Gilmore v Owners Corporation PS341151A

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 01829

JACOB GILMORE	Plaintiff
v
OWNERS CORPORATION PS341151A	First Defendant
and
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL	Second Defendant

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2022
DATE OF JUDGMENT:	27 February 2023
CASE MAY BE CITED AS:	Gilmore v Owners Corporation PS341151A & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 82

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ADMINISTRATIVE LAW – Appeal of VCAT decision – Owners Corporation dispute – Renovation works by Lot owner – Breaches of OC rules – Consent required for aspects of renovation works – Raised ceiling and removal of internal wall – Laying of balcony tiles –Whether error in findings that OC rules breached – Whether error in ordering remedy – VCAT ordered Lot owner to remedy breaches by restoring condition of Lot – Application to rely on further evidence – Application to extend time – Little utility in extending time – Leave to appeal refused – Appeal dismissed – Shelfer v City of London Electric Lighting Co (1895) 1 Ch 287 – Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	N Evans	Aptum Legal
For the First Defendant	P R Best	Pelham Strata Lawyers
For the Second Defendant	No appearance	Not applicable

HER HONOUR:

Since 2017 Jacob Gilmore (Gilmore) has been the owner of a Toorak apartment (Lot 2) in a block with a common garden and pool area to the rear. On 1 April 2021, the Victorian Civil and Administrative Tribunal (the Tribunal) made orders resolving disputes between Gilmore and the Owners Corporation (the OC) under the Owners Corporation Act 2006 (the OC Act). One dispute was whether renovation work Gilmore undertook was done in accordance with the Owners Corporation Rules (OC rules). The Tribunal found that the OC rules had been breached and ordered rectification works.[1] Specifically, order 2 requires Gilmore to undertake work in his apartment including:

(a) Restore the ceiling to its original height so that it does not encroach on the common property;
…
(c)Restore the wall located between the kitchen and the formal dining/lounge area; and
(d)Remove the tiles installed on the balcony.

[1]Owners Corporations PS341151A v Gilmore (Owners Corporations) [2021] VCAT 394 (‘Reasons’).

Gilmore has appealed the Tribunal’s orders.

The VCAT dispute was originally about access to the common area of the rear garden and pool area for maintenance purposes and for the need to dispose of green waste. The only vehicle access from the street to the rear of the property was through one of the garages. For access purposes the garage at the left hand boundary of the property (Lot 14) was built without a rear wall so that with the street door open a vehicle could drive through and into the rear garden. The OC rules provided for this access arrangement. Gilmore had also purchased Lot 14. From October 2018 Gilmore and his wife had refused access to the rear of the premises through Lot 14. The OC sought injunctive relief to compel Gilmore to provide access. Gilmore counterclaimed seeking a declaration of invalidity of the rule. Ultimately the Tribunal declared that the relevant rule was void. No complaint is made in respect of that aspect of the Tribunal’s reasons (Reasons).

Along the way however, the OC expanded its points of claim by also seeking orders for rectification works in relation to renovations to Lot 2. The OC alleged that the renovations were done in breach of a number of obligations imposed on lot owners by the OC Rules.[2] The questions for the Tribunal were first, whether the renovations were in breach of the OC rules, and if so, what was the appropriate remedy?
[2]A dispute arising under the Owners Corporation Act 2006 (Vic) s 162(b).

The relevant OC rules relied on were set out in the Reasons at [59]:
A Member or occupier must not:…
3(n)do or permit anything which might cause structural damage to [address] including, without limitation, bringing any heavy article, appliance equipment or vehicle onto [address] without the consent of the Body Corporate;
3(o)do anything to damage or deface Common Property, however this rule does not prevent a Member from making minor alterations to the Common Property for the purpose of occupy, fitting out or refurbishing the Lot provided the approval of the Body Corporate is first obtained;
3(p)interfere with any personal property vested in the Body Corporate;
9Member must at the Member’s expenses promptly comply with all laws relating to the Lot including any requirements, notices and orders of a Governmental Agency.
25No structural alteration or external addition shall be made to any lot (including any alteration to gas, water or electrical installations and including the installation of any air-conditioning system or work for the purpose of enclosing, adding to or altering in any manner whatsoever the balcony or other external area of a lot) without the prior permission in writing of the Committee.
The OC alleged that the renovation works that Gilmore undertook included the following:

(a) removal of the wall that separated the living space and dining room from the kitchen, such that the structural integrity of common property was compromised (removal of wall);

(b) raising the ceiling in a substantial part of the enlarged kitchen and living space created by the removal of the wall (raising the ceiling);

(c) knocking a hole through a wall between his lot and another lot (lot 16) to install a sewer pipe within the wall cavity (sewer connection); and

(d) installing a layer of balcony tiles which had been laid on top of the existing layer of tiles (the balcony tiles).

Gilmore argued that there had been no breach of the OC rules as the work was not structural nor did it damage or interfere with common property. He argued that in any event he had obtained the OC’s consent. The Tribunal found all four works breached the OC rules. The Tribunal made the orders for rectification.[3] Gilmore does not challenge the order in respect of the sewer connection.
[3]Paragraph 2 being the order under challenge.

Procedural history

This proceeding has an unusual history. VCAT orders were made and accompanying Reasons given expeditiously on 1 April 2021 after a contested hearing on 15-17 and 19 February 2021. Gilmore deposed that he did not receive the decision until 30 April 2021, outside the 28 day limit for lodging an application for leave to appeal pursuant to s 148(2) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). As advised, Gilmore commenced a proceeding under Order 56, within the 60 day time limit. It is not entirely clear why an application for leave together with an application to extend time under s 148(5) were not instituted at the time proceedings were commenced. Curiously, the affidavit of Gilmore filed when the Order 56 proceeding was commenced[4] deposed to the late receipt of the decision and refers to acting promptly to seek review as if an explanation for the delay were required for the proceeding even though it was commenced within time. Gilmore had legal advice at the time, although he has changed solicitors subsequently.[5]
[4]Plaintiff, ‘Affidavit of Jacob Gilmore’ affirmed on 28 May 2021 in Gilmore v Owners Corporation PS341151A S ECI 2021 01829.
[5]The firm on the record for Gilmore in this proceeding was not the firm earlier advising him.

Gilmore’s present lawyers, who began acting in April 2022, foreshadowed an application to amend the originating motion. That application was referred for determination by the trial judge. The proposed amendments have three aspects:

(a) they seek in the alternative to bring an appeal pursuant to s 148 of the VCAT Act (the statutory appeal);

(b) they seek to amend the grounds to remove two of the four original grounds and modify the wording of the remaining two grounds; and

(c) they seek to add seven new grounds.

The proposed amendments, if granted, would also require Gilmore to obtain extensions of time. Extensions would be needed in both to seek leave to bring the statutory appeal and the to rely on the new grounds under Order 56. Gilmore indicated that if he is granted leave to extend time and bring the statutory appeal he will not press the Order 56 relief.[6]
[6]Transcript of Proceedings, Gilmore v Owners Corporation PS341151A & Anor (Supreme Court of Victoria) S ECI 2021 01829, Justice Forbes, 21 July 2022) 5 (‘T’).

