Johnson v The Owners Units Plan No 4373 (Appeal)
[2021] ACAT 54
•24 June 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
JOHNSON & ANOR v THE OWNERS – UNITS PLAN NO 4373 (Appeal) [2021] ACAT 54
AA 5/2021 (UT 32/2019)
Catchwords: APPEAL – unit titles – whether a communal dining room may be used for a home business – decision of Executive Committee to refuse that use – Original Tribunal dismissed the application under the Unit Titles (Management) Act 2011 section 129 – internal appeal – role of Appeal Tribunal – merits review of Executive Committee’s resolution – resolution set aside and replaced
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 79, 82
Unit Titles (Management) Act 2011 ss 2, 3, 22, 35, 125, 127, 128 129, Sch 2 s 2.4, Sch 4 s 3.6
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 91
Cases cited:Cooper v The Owners-Strata Plan 58068 [2020] NSWCA 250
Fox v Percy[2003] HCA 22
House v R (1936) 55 CLR 499
I.C. Formwork Services Pty Limited v Moir (No 2) [2020] ACTCA 44
In the matter of AB [2018] ACAT 18
Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114Meaney v The Owners Corporation Units Plan 40[2013] ACAT 72
Parker v Owners Units Plan No 36 [2014] ACAT 37
Tribunal: President G Neate AM
Senior Member B Meagher SC
Date of Orders: 24 June 2021
Date of Reasons for Decision: 24 June 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 5/2021
BETWEEN:
MARK JOHNSON
First Appellant
JANET JOHNSON
Second Appellant
AND:
THE OWNERS – UNITS PLAN NO 4373
Respondent
APPEAL TRIBUNAL: President G Neate AM
Senior Member B Meagher SC
DATE:24 June 2021
ORDER
The Tribunal orders that:
1.The appeal is allowed.
2.The decision of the Executive Committee of the respondent to refuse to allow the request by the appellants to use the Dining Room for drawing classes is set aside.
3.The request by the appellants to use the Dining Room is allowed on the following conditions:
(a)Janet Johnson may use the Dining Room for drawing classes conducted by her.
(b)Mark and Janet Johnson must hold adequate public liability insurance in respect of that use of the Dining Room.
(c)Each such use will be for a period no longer than approximately 2.5 hours.
(d)The size of each class (usually about three or four people) will not exceed 10 people.
(e)The use will be occasional only and not unduly frequent.
(f)The availability of the Dining Room for that use is subject to the Dining Room booking system now in place.
(g)Mark and Janet Johnson are responsible for ensuring that the persons attending each class are quiet and respectful of residents and that the Dining Room is left clean and tidy after each class.
4.The parties have liberty to make submissions about the form of Order 3 within 14 days of these orders being made, and that Order will not come into force until:
(a)if no submissions are received within that time, 9 July 2021; or
(b)if submissions are received, on a date to be notified to the parties.
………………………………..
President G Neate AM
For and on half of the Tribunal
REASONS FOR DECISION
Introduction
1.The appellants, Mr and Mrs Johnson, are residents and unit owners in a unit complex in Campbell, ACT known as Greenwich Park. The units are mixed use but are predominantly residential. There are some specifically designated commercial units. There is a communal dining room (the Dining Room) that can be booked using the online communication on a website, known as BuildingLink, set up by the strata managers, Vantage Strata Pty Ltd.
2.Mrs Johnson has a home business which includes drawing classes. She conducts some of the activities of the business in the appellants’ unit and also rents a space in Ainslie for some drawing classes. She also wished to use the Dining Room for some of her classes.[1] She wrote to the Executive Committee asking for permission to do so but eventually that was refused.
[1] It seems from her email of 15 January 2019 to the Executive Committee (Appendix A6) that she had not started these lessons but was intending to do so.
3.Mr and Mrs Johnson applied to the ACT Civil and Administrative Tribunal seeking, among other things, to change the Executive Committee’s decision (original application). At the request of the parties, the original application was considered on the papers, without the parties or their representatives participating in person or by telephone or audio-visual link. The original application was dismissed by a Senior Member of the Tribunal (the Original Tribunal).[2] Mr and Mrs Johnson have brought this internal appeal under section 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
[2] Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114
4.The appeal was heard by WebEx video on 7 April 2021. The appellants represented themselves and Mr David Amentas of Clyde and Co represented the respondent, the Owners – Units Plan No 4373.
5.The Appeal Tribunal confirmed with the parties that it should have regard to the following written materials provided for the appeal or the original application:
Documents provided for the appeal application
(a)The application for appeal lodged on 13 January 2021 – which contained the appellants’ arguments and the decision appealed from as well as a detailed reference to the papers filed for the original application.
(b)The respondent’s response lodged on 26 February 2021.
(c)A revised list of errors submitted by the appellants dated 26 February 2021.
(d)The appellants’ revised list of authorities lodged on 22 March 2021.
(e)The respondent’s response and submissions in reply to the appeal lodged on 25 March 2021.
(f)The respondent’s authorities.
Documents provided for the original application
(a)Mr and Mrs Johnson’s application lodged on 15 November 2019 which contained detailed reasons for the application, a background of the dispute, a timeline and appendices that are referenced in the appeal being emails (Appendix A), Minutes of Executive Committee meetings (Appendix B), survey material (Appendix C) and miscellaneous document (Appendix D).
(b)The respondent’s response lodged on 14 February 2020.
(c)The respondent’s supplementary response dated 22 February 2020.
(d)A witness statement dated 22 April 2020 of Brian Hall (the Chair of the Executive Committee since about September 2019 at the time of the last refusals) and annexes.
(e)The respondent’s timeline.
(f)A witness statement dated 22 April 2020 of Jenny Campbell (the first Chair of the Executive Committee until July 2019).
(g)Mr and Mrs Johnson’s reply to additional response of the respondent lodged on 5 May 2020.
(h)The respondent’s further reply to the Johnson’s supplementary response lodged on 25 May 2020.
(i)The final response of the Johnsons dated 22 June 2020.
