 2009 provides for annual fence maintenance and replacement.[34]
[34] Exhibit R6
Section 29 of the UTMA permits an owners corporation to enter into and carry out an agreement with an owner or occupier of a unit for maintenance if authorised by an ordinary resolution.
Section 30 of the UTMA applies to an agreement authorised under section 29 and provides the owners corporation may recover the costs of carrying out any such agreement. It is discretionary.
Section 88 of the UTMA enables an owners corporation to make payments from its sinking fund if the payments are consistent with the sinking fund plan.
The applicants have raised multiple allegations against the strata manager in relation to the fence expenditure. For reasons I have already stated, I make no findings against the strata manager. The applicants are not entitled to any relief against the strata manager.
The applicants seek to recover from the respondent some kind of reimbursement associated with their contribution to any expenditure which they assert was not properly authorised and not necessary. They proposed several alternative reimbursement or recovery options.
On the evidence before me I am not satisfied the applicants have established any contravention in relation to the fence expenditure. The various resolutions set out above at the meetings on 5 April, 18 June and 24 October 2013 provide the relevant authorisations to replace the fences and the sinking fund plan allows for some fence replacement. In addition, the applicants did not attend any of those meetings.
The allegations regarding issue 3 are not made out and therefore the applicants are not entitled to any relief.
Issue 4: bullying and harassment (the camera issue)
In 2017, the applicants and the strata manager were engaged in what could be described as combat over the installation of a camera. The applicants claim the purpose of the camera was to survey their own property, not common property, following people walking across unit 18’s garden bed and also security reasons. The camera was initially installed inside the dwelling facing out, capturing unit 18’s driveway and a portion of common property.[35] The applicants did not obtain any prior approval to install the camera and its installation became an issue following a complaint made by the occupant of unit 15. What followed was a series of exchanges with the strata manager over the ‘legality’ of the camera and the applicants’ refusal to remove it.
[35] Exhibit A1, email evidence 3, page 4
The applicants seek compensation from the respondent or the strata manager for 122 hours comprising sleepless nights they had researching because they believed the strata manager lied, as well as time spent consulting the police helpline and Legal Aid. The applicants submit that they are unsure if the respondent should be compensating them as they believe the executive committee and the strata manager were acting on behalf of the respondent. They also acknowledge that “[a]t this point we have no evidence that it was the Executive Committee that had instructed Independent Strata Management employees to fabricate lies to threaten us to comply”.[36] The applicants appear to direct the allegations at the strata manager for ‘emotional damages.’
[36] Exhibit A1, submission page 97
There were a series of exchanges beginning in January 2017 between Ms Feng and the strata manager regarding the camera. The strata manager requested Ms Feng remove the camera on the grounds that it faced common property which was an invasion of privacy and no approval had been given for the camera. The strata manager advised that cases like this go to ACAT with the sheriff being ordered to go and remove the camera. Ms Feng queried the reasons given for requesting its removal and sought to obtain advice from ACAT. The removal request was repeated and each time Ms Feng requested more information regarding the reason for removal and advised she was obtaining advice from various entities including the sheriff’s office, ACAT and Legal Aid.[37] Ms Feng repeatedly challenged the reasons underpinning the requests and refused to remove the camera. It culminated in the strata manager informing Ms Feng in July 2017 that failure to remove the camera would result in the executive committee making an application to ACAT and seeking to recover the costs of doing so from her.[38]
[37] Exhibit A1, email evidence 3 pages 1-23
[38] Exhibit A1, email evidence 3 page 14
During this time, the strata manager sought instructions from the executive committee and approval to proceed with an application to ACAT. The committee raised a number of concerns about the issue and the strata manager’s proposal and sought further clarification. The committee made its own inquiries as to the proper course of action. Only one member of the committee supported commencing action in the tribunal and another refused to support that course.[39] From the exchanges with the executive committee,[40] it appears it was prepared to find an alternative resolution without the need to go to the tribunal. Following the provision of a screenshot, the committee were content to approve the camera. However, the committee was prepared to commence proceedings in the tribunal to resolve the issue given the differing views expressed by Ms Feng and the strata manager as to the legality of the camera. This was not an unreasonable position.