An extension of time in accordance with s 148(5) of the VCAT Act does not stipulate matters to be considered when extending time but one consideration is generally whether there is an arguable case for the grant of leave if an extension is granted.[7] To a large extent therefore the question of an extension of time is interdependent with a decision as to whether Gilmore can meet the relevant test for leave to appeal. Section 148(2A) provides that leave may only be granted if the court is satisfied that the appeal has a real prospect of success. If Gilmore cannot show this, any extension of time would be pointless. If he can show a real prospect of success, then the question arises whether to extend time.
[7]Holt v Director of Housing [2021] VSC 270, [71] (Derham AsJ).

Gilmore also applies to rely on evidence that was not before the Tribunal. A building notice issued by Stonnington Council (the Council) dated 20 April 2020 was in evidence before the Tribunal (the building notice). Gilmore affirmed an affidavit dated 20 July 2022 setting out his dealings with the Council and the building surveyor who issued the building notice between May 2020 and July 2022, annexing relevant letters and emails. The OC opposes Gilmore’s application to rely on fresh evidence and objects to the admission of the affidavit.

Summary of conclusions

For the reasons that follow, I would allow amendments that include leave to bring an appeal pursuant to s 148 of the VCAT Act, rather than rely on a judicial review on an originating motion. The application to rely on further evidence does not meet the necessary characteristics of evidence that could have been advanced before the Tribunal even if relevant, and that application is refused.

The substantive amendments to the existing grounds and the addition of the proposed grounds of appeal, with one limited exception, have no real prospect of success. It would serve no purpose to extend time to make those amendments. One limited aspect of Ground 6 has some prospect of success, but it would nevertheless have no impact on the remedy ordered by the Tribunal. That remedy remains available based upon other breaches that were established. Where prospects of success are so slim, it would not be appropriate to appeal on the amended grounds as none of the grounds, confined as amended, have a real prospect of success.

The hearing before VCAT

At the hearing before the Tribunal the OC called five witnesses, of whom three were relevant to the issue of the renovation works:

(a) Lester Peters, the chair of the OC committee;

(b) Dale Fisher, a resident and the son of the architect who designed the apartments; and

(c) Phillip Gardiner, a structural engineer.

Gilmore did not give evidence. His wife gave evidence as did his son Roy and an opinion witness – a structural engineer named Mehran Orangi. The Tribunal conducted a view of the premises. The witnesses were cross-examined.

The findings of the Tribunal and its Reasons

The Tribunal found that relations were cordial between Gilmore, Roy and the OC committee during the relevant period.

Findings on breaches of the OC rules

On the issue of consent the Reasons were:

67The only evidence about the renovation works given on behalf of the lot owner was that of his wife, Ruth Gilmore, and his son. Roy Gilmore said that he had provided specific information to the committee about the renovation works. He gave evidence to the effect that, “I could not have been clearer. I told them exactly what we would change”. Mr Gilmore asserted that there were committee minutes recording that fact. No such minute had been discovered and when the owners corporation called for the minutes, none was produced.
68 Roy Gilmore appears to have been the lot owner's primary contact with the owners corporation. He appears to have down-played the scope of the renovations to the owners corporation and its committee. Thus, on 12 December 2016, he sent a text message to Dale Fisher referring to the renovations as, "a few changes to the interior". In early 2017 he told Lester Peters, the chair of the owners corporation's committee, that minor renovations of the property were planned before the unit was occupied.
69 The lot owners works began in July 2017. On 18 August 2017 the committee met, concerned about the noise, dust and waste material being removed from unit 2. Roy Gilmore was present at the meeting, but did not volunteer any information to the meeting about the scope of the works. The committee concluded that the works were not minor renovations and that it needed to see the plans for the works, to get a complete picture of what the works were. Roy Gilmore agreed to provide architectural and building works plans to the committee. In October 2017 Lester Peters reminded Roy Gilmore about the promised plans and Roy Gilmore again agreed to provide them. Neither he nor anybody else on the lot owner's behalf did provide such plans. In evidence, Roy Gilmore said the plans had not been provided, because none existed.
70 Other than Roy Gilmore’s evidence, there was no evidence to show that the owners corporation knew the nature of the works or consented to them. By contrast, clear evidence was given by Lester Peters and another committee member, Peter Blombury, that the owners corporation did not know that the lot owner’s works would be anything other than “minor” and “cosmetic”. That evidence, which I accept, was supported by text messages and minutes to which I have referred above.

71 I found Roy Gilmore to be an unsatisfactory witness:
·He gave evidence about the existence of a committee minute which supported his evidence, but when called to produce the minute, failed to do so;
·He was combinative [sic] and argumentative;
·He was unwilling to make concessions on obvious facts; and
·When questioned about a committee minute requiring his production of the lot owners plans, he said that that he had only told the committee that he would produce such plans if they were prepared, which evidence I found improbable.

72 Accordingly, in this matter I prefer the evidence of the owners corporation and I find that, while the owners corporation's committee may have passively acquiesced in the lot owner's carrying out "some minor", "cosmetic" work, the committee and the owners corporation did not consent to any particular works and was not asked for its consent, nor was it given any relevant information sufficient to allow it to give an informed consent to the works carried out by the lot owner.

Therefore the Tribunal was satisfied that the renovation works generally had not been undertaken with the necessary consent of the OC.

As to whether the various parts of the renovation satisfied the description of ‘structural’ or relevantly ‘encroached on common property’ and so required consent, the Tribunal dealt with each aspect in turn.

As to the change in ceiling height, the OC rules relating to both structural alterations and encroachment of common property were relied on. The Tribunal concluded:

80 It is plain and I find, that by raising the ceiling in question, the lot owner has indeed damaged common property (the ceiling) and also encroached on common property. I further find that by the encroachment, the lot owner has breached rules 3(n), 3(o) and 3(p).

The Tribunal found that the demolished wall was a ‘structural alteration’ and that its removal caused ‘structural damage’ which has the propensity to cause further damage in the future. The Tribunal said at [105]:

I therefore find that the demolished wall was structural. Its removal was a structural alteration, did cause structural damage and may in the future cause further structural damage, to the building. As such, the removal of the wall was a breach of rule 3(n), rule 3(o), and rule 3(p) of the owners corporation’s rules.
The removal of the wall left the roof, ceiling and garden façade without their designed support and exposed the building to the risk of significant failure. As I said above, when considering whether the removed wall had been structural, I take nothing from the fact that no failure has occurred to date.[8]

[8]Reasons (n 1) [153].

As to the balcony tiles, the Tribunal found that:

…the laying of the tiles on the balcony was something which might cause structural damage to the building and was therefore something which required the consent of the owners corporation. That consent was not given and, accordingly, the lot owner has acted in breach of rule 3 (n).
As I have found above, there is no evidence that the owners corporation had given formal or informal consent to any of the lot owners renovation works. Accordingly the tiling was carried out in breach of rule 25.[9]
…
In addition, the installation of the balcony tiles was [not] carried out without a necessary building permit and, therefore those works were done in breach of rule 9 of the owners’ corporation rules.[10]

[9]Ibid [118].

[10]Ibid [121] (I have assumed that the double negative in this paragraph is a typographical error).

The Tribunal also made a finding about the building notice. The building notice was issued generally in relation to the works done by Gilmore and required Gilmore to show cause as to why he should not restore or reinstate the property. The Tribunal found that:

107The lot owner did not deny that he failed to obtain a building permit for any of the renovation works and, accordingly, I find that in carrying out the renovation works, the lot owner was in breach of rule 9 of the owners corporation’s rules.[11]
[11]Ibid [107].

