Lloyd v The Owners Corporation - Units Plan 527 (Appeal)
[2021] ACAT 63
•6 July 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LLOYD v THE OWNERS CORPORATION – UNITS PLAN 527 (Appeal) [2021] ACAT 63
AA 28/2020 (UT 14/2020)
Catchwords: APPEAL – unit titles – motion to permit unit owner to park vehicles on common property – motion defeated at annual general meeting – application to Tribunal to give effect to the motion – application dismissed – appeal conducted as a review of that decision – whether further evidence from the appellant should be admitted – whether the Original Tribunal correctly decided that defeat of the motion was not “unreasonable” – no error of fact of law - appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 82
Unit Titles (Management) Act 2011 ss 22, 129, Sch 3 s 3.17
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 91
Cases cited:Ainsworth v Albrecht [2016] HCA 40
Bonansea v The Owners – Units Plan No 421 [2019] ACAT 10
Clews v The Owners – Units Plan 3069 [2019] ACAT 63
Hurst-Meyers v Aulich Civil Law Pty Ltd ACN 155 746 777 [2020] ACAT 56
Lloyd v The Owners Corporation Units Plan 527 [2020] ACAT 75
Uren v The Owners – Units Plan No 396 [2017] ACAT 51
Tribunal:President G Neate AM
Senior Member E Ferguson
Date of Orders: 6 July 2021
Date of Reasons for Decision: 6 July 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 28/2020
BETWEEN:
KIMBERLEY LLOYD
Appellant
AND:
THE OWNERS CORPORATION – UNITS PLAN 527
Respondent
APPEAL TRIBUNAL: President G Neate AM
Senior Member E Ferguson
DATE:6 July 2021
ORDER
The Tribunal orders that:
1.The appeal is dismissed.
2.Paragraphs [16] and [44] of the reasons for decision in Lloyd v The Owners Corporation Units Plan 527 [2020] ACAT 75 are corrected pursuant to the slip rule by deleting “Unit 5” and inserting “Unit 3” and paragraph [22] is corrected by deleting the first reference to “Unit 2” and inserting “Unit 3”.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
1.Ms Lloyd owns and occupies Unit 2 in the respondent unit corporation. She has appealed against the decision of a Senior Member of the tribunal (the Original Tribunal) to dismiss her application under section 129(1)(g) of the Unit Titles (Management) Act2011 (the UTM Act) for an order giving effect to an unsuccessful motion to grant a special privilege for her to park vehicles on the common property (the Original Decision).[1] The Owners Corporation defended both the original application and this appeal.
[1] Lloyd v The Owners Corporation Units Plan 527 [2020] ACAT 75 (Original Decision)
2.Section 129(1)(g) of the UTM Act provides that the Tribunal may make an order giving effect to an unsuccessful motion if it is satisfied after a merits review that opposition to the motion was “unreasonable.” In her decision, the Original Tribunal wrote:[2]
I cannot conclude that the objections are unreasonable, at least not within the meaning of the word in the UTM Act. This is a fundamental issue. Therefore, no matter what my determination on the merits of the case, I must dismiss the application.
[2] Original Decision at [45]
3.Ms Lloyd appealed on the sole ground that the Original Tribunal erred in not finding that the opposition to her motion was unreasonable (the unreasonableness issue).[3] The finding on this issue determined the outcome of Ms Lloyd’s original application. We dealt with the appeal as a review of the Original Tribunal’s finding on the unreasonableness issue pursuant to section 82 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
[3] Transcript of appeal proceedings, 3 February 2021, pages 2-3, 26
4.Ms Lloyd did not challenge the legal test of what is “unreasonable” adopted by the Original Tribunal. Rather, she argued that the Original Tribunal misapplied that test to the factual context in which her motion was rejected.
Background
5.The units complex comprises 10 free standing units each with an attached double garage. Residents and visitors gain access to the units by way of a common driveway. As the Original Tribunal observed, the boundary of the Unit 2 lot is a short distance beyond the garage doors. Consequently, most vehicles parked in front of Unit 2 will extend onto the common property.[4]
[4] Original Decision at [21]
6.For several years Ms Lloyd and her guests regularly parked their vehicles in front of her garage, partially encroaching upon the common property. The strata manager asked Ms Lloyd to stop parking there after receiving complaints from at least one other resident. Ms Lloyd applied to the tribunal to resolve the dispute.
