Feng v Up 840 (Appeal)

[2023] ACAT 8

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FENG & ANOR v UP 840 (Appeal) [2023] ACAT 8

AA 8/2022 (UT 19/2020; XD 681/2020)

Catchwords:               APPEAL – Unit Titles – Civil Dispute – leave for further evidence – consideration for tribunal at appeal stage – alleged bias by the Original Tribunal – whether relief could be granted against the owners corporation in relation to issues regarding strata manager where action against strata manager settled and discontinued – whether the appellants were forced to pay unreasonable, unnecessary, or improperly approved plumbing, fencing and tree removal costs – whether the owners corporation properly undertook work on behalf of particular unit owners – whether the owners corporation through its executive committee bullied and harassed appellants in relation to their installation of security cameras – whether conduct alleged gave rise to cause of action under Civil Law (Wrongs) Act 2002 or Unit Titles Management Act 2011 – application of the Common Boundaries Act1981 to fence separating common property from individual unit – whether Original Tribunal erred is refusing request to provide general interpretation of law – power of tribunal to extend the Statute of Limitations – no error of fact, law or discretion established.

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008, ss 23, 79

Unit Titles Management Act 2011 ss 24, 25, 29, 30, 117, 119
Unit Titles Act 2001
Common Boundaries Act 1981
Limitation Act 1985 s 11
Civil Law (Wrongs) Act 2002

Subordinate

Legislation cited:        ACT Civil and Administrative Tribunal Procedure Rules 2020 r 91

Cases cited:Amer v Eriksson (Appeal) [2019] ACAT 108

Casino Canberra Limited 051 204 114 v Kidman [2022] ACAT 22
Hurst-Meyers v Aulich Civil Law Pty Ltd ACN 155 746 777 [2020] ACAT 56
Feng & Anor v The Owners - UP 840 [2022] ACAT 23
Zeng v Crane [2022] ACAT 70

Tribunal:Acting Presidential Member Prof P Spender

Senior Member E Ferguson

Date of Orders:  2 February 2023

Date of Reasons for Decision:      2 February 2023

AUSTRALIAN CAPITAL TERRITORY )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 8/2022

BETWEEN:

ADAM FENG
First Appellant

AND:

KAREN FENG

Second Appellant

AND:

THE OWNERS – UNITS PLAN 840
Respondent

TRIBUNAL:Acting Presidential Member Prof P Spender

Senior Member E Ferguson

DATE:2 February 2023

ORDER

The Tribunal orders that:

1. The appellants’ application for leave to receive further evidence in the appeal is refused.

2. Leave is granted for the documents marked MFI 9 to be admitted into evidence in the appeal as Exhibit 1.

3. The appeal is dismissed.

   ………………………………..

Acting Presidential Member Prof P Spender
For and on behalf of the Tribunal

REASONS FOR DECISION

1. The reasons below explain why the Tribunal has made the orders set out above. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refer to the ACT Civil and Administrative Tribunal generally, whereas ‘Appeal Tribunal’ or ‘Tribunal’ refers to the presently constituted tribunal. The appellants (who were the applicants in the first instance proceedings) are referred collectively as the ‘appellants’, and the ‘first appellant’ or ‘Mr Feng’ or ‘Adam Feng’, and ‘second appellant’ or ‘Ms Feng’ or ‘Karen Feng’ respectively. The respondent shall be referred to as ‘UP 840’ or the ‘Owners Corporation’. When referring to the first instance proceedings, the Tribunal often uses the expression ‘Original Proceedings’. When discussing the first instance decision the Tribunal uses the expression ‘Original Decision’, ‘Original Tribunal’ and ‘Senior Member’. In this decision, the present Tribunal uses the term ‘UTM Act’ when referring the Unit Titles Management Act2011. The Original Tribunal referred to this legislation as ‘UTMA’.

Summary of decision

1. The appeal is dismissed. The Tribunal has found that the appellants have not established an error of fact, law, or discretion.

Background

1. This decision concerns an appeal that was filed in the tribunal on 11 April 2022. The appellants, Adam Feng and Karen Feng, appealed against the decision made by the Original Tribunal on 21 March 2022 (the Original Decision),[1] which dismissed the applications in unit title proceedings[2] and civil proceedings.[3]

   [1] Feng & Anor v The Owners – UP 840 [2022] ACAT 23

   [2] UT 19/2020

   [3] XD 681/2020

2. The appellants raised several grounds of appeal. The relevant documentation filed in the appeal was as follows:

   (a)Application for appeal dated 11 April 2022;

   (b)Submissions by the appellants dated 6 June 2022. The submissions filed by the appellants on that day consisted of three separate submissions, as described hereunder:

   (i)      “Regarding evidence and sections of tribunal decisions that I disagree with” (Appellants’ submissions filed 6 June 2022 (Submission 1));

   (ii)     “What we want from the Appeals Tribunal” (Appellants’ submissions filed 6 June 2022 (Submission 2));

   (iii)   “2022_Appealing Decision” (Appellants’ submissions filed 6 June 2022 (Submission 3));

   (c)respondent’s response to the application for appeal dated 30 June 2022.[4]

   [4] When referencing the parties’ submissions, the Tribunal has numbered the paragraphs on each page to pinpoint various propositions. For example, a proposition in a submission on page 11 paragraph 5 appears as page 11.5.

3. A hearing was held in the appellate division of the tribunal on 4 and 5 October 2022.

4. Appeals in the tribunal generally proceed by way of review. While no formal application was filed, the appellants sought leave for the Appeal Tribunal to receive further evidence in addition to the material filed at first instance. Pursuant to orders made on 6 May 2022, the appellants filed copies of proposed further evidence for the hearing of the appeal on 6 June 2022. The Appeal Tribunal will treat this as an application for leave to receive further evidence in relation to the documents filed by the appellants on 6 June 2022. This is discussed further below.

What must be established on appeal?

1. The case law that applies to appeals in the tribunal is well-settled. Pursuant to section 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), the appellant must establish an error of fact, law or discretion. In Zeng v Crane[5] the tribunal distilled the principles that apply in the appellate jurisdiction. Accordingly, an appellant is required to show that the Original Tribunal made an error of fact, law or discretion that was material to the result.[6] An appeal tribunal must determine whether the decision appealed against is wrong because an original tribunal fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.[7] The error must have affected the result.[8] Importantly, the appeal is not an opportunity to have a second bite where a party is unhappy about the outcome of first instance proceedings.[9]

   Leave to adduce further evidence in the appeal

   [5] [2022] ACAT 70

   [6] Zeng v Crane [2022] ACAT 70 at [27] citing Casino Canberra Limited 051 204 114 v Kidman [2022] ACAT 22 at [46]

   [7] Zeng v Crane [2022] ACAT 70 at [28] citing, among others, The Owners – Units Plan no 1475 v Davidson [2022] ACAT 10 and Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4

   [8] Zeng v Crane [2022] ACAT 70 at [28] citing Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116

   [9] Hurst-Meyers v Aulich Civil Law Pty Ltd ACN 155 746 777 [2020] ACAT 56 at [10]

2. The appellants sought leave to adduce further evidence in the appeal. The question whether further evidence may be led on appeal is dependent upon the application of rule 91 of the ACT Civil and Administrative Tribunal Procedure Rules 2020 (the ACAT Rules). The relevant subparagraphs of that rule provide as follows:

   For an appeal within the tribunal, the appeal tribunal—

   (a)     has all the powers and duties of the tribunal that made the order appealed from; and …

   (c)     may, if leave is granted, receive further evidence about questions of fact, either orally or in a hearing, by written statement or in another way …

3. When a party is seeking to adduce further evidence in the appeal, two tests have been developed in the case law about when leave may be granted. The tests provide as follows.

4. First, an explanation must be given as to why the evidence was not adduced at first instance.[10] The test for the first limb is whether there is an acceptable reason for the evidence not being put before the original tribunal.[11]

   [10]Hurst-Meyers v Aulich Civil Law Pty Ltd ACN 155 746 777 [2020] ACAT 56 at [31]

   [11] Hurst-Meyers v Aulich Civil Law Pty Ltd ACN 155 746 777 [2020] ACAT 56 at [31] citing Amer v Eriksson [2019] ACAT 108

5. Second, if the evidence had been available to the original tribunal, would it be likely to have produced a different result?[12] While the second limb asks if the evidence is likely to have produced a different outcome,[13] this limb also contemplates the probative value of the new evidence.[14] If the proposed further evidence has little probative value,[15] the tribunal would give it little weight in the normal course of events and this forms part of the reason why it would not be permitted to be adduced on appeal.

   [12] Hurst-Meyers v Aulich Civil Law Pty Ltd ACN 155 746 777 [2020] ACAT 56 at [28]; Amer v Eriksson [2019] ACAT 108 at [26]

   [13] Amer v Eriksson [2019] ACAT 108 at [26]

   [14] Amer v Eriksson [2019] ACAT 108 at [26]

   [15] Amer v Eriksson [2019] ACAT 108 at [26]

6. All further documents that the appellants sought to adduce on the appeal were marked for identification (MFI). The Further Evidence Table in Appendix 2 to this decision sets out the ground of appeal, the MFI number and a description of the relevant further evidence for which leave was sought. None of the documents that the appellants sought to adduce in evidence in the appeal satisfied the two tests set out above. First, all of the documents other than MFI 15 were available before the conclusion of the first instance hearing on 3 February 2021. Second, none of the documents, including MFI 15, would likely have led to a different result in the first instance hearing and many had little probative value.

7. Leave has been granted for the documents which became Exhibit 1 to be admitted into evidence on the appeal because the documents provided evidence for a finding of the Original Tribunal, where the evidence for that finding was said to be lacking in the first instance proceedings. Although the documents would not have led to a different result, they did confirm the correctness of Original Tribunal’s finding. This is discussed in more detail below.

8. Therefore, the application for leave for the Appeal Tribunal receive further evidence pursuant to rule 91 of the ACAT Rules has been refused, other than the documents constituting Exhibit 1. The relevant documents are nominated below as the Tribunal discusses the various grounds of appeal.

The appellants’ contentions

1. The Original Decision comprised 105 paragraphs. The appellants challenged almost every paragraph in the Original Decision. Three of the alleged errors were not pressed during the hearing of the appeal and these are set out below under the heading ‘Alleged errors not pressed’.

2. The Original Decision noted that the appellants had filed a “comprehensive volume of material in support of their claims”[16] in the Original Proceedings and that the Senior Member had “carefully distilled the … issues with as much precision as possible from [the appellants’] statements and submission.”[17] The material filed by appellants in the Original Proceedings was not only voluminous, it was idiosyncratically organised, which presented challenges for the Original Tribunal and the Appeal Tribunal.

   [16] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [3]

   [17] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [10]

3. For ease of reference, the Appeal Tribunal has set out a table in Appendix 1 to these reasons which cross-references the paragraphs of the Original Decision, the reference to these paragraphs in the appellants’ submissions, and the appeal grounds which are set out in this decision. The Appeal Tribunal has linked the appeal grounds to the issues set out by the Original Tribunal in the Original Decision.