Findings as to remedy

Having found that Gilmore had breached the relevant OC Rules, the Tribunal turned to the question of remedy. The OC sought mandatory injunctions requiring Gilmore in effect to reverse each change. Relief was sought only against Gilmore not his wife who was also a party to the VCAT proceeding. The Tribunal recorded that it had the power to make the orders sought. It observed that, while Gilmore disputed the claims, he ‘did not make any submission about the appropriateness of the remedy sought in each instance’.[12]
[12]Reasons (n 1) [142].

The Tribunal outlined the principles to be applied in deciding whether to grant an injunction or award damages in the context of trespass to land and set out the ‘good working rule’ for when damages rather than an injunction is the appropriate remedy.

The ‘good working rule’ arises from the observations of Smith LJ in Shelfer v City of London Electric Lighting Co (‘Shelfer’),[13] which have consistently been followed:[14]
[13](1895) 1 Ch 287 at 322-323.
[14]Applied on many occasions including in Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311; [2007] VSCA 311, [49].

In my opinion it may be stated as a good working rule that:-
(1) If the injury to the plaintiff’s legal rights is small;
(2) And is one that is capable of being estimated in money;
(3)And is one which can adequately be compensated by a small money payment;

(4)And the case is one in which it would be oppressive to the defendant to grant the injunction:-

then damages in substitution for an injunction may be given.

As to the removal of the wall, the Tribunal accepted that the risk of failure was a significant risk. The risk was no less significant because signs of failure were not manifest to date. The structure now left the roof, ceiling and garden façade without their designed support and exposed the building to the risk of significant failure.’[15]
[15]Reasons (n 1) [153].

The Tribunal recorded that the cost and inconvenience to Gilmore if mandated to carry out the work by an injunction would ‘not be trifling’ but ‘would not be massive and the cost involved would not be excessive’.[16]
[16]Reasons (n 1) [158].

The Tribunal determined that injury to the rights of the owners corporation occasioned by the breaches was not capable of being estimated in money terms. The Tribunal described the work needed if the injunctive relief were to be granted as ‘not insignificant’ but ‘would not be unduly oppressive’.[17] The Tribunal therefore concluded:

164The lot owner’s renovation works have had a material and adverse impact on the owners corporation and on the lot owners in circumstances where it could easily have been avoided. I am of the clear view that it is fair to require the lot owner to restore the wall and the ceiling, reinstate the wall between lot 2 and lot 16, including removing the sewer pipe and also remove the tiles on the lot balcony.
[17]Reasons (n 1) [160].

The proposed grounds of review

The remaining original grounds and proposed new grounds (with proposed amendments underlined)[18] are:
[18]The Proposed Amended Originating Motion was exhibited to the Affidavit of Jacob Gilmore affirmed on 30 June 2022 at exhibit JG-10.

Ground 1 (Oppression)
When making an Order pursuant to section 165(1)~~(a)~~ of the Owners Corporations Act 2006 (Vic) (the OC Act), the Second Defendant made findings of fact regarding the oppressiveness of the proposed orders in a manner adverse to the Plaintiff without evidence to support such finding such that it was not reasonably open for the Tribunal to make such findings and/or it was legally unreasonable for the Tribunal to do so, or alternatively, by so doing the Tribunal erred in failing to afford to the Plaintiff a fair hearing.
Ground 2 (Conduct of the OC)
When making Order 2 pursuant to section 165(1)~~(a)~~ of the OC Act, the Tribunal failed to take into account the conduct of the First Defendant, ~~in breach of its duty~~ and in doing so failed to take into account a mandatory consideration under section 167(1)(d) of the OC Act.
Ground 2A (Building Notice)
When making an Order pursuant to section 165(1)~~(a)~~ of the OC Act, the Tribunal failed to take into account that the Stonnington City Council had issued a Building Notice pursuant to section 107 of the Building Act 1993 (Vic) (the Building Act) in relation to the subject matter of the proceeding and as a result the Tribunal failed to take into account a relevant consideration, or alternatively it was legally unreasonable for the Tribunal to make the orders that it did in the circumstances.
Ground 2B (consent to works)
In finding that the First Defendant did not consent and/or acquiesce to the works the subject of the dispute, the Tribunal failed to consider the minutes of the meeting of the Committee of the First Defendant dated 18 August 2017 (Committee Meeting Minutes), or alternatively by reason of those minutes it was not open to the Tribunal and/or legally unreasonable for the Tribunal to find that the First Defendant did not consent and/or acquiesce to the works the subject of the dispute.
Ground 2C (OC Committee Minute)
It was not open to the Tribunal and/or it was legally unreasonable for the Tribunal to find that Roy Gilmore was an unsatisfactory witness on the basis that he gave evidence about the existence of a committee minute but when called to produce the minute failed to do so.
Ground 3 (raising the ceiling)
In finding that the Plaintiff failed to comply with the Owners Corporation Rules 3(n), ~~and~~ 3 (o) and 3 (p) with respect to the Plaintiff raising his Lot ceiling, the Tribunal ignored or misconstrued critical facts, being terms of those rules, the nature of the ceiling works ~~and the First Defendant’s committee’s prior acquiescence to such works~~, such that there was no basis for it to make that finding.
Ground 4 (restoring the raised ceiling)
When making Order 2(a) pursuant to section 165(1)~~(a)~~ of the OC Act to require the Plaintiff to restore the ceiling to its original height, the Tribunal failed to consider whether it was possible for the Plaintiff to identify the original height of the ceiling so as to be able to comply with the order and, as a result, the Tribunal failed to take into account a relevant consideration or alternatively it was legally unreasonable for the Tribunal to make Order 2(a).
Ground 5 (removal of the internal wall)
In making Order 2(c), the Tribunal failed to take into account or misconstrued the evidence of the First Defendant’s structural engineer to the effect that the structure of the ceiling was strong enough to withstand the removal of the wall and, as a result, it was legally unreasonable for the Tribunal to make Order 2(c).
Ground 6 (balcony tiles)
In finding that the Plaintiff failed to comply with the Owners Corporation Rules rule 9, the Tribunal made findings of fact without evidence to support such findings such that it was not reasonably open for the Tribunal to make such findings and/or it was legally unreasonable for the Tribunal to do so.

Particulars have been provided for all grounds.

Four grounds allege error in the findings identifying breach of the OC rules[19] and five grounds identify error going to the remedy ordered by the Tribunal.[20]
[19]Grounds 2B, 2C, 3 and 6.
[20]Grounds 1, 2, 2A, 4 and 5.

Proposed further evidence

Gilmore seeks to rely on further evidence not before the Tribunal relevant to the circumstances surrounding the building notice. The further evidence relates specifically to proposed Ground 2A. While the building notice itself was before the Tribunal, the additional evidence addressed interactions between Gilmore and the Council leading up to events in June 2022 and anticipated events that might occur after the hearing of the appeal going to the resolution of the building notice.[21]
[21]The proposed evidence included: (a) correspondence from the owners corporation to the council’s building surveyor dated 6 December 2019 predating the VCAT hearing commencing on 15 February 2021 but which was not discovered in the VCAT proceeding by the owners corporation and came to light during Gilmore’s inspection of Stonnington Council’s records on 11 May 2022. The letter identified the OC position with regard to the renovations consistent with that presented during the VCAT hearing; (b) events subsequent to the hearing and orders of VCAT as to steps taken by Gilmore and the Council with regard to the building notice, including additional evidence provided to Council of steps taken by Gilmore to address particular aspects of Council’s concerns; and (c) notification by email on 19 July 2022 by Council that a cancellation of the building notice would occur once the balcony balustrade height was corrected.