7.At a directions hearing on 1 July 2020, the Original Tribunal directed Ms Lloyd to put a motion to the 2020 annual general meeting (AGM) of the Owners Corporation to ensure a reviewable decision was produced.[5]
[5] Order 1, 1 July 2020
8.At the AGM on 6 August 2020 Ms Lloyd put the following motion:
The owners of Units Plan 527 agree to granting the Owner of unit 2 special privilege indefinitely (or until the privilege is retracted in way of a special resolution) for the area highlighted by the red boundary in the above image, for the purpose of parking vehicles.[6]
[6] Minutes of AGM 2020, page 3
9.At the time of the AGM, section 22 of the UTM Act included the following provisions:
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. [emphasis added]
10.An ‘unopposed resolution’ means a resolution of a general meeting passed as required by schedule 3, section 3.17, which states:
3.17 Unopposed resolutions
The requirements for passing an unopposed resolution at a general meeting are that—
(a) no votes are cast against the resolution; and
(b) at least 1 vote is cast in favour of the resolution.
11.Mr Sanguineti and another owner voted against Ms Lloyd’s motion and so it failed.
12.It is not apparent why the other owner objected. Mr Sanguineti objected on two grounds: first, that the proposed parking privilege would raise insurance issues; and second, that it would interfere with access to his driveway and garages. Those objections were described respectively as the “insurance issue” and the “access issue” in the Original Decision.[7]
[7] Original Decision at [38]
13.The Original Tribunal was not convinced by the first objection, but found that that Mr Sanguineti’s access to the left side of his garage was made more difficult by vehicles parked in front of Ms Lloyd’s garage.[8]
Hearing of Appeal
[8] Original Decision at [39]-[41]
14.On 24 September 2020, Ms Lloyd filed an application for appeal against the Original Decision. She later made two separate applications, on 11 December 2020 and 11 January 2021 respectively, for leave to submit further evidence on appeal. She annexed to her leave applications 14 documents that she wanted the Appeal Tribunal to consider. The present Tribunal heard all matters together on 3 February 2021.
15.The parties relied on the extensive written submissions each had filed prior to the hearing. The purpose of the hearing was to clarify Ms Lloyd’s grounds for appeal and to hear submissions on the further material Ms Lloyd wanted us to consider. At the conclusion of the hearing we reserved our decision both on the substantive appeal and the application to provide further evidence.
Summary of Appeal Decision
Further evidence
16.We admitted into evidence a photograph produced at the AGM, which was not objected to by the respondent. Ms Lloyd did not press the admission of another document regarding the insurance issue. We refused Ms Lloyd’s applications for leave to adduce the remaining documents because none of them would have made a difference to the finding of the Original Tribunal on the issue of unreasonableness. In reaching that conclusion, we also took into account that some of the documents could not be characterised as evidence, and most could have been produced to the Original Tribunal.
Substantive Appeal
17.After considering the parties’ submissions and the evidence before the Original Tribunal and this Appeal Tribunal, we dismissed Ms Lloyd’s appeal because we were not satisfied that the Original Tribunal had made an error of fact or law in her findings on the unreasonableness issue.
Legislation and legal principles - purpose of an appeal and further evidence
18.The presiding member in this Appeal Tribunal, President Neate, reviewed and summarised the law relating to the handling of appeals in the tribunal, and in particular the admission of further evidence on appeal, in Hurst-Meyers v Aulich Civil Law Pty Ltd ACN 155 746 777[9] (Hurst-Meyers). There is no need to reproduce that summary in full, but it is paraphrased below and we have adopted the same approach in relation to this appeal.
[9] [2020] ACAT 56 at [6]-[33]
19.Section 82 of the ACAT Act provides:
82 Handling appeals
An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal—
(a)as a new application; or
(b)as a review of all or part of the original decision on the application by the tribunal.
20.The present Tribunal dealt with the appeal as a review of the Original Decision.[10]
[10] Order 6 made by Senior Member Katavic on 9 November 2020 included: “The appeal hearing will proceed as a review of the original decision unless the Appeal Tribunal orders otherwise.”