The documents provide information about the background to the dispute between the parties, which is set out below.
Background
6.The Dining Room can accommodate about 20 people. It has tables, chairs, and a small kitchenette.
7.The Executive Committee had introduced a booking policy for the Dining Room before the requests by the Johnsons. There is no complaint about that policy. It introduced a booking system and sought to ensure that users tidied up and that frequent applicants were controlled. Mr Hall explained in his witness statement the variety of social and other uses of the Dining Room (including for Executive Committee meetings), how the booking facility is managed by the building manager for Greenwich Park (usually without input from the Executive Committee) and how competing applications for use of the Dining Room are resolved.[3] As the appellants stated, it involves a use by the resident booking the Dining Room to the exclusion of other owners during this period of the booking.[4]
[3] Witness statement of Brian Hall 22 April 2020 at paragraphs 12-21
[4] Appellant’s reply to respondent’s response dated 27 February 2020 at page 8 paragraph II(a)
8.On 20 September 2018, Mrs Johnson sent an email to the Executive Committee asking to be allowed to use the Dining Room for her drawing classes.[5] She indicated that a maximum of 10 people would be present and described the drawing class and its methods. The long table was thought to be “ideal”. The time involved would be about two hours. She suggested it might be of interest to residents as a “nice weekly get together” along with the book club and card nights. The class would normally be conducted during the day but that could be changed to nights during the week to avoid clashes with other potential users. The drawing method being taught was called Zentangle. The email had attached a brochure about it. The request did not say how often the classes might occur or whether teaching the classes was for profit.
[5] Original application, appendix A1
9.The appellants have explained that, whilst the home business run by Mrs Johnson is a business for tax purposes, it is as much a social enterprise and Mrs Johnson provides both paid and free lessons to aged care homes, cancer support groups, some Greenwich residents and others.[6] They described it as a “small, low revenue, ‘for profit’ home business but it is also a social enterprise aimed at sharing a therapeutic method that fuses artistic expression and mindfulness”.[7]
[6] See page 14 of the attachment to the appeal application and the references therein
[7] See “Background of Dispute” annexed to the original application
10.The Secretary responded the same day saying the request would be considered.[8] Emails were circulated by Executive Committee members to each other. On the same day, the Secretary asked Mrs Johnson whether she would be charging for the classes and whether the classes would be open to members of the public.[9] The next day Mrs Johnson replied “yes” to both questions, and the Secretary responded saying there was a lively discussion and the matter might not be resolved until the next Executive Committee meeting on 10 October 2018.[10]
[8] Original application, appendix A2
[9] Original application, appendix A3
[10] Original application. appendices A4 and A5
11.The Executive Committee meeting of 10 October 2018[11] resolved to seek information about whether the public liability insurance of Greenwich Park covered, for example, a resident using the meeting room to conduct a drawing class as a business venture. Mrs Johnson was kept informed by the Secretary verbally.
[11] See Minutes in original application, appendix B1
12.Another Executive Committee meeting was held on 7 November 2018. The insurance position was said to be that the unit owners’ public liability insurance would cover the enterprise even if it was for profit, but more clarification was sought.[12] On 5 December 2018, there was another meeting. It was said that one of the owners at Greenwich Park had indicated that he had insurance expertise and was concerned that the insurance information in relation to common areas may be unsound.[13] Mrs Johnson had a discussion with the Secretary and that owner on 10 December 2018 and was advised she should get public liability cover.
[12] See Minutes in original application, appendix B2
[13] See Minutes in original application appendix B3
13.On 15 January 2019, Mrs Johnson sought approval to place an advertisement in the lifts for her business (off site) and that was allowed. She wanted to include the possibility of private lessons on site at Greenwich and the Committee member involved was agreeable if it fitted. The Secretary was supportive. Mrs Johnson told them that she had obtained premises at Ainslie while she waited, but the request to use the Dining Room was ongoing. The Secretary acknowledged that the matter had taken so long because of the insurance issue. Mrs Johnson also provided her insurance certificate for public liability and expressed the hope that “this addresses the issue and that I may now have permission to book and use the dining room on the odd occasion for drawing classes”.[14] That all occurred in January 2019. Mrs Johnson said that the classes she was now seeking to conduct in the Dining Room were small and personal. It seemed to mean that the Dining Room was to be used as an adjunct to, and would not be, the main venue. It might be thought that this might reduce the likely size and perhaps frequency of the proposed classes in the Dining Room, but at that stage not much had been mentioned on this topic.