An application to vacate this trial in order to allow for the Council’s determination of the building notice was denied by Judicial Registrar Keith on 8 June 2022. Keith JR refused the application on the basis that the issues raised by Gilmore in respect of the building notice do not sufficiently concern or resolve the issues that were dealt with by the Tribunal.[22]
[22]Order of Keith JR Gilmore v Owners Corporation PS341151A & Anor (Supreme Court of Victoria, S ECI 01829 , 8 June 2022) Other Matters [G].

Gilmore accepts the general position that this Court will not ordinarily consider evidence that was not before the Tribunal.

The relevant test for whether to admit further evidence is:

·By the exercise of reasonable diligence such evidence could not have been discovered in time to be used in the original trial.
·It is reasonably clear that if the evidence had been available at trial, and had been adduced, an opposite result would have been produced.
·The evidence proposed to be adduced is reasonably credible.[23]

[23]Clark v Stingel [2007] VSCA 292 [25] (Warren CJ, Chernov, Kellam JJA) quoting Orr v Holmes (1948) 76 CLR 632; Wollongong Corporation v Cowan (1955) 93 CLR 435.

Where the appeal is on a question of law the evidence must, if admitted, have a tendency to demonstrate an error of law. New evidence that goes to the factual merits of a claim would not ordinarily be admissible.[24]
[24]The OC cited Rana v Repatriation Commission (2011) 126 ALD 1; [2011] FCAFC 124.

Gilmore wished to rely on fresh evidence of subsequent events as to dealings with the Council regarding the building notice. This was said to be relevant to the question of oppressiveness of the Tribunal’s rectification orders, to the OC’s conduct in continuing to press for maintenance of those orders, and to the question of materiality. Gilmore submitted that it was not relied on for the purpose of challenging factual findings.[25] Gilmore also submitted that the correspondence with the Council prior to the issue of the building notice was also fresh evidence needed to address the OC’s submissions made to this Court which were said to be incorrect and misleading.[26]
[25]Plaintiff, ‘Plaintiff’s written submissions on the affidavit of Jacob Gilmore dated 20 July 2022’, Submission in Gilmore v Owners Corporation PS341151A & Anor, S ECI 2021 01829 20 July 2022, [22].
[26]Ibid [3].

The OC contended that the building notice was of no real relevance to the issues in dispute. The issue was not whether the Building Act1993 had been complied with, but whether the OC rules had been breached. The further evidence was material that could have been made available at the VCAT hearing. It did not meet the test for admission as fresh evidence. If it had been relied on, at best it might have resulted in competing expert opinions as to the effect of the renovations on the building structure. It would remain a matter for the Tribunal to determine. I will return to the matter of the further evidence when I consider proposed Ground 2A.

Applicable principles

The grounds of appeal identify as errors of law that the decision a) failed to take account of mandatory considerations and b) was legally unreasonable either because there was no evidence upon which the particular conclusion could be reached or otherwise.

A failure to take account of a relevant consideration may cause a power to be exercised in a manner that produces a legal error.[27] In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[28] Mason J said:

The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action… Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:

[27]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

[28]Ibid.

In summary, those propositions are:

(a) The consideration is one which a decision-maker is bound to take into account.

(b) Mandatory considerations are determined by construing the statute conferring the discretion. The statute may expressly provide that considerations are exhaustive or inclusive, mandatory or discretionary. Otherwise the matters are to be determined by implication from the subject matter, scope and purpose of the Act.

(c) Not every consideration that a decision-maker is bound to take into account but fails to do so will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. It will only apply to considerations that could have materially affected the decision.

(d) It is not the function of the court to substitute its own decision by exercising a discretion which the legislature has vested in the administrator. It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.[29]

[29]Ibid 39-42.

When conducting a fact-finding exercise, a Tribunal will make an error of law where there is no evidence in support of such a finding. A finding might be drawn from direct evidence or by way of inference from a fact or other facts proved.[30] Distinguishing between a finding of fact that might be considered unreasonable from one drawn from facts that are not open on the evidence, Gilmore relied on a passage from Phillips JA in S v Crimes Compensation Tribunal:

The word ‘reasonably’ is used in this context, I suggest, just to emphasise that, when judging what was open and what was not open below, we are speaking of rational tribunals acting according to law, not irrational ones acting arbitrarily. The danger of using the word ‘reasonably’ lies in it being taken to suggest that a finding of fact may be overturned, on an appeal which is limited to a question of law, simply because that finding is regarded as ‘unreasonable’. That is not the law as I understand it, at least in Australia. A finding of fact will be overturned on an appeal on a question of law only if that finding was not open.[31]

[30]S v Crimes Compensation Commission [1998] 1 VR 83, 89-90.

[31][1981] 1 VR 83, 90.

Associated with this ground of no evidence is the concept of a decision that is legally unreasonable, so as to give rise to an error of law. In Minister for Immigration and Border Protection v SZVFW (‘SZVFW’),[32] Nettle and Gordon JJ described this ground of review as:

The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power.
How that abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. The abuse of statutory power is not limited to a decision affected by specific errors which bring about an improper exercise of power, for example the decision maker… failed to take account of a relevant consideration…
Nor is the abuse of statutory power limited to a decision which may be described as “manifestly unreasonable”, or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused – where, for instance, there is no “evidence and intelligible justification” for the decision. As Gageler J explained in Minister for Immigration & Citizenship v Li, “[r]eview by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’”.[33]

[32](2018) 264 CLR 541.

[33]Ibid [82] (citations omitted).

The focus of an inquiry into legal unreasonableness in light of SZVFW is on ‘justification, transparency and intelligibility’. It may extend beyond the question of whether there was any evidence to support the conclusion, in order to consider the process of reasoning. It will not extend to outcomes within the range of possible outcomes with a foundation in fact and law. As a ground of review it has been described as having ‘stringent’ requirements.[34] It does not open a door to merit review of decisions about which there may well be different conclusions open.
[34]Sidiqi v Kotsios [2021] VSCA 187, [59]; citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Errors going to breach (Grounds 2B, 2C, 3 and 6)

The errors of law going to breach of the OC rules raise a lack of consent by the OC Committee. Gilmore alleges that the findings of lack of consent were not open to the Tribunal (in that there was no evidence for the finding or that they were legally unreasonable), or that a relevant consideration, namely the contemporaneous minutes of the 18 August 2017 meeting that were in evidence, were not taken into account.

Relatedly, Gilmore submits that it was not open to the Tribunal, or legally unreasonable for the Tribunal, to find that Roy was an unsatisfactory witness. Gilmore submits that the consequence of that finding was that the Tribunal impermissibly preferred the evidence, particularly that of Lester Peters and Peter Blombery – the other members of the OC Committee – on the question of consent.

Both proposed Grounds 2B and 2C attack consent for the renovation works generally, rather than any specific aspect of them. In my view neither ground has a real prospect of success.

