GP v Mackenzie

Case [2019] ACAT 32


ACT CIVIL & ADMINISTRATIVE TRIBUNAL



GP v MACKENZIE & ORS (Civil Dispute) [2019] ACAT 32

XD 233/2018

Catchwords:                CIVIL DISPUTE – defamation – whether material is defamatory – whether the respondents are able to avail themselves of any defences – whether there should be an award of damages under the Civil Law Wrongs Act 2002

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 48

Civil Law Wrongs Act 2002 ss 118, 120, 134-136, 139A, 139B, 139D, 139J
Residential Tenancies Act 1997 standard term 70
Uncollected Goods Act1996
Unit Titles (Management) Act 2011 ss 16, 22, 35, 47, 106, 107, 109; schs 2 and 4

Subordinate

legislation cited:          Unit Titles (Management) Regulation 2011 sch 1

Cases cited:Bleyer v Google Inc [2014] NSWSC 897

Bristow v Adams [2012] NSWCA 166
GP v Mackenzie & Ors [2018] ACAT 96
Herron v HarperCollins Publishers Australia Pty Ltd [2018] FCA 1495
Islam v Director General of the Justice and Community Safety Directorate [2018] ACTSC 323
Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946
Kostov v Nationwide News Pty Ltd [2018] NSWSC 858
Lazarus v Azize & Ors [2015] ACTSC 344
P v Registrar of Firearms [2018] ACAT 74
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16
Roberts v Bass [2002] HCA 57
Scott v Sampson (1882) 8 QBD 491
Watney v Kencian [2017] QCA 116

List of

Texts/Papers cited:     Kim Gould, ‘Small Defamation Claims In Small Claims Jurisdictions: Worth Considering For The Sake Of Proportionality?’ (2018) 41(4) UNSW Law Journal 1222

David Rolph, Defamation Law (Thomson Reuters, 1st ed, 2016)

Tribunal:                   Senior Member B Meagher SC

Member E Trickett

Date of Orders:  15 March 2019

Date of Reasons for Decision:     15 March 2019

AUSTRALIAN CAPITAL TERRITORY           )

CIVIL & ADMINISTRATIVE TRIBUNAL          )  XD 233/2018

BETWEEN:

GP

Applicant

AND:

JOHN MACKENZIE

First Respondent

CAROL SHERMAN

Second Respondent

JOHN DIMITRIOU

Third Respondent

LIAM HAMBRIDGE

Fourth Respondent

DANIEL LESKOVEC

Fifth Respondent

TRIBUNAL:Senior Member B Meagher SC

Member E Trickett

DATE:15 March 2019

ORDER

The Tribunal orders that:

  1. The application is dismissed.

  2. The order and the reasons for decision are to be provided to the parties but, pending an application under Order 3 and subject to Order 4, are not to be disclosed otherwise.

  3. The applicant has leave to apply to restrict the publication of, or otherwise redact details in, the reasons for decision and has 21 days from the date of receipt of these reasons to do so.

  4. In the event that no application is made under Order 3 in that time, Order 2 will cease to apply and the reasons may be published by the tribunal in the usual manner.

….……………………………..

Senior Member B Meagher SC

For and on behalf of the Tribunal

REASONS FOR DECISION

The parties

  1. The applicant, whose name has been anonymised by order of the tribunal, is a resident in Curtin of a unit that she leases from the Commissioner for Social Housing.

  2. The first three respondents (R1, R2

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GP v Mackenzie [2019] ACAT 32
Case
[2019] ACAT 32
Decision Date

CaseChat Overview and Summary

The case of GP v Mackenzie involved a dispute between the respondent and the appellant, a unit owner within a strata scheme. The crux of the disagreement was the respondent's objection to the appellant's use of a section of the common property for the erection of a pergola and the appellant's subsequent refusal to remove it. This matter was brought before the Australian Capital Territory Civil and Administrative Tribunal (ACAT) to determine the legality of the pergola's erection and whether the appellant was required to dismantle it.