[14] Original application, appendices A6-A10
14.Nothing progressed until 1 May 2019 when the Executive Committee adopted by majority a new Dining Room policy,[15] but it was still being edited and the Johnsons were involved in discussions about it. During May 2019, the Johnsons with two or three of the Committee members worked though the policy and developed an agreed draft that the two Committee members thought should be put to the Annual General Meeting (AGM). It appears from the Committee member’s emails that the appellants did a lot of work on this. At the same time, one Committee member asked the Secretary what was happening about the request which, embarrassingly, was still not answered. He thought “we had given approval”.[16] The Secretary replied that it had been a difficult year, but she agreed it should be dealt with by Mrs Johnson sending another email describing the activities of her classes, how often she would like to hold them and her insurance cover. The Executive Committee could record its level of support in a vote and pass that on to their insurer for a written “yes” or “no”.[17]
[15] See Minutes in original application, appendix B4
[16] Original application, appendix A14
[17] Original application appendices A11-A14
15.Mrs Johnson wrote a further email to the Executive Committee on 27 May 2019 which summarised where they were at. It included saying that the space she had rented for large classes was not suitable for smaller groups. The request was now for a 2.5 hour use of the Dining Room for three to four people with occasionally up to six people. The drawing method uses very clean and tidy materials, the attendees were typically middle-aged women, and the classes are “by nature typically very quiet”. She thought a daytime use might be best and offered residents a 20% discount. The email was expressed politely.[18]
[18] Original application appendix A15
16.The Executive Committee met on 12 June 2019 and their concerns were contained in an email from the Secretary to Mrs Johnson on 13 June 2019. The email offered Mrs Johnson the opportunity to be involved in drafting a policy that dealt with those concerns. The email said the Committee would like to support the proposal in principle, but it was the first time an owner had requested to use the Dining Room for “commercial purposes”. They were worried about it setting a precedent. The commercial aspect of the proposal was what concerned them. Issues mentioned were any competition with existing commercial tenants, zoning, and fair wear and tear of common property. The email acknowledged that the business run by Mrs Johnson does not impact these issues.[19] The Committee members were concerned about others that might follow. They contemplated getting advice and drafting parameters that addressed any potential issues described as “unintended precedents/consequences that might be set” by approving Mrs Johnson’s request. Parameters would address frequency, hours, noise, mess, risk, insurance, suitability of the space, value and interest to residents, management of non-resident participants, possible competition with commercial tenants, zoning, charges that might be levied for a space with kitchen and toilet facilities, and how to assess what all the owners thought about the commercial use of a common facility.[20]
[19] Our emphasis
[20] Original application appendix A16
17.One of the Executive Committee members, who appears to support the Johnsons, drafted an application form for the commercial use of common facilities.[21]
[21] Original application appendix A17
18.It seems from the emails dated 26 May 2019[22] that there were Committee members who supported the Johnsons’ application and others who did not. The Secretary seemed to be in the former camp. Then, in early July 2019, Mrs Johnson used the Dining Room for the drawing class with three guests. The timeline records she did this also on 20 June and 27 June 2019. She had booked the room and says she was given approval. According to her timeline (item 28), approval was given by one Committee member. The class was for ladies who were worried about Mrs Johnson’s dogs if she held the class at her home. In a later statement, the current chairman, Mr Hall, asserted that he had been informed that the use was without approval.[23] It seems likely that this may have caused a misunderstanding for some.
[22] Original application appendix A13-A14
[23] Witness statement of Brian Hall 22 April 2020 paragraph 22b.
19.During the lesson on 4 July 2019, the Secretary came into the Dining Room and washed a wine glass and left. She had to use a key to enter the room. Why a key was necessary was not explained. Mrs Johnson was upset by this and said it had “destroyed the Zen atmosphere that had been created.” She complained in detail about the intrusion in an email on 7 July 2019 to the Secretary. Mrs Johnson sought a written “heartfelt apology to end this matter”.[24] An hour later the Secretary sent an email to apologise and stated that she had not realised that she upset Mrs Johnson.[25] The email of complaint by Mrs Johnson went to the Committee. She specifically raised a question of perception of bias and asked the Executive Committee to consider issuing the Secretary with a rule infringement notice if she did not offer a meaningful apology to Mrs Johnson.
[24] Original application appendix A18
[25] Original application appendix A19
20.With the best will in the world, that email of Mrs Johnson was unlikely to have endeared the Committee to her proposal. If they were ambivalent or supportive and sympathetic but sensibly concerned about wider issues, the email might have made the path ahead for Mrs Johnson more difficult. This is not to say that any individual member of the Executive Committee acted improperly. Mrs Johnson commented during the appeal hearing that it all went bad from there on and she thought it was personal.[26] As will be seen, the Johnsons did not receive the approval they asked for, and they assert that there was actual bias on the part of the Executive Committee. To the extent that this impugns the conduct of any particular person, we could not make that finding because the hearing on the papers did not allow for any such assertions to be tested. However, we can in a more general way assess how particular conduct might have affected any reasonable person involved.
[26] Transcript of appeal proceedings 7 April 2021 page 15-16; see also page 44
21.A survey in relation to the Johnsons’ application was sent to Greenwich Park unit owners on 19 July 2019. Its genesis is not revealed by Minutes of Executive Committee meetings. The Johnsons were told that the survey was not what one Committee member had understood was voted on. Apparently the options were to ask the question in more general terms or to ask specifically about the Johnsons’ request or instead to put it to an AGM. The Johnsons obtained some material on subpoena which they included in the “Final Response of Applicant” for the original proceedings. The attached documents were given AC numbers.
22.It appears from those documents that the agenda for the 3 July 2019 Executive Committee meeting included an item p:
Application form to use common areas for commercial purposes – consideration of draft application form developed by [name of a committee member]. EC to also decide if we (1) ask for a general agreement from owners to commercial use of common areas; or (2) ask for agreement from owners on each application received.[27]
[27] Final response of applicant dated 22 June 2020, AC1
Apparently, the resolution of the Executive Committee was to pass it on to the new Committee after the AGM but to investigate what would be fair use of common areas based on unit entitlement.[28]
[28] Final response of applicant dated 22 June 2020, AC2-C
23.On 5 July 2019, the then Secretary suggested an alternative along the lines of what happened. The drafter of the application form opposed this on the basis that the Executive Committee was competent to make the decisions, but others agreed.
24.The Secretary drafted a motion to go to the AGM that was different from the one that finally went with and was slightly more informative.[29] It had as a preamble:
The Executive Committee has received an application to use the dining room for commercial purposes. The Executive Committee is seeking direction from the Owners Corporation on this issue before it approves such an application, as it will set a precedent for future applications.
[29] Final response of applicant dated 22 June 2020, AC2
25.It was then thought that the AGM may be problematic. The application form drafter adverted to a past AGM that was quite divisive. So the Secretary then thought a survey might be the way forward and others agreed, and it was then redrafted to accord with what was sent. According to the appellants, the Minutes of the Executive Committee meeting of 3 July 2019 do not include this item. The Secretary had drafted a preamble for the survey which included more information than what was sent to the owners. It referred to the “expected activities” including “art classes, tutoring, tupperware parties, etc.” Had that preamble been included, the survey may well have given the owners a greater understanding of the variety of uses from major to minor.[30]
[30] See final response of applicant dated 22 June 2020, AC3-A ’describing the subpoenaed material
26.The survey form contained introductory language that said:[31]
Background
The Executive Committee has had an application from an owner to use the dining room for commercial purposes. The Executive Committee’s concern is that if this application is approved, it sets a precedent and opens up a range of issues, some foreseen and others not yet foreseen in relation to use of common property here at Greenwich being used for commercial purposes. The Executive Committee is therefore seeking clear direction from owners on this issue
Question
Does the Owners Corporation wish to permit individual owners to use common property for commercial (profit making) purposes?