General Alleged Error - Bias/Procedural Unfairness

1. The appellants alleged several statements and findings made by the Original Tribunal in its decision demonstrated bias against them.[18] They submitted that several observations, including those that are set out in italics in the following subparagraphs,[19] were unfairly critical of Ms Feng’s motivation or conduct:

   (a)     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.[20] Such conduct is discourteous and unhelpful. It was also unwarranted.[21]

   (b)     The statement that the strata manager’s requests that Ms Feng remove the camera were not unreasonable.[22] Ms Feng told the Appeal Tribunal: “... the Senior Member’s comment is a bit unfair, potentially biased, because I don't think the committee even tried to resolve any of these issues, but I did. I tried to negotiate with them.”[23]

   (c)     Had she (Ms Feng) 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 cameras. She did not do so, but nonetheless questions why the executive committee did not take such a step.[24] At the appeal hearing, Ms Feng conceded that the statement was factually correct but objected to it on the basis that, that it was “biased or unfair”.[25]

Specific alleged errors of fact or law

[18] Appellants’ submissions filed 6 June 2022 (Submission 3) at heading: S7. Some of the reasons why we feel the decisions are bias/unfair, pages 29-34

[19] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [10]

[20] The Senior Member cited the transcript of proceedings, 3 February 2021, pages 103-104

[21] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [10]

[22] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [41]

[23] Transcript of appeal proceedings, 4 October 2022, page 23

[24] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [41]

[25] Transcript of appeal proceedings, 4 October 2022, pages 25-26

1. The appellants also attributed several of the specific errors alleged, which are set out as separate grounds below, to the Original Tribunal having favoured the respondent. They variously allege that the Original Tribunal either:

   (a)failed to consider or misrepresented their arguments;

   (b)failed to consider relevant evidence; considered irrelevant evidence; or

   (c)failed to correctly apply relevant legislation or legal principles.[26]

   [26] Appellants’ submissions filed 6 June 2022 (Submission 3) at heading S7. Some of the reasons why we feel the decisions are bias/unfair, pages 29-34

2. The appellants’ submissions do not always clearly identify whether an alleged error is one of fact, law, or discretion. In the appeal grounds set out below, the Appeal Tribunal has adopted and referenced the appellants’ classification of the error, where one is clearly expressed, to reflect their arguments, although the Tribunal may not agree with their classification.

3. The Appeal Tribunal notes that section 9 of Submission 3, titled “Critical Facts Senior Member ignored or understood incorrectly” contains a mixture of alleged factual and legal errors.[27] Accordingly, a reference by the appellants to a “critical fact” in that section when describing an alleged error could not reliably indicate whether they consider the error is one of fact.

   [27] Appellants’ submissions filed 6 June 2022 (Submission 3) at heading CF_1 Critical Facts Senior Member ignored or understood incorrectly pages 51 ff which includes both factual and legal argument.

4. Where the appellants do not expressly identify the type of an alleged error, the Tribunal has classified it based on the nature of the error described as either one of fact, law, or a combination of both. Where the Tribunal has inferred the type of error in this way the classification appears in parentheses. The specific errors that were alleged by the appellants under each of grounds of appeal are referred as an ‘Alleged Error’ (e.g. ‘Alleged Error 1’) under the ‘Consideration’ section of this decision.

   Appeal Ground 1: Ms Feng’s authority to communicate with the Owners Corporation/strata manager (Issue 1 First Instance [12]-[16])

5. The appellants allege that the following findings of the Original Decision[28] were erroneous:

   Error 1: The Original Tribunal erred in finding that it was correct for the strata manager to seek proper authorisation to enable Ms Feng to deal with matters regarding the unit, including communication with the strata manager and the Owners Corporation (error of fact/law).[29]

   Error 2: The Original Tribunal erred in finding that there was no evidence of a conspiracy with the Owners Corporation or that the Owners Corporation was involved in the strata manager seeking proper authorisation for Ms Feng to have dealings with them regarding the unit (error of fact/law).[30]

   Appeal Ground 2: Changes to correspondence (Issue 2 First Instance [17]-[20])

   [28] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [15]

   [29] Appellants’ submissions filed 6 June 2022 (Submission 1) page 6.3-6.4 and appellants’ submissions filed 6 June 2022 (Submission 3) at heading Critical Facts Senior Member ignored or understood incorrectly CF_13 and CF_14, pages 75-81

   [30] Appellants’ submissions filed 6 June 2022 (Submission 1) page 6.3-6.4 and appellants’ submissions filed 6 June 2022 (Submission 3) at heading CF_1 Critical Facts Senior Member ignored or understood incorrectly CF_13 and CF_14, pages 75-81

6. In broad terms the alleged error in relation to this issue is that the Original Tribunal failed to find that the strata manager failed to send relevant documents to Mr Feng at the address/es expressly nominated by him, and instead sent such documents to a personal email address of Mr Feng (his Hotmail address). The appellants allege the following specific errors:

   Error 1: The Original Tribunal erred in finding, or perhaps implying, that Mr Feng had instructed the strata manager to send relevant documentation to his email address.[31] The appellants submitted that the respondent has no evidence that the first appellant had ever stated he wanted materials of any form to be sent to his Hotmail address.[32] The Tribunal notes that CF 13 (which the appellants reference in relation to this error) contains 21 major points, only the first two of which refer specifically to an error of fact at paragraph 17 of the Original Decision (error of fact).

   Error 2: The Original Tribunal erred in not finding that in April 2012 Mr Feng through his solicitor directed the strata manager to send all future notices to his nominated postal address[33] (error of fact).

   Error 3: The Original Tribunal erred in not finding that strata manager continued to send notices to Mr Feng after he authorised them on 30 September 2017 to send all “future correspondence (including meeting minutes, annual meeting notifications, votes, etc)” to Ms Feng (error of fact).[34]

   Appeal Ground 3: Fence spending in 2013 (Issue 3 First Instance [21]-[33])

   [31] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [17]-[19]

   [32] Appellants’ submissions filed 6 June 2022 (Submission 1) page 6.5 and appellants’ submissions filed 6 June 2022 (Submission 3) at heading CF_1 Critical Facts Senior Member ignored or understood incorrectly CF_13, pages 75-79

   [33] Appellants’ submissions filed 6 June 2022 (Submission 1) page 6 and appellants’ submissions filed 6 June 2022 (Submission 3) at heading Critical Facts Senior Member ignored or understood incorrectly’ CF_14, page 79

   [34] This issue may not have been raised by the appellants in the Original Proceedings and appears to have been raised for the first time in the appeal as part of the arguments in support of the reception of further evidence. However, for the avoidance of doubt, the Appeal Tribunal has discussed this Alleged Error below.

1. The appellants submitted the following errors had been made in the reasoning of the Original Tribunal.[35] The submissions made by the appellants (referring to the paragraphs of the Original Decision) are as follows:

   21 – 29 (regarding fence spending)

   Use of sinking fund in this manner goes against the core definitions as well as other parts of the UTMA 2011.[36]

   [35] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [29]-[32]

   [36] Appellants’ submissions filed 6 June 2022, (Submission 1), page 6.6; appellants’ submissions filed 6 June 2022 (Submission 3) at heading S8.4 Definition of Sinking Fund and General (admin) Fund, pages 46-49

2. The appellants alleged the following errors:

   Error 1: The Original Tribunal erred in the finding[37] that appellants had failed to establish any contravention of the UTM Act in relation to authorisation of fence spending.[38] In particular, the appellants alleged that the finding by the Original Tribunal that the use of the sinking fund for this purpose was consistent with the provisions of the UTM Act was an error of law.[39]

   Error 2: The Original Tribunal erred in the finding that the expenditure was in accordance with the sinking fund plan.[40] This finding was alleged by the appellants to be an error of fact.[41]

   Appeal Ground 4: Bullying and harassment (Issue 4 First Instance [34]-[42]) (the camera issue)

   [37] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [32]

   [38] Appellants’ submissions filed 6 June 2022, (Submission 1), page 6.4; appellants’ submissions filed 6 June 2022 (Submission 3) at heading S8.4 Definition of Sinking Fund and General (admin) Fund, pages 46‑49

   [39] Appellants’ submissions filed 6 June 2022, (Submission 1), page 6.6, see transcript of proceedings, 25 November 2020, page 53

   [40] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [29] and [32], see transcript of proceedings 3 February 2021, page 48 and Exhibit A1, bundle titled Details and justification report, page 57

   [41] Appellants’ submissions filed 6 June 2022 (Submission 3) at heading S8.4 Definition of Sinking Fund and General (admin) Fund page 47.2

3. The appellants submitted the following errors had been made by the Original Tribunal:

   Error 1: The Original Tribunal erred in not considering whether the Executive Committee and the strata manager failed to follow the law and act within their functions under the UTM Act,[42] and whether they had complied with their obligations under their respective codes of conduct to act honestly and fairly and not engage in unconscionable conduct[43] (error of law)[44].

   [42] Appellants’ submissions filed 6 June 2022 (Submission 3) at heading S1 Why we feel the Strata Manager and Executive Committee have been contravening the relevant law, pages 3-6; at heading S2 Strata Manager /Executive Committee negligent in their duties, pages 6-11 and at heading S3 Claim under the “Civil Wrong Doing Act 2002”, pages 11-14

   [43] UTM Act Schedule 1 Part 1.1 Executive committees - code of conduct; and Part 1.2 Managers - code of conduct

   [44] See, for example, appellants’ submissions filed 6 June 2022 (Submission 3) at heading CF_9 Committee has been negligent and unfair in forcing us to remove the cameras, pages 64-69

   Error 2: The Original Tribunal erred in not finding that the Owners Corporation, through its executive, had variously been negligent, unreasonable, contravened the relevant code of conduct, or failed to fulfil its functions on the following grounds:

   (a)The Executive Committee had failed to issue an infringement notice or otherwise specify the rule Ms Feng had broken (error of fact);[45]

   [45] Appellants’ submissions filed 6 June 2022, (Submission 1), page 9.2

   (b)The Executive Committee failed to inform itself for a period of five months as to whether Ms Feng was contravening any rule (error of fact);[46]

   [46] Appellants’ submissions filed 6 June 2022, (Submission 1), page 8.6

   (c)The Executive Committee had failed to inform Ms Feng that she was not contravening any rule (error of fact/law).[47]

   [47] Appellants’ submissions filed 6 June 2022, (Submission 1), page 9.2

   Error 3: The Original Tribunal erred in finding that the Executive Committee had acted reasonably and in particular:

   (a)The finding[48] that, “The Executive Committee gave the [camera] issue considerable thought and sought to find a middle ground” (error of fact). [49]

   [48] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [41]

   [49] Appellants’ submissions filed 6 June 2022, (Submission 1), pages 8-9; Transcript of appeal proceedings 5 October 2022, page 137

   (b)The finding[50] that, “… It was not unreasonable (for the Executive Committee) 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…” (error of fact). The appellants submitted that the Original Tribunal, in reaching this conclusion ignored the following critical facts:[51]

   (i)      Ms Feng had already stated she wanted matters to go to ACAT;[52]

   (ii)     The Executive Committee failed to inform itself for a period of five months as to whether Ms Feng was contravening any rule;[53]

   (iii)   The committee’s failed to inform Ms Feng that she was not contravening any rules.[54]

   Error 4: The Original Tribunal erred in finding[55] that the reasons given to Ms Feng by the respondent for the removal of the camera were sufficient (error of fact/law).[56]

   Error 5: The Original Tribunal erred in the finding[57] that the strata manager “requested” Ms Feng to remove the camera. The appellants submit they were ordered to remove the camera (error of fact).[58]

   Error 6: The Original Tribunal was wrong to dismiss Ms Feng’s assertion[59] that she was lied to by the strata manager. The appellants submitted that the strata manager had lied about the application of the Privacy Act 1988[60] (error of fact).

