May v Owners Units Plan No. 116 (Unit Titles) - [2014] ACAT 38

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MAY v OWNERS UNITS PLAN No. 116 (Unit Titles) [2014] ACAT 38

UT 13/25
Catchwords: UNIT TITLES – merit review of unsuccessful motion before the general meeting of owners corporation to remove tree – whether tree root was the cause of damage to water pipe and carport slab – no reimbursement of cost of replacing water pipe and obtaining an occupational health and safety report about the risk posed by tree – opposition to motion before general meeting is not unreasonable – no interference with outcome of general meeting
Legislation:Unit Title (Management) Act 2011, s 129
Cases: Owners Units Plan 768 v Lokusooriya[2013] ACAT 80
Meaney v The Owners Corporation Units Plan 40
[2013] ACAT 72
The Owners Units Plan No 116 & Nicholson and Ors
[2012] ACAT 63

Tribunal: Ms M.T Daniel - Member

Orders and Ex Tempore Reasons: 2 April 2014
Edited Ex Tempore Reasons: 27 June 2014

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL UT 13/25
BETWEEN:
DR MURRAY MAY
Applicant

AND:
THE OWNERS UNITS PLAN NO 116
Respondent

TRIBUNAL: Ms M.T Daniel - Member

DATE:2 April 2014
ORDER

The Tribunal Orders that:
1. Application dismissed.
Sgd. Ms M.T Daniel – Member

REASONS FOR DECISION

The proceedings were commenced on 18 September 2013 by Dr May by application pursuant to the Unit Titles (Management) Act 2011 (the Act). In that application Dr May requested that ACAT make orders pursuant to section 129 of the Act to require that the Owners Corporation:
(a)remove a large Brittle Gum and its sucker on common ground at the front of his premises;
(b)reimburse to Dr May the cost of replacing a drinking water pipe which he felt had been disrupted by tree roots from the tree; and
(c)reimburse to Dr May the cost of an occupational health and safety (OH & S) report he had obtained in relation to safety issues posed by the tree for the purposes of his application to the Conservator of Trees for approval of tree removal.
When the matter came before the tribunal for directions on 11 October 2013, it was established that the question of removal of the tree was best pursued in the first instance before the owners corporation at a general meeting. The general meeting was arranged to be held on 9 December 2013 at which proposed motion 1 read as follows:
That the Owners - Units Plan No. 116 RESOLVE to remove as soon as is practicable a large brittle gum Tree on common ground and a sucker next to it at the front of unit 20 Wybalena Grove in view of the following:

(a) The ACT Government Conservator of Flora and Fauna approved removal of the tree based on a decision of 12 June 2013 that the location of the tree is inappropriate given its potential size and growth habit.
(b) A professional safety report (21 May 2013) taking into account the Work Health and Safety Act 2011 states that: 'To not take…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read May v Owners Units Plan No. 116 (Unit Titles) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] ACAT 38
Decision Date: 27 June 2014

CaseChat Overview and Summary

The case of May v Owners Units Plan No. 116 involved the owners of a unit title in a strata scheme. The dispute arose when the plaintiff sought reimbursement for the cost of replacing a water pipe and obtaining an occupational health and safety report concerning the risk posed by a tree root to the property. The defendants, the owners corporation, opposed the motion before the general meeting, leading to the plaintiff's application for a review of the decision. The primary legal issues before the court were whether the tree root caused the damage to the water pipe and carport slab, and if the opposition to the motion was reasonable.

The court considered the evidence and found that the tree root was not the cause of the damage to the water pipe and carport slab. As a result, the plaintiff was not entitled to reimbursement for the costs incurred. Additionally, the court held that the opposition to the motion before the general meeting was not unreasonable, and there was no basis to interfere with the outcome of the general meeting. The court emphasised that the decisions of the general meeting should not be subject to judicial review unless there was a clear error of law or procedural unfairness.

In light of the findings, the court dismissed the plaintiff's application for a review of the decision. The court further noted that the costs of the application were to be borne by the plaintiff. This decision underscores the importance of the general meeting's autonomy in making decisions within a strata scheme, provided that the decisions are not tainted by procedural unfairness or legal errors.

Orders

Orders of the court

1. Application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.