[39] Exhibit R4
[40] Exhibit R4
Ultimately, Ms Feng adjusted the angle of the camera to the satisfaction of the executive committee and the matter did not proceed to the tribunal.[41] However, in September 2017, the issue re-emerged when Ms Feng sent an email to the strata manager threatening to install another camera following some damage to her garage door. The strata manager again reiterated she needed to seek approval before installing a new camera and failure to do so would result in commencing proceedings in the tribunal.[42] Nothing appears to have come from this exchange.
[41] Exhibit A1, email evidence 3 page 18 (inset email)
[42] Exhibit A1, email evidence 3 page 21-23
The issue came up again in February 2019 when the strata manager emailed Ms Feng regarding reports of a camera affixed to her property which did not appear to be facing into unit 18’s boundary. She was requested to ensure the cameras only face her property or she would be asked to remove them. This set off a further series of exchanges and Ms Feng refusing to remove the cameras without being given “proof and justifiable reasons”. [43]
[43] Exhibit A1, email evidence 3 pages 25-29
Ms Feng regards the above exchanges with the strata managers in 2017 and again in 2019 as a form of harassment and her being unfairly targeted. She questions why she was never taken to ACAT over the camera incident and also questions the influence of the executive committee in what she describes as harassment towards her by the strata manager. She claims that the strata manager fabricated facts, namely the existence of previous ACAT decisions regarding the removal of cameras because she was unable to find any such decisions.
Ms Feng was told the installation of the camera had not been approved and constituted a breach of privacy particularly in circumstances where it faced common property. The requests to remove the camera were not unreasonable. The strata manager was concerned about the unapproved camera and it capturing the common property and properly raised it with Ms Feng and the executive committee. The executive committee gave the issue considerable thought and sought to find some middle ground. It was not unreasonable to inform Ms Feng that action in the tribunal might be taken if she did not comply with the various requests to either remove the camera or reposition it. While Ms Feng disagreed with the requests, the executive committee’s conduct does not amount to bullying and harassment or abuse of power. Ms Feng repeatedly resisted those requests and demanded more detailed reasons. The reasons given were sufficient. Had she felt the actions of the strata manager and the executive committee to be unreasonable it was open to her to commence proceedings herself in the tribunal seeking orders to retain the camera. She did not do so, but nonetheless questions why the executive committee did not take such a step.
Ms Feng was plainly aggrieved by the handling of the camera issue. However, I am not satisfied that what transpired amounts to bullying, harassment or abuse of power by the executive committee or the strata manager. Even if the strata manger conveyed information which may have been incorrect, he may have believed it to be true. To say Ms Feng was lied to by the strata manager is a serious allegation and based on her own perception and conspiracy. In any event, given the claim against the strata manager was discontinued there is no basis for awarding any relief against the strata manager. For the reasons above, the applicants are not entitled to any relief against the respondent.
Issue 5: spending on plumbing
The applicants challenge certain expenditure on plumbing and related carpet cleaning. The primary contention relates to money spent by the respondent in relation to damage to unit 21.
Across the complex there are a series of common sewage pipes which connect with individual pipes servicing each unit. The common pipe is accessed from an inspection point located within the property of each unit. There is a length of pipe from the inspection point up to its junction with the common pipe that is wholly within the property boundary. From the junction onwards it is the common pipe.[44]
[44] 2020 addition to the ACAT application, page 9 (diagram)
Unit 21 was damaged due to a burst pipe in 2017. The plumber used the inspection point located on unit 21’s property and sent the eel down the pipe until it linked with the common pipe to discover damage from extensive tree roots approximately 20m into the common pipe. As the cause of the damage to unit 21 was found to be attributed to the tree roots breaking the area of common pipe, the respondent covered the cost of repairs to unit 21. This is entirely reasonable. The fact that the payment was not reported until 2019 is explained by inquiries made regarding insurance coverage and the payment not being recorded in the financial year in time for the 2018 AGM. There is no basis to request reimbursement from unit 21.