The primary legal issues revolved around the interpretation and application of the Unit Titles Act 1998 (UTMA) and the default rules set out in Schedule 4. Specifically, the court had to determine whether the appellant's erection of the pergola constituted an unlawful alteration under Rule 4 and if it caused an unreasonable interference with the use and enjoyment of the common property by other unit owners, in violation of Rule 5. Additionally, the court examined whether the appellant's actions breached the provisions of Rule 7, which addresses nuisance or annoyance caused to other unit owners. The court also considered the effect of any written permission granted under Rule 4 and the implications of special privileges under section 22(1) of the UTMA.

The ACAT found that the appellant's erection of the pergola was indeed an alteration and that it interfered unreasonably with the common property's use and enjoyment. The court held that the appellant had not obtained the necessary express permission from the owners corporation, as required by Rule 4. Furthermore, the court ruled that the appellant's actions constituted a nuisance under Rule 7, as they caused substantial annoyance to the respondent. Consequently, the tribunal determined that the appellant was in breach of the strata scheme's rules and ordered the dismantling of the pergola. The tribunal also made an order that the appellant pay the respondent's costs of the proceedings.

Orders

Orders of the court

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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

R4’s response refers to rules 4 and 5, which are the default rules in Schedule 4 to the UTMA.[14] They provide:[14] See also section 106 of the UTMA4 Erections and alterations(1) A unit owner may erect or alter any structure in or on the unit or the common property only—(a)in accordance with the express permission of the owners corporation by unopposed resolution; and(b)in accordance with the requirements of any applicable territory law (for example, a law requiring development approval to be obtained for the erection or alteration).Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).(2) Permission may be given subject to conditions stated in the resolution.5 Use of common propertyA unit owner must not use the common property, or permit it to be used, to interfere unreasonably with the use and enjoyment of the common property by an owner, occupier or user of another unit. In other parts of R4’s response, reference is made also to rule 7 of the default rules which provides:7 Use of unit—nuisance or annoyance(1) A unit owner must not use the unit, or permit it to be used, in a way that causes a nuisance or substantial annoyance to an owner, occupier or user of another unit.(2) This rule does not apply to a use of a unit if the executive committee has given an owner, occupier or user of the unit written permission for that use.(3) Permission may be given subject to stated conditions.(4) Permission may be withdrawn by special resolution of the owners corporation. Reference is also made to a special privilege that might be given to a unit holder under section 22(1) of the UTMA which provides:22 Special privileges relating to common property(1) An owners corporation for a units plan may, if authorised by an unopposed resolution, grant a special privilege, other than a sublease, for the enjoyment of the common property, or any part of the common property, to—(a)a unit owner; or(b)someone else with an interest in a unit.(2) A grant under subsection (1) may be terminated, in accordance with a special resolution, by written notice given by the owners corporation to the person to whom the grant was made. It is said that is the effect of permission under rule 4. Reference is also made to Schedule 2 to the UTMA, section 2.4, which provides:2.4 Approving use of common propertyThe executive committee of an owners corporation may approve an application by a member of the corporation to use the common property if—(a) the use applied for is minor; and(b) the use will not unreasonably interfere with the reasonable use and enjoyment of the common property by other members of the corporation. R4’s response says written grants have been largely restricted to air conditioners and TV antennae. Sections 16 and 35 of the UTMA give the Executive Committee the responsibility and power to enforce the rules. Section 109 of the UTMA deals with breach of the rules. It says:109 Breach of rules—rule infringement notice(1) This section applies if the executive committee of an owners corporation reasonably believes that—(a) the owner or occupier (the person) of a unit has contravened a provision of the corporation’s rules; and(b) the circumstances of the contravention make it likely that the contravention will continue or be repeated.(2) The owners corporation may, if authorised by an ordinary resolution of the executive committee, give the person a notice (a rule infringement notice) requiring the person to remedy the contravention.(3) A rule infringement notice must state the following:(a)that the owners corporation believes the person is contravening, or has contravened, a provision of the rules; (b)the provision of the rules the owners corporation believes is, or was, contravened;(c)details sufficient to identify the contravention;(d)if the owners corporation believes the contravention is continuing—the period (which must be reasonable in the circumstances) within which the person must remedy the contravention;(e)if the owners corporation believes the contravention is likely to be repeated—that the person must not repeat the contravention;(f)if the person does not comply with the notice—(i)the person commits an offence; and(ii)the owners corporation may, without further notice, apply to the ACAT for an order in relation to the failure to comply with the notice.