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:

The appellants’ application for leave to receive further evidence in the appeal is refused.
Leave is granted for the documents marked MFI 9 to be admitted into evidence in the appeal as Exhibit 1.
The appeal is dismissed.
………………………………..

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

REASONS FOR DECISION

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’…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Feng v Up 840 (Appeal)

Details

AGLC: Feng v Up 840 (Appeal) [2023] ACAT 8
Case: [2023] ACAT 8
Decision Date: 2 February 2023

CaseChat Overview and Summary

In the appeal case of Feng v Up 840, the appellants, Adam Feng and Karen Feng, sought to challenge the decision made by the Original Tribunal on 21 March 2022, which dismissed their applications in unit title and civil proceedings. The appeal was filed on 11 April 2022, and the appellants sought leave for the Appeal Tribunal to receive additional evidence, beyond what was presented at the first instance. This request was accompanied by submissions dated 6 June 2022, which outlined their grievances and the perceived errors in the Original Decision. The tribunal's appellate jurisdiction is governed by the ACT Civil and Administrative Tribunal Act 2008, which mandates that an appellant must demonstrate an error of fact, law, or discretion by the Original Tribunal that materially affected the outcome.

The appellants raised several grounds of appeal, each focusing on different alleged errors made by the Original Tribunal. Ground 1 concerned Ms Feng's authority to communicate with the Owners Corporation and the strata manager, with the appellants arguing that the Original Tribunal erred in finding that proper authorisation was necessary for Ms Feng to deal with these matters. Ground 2 addressed the issue of changes to correspondence, where the appellants claimed that the Original Tribunal failed to find that the strata manager had sent relevant documents to Mr Feng's personal email address instead of his nominated postal address. Ground 3 pertained to fence spending in 2013, where the appellants argued that the Original Tribunal erred in its findings regarding expenses incurred on a fence separating common property from individual units.

After reviewing the submissions and evidence presented, the tribunal found that the appellants had not established any material error of fact, law, or discretion by the Original Tribunal that would warrant a different outcome. The tribunal refused the appellants' application for leave to receive further evidence and dismissed the appeal. The tribunal granted leave for certain documents to be admitted into evidence in the appeal as Exhibit 1 but ultimately upheld the decision of the Original Tribunal.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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]) 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 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.