In relation to the remaining contentions regarding plumbing costs, the applicants have not adduced any evidence to suggest the plumbing issues occurred on private property and were paid for by the respondent, it is based on speculation because some of the owners of those units were also on the executive committee at various times. Some of the allegations related to a period before Mr Feng purchased the property.
I am not satisfied the allegations regarding plumbing costs is made out. The applicants are not entitled to any relief.
Issue 6: spending on gardening
The applicants make three complaints regarding gardening expenses. First, mismanagement of expenditure regarding tree removal/maintenance, secondly, concrete repairs caused by tree roots and thirdly, the scope of the gardening contract.
The applicants claim that they spent money removing trees on their property whereas trees were removed on private property elsewhere and funded by the owners corporation. They accept tree removal on private land is the responsibility of the land owner. They also accept that tree removal on common property is the responsibility of the owners corporation. The applicants complain that the removal of some trees on private property was paid for by the owners corporation and should not have been. They seek the repayment of these funds to the owners corporation by those unit owners or reimbursement from the owners corporation for the tree removal they paid for or for the executive committee to pay the money back as it failed to ensure funds were being correctly spent.
Ms Feng questioned the historical expenditure on tree removal and maintenance, in particular regarding what she believed was the responsibility of units 29, 30, 34 and 59. The issue of the location of various trees and responsibility for them was discussed at meetings in 2017, 2018 and 2019. There was confusion as to their exact location and whether they were on common property. All of the trees concerned were planted by the developer at the time the complex was built. It is these trees that the owners corporation ultimately accepted responsibility for given they began impacting common property or were located adjacent to common property.
The removal of a tree located near unit 59 and the maintenance of a tree at unit 34 were regarded by the owners corporation as being covered by sections 29 and 30 of the UTMA.[45] The removal of the tree between units 29 and 30 was considered to be partly on common property.[46] Its location was problematic and the executive committee agreed to fund its removal. It considered this was also covered by sections 29 and 30 of the UTMA.[47]
[45] Exhibits R1 and R5
[46] Exhibit R5
[47] Exhibit R1
Ultimately the owners corporation passed two special resolutions at the AGM held on 20 June 2019:
Motion 12: That the Owners Corporation of UP840 agree that past decisions of the Executive Committee to pay for the removal of trees on common or private property be formally ratified and in future the Executive Committee be appointed the function and authority to remove mature trees planted by the developer on common or private land in an endeavour to maintain the integrity of the common property.
…
Motion 13: That the Owners Corporation for UP840 agree to rectify any damage to common or private property caused by the complete removal of trees with the provision that the tree was mature trees planted during the building stage by the developer.
Both motions were passed. Unit 18 (Ms Feng) objected and her objection was noted in the minutes.
I am satisfied the expenditure on tree removal falls within section 29 and 30 of the UTMA and was reasonable in the circumstances. The subsequent ratification at the 2019 AGM reinforces the manner in which it was resolved to deal with the tree issue. Ms Feng disagrees but ultimately it was approved at a meeting and not unreasonably so in my view. The applicants are not entitled to any reimbursement. Even if I treat the applicants’ claim as seeking to repeal the resolutions under section 129(1)(f) of the UTMA, I am not satisfied that it is correct or preferable to do so in the circumstances.
The applicants make a similar complaint regarding payments made for repairs to concrete lifted by tree roots. I accept this also falls within the parameters of sections 29 and 30 of the UTMA. I accept that part of the lifted concrete was on common property. Further, the quote for $13,013 to repair the concrete was also approved at the 2019 AGM.[48] The approval was reasonable in the circumstances.