21.Rule 91(c) of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (ACAT Rules) sets out the general powers of an appeal tribunal for an appeal within the tribunal. Among other things, an appeal tribunal:
(c) may, if leave is granted, receive further evidence about questions of fact, either orally or in a hearing, by written statement or in another way…
22.President Neate described the purpose of an appeal by review in the tribunal in Hurst-Meyers as follows:
Having set out what section 82 and Rule 91(c) provide, it is appropriate to express colloquially what they do not provide. Dealing with an appeal as a review of an original decision under section 82 is not simply an opportunity for an unsuccessful party to have a “second bite of the cherry.” In order to succeed, an appellant must be able to satisfy the Appeal Tribunal that the Original Tribunal made an error (or errors) of fact or law. Similarly, the Rules provide that leave has to be granted before further evidence is received about questions of fact [which] shows that Rule 91(c) does not give an unsuccessful party free reign to “plug the gaps” in their case that were exposed by the reasons for decision of an Original Tribunal.[11]
[11] Hurst-Meyers at [10]
23.After reviewing the relevant authorities, he concluded:
…it is apparent that an Appeal Tribunal would only grant leave to admit further evidence about questions of fact in exceptional circumstances where it serves the demands of justice to do so.[12]
[12] Hurst-Meyers at [30]
24.No exceptional circumstances applied in this case, which was essentially a dispute between two neighbours in an owners’ corporation about one seeking to use the common property for parking in the face of opposition from another.
25.Following the principles identified in Hurst-Meyers in deciding whether to exercise the broad discretionary power under Rule 91(c) of the ACAT Rules, we considered the following matters:[13]
(a) whether the evidence was available at the time of the hearing before the Original Tribunal;
(b) if the evidence was available at the time, whether it could have been obtained and tendered or adduced orally at the hearing;
(c) if the evidence was available, whether the party chose not to tender or adduce it;
(d) if the evidence had been available to the Original Tribunal, whether it would have produced a different result. [emphasis added]
[13] Hurst-Meyers at [31]
26.In relation to some of the material submitted, we also had cause to consider whether it was ‘evidence on questions of fact’ within the meaning of Rule 91(c).
27.Evidence is material which goes to establish a factual issue. It does not include a party’s arguments or the legal authority (cases and legislation) relied on to support those arguments. Rule 91(c) expressly limits the tribunal’s power to grant leave to receive further ‘evidence’ about questions of fact.
28.Because this appeal is a review of the Original Decision, it follows that any further evidence must be about a fact in dispute in the original proceedings. Further, Ms Lloyd’s appeal is limited to a review of the Original Tribunal’s finding on the unreasonableness issue. Therefore, only evidence going to this issue is relevant to our considerations.
Appellant’s applications to adduce further evidence
29.On 9 November 2020, Senior Member Katavic directed the appellant to, amongst other things, give to the respondent and the tribunal by 23 November 2020, a copy of any proposed further evidence to be filed for the hearing of the appeal accompanied by an application seeking leave to do so.[14] Senior Member Katavic further directed that any applications for leave to adduce further evidence would be heard at the commencement of the hearing on 3 February 2021.[15]
[14] Order 1(b) of Orders made on 9 November 2020
[15] Order 7 of Orders made on 9 November 2020
30.On 11 December 2020 and 11 January 2021, Ms Lloyd made separate interim applications for leave to adduce further evidence at the hearing of the appeal. Annexed to each was a bundle of the documents she sought leave to file (details of which are set out later in these reasons).
31.On 7 December 2020, as directed by the Tribunal,[16] the respondent filed its response to Ms Lloyd’s appeal.
[16] Order 2 of Orders made on 9 November 2020
32.At the time the respondent filed its response the appellant had not applied for leave to adduce any further evidence. She had however attached the 10 documents with an index to her Application for Appeal. It was these 10 documents which Ms Lloyd later sought leave to adduce on 11 December 2020.
33.The respondent anticipated that Ms Lloyd would apply for leave in relation to the documents submitted with the Appeal and took the opportunity in its response to object to the admission of all documents, except document 5, a photograph produced by Unit 3 to the AGM of 6 August 2020.
34.The respondent did not respond to Ms Lloyd’s second application but made oral submissions in relation to it at the appeal hearing.
35.We considered both applications for leave on their merits, despite Ms Lloyd’s failure to comply with the Tribunal’s timetable, because in our view the respondent had an adequate opportunity to object to the admission of the fresh material and so was not disadvantaged by her delay.
The types of evidence sought to be adduced
36.In her first application Ms Lloyd sought leave to adduce the following documents. We have adopted the numbering and dates in her index of documents but modified and added emphasis to some of the descriptions for greater clarity (Documents 1-14):
1.“Building Design and sitting (sic) for UP 527” – Approved Design and site plan for affected part of the complex, date approved 20 May 1988.