Ground 2B was premised on two bases: as the Reasons did not address the minute dated 18 August 2017, and as the Tribunal’s findings of lack of consent are ‘plainly inconsistent’[35] with the content of the minute, the Tribunal either failed to have regard to the document and thereby a relevant consideration, or if regard was had to the document, it was not open for the Tribunal to reach the conclusion that it did.
[35]Plaintiff, ‘Plaintiff’s Written Submissions’, Submission in Gilmore v Owners Corporation PS341151A & Anor, S ECI 2021 01829, 23 June 2022, [86].

Addressing the question of consent, the Tribunal referred to the following matters in Reasons:

(a) that Roy was a member of the OC Committee at the relevant time;

(b) that Roy was the primary contact between the Lot owner and the OC;

(c) that the Lot owner’s renovation works commenced in July 2017; and

(d) specific reference was made to the meeting of the 18 August 2017, the presence of Roy at that meeting, and to matters reflected in the content of the minutes.

The minute itself recorded:

Renovation of TH 2. Given the major scope of current renovations, it was agreed that copies of the architectural and building work plans should be retained by the OC to ensure that an accurate map of the building structure and routing of utilities and plumbing is maintained. The penetration through the northern wall of the gate of TH 1 which accidentally occurred during the renovation work will be repaired.

As there was a specific mention of the minute in the Reasons at [71] dealing with the questioning of Roy as to its content, it could not be said that the Tribunal overlooked the document. The Reasons discussed in detail the discussions on 18 August 2017 and at other times in some detail. I reject the submission that the Reasons do not address the minute specifically and that the Tribunal failed to have regard to its content.

Second, I do not accept that the minute was inconsistent with the Tribunal’s finding and therefore that the Tribunal was obliged to explain an inconsistency. Gilmore relied on an interpretation that the Committee knew and consented to renovation works because:

(a) implicit in a request for plans to ensure an accurate map of the building structure was an understanding and acceptance that the works were structural in nature; and

(b) it recorded a concern that works were ‘major in scope’ and so had a detailed knowledge of the nature of the works, consistent with Roy’s evidence.

The submission ignores the two vital factors. One, as the Reasons recognised, any consent required information. Two, Roy’s own evidence was that he did not at any time believe that the works were structural or required consent. In the face of Roy’s evidence that he regarded the renovation work as cosmetic and not structural, an interpretation that the OC committee was told the nature of the proposed renovations and thereby consented to any structural work seems unlikely. However, even if such an unlikely interpretation was open to the Tribunal, it is a long way from establishing that it was the only interpretation open.

There was a contest on the evidence as to that particular committee meeting. The minute could inform the question of consent addressed by the meeting, but was not determinative of the question. The Tribunal’s finding on consent was informed by the recollections of discussions and the assessment of the viva voce evidence of all three persons present at the meeting – Lester Peters, Peter Blombery and Roy Gilmore – as well as the minute itself. On its face the minute sought plans for the purpose of being informed as to the nature of the works and any structural changes arising. Roy admitted that he never informed the Committee that he planned to demolish the wall as part of the renovation.[36] No plan confirming this work was provided.
[36]VCAT T 290.2-7; 292.7-12.

The submission that the minute was ‘the most reliable evidence’[37] was no more than a submission attributing weight to one piece of evidence – something clearly within the responsibility of the Tribunal as fact-finder. The finding of an absence of consent was clearly open and explained by the evidence identified in support of that conclusion.
[37]Plaintiff, Written Submissions, 23 June 2022, [87].

Ground 2C challenges the finding that Roy Gilmore was an unsatisfactory witness as a finding that was neither open nor reasonable. The basis for the submission was that the ‘substantial’ if not sole reason for this conclusion was Roy’s failure to answer the call for production of OC Committee minutes. Roy had referred to the existence of minutes (other than that of 18 August 2017) as corroborating his claim to have told the Committee the nature of the renovation works. Those meetings were said to be in ‘early to mid-2017’[38] where they ‘were informed of it and they consented to it’.
[38]Transcript of Proceedings, Owners Corporations PS341151A v Jacob Gilmore (Victorian Civil and Administrative Tribunal, OC222 201, Member R Buchanan, 15 February 2021) 280.19 (‘VCAT T’).

The OC submits that assessment of credibility of witnesses is a matter for the fact-finder and an appeal on a question of law will rarely interfere with such assessments. The submission relied on Abalos v Australian Postal Commission (Abalos), where McHugh J said:[39]

…when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked….There is simply no basis for concluding that, in so far as her Honour preferred the evidence and demonstrations of Mrs Archer to the evidence of Professor Ferguson, she failed to use or palpably misused the advantage which she had of seeing and hearing the witnesses.[40]

[39] (1990) 171 CLR 176.

[40]Ibid [31].

In Fox v Percy,[41] the High Court described Abalos as one of a trilogy of cases that reminded judges of the limits under which appellate judges operate compared with trial judges. Respect for the advantages of trial judges in observing witnesses is tempered by the limitations of demeanour in distinguishing truth from falsehood such that a consideration of established facts, contemporaneous materials and the ‘apparent logic of events’ are also important considerations.[42]
[41](2003) 214 CLR 118.
[42]Ibid [129].

I accept the further submission that this ground is wrongly premised on the rejection being substantially based on the failure to answer the call for production of earlier minutes. In fact, the Tribunal identified four reasons:

· Roy was combinative [sic: combative] and argumentative;

· Roy was unwilling to make concessions on obvious facts;

· Roy gave evidence of the existence of a committee minute but failed to produce it; and

· when questioned about the minute noting he would provide plans, he said he had only told the Committee that he would produce such plans if they were prepared (evidence the Tribunal found to be improbable).

Those four matters demonstrate that the Tribunal did not have any or substantial regard to Roy’s demeanour to the exclusion of factual matters, nor that it drew an impermissible conclusion about the accuracy or reliability of his evidence only from his failure to produce documents. It is not to the point that the minutes are OC documents or that Roy who was no longer on the OC Committee and not being a resident of the building would no longer have access to them. The OC had discovered the August 2017 meeting minutes as relevant. Having undertaken discovery it was for Gilmore to challenge any insufficiency in discovery and ensure that, if there were other minutes relevant to the issue of consent that he was aware of through Roy’s participation on the Committee, they were produced through discovery. There was no mention of discussions at earlier OC Committee meeting minutes in Roy’s witness statements. The evidence arose only in cross-examination. There was no error in the Tribunal relying on the failure to point to corroborative documentary evidence as one of a number of reasons for rejecting Roy’s evidence on the question of what had been told to the OC Committee.

There is no real prospect that a conclusion of legal error will be found as to the Tribunal’s assessment of Roy Gilmore’s evidence.

The remaining grounds going to breach are confined to findings as to raising the ceiling and the laying of the balcony tiles.

Gilmore faces an uphill battle establishing error in the finding that the change in ceiling height breached the OC Rules (Ground 3) in light of the admission in the defence that the ceiling had been raised.