[48] Exhibit A1 2019, AGM minutes Motion 11
The applicants complain the gardeners contracted to clean common property go beyond the scope of their contract and maintain private property. They requested “graphical evidence” the gardeners were only tending to common property because Ms Feng had observed the gardeners doing work elsewhere. She also requested a copy of the gardening contract to ensure she was not paying levies to maintain other people’s gardens.[49]
[49] Exhibit R5, page 10
The complaint regarding the gardeners rests on speculation as to what they were told to maintain and whether it was consistent with being common property. Ms Feng was informed by the strata manager that the same gardening company is privately engaged by other unit owners. The strata manager advised Ms Feng that the invoices from the gardeners is consistent with maintaining the common property. I have no evidence other than what Ms Feng has said about the gardeners blowing leaves etc around private gardens. I do not regard that as a basis for ordering the gardeners be replaced. Mr Feng is able to make a request pursuant to section 119 of the UTMA to inspect the gardening contract.
The applicants are not entitled to any relief in relation to the gardening issues.
Issue 7: insurance excess
The applicants seek the refund of $2,000 from the respondent for insurance excess they say was unfairly paid by them.
At the AGM held on 5 June 2012, a motion was carried as follows:
That any excess payable on an insurance claim is the responsibility of the owner of the unit to which the claim is related. If an insurance claim related to the common property then the excess is the responsibility of the Owners Corporation.
On 17 May 2012, the applicants were asked to pay the excess in relation to a claim. This pre-dated the motion passed in 2012. They were again asked to pay the excess in 2013.
The respondent submitted that this was consistent with the usual practice and upon the transition under the new UTMA in 2012 the requirement to pay the excess was dealt with by way of the motion above. The respondent submits that even if the applicants were improperly charged the excess, then the claim for reimbursement is barred under the Limitations Act 1985.
There is no clear evidence regarding the practice prior to the resolution passed in 2012. It is clear from that time the excess was to be passed on to owners. In the case of the payment made by the applicants in May 2012, the practice is unclear. However, the respondent is correct that this amount is not recoverable by reason of section 11 of the Limitation Act1985 and I therefore do not make any orders in the applicants’ favour.
Issue 8: approval of funds and budget procedure
The applicants seek various orders regarding how funds are approved for spending and the budget is prepared. This is based on their complaint about funds being spent on fence replacement, tree removal and plumbing and carpet cleaning. I have dealt with these expenses elsewhere in these reasons.
The applicants have a preference for how the approval and budget processes are to be carried out. They do not appear to appreciate the difficulties such tasks present but instead are prepared to criticise the work of others without a proper foundation for doing so. Having read the applicants’ complaint, it is clear they are motivated to simply interrogate the decisions of the respondent. Much of their basis for requesting the Tribunal direct changes to these processes is based on conspiracy and speculation. I am not persuaded on the material before me there is a basis for making any orders as sought by the applicants.
Issue 9: error by strata manager and executive committee details
The applicants claim the strata manager made an error in relation to recovering unpaid levies from unit 54 which incurred legal costs that were passed on to owners in the amount of $5,614. Much of the applicants’ claim is speculative as to what might have or could have happened in the course of proceedings in the tribunal to recover unpaid levies.
The applicants seek to recover financial damages from the strata manager. As the proceedings against the strata manager were discontinued the applicants are not entitled to any relief nor am I satisfied a basis for awarding such relief exists.
The issue regarding the provision of the executive committee details is dealt with below.
Issue 10: process of electing executive committee
The applicants have complained about the information provided to them by the strata manager regarding the election of and/or nomination for the executive committee. They claim they do not understand the process of election and query whether an owner must be present at a meeting in order to be elected.