2.“Signatures from 80% of the owners corporation confirming there is no issues where residents and visitors to Unit 2 interfere with access or enjoyment”. 6 November 2020. We note the petition is undated and appears to be signed by an owner of each unit in the complex including the appellant, apart from Units 3 and 8, in support of the statement that:
We the undersigned confirm that when vehicles are parked at Unit 2 in front of the attached garages our enjoyment of the common property is not compromised and that our access to internal roads and properties is not impeded. [emphasis in original]
3.Extract of Schedule 1 Unit Titles (Management) Regulation 2011 (UTM Regulation): Rules 1.4 Erections and Alterations; and 1.7 Use of Common Property. We note this is described differently in the Applicant’s Index of documents.[17]
4.“Photos of damage to Unit 2”. 17 August 2020. Photos of damage to garage doors of U2, “done by persons unknown reversing from access road, across common property into the boundary of Unit 2 on multiple occasions.”
5.“Photo provided by Unit 3 at AGM”. April 2019.Photo produced by Unit 3 at AGM showing vehicles parked in front of Unit 2.
6.“Multi-Unit Housing Development Code. Table and Diagram. Authorised by the ACT Parliamentary Counsel”. 21 February 2020 showing side and rear boundary setbacks.
7.Communication with Strata manager after AGM. 5 April 2019 and 1 May 2019 regarding cars parked in front of the Unit 2 garage.
8.“Insurance query from Strata Insurance brokers”. 2 July 2020.
9.“ActewAGL Sewer network map showing driveway sitting (sic)”. 2006.
10.“Advice obtained from original surveyor Peter Gately as per Unit Titles plans”. 19 October 2020.
[17] Described in Appellant’s Index of documents annexed to application for leave as: “Unit Titles Legislation Amendment Act 2020 (ACT). A2020-4: As notified - Start date: 30 April 2020”.
37.In her second application, Ms Lloyd sought leave to submit several annotated photographs. As these were unnumbered, we have adopted and continued the numbering of the index to the first application.
11.Three photographs described as “Ute and trailer at Unit 3, as it can be seen access to Unit 3 even when oversized is not impeded”, page 1.
12.One photograph of (Vehicle) “Parked at Unit 2 on common property parallel to main area in contention”, page 2.
13.One photograph of “Car and motorcycle at Unit 3, as you can see even with both in place there is still space behind the Car showing the length of the space available for manoeuvring at Unit 3”, page 3.
14.“Breakdown of area” (looking along access to Unit 3 garage with entry to Unit 2 visible on the left) – two photographs, one original and the second with coloured overlay added by Ms Lloyd to illustrate what she thinks are relevant areas and commentary, page 4.
Application of test to admit fresh evidence
38.We admitted Document 5 because it was both relevant to the reason the motion was objected to at the AGM and its admission was not opposed by the respondent.[18] At the appeal hearing Ms Lloyd accepted that Document 8 was no longer relevant and did not press its admission. Our decision and reasons in relation to each of the remaining 12 documents is set out below.
[18] Response to appeal dated 7 December 2020, page 19
39.There was no hearing in the original proceedings, as the parties agreed to the Original Tribunal determining the application on the materials filed by the parties. The critical date by which Ms Lloyd was required to submit all evidence upon which she intended to rely was 14 August 2020, the date on which the Original Tribunal reserved its decision.
40.According to the dates ascribed by Ms Lloyd, Documents 1, 7 and 9 were in existence as of 14 August 2020 but Documents 2, 4 and 6 were not. Somewhat confusingly, Ms Lloyd told the Appeal Tribunal that:
Everything existed. [except Document 2, the updated petition] I just didn’t have it in hand or recall these documents existed. So I found them all after the fact of Member Robinson’s dropping the application.[19]
Document 1
[19] Transcript of appeal proceedings, 3 February 2021, page 8
41.Document 1 is a plan which shows six of the 10 units in the complex, including Units 2 and 3. It appears to be a site plan and is stamped by National Capital Development Commission (NCDC), Approval Granted 20 May 1988. It is not detailed but includes a scale.
42.The respondent objected to this document on the grounds that it is not the “as constructed plan.” Mr Sanguinetti described it as a sketch or “indicative drawing”.[20] In its response, the respondent referred to five documents it produced without objection in the original proceedings, which were of more value in objectively determining the layout of the complex.[21]
[20] Transcript of appeal proceedings, 3 February 2021, page 9
[21] Response to appeal dated 7 December 2020, pages 17-18
43.We accept the probative value of Document 1 is limited by a lack of detail and that it was produced at a preliminary planning stage. Nevertheless, it illustrates that, at least initially, the design only provided for direct access from the common property via a straight line to the right side of Unit 3 double garage.
44.To enter the left garage, Mr Sanguineti had to approach as if to enter the right garage and then, once he crossed his boundary, turn towards his left garage.