The Tribunal relied upon its own observations at the view describing the raised ceiling as ‘obvious’. Evidence from the original architect Mr Fisher was that the ceiling had been raised by approximately 200mm. The Tribunal finding at [80] set out above was supported by the following reasoning:

Raising the ceiling would necessarily mean alteration of wires, pipes, ducts and insulation within the ceiling all of which is common property. Some of those wires pipes ducts and insulation were for the benefit of Unit 2, and some were also of the benefit of Unit 1, part of which is above Unit 2, and for some other parts of the Building.
By raising the ceiling height, the ceiling of unit 2 and all of the new electrical works and light fittings are in common property.[43]

[43]Reasons (n 1) [147].

Gilmore submitted that the OC did not claim for breach based upon encroachment. Gilmore submitted further that a breach of rule 3(n) or 3(o) would have required a finding that raising the ceiling was something that might cause structural damage or damage. He submitted that there was no evidence upon which a finding of damage could be made. The boundary between the individual lot and the common property was the ceiling; and with the upper limit of the lot in the interior surface of the ceiling, the exterior surface was common property. Removing and replacing the ceiling height clearly impacts on common property.

The OC points to the Amended Points of Claim which made a claim based upon both encroachment and damage, stating that in breach of OC rules 3 (n), (o), and (p), [Gilmore] ‘raised the ceiling of Lot 2 and encroached the common property between levels 2 and 3’.[44]
[44]Plaintiff, Amended Points of Claim, 8 August 2019, 24(3).

Gilmore submits that the raising of the ceiling height has not caused or could not cause structural damage and therefore the conclusion has no evidentiary basis and was not open. The Tribunal accepted Mr Fisher’s evidence that raising the ceiling would necessarily have altered the wires, pipes, ducts and installations in the ceiling cavity, all of which are common property for the benefit of Lot 2, as well as Lot 1, as they traversed to other parts of the building. The common areas between ceilings and floors was a particular width as recorded in the building permit.

The Tribunal found that the width had been reduced by 200mm such that the common area above the altered ceiling no longer complied with the building permit. The Tribunal also observed that raising the ceiling meant that some ties and straps that secured the purlins (and some purlins themselves) had been removed and could no longer be anchored to the wall and ceiling and precluded the wall from fulfilling a function upholding the ceiling. Although this was mostly discussed in the context of removing the internal wall, the Reasons clearly contemplate that reducing the bracing function of the purlins by both raising the ceiling and removing the wall gave rise to a risk of structural damage. A finding based upon a breach of rule 3(n) and 3(o) was open.

The raised ceiling was also said to fall within the carve out provision of rule 3(o) in that it was a minor alteration undertaken with the approval of the body corporate. Gilmore submitted that as the Tribunal found that the OC may have consented to ‘minor’ and ‘cosmetic’ alterations,[45] then the only reasonable conclusion open was that the carve out in rule 3(o) was met and there was no such breach.[46]
[45]Reasons (n 1) [72].
[46]Plaintiff, Written Submissions, 23 June 2022, [105].

The findings of the Tribunal mentioned above at [70] would exclude the characterisation of the work as ‘minor’, notwithstanding Roy’s description of it as cosmetic. However described, the work to raise the ceiling did not obtain the prior approval of the body corporate in accordance with the OC rules for the reasons explained under Ground 2B so as to avail Gilmore of the carve out provision.

Finally, Gilmore submits that there was no evidence to support a finding of breach in relation to rule 3(p) as there was no interference with personal property vested in the body corporate. He submitted that the ceiling was a fixture and not personal property. I accept that there is no description of personal property that might be relevant for a breach of rule 3(p) and so Gilmore has some prospect of success on the ground relating to breach of that particular rule.

However, given there is no error in the findings of breach regarding the ceiling in relation to rule 3(n) and 3(o), the utility of granting any relief on the basis of breach of rule 3(p) alone is questionable. While an amendment to Ground 3 to add reliance on rule 3(p) would have some prospect of success, the finding of breach in Ground 3 would otherwise remain on the basis of rules 3(n) and (o). This would work against the discretion to extend time.

Ground 6 challenges breach in relation to the balcony tiles. The Tribunal found that this work was carried out in breach of rules 3(n) and 3(o), 9 and 25. Ground 6 only challenges the finding under rule 9. Gilmore rightly accepts that to overturn the Tribunal’s order in respect of breach in relation to the balcony tiles, it would need to also establish the consent ground relating to the other rules. There was, Gilmore submitted, no evidence as to whether a building permit was required for the tiling work, and so no evidence for the conclusion that the work was done in breach of rule 9. While it was clearly open, on Gilmore’s own admission, to find that he had not obtained a building permit for that (or any other) work, there was no evidence that one was required for the tiling work. There was therefore no evidence and so it was not open to the Tribunal to conclude that there had been a breach of rule 9. I accept that this is the case.

However, as Gilmore has not established that the balcony tiling was done with the necessary consent of the OC, the finding of breach remains.

Apart from the breach of rule 9 relating to the balcony tiles, none of the proposed grounds going to error as to breach have any real prospect of success.

Grounds dealing with remedy (grounds 1, 2A, 4 and 5)

The grounds dealing with remedy were the focus of the oral submissions and were prioritised in the written submissions. I have dealt with breach first (rather than following the order in which the grounds were addressed by the parties) because the grounds going to remedy are at least in part informed by the nature and scope of the breach or breaches that are to be addressed.

The Tribunal has broad power to make orders in determining owners corporation disputes.[47] It may make any order it considers fair including orders requiring a party to do something or refrain from doing something, or orders for the payment of money in satisfaction of amounts owing, damages or restitution.
[47]Owners Corporation Act 2006 (Vic) s 165.

Before the Tribunal the OC sought rectification in the terms identified in the final default notice of breach dated 3 July 2019, which required among other things that Gilmore restore the internal wall, restore the ceiling to its original height and remove the tiles installed on the balcony. In final submissions, the OC addressed the availability of reinstatement as a remedy both for encroachment on common property relevant to the ceiling and for the risk of damage posed by the works. Gilmore’s submissions focused on the dispute as to breach. On remedy the submissions focused on the fact that the building notice was extant and proposed that a fair disposition of the proceeding should await the outcome of the show cause process.

The building notice was relevant to the question of compliance with regulatory matters as raised by rule 9 of the OC rules. The building notice itself was in evidence although it did not provide any information as to the aspects of the renovation works that were said to be non-compliant. Its relevance to breach was therefore limited. But Gilmore relied on its relevance as to remedy. In that respect the emphasis and reliance were not on the building notice itself, but on what the Council might eventually do regarding the building notice. This was the basis of the submission that any remedy ordered by the Tribunal ought wait, and be informed by the Council outcome.

Further evidence

The Council’s outcome was dependent upon the evidence it was presented in response to the requirement to show cause. In that respect Gilmore put evidence before the Council, including structural calculations in support of his argument that no remedial work was required. It is the evidence submitted to the Council that would be the key to understanding the outcome of the building notice and the material that informed the Council’s decision. There is no suggestion that the evidence submitted to the Council after the Tribunal hearing could not have been obtained and submitted to the Tribunal at the hearing.

Gilmore also submitted that it was necessary to lead further evidence to contradict matters in submissions made in this appeal by the OC. Those submissions were said to be erroneous as to the subject matter of the building notice (which was not apparent from the document itself), and information given by the Council to the OC subsequent to the hearing about the subject matter of the building notice. Given that those submissions were not based upon any evidence before the Tribunal, and so no regard could be had to them, there was no basis to admit evidence answering the submission. This submission was misconceived.