[31] Original application appendix C1 (survey question)
It went on to say that if the answer was in the affirmative, the Executive Committee would develop and implement a policy to regulate such use for the overall benefit and in the interests of the Owners Corporation. An option was given for a “yes” or “no” answer.
27.The Owners Corporation was not saying yes or no to the survey question. The unitholders who responded to the survey were. An AGM would have provided the view of the Owners Corporation.
28.There are 205 residential units and 15 commercial units at Greenwich Park.[32] Responses were collected between 19 July and 7 August 2019. Answers were received from 108 unit owners. There were 14 yes answers, 92 no and 2 unspecified.[33]
[32] See Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114 at [4]
[33] Original application appendix C3 (survey results)
29.Along with the answers were 28 comments. We do not propose to set them all out. They included a suggestion about the need for a draft policy to be developed before the question could be answered. Another stated “Send more information if it’s been misexplained”. The answer that seems to sum up the problems with the assumptions in negative responses is “Hard to answer a binary question with little detail”.
30.The membership of the Executive Committee changed during the process. The results were published on 2 September 2019.
31.On 3 September 2019, Mr and Mrs Johnson sent a long email to the newly elected Executive Committee arguing that the survey was flawed and asking the Committee to approve their request.[34] The arguments are made again on the appeal and were made to the Original Tribunal. We will summarise the submissions later.
[34] Original application appendix A20
32.Mr Hall, the new chair of the Executive Committee, replied on 12 September 2019 refusing the request.[35] He wrote that the Executive Committee (which had a significant number of new members) chose to take “a fresh look at the proposal”. They noted several factors including the Johnsons’ “extensive” block bookings, from 5.00pm to 10.00pm on most Wednesday nights until January 2020. (That was later acknowledged to be a mistake[36]). They also referred to the “documented preferences of a large number of owners” who do not want their common property used for “commercial purposes” and stated that the Johnson’s proposed use of the Dining Room was “inconsistent with the letter and intent” of section 5(a) of the Greenwich Park Owners Corporation Rules. That section states:
A unit owner, occupier or user 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 use of another unit.
[35] Original application appendix A21
[36] In her reasons, the Original Tribunal wrote that this was denied by the appellants but it was also conceded to be incorrect by the respondent: Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114 at [59]
33.On 13 September 2019, Mr Johnson sent an email to Mr Hall and the Executive Committee pointing out the error about the alleged extensive block bookings.[37] He stated that they had no future bookings of any kind of the Dining Room. Given that the refusal of approval was based on an error of fact he asked that their request be reconsidered.
[37] Original application appendix A22
34.The same day Mr Hall visited the Johnsons and apologised for the error. The Executive Committee apparently exchanged views and he then wrote an email[38] saying the Committee was still not willing to agree to the request on the basis that “commercial use of common property is not acceptable”. But the Johnsons were invited to attend the next meeting and put their case directly to the Executive Committee. He said that, even though there had not been block bookings, the intended use would mean “likely frequent and extensive use of the room to the exclusion of other owners”.[39]
[38] Original application appendix A23
[39] This assertion was accepted by the Original Tribunal Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114 at [59] It ignores the application to the Executive Committee that says it is for occasional use.
35.After that relatively civilised exchange, things between the Johnsons and the Executive Committee went downhill. In an email to the Executive Committee on 14 September 2019,[40] Mr Johnson said they would attend the October meeting, but then raised an issue about the numbering of the revised rules. He seemed to be concerned that the rules may have been different from those approved unanimously at an AGM. Although he did not suggest that this was deliberate, that is the way Mr Hall took it. In his reply of the same day, Mr Hall asserted that:
I take serious offence at your assertion the Executive Committee has conspired to change them [the rules]. I urge you to consider withdrawing that inflammatory, erroneous and defamatory statement.[41]
[40] Original application appendix A24
[41] Original application appendix A25
Mr Hall responded in detail to other matters referred to in Mr Johnson’s email.
36.Mr Johnson replied that day, explaining that he had not meant that. He stated, “Whoa Brian, you have taken my note completely the wrong way”. At the end of the email he wrote:[42]
I can recommend a good class you could take to de stress and relax [followed by what might be a smile constructed by a bracket after a semi colon and hyphen]
[42] Original application appendix A26
37.It didn’t help that the emails were copied to the whole Executive Committee. It should be noted that the Secretary was new, although the former Secretary was still on the Committee as was the former chair. The Executive Committee met on 21 October 2019 and the Johnsons were able to address the Committee. Each side reported that the other’s conduct was not satisfactory.[43]
[43] See witness statement of Brian Hall 22 April 2020 paragraphs 33 – 35 and original application attachment M&J 002 – reasons for our application page 4
38.The Executive Committee decided to refuse the Johnson’s application, and Minutes were sent. There seem to be various iterations of the resolution. One relied only on the survey.[44] But the one published was more general[45] and included a suggestion that the Johnsons might ask for a resolution under section 22 of the Unit Titles (Management) Act 2011 (the UTM Act) relating to “special privilege” (an option considered later in these reasons for decision).