45.Sometime before Ms Lloyd bought Unit 2 in 2013, Mr Sanguineti widened the driveway within his lot, thereby making it possible for him to approach the left side of his garage from the common property in a straight line. Both the original and expanded approach were across paved areas of common property.
46.Only the more direct approach to Unit 3’s left garage was obstructed by vehicles parked in front of Ms Lloyd’s garage. If he wished, Mr Sanguineti could still use the original, more convoluted path to gain access. This factual scenario is implicit in the Original Tribunal’s reasons and so further evidence to establish it could not have affected their finding on the reasonableness of Mr Sanguineti’s objection.[22]
Document 2
[22] Original Decision at [22]
47.It was not in dispute that the majority of owners were not inconvenienced by Ms Lloyd parking on the common property in front of her garage, and that Mr Sanguineti was mostly or solely affected. As this fact was not disputed in the original proceedings, no evidence is required to establish it. It is irrelevant to the reasonableness of Mr Sanguineti’s opposition that other owners were unaffected by Ms Lloyd’s proposal.
Document 3
48.Document 3 is an extract of Schedule 1 of the UTM Regulation as amended: Default Rules 1.4 Erections and Alterations; and 1.7 Use of Common Property.[23]
[23] Described in Index of documents annexed to the first application for leave as: “Unit Titles Legislation Amendment Act 2020 (ACT). A2020-4: As notified - Start date: 30 April 2020”. These regulations took effect on 30 April 2020, that is before the Original Tribunal reserved her decision, prior to which the default rules for an owners corporation were located in the Schedule 1 of the UTMA. The new Rules 1.4 and 1.7 reflect previous Rules 4 and 5. The new rules are in all relevant respects identical to those they superseded.
49.At the foot of the document, Ms Lloyd has added commentary about the relevance of the extracted Rules to both Mr Sanguineti’s historic alteration to his driveway and her proposed use of the common property in front of her garage for parking. As we understand it, the purpose of the document is to submit that Mr Sanguineti had actually, or possibly, breached the Owners Corporation’s rules by extending the driveway within his lot without approval; whereas Ms Lloyd did not breach the rules by parking in front of her garage.
50.We did not admit this document into evidence for the following reasons.
51.The document does not contain evidence about a question of fact. Instead, it contains an argument or submission from Ms Lloyd and the legislation she relies upon to support that argument.
52.Ms Lloyd could have put this argument and cited either the current rules, which came into effect on 30 April 2020, or the equivalent rules they replaced, in the original proceedings.
53.Had the material been produced to the Original Tribunal it would not have produced a different result.
54.It is not relevant to the original application, which was for a merits review of an Owners Corporation decision. Determination of actual or potential infringement of the Corporation’s rules by either party are matters for a separate application. For this reason, the Original Tribunal declined to consider the respondent’s request for an order prohibiting parking on the common property on the grounds that it is in breach of the Corporation’s rules, stating: “[t]he respondent has not lodged a counter claim or an application, and therefore this issue is not properly before the Tribunal”.[24]
Document 4
[24] Original Decision at [30]
55.The apparent purpose of Document 4 is to establish that the broadened access to Unit 3 created a hazard to Unit 2 in breach of the Owners Corporation’s rules. Ms Lloyd failed to demonstrate any connection between Unit 3 and the damage to her garage door. As previously observed, rule infringements were beyond the scope of what the Original Tribunal had to determine. We did not admit the document into evidence because it was irrelevant to the issue on appeal
Document 6
56.This document is described as “Multi-Unit Housing Development Code Table and Diagram” The respondent said it applies to houses and not townhouses such as those which comprise this complex. It is apparently an extract from a larger document, and without the benefit of context there is insufficient information for us to determine whether it applies to this complex.
57.Ms Lloyd annotated the document as follows:
Showing that when the full allowable 6m is measured in the front of my home my partial driveway inclusive of the requested access to common property makes up my full physical boundary.
58.The parties agree that the area in dispute is common property. Therefore, it is by definition not within the boundaries of Ms Lloyd’s individual lot. There is no legal basis for Ms Lloyd’s argument and so the material she advances to support it would have made no difference to the Original Decision.
59.It is not relevant to the issue on appeal.
60.We also note that the document is not evidence of a fact in dispute in the original proceedings, but rather delegated legislation combined with a new submission.
Document 7
61.Ms Lloyd told us at the hearing that the correspondence between her and the strata manager in Document 7 was before the Original Tribunal.[25]
[25] Transcript of appeal proceedings, 3 February 2021, page 7
62.Ms Lloyd described the correspondence as “background on discussion with the strata manager about the situation” and “information … about what’s occurred behind the scenes.”[26] We did not admit it because we were not satisfied it had any relevance to the issue in dispute.
