Spedding v The Owners Units Plan 3941 (Unit Titles) - [2025] ACAT 12

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SPEDDING v THE OWNERS UNITS PLAN 3941 (Unit Titles) [2025] ACAT 12

UT 45/2023
Catchwords: UNIT TITLES – meetings – Unit Titles (Management) Act 2011 – omission of special purpose fund budget from notice of annual general meeting – the common law of meetings – argument that an entire meeting is void due to the omission of one resolution from the meeting notice and from the meeting agenda – the effect of the Unit Titles (Management) (Meeting Agenda) Guidelines made under the Unit Titles (Management) Act 2011 – whether entire annual general meeting is void for irregularity under section 129(1)(e)(i) – meaning of ‘irregularity’ – considerations in decision-making under section 129(1)(e)(i) - meeting not void

Legislation cited: Legislation Act 2001 ss 146, 156
Unit Titles (Management) Act 2011 ss 41, 72, 75, 129(1)(e)(i), Schedule 3, ss 3.6, 3.7, 3.8, Dictionary

Subordinate

Legislation cited: Unit Titles (Management) (Meeting Agenda) Guidelines 2020
Unit Titles (Management) (Meeting Agenda) Guidelines 2023

Cases cited:Bourne v Murphy [1996] NSWCA 59
Maiorana v The Owners – Strata Plan No 1418 [2019] NSWCATCD 36
The Muslim League of NSW v Hussein Waniya [2000] NSWSC 986
The Owners Corporation Units Plan 202 v Brudenall & Ors (Unit Titles) [2015] ACAT 64
Owners Strata Plan 46528 v Hall [2009] NSWSC 278
Owners Strata Plan No 57164 v Yau [2016] NSWSC 1056
Owners Strata Plan No 57164 v Yau [2017] NSWCA 341
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
R v Gray; ex parte Marsh (1985) 157 CLR 351
Read v The Owners – Strata Plan No 2533 [2021] NSWCATAP 218
Shree Sanatan Dharm Sabha of NSW Inc v Mani [2006] NSWSC 657
Turner v King [1992] 1 Qd R 307

List of

Texts/Papers cited: Christopher R Kerin, Guide to ACT Strata Law (Kerin Benson Lawyers, 2017)

Tribunal:Senior Member J Kalokerinos
Date of Orders:  27 February 2025
Date of Reasons for Decision:      27 February 2025
Date of Publication:  6 March 2025
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          UT 45/2023

BETWEEN:

DAVID SPEDDING
Applicant

AND:

THE OWNERS – UNITS PLAN 3941
Respondent

TRIBUNAL:Senior Member J Kalokerinos

DATE:27 February 2025

ORDER

The Tribunal orders that:

The application is dismissed.
………………………………..

Senior Member J Kalokerinos

REASONS FOR DECISION

The Orders sought

On 8 December 2023, Mr David Spedding (the applicant) filed an application with the ACT Civil and Administrative Tribunal (ACAT, or the Tribunal). Following amendments to the application made at a directions hearing on 12 January 2024, the amended order sought was that:
1. ACAT declare that the Annual General Meetings held on 4 October 2023 and 21 October 2022 are void for irregularity.
UTMA Section 129(1)(e)(i) refers.

The proceedings

Submissions were lodged by both of the parties. In response to the application, the respondent submitted detailed submissions and sought orders that the application be dismissed. On 12 January 2024, a senior member of the tribunal made orders that the questions whether…

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: [2025] ACAT 12
Decision Date: 27 February 2025

CaseChat Overview and Summary

In the case of Spedding v The Owners Units Plan 3941 (Unit Titles), the applicant, Spedding, sought to challenge a decision made by the committee of the unit title plan. The dispute centred around the interpretation and application of section 3.8 of the Unit Titles Act, which governs the conduct of meetings within the unit title plan. The primary issue before the court was whether section 3.8 could be invoked to invalidate a meeting held by the committee due to a technical defect in the notice provided to the owners, and whether this invalidation would be justified despite the presence of a quorum.