   Appeal Ground 5: Spending on plumbing for Unit 21 (Issue 5 First Instance [43]-[47])

   [50] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [41]

   [51] Appellants’ submissions filed 6 June 2022, (Submission 1), pages 8-9

   [52] Appellants’ submissions filed 6 June 2022, (Submission 1), page 8.5

   [53] Appellants’ submissions filed 6 June 2022, (Submission 1), page 8.6

   [54] Appellants’ submissions filed 6 June 2022, (Submission 1), page 9.3

   [55] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [41]

   [56] Appellants’ submissions filed 6 June 2022, (Submission 1), page 8.3

   [57] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [41]

   [58] Appellants’ submissions filed 6 June 2022, (Submission 1), page 7.4

   [59] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [42]

   [60] Appellants’ submissions filed 6 June 2022, (Submission 1), page 10.3

4. The appellants challenged the Original Tribunal’s findings regarding the cause and the location of the plumbing issue.[61] In particular, the appellants contested the finding that the damage was caused by tree roots and that the damage was located in the common pipe rather than on private property.[62] They argued that this was an error of fact.[63]

   Appeal Ground 6: Responsibility for Trees (Part of Issue 6 First Instance [50]‑[54])

   [61] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [43]-[47] – see appellants’ submissions filed 6 June 2022 (Submission 3) at heading CF-5 Unit 21’s plumbing cost, pages 56-58

   [62] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [45]

   [63] Appellants’ submissions filed 6 June 2022 (Submission 1), page 10.5

5. The appellants allege the Original Tribunal made the following errors[64] regarding expenditure on tree maintenance and removal:[65]

   Error 1: The finding that members of the Owners Corporation were confused at several of its Annual General Meetings (AGMs) as to the location of the trees and whether they were on common property.[66] The appellants submitted that the location of the trees on private property was obvious from visual observation and by reference to the ACTmapi satellite. The appellants alleged that this was an error of fact.[67]

   Error 2: The failure to find the Owners Corporation responsible for ascertaining the location of the boundary of common and private property. The appellants alleged that this was an error of law.[68]

   Error 3: The failure to find that the Owners Corporation followed the wrong procedure for approval of expenditure, as the trees were on private property, and should have relied on section 29 and 30 of the UTM Act rather than section 24 (error of law).[69]

   Appeal Ground 7: Insurance Excess - Statute of Limitations (Issue 7 First Instance [59]-[63])

   [64] Appellants’ submissions filed 6 June 2022 (Submission 1), page 11.1

   [65] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [50]

   [66] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [50], [51]

   [67] Appellants’ submissions filed 6 June 2022 (Submission 1), page 11.2

   [68] Appellants’ submissions filed 6 June 2022 (Submission 1), page 11.2

   [69] Appellants’ submissions filed 6 June 2022 (Submission 3) at heading CF_10 Original intention to use funds is probably not section 29 & 30 of UTMA, page 71

6. The appellants allege that the Original Tribunal erred by not extending Statute of Limitations[70] and not considering whether the Owners Corporation had been negligent in its record keeping (error of law).[71]

   Appeal Ground 8: Approval of funds and budget procedure (Issue 8 First Instance [64]-[65])

   [70] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [59]-[63]

   [71] Appellants’ submissions filed 6 June 2022 (Submission 1), page 11.3

7. The appellants referred to an error in the Original Decision[72] where the Original Tribunal found no basis for making the orders sought by the appellants with regard to how the Owners Corporation should carry out its expenditure and budgeting processes (error of law).[73] At the appeal hearing Ms Feng elaborated on this submission by saying:

   The reason why I’m questioning the budgeting and spending procedure is because whatever that happened isn’t exactly what the strata manager was telling me. So that’s just me making a comment against whatever comment that the Senior Member said.[74]

   Appeal Ground 9: Alleged error in recovering legal costs for unit 54’s unpaid levy (Issue 9 First Instance [66]-[68])

   [72] Appellants’ submissions filed 6 June 2022 (Submission 1), page11.4

   [73] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [65]

   [74] Transcript of appeal proceedings 4 October 2022, page 49

8. The appellants contended[75] that the Original Tribunal had failed to identify and consider relevant authorities referred to by the appellants at first instance in support of their contention that the strata manager had made an error in incurring legal costs to recover unpaid levies from the owner of unit 54 which were passed on to the owners (error of law).[76]

   Appeal Ground 10: Request for Executive Committee details (Issue 9 First Instance [68])

   [75] Appellants’ submissions filed 6 June 2022 (Submission 1), page 11.5

   [76] Appellants’ submissions filed 6 June 2022 (Submission 3) at heading CF_2 Errors in financial statements pages 52-55, Transcript of appeal proceedings 4 October 2022, pages 49 and 53

9. Some of the appellant’s submissions in the appeal supposedly relate to [66]-[68] of the Original Decision “regarding unit 54’s unpaid fees’[77] but the submissions appear to be about alleged “Errors in financial statements” more generally. This issue is dealt with in the Original Decision at [86] and Appeal Ground 12 in this decision below.

   Appeal Ground 11: Request for Executive Committee details pursuant to section 117 (Issue 10 First Instance [74]-[82])

   [77] Appellants’ submissions filed 6 June 2022 (Submission 1), pages 11 -12; and appellants’ submissions filed 6 June 2022 (Submission 3) at heading CF_2 Errors in financial statements, pages 52-55

10. The appellants argued that the following errors had occurred at first instance regarding this issue.[78]

    Error 1: The finding that the request made to the strata manager under section 117 of the UTM Act was not made to the Owners Corporation for the purposes of that section[79] (error of fact/law).

    Error 2: The finding that the section 117 request could have been made to the Owners Corporation by leaving it in its mailbox at the complex[80] (error of fact/law).

    [78] Appellants’ submissions filed 6 June 2022 (Submission 1), page 12.4

    [79] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [80]-[82]

    [80] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [80]

11. The appellants argued that the Owners Corporation did not have a mailbox before 2015 and they were not aware of its existence until 2021 (error of fact).[81] They also argued that a request made to the strata manager was equivalent to one made directly to the Owners Corporation for the purposes of section 117 (error of law).[82]

    Appeal Ground 12: Accuracy of minutes and financial records (Issue 12 First Instance [86])

    [81] Appellants’ submissions filed 6 June 2022 (Submission 3) at heading CF_1 Emails to the Strata Manager can be considered as to the Owners Corporation, pages 51-52

    [82] Appellants’ submissions filed 6 June 2022 (Submission 3) at heading CF_1 Emails to the Strata Manager can be considered as to the Owners Corporation, pages 51-52

12. During the appeal hearing the appellants stated that the accounts in general have been incorrect for a number of years.[83] However, the appellants did not allege specific errors in the reasoning of the Original Tribunal on this issue. The Original Tribunal made the following comments about this issue in the Original Decision:

    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.[84]

    Appeal Ground 12A: Request for interpretation of the law (First Instance [88])

    [83] Transcript of appeal proceedings 4 October 2022, page 50, referring to page 11 of Appellants’ submissions filed 6 June 2022 (Submission 2). Actual reference is page 12

    [84] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [86]

13. The appellants submitted that the Original Tribunal erred in declining their request for legal interpretation.[85] The Original Tribunal stated that the applicants had sought interpretation from the tribunal on certain legislation. The Senior Member concluded:

    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.[86]

    [85] Appellants’ submissions filed 6 June 2022 (Submission 1), page 12.5, Appellants’ submissions filed 6 June 2022 (Submission 3), pages 3-29.

    [86] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [88]

14. Ms Feng argued that the Original Tribunal did not understand why they had brought the application. As to the characterisation of the alleged error, during the appeal hearing Ms Feng explained that:

    MS FENG: I feel that it is an error of fact, and it might have affected the Senior Member that is making this decision on understanding why we're taking it to ACAT. She doesn't seem to understand that we wanted to protect our rights.

    SENIOR MEMBER: So if she had understood, are you saying that would have, or could have affected the outcome?

    MS FENG: I think that if she understood it, she might have considered from our point of view, where we feel that we've been lied to, we've been taken advantage of, and we suffer as a result of that, and ACAT is the last resort. We didn't came to ACAT just for - to know, to understand the law. It's because we have to go through all this particular process to figure out what is it that the owner's corporation and Independent Strata Management and the committee is supposed to do, versus what they have done.[87]

    Appeal Ground 12B: Unit 19’s plumbing expenses (First Instance [89])

    [87] Transcript of appeal proceedings 4 October 2022, pages 55-56

15. The appellant alleged an omission in the Original Decision of any reference to unit 19,[88] arguing that the Original Tribunal only considered this issue in relation to unit 21 (error of fact).[89]

    Appeal Ground 12C: Request for Information under section 119 (First Instance [90] – [92])

    [88] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [89]

    [89] Appellants’ submissions filed 6 June 2022 (Submission 3), at heading CF_5, Unit 21’s plumbing costs, pages 56-58, Transcript of appeal proceedings 4 October 2022, page 57

16. Although Ms Feng told the Appeal Tribunal that she was not challenging the Original Tribunal’s interpretation of section 119 of the UTM Act,[90] the appellants argued that the Original Tribunal made an error of fact in its discussion of this provision by not taking into account the difficulties faced by the appellants in obtaining the information sought.[91]

    Appeal Ground 12D: Unit 59’s fence (First Instance [93] – [96], [100])

    [90] See Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [90]-[92]

    [91] Transcript of appeal proceedings 4 October 2022, pages 57-58

17. The appellants alleged the following errors in the first instance decision.[92]

    Error 1: An error in the Original Tribunal’s interpretation of definitions of ‘unit’, ‘parcel’ and ‘boundary’ in Common Boundaries Act1981 (Common Boundaries Act) (error of law).[93]

    Error 2: The Original Tribunal made an error in the finding that the use of the sinking fund was permitted for the repairs to unit 59’s fence. The appellants referred to a “potential error” of law at [97]-[101] of the Original Decision[94] but do not identify what it is. The Original Tribunal made the following comments at [100]:

    I am not satisfied the payments of $1,223.20 for a fence repair and … replac[ing] a retaining wall were ‘illegal’. The fence repair expenditure is consistent with the executive committee exercises its functions (sic) 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 (sic) the sinking fund can be used for.[95]

    Alleged errors not pressed

    [92] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [93]-[96]

    [93] Appellants’ submissions filed 6 June 2022 (Submission 1), page 13.2; appellants’ submissions filed 6 June 2022 (Submission 3), under headings S8.3 Definition of unit, parcel and boundary and S8.4 Definition of Sinking Fund and General (admin) Fund pages 42-49.