Document 9
[26] Transcript of appeal proceedings, 3 February 2021, page 19, lines 5-7
63.We declined to admit this document for the same reasons as Document 1.
Document 10
64.Document 10 contained a plan or diagram depicting Unit 3 and the area in front of the garage of Unit 2; and an aerial photograph of Units 2 and 3. Ms Lloyd told us these images were included in the material before the Original Tribunal.[27]
[27] Transcript of appeal proceedings, 3 February 2021, page 15
65.The only new material was an annotation in which Ms Lloyd advances a fresh argument to the effect that Mr Sanguineti could have addressed the access issue by utilising un-used space to the right of his garage for access.
66.Ms Lloyd based her submission on observations reportedly made to her by the original surveyor, Mr Gately who she consulted on 19 October (no year was nominated but presumably 2020). To the extent that the material contained in this document is new, it is not evidence of a factual issue in dispute in the original proceedings. Rather, it is a new argument raised for the first time on appeal and so is not admissible. We also agree with the respondent’s submission that the reported conversation with the surveyor, Mr Gately, is hearsay.[28] Although we are not bound by the rules of evidence, his alleged comments are of no probative value because they cannot be tested and Mr Gateley’s qualifications to advance such an opinion were not established.
Documents 11, 12 and 13
[28] Response to appeal dated 7 December 2020, page 20
67.Documents 11, 12 and 13 are photographs of various vehicles either parked in front of Unit 2 or in the driveway of Unit 3. They were taken after the Original Decision was delivered[29] but they are intended to demonstrate typical use of the area. Equivalent photographs could as easily have been taken and submitted before the Original Decision was reserved. We also note that other similar photographs were before the Original Tribunal. Documents 11, 12 and 13 add nothing further to resolution of the issue in dispute and so we have not admitted them.
Document 14
[29] Transcript of appeal proceedings, 3 February 2021, page 23
68.Document 14 is a photograph of the area between Unit 2 and Unit 3, upon which Ms Lloyd has overlaid a colour code describing various areas as either “Common Property”, “Unit 3 Drive”, “Unit 3 property”, “Access Road”; or “Unit 2 Drive”. The photograph was taken by Ms Lloyd after the Original Decision was handed down.
69.The respondent argued in relation to these paved areas that there are only two designations in the unit plan (either individual lots or common property) and that all the paved common property can be used by all owners for access purposes.
70.Although taken after the original hearing, the photograph itself adds no new factual information. What is new is Ms Lloyd’s diagram describing the permitted use or character of the paved areas between Units 2 and 3.
71.The apparent purpose of Document 14 is to restate, in a visual form, the argument Ms Lloyd put to the Original Tribunal, that any access issue was caused by Mr Sanguineti reconfiguring his driveway in a way not envisaged by or compatible with the original design of the complex.[30] We have not admitted the photograph because it adds no new information and is not relevant to the issue of unreasonableness.
[30] Original Decision at [26]
The Appeal Ground: Did the Original Tribunal err in not finding the opposition to the motion unreasonable?
The reason for the Original Decision
72.Section 129(1)(g) of the UTM Act provides that the Tribunal may make:
(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; [emphasis added]
73.The relevant law on unreasonableness is correctly set out in the Original Tribunal’s decision.[31] She was required to consider whether the opposition to the proposed special privilege was objectively “unreasonable”. On the evidence before her, she was not satisfied that it was unreasonable, at least on the grounds of access to Unit 3.
[31] Original Decision at [34]-[37], [43]
74.The Original Tribunal relied on the leading case on unreasonableness, the decision of the High Court in Ainsworth v Albrecht[32] (Ainsworth), in which the Court considered a Queensland body corporate’s decision to refuse a lot owner permission to use common property airspace between the existing balconies of his unit. The Original Tribunal also considered how the tribunal had previously applied Ainsworth to cases under the UTM Act, Clews v The Owners - Units Plan 3069[33] (Clews) and Bonansea v The Owners - Units Plan No 421[34] (Bonansea).
[32] [2016] HCA 40
[33] [2019] ACAT 63
[34] [2019] ACAT 10
75.The Original Tribunal quoted with approval the following statement of Acting Presidential Member Orr in Clews:
Unit owners at a general meeting are free to vote on motions however they see fit. They are equivalent to shareholders of a corporation, or voters in a democracy. However, the power in section 129(1)(g) of the Unit Titles Management Act allows unreasonable votes in relation to unit titles management to be overridden. In my view, the concept of unreasonable means objectively unreasonable in the particular context.