Section 39 of the UTMA governs the composition of the executive committee. Relevantly, the owners corporation needs to decide the number of executive members for the owners corporation. By way of an ordinary resolution this may be 3-7 members or by special resolution, 8 or more executive members.[50]
[50] UTMA section 39(2)
An executive member must be qualified (meaning the person must be an owner), be elected if necessary at each AGM for a term until the next AGM or if the person ceases to be an eligible person.[51]
[51] UTMA section 39(4)
I have reviewed each of the documents provided in relation every AGM between 2012 and 2019 including the agenda, appointment of a proxy and absentee votes, information on executive committee roles and the minutes. Owners are able to cast an absentee vote for each motion at the meetings including the election of the executive committee. At each AGM it was resolved by ordinary resolution that the executive committee would comprise 3-7 members and the names of those elected by ordinary resolution were included in the minutes. Sometimes an owner was elected without being present at the meeting. Nonetheless their election, despite not being in attendance, was by way of an ordinary resolution which is all that is required under section 39(4) of the UTMA. An absentee vote or proxy are simply mechanisms for ensuring an owner may still cast a vote on a motion at a meeting. This was made available to all owners in advance of each AGM. There is no requirement to be present at a meeting or to have provided an absentee vote for election to the executive committee. If an owner is not present and they wish to nominate themselves for election, being absent from the meeting would make that nomination difficult.
The election of specific office-holders within the executive committee is a matter for the executive committee.[52]
[52] UTMA section 40
The applicants have sought an order compelling ‘them’ to honour section 117 of the UTMA and provide the names and addresses of the current executive committee members. I have taken ‘them’ to be a reference to the strata manager.
On 28 January 2018, Mr Feng purportedly sent an email to the strata manager requesting the addresses and names of the executive committee.[53] By reply email dated 29 January 2018, the strata manager stated:
Under the privacy Act we are unable to give out peoples contact information. Are you wanting me to pass on your email to the EC and get them to contact you?[54]
[53] Exhibit A1 email evidence 1 page 13
[54] Exhibit A1 email evidence 1 page 13
On 9 July 2019, Mr Feng purportedly emailed the strata manager again seeking the same information. The relevant portion of the email states:
I’m asking for those details now, not my sister. Please address me regarding this particular issue and leave her out of it. What reason do you have to believe that giving me this detail will compromise the executive committee members safety? S117 of UTMA states that you have 14 days from today to give the details I’ve requested and it does not mention anything about requiring the executive committee member’s permission nor does it mention that you can deny my request for those detail based on unfounded opinions that giving me data will compromise their safety.[55]
[55] Exhibit A1 email evidence 1 page 14
On 11 July 2019, the strata manager replied by email stating “…you will not be receiving the addresses of the committee members. This is not up for discussion…”[56]
[56] Exhibit A1 email evidence 1 page 14
Section 117 of the UTMA states:
On request by an eligible person for a unit or the common property, the owners corporation must, free of charge, give the person the full names and addresses of its current executive members within 14 days after the request is received.
Mr Feng is an eligible person as defined in the UTMA because he is an owner.[57]
[57] UTMA dictionary
There is no doubt section 117 requires the owners corporation to give an eligible person the requested information. The request must be directed at the owners corporation. On both occasions set out above, the request was made to the strata manager not the owners corporation directly. It could have been made to the owners corporation by leaving it in the mailbox for the owners corporation at the complex.
Section 52 of the UTMA states the manager has the functions stated in the manager’s contract and any other function delegated to it under section 58. I do not have evidence of the manager’s contract to be able to consider whether such a request under section 117 could be directed to the strata manager on behalf of the owners corporation or evidence of whether such a function was delegated to the manager. I therefore cannot conclude that the request was correctly directed to the strata manager in the circumstances.
As the request was not correctly made to the owners corporation as required by section 117 there is no basis to make orders directing the strata manager to provide the information. In any event, the strata manager is no longer a party to the proceedings and any order under section 129(1)(a) of the UTMA is not available.
Issue 11: executive committee abuse of power
The applicants make several allegations against the executive committee mainly about how Ms Feng perceives the committee’s treatment of her and its handling of her various complaints and interrogations. She does not like particular responses or expects a different answer and as a result insists that she is being mistreated or that the committee is mismanaging things. She has concocted a narrative in which she believes the executive committee has done things incorrectly. She disagrees with some of the decisions made, which she is entitled to do, but that does not make the actions of the executive committee illegal, incorrect or abusing its power. It is not harassment. It is based mainly on Ms Feng’s own beliefs and speculation. Part of the problem is Ms Feng has a particular perception about how things should be done or how things work which does not necessarily align with the orderly governance of an owners corporation.