    [94] Appellants’ submissions filed 6 June 2022 (Submission 1), page 13.3

    [95] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [100]

18. The following alleged errors referred to in the appellants’ written materials were not pressed at the hearing:

    (a)Error of law at [48]-[49] and [55]-[58] related to gardening.[96]

    (b)Error at [69]-[73] related to process for electing the executive committee.[97]

    (c)Error at [102]-[104] related to changes to rules.[98]

The respondent’s contentions

[96] Appellants’ submissions filed 6 June 2022 (Submission 1), page 10.6, Transcript of appeal proceedings, 4 October 2022, pages 105-106

[97] Appellants’ submissions filed 6 June 2022 (Submission 1), page 12.2-12.3; Transcript of appeal proceedings, 4 October 2022, pages 54-55

[98] Appellants’ submissions filed 6 June 2022 (Submission 1) page 13.4-13.5; Transcript of appeal proceedings, 4 October 2022, pages 60-61

1. The respondent submitted that the appellants’ appeal sought to re-argue the case they had unsuccessfully put to the Original Tribunal in the hope that the Appeal Tribunal would reach a different conclusion. It stated that:

   We understand that the task of the appeals tribunal is to assess whether the tribunal, considering only the evidence it had before it, reached decisions that were lawful and reasonable in the circumstances. Only if it decides that the decision is unlawful or unreasonable should it overturn the original decisions.[99]

   [99] Respondent’s Response to the Appeal filed 30 June 2022, page 1

2. The respondent’s position, as set out in its response (the response) was essentially that the decision of the Original Tribunal should be upheld in its entirety as it was correctly made on the basis of the relevant evidence and argument before it. It opposed the admission of new evidence.

1. The respondent made the following general submission regarding the relevance of the strata manager to these proceedings:

   The respondent in this appeal are solely the owners of Unit Plan 840. In the original application the owner’s (sic) strata management company were also respondents but the applicants settled with them before the hearing began, and so arguments against them were not considered by the tribunal. Nevertheless, the applicants continued to attempt to join them in arguments with the respondents. It is critical that the tribunal consider only the actions of the respondents when making decisions.[100]

   [100] Respondent’s Response to the Appeal filed 30 June 2022, page 1

2. The respondent illustrated its submission by reference to what it called the “camera incident”[101] (Appeal Ground 4 in this decision) however the submission was relevant to all of the following issues which involved the alleged conduct of the strata manager to varying degrees:

   Appeal Ground 1: Ms Feng’s authority to communicate with the Owners Corporation/strata manager[102]

   Appeal Ground 2: Changes to correspondence[103]

   Appeal Ground 4: Bullying and harassment (the camera issue), in particular Errors 1, 4, 5 and 6

   Appeal Ground 8: Approval of funds and budget procedure

   Appeal Ground 9: Alleged error in recovering legal costs for unit 54’s unpaid levy[104]

   Appeal Ground 12: Accuracy of minutes and financial records[105]

   [101] Respondent’s Response to the Appeal filed 30 June 2022, page 1

   [102] Respondent’s Response to the Appeal filed 30 June 2022, page 3.1

   [103] Respondent’s Response to the Appeal filed 30 June 2022, page 3.2

   [104] Respondent’s Response to the Appeal filed 30 June 2022, page 6.3

   [105] Respondent’s Response to the Appeal filed 30 June 2022, page 7.2

3. It is not necessary for the Appeal Tribunal to recount in detail the respondent’s rejoinder to each of the of the appellants’ arguments. It is sufficient to note that the respondent supports the decision of the Original Tribunal, and the Appeal Tribunal will focus on those of its submissions which provide clarification in relation to errors allegedly made by the Original Tribunal.

   Appeal Ground 1: Ms Feng’s authority to communicate with the Owners Corporation/strata manager (Issue 1 First Instance [12]-[16])

4. The respondent submitted in the response that Ms Feng was aware of the possibility that her brother’s phoned authority to act for him was insufficient and asked the strata manager whether she needed written authority.[106] The respondent supported its contention by reference to an email from Ms Feng to Stephen French, Strata Manager Independent Body Corporate sent 25 March 2013 at 6:32pm. The email was included in email correspondence adduced by the appellants in the Original Proceedings.[107]

   Appeal Ground 2: Changes to correspondence (Issue 2 First Instance [17]-[20])

   [106] Respondent’s Response to the Appeal filed 30 June 2022, page 3.1

   [107] Exhibit A1, bundle titled Email Evidence 2, pages 4, 5

5. As stated above, the appellants submitted that the Original Tribunal ignored or misunderstood certain critical facts described under the following headings:[108]

   CF 13:     The owners corporation NEVER had evidence to prove that the Owner elected for Hotmail Email address to be used; and

   CF 14:     Coincidence of times when correspondence changed (request denied) when there is a dispute.

   [108] Appellants’ submissions filed 6 June 2022 (Submission 3), pages 75-81

6. The respondent submitted in relation to CF13 that the emails were all sent by the strata manager; and in relation to CF14 that the issue raised regarding correspondence were the actions of the strata manager alone and therefore not relevant to the appeal.[109]

   Appeal Ground 3: Fence spending in 2013 (Issue 3 First Instance [21]-[33])

   [109] Respondent’s Response to the Appeal filed 30 June 2022, page 14.6

7. The respondent submitted in its response to the appellants submissions on this issue that:

   Meeting minutes in April, June and October 2012 record votes that give authority to spend funds on maintenance of private property, and SFP[110] provides for fence maintenance.

   All owners were made aware of proposal before any action was taken and those objecting to having their fence changed were removed from the scope of work. Hence the requirements of UTMA S.29 and 30 met.

   Applicants were aware of the proposal from March 2013 and expressed their vote against it by email on 4/4/13.[111]

   [110] The Tribunal assumes this is an abbreviation of ‘sinking fund plan’

   [111] Respondent’s Response to the Appeal filed 30 June 2022, page 3.3

8. The respondent referred to an email date stamped 4 April 2013 at 10:55pm from Ms Feng to Stephen French, Strata Manager Independent Body Corporate and Adam Feng. The email was included in email correspondence adduced by the appellants in the Original Proceedings.[112]

   [112] Exhibit A1, bundle titled Email Evidence 2, page 8

9. The respondent’s submissions continued: “They [the applicants] also submitted a proxy vote noted in the minutes of the 5 April 2013 meeting.”[113]

   [113] Respondent’s Response to the Appeal filed 30 June 2022 page 3.3

10. The respondent referred to evidence adduced by it in the Original Proceedings in support of these submissions.[114]

    Appeal Ground 4: Bullying and harassment (Issue 4 First Instance [34]-[42])(the camera issue)

    [114] Minutes of Annual General Meeting of Units Plan 840 dated 5 April 2013 and Minutes of General Meeting Units Plan 840 dated 18 June 2013 Exhibit R2, pages 3-5

11. The respondent described the Executive’s Committee’s involvement as, distinct to that of the strata manager, as follows:

    The camera issue commenced on 25 January 2017 and Committee involvement concluded in August 2017. Between early February 2017 when the committee refused to approve further action and the managers ceased action, and the AGM on 13 June 2017 there was no interaction with the applicants. After the applicants sent an acceptable screenshot in response to the 2017 meeting, the committee again expressed satisfaction and action ceased.

    The camera issue was raised again by the applicants in September 2017 when they advised that they intended to install more cameras[115]and the managers again argued against it. There was no evidence that the committee was aware of the September 2017 exchange.

    At all times the interaction of the committee was to uphold the complex’s rules. They did not instigate and were not party to harassment for over 5 months as claimed.[116]

    Appeal Ground 5: Spending on plumbing for Unit 21 (Issue 5 First Instance [43]‑[47])

    [115] Exhibit A1, bundle titled Email Evidence 1, page 5

    [116] Respondent’s Response to the Appeal filed 30 June 2022, pages 3, 4

12. In its response to the appeal on this ground, the respondent stated as follows:

    Regarding the decision re: plumbing at unit 21, we believed that the damage to the jump-up was covered by insurance as accidental damage to part of the fabric of the building, below the excess and so the responsibility of the OC to repair. The blockage of the pipe was not covered by insurance but was mainly on common property (19 of 20 metres or 95%) so the owners paid for that. Originally the owners believed the payout for the carpet was an insurance claim until told in November 2020 that it was not – and that the strata managers knew this when they made the payment in May 2018. … The owners accepted the damage to the carpet was consequent to the blocked pipe and so did not pursue reimbursement.[117]

    [117] Respondent’s Response to the Appeal filed 30 June 2022, page 4.

13. At the hearing of the appeal Mr Rowley for the respondent clarified the cause and the location of the damage.[118] He told the Tribunal that there were three parts to the damage[119] which the respondent paid to repair “as a single bill”.[120]

    [118] Transcript of appeal proceedings 4 October 2022, page 39

    [119] See transcript of appeal proceedings 4 October 2022, pages 30-42

    [120] Transcript of appeal proceedings 4 October 2022, page 36

14. First, there was cracking to a feeder pipe to individual properties (described as the “jump up” at the appeal hearing)[121] where it connected to the common sewer line.

    [121] See, for example, transcript of appeal proceedings 4 October 2022, page 35 (Ms Feng) and 36 (Mr Rowley)

15. Second, there was tree root infestation in the common sewer line. The infestation extended 19-20 metres into the common property. In its response, the respondent submitted that the line:

    … took waste from at least Units 18 and 19, and slightly further downstream it also collected waste from units 20 and 21. The location of the pipe does not alter [its] role as common infrastructure and so the responsibility of the owners corporation to maintain.[122]

    [122] Respondent’s Response to the Appeal filed 30 June 2022, page 13

16. The third part of the damage was to the carpet of Unit 21 caused by the overflow from the blocked sewer line. Mr Rowley stated, “[i]n good will we paid for the carpet that was damaged as a result.”[123]

    [123] Transcript of appeal proceedings 4 October 2022, page 40

17. Ms Feng did not object to Mr Rowley’s description of the location and nature of the damage but maintained that the Owners Corporation was not responsible for the cost of rectifying that part of it occurring within private property saying:

    The main purpose is me trying to say that that jump up is more than likely definitely owner property responsibility, especially since it is within the private ground of that particular unit, and it seems that it's probably designed this particular way.[124]

    Appeal Ground 6: Responsibility for Trees (Part of Issue 6 First Instance [50]-[54])

    [124] Transcript of appeal proceedings 4 October 2022, page 42

18. The respondent did not dispute that some of the trees removed or pruned in 2018 at the instigation and expense of the Owners Corporation were located on private property. The respondent submitted the trees were cut because they were believed to be damaging adjacent common property.[125] The respondent referred to minutes of AGM of 2017 and 2018 where location trees were discussed and the AGM of 2019 where the actions and expenditure were ratified (motions 12 and 13).[126]

    Appeal Ground 11: Request for Executive Committee details pursuant to section 117 (Issue 10 First Instance [74]-[82])

    [125] Respondent’s Response to the Appeal filed 30 June 2022, page 5.1

    [126] Respondent’s Response to the Appeal filed 30 June 2022, page 5.1

19. The respondent noted that the appellants sought penalties in the first instance proceedings under section 121 of the UTM Act because the names of the Executive Committee members were not supplied after requests were made by the appellants under section 117 UTM Act.[127] The respondent argued that because the requests were made in September 2017, January 2018, and July 2019, any lack of a letterbox before 2015 was irrelevant.[128] It further submitted that the Executive Committee was not aware of the request made to the strata manager before August 2020.[129]

    Appeal Ground 12: Accuracy of minutes and financial records (Issue 12 First Instance [86])

    [127] Respondent’s Response to the Appeal filed 30 June 2022, page 6.5

    [128] Respondent’s Response to the Appeal filed 30 June 2022, page 6.5

    [129] Respondent’s Response to the Appeal filed 30 June 2022, page 6.5

20. During the appeal hearing, the representative of the respondent argued that the written submissions filed by the appellants on this issue[130] simply re-argued the failed arguments made at first instance. It did not identify any errors by the Original Tribunal.[131] The respondent acknowledged that:

    Errors have been made by the managers in the past and had instituted non-mandatory audits in 2020 before the hearings began. These are planned to continue. The applicants sought “forensic” audit of accounts for many years, the cost of which would be borne by the owners (including the applicants) and was out of all proportion to any sum in dispute.[132]

    [130] Appellants’ submissions filed 6 June 2022 (Submission 3) at heading CF_2: Errors in Financial Statements, pages 52-55

    [131] Transcript of appeal proceedings 4 October 2022, page 51

    [132] Respondent’s Response to the Appeal filed 30 June 2022, page 13.2

21. The respondent asserted that the issue has already been resolved.[133]

Consideration

Summary of consideration

[133] Respondent’s Response to the Appeal filed 30 June 2022, page 13.2

1. As discussed above, the Appeal Tribunal has concluded that appellants have not established an error of fact, law, or discretion upon any of the general or specific grounds in the appeal. The appellants have not satisfied the requirements for further evidence to be adduced in the appeal, so the Appeal Tribunal has refused leave for all documents (other than MFI 9) to be admitted into evidence in the appeal. Leave has been granted for the documents comprising MFI 9 to be adduced as Exhibit 1.