In Ainsworth the High Court considered this type of provision in the context of proposed construction by Mr Albrecht on common property airspace between two balconies to a unit owned by him, but opposed by Mr Ainsworth and other unit owners, and stated at [55] that it:
...is no light thing to conclude that opposition by a lot owner to a resolution is unreasonable where adoption of the resolution will have the effect of appropriating part of the common property to the exclusive use of the owner of another lot, for no return to the body corporate or the other lot owners; ... and potentially creating a risk of interference with the tranquillity or privacy of an objecting lot owner.
The judgment at [57] noted that nothing in the relevant legislative scheme suggested that an opponent to a proposal acts unreasonably in failing to act sympathetically or altruistically towards a proponent who seeks to diminish the property rights of the opponent.
However, the High Court stated that while it was neither necessary nor desirable to attempt an exhaustive statement of when an order should be made, that “... opposition to a proposal that could not, on any rational view, adversely affect the material enjoyment of an opponent’s property rights may be seen to be unreasonable”. Similarly, it noted that opposition “prompted by spite, or ill-will, or a desire for attention, may be seen to be unreasonable in all the circumstances”. In the case before the Court the proposal “was apt to create a reasonable apprehension that it would affect adversely the property rights of opponents of the proposal and the enjoyment of those rights.” The opposition could not therefore be said to be unreasonable.[35]
[35] Clews at [35]-[37]
76.In Bonansea, Presidential Member McCarthy wrote:
Also, applying the High Court’s reasoning in Ainsworth, the “unreasonableness” with which section 129(1)(g) is concerned is unreasonableness on the part of the opposing unit owners having regard to their interests under the Units Plan. It follows, in my view, that opposition must be based on a factor or factors that adversely affect the interests of other unit owners in their use and enjoyment of their units, or in the common property as occurred in Ainsworth.[36]
[36] Bonansea at [33]
77.The Original Tribunal rejected the first reason but found in relation to the access issue:
I do not accept that access to Unit 3’s garages is seriously impeded by the applicant parking her vehicles on the common property. However, I accept that access to the left-hand side of the Unit 3’s driveway may be impeded. I accept that access to the left-hand side of the double garage from the right-hand side of the driveway is more difficult than it would be from the left-hand side driveway, as there is less space to line the vehicle up.
It is impossible, on the evidence, to assess just how significant an interference this is. However, it is not a matter of no substance. I am satisfied that ease of access to his driveway and garages is a matter capable of affecting Mr Sanguiniti’s (sic)use and enjoyment of his lot property.
…
I cannot conclude that the objections are unreasonable, at least not within the meaning of the word in the in the UTM Act. This is a fundamental issue. Therefore, no matter what my determination on the merits of the case, I must dismiss the application.[37] [emphasis added]
Appellant’s arguments
[37] Original Decision at [41], [42], [45]
78.In her written submissions (List of Errors), Ms Lloyd cited the authorities on which the Original Tribunal relied and applied them to the facts in this case to reach a different conclusion. However, her submissions indicate that she does not understand/accept the legal test. In summary, Ms Lloyd argued that the opposition to her proposal was objectively unreasonable when the following circumstances were taken into account:
(a)The overwhelming majority of owners were not affected by Ms Lloyd parking on the common property in front of her garage and did not oppose her motion.
(b)The inconvenience and safety issues suffered by Ms Lloyd and her visitors as a result of being unable to park in front of her garage.
(c)To the extent that there is an access issue, Mr Sanguineti has created it by making alterations within his lot to create “an artificial entrance” to Unit 3 not envisaged by the original design of the complex.
(d)That such alterations were either not, or possibly not, approved by the Owners Corporation.
(e)Driving across the common property close to Ms Lloyd’s garage and within her boundary in order to access Unit 3 created a hazard to residents and visitors and caused damage to her garage door.[38]
Consideration
[38] Appellant’s List of Errors received on 23 November 2020, page 5
79.We have already touched on some of Ms Lloyd’s arguments when considering whether her new documents could have altered the Original Decision.