[44] Original application appendix B9
[45] Original application appendix B10
39.Mr Hall, in his witness statement, said that a way forward might also be for the Johnsons to put a resolution that is less than seeking a special privilege but amending the Dining Room policy to deal with requests for commercial use.[46]
The applicable legislation
[46] Witness statement of Brian Hall 22 April 2020 paragraphs 38, 60, 61
40.The key legislative provision for the original proceedings and this appeal is section 129 of the UTM Act which states:
(1) The ACAT may make the following orders:
(a)an order requiring a party to do, or refrain from doing, a stated thing;
(b)an order requiring a party to exercise a function under this Act;
(c)an order requiring an owners corporation to do a stated thing that is ancillary to a function of the corporation under this Act;
(d)an order requiring a person to pay to the Territory or someone else an amount of not more than $1 000;
(e)a declaration—
(i)that a general meeting or Executive Committee meeting is void for irregularity; or
(ii) that a resolution of a general meeting or Executive Committee meeting is void for irregularity; or
(iii) that a rule of the owners corporation is invalid—
(A) because the owners corporation does not have the power to make the rule; or
(B) under section 108 (3); or
(C) for irregularity; or
(iv) for an application made under section 127 (1) (d)—that the rule is invalid on the ground that the method in the resolution used to work out the proportion of fund contributions to be paid by each unit owner is not fair;
(f) an order repealing or amending a resolution of a general meeting or Executive Committee based on a merits review of the resolution by the ACAT;
(g) an order giving effect to an unsuccessful motion for a resolution of a general meeting (either as originally proposed or as amended by the ACAT) if the ACAT is satisfied after a merits review of the motion that opposition to the motion was unreasonable;
…
(j) an order requiring an owners corporation to make or repeal a rule and register a copy of the resolution making or repealing the rule;
(2) The ACAT may make any other order it considers reasonably necessary or convenient to resolve a dispute under this part.
…
(5) This section does not limit the orders the ACAT may make in relation to a dispute under this part. [emphasis added]
The decision appealed from
41.The original application sought a number of orders, many of which are not contemplated by section 129 of the UTM Act.[47]
[47] See Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114 at [10], [12], [13]
42.The Original Tribunal held that it did not have power to make findings about conduct or circumstances at large (which might be in the nature of an advisory opinion) and should confine itself to orders that have a practical effect.[48] The Original Tribunal found that the proposed use of the Dining Room was not a contravention of zoning requirements as it was part of a home business and did not offend the more general prohibition on strictly ‘commercial’ uses.[49] There is no cross appeal from that finding.
[48] See Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114 at [16], [18]. As explained in I.C. Formwork Services Pty Limited v Moir (No 2) [2020] ACTCA 44; [15]-[19] as a general rule the decision maker will make an order or declaration but not a finding as such
[49] Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114 at [37], [63]
43.The Original Tribunal clearly had concerns with the way the proposed orders were drafted and wrote:[50]
As best it can be ascertained, the applicants seek an order that the executive committee refrain from applying such a reason to any requests to use common property. For reasons that become apparent below, to do so would unreasonably interfere with the exercise of the executive committee’s discretion regarding such requests.
[50] Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114 at [20]
She did not advert to the Tribunal’s power to stand in the shoes of the Executive Committee in respect of decisions that had been made. Another way of framing the grievance was that the decision by the Executive Committee to withhold consent from the proposed use was unreasonable. This would involve the Tribunal standing in the shoes of the Committee and deciding for itself whether the decision was unreasonable. It was not a matter of just reviewing a discretion. The Original Tribunal also referred to the “subjective” opinion of the Committee. This would appear to be consistent with merely reviewing a discretion not exercising it afresh on the merits.
44.The Johnsons had not in their proposed orders adverted to section 129 of the UTM Act at all, and so did not expressly refer to section 129(1)(f) or (g). The respondent in its response quite fairly did so, both before the Original Tribunal and this Appeal Tribunal. Reference was made to the merits review and the cases explaining that the task was to stand in the shoes of the decision maker and reach the preferable decision. The appellants did advert to this in the appeal.
45.The Original Tribunal read the Minutes of the Executive Committee meeting on 12 June 2019 as a refusal of the Johnsons’ application.[51] But, as noted at [16] above, the email following was not in those terms and the matter was still being worked through.
[51] Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114 at [44]
46.The Original Tribunal stated that the use “is not minor having regard to the frequency and length of time the applicants wish to use the Dining Room”.[52] She held that some regular and frequent booking would likely be required. Having referred to Rule 5(a) (quoted above), she held that the proposed use also unreasonably interferes with the use of the Dining Room by other owners for the same reason and because it is regarded by owners as being for a commercial purpose. She also wrote that the concept of reasonable use and enjoyment must be considered in light of the process by which Executive Committee ascertained what was regarded by owners as reasonable use and enjoyment. The survey results were “compelling” in informing the Executive Committee as to how its function should be exercised.[53]
[52] Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114 at [59]
[53] Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114 at [60]
47.The Original Tribunal placed considerable weight on the outcome of the survey. She described the Executive Committee’s ultimate decision on whether to grant the application by the Johnsons as “subjective”. She decided that there were legitimate reasons not to grant the request and on that basis she should not interfere and dismissed the application.[54]
[54] Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114 at [62]-[66]
48.The Original Tribunal endorsed the notion that Mr and Mrs Johnson could themselves move a resolution at a General Meeting for approval to amend the Rules and the Dining Room policy or could seek a special privilege.[55]
The appeal application – grounds, errors asserted and orders sought
[55] Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114 at [62]
49.Although the Johnsons are not legally represented in the proceedings, they are extremely articulate and Mr Johnson has provided to the Appeal Tribunal a long list of suggested errors which has been revised. They have a number of specific contentions disagreeing with material put forward by the respondents as well as the decision. Rather than set them all out, we will refer to them in our consideration of the issues.
Approach on appeal
50.The right to appeal is provided by section 79 of the ACAT Act and encompasses errors of fact and law. Under section 82 of the ACAT Act, an appeal may be by a review or as an original application (de novo). This appeal has been run as a review. The ACAT Rules provide for the use of the evidence adduced and enable inferences to be drawn by the Appeal Tribunal.[56] It is a process explained recently by Presidential Member Symons in In the matter of AB[2018] ACAT 18 and is explained by the High Court in many judgments, in particular Fox v Percy.[57] It is worth setting out an often quoted passage from that judgment:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses and should make due allowance in this respect. [58]
[56] ACT Civil and Administrative Tribunal Procedures Rules 2020 rule 91
[57] [2003] HCA 22
[58] [2003] HCA 22 at [25] (per Gleeson CJ, Gummow and Kirby JJ)
51.In the present case, the Original Tribunal decided the matter on the papers so did not have the benefit of seeing or hearing the witnesses. In that respect, this Appeal Tribunal is in no different a situation than the Original Tribunal. We did, however, have the benefit of speaking with Mr and Mrs Johnson and the respondent’s representatives in the hearing of the appeal.
