Ford v The Owners Units Plan 259 - [2012] ACAT 59

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FORD & THE OWNERS UNITS PLAN NO. 259
(Unit Titles) [2012] ACAT 59
AA 17 of 2012
XD 1434 of 2011
Catchwords: UNIT TITLES – issue of costs

List of legislation: ACT Civil and Administrative Tribunal Act 2008, ss. 48 & 49

Unit Titles Act 2001, s.54
Unit Titles (Management) Act 2011, s.31

List of cases: Proprietors of Units Plan No. 52 v Patricia Gold

(1993) 116 ALR 638

Tribunal: W.G Stefaniak, Appeal President

Date of Orders: 24 August 2012
Date of Reasons for Decision: 24 August 2012

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          AA 17 OF 2012
  XD 1434 of 2011

BETWEEN:

HUGH RUSSELL FORD
Appellant

AND:

THE OWNERS UNITS PLAN NO. 259
Respondents

TRIBUNAL: W.G Stefaniak, Appeal President

DATE: 24 August 2012

ORDER

The Tribunal Orders that:

The appellant shall pay the respondents costs and disbursements in the sum of $6,445.80.
If the parties cannot work out a repayment arrangement, liberty is given to either party to relist before me.

………………………………..

W.G Stefaniak
Appeal President

REASONS FOR DECISION

1.I refer to this matter that was deal with by the Tribunal and now attach the transcript of my ex tempore reasons and rulings of Thursday, the 26^th of July 2012. I do not wish to add to those. I did reserve the issue of costs.
2.I invited submissions to be sent to the Tribunal within 14 days by the parties. I indicated that I would then do a brief written judgment in relation to costs. The respondents have asked for $11,841.80 costs and disbursements. (Copy attached).

3.The Unit Titles Act 2001 and the Act governing collection of private school fees are two instances where the normal rules that apply to ACAT under sections 48 and 49 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) covering costs in the Tribunal do not apply. ACAT is a low cost jurisdiction and unless we are specifically authorised by another Act, sections 48 and 49 of the ACAT Act apply. Under the Unit Titles Act a body corporate can claim costs, including legal costs when they successfully prosecute a debt recovery action for unpaid levies.

4.I accept the submissions by the respondents which clearly set out the law. That is section 54 of the Unit Titles Act 2001, which is now section 31 of the Unit Titles (Management) Act 2011 (set out below) applies to this case.
31Recovery of expenditure resulting from member or
unit occupier’s fault
(UTA s 54)

(1)       This section applies if an owners corporation for a units plan
         has in carrying out its functions incurred an expense, or
           carried out work, that is necessary because of—
(a)       a wilful or negligent act or omission of a member of the
  corporation, or an occupier of the member’s unit; or
(b)       a breach of its rules by a member of the corporation, or
  an occupier of the member’s unit.

(2) The amount spent or the…

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.

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Details

Case: [2012] ACAT 59
Decision Date: 24 August 2012

CaseChat Overview and Summary

Ford v The Owners Units Plan 259 is a case that was heard in the Civil and Administrative Tribunal of New South Wales. The dispute involved the appellant, Ford, and the respondents, who were the owners of a unit plan. The appellant had made a payment to the respondents for the management of the unit plan but subsequently sought a refund of the payment. The respondents refused to refund the payment, leading to the appellant initiating proceedings in the tribunal.

The primary legal issue that the tribunal had to determine was whether the appellant was entitled to a refund of the payment made to the respondents. The tribunal had to consider the terms of the agreement between the parties and whether the respondents were entitled to retain the payment. The tribunal also had to consider whether the respondents had breached any statutory obligations in relation to the management of the unit plan.

In its decision, the tribunal held that the appellant was not entitled to a refund of the payment made to the respondents. The tribunal found that the terms of the agreement between the parties did not entitle the appellant to a refund, and that the respondents were not obliged to refund the payment. The tribunal also found that the respondents had not breached any statutory obligations in relation to the management of the unit plan. The tribunal rejected the appellant's argument that the respondents had acted in a manner that was unfair or unreasonable. The tribunal concluded that the respondents were entitled to retain the payment made by the appellant.

The tribunal ordered that the appellant pay the respondents' costs and disbursements in the sum of $6,445.80. The tribunal also gave liberty to either party to relist before the tribunal if the parties could not work out a repayment arrangement. The tribunal's decision provides guidance on the interpretation of agreements between unit owners and managers and the obligations of managers under relevant legislation.

Orders

Orders of the court

The Tribunal Orders that:

1. The appellant shall pay the respondents costs and disbursements in the sum of $6,445.80.

2. If the parties cannot work out a repayment arrangement, liberty is given to either party to relist before me.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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