The applicants seek orders which essentially direct the executive committee to know the UTMA, specifically cite the law, respond to questions and provide justification for the response and send emails to all owners to prove spending is for common property.
Having reviewed the allegations and the applicants’ submission, there is no basis for making such orders even if the tribunal had the power to do so. While section 129(1)(a) of the UTMA enables the tribunal to make an order requiring a party to do a stated thing, I am not persuaded it is a power that can be used to compel the executive committee to meet Ms Feng’s expectations or interact with her in a particular way. Even if the provision could be used in that way, I am not satisfied it is justified in the circumstances of this matter. The allegations that the executive committee has abused its power or otherwise contravened the UTMA is not made out.
Issue 12: accuracy of minutes and financial records
The applicants complain of various but generally unspecified inaccuracies in the minutes and financial records. The complaint is directed at the strata manager but does not seek any specific orders. As the proceedings against the strata manager were discontinued, I do not propose to deal with this issue further.
2020 issues
The applicants were granted leave to amend their applications to include issues arising during the course of 2020 (the 2020 additions).[58] The respondent accepted these issues had been joined to the proceedings and also had the opportunity to respond to them.
Request for interpretation of the law
[58] 2020 Addition to the ACAT Application
In the 2020 additions, the applicants sought interpretation from the tribunal on various provisions of the UTMA namely sections 24, 35, 77, 83 and the code of conduct as well as the Common Boundaries Act 1981. The tribunal’s role is not to provide a general advisory opinion on statutes. The tribunal’s jurisdiction is governed by statute, in this case the power conferred by the ACT Civil and Administrative Tribunal Act 2008 and the UTMA. I do not consider the applicants request for the tribunal to provide a general interpretation or opinion on certain laws in circumstances where no specific orders or relief is sought to be within power.
Unit 21 and plumbing expenditure
The applicants also repeat the claim regarding the expenses paid in relation to unit 21’s plumbing as they raised the issue again at the 2020 AGM. For reasons set out above I disagree with the applicants’ position on this issue and do not propose to deal with this issue further.
Request for information
The applicants also repeated their request regarding the provision of information, particularly invoices. They seek orders essentially directing invoices be uploaded to the ‘Owners Hub’ within 30 days and in the alternative, that invoices be available on request within 14 days. The applicants also seek penalties under section 121 of the UTMA. The ability to impose penalties under section 121 is not within the ambit of the tribunal’s power. It is an offence provision. Nonetheless, I expressed the view during the hearing that section 121 had not been contravened.[59]
[59] Transcript of proceedings 3 February 2021, pages 60-63
The applicants rely upon section 119 of the UTMA as the vehicle through which they should be provided with information. Section 119 does not operate in that way. As set out above, section 119 is a provision which enables an eligible person to make a request to the owners corporation to inspect records within 14 days of the request being received and subject to any fee being paid. Such a fee must be fixed by the owners corporation. Section 119 does not oblige the owners corporation to provide information upon request. It permits the inspection of information on the corporate register and other records held by the owners corporation by an eligible person. My view as to how the provision operates is reinforced by an eligible person being allowed to take copies of any documents inspected. There is no requirement to provide information within 14 days of a request but a requirement to allow inspection of records within 14 days of a request.
For these reasons I do not propose to make the orders sought in relation to the provision of information.
Unit 59’s fence
The applicants repeat their complaint regarding the payment made by the respondent in relation to unit 59’s fence. They question the accuracy of the payment made. They raised the issue again in 2020. The respondent relies upon the application of the Common Boundaries Act 1981 in support of its contribution to the fence. The applicants dispute the application of the Common Boundaries Act 1981.
