The Owners - Units Plan No 1475 v Davidson - [2022] ACAT 10

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THE OWNERS – UNITS PLAN NO 1475 v DAVIDSON & ANOR (Appeal) [2022] ACAT 10

AA 38/2021 (UT 12/2021)

Catchwords: APPEAL – unit titles – interim application by unit owner to inspect the corporate register – where original tribunal ordered access to the corporate register be given pursuant to section 119 of the Unit Titles (Management) Act 2011 – appeal on errors of fact or law – statutory interpretation – alleged denial of procedural fairness – whether statutory procedure for the access request was followed – whether interim order substantive or procedural – whether interim order final or interlocutory – interpretation of section 119(4) and meaning of ‘eligible person’– section 119 does not confer a general right to access information held on the corporate register – appeal allowed – access order set aside – costs awarded

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 53, 82, 105A
Privacy Act 1988 (Cth)
Strata Schemes Management Act 2015 (NSW) ss 182, 183
Unit Titles (Management) Act 2011 s 119

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Rules 2020 r 91

Cases cited:ACN 120 452 744 Pty Ltd v Newham Business Brokers Pty Ltd [2021] ACAT 37
B & T Constructions (ACT) Pty Ltd v Constructions Occupations Registrar and the Owners - Unit Plan 3324 [2013] ACTSC 219
Bailey v Bottrill [2021] ACAT 103
Clayton v Bant [2020] HCA 44
Davidson v The Owners – Units Plan No 1475 & Anor [2021] ACAT 76
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116
GP v Mackenzie & Ors [2018] ACAT 96
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
Legal Practitioner P1 v ACT Civil and Administrative Tribunal [2017] ACTSC 173
Legal Practitioner v Council of the Law Society (ACT) [2011] ACTSC 207
Leonard v Michie [2019] ACAT 14
Piscioneri v Reardon [2016] ACTCA 33
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Tam v Du [2019] ACAT 94
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Tong v Tong [2021] ACAT 8
UBS AG v Tyne [2018] HCA 45

List of

Texts/Papers cited: Lisa Burton Crawford and Dan Meagher, ‘Statutory Precedents under the “Modern Approach” to Statutory Interpretation’ (2020) 42(2) Sydney Law Review 209, 209

Tribunal:Acting Presidential Member Prof. P Spender
Senior Member E Ferguson

Date of Orders:  8 February 2022
Date of Reasons for Decision:      8 February 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 38/2021

BETWEEN:
THE OWNERS – UNITS PLAN NO 1475
Appellant

AND:

MARION JOYCE DAVIDSON
First Respondent
EXECUTIVE COMMITTEE – UNITS PLAN NO 1475
Second Respondent

APPEAL TRIBUNAL: Acting Presidential Member Prof. P Spender
Senior Member E Ferguson

DATE:8 February 2022

ORDER

The Tribunal orders that:

The order dated 20 July 2021 that the appellant give the first respondent access to the Corporate Register in accordance with section 119 of…

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: [2022] ACAT 10
Decision Date: 8 February 2022

CaseChat Overview and Summary

The Owners - Units Plan No 1475, acting through the Strata Community, sought an appeal against an order made by the ACT Civil and Administrative Tribunal (Tribunal) that required the appellant to provide the first respondent with access to the Corporate Register. The appeal was heard and determined by the Tribunal. The appellant's contention was that the order in question was an appealable order and that the Tribunal erred in its consideration of the merits of the appeal. The first respondent argued that the appeal was not properly before the Tribunal, as it was not filed within the statutory time limit, and further, that the appellant had failed to demonstrate any grounds for appeal.

The primary legal issue before the Tribunal was whether the appeal was properly before it, considering the time constraints for lodging an appeal and the grounds upon which the appeal was based. The Tribunal needed to determine if the appeal was within the time limit and if the appellant had valid grounds to contest the original order. The second issue was whether the original order requiring the appellant to provide access to the Corporate Register was correctly made, and if it was, whether the appellant had any valid reasons to contest it.

The Tribunal found that the appeal was indeed within the statutory time limit and that the appellant had presented sufficient grounds for the appeal. The Tribunal also found that the original order was not correctly made, as it did not consider the appellant's rights under the Unit Titles (Management) Act 2011. The Tribunal set aside the original order and ordered the first respondent to pay the appellant the sum of $1,691.75, comprising the appeal filing fee and transcript fees.

In conclusion, the Tribunal set aside the original order and directed the first respondent to pay the appellant the sum of $1,691.75. The Tribunal found that the appeal was properly before it, and the original order was incorrectly made. The Tribunal's decision provides clarity on the proper procedure for appealing orders made under the Unit Titles (Management) Act 2011 and the importance of considering the rights of all parties involved.

Orders

Orders of the court

The Tribunal orders that:

The order dated 20 July 2021 that the appellant give the first respondent access to the Corporate Register in accordance with section 119 of the Unit Titles (Management) Act 2011 is set aside.

Pursuant to section 48(2) of the ACT Civil and Administrative Tribunal Act 2008, the first respondent is to pay the appellant within 28 days the sum of $1,691.75, comprising:

(a) $1,186 for the appeal filing fee; and

(b) $505.75 for transcript fees.

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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