2. Given that the appellants have failed on all grounds, the appeal is dismissed.

   General alleged error: Bias/Procedural Unfairness

3. The appellant has not established any bias or breaches of procedural fairness by the approach of the Original Tribunal. The passages of the Original Decision that the appellant objected to on appeal consisted of general comments where the Original Tribunal referred to the “language and tone” that Ms Feng used in her correspondence and dealings with the strata manager and Owners Corporation[134] which the Original Tribunal described as “intemperate”.[135] There are also specific comments made by the Original Tribunal, for example the comment that Ms Feng referred to other unit owners and members of the Executive Committee as “idiots”.[136]

   [134] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [10]

   [135] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [10]

   [136] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [10]

4. Dealing first with the specific comments made by the Original Tribunal, the basis of the appellants’ objections was unclear. At various points the second appellant argued that she did not recall calling them idiots[137] or that she ‘holds back’ from calling her neighbours idiots[138] or that the Original Tribunal was biased by mentioning that she called them idiots.[139] In any case, the transcript of the first instance proceedings on 3 February 2021 records that Ms Feng stated on several occasions that other unit owners, members of the executive committee and other participants were “idiots”.[140] The Original Tribunal was therefore stating a fact.

   [137] Appellants’ submissions filed 6 June 2022 (Submission 3) at heading S7. Some of the reasons why we feel the decisions are bias/unfair, page 30.

   [138] Transcript of appeal proceedings 4 October 2022, page 8

   [139] Appellants’ submissions filed 6 June 2022 (Submission 3) at heading S7. Some of the reasons why we feel the decisions are bias/unfair, page 30.3

   [140] Transcript of proceedings 3 February 2021, pages 17, 18, 28, 103-104

5. The appellants challenged other specific comments made by the Original Tribunal about the camera issue. The camera issue is discussed in more detail under Appeal Ground 4.

6. First was the finding by the Original Tribunal that the strata manager’s requests that Ms Feng remove the camera were not unreasonable.[141] The Original Tribunal explained this finding as follows:

   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.[142]

   [141] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [41]

   [142] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [41]

7. As noted above, Ms Feng told the Appeal Tribunal that she thought that the Original Tribunal’s comments were unfair and potentially biased because (in Ms Feng’s view) the Executive Committee had not tried to resolve any of the issues.[143] The Original Tribunal disagreed with this contention and found that: “[t]he executive committee gave the issue considerable thought and sought to find some middle ground.”[144] The Appeal Tribunal has reviewed the evidence relied upon by the Original Tribunal and considers that this finding is consistent with the evidence available at the first instance hearing.[145]

   [143] Transcript of appeal proceedings 4 October 2022, page 23

   [144] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [41]

   [145] See, for example, Exhibit R4, Documents supporting camera issue, pages 1-43

8. Second, the Original Tribunal found that had Ms Feng “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 cameras.”[146] At the hearing of the appeal, Ms Feng conceded that the statement (that it was open to her to commence proceedings in ACAT in this situation) was factually correct but objected to it on the basis that it was “biased and unfair”.[147] A tribunal is entitled to comment on alternative actions that are available to parties to a proceeding. The comments do not support an allegation of bias or unfairness on the part of the Original Tribunal.

   [146] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [41]

   [147] Transcript of appeal proceedings 4 October 2022, page 25-26

9. Moving to the general comments made by the Original Tribunal about Ms Feng’s conduct, language and tone during the Original Proceedings, the Appeal Tribunal does not consider that these comments demonstrate bias or a lack of procedural fairness. A tribunal is entitled to comment upon the conduct of parties when making findings.

10. For several issues,[148] the Original Tribunal found that the appellants had discontinued the proceedings against the strata manager and therefore there was no basis upon which the Original Tribunal could grant the relief sought. This finding is clearly correct – the appellants and the strata managers had reached an agreement about the proceedings prior to the first instance hearing and the appellants had discontinued proceedings against them. Because the strata managers were no longer party to the proceedings, there was no basis upon which the tribunal could grant the relief sought. No further substantive comment will be made by the Appeal Tribunal about this finding.

    [148] See for example Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [15], [19], [42], [67], [86]

11. The Appeal Tribunal refuses leave for the documents comprising MFI 1 to be adduced in evidence in the appeal. The documents consist of a series of emails between Ms Feng and representatives of the strata manager. The evidence is not probative and if it had been made available to the Original Tribunal it would not have produced a different result.

12. The Appeal Tribunal is not satisfied that the grounds raised by the appellants regarding the alleged general error of bias and breaches of procedural fairness has any foundation. No error of fact, law or discretion has been established on this ground.

    Specific alleged errors of fact or law

13. In the appellant’s arguments there was an overlap between Appeal Ground 1 concerning Ms Feng’s authority to communicate with the Owners Corporation and strata manager and Appeal Ground 2 which concerned changes to the correspondence.

    Appeal Ground 1: Ms Feng’s authority to communicate with the Owners Corporation/strata manager (Issue 1 First Instance [12]-[16]))

14. Regarding Alleged Error 1, the Appeal Tribunal has concluded that there are no errors in the analysis by the Original Tribunal of whether an authorisation was given by the first appellant to act on his behalf. The Original Tribunal relied upon a document in Exhibit A1 which was a 2012 email exchange.[149] This email exchange supports the conclusion of the Original Tribunal that the required authority to act had not been given. The 2012 email exchange provided sufficient evidence for the Original Tribunal’s findings. The appellant sought to adduce further evidence on the appeal which was marked as MFI 2, comprising an email from Adam Feng to Team Delta dated 30 September 2017 and an email from Adam Feng to Karen Feng dated 7 October 2017.The Appeal Tribunal will quote from sections of the relevant documents to demonstrate that the Original Tribunal’s findings are supported by the further evidence sought to be led by the appellants on the appeal. Therefore, the documents marked as MFI 2 would not have produced a different result if the evidence had been available to the Original Tribunal.

    [149] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [13]-[16]

1. The relevant exchanges stated as follows:

   Adam Feng to Team Delta 30 September 2017 19:42

   Hi

   Could you guys please ensure that all future correspondence (including meeting minutes, annual meeting notifications, votes, etc) from Independent Properties regarding [the unit] is emailed to [Ms Feng’s email address]. Also, as I have already granted my sister authority to act on my behalf, any document my sister requests from you guys regarding the property should be sent to her at her request.

2. The reply from Team Delta dated 4 October 2017 at 2:43 PM states as follows:

   Good afternoon

   I have changed the correspondence email address to [Ms Feng’s email address] as per your request ... Please note this does not include levy notices.

   We are happy to send through any information as required, however she will not be able to act on your behalf without a power of attorney. Should she wish to attend an Annual General Meeting or any other meeting she will require a proxy form to be filled out by yourself.

3. The first email by Mr Feng assumes that the authority to act has already been given. However, it is clear from the language of Team Delta in the reply that it did not recognise the alleged earlier authority to act. The respondent came to the same conclusion.[150]

   [150] Respondent’s Response to the Appeal filed 30 June 2022, page 3

4. The strata manager was entitled to require certain formalities for an authority to act. These formalities do not appear to have been satisfied and this was the finding of the Original Tribunal.

5. Regarding Alleged Error 2, the Appeal Tribunal has reviewed the Original Proceedings and is satisfied there is no evidence of a conspiracy between the strata manager and the Owners Corporation or that the Owners Corporation was involved in the strata manager seeking proper authorisation for Ms Feng to have dealings with them.

6. There is no error of fact, law or discretion demonstrated on this ground and the additional evidence sought to be adduced by the appellants would not have produced a different result if the evidence had been available to the Original Tribunal. Leave to adduce further evidence in the appeal for the documents marked as MFI 2 is refused.

   Appeal Ground 2: Changes to correspondence (Issue 2 First Instance [17]-[20])

7. The Appeal Tribunal will discuss Alleged Errors 1, 2 and 3 on this ground collectively. The appellant argued that the first appellant did not consent to receive notices by email, only by post. In its reasoning, the Original Tribunal discussed the sending of some notices by email but did not make finding about the relevant email address. For example, the Original Tribunal did not refer to the “Hotmail” email address.[151] The Original Tribunal noted that there may have been some differences of opinion as to what type of notices were to be sent by email and or by post.[152] The Original Tribunal concluded that it was not unreasonable to send those certain specified notices (i.e. associated water rates etc.)[153] by post and the remaining directly to Mr Feng at his email address.[154]

   [151] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [17]

   [152] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [19]

   [153] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [17]

   [154] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [19]

8. Ultimately however, the question about what instructions were given by the first respondent to the strata manager were irrelevant to the outcome of the first instance proceedings. As the Original Tribunal stated, the proceedings against the strata manager were discontinued and there was no basis upon which the Senior Member could grant a relief in the form of compensation against the strata manager.[155] In the alternative, the appellants at first instance sought compensation from the Owners Corporation if the changes in how notices were sent was at its direction.[156] The Original Tribunal concluded that there was no evidence before her that the Owners Corporation gave any direction to the strata manager regarding how and where notices were sent.[157] There is no error in this finding of the Original Tribunal.

   [155] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [19]

   [156] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [18]

   [157] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [19]

9. Further, the documents that the appellants sought to adduce by further evidence on the appeal on this ground which consisted of MFI 3 (emails between the appellants and the strata manager in 2019 and MFI 4 (emails from lawyers acting for the appellants regarding settlement of the unit held by the appellants) did not establish that any direction was given by the Owners Corporation to this effect.

10. The Appeal Tribunal formally refuses leave for the documents comprising MFI 3 and MFI 4 to be adduced in evidence in the appeal. Consequently, the finding made at first instance that there was no evidence before the Original Tribunal that the Owners Corporation gave any direction to the strata manager has not been displaced.

11. The appellants have not established an error of fact, law or discretion on this ground.

    Appeal Ground 3: Fence spending in 2013 (Issue 3 First Instance [21]-[33])

12. The arguments made by the appellants on this ground were, with respect, confusing and overlapping. The Appeal Tribunal will therefore discuss Alleged Errors 1 and 2 collectively. During the appeal hearing, the Appeal Tribunal asked Ms Feng to explain her arguments about this ground. She pointed the Appeal Tribunal to evidence and submissions that were made in the Original Proceedings.[158] These submissions were headed “Against owners for forcing us to contribute to unreasonable plumbing and fencing cost" and made the following points:

    We are not legally obligated to contributed to these costs

    These costs do not relate to maintaining common property

    These costs do not relate to maintaining a facility to all …

    The legal basis for this is that we were never legally obligated to pay for those expenses but have been force to pay them due to the actions of the Executive Committee. Many of this relates to the interpretation of the [UTM Act] and so under the “unit titles” dispute will require the Tribunal to clarify how the specific part of the [UTM Act] is interpreted.

