The Owners Units Plan No 14 v Wright (Appeal) - [2021] ACAT 55

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THE OWNERS - UNITS PLAN NO 14 v WRIGHT (Appeal) [2021] ACAT 55

AA 26/2020 (UT 27/2019)
Catchwords: APPEAL – unit titles – rule infringement notices – whether general claim can be made and considered for resolution of a dispute between an owner and the owners corporation even though rule infringement notices were issued – whether orders should be made as to use of a unit which does not comply with fire rules – whether ancillary orders should be made allowing the Owners Corporation to bring the unit into compliance with the fire rules if the owner does not do so – whether orders should be made for inspection of unit to ensure compliance – whether order should be made that the respondent pay an amount that represents the increase of the owners corporation building insurance premiums due to the condition of the unit
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 18, 20
Emergencies Act 2004 s 96
Human Rights Act 2004 s 12
Legislation Act 2001 ss 126, 140, 255
Planning and Development Act 2007 ss 133, 134, 137, 199
Unit Titles (Management) Act 2011 ss 16, 31, 35, 100, 106, 107, 109, 125, 129, sch 4

Subordinate
Legislation Cited: ACT Civil and Administrative Tribunal Procedure Rules 2020 rr 10, 35, 36, 38, 91, 94
Unit Titles (Management) Regulations 2011 sch 1

Cases cited:Corby v The Owners Corporation – Units Plan No. 1035 [2019] ACAT 45
Council of the Law Society of the ACT v LP201920 [2021] ACAT 16
In the matter of Ruling Tribunal Section 31 of the Unit Titles (Management) Act 2011 [2017] ACAT 56
Riley v The Owners Corporation Units Plan 706 [2018] ACAT 99
Walls v Coutts [2019] ACAT 104

List of
Texts/Papers cited:     Christopher Kerin, Guide to ACT Strata Law (2017)
Tribunal:  Acting Presidential Member R Orr QC
Date of Orders:  25 June2021
Date of Reasons for Decision:
25 June 2021

AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 26/2020
BETWEEN:
THE OWNERS - UNITS PLAN NO 14
Appellant

AND:
MATTHEW WHEELER HANFORD WRIGHT
Respondent

APPEAL TRIBUNAL: Acting Presidential Member R Orr QC

DATE:25 June 2021

ORDERS

The Tribunal orders that:

1.The appeal is allowed in part.
2.Order 1 made by the Original tribunal on 8 April 2020 is set aside.
3.The orders made by the Original tribunal on 11 August 2020 are not affected.
4.The orders made by the Appeal tribunal on 5 November 2020 and set out below are confirmed.
5.Insofar as it is necessary, the claim by the Owners Corporation under section 31 of the Unit Titles (Management) Act 2011 is treated as a civil dispute claim, and the time to appeal the decision of the Original tribunal in relation to that claim is extended to 11 August 2020.
6.The respondent is ordered to pay the appellant the sum of $7,765.
………………………………..
Acting Presidential Member R Orr QC

PREVIOUS ORDERS MADE BY THE APPEAL TRIBUNAL ON…

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: [2021] ACAT 55
Decision Date: 25 June 2021

CaseChat Overview and Summary

The appeal heard by the Tribunal was between The Owners Units Plan No 14 and Mr Wright, concerning the management of a unit under the Unit Titles (Management) Act 2011. Mr Wright was the owner of a unit within the plan, and the Owners Corporation managed the common property of the unit title. The dispute arose when the Owners Corporation issued rule infringement notices to Mr Wright for failing to comply with fire rules. The Owners Corporation also sought various orders, including to allow them to bring the unit into compliance with the fire rules, for inspection of the unit, and for Mr Wright to pay an amount representing the increase in the Owners Corporation’s building insurance premiums due to the condition of the unit. Mr Wright appealed against the decision of the Original tribunal, which had largely found in favour of the Owners Corporation. The Tribunal was required to determine whether the Owners Corporation could make a general claim in respect of the dispute, whether orders should be made regarding the use of the unit, whether orders should be made for inspection of the unit, and whether orders should be made for Mr Wright to pay an amount representing the increase in the Owners Corporation’s building insurance premiums.

The Tribunal found that the Owners Corporation could make a general claim in respect of the dispute, even though rule infringement notices had been issued. The Tribunal also found that orders should be made as to the use of the unit which did not comply with fire rules, and for inspection of the unit to ensure compliance. However, the Tribunal found that there was insufficient evidence to support an order for Mr Wright to pay an amount representing the increase in the Owners Corporation’s building insurance premiums. The Tribunal set aside the order made by the Original tribunal on 8 April 2020, and confirmed the orders made by the Appeal tribunal on 5 November 2020. The Tribunal also treated the claim by the Owners Corporation under section 31 of the Unit Titles (Management) Act 2011 as a civil dispute claim, and extended the time to appeal the decision of the Original tribunal in relation to that claim. The Tribunal ordered Mr Wright to pay the Owners Corporation the sum of $7,765.

Orders

Orders of the court

ORDERS

The Tribunal orders that:

1. The appeal is allowed in part.

2. Order 1 made by the Original tribunal on 8 April 2020 is set aside.

3. The orders made by the Original tribunal on 11 August 2020 are not affected.

4. The orders made by the Appeal tribunal on 5 November 2020 and set out below are confirmed.

5. Insofar as it is necessary, the claim by the Owners Corporation under section 31 of the Unit Titles (Management) Act 2011 is treated as a civil dispute claim, and the time to appeal the decision of the Original tribunal in relation to that claim is extended to 11 August 2020.

6. The respondent is ordered to pay the appellant the sum of $7,765.

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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