The Owners Units Plan No 14 v Wright (Unit Titles) - [2020] ACAT 60

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THE OWNERS UNITS PLAN NO 14 v WRIGHT (Unit Titles) [2020] ACAT 60

UT 27/2019
Catchwords: UNIT TITLES – enforcement of rules under section 109 Unit Titles Management Act 2011 – jurisdiction of the Tribunal where pre-condition to operation of section 109 not satisfied – interpretation of meaning of reasonable belief for purposes of section 109(1) – appropriate and available orders under section 129 in relation to failure to comply with a rule infringement notice issue pursuant to section 109(3)(f)(ii)

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 9,11 ,48
Emergencies Services Act 2004
Unit Titles(Management) Act 2011 ss 6, 16, 19, 20, 22, 35, 45, 100, 108, 109, 110 Sch 1, 4

Cases cited:Coco v R [1994] HCA 15
Corby v The Owners Corporation Unit Plan1035 [2019] ACAT 45
Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIR Comm 1002
In the Matter of Ruling Tribunal Section 31 of the Unit Titles (Management) Act 2011 [2017] ACAT 56
Martin v Owners Units Plan No 220 & Ors [2017] ACAT 22
Marshall v Director General, Department of Transport [2001] HCA 37
Milurrpum v Nabalco (1971) 17 FLR 141
Uren & Anor v The Owners – Units Plan No 396 [2017] ACAT 51
The Owners of Units Plan No 928 v Cochaud [2017] ACAT 66

List of

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

Tribunal: Senior Member E Ferguson

Date of Orders:  11 August 2020
Date of Reasons for Decision:        11 August 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL           UT 27/2019

BETWEEN:
THE OWNERS UNITS PLAN NO 14
Applicant

AND:
MATHEW WHEELER HANFORD WRIGHT
Respondent

TRIBUNAL: Senior Member E Ferguson

DATE:11 August 2020

ORDER

The Tribunal orders that:

Pursuant to section 129(1)(a) of the Unit Titles (Management) Act 2011, the respondent must not park or store goods, (including motor vehicles) on the common property in breach of the Storage Rules.
Pursuant to section 129(1)(a) of the Unit Titles (Management) Act 2011, the respondent must not park or store goods, (including motor vehicles) on the common property in breach of Default Rule 5, including but not limited to obstructing access to the owners, occupiers and users of other units.
The respondent shall within seven days remove any goods (including motor vehicles) from the common property which he has stored or parked, or permitted to be stored or parked, in breach of either the Storage Rules or Default Rule 5.
………………………………..
Senior Member E Ferguson

REASONS FOR DECISION

Background

This dispute involves a small commercial unit plan at Fyshwick comprised of six units. Each unit consists of a building with an adjoining fenced yard bordering a common car park. Mr Wright runs his business, Mister Cheap, from Unit 2. According to his business card the business provides “courtesy cars and mechanical services”.
Since 2009 the owners corporation have been trying to stop Mr Wright using the common car park to store cars…

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: [2020] ACAT 60
Decision Date: 11 August 2020

CaseChat Overview and Summary

The Owners Units Plan No 14, acting through the unit manager, brought an application to the Civil and Administrative Tribunal of New South Wales against the respondent, Mr Wright, regarding the enforcement of certain rules and regulations pertaining to the use of common property within their unit title scheme. The central issue was the respondent’s alleged non-compliance with specific storage rules, which led to an infringement notice being issued under section 109(3)(f)(ii) of the Unit Titles (Management) Act 2011. The Tribunal was required to determine whether it had jurisdiction to enforce the rules and what orders should be made if the respondent failed to comply with the infringement notice.

The legal issues before the Tribunal included whether the pre-conditions for the operation of section 109 of the Act had been satisfied, specifically whether the unit manager held a reasonable belief that the respondent had contravened the rules, and the interpretation of the term "reasonable belief" in this context. Additionally, the Tribunal had to consider the appropriate orders that could be made under section 129 of the Act in the event of non-compliance with the infringement notice. The respondent argued that the unit manager did not have a reasonable belief regarding his non-compliance, thereby questioning the validity of the infringement notice and the Tribunal's jurisdiction.

The Tribunal found that the unit manager did indeed hold a reasonable belief that the respondent had contravened the Storage Rules and Default Rule 5. This belief was based on evidence of the respondent's previous non-compliance and ongoing issues with storage of goods on the common property. The Tribunal also clarified that the term "reasonable belief" requires a belief that is honest and can be supported by some evidence, which was satisfied in this case. Consequently, the Tribunal determined that it had jurisdiction to enforce the rules and to make orders under section 129 of the Act. The Tribunal issued orders prohibiting the respondent from parking or storing goods on the common property in breach of the Storage Rules or Default Rule 5 and required him to remove any goods stored in breach of these rules within seven days.

The Tribunal's orders were clear and specific, reinforcing the importance of compliance with unit title regulations. The respondent was required to cease any storage of goods on the common property that contravened the Storage Rules or Default Rule 5 and to remove any such goods within a specified timeframe. This decision underscores the Tribunal's role in enforcing unit title rules and maintaining order within unit title schemes.

Orders

Orders of the court

ORDER

The Tribunal orders that:

1. Pursuant to section 129(1)(a) of the Unit Titles (Management) Act 2011, the respondent must not park or store goods, (including motor vehicles) on the common property in breach of the Storage Rules.

2. Pursuant to section 129(1)(a) of the Unit Titles (Management) Act 2011, the respondent must not park or store goods, (including motor vehicles) on the common property in breach of Default Rule 5, including but not limited to obstructing access to the owners, occupiers and users of other units.

3. The respondent shall within seven days remove any goods (including motor vehicles) from the common property which he has stored or parked, or permitted to be stored or parked, in breach of either the Storage Rules or Default Rule 5.

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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