The court examined the nature of statutory provisions, distinguishing between mandatory and directory provisions, and highlighted the principle that not every breach of a statute necessarily results in invalidity. The court referred to relevant case law, such as Green v Page and Turner v King, to illustrate that statutory directions should not be regarded as absolute or exclusive. Instead, the court emphasised that statutory provisions must be interpreted in accordance with common principles of construction, similar to those applied to contracts and statutes. The court further noted that a breach of statutory provisions may not invalidate a meeting if it does not cause substantial injustice or prejudice to the members.

Based on the reasoning above, the court concluded that section 3.8 could not be applied to invalidate the meeting in question. The technical defect in the notice did not result in substantial injustice or prejudice to the members, and the presence of a quorum did not automatically render the meeting invalid. Consequently, the application was dismissed, and the decision of the committee was upheld. The tribunal orders that the application is dismissed.

Orders

Orders of the court

The Tribunal orders that:

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The example which the applicant cited to illustrate the dangers of an untrammelled application of section 3.8 was an extreme one. He postulated that, on a broad reading of section 3.8, it might be argued that it could save a general meeting where the notice omitted the date, time or location of the meeting and only the committee members attended because other owners were not aware of the time, date or place of the meeting. Even if a quorum were able to be achieved under such a scenario, I do not agree that section 3.8 could save such a meeting. However, it could apply in circumstances where a mere technical defect in the notice were made, which did not cause any substantial injustice or prejudice to the members or any other persons entitled to attend the meeting.Decisions about the effect of non-compliance with statutory meetings requirements There is a disposition, from time to time expressed by some members of clubs, associations or other member-based organisations, to consider a constitution or other governing document:…as a code of fundamental rights and to characterise the slightest departure from them as “unconstitutional” or “invalid”. But a provision in a document of this kind is to be construed in accordance with the same principles of construction adopted by the courts in problems of interpretation of statutes and documents. A provision in a “Constitution” of this kind prescribing the time for performance of some act has no greater force or different legal effect than a similar provision in an ordinary contract or statute…Provisions in statutes prescribing that certain things are to be done within a certain time may be mandatory or directory according to their nature.[24][24] Green v Page [1957] Tas SR 66 per Burbury CJ at [81]; cited by the Full Court of the Supreme Court of South Australia in Popovic v Tanasijevic [2001] SASC 289 at [42] per Williams J, Doyle CJ and Martin J agreeing. Green concerned a claim of invalidity of the election of the board of a sporting association at an AGM convened in November, in circumstances where the rules prescribed that the elections and AGM were to be held in September. The claim failed. There is considerable caselaw to the above effect concerning the effect of non-compliance with the governing rules of voluntary associations, but also concerning the effect of non-compliance with statutory provisions in a range of different contexts. Turner v King [1992] 1 Qd R 307 concerned a parliamentary election, where a Returning Officer was absent for periods of time from the room in which ballot papers were deposited. There, the statutory provisions around counting of votes and ensuring the security of the ballot papers did not give rise to a necessary implication of invalidity where the ballot papers may have been left unattended for a period of time. The Full Court of the Supreme Court of Queensland found that the judge at first instance (sitting as the then Queensland Elections Tribunal) did not intend to find that a breach of the relevant statutory provisions had occurred, but that “if one had occurred, as a consequence of the events which he was satisfied took place, then it was not one which automatically invalidated the election.”[25] The Court noted that “statutory directions, while very useful in laying down specific rules of conduct for the purpose of uniformity and guidance, should not be regarded on the one hand as absolute or on the other hand as exclusive. It means that if the breach of security were such as to produce a reasonable view that a false result may have occurred, then in the absence of a breach of statutory direction the common law would provide a ground for its invalidation.”[26] The reference to the common law there, was a reference to the common law of elections. In Turner v King, there was no reasonable ground for supposing that the ballot papers were actually tampered with.[27] If there was, the common law of elections may have assisted the appellant’s case. In that case, the court referred to “laxity” of practice, which led to potential breach of the legislation, but characterised the laxity as having “no relevant practical consequence”. In other words, not every breach of a statute (or subordinate law) necessarily carries with it the consequence of invalidity.[25] Turner v King [1992] 1 Qd R 307 at [311] per Macrossan CJ[26] Turner v King [1992] 1 Qd R 307 at [316]-[317] per Derrington J[27] Turner v King [1992] 1 Qd R 307 at [319] per de Jersey J

Ratio Decidendi

Legal Principle Established

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