Nature of the decision appealed from
52.The actual resolution being challenged by the Johnsons was a decision of the Executive Committee not to allow a request by the Johnsons to use common property, in particular the Dining Room. As the Original Tribunal described in her reasons for decision, the power to do this is given to the Executive Committee under the Rules. She explained:
The use of the common area for a particular purpose is at the discretion of the owners corporation.
In accordance with section 35 of the UTM Act, the executive committee exercises the functions of the owners corporation, including but not limited to developing matters in relation to the common property and submitting any matters developed to the owners corporation for consideration.
Under Schedule 2, section 2.4 of the UTM Act, the executive committee 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. [59]
[59] Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114 at [41] – [43]
53.The power to approve is discretionary. Clearly it has to be exercised in a reasonable manner and fairly. The power to override a discretionary decision is also the subject of well-known principles. In House v R, the High Court said: [60]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
[60] House v R (1936) 55 CLR 499 at pages 504-505
54.The nature of the review of the Executive Committee’s resolution by the Tribunal is also relevant. The Original Tribunal set out the relevant section 129 of the UTM Act (quoted above). The Johnsons sought orders from the Original Tribunal that do not neatly fit within this section. Again, on appeal, they have done the same. They are not lawyers and we should endeavor to decide the case fairly based on what we understand to be the substance of their application and what their arguments might allow.
55.During the hearing of their appeal, the lawyer for the respondent said that the task we had was not to stand in the shoes of the Executive Committee. He should be taken to be referring to the attack on the resolution for irregularity as subsections (f) and (g) of section 129(1) enable a merits review. This means that where the relief sought is a merits review, the Original Tribunal was not hearing an appeal from the exercise of a discretion but was standing in the shoes[61] of the Executive Committee. The Original Tribunal was required to make the preferable decision. As the Appeal Tribunal we are reviewing that process. But if the Original Tribunal was effectively exercising the same discretion that the Executive Committee has, which we think it was, we are constrained by House v R when deciding whether to set aside the decision of the Original Tribunal.
The Appeal Tribunal’s power to make the orders sought
[61] See Meaney v The Owners Corporation Units Plan 40[2013] ACAT 72 and Parker v Owners Units Plan No 36[2014] ACAT 37
56.A threshold question in this case is whether the Original Tribunal had (and hence whether this Appeal Tribunal has) power to make an order setting aside the Executive Committee’s decision to refuse to allow the Johnsons to use the Dining Room for drawing classes, and to make an order allowing that use.
57.The Original Tribunal was satisfied that an order to ‘void’ the Executive Committee’s decision to deny the Johnsons’ request may be within the scope of section 129(1)(a) of the UTM Act.[62] However, the Original Tribunal doubted that she had the power to make such an order apparently on the basis that the Executive Committee was not a party to the application, and section 127 of the UTM Act precludes owners bringing disputes against the Executive Committee to the Tribunal.[63]
[62] Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114 at [19]
[63] Johnson & Anor v The Owners – Units Plan 4373 [2020] ACAT 114 at [13], [17]
58.Section 125, so far as is relevant to these proceedings, provides:
125 Disputes—generally
(1) This section applies to a dispute between 2 or more of the following:
(a) the owners corporation for a units plan;
(b) the executive committee;
(c) an owner … of a unit in the units plan;
…
(2) A party to the dispute may apply to the ACAT for an order in relation to another party if the application relates to the dispute.
59.Section 129 lists a variety of orders that the Tribunal may make, including orders requiring “a party” to do or refrain from doing stated things, orders requiring “an owners corporation” to do a stated thing, and orders requiring “a person” to pay someone else an amount of money. It is apparent from those examples that section 129 not only empowers the Tribunal to make a variety of orders, but it also specifies in respect of whom particular orders may be made. For present purposes, section 129(1)(f) empowers the Tribunal to make “an order repealing or amending a resolution of … [an] executive committee based on a merits review of the resolution by the ACAT.”
60.Subsections (2) and (5) are also relevant to these proceedings. As noted earlier, they provide, respectively:
(2) The ACAT may make any other order it considers reasonably necessary or convenient to resolve a dispute under this part.
(5) This section does not limit the orders the ACAT may make in relation to a dispute under this part.
61.The present dispute is between the Johnsons and the Owners Corporation. Central to that dispute, and the potential resolution of it, are the decisions or resolutions of successive Executive Committees refusing the Johnsons permission to use the Dining Room for drawing classes.
62.Section 35 of the UTM Act provides, in part:
(1) The executive committee of an owners corporation exercises the functions of the corporation.
(2) Without limiting subsection (1), the executive committee’s functions include the following:
(a)developing matters in relation to—
(i)the common property; …
63.In our view, section 129(1)(f), read with section 35, empowers the Tribunal to repeal or amend a resolution (or resolutions) of the Executive Committee even though the Executive Committee is not a party to these proceedings. If that specific provision is insufficient for such purposes, section 129(2) and (5) is a source of the Tribunal’s power.
Accordingly, the issue for this Appeal Tribunal is not whether we could make such an order but whether, on the material before the Original Tribunal and this Appeal Tribunal, we should make such an order, bearing in mind the role of an appeal tribunal compared with that of an original tribunal.
Appellants’ reasons (grounds) for appeal and submissions including the revised orders sought
The appellants’ reasons for appealing against the decision of the Original Tribunal were, in summary, as follows.:
(a)The Original Tribunal’s findings that the proposed use is for unfettered access and impacts other owners, and that the appellants made a block booking, are errors of fact.
(b)It is wrong to say the Johnsons’ proposed use of the Dining Room is commercial and they are a commercial cohort.
(c)The asserted lack of procedural fairness was not considered.
(d)The decision that the Original Tribunal could not just make findings is an error of law and involved failure to consider a recent judgment in Cooper v The Owners-Strata Plan 58068 [2020] NSWCA 250.