The Common Boundaries Act 1981 governs the demarcation of the boundary between parcels of land. This applies to leased (and unleased) land that is adjacent to common property in a unit titled complex. A parcel of leased land may have a common boundary with more than one other parcel of leased land or common property or both. A unit complex is made up of individual separate leases for each unit and the common property. Each unit is leased land and common property is leased land. I accept that a boundary between a unit and common property is a common boundary to which the Common Boundaries Act 1981 would apply. The owners corporation has responsibility for common property and in circumstances where the boundary between a unit and common property or between common property and another parcel of land (leased or unleased) requires replacement or repair, the owners corporation must meet at least half the cost. This is always open to negotiation and the contribution by each party may vary.
I am therefore satisfied the Common Boundaries Act 1981 applies in the manner submitted by the respondent and that its contribution of 40% towards the cost of the fence shared with unit 59 was appropriate. Any issue with the accuracy of the amount charged and paid by the respondent is a matter the respondent can take up with the contractor.
The applicants are not entitled to any relief in relation to the fence issue.
Invalidation of expenses
The applicants seek orders to “invalidate expenses” they allege were illegally paid and seek reimbursement for what they allege should not have paid. Underpinning this issue is the applicants’ general disagreement with how the executive committee has carried out its functions. The applicants also claim the payments are inconsistent with sections 77 and 83 of the UTMA.
The executive committee’s functions are set out in section 35 of the UTMA. The exercise of those functions is not unfettered, but is nonetheless wide-ranging. The committee must exercise its functions in one of two ways. Either as directed by a resolution at general meeting or in the absence of a resolution, as the committee considers appropriate.[60] The latter necessarily invites some discretion as to what is considered appropriate and in doing so the committee is guided by the functions specified in section 35(2) of the UTMA, noting that its general mandate to exercise the functions of the corporation is not limited by section 35(2).
[60] UTMA section 35(3)
It is clear that the executive committee may make some decisions about expenditure in the absence of any resolution provided the committee considers it is appropriate and it is consistent with exercising its function.
I am not satisfied the payments of $1,223.20 for a fence repair and $1,780.60 to repair and replace a retaining wall were ‘illegal’. The fence repair expenditure is consistent with the executive committee exercises its functions under section 35, and authorised by section 35(3)(b) of the UTMA and the replacement of the retaining wall is consistent with the what the sinking fund can be used for.
The applicants are not entitled to any relief in relation to these expenses.
Changes to house rules
The applicants seek an order to change several of the owners corporation rules[61] on the basis that they opposed them at a meeting, would be unfairly targeted in relation to some rules and they were otherwise inconsistent with section 108(3) of the UTMA. I take this to seek an order pursuant to section 129(1)(j) of the UTMA requiring the respondent to repeal a rule and register a copy of the resolution repealing the rule.
[61] Rules 13, 15, speed limits, 16, and 23
The applicant did not give any oral evidence in relation to this aspect of the application nor was she cross-examined on the reasons set out in the submission. The Tribunal does not have a copy of the minutes from the meeting that passed the inclusion of these rules.
I have reviewed the applicants’ submissions and I am not persuaded inconsistencies with section 108(3) of the UTMA exist. The applicants’ general opposition to these rules or their wording is not a sufficient basis to repeal them. The applicants have not pointed to anything which makes the adoption of the rules irrational, oppressive, unconscionable or otherwise disproportionate. In the absence of any persuasive evidence or identifiable inconsistency I do not propose to make orders repealing the rules identified by the applicants. To make such an order is a serious step and one that the Tribunal declines to make in the circumstances.
Conclusion
For the reasons set out above the civil dispute application and the application under the UTMA are dismissed.
………………………………..
Senior Member K Katavic
| Date(s) of hearing: | 25 November 2020, 21 January 2021 and 3 February 2021 |
| First Applicant: | Karen Feng, authorised representative |
| Second Applicant: | In person |
| Respondent: | Mr Rowley, authorised representative |
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