80.The relevant question for the Original Tribunal was not whether it would be unreasonable for a hypothetical, impartial third party to object to the motion but rather was it unreasonable for Mr Sanguineti to object, having regard his individual circumstances and interests. As Senior Member Sutherland observed in Uren & Anor v The Owners – Units Plan No 396:
An opponent to the motion is not required to act with altruism or sympathy for the interests of the proponent, at the expense of the opponent’s reasonably held view of their own interests.[39]
[39] Uren & Anor v The Owners – Units Plan No 396 [2017] ACAT 51 at [17](f)
81.It is irrelevant that other owners were not inconvenienced by Ms Lloyd parking in front of her garage. The UTM Act provides a scheme by which owners in an owners’ corporation can make decisions in a variety of ways, depending on the type of decision.
82.For some decisions a simple majority suffices. But the UTM Act provided that a resolution approving a “special privilege” for an owner to use common property must be passed without any votes against it. This is not a situation in which the view of the majority prevails. Mr Sanguineti’s objection was no less valid or reasonable because it wasn’t shared by the majority of owners.
83.The Original Tribunal noted Ms Lloyd’s particular circumstances. In summary:
(a)The boundary of the Unit 2 lot is a short distance beyond the garage doors. Consequently, most vehicles parked in front of Unit 2 will extend onto the common property.[40]
(b)Ms Lloyd purchased Unit 2 in 2013 and has been parking her vehicle outside her garage (which she uses for storage).[41]
(c)Ms Lloyd says she needs to park close to her property as she has a young child and often needs to unload her car in stages, whilst leaving her child in the car or the unit.[42]
(d)Five close friends of Ms Lloyd have disability parking permits and use the other space outside her unit, as they would struggle to access her premises from available visitor parking spots.[43]
[40] Original Decision at [21]
[41] Original Decision at [23]
[42] Original Decision at [23], [43]
[43] Original Decision at [23]
84.The Original Tribunal acknowledged that the disadvantage to Ms Lloyd outweighed the disadvantage to Mr Sanguineti but correctly observed, “the test does not call for a comparison of interests”.[44]
[44] Original Decision at [44]
85.A number of Ms Lloyd’s arguments were directed at how Mr Sanguineti had created and subsequently used the access to his left garage, which he now sought to protect. In short she alleged:
(a)The access was the result of an unapproved alteration to the driveway within his lot.
(b)Use of the access endangered visitors and guests at Unit 2.
(c)Use of the access endangered property at Unit 2.
(d)Use of the access involved crossing the boundary to Unit 2.
86.The relevance of these assertions (if proved) to the issue of whether Mr Sanguineti’s objection was unreasonable is not clear. We assumed that the crux of Ms Lloyd’s argument is that it is not reasonable for Mr Sanguineti to object to a proposal which interferes with his unreasonable conduct.
87.As previously observed, there is no legal basis for Ms Lloyd’s assertion that Mr Sanguineti crosses her boundary when he enters his property, because the parties agreed the area is common property.
88.In our view, the evidence does not support a finding that Mr Sanguineti’s mode of access to his left garage was inherently dangerous. In any case, it was not a matter decided by the Original Tribunal, so could not give rise to an error on her part.
89.The respondent denies that the alterations to Unit 3 were done without appropriate approval. If Ms Lloyd wishes to assert a breach of the Owners Corporation’s rules she may avail herself of the procedures set out in the UTM Act or under the general law for this purpose. It is a matter beyond the scope of these proceedings.
90.Finally, Ms Lloyd submitted that she is “seeking the same privileges awarded to all residents to park outside their garages”.[45] This is not a ground of appeal. Although it provides the motivation for the proceedings, it discloses a fundamental flaw in her case. The answer is that the owners of other units have parking spaces within the boundaries of those units, which they can use as of right. What Ms Lloyd seeks is a privilege because of the lack of private parking space between her garage doors and the boundary of Unit 2. As she stated at the hearing of the appeal, she has “a unique unit with no driveway or parking available outside the front of my garages”.[46] That limitation would have been apparent when she purchased the unit.
Conclusion
[45] Appellant’s List of Errors received on 23 November 2020, page 5
[46] Transcript of appeal proceedings, 3 February 2021, page 26, lines 41-42
91.Having reviewed the Original Decision we are satisfied that the Original Tribunal did not make an error of either fact or law reaching her finding on the issue of unreasonableness. Accordingly, we dismiss Ms Lloyd’s appeal.
92.We note that in the Original Decision at [16] and [44] reference is made to Unit 5 when it clearly should be Unit 3. In paragraph [22] the first reference to Unit 2 should be a reference to Unit 3. The parties agreed that these were errors. We order that the reasons for decision be amended to correct the errors pursuant to the slip rule.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
Date(s) of hearing 3 February 2021 Applicant: In person Respondent: Ms E Lindbeck and Mr P Sanguineti, authorised representatives
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