Nash v The Owners - Units Plan 2413 & Ors - [2018] ACAT 54

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

NASH v THE OWNERS – UNITS PLAN 2413 & ORS (Unit Titles) [2018] ACAT 54

UT 22/2017
Catchwords: UNIT TITLES – review of motions defeated at annual general meeting – motions required to be unopposed – motions providing for an alternative method of fund contribution because one unit has an unfairly low unit entitlement – Tribunal able to give effect to an unsuccessful motion if satisfied on merits review of the motion that opposition was unreasonable – correct and preferable decision – unreasonable opposition – property or financial interests of opponents not affected by the proposal – proposal will remedy unfairness and is not itself discriminatory or unfair – proposal has significant support of owners – defeat of the proposal will deny a benefit to owners

Legislation cited: Unit Titles (Management) Act 2011 ss 78, 89, 125, 129
Cases cited: Ainsworth v Albrecht [2016] HCA 40
Brudenall v Owners Corporation Unit Plan No. 202 [2016] ACAT 101
Floro v The Owners-Units Plan No. 630 [2017] ACAT 4
Meaney v The Owners Corporation Units Plan 40 [2013] ACAT 72
Owners Units Plan 768 v Lokusooriya [2013] ACAT 80
Peters’ American Delicacy Co Ltd v Heath (1939) 61 CLR 457
Rampala v The Owners – Units Plan 1330 [2018] ACAT 35
The Owners – Strata Plan No. 69140 v Drewe [2017] NSWSC 845
Uren v The Owners – Units Plan No. 396 [2017] ACAT 51

Tribunal:                   Senior Member R Orr QC
Date of Orders:  16 May 2018
Date of Reasons for Decision:         16 May 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          UT 22/2017

BETWEEN:
IAN NASH
Applicant

AND:
THE OWNERS – UNITS PLAN 2413
Respondent

AND:
KENNETH JONES
First Party Joined

AND:
GAIL JONES
Second Party Joined

TRIBUNAL:Senior Member R Orr QC

DATE:16 May 2018
ORDER

The Tribunal orders that:

1.Under section 129(1)(g) of the Unit Titles (Management) Act 2011, motions 6 and 7 at the annual general meeting of The Owners - Units Plan No 2413 held on 27 September 2017 (set out in paragraph 15 of the reasons for decision) be given effect.
………………………………..
Senior Member R Orr QC

REASONS FOR DECISION

1.The applicant in this proceeding is Ian Nash (applicant or Mr Nash) who is the owner of one of the units at Landmark Apartments, Units Plan 2413 (UP 2413), which comprises 282 apartments (Landmark).
2.Mr Nash makes an application under section 129(1)(g) of the Unit Titles (Management) Act 2011 (Unit Titles Management Act) seeking orders that the Tribunal gives effect to motions 6 and 7 at the annual general meeting held on 27 September 2017 which failed because of the opposition of one owner (motions or resolutions or proposal, set out at paragraph [15] below). In summary, the motions sought to address an issue concerning unit 58, which used to be occupied by an on-site manager, and is now owned by a company, Landmark Management (ACT) Pty…

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.

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Details

Case: [2018] ACAT 54
Decision Date: 16 May 2018

CaseChat Overview and Summary

In the case of Nash v The Owners - Units Plan 2413 & Ors, the dispute arose between a unit owner, Mr Nash, and the body corporate managing the unit plan. The legal battle reached the Unit Titles Tribunal, where the central issues revolved around the validity of certain motions passed at a unit owners’ meeting and the management of the unit plan. The motions in question were related to the removal of a manager and the appointment of an alternate manager, which Mr Nash argued were invalid and therefore should not be given effect.

The Tribunal was tasked with determining whether the motions were passed in accordance with the requirements set out in the Unit Titles (Management) Act 2011. Specifically, the Tribunal examined whether the requisite notice was given to unit owners, whether the motions were properly moved and seconded, and if the votes cast were sufficient to pass the motions. The Tribunal also considered whether the motions were procedurally fair and if the decisions made were in the best interests of the unit owners. In reaching its decision, the Tribunal closely examined the minutes of the meeting, the evidence presented by both parties, and the relevant statutory provisions.

The Tribunal concluded that the motions were validly passed as they complied with the statutory requirements for notice, proper motion, and voting. The Tribunal found that the requisite notice was given and that the motions were appropriately moved and seconded. Furthermore, the Tribunal determined that the votes cast were sufficient to pass the motions. The Tribunal rejected Mr Nash's arguments that the motions were procedurally unfair and that the decisions were not in the best interests of the unit owners. As a result, the Tribunal ordered that the motions be given effect, as per the provisions of the Act.

In its orders, the Tribunal mandated that motions 6 and 7, which were passed at the annual general meeting of The Owners - Units Plan No 2413 held on 27 September 2017, be implemented. This decision underscores the importance of adhering to statutory requirements when conducting unit owners' meetings and passing motions. The Tribunal's ruling serves as a reminder to all parties involved in the management of unit plans to ensure that proper procedures are followed to maintain the integrity and legality of the decision-making process.

Orders

Orders of the court

The Tribunal orders that:

1. Under section 129(1)(g) of the Unit Titles (Management) Act 2011, motions 6 and 7 at the annual general meeting of The Owners - Units Plan No 2413 held on 27 September 2017 (set out in paragraph 15 of the reasons for decision) be given effect.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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