    As an Owner (Applicant 1) only have an obligation to pay for expenses that relates to the common property and utilities that all other unit owners have to legally part take. Through the Executive Committee’s action to decide what the Owners Corporation is responsible without considering whether there is any legal basis to do so we have been financially affected. That is a form of damage.[159]

    [158] Transcript of appeal proceedings, 4 October 2022, page 21

    [159] Exhibit A2, bundle titled Summary of Claims, page 13

13. This submission refers to the acts of the Executive Committee and does not address the reasoning of the Original Tribunal on this ground, which predominantly concerned decision-making by the Owners Corporation in general meetings and the use of the Sinking Fund Plan.

14. The Original Tribunal commented that the appellants sought to recover from the respondent some kind of reimbursement associated with their contribution to any expenditure which they asserted was not properly authorised and not necessary.[160] However on the evidence before the Original Tribunal the Senior Member was not satisfied that the appellants had established any contravention in relation to the fence expenditure.[161] The various resolutions set out in the Original Decision refer to meetings of the Owners Corporation that occurred on 5 April, 18 June and 24 October 2013 that provided the relevant authorisations to replace the fences and the sinking fund plan allowed for some fence replacement.[162] In addition, the appellants did not attend any of these meetings.[163] The Original Tribunal therefore concluded that the allegations regarding this ground were not made out.[164]

    [160] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [31]

    [161] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [32]

    [162] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [32]

    [163] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [32]

    [164] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [33]

15. The appellant sought to adduce further evidence in the appeal regarding this ground. The first was a document comprising an email from Ms Feng to Jake Bolton dated 9 January 2017 and a reply from Mr Bolton dated 10 January 2017. This document was marked MFI 11.[165] The second document comprised an email from Craig Welsh to Adam Feng dated 7 April 2022 and this document was marked MFI 15.[166] As stated above, the document marked MFI 15 came into existence after the first instance hearing. In both documents the authors (other than Ms Feng) have expressed general views about works on common property or private lots, but they are only general views. The authors were not purporting to express an opinion about the particular issues in this case. Neither document would have produced a different result if the evidence had been available to the Original Tribunal. Therefore, the Appeal Tribunal has refused leave for the appellants to adduce the further evidence.

    [165] Transcript of appeal proceedings, 5 October 2022, page 133

    [166] Transcript of appeal proceedings, 5 October 2022, page 147

16. The appellants have not established an error of fact, law, or discretion on this ground.

    Appeal Ground 4: Bullying and harassment (Issue 4 First Instance [34]-[42]) (the camera issue) –

17. The camera issue concerned a series of communications about the installation of a camera at the appellants’ unit. The Appeal Tribunal will quote from the Original Decision to explain the dispute.

    34.    The camera was initially installed inside the dwelling facing out, capturing unit 18’s driveway and a portion of common property. 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. …

    36.    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. … 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.

    37.    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. From the exchanges with the executive committee, … 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.

    38.    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. 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. Nothing appears to have come from this exchange.

    40.    … [Ms Feng] 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.[167]

    [167] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [34]-[40]

18. The camera issue is directed to allegations of bullying and harassment which the appellants allege, entitled them to “compensation”. The legal basis for the compensation sought was unclear at first instance and on appeal. Various arguments were made about the UTM Act, negligence and the Civil Law (Wrongs) Act 2002 (Civil Law (Wrongs) Act). The Original Tribunal described it as follows:

    35.     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”. … The applicants appear to direct the allegations at the strata manager for ‘emotional damages.’

    …

    42.     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 [manager] 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.

19. There is considerable overlap in the alleged errors on this ground and the Appeal Tribunal will do its best to consider the appellants’ arguments systematically.

20. Dealing first with Alleged Error 6, the question of whether the strata manager lied, the Original Tribunal concluded that the appellants had not established that the strata manager had lied, and that the allegation that the strata manager had lied is a “serious allegation that was based on [Ms Feng’s] … own perception.”[168] The Original Tribunal concluded that even if the strata manager had conveyed information “which may have been incorrect he may have believed it to be true.”[169] There is no error in this approach.

    [168] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [42]

    [169] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [42]

21. Second, regarding Alleged Error 5, the appellants argued a further alleged error of fact whereby the Original Tribunal referred to the “requests” to remove the camera[170] whereas in fact the appellants were ordered to remove the camera. This portrayal of the behaviour of the strata manager and the Executive Committee is wrong. The evidence at first instance does not support a conclusion that appellants were “ordered” to remove the camera.[171]

    [170] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [41]

    [171] Exhibit R4

22. With respect to Alleged Error 4, the appellants challenged whether the Original Tribunal was correct in finding that the reasons given to Ms Feng for the removal of the camera were sufficient. The Appeal Tribunal agrees with the appellants that the reasons given by the Executive Committee were not clear and there are doubts about whether the comments made by the strata manager about the legality of the camera were accurate. Nevertheless, regarding Alleged Error 3, the Appeal Tribunal has already considered the deliberations of the Executive Committee about the camera issue in the discussion above and concluded there was no error in the finding that the Executive Committee gave the issue considerable thought and sought to find a middle ground. The Executive Committee sought to resolve the dispute about the camera informally rather than invoking the house rules or issuing infringement notices or commencing proceedings in ACAT. The Executive Committee was entitled to do so and the Original Tribunal found that its actions were not unreasonable. This conclusion was open to the Original Tribunal on the evidence before the Senior Member and the Appeal Tribunal gleans no error in this approach. The Appeal Tribunal notes that the appellants could have commenced proceedings to retain the camera but did not do so. The remedies under section 129 UTM Act are sufficiently flexible to contemplate such a course by the appellants. There is no evidence that the Executive Committee adopted the strata manager’s views about the legality of the camera, rather the emails adduced in evidence in the Original Proceedings show the contrary.[172]

    [172] Exhibit R4

23. The appellants sought leave to adduce further evidence in the appeal regarding this ground. The evidence consisted of a series of emails which were marked as MFI 5 and MFI 13. The documents comprise emails between the strata manager regarding a screenshot showing the coverage of the camera installed in the appellants’ unit and the strata manager’s views about the legality of the camera in 2017. The submissions filed by the parties at first instance and on appeal showed that there is no dispute about the screenshot or the strata manager’s views about the legality of the camera. The question on appeal concerns the involvement of the Executive Committee. The documents do not establish that the Executive Committee adopted the strata manager’s views about the legality of the camera.

24. The Appeal Tribunal refuses leave for these documents to be adduced as evidence. No explanation was given as to why they were not adduced at first instance. Further, even if the evidence had been available to the Original Tribunal, it would not have produced a different result.

25. Regarding Alleged Errors 1 and 2 and the remainder of Alleged Error 3, the Appeal Tribunal notes the arguments made by the appellants regarding the infringement notices, the code of conduct and the Civil Law (Wrongs) Act but none of the arguments in combination with the evidence at first instance provided any material from which the Appeal Tribunal could conclude that a cause of action had arisen that would entitle the appellants to compensation under legislation or general law against the respondent. Assertions by the appellants of certain things for example, whether or not the Executive Committee could use the infringement notice procedure or did or did not act within certain timeframes (e.g., five months) would, at most, amount to evidence of bullying and harassment which would, if proved, be considered alongside other evidence to make a decision about compensation. The Original Tribunal considered the evidence that was available and concluded that the Senior Member was not satisfied that the actions of the Executive Committee or the strata manager amounted to bullying, harassment, or abuse of power by either of them.[173] As discussed above, no relief was available against the strata manager, so the Original Tribunal ultimately concluded on this issue that the appellants were not entitled to any relief against the respondent.[174]

    [173] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [42]

    [174] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [42]

1. The appellants have not demonstrated an error of fact, law or discretion on this ground.

   Appeal Ground 5: Spending on plumbing on Unit 21 (Issue 5 First Instance [43]‑[47])

2. The Appeal Tribunal notes that the orders sought by the appellants at first instance are quoted below:

   Under the Unit Titles dispute we want to order unit 19 and unit 21 to pay back for their plumbing cost

   ·        unit 21 carpet cleaning                  $1934

   ·        unit 21 is plumbing  $1020.80

   ·        unit 19  $352

   Under the Civil Dispute we want the tribunal to order for reimbursement of the portion we would have had to contribute to these unfair plumbing costs.[175]

   [175] Exhibit A2, bundle titled 2020 addition to the ACAT application, page 29

3. The appellants also claimed an interest component of $25.46.[176]

   [176] Exhibit A2, bundle titled 2020 addition to the ACAT application, page 29

4. In this part of the decision the Appeal Tribunal will discuss the plumbing on unit 21. The allegations about the unit 19 plumbing are discussed below.

5. The appellants did not dispute the explanation provided by Mr Rowley from the Owners Corporation about the proportion of the damage that had occurred on private and common property. The Original Tribunal found that the respondent covered the cost of repairs to unit 21 because the damage to unit 21 was caused by the tree roots breaking an area of common pipe. This finding is consistent with the evidence in the form of the plumber’s invoice[177] and the drainage diagrams which were provided in the first instance hearing.[178] The Appeal Tribunal notes the submissions made by Mr Rowley in the hearing at first instance which explained the diagrams as well as the need for the plumber to access the common pipe via the inspection opening in unit 21.[179]

   [177] Abbey Plumbing Invoice dated 24 October 2017, Exhibit A1, bundle titled Letter to resolve and get answers page 6

   [178] Exhibit A2, bundle titled 2020 addition to the ACAT application, page 26

   [179] Transcript of proceedings, 3 February 2021, pages 80-82

6. Ultimately, the respondent did not dispute that a portion of the damage to unit 21 in 2017 occurred on private property. The question for the Original Tribunal and on appeal is whether the payment of a portion of the plumbing component and the carpet cleaning was reasonable. The appellants did not dispute the submissions made by the respondents that approximately 5% of the damage was situated on private property. Have the appellants demonstrated that the Original Tribunal was in error when the Senior Member found that respondent acted reasonably in paying the full plumbing and carpet cleaning costs for unit 21 for this incident and (by inference) that reimbursement should not be sought from unit 21? The uncontested evidence was that 95% of the damage occurred on the common property. The tree root infestation in the common pipe is likely to have caused the damage to the plumbing and carpets in unit 21. It was not unreasonable for the Owners Corporation to pay these costs. The Original Tribunal held that the allegations regarding the plumbing costs were not made out therefore the appellants were not entitled to any relief.[180] The Appeal Tribunal notes that the owners of unit 21 were not parties to the first instance hearing or the appeal.

   [180] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [47]

7. The Appeal Tribunal finds that the appellants have not demonstrated an error of fact, law, or discretion by the Original Tribunal on this ground.