Finally Gilmore sought to rely on the OC letter to the Council before the Tribunal proceeding was commenced. While Gilmore had not known of the earlier letter to the Council written by the OC, it could not be said that the letter would have produced a different result. Having reviewed the letter, it simply repeats the OC’s assertions as to the structural nature of renovation works. At best it identifies a concern of OC prior to the dispute being raised before the Tribunal. It would take the factual dispute no further than the positions taken before the Tribunal. The application to rely on further evidence is refused.

Ground 1 (oppression), Ground 2 (conduct of OC) and Ground 2A (building notice)

These ground overlap and I will deal with them together. In making an order that the Tribunal considers fair, it must have regard to the factors set out in ss 167(1)(a)-(e) of the OC Act, the last being any other matter the Tribunal considers relevant. Subsection (1)(b) requires consideration of the acts or omissions of a party and s (1)(d) requires consideration whether ‘a resolution or proposed resolution is oppressive to, unfairly prejudicial to or unfairly discriminates against, a lot owner or lot owners’. Gilmore submits that the Tribunal did not properly address either mandatory consideration.

In relation to s 167(1)(d), Gilmore submits there was a finding that reinstatement would not be oppressive, that this was adverse to him when there was no evidence to support the finding and he lacked an opportunity to address the issue.

Where a plaintiff suffers injury from a trespass to their property, ‘an injunction is the prima facie remedy… and the alternative remedy of damages will be ordered exceptionally’.[48] Nor is oppression in this context to be equated with a balance of convenience between parties.[49]
[48]Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311; [2007] VSCA 311, [135].
[49]Ibid.

In considering oppression to one party, as is mandatory under s 167, it was not suggested that the good working rule in Shelfer should not be applied, nor that oppression as it was explained in Break Fast Investments v PCH Melbourne Pty Ltd[50] was not applicable.
[50]20 VR 311.

While there was no evidence as to cost of rectification, there was evidence about the nature of the work done and which would need to be undone. This included Roy’s experience engaging builders and sub-contractors, his own estimate of the works in total taking ‘a couple of months’[51] if concentrated in time over the six month period, and his characterisation of the works as not substantial.[52] That evidence goes to the evaluative judgment of whether the rectification work would be oppressive. The Tribunal was not ordering a restoration of all of the works, noting that the renovation work included a refurbishment of kitchen and bathroom which themselves were not the subject of dispute. In assessing the work that might be required, the Tribunal was entitled to and did look at the work that had been done.
[51]VCAT T 274.16.
[52]Ibid 279.

Further, in making the submission that the Tribunal should defer any orders until such time as the building notice issue with the Council was resolved, Gilmore did not suggest that if the building notice did require rectification that he would be bound to undertake, there would be any difficulty in doing so. Again, an inference was open that if ordered to do so, Gilmore was in a position to undertake the necessary work.

While the consideration of any oppression arising is mandatory, where there is an absence of evidence of oppression, it would clearly be open to a Tribunal to consider but discount this factor in arriving at an order that is fair. It was incumbent upon Gilmore, if he sought to rely on the oppressive nature of the order sought by the OC, to lead evidence to that effect. It was clear from the Points of Claim and OC’s opening and closing submissions what remedy was being sought. Gilmore did not identify any evidence that would permit a finding that a rectification order would not be fair. He was not denied an opportunity to address the question, nor was he preventing from submitting that damages were an appropriate remedy. He simply addressed the Tribunal on the basis that any remedial orders be deferred.

The building notice was a relevant consideration the Tribunal was bound to consider. It was relevant because breach of rule 9 was pleaded. Gilmore also submitted that it was relevant to the question of remedy, submitting that the Tribunal should await the outcome of that process because a building order by the Council might conflict with any order of the Tribunal, or might require remedial work that did not amount to rectification as sought by the OC, or open to find that no works were required based upon the eventual determination of Council. It had no relevance beyond the need for permits for some undefined aspects of the renovation work.

The additional evidence contained in the proposed affidavit and some of the supporting documentation disclosed subsequent negotiations with the Council. I am not satisfied that those negotiations are relevant to the construction of the OC rules, or to whether as a matter of fact those rules were breached. Some of the additional information comprises documents from expert engineers and others submitted in support of those negotiations. That documentation goes clearly to the merit of whether the renovation works were structural and whether the changes posed any risk of damage.

The documents submitted included structural engineering reports and calculations. While those reports post-dated the hearing, there was no explanation as to why such evidence could not have been obtained prior to the hearing. Gilmore made a forensic decision to rely on the expert evidence of Mr Orangi alone. To the extent that the withdrawal of the notice was subject to rectification of balustrade heights, those matters were of no relevance to the Tribunal dispute or the orders made.

The ground relating to the building notice is based upon the premise that the issues before the Tribunal are subsumed within the building notice. That is not so, other than reliance on rule 9. Principally the dispute was one between an individual lot owner and the OC. While Roy called it a ‘vexatious counterclaim’ on the part of the OC, the claim was founded on the lack of consent for works as required by the OC rules. The dispute was largely whether or not particular aspects of those works were structural or encroached on common property. Neither of those disputes necessarily raised issues for the Council, nor would they be resolved by whether or not a building permit was required by the Council. The outcome had very little to do with the Council’s deliberations.

By the time of the hearing in February 2021, there was no evidence that the matter had progressed and little if anything to support the submission that final orders should await the Council’s process. Insofar as the decision of the Council in respect of the building notice was relevant to the remedy, as at February 2021 it was a purely speculative matter that lacked any timeframe or detail relevant to the specific rectifications sought by the OC.

I reject the submission that the Tribunal failed to have regard to the building notice (insofar as it was relevant to the question of remedy). I also reject the submission that it was legally unreasonable for the Tribunal to make the rectification orders that it did. The Tribunal was entitled to make rectification orders as a remedy on the evidence before it. The fact that the Council had some time before the hearing issued a building notice that remained extant did not make the orders unreasonable.

The third related ground, Ground 2, contends that the Tribunal was obliged to take account of the mandatory consideration in s 167(1)(b) of the OC Act (the conduct of the OC) and it failed to do so when considering its orders. Gilmore submitted that, while the Tribunal considered the conduct of the lot owner,[53] it failed to consider the conduct of the OC, specifically:
[53]Reasons (n 1) [161], [162].

(a) that the finding that the OC may have ‘passively acquiesced’ to minor and cosmetic works;

(b) that the OC did not commence proceedings until August 2019 despite being concerned about the nature of the renovation works since August 2017; and

(c) that the claim in the Tribunal was not commenced until after the failure of an application for an interim injunction on the access to the rear garden and pool area was unsuccessful.

The OC’s delay was a relevant factor to weigh regarding the oppressiveness of any order for rectification and was submitted to be a cause for ‘circumspection’, or perhaps reticence in accepting evidence as to the impact of the renovations. Had this conduct been considered, then orders, at least on what is described in the submissions as cosmetic items such as the ceiling,[54] been more limited.
[54]Plaintiff, Written Submissions, 23 June 2022, [58].

During the hearing in this proceeding, Gilmore advanced the suggestion that the Tribunal ought to have turned its mind to whether the remedies sought by the OC at VCAT were ‘retaliatory’ or ‘advanced for the purposes of leverage in the access application’.[55]
[55]T 49-50.

