The Owners Units Plan 3323 v Makeham (Appeals) - [2024] ACAT 46

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THE OWNERS - UNITS PLAN 3323 v MAKEHAM (Appeals) [2024] ACAT 46

AA 25/2023 (UT 19/2023)

Catchwords: APPEALS (UNIT TITLES) – responsibility of owners corporation to maintain common property – meaning of ‘common property’ – whether a unit’s doors and windows opening onto a unit subsidiary of the unit (in this case, a balcony) are common property – no error in finding the doors and windows are not common property – appeal dismissed
Legislation cited: Legislation Act 2001 s 140
Unit Titles Act 2001 ss 7, 9, 10, 12, 13, 14, 15, Dictionary
Unit Titles (Management) Act 2011 ss 10, 19, 20, 24, 125, 129, Dictionary

Cases cited:Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26
McMillan & Anor v Owners Corporation – Units Plan No 79 [2019] ACAT 86
Project Blue Sky Inc v Australian Broadcasting Authority [1988] HCA 28

Tribunal:Presidential Member G McCarthy
Presidential Member J Lucy

Date of Orders:  1 July 2024
Date of Reasons for Decision:      1 July 2024
Date of Publication:  8 July 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 25/2023

BETWEEN:

THE OWNERS - UNITS PLAN 3323
Appellant

AND:

PATRICIA MAKEHAM
Respondent

APPEAL TRIBUNAL: Presidential Member G McCarthy
Presidential Member J Lucy

DATE:1 July 2024

ORDER

The Tribunal orders:

The order of the Original Tribunal made on 8 August 2023 is set aside and replaced with the following order:
The resolution adopted on motion 4 of the general meeting of Units Plan 3323 held on 9 January 2023 is repealed.

………………………………..

President Member G McCarthy

For and on behalf of the Appeal Tribunal

REASONS FOR DECISION

Introduction

The issue in this appeal was whether the Tribunal was correct to find that an owners corporation is not responsible for the cost of repairs to windows and doors of a unit in a units plan, opening onto courtyards and balconies that form part of the unit. We have found that it was.

Background

The appellant (the Owners Corporation) was established for units plan 3323, comprising four units (the Units Plan). Each of the units is a “class A unit”, as that term is used in the Unit Titles Act 2001 (the UT Act).
On 9 January 2023 at a general meeting, the members of the Owners Corporation (being the owners of the units)[1] considered a motion to authorise expenditure of Owners Corporation funds to repair and repaint wooden doors and windows on units 1 and 2 of the complex (the Motion) and resolved to do so (the Resolution). The doors and windows of those units, in each case, opened onto a balcony, terrace or courtyard forming part of the unit.
[1] Unit Titles (Management) Act 2011 s 10
On 11 May 2023, the owner of unit 3 in the complex - the respondent, Ms Makeham - applied to the tribunal under section 125(2) of the Unit Titles (Management) Act 2011 (the UTM Act) for…

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: [2024] ACAT 46
Decision Date: 1 July 2024

CaseChat Overview and Summary

In the tribunal, the Owners Corporation for Units Plan 3323 appealed against an order made by the tribunal on 8 August 2023, which set aside a resolution made by the Owners Corporation at a general meeting on 9 January 2023. The resolution authorised the expenditure of Owners Corporation funds to repair and repaint the wooden doors and windows on units 1 and 2 of the complex. The owner of unit 3, Ms Makeham, applied to the tribunal for an order that the resolution was void for irregularity or, alternatively, that the tribunal amend the resolution to reflect the application of a decision in McMillan. Ms Makeham argued that the doors and windows were not common property and therefore the Owners Corporation was not responsible for their maintenance.

The tribunal was required to decide whether the doors and windows in question were common property and, if so, whether the Owners Corporation was responsible for their maintenance. The tribunal considered the definition of “common property” under the Unit Titles (Management) Act 2011 and the Unit Titles Act 2001, and whether the doors and windows fell within that definition. The tribunal also considered the decision in McMillan and whether it applied to the circumstances of this case.

The tribunal found that the doors and windows in question were not common property and therefore the Owners Corporation was not responsible for their maintenance. The tribunal held that the doors and windows were part of the units and not part of the common property, as defined in the Unit Titles Act 2001. The tribunal also found that the decision in McMillan did not apply to the circumstances of this case. The tribunal set aside the resolution and ordered that it be repealed.

The tribunal ordered that the order made on 8 August 2023 be set aside and replaced with the following order: “The resolution adopted on motion 4 of the general meeting of Units Plan 3323 held on 9 January 2023 is repealed.” The tribunal dismissed the appeal and ordered that the resolution be repealed.

Orders

Orders of the court

The Tribunal orders:

The order of the Original Tribunal made on 8 August 2023 is set aside and replaced with the following order:

The resolution adopted on motion 4 of the general meeting of Units Plan 3323 held on 9 January 2023 is repealed.

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

The appellant (the Owners Corporation) was established for units plan 3323, comprising four units (the Units Plan). Each of the units is a “class A unit”, as that term is used in the Unit Titles Act 2001 (the UT Act). On 9 January 2023 at a general meeting, the members of the Owners Corporation (being the owners of the units)[1] considered a motion to authorise expenditure of Owners Corporation funds to repair and repaint wooden doors and windows on units 1 and 2 of the complex (the Motion) and resolved to do so (the Resolution). The doors and windows of those units, in each case, opened onto a balcony, terrace or courtyard forming part of the unit.[1] Unit Titles (Management) Act 2011 s 10 On 11 May 2023, the owner of unit 3 in the complex - the respondent, Ms Makeham - applied to the tribunal under section 125(2) of the Unit Titles (Management) Act 2011 (the UTM Act) for an order that the Resolution was void for irregularity or, alternatively, that the Tribunal amend the Resolution “to reflect the application of the McMillan decision.” By the “McMillan decision”, the respondent was referring to a decision of this Tribunal, McMillan & Anor v Owners Corporation – Units Plan No 79 (McMillan).[2] Her argument was that the doors and windows the subject of the Resolution were not common property, such that the Owners Corporation was not responsible for their maintenance.[2] [2019] ACAT 86 On 8 August 2023, the Tribunal (the Original Tribunal) heard the application and made an order setting aside the Motion. The Owners Corporation requested reasons for the decision, which the original tribunal provided on 16 October 2023. Section 24(1)(b) of the UTM Act imposes an obligation on an owners corporation for a units plan to maintain the common property. It states:24 Maintenance obligations(1) An owners corporation for a units plan must maintain the following:(a) for a staged development—the common property included in a completed stage of the development;(b) for a development that is not a staged development—the common property;… The term ‘common property’ is defined in the Dictionary to the UTM Act to have the meaning given to it by section 13 of the UT Act. ‘Common property’ is defined in section 13 of the UT Act to mean, relevantly, “all the parts of a parcel identified as common property” in the units plan. The term ‘units plan’ is defined in the Dictionary to the UTM Act to have the meaning given to it by the Dictionary to the UT Act. The Dictionary to the UT Act provides that ‘units plan’ means “the units plan under section 7”. Section 7(2) of the UT Act provides that once documents, including diagrams showing the subdivision and the schedule of unit entitlement, have been registered, the units plan “consists of the registered documents as amended from time to time under this Act”. Section 9 of the UT Act provides:9 Units(1) A unit is a part of a parcel shown in a unit title application or a units plan as a unit.(2) After a units plan is registered, a unit of the units plan includes any unit subsidiary shown on the units plan as annexed to the unit. (emphasis added)