8. The appellant sought to adduce further evidence about this issue in the form of three diagrams which were marked MFI 6. The Appeal Tribunal refuses leave to adduce the further evidence because one of the diagrams is a generic diagram that has little probative value and the other two diagrams replicate the diagram which was in evidence in the Original Proceedings as part of Exhibit A2.[181]

   Appeal Ground 6: Responsibility for Trees (Part of Issue 6 First Instance [50]-[54])

   [181] Exhibit A2, bundle titled 2020 addition to the ACAT application, page 9

9. The Appeal Tribunal will discuss the Alleged Errors 1, 2 and 3 in this issue collectively. The Appeal Tribunal agrees with the appellants that the location of many trees in the ACT can be determined by visual observation and by reference to the ACTmapi interface. The Original Tribunal was aware of this fact – it is stated in the material that was filed by the respondent regarding the discussion of the trees at the 2017 AGM dated 17 June 2017 and received into evidence in the first instance proceeding.[182] There is a separate question about whether the exact location of trees can be identified relative to private and common property. There is no error in the alleged omission of the Original Tribunal to find that the respondent had failed to ascertain the location of the boundary of the common and private property. The Original Tribunal found that there was confusion as to the exact location of the trees 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.[183]

   [182] Exhibit R5, page 3

   [183] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [50]

10. During the appeal, the appellants focussed up the removal of the tree near Unit 59, but it was dealt with as a wider issue in the first instance proceedings, as demonstrated by the last quote from the Original Decision. The respondent regarded the removal of the tree located near unit 59 as being covered by sections 29 and 30 of the UTM Act.[184] Those provisions of the UTM Act allow an Owners Corporation to undertake work on behalf of particular unit owners for the maintenance of the unit under section 29 and to recover costs as necessary under section 30. The respondent used the procedure in sections 29 and 30 of the UTM Act to pass resolutions at the AGM held on 20 June 2019 which ratified the past decisions of the Executive Committee to pay for the removal of trees on common or private property.[185] The Original Tribunal was satisfied that the expenditure on the tree removal fell within sections 29 and 30 of the UTM Act and was reasonable in the circumstances.[186] The Senior Member also found that the subsequent ratification at the 2019 AGM reinforced the manner in which it was resolved to deal with the tree issue. Accordingly, the Original Tribunal found that the appellants were not entitled to reimbursement.[187]

    [184] Exhibits R1 and R5, referred to in Feng & Anor v The Owners - UP 840 [2022] ACAT 23 at [51]

    [185] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [52]. See Motions 12 and 13, at page 3 of 6 of the 2019-AGM Minutes included in Exhibit A1 as part of a bundle of documents including various AGM notices and Minutes relating to period 2012 to 2019 (bundle of AGM minutes)

    [186] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [54]

    [187] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [54]

11. In their appeal submissions, the appellants referred to the use of the procedure under section 24 of the UTM Act and some earlier comments that were made at first instance by the strata managers about the use of section 24 of the UTM Act.[188] With respect, whether or not anyone said that the section 24 process was utilised is irrelevant. The respondent documented its use of sections 29 and 30 of the UTM Act and the Original Tribunal expressly referred to the procedure in sections 29 and 30 when discussing this issue.[189] Although the Original Tribunal did not precisely identify the location of the documents that proved the relevant resolutions, these documents were in evidence in the Original Proceedings.[190]

    [188] Appellants’ submissions filed 6 June 2022 (Submission 3) at heading CF_10 Original intention to use funds is probably not section 29 & 30 of UTMA, page71

    [189] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [54]

    [190] See Motions 12 and 13, at page 3 of 6 of the 2019-AGM Minutes, Exhibit A1, bundle of AGM minutes

12. There is no error of fact, law or discretion demonstrated by the appellants on this ground.

    Appeal Ground 7: Insurance Excess - Statute of Limitations (Issue 7 First Instance [59]-[63]))

13. This ground can be dealt with briefly. The appellant sought a refund of $2,000 from the respondent for an insurance excess that they paid in May 2012. The Original Tribunal held that the amount was not recoverable by reason of section 11 of the Limitation Act1985 (the Limitation Act) and therefore did not make any orders in the applicant’s favour.[191] There is no error demonstrated by the appellants on this ground. The proceedings are barred under section 11 of the Limitation Act and there is no power to extend limitation period for this cause of action.

    Appeal Ground 8: Approval of funds and budget procedure (Issue 8 First Instance [64]-[65])

    [191] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [63]

14. It is not clear what, if any, error is alleged, and the appellants’ objection seems to relate to the Senior Member’s characterisation of their conduct and motivation for interrogating the decisions of the Owners Corporation. The Appeal Tribunal has read the comments made by the Senior Member in the relevant paragraphs.[192] The appellants have not demonstrated an error of fact, law, or discretion with respect to these paragraphs.

    Appeal Ground 9: Alleged error in recovering legal costs for unit 54’s unpaid levy (Issue 9 First Instance [66]-[68])

    [192] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [64]-[65]

15. This issue can be dealt briefly. It is not necessary for the tribunal to refer to all of the submissions or evidence that is provided by parties. This was expressly stated in the Original Decision which cited Casino Canberra Limited v Kidman[193] for this proposition.[194] This is particularly important where participants provide voluminous material that is of limited relevance or is irrelevant to the issues in the proceedings. The Appeal Tribunal has examined the reasoning given by the Original Tribunal in the Original Decision at paragraphs [66]-[68] and considers it is adequate.

    [193] [2022] ACAT 22

    [194] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [9]-[10]

16. There is no error of fact, law or discretion established on this ground.

    Appeal Ground 10: Request for Executive Committee details (Issue 9 First Instance [68])

17. As discussed above, the appellants’ submissions on this ground appear to be about alleged errors in financial statements more generally. This is discussed in Appeal Ground 12 below.

    Appeal Ground 11: Request for Executive Committee details pursuant to section 117 (Issue 10 First Instance – [74]-[82])

18. Dealing with Alleged Error 2 first regarding the mailbox, the relevant part of the Original Decision states as follows:

    74.    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.

    …

    80.     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.

19. The Appeal Tribunal agrees with the respondent’s submissions that all demands/requests for information under section 117 of the UTM Act could have been made to the Owners Corporation directly by leaving it in the mailbox for the Owners Corporation at the complex. There is no dispute that the mailbox existed from 2015 and the demands/requests occurred after that time. The mailbox is in plain sight, so it is not material that the appellants only found out about the mailbox in 2021.[195]

    [195] Appellants’ submissions filed 6 June 2022 (Submission 3) at heading CF_1 Emails to the Strata Manager can be considered as to the Owners Corporation, pages 51-52

20. The appellants sought to adduce further evidence about this alleged error. They provided photographs of two letterboxes at the complex marked MFI 8 and a screenshot of a reimbursement for replacement keys to the body corporate letterbox marked MFI 12. The Appeal Tribunal refuses to leave to adduce this further evidence. The evidence is not probative and if the evidence had been available to the Original Tribunal, it would not have produced a different result.

21. Regarding Alleged Error 1 on this ground, the Original Tribunal found that a request made to the strata manager under section 117 UTM Act was not made to the Owners Corporation for the purposes of that section. The relevant part of the Original Decision states as follows:

    81.     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.

    82.     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.

22. During the appeal hearing, the Appeal Tribunal called for the strata manager’s contract for the relevant periods (predominantly 2018-2019) to determine whether the Owners Corporation and the strata manager had an arrangement whereby requests under section 117 could be directed to the strata manager. The Appeal Tribunal exercised the power to call for the documents pursuant to section 23 of the ACAT Act. Section 23(1) states that the tribunal may decide its own procedure at any stage in dealing with an application if no procedure is prescribed for the application under this Act or an authorising law. The Appeal Tribunal can exercise the power on application by a party, another person or on its own initiative: this is implicit in section 23(3).

23. The respondent provided three agreements between itself, and Independent Body Corporate Services dated 2013, 2016 and 2019. These documents were marked as MFI 9. An examination of these documents reveals that the manager’s functions under the agreements did not include receiving such notices on behalf of the Owners Corporation. Pursuant to rule 91 of the ACAT Rules it is necessary for the Appeal Tribunal to grant leave for these documents to be received into evidence. However, because the documents were provided due to the Tribunal’s initiative rather than on the application of either party, it is necessary to adapt the two tests that apply in the case law for the grant of leave that are set out above.

24. Although the documents marked as MFI 9 were available to the parties in the first instance hearing, it does not appear that they were in evidence, but the Tribunal repeats the observation above that the material provided by the appellants at first instance was voluminous and idiosyncratically organised. Portions of many documents were notated and altered. Therefore, the Appeal Tribunal cannot be certain that no evidence about the managers contract was provided at first instance. The documents produced on appeal resolve a question where the evidence was lacking at first instance. The documents do not affect the result, rather they confirm the finding made by the Senior Member about whether requests under section 117 could be directed to the strata manager and if the Owners Corporation had delegated this function to the manager. This finding is reinforced by the Senior Member’s comments that an order under section 129(1)(a) was no longer available because the strata manager was no longer a party to the proceedings.

25. The Appeal Tribunal grants leave for these documents marked as MFI 9 to be admitted into evidence in the appeal as Exhibit 1.

26. A separate agreement between the same parties dated May 2012 was marked MFI 10. The document marked MFI 10 was in evidence in the first instance proceedings. [196] Leave is refused to adduce this document in the appeal for the obvious reason that it was already in evidence and probably did not apply to the relevant periods. This issue further illustrates the problem associated with the voluminous material filed by the appellants in these proceedings.

    [196] 2012 AGM Notice, Exhibit A1, bundle of AGM minutes pages 15-20

27. The Appeal Tribunal concludes that no error of fact, law or discretion has been established by the appellants on this ground.

    Appeal Ground 12: Accuracy of minutes and financial records (Issue 12 First Instance [86])

28. Although the appellants have asserted that they do not agree with the Original Tribunal’s conclusion, it is not clear whether, and if so how, they allege it erred on the basis of the evidence and arguments before it. The appellants have not demonstrated any errors of fact, law or discretion on this ground.

29. The appellants also provided income and expenditure statements from the respondent’s general and sinking funds which they sought to adduce in evidence in the appeal on this ground. These documents were marked MFI 7. The Appeal Tribunal has refused leave to adduce this evidence on the appeal because it is not clear what the appellants were trying to prove if they were received into evidence. In other words, the documents had no probative value.

    Appeal Ground 12A: Request for interpretation of the law (First Instance [88])

30. The Appeal Tribunal recognises that the interpretation of the law that governs the issues in dispute between the parties in this case is complicated. The Appeal Tribunal is not persuaded by the applicants’ contention that the Original Tribunal did not understand the challenges associated with this for both the appellants and the respondent. The Original Tribunal referred to various provisions of the UTM Act such as sections 24, 35, 77, 83 and the code of conduct as well as the Common Boundaries Act.[197] However, the Senior Member accurately stated that the tribunal must not provide a general advisory opinion on law because its role is confined by the power conferred upon it by various statutes, in particular the ACAT Act and the UTM Act.[198] Importantly, the Original Tribunal held that the tribunal should not provide a general interpretation or opinion on certain laws in circumstances where no specific orders for relief have been sought.[199] This is what the appellants were seeking at first instance and it was appropriate for the Original Tribunal to decline this request.