The OC witnesses, Peters and Blombery were not cross-examined on delay or motivation, nor was any submission made to the Tribunal that delay gave rise to oppression regarding an order for rectification works.

The Tribunal found that acquiescence was based upon it having been led to believe that the work was minor and cosmetic, and not having been provided with plans or other specific information sufficient for it to have provided informed consent. In the circumstances, it was clearly open for the Tribunal to make no finding adverse to the OC on this basis.

Grounds 1, 2 and 2A have no real prospect of success.

Ground 4 (restoring the raised ceiling)

Gilmore submits that paragraph 2(a) of the Tribunal’s orders, which provides that Gilmore must restore the ceiling to its original height, is impossible to comply with and therefore ought to be set aside. Although Gilmore accepts that there was sufficient evidence for the Tribunal to find that the ceiling had been raised, he submits that:

(a) the exact height of the ceiling prior to the renovation; and

(b) whether the ceiling was of uniform height throughout the entire relevant area;

were factors that were unclear on the evidence.

The evidence of Roy, who recounted in cross-examination that the ceiling had a number of bulkheads thereby making the heights inconsistent at various points of the relevant area, was relied on as demonstrating the impossibility of complying with the order. Furthermore, Mr Gardiner (structural engineer) stated that there was a change as built from drawings relied on before the Tribunal. The original drawings had purlins stopping and starting at the wall that was removed. When built, they were built at a single length.[56] This compounded the lack of clarity, preventing compliance with the order.
[56]VCAT T 82.

The OC argued that the Tribunal ultimately accepted its evidence, which included the evidence of Mr Fisher (architect), who opined that the original ceiling height can be determined by the height of the windows,[57] leading to a conclusion that the original ceiling height was 2430mm, and that the ceiling had been raised by 200mm. Considering that the intent of the order was to ensure that the ceiling height does not encroach into common property, then effectively the order can be taken to mean that in so much as the ceiling exceeds 2430mm, it must be lowered to that height.[58] Taken in that context, it is misconceived for Gilmore to assert that compliance with Order 2(a) is an impossibility. Additionally, the OC argues that it is inconceivable that Roy Gilmore would be in any doubt as to what is required to restore the original ceiling height, seeing that he designed and supervised the renovations.[59]
[57]Ibid 130.10-126.
[58]Defendant, Written Submissions, 11 July 2022, [96].
[59]Ibid [95].

I accept the submission that the lot owner is able to comply with an order that restores the ceiling height. Compliance with the order is not more complex that restoring the ceiling to the a level 200mm below its present height. The remedy was clearly open to the Tribunal and the order capable of being complied with.

Ground 5 (removal of the internal wall)

Gilmore refers to the Tribunal’s orders requiring restoration of the removed internal wall. Gilmore says on a proper consideration of the evidence of Mr Gardiner, then the order requiring wall to be restored was legally unreasonable.

The Tribunal relied primarily on the evidence of Mr Gardiner. Gilmore submits that Mr Gardiner’s evidence in fact was that the purlins had adequate strength to support the roof and ceiling and that the risk was for cracking and other aesthetic damage only. It is evidence directly contradictory to the Tribunal’s finding that the raising of the ceiling led to a risk of collapse. Therefore, there was no evidence in support of the finding that raising the ceiling had given rise to a risk of collapse. This risk was a substantial consideration in granting the remedy and therefore the error was material. The submissions says that it was not open to the Tribunal on the evidence to find that the appropriate order was to reinstate the internal wall, such that the Tribunal has erred.

This ground is framed in such a way that it is necessary to give close consideration to the evidence of Gardiner as a whole. His expert witness statement which he adopted in his evidence said that:

I believe that the wall that has been removed fulfilled two structural functions – it supported the roof purlins and provided lateral stability as a shear wall to the upper level. I also note that existing steel column UC9 was located at the end of this wall to support a steel beam over also appears to have been removed.
I have no knowledge of what structural enhancements were done when the wall was removed but anticipate a beam was added to support the roof. Whether such a beam is adequate for the purpose is not possible to ascertain.
Replacing the wall with a beam does not replace the bracing function of the wall.

In his examination in chief Gardiner was asked to explain the second function; the provision of lateral stability. He explained that the northern face of the building the windows and the wall required support along their upper edge to remain in place and not push into or peel away from the building. He said that if a steel beam was in put in place if the wall was removed that would address the support for the purlins and therefore the vertical support for the ceiling, but it would not address the lateral support and ‘without adequate elements to provide lateral stability or provide bracing to the facade, there is nothing to hold the façade in place.’[60]
[60]VCAT T 71.

In cross-examination, he said:

I’m going to have to cover a couple of issues here. If I cover the vertical load capacity of the purlins. I did my assessment and they are not going to fail in strength. They are strong enough to carry the load over that span. …its fortuitous, because we actually showed those purlins stopping and starting on that wall, but when it was built they were built in a single length. Otherwise it would have been a much more significant issue.
..so the purlins had adequate strength. And when you’re building it and you’re putting the ceiling on, you have the ability the builder has the ability to make sure that the ceiling ends up flat, not representing any sag that may be in the roof. In the purlins and in the roof as a consequence of them now spanning further. So the ceiling is able to be built to be represented flat. Now, whether that excess deflection in the roof or that extra deflection in the roof has any implications on the watertightness of that roof or the draining, I haven’t assessed…But what hasn’t been assessed is under wind load, this roof will move up and d own more than is desirable and recommended by the Australian Standards for a purlin supporting a roof and a plasterboard ceiling.
…there is a chance if we got the designed wind, that there could be cracking and other aesthetic damage to the internal finishes of the apartment. And maybe damage to flashings and the connection to the roof gutter and other things too.[61]

[61]VCAT T 83-84.

The cross-examination moved on to the tiling and there was no challenge to the second issue of lateral stability. Although cross-examination limited the effect of removal on vertical load capacity, it did not detract from the lateral stability issues which were also identified by Mr Gardiner and their impact upon structural integrity.

The Tribunal’s findings were that the wall was structural,[62] the lot owner adduced no evidence of substitute support[63] and did not call the builder, the purlins were spanning twice their designed span[64] and concluded:

[153]I therefore find that the removal of the wall left the roof, ceiling and garden façade without their designated support and exposed the building to the risk of significant failure.

[62]Reasons (n 1) [150].

[63]Ibid [151].

[64]Ibid [152].

There was clearly evidence that removing the wall impacted upon the structural integrity of the building and not merely the aesthetic conditions of the Lot owner’s apartment. The order of the Tribunal to restore the wall was open and not legally unreasonable.

Conclusion

For the reasons given none of the grounds of appeal going to remedy, proposed or as amended, have a real prospect of success.

It is appropriate to grant leave to amend the Originating Motion to regularise the appeal so it is conducted as an application for leave to bring an appeal pursuant to s 148(2) of the VCAT Act. I accept in that regard that the original proceeding was issued on legal advice. However, as to the errors of law identified –

(a) failure to take account of relevant considerations;

(b) reaching a conclusion not open to the Tribunal; and

(c) reaching a conclusion that is legally unreasonable

none have a real prospect of success.

I will hear the parties on the question of costs.

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Citations

Gilmore v Owners Corporation PS341151A [2023] VSC 82

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Holt v Director of Housing [2021] VSC 270

Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] VSCA 311

Evans v Miller [2011] WASCA 89

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27 February 2023