(e)The decision not to allow commercial use created a de facto rule and the Original Tribunal was in error in not so concluding.
(f)The Original Tribunal did not consider that the decision might be void for irregularity despite evidence that showed it was.
(g)The Original Tribunal relied on the survey without considering the inappropriate content of the survey.
(h)The Original Tribunal did not consider a course of action was available that preserves the appellants’ rights and those of other residents and was preferable to a decision that eliminates such rights.
(i)The decision endorses the subjective decision-making and bias shown by the Executive Committee which is inconsistent with the requirements of procedural fairness imposed by the UTM Act.
66.The appellants’ arguments or submissions were listed by reference to the list of errors. The list above was taken from the initial appeal application and was revised. We were told that we should read both together,[64] so what follows endeavours to compress the two and make the essential points. As will be seen, it is not necessary to deal with every point separately to decide the appeal.
[64] Transcript of appeal proceedings 7 April 2021 page 3
67.The appellants’ documents set out specific findings and point to various pieces of evidence that, they contended, establish what was overlooked and is inconsistent with the Original Tribunal’s findings. We will not set them all out here, but we have read them carefully and will advert to them in our consideration.
68.An example is a challenge to a finding by the Original Tribunal (at [59]) that the appellants’ proposed use unreasonably interferes with use of the Dining Room by other owners. The evidence relied on by the appellants includes the limited use sought in their first email,[65] the appellants’ explanation that the use was only as an adjunct as they had secured other premises,[66] their assurances to the Committee that they were sensitive of the needs of others and would cooperate in ensuring fair use,[67] referring to their notes of the meeting of 21 October 2019,[68] their email on 3 September 2019,[69] and evidence of the low use of the room.[70] In another document provided to the Original Tribunal, in which the appellants critiqued aspects of Mr Hall’s witness statement, they stated that they had told the previous Chair of the Executive Committee that the proposed frequency of use would be within a range of five to 15, and that the lower figure had proved to be the reality.[71]
[65] Original application appendix A1
[66] Original application appendix A9
[67] Original application appendix A1, A15
[68] Original application attachment M&J 002 – reasons for our application page 4
[69] Original application appendix A20
[70] Original application appendix D3
[71] Appellants reply to additional response of respondent of 22 April 2020, dated 5 May 2020 at AB2; request for subpoena, dated 5 May 2019, pages 10, 11
69.As we have come to a decision that favours one side or other on each argument, we will state what our conclusion is and, in doing so, explain the argument to the contrary. We will not say more about what the successful party has said on the topic.
Consideration
Should the findings sought be made?
70.We agree with the Original Tribunal that it is orders that the Tribunal makes, not findings or opinions about the conduct of people – as explained by the Court of Appeal in I.C. Formwork Services Pty Limited v Moir (No 2).[72]
[72] [2020] ACTCA 44 at [15]-[19]
71.The underlying object of section 129 of the UTM Act is to resolve disputes, not to create an environment that will perpetuate them. We think the orders we will make should achieve that purpose.
Was the refusal due to procedural unfairness including bias?
72.Mr Hall in his statement set out at length the approach of the Executive Committee and himself. He asserted that the guiding principles that he followed were to do the right thing by all owners and to treat all fairly. His considered statement about his approach to the matter reveals a conscientious and thorough examination of the matters involved. He stated that, in his observation, other Committee members have behaved similarly. We are impressed by the statement. In any event he was not cross-examined due to the nature of the hearing before the Original Tribunal and, even if we might be of a mind to doubt this, it is not open to us to do so.
73.In expressing that view, we acknowledge that the appellants provided the Original Tribunal with a detailed written critique of aspects of Mr Hall’s witness statement,[73] and they advised us at the hearing of that critique.[74] While some of the criticisms made by the appellants inform other aspects of our decision on the main issue in this appeal, the critique confirms that the appellants were given opportunities to present their case to the Executive Committee on various occasions, although they disagree with the Committee’s characterisation of their enterprise.
[73] Appellants’ reply to additional response of respondent of 22 April 2020, dated 5 May 2020 at AB2; request for subpoena, dated 5 May 2019, pages 9-13
[74] Transcript of appeal proceedings 7 April 2021 pages 48-50
74.Mr Amentas, who appeared for the respondent, reminded us that the Executive Committee is made up of volunteers who give up their time for what can be a burdensome and often thankless task.[75]
[75] Transcript of appeal proceedings 7 April 2021 page 27
75.As the chronology of emails and other communications between the Johnsons and the Executive Committee demonstrates, they were given (and they accepted or precipitated) a series of opportunities to put arguments orally and in writing in support of their application to the Executive Committee. In that sense, they were afforded procedural fairness.
76.We well understand why the appellants see the matter as personal, but objectively, we are not persuaded to that conclusion. It is to be expected that where decisions are to be made by fellow owners that impact on one owner, personal sensitivities can be affected. The very nature of a strata plan is such that the decisions to be reached by the Executive Committee or at the AGM will be by people who know each other and who might from time to time get cross with each other. Bias in this context cannot be as clear as in the conduct of a court case, for example, where the decision-maker is unknown to the parties and has no interest in common with them. It is presumably for this reason that the Tribunal has the power to repeal or amend a resolution of the Executive Committee on the merits (section 129(1)(f)), and any injustice real or perceived may be remedied by doing so.
Special privilege or rule change – General Meeting
77.As noted earlier, a suggestion has been made that the Johnsons seek a ‘special privilege’ in relation to the proposed use of the Dining Room. The Dictionary to the UTM Act provides that ‘special privilege’ means:
a right, other than a sublease, granted to a person to use the common property of a units plan in a manner that is additional to, or restrictive of, the rights of other people (who are not granted the special privilege) to use the common property.
78.Section 22(1) of the UTM Act provides:
22 Special privileges relating to common property
(1) An owners corporation for a units plan may, if authorised by a special resolution, grant a special privilege for a period of less than 3 months to—
(a) a unit owner; or
(b) someone else with an interest in a unit.