    [197] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [88]

    [198] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [88]

    [199] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [88]

31. The appellants have not demonstrated an error of fact, law or discretion on this ground.

    Appeal Ground 12B: Unit 19’s plumbing expenses (First Instance [89])

32. The appellant alleged an omission in the first instance decision of any reference to unit 19,[200] arguing that the Original Tribunal only considered plumbing issues in relation to unit 21.[201] However, the Original Tribunal referred to the “remaining contentions regarding plumbing costs” earlier in the decision,[202] stating that the appellants “had not produced any evidence to suggest the plumbing issues occurred on private property and were paid for by the respondent.”[203]

    [200] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [89]

    [201] Appellants’ submissions filed 6 June 2022 (Submission 3) at heading CF_5 Unit 21’s plumbing cost, pages 56-58, Transcript of appeal proceedings 4 October 2022, page 57

    [202] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [46]

    [203] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [46]

1. During the appeal hearing Ms Feng made the following comments:

   So unit 19 had a particular issue with their plumbing, and the maintenance and repair work occur within the property. My contention against that is that should not have been at the cost of - I've forgotten whether they used sinking fund or admin fund, but it shouldn't come from any of those funds. Instead, it should be that particular unit owner's responsibility, and I don't know why Senior Member did not comment or make any decision based on whether that was appropriate.[204]

   [204] Transcript of appeal proceedings, 4 October 2022, page 56

2. The appellants did not refer to specific documents that had been adduced at first instance and overlooked by the Original Tribunal apart from a general mention of Exhibit A2.[205] The Appeal Tribunal notes that Exhibit A2 includes an invoice dated 8 April 2020 from BA Plumbing Maintenance Services Pty Ltd for $352 for plumbing carried out on unit 19. The content of this document does not rebut the general comments made by the Original Tribunal that the appellants had not produced any evidence to suggest the plumbing issues occurred on private property and were paid for by the respondent.[206] No further evidence was sought to be adduced on this issue on the appeal and no further submissions were made by the appellant regarding this issue.

   [205] Transcript of appeal proceedings, 4 October 2022, page 57

   [206] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [46]

3. The appellants have not demonstrated an error of fact, law or discretion on this ground.

   Appeal Ground 12C: Request for Information under section 119 (First Instance [90] – [92])

4. This ground was not pressed on the appeal. The Appeal Tribunal recognises that there may challenges for all parties in obtaining information under the statutory processes but given that the appellants elected not to pursue this ground, it is not necessary for the Appeal Tribunal to consider it further.

   Appeal Ground 12D: Unit 59’s fence (First Instance [93] – [96], [100])

5. Regarding Alleged Error 1 – the interpretation of the Common Boundaries Act – the appellants’ argument on this ground was unclear. During the appeal hearing Ms Feng stated the following:

   Regarding [the] fence spending, and during the original hearing I was trying to tell them that the Common Boundary Act isn't exactly the relevant one. It is the Unit Titles Act 2001, and I actually feel that they didn't consider the nature of each of these units and how they are and how to interpret where the boundaries are. So this is why I wanted to point out the fact that this particular plan says that each unit is a particular brick wall, and according to particular parts of the Unit Titles 2001, each of these units is to be registered and detailed on this plan in a particular way, and that's just my supporting evidence to point out.

   I thought mentioning that it's a brick wall was enough, but apparently not. So I just want to point it out, that even the plan sort of mentions that all the units contains a brick wall. So if the fence is attached to the brick wall in a particular way, then the fence becomes part of the unit rather than the common property. That I've written in more detail in my main submission. I just add that picture in because I think it will help to support it.[207]

   [207] Transcript of appeal proceedings, 5 October 2022, page 143

6. The appellants sought to adduce documents as evidence in the appeal which consisted of a copy of Units Plan 840. This document was marked MFI 14. This is the “picture” that Ms Feng is referring to in the extract of the transcript above. The Appeal Tribunal refuses leave for this document to be adduced in the appeal. A diagram of Units Plan 840 was in evidence in the first instance proceedings[208] and there is no need for a further copy of the diagram to be adduced in evidence in the appeal. Further, the diagram does not establish the proposition suggested by Ms Feng.

   [208] See, for example, Exhibit A1, bundle titled Email Evidence 2 page 39

7. The location of the relevant fence is not clear from the material adduced in evidence or the transcript of the first instance proceedings. However, the material provided via email after the commencement of proceedings shows that sums were paid for the repair of retaining walls in 2019 which included the repairs to the unit 59 fence.[209] The Appeal Tribunal notes that there appear to be some inconsistences in the amounts in these emails[210] but participants in the first instance proceedings treated unit 59’s fence as part of a more general issue about whether the boundaries of individual units in the units plan with the common property are regulated by the Common Boundaries Act. There was considerable discussion about the general issue before the Original Tribunal. Ms Feng made extensive arguments inviting the Senior Member to find that the Common Boundaries Act did not apply in this situation, only the UTM Act in combination with the Unit Titles Act 2001.[211] Some of these arguments referred to walls or retaining walls,[212] hence the reference in the Original Decision at [100] to ‘retaining wall’. The respondent argued that the Common Boundaries Act applied[213] and the Original Tribunal accepted the respondent’s interpretation.

   [209] Email from applicant to tribunal dated 21 August 2020, 11:20pm and 11:27pm

   [210] The quote from Inbound Fencing dated 22 May 2019 quotes the sum of $1780.60 which includes $232 for "the removal and disposal of standard timber retaining wall" and $1548.60 for "supply and install 100 mm wide treated pine retaining wall". The email dated 19 August 2020 at 3:58 PM from Team Bravo refers to a payment made to Inbound Fencing dated 20 May 2019 the sum of $690.20 stating "50% payment for CP retaining wall between unit 59 and 35 common property.” The 50% payment differs from the sum of $1780.60 which is referred to in the original decision at [100] and the finding at [95] that the respondent contributed 40% towards the cost of the fence shared with unit 59.

   [211] Transcript of proceedings, 3 February 2021, pages 42-45

   [212] See for example, transcript of proceedings, 3 February 2021, page 47

   [213] Transcript of proceedings, 3 February 2021, pages 74-75

8. Even though there are some inconsistencies in the material regarding the amount paid for the unit 59 fence, insofar as it stands for a general proposition, the Appeal Tribunal is satisfied that the Common Boundaries Act applies in the manner found by the Original Tribunal and the contribution of 40% or 50% towards the cost of the fence shared with unit 59 was appropriate.

9. Regarding Alleged Error 2 on this ground, insofar as the appellant purports to challenge the actions of the Executive Committee of the respondent that were discussed by the Original Tribunal at [100], the Appeal Tribunal has concluded that no error has been established by the appellant in the Original Tribunal’s reasoning that the fence repair expenditure is consistent with the proper exercise of the Executive Committee’s functions and in particular its use of the sinking fund under section 35 of the UTM Act.

10. The appellants have not demonstrated an error of fact, law or discretion on this ground.

Conclusion

1. The appeal is dismissed.

   ………………………………..
   Acting Presidential Member Prof P Spender
   For and on behalf of the Tribunal

Date(s) of hearing:	4 and 5 October 2022
Applicants:	In person
Respondent:	Stephen Rowley, authorised representative

APPENDIX 1

Cross Reference Table

This table cross references the paragraph reference of the Original Decision with appellants’ submissions filed 6 June 2022 (Submission 1) and the numbering of the appeal grounds in this decision. The coverage of the ‘2020 issues’ in the Original Decision[214] are numbered as Appeal Grounds 12A-12D for ease of reference.

[214] Feng & Anor v The Owners – UP 840 [2022] ACAT 23 at [87] ff

Paragraph reference of Original Decision	Reference to appellants’ submissions filed 6 June 2022 (Submission 1)	Appeal Ground
10	6.1-6.2	General Alleged Error- Bias/ Procedural Unfairness 1
15	6.3-6.4	1
18-19	6.5	2
21-29	6.6	3
30	6.7-7.1	General, 2
35-38	7.2-7.3	4
41	7.4	4
41	7.5 – 8.1	4
41	8.2-8.3	4
41	8.4-9.3	4
41	9.3-10.1	4
42	10.2-10.4	4
43-47	10.5	5
48-58	10.6	Not pressed
50	11.1-11.2	6
59-63	11.3	7
64-65	11.4	8
66-68	11.5-12.1	9 and 10
69-73	12.2 – 12.3	Not pressed
74-82	12.4	11
88	12.5	12A
89	12.6	12B
90-92	12.7-13.1	12C
93-96	13.2	12D
97-101	13.3	12 and 12D
102-104	13.4-13.5	Not pressed

APPENDIX 2

Further Evidence Table

Ground of Appeal

Further evidence[215]

General Ground:

Bias/procedural unfairness

MFI 1 – Series of emails commencing 10 March 2017 at 12:02am and ending 14 March 2017 at 9:39am between Karen Feng and variously Jake Bolton and Sally Shaw of Independent Strata Management

Ground 1:

Ms Feng’s authority to communicate with the Owners Corporation/strata manager

MFI 2 – Email from Adam Feng to Independent Strata Management (copied to Karen Feng) sent 30 September 2017 at 7:42pm; email from Tilleah Roselli of Independent Strata Management to Adam Feng sent 4 October 2017 at 2:43pm; email from Adam Feng to Karen Feng sent 7 October 2017 at 8:56pm

Ground 2:

Changes to correspondence

MFI 3 – Email from Adam Feng to Independent Strata Management sent 4 August 2020 at 8:26pm; email from Georgina Newhouse of Independent Strata Management to Adam Feng sent 25 July 2019 at 11:37am; email from Adam Feng to Georgina Newhouse dated 25 July 2019 at 11:33am; email from Georgina Newhouse of Independent Strata Management to Adam Feng sent 25 July 2019 at 11:23am. All emails copied to Karen Feng.

MFI 4 – Email from Lucy Hastie from Howes (Kaye Halpin) to Independent Strata Management sent 20 April 2012 and attached letter of same date.

Ground 3:

Fence spending in 2013

MFI 15 – Email from Craig Welsh, General manager QIA Group Pty Ltd, to Adam Feng sent 7 April 2022 at 8:30am.

MFI 11 – Email from Karen Feng to Jake Bolton, Independent Strata Management, sent 9 January 2017

Ground 4:

Bullying and harassment (the camera issue)

MFI 5 – Series of emails between Karen Feng and Independent Strata Management between 7 July 2017 at 7:07am and 11 July 2017at 5:10pm.

MFI 13 – email from Karen Feng to Jake Bolton sent 2 February 2017 at 9:23pm.

Ground 5:

Spending on plumbing on unit 21

MFI 6 – Three plumbing diagrams filed by appellants located at pages 57-58 of Submission 3

Ground 11:

Request for executive committee details pursuant to section 117 UTM Act

MFI 8 – Two photographs of a bank of letter boxes, one brick the other metal.

MFI 12 – Screen shot of reimbursement to Joseph Ots dated 29 September 2020 for purchase of BC mailbox keys.

Ground 12:

Accuracy of minutes and financial records

MFI 7 – Income and expenditure statement of the owner's corporation general fund and income and expenditure statement of the owner's corporation sinking fund for period 1 May 2019 to 30 April 2020.

Ground 12D:

Unit 59 fence

MFI 14 – Copy of Units Plan 840, page 1

General issue:

Liability of Owners Corporation for actions of strata manager

MFI 9 – Strata management agreements between the owners of Units Plan 840 and Independent Strata Management Pty Ltd dated July 2016 and June 2019; and between owners of Units Plan 840 and Independent Body Corporate Services Pty Ltd dated July 2013

MFI 10 – Strata management agreement (unexecuted draft) between the owners of Unit plan 840 and Independent Body Corporate (Services) Pty Ltd dated May 2012. Adduced by the appellants in the original proceedings annexed to 2012 AGM notices for approval of the AGM (Exhibit A1 in the proceedings at first instance)

[215] All further evidence referred to below, unless otherwise indicated, was located in document titled 2022 Appeal Supporting Doco filed by the appellants on 6 June 2022.