Example
a right to the exclusive use of a pool area for a private party
Note A special privilege that is granted for a period of 3 months or more must be granted by a special privilege rule (see s 112A).
This requires a special resolution that needs 75% of a vote at a General Meeting.[76]
[76] Unit Titles (Management) Act 2011 Schedule 3, section 3.16
79.What the appellants seek is the use of the Dining Room within the current booking system that envisages use to the exclusion of others for short periods that are a minor use. This is not a ‘special privilege’ and they do not want to change the rules. The suggestion that this request should be the subject of a resolution by a General Meeting is therefore not applicable.
80.We have also considered whether the matter generally should be referred to a General Meeting. Any resolution of such a meeting may well be challenged in the Tribunal, just as the Executive Committee’s decision is, and there is no practical benefit in doing so where, as here, we consider that the decision might be reviewed on the merits.
A review on the merits
81.As we have set out in the discussion of the relevant legislation, the Original Tribunal should have considered whether, standing in the shoes of the Executive Committee, she regarded it as unreasonable to refuse the Johnsons’ request. She did not do this but assumed that it was for the Committee and not her to make the call and she should only interfere if it was subjectively unreasonable.[77] In taking this approach she fell into error.
[77] Johnson & Anor v The Owners Corporation – Units Plan 4373 [2020] ACAT 114 at [62], [63]
82.As the Original Tribunal stated, Schedule 2, section 2.4 of the UTM Act provides that the Executive Committee 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.
83.The Original Tribunal assumed (without proof and contrary to the assertions of the Johnsons, whose use was known to it) that the use would likely require some regular and frequent booking and would unreasonably interfere with the use of the Dining Room by other owners.[78] She did not consider whether the approval, if any, might limit the frequency and length of use which the Johnsons assert they would accept if it interfered with other owners.
[78] Johnson & Anor v The Owners Corporation – Units Plan 4373 [2020] ACAT 114 at [59]
84.The Original Tribunal drew comfort from the result of the survey. The survey was poorly drafted and likely to produce a negative response. It was only replied to by about one half of the owners, and the comments of some responses revealed a series of unmerited assumptions that might have been dispelled if the question had been put more clearly (by reference to the particular application being considered) or with a balanced explanation. Consequently, we regard the result of the survey as of little or no worth in guiding the decision of the Executive Committee in relation to the Johnsons’ application. The result should not have influenced the Executive Committee or the Original Tribunal. Even more significant is the opinion expressed by the Committee in its 13 June 2019 email that their concerns did not apply to the proposed use by the appellants. Mr Hall made a similar point at paragraph [46] of his statement.
85.What the negative responses to the survey[79] show is that the use of the word ‘commercial’ without explanation conjured up a series of consequences which would have prevented approval being given under the existing rule as they would amount to more than ‘minor’ use. The Executive Committee was sidetracked by its concern about setting a precedent and the ‘commercial’ quality of the proposed use of the Dining Room. The provision of the UTM Act that enables use of common property has the solution built in by the use of the word ‘minor’ and the requirement that the use will not unreasonably interfere with the reasonable use and enjoyment of the common property by other members of the corporation.[80]
[79] Original application appendix C3
[80] UTM Act Schedule 2, section 2.4
86.As we have noted, Mr Hall in his statement (at paragraph [53]) identified a number of points that might affect whether permission should be given or continued. Similar considerations were mentioned in the email from the Secretary of 13 June 2019.[81] They are all sensible points and demonstrate the conscientious thought that was given to the issue. They would continue to be relevant in considering any requests. As the previous Committee and Mr Hall (in part at least) acknowledged, the Johnsons’ application met those concerns.
[81] Original application appendix A16
87.We have concluded that the Original Tribunal did not exercise the discretion available to it. Even assuming that discretion was exercised, it was attended with error such that we must exercise the discretion afresh. It follows that the discretion the Original Tribunal had miscarried, and it is for us to determine what is the preferable decision.
88.In our view the Executive Committee’s decision to refuse permission is not the preferable one and the Johnsons’ request should be granted.
Other issues
89.The judgment in Cooper v The Owners-Strata Plan 58068[82] does not add to our understanding here. We do not agree with the appellants’ submission that a rule or by-law has been made. We accept that, in practice, whenever the undefined word ‘commercial’ might be attached to a proposed use, that use would probably not be allowed by the Executive Committee. But that does not elevate a decision-making practice into a rule or by-law.
[82] [2020] NSWCA 250
90.We have drafted an order that allows the Johnsons’ request subject to conditions. This draft differs from that proposed by the appellants, as we consider that their proposal does not go into enough detail. Because there might be some practical problems with our draft, we will give the parties liberty to make submissions about the form of the approval. If no submissions have been received from either party within 14 days of the date of our orders, the proposed Order 3 will become final.
91.The Orders are:
1.The appeal is allowed.
2.The decision of the Executive Committee of the respondent to refuse to allow the request by the appellants to use the Dining Room for drawing classes is set aside.
3.The request by the appellants to use the Dining Room is allowed on the following conditions:
(a) Janet Johnson may use the Dining Room for drawing classes conducted by her.
(b) Mark and Janet Johnson must hold adequate public liability insurance in respect of that use of the Dining Room.
(c) Each such use will be for a period no longer than approximately 2.5 hours.
(d) The size of each class (usually about three or four people) will not exceed 10 people.
(e) The use will be occasional only and not unduly frequent.
(f) The availability of the Dining Room for that use is subject to the Dining Room booking system now in place.
(g) Mark and Janet Johnson are responsible for ensuring that the persons attending each class are quiet and respectful of residents and that the Dining Room is left clean and tidy after each class.
4.The parties have liberty to make submissions about the form of Order 3 within 14 days of these orders being made, and that Order will not come into force until:
(a) if no submissions are received within that time, 9 July 2021; or
(b) if submissions are received, on a date to be notified to the parties.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
Date(s) of hearing 7 April 2021 First Appellant:
Second Appellant:
In person
In person
Solicitors for the Respondent:
David Amentas, Clyde and Co
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