The Owners Units Plan No 4273 v Stormer Corporation Pty Ltd (Unit Titles) - [2024] ACAT 31

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THE OWNERS – UNITS PLAN No 4273 v STORMER CORPORATION PTY LTD (Unit Titles) [2024] ACAT 31

UT 14/2024

Catchwords: UNIT TITLES – where owners corporation required entry to a unit on level 4 to rectify balcony waterproofing defects resulting in water leakage and damage to the interior of a unit on level 3 – where the balcony is not common property – where the balcony is a ‘defined part’ of the building that the owners corporation is responsible to maintain – where the unit owner refused entry to the unit – whether order should be made to allow access to the balcony via externally erected scaffolding – where the respondent failed to appoint an authorised representative and appear at three directions hearing and the final hearing – where former director joined as a party on the initiative of the Tribunal on the premise he is an occupier – where premise found to be incorrect – whether party joined should be removed as a party – whether application should be decided in the absence of the respondent – party-joined removed – relief granted ex parte

Legislation cited: ACT Civil and Administrative Tribunal Act 2008, ss 7, 7A, 47A
Unit Titles Act 2001, s 9
Unit Titles (Management) Act 2011, ss 24, 28, 31, 125, 129

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules, rr 41, 61

Tribunal:Senior Member M. Orlov

Date of Orders:  3, 7 May 2024
Date of Reasons for Decision:      9 May 2024
Date of Publication:  13 May 2024

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) UT 14/2024

BETWEEN:

THE OWNERS – UNITS PLAN No 4273
Applicant

JAMIE FARRELLY
Party Joined

AND:

STORMER CORPORATION PTY LTD
Respondent

TRIBUNAL:Senior Member M. Orlov

DATE:3 May 2024

ORDER

Pursuant to s 47A of the ACT Civil and Administrative Tribunal Act 2008:
(a)the party joined is removed as a party to the application;
(b)the hearing of the application is to proceed in the absence of the respondent.
The hearing is adjourned part-heard to 11.00 am on 6 May 2024 in chambers unless the applicant requests the matter be relisted for further hearing.

……………….………………
Senior Member M. Orlov

The Tribunal’s reasons for the orders under s 47A will be published shortly.

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) UT 14/2024

BETWEEN:

THE OWNERS – UNITS PLAN No 4273
Applicant

AND:

STORMER CORPORATION PTY LTD
Respondent

TRIBUNAL:Senior Member M. Orlov

DATE:7 May 2024

IN CHAMBERS ORDER

Pursuant to sections 24(d) and (e) and 129(1)(c) and (b) of the Unit Titles (Management) Act 2011 (UTMA), the applicant must arrange for all necessary maintenance works to be carried out to the balcony of unit 22 to prevent water leakage through the balcony slab and continuing damage to the interior of unit 16 due to water penetration from the unit 22 balcony, including (but not limited to):
(a)erecting external scaffolding to provide access to the balcony of unit 22 for contractors to carry out the works;
(b)moving any items on the balcony of unit 22 that may interfere with access or be at risk of damage during the performance of the work (such as pots, planter boxes, plants, watering systems, BBQs, outdoor furniture and similar) and, only to the extent necessary to allow them to be moved, cutting or cutting back any plants affixed to or intertwined with the balcony railing or other structures;
(c)removing perimeter skirting boards on each of the three sides to the balcony to the extent necessary to allow inspection and repair of the pressure seal to the torch-on membrane and extraction of any excess water under the membrane;
(d)removing decking boards around the downpipes to the extent necessary to allow inspection and repair of the pressure seals;
(e)inspecting and, if necessary, rectifying the detailing of overflow outlets to the balcony;
(f)reinstating the balcony, including replacing any items moved pursuant to paragraph 1(b) and removing any rubbish and construction debris on completion of the works.
Pursuant to sections 129(1)(c) and 129(2) of the UTMA, for the purpose of supervising, carrying out and inspecting the works to the balcony of unit 22 required by order 1, the following persons and their duly authorised employees and agents are permitted to have access to the balcony via the external scaffolding from (and including) 13 May 2024 to (and including) 31 May 2024 between the hours of 8:00 am and 5:00 pm:
(a)the applicant;
(b)the builder, Bloc (ACT) Pty Ltd and its subcontractor or subcontractors, Superseal Group (NSW) Pty Ltd and Superseal (ACT) Pty Ltd;
(c)any certifier or building inspector engaged to inspect and/or certify the satisfactory completion of the works.
Pursuant to sections 129(1)(a) and 129(2) of the UTMA, the respondent is restrained from preventing, interfering with or delaying, or allowing any occupier of unit 22 or other person to prevent, interfere with or delay, the performance of the works required by order 1 or access to the balcony by any authorised person in accordance with order 2.
The applicant has liberty to apply on 48 hours’ notice in writing to the Tribunal if it requires an extension of time or variation of order 1 or order 2.
If the applicant intends to pursue an application for recovery of expenses from the respondent pursuant to section 31 of the UTMA, the applicant is to file and serve any further amended application by 16 August 2024 stating the material facts, with adequate particulars, in relation to liability and quantum.
The application is listed for directions on 30 August 2024 at 9:30 a.m.

……………….………………
Senior Member M. Orlov

The Tribunal’s reasons for decision will be published shortly.

REASONS FOR DECISION

Introduction

This is an application under the Unit Titles (Management) Act 2011 (UTMA). The applicant is the owners corporation of an apartment complex on the Kingston Foreshore. The respondent is the owner of unit 22[1] on level 4 of building C, located immediately above unit 16[2] on level 3. The party joined, Jaime Farrelly, was the sole director and secretary of the respondent at all material times until 23 October 2023, when ASIC disqualified him from managing corporations for a period of two years. He was replaced briefly by Saphyre Farrelly. She in turn was replaced by Pamela Farrelly who was appointed as the sole director and secretary of the respondent on 8 January 2024. Mr Farrelly was joined as a party on the Tribunal’s initiative because it was assumed he is the occupier of the unit. However, it appears this is not the case as I explain later.
[1] Unit 22 refers to the door number. The property is unit 43 (class A) on units plan 4273.
[2] Also a reference to the door number.
The applicant claims that water is leaking through the balcony slab of unit 22 and is causing damage to unit 16. The balcony is unit property (not common property) but pursuant to section 24(d) of the UTMA, the applicant is responsible to maintain the balcony as a ‘defined part’ of a building containing class A units. The applicant has been unable to obtain the respondent’s consent for access to the balcony to carry out necessary maintenance work to repair the torch-on waterproofing membrane and pressure seals around balcony edges and downpipes, despite the respondent being on notice for the best part of a year of ongoing damage to unit 16. By this application, the applicant seeks orders for access to the balcony of unit 22 and other relief to enable it to comply with its statutory maintenance obligations.
The application was heard on Friday, 3 May 2024. The respondent and the party joined did not appear. The Tribunal made orders under section 47A of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) that Mr Farrelly be removed as a party to the application and the hearing of the application proceed in the absence of the respondent, with reasons to be given later.
The application was adjourned part-heard to Monday, 6 May 2024 at 11.00 am for the applicant to provide the Tribunal with proposed orders for consideration in chambers unless the applicant requested the matter be relisted for further hearing. The applicant provided draft orders and did not require the matter to be relisted.
For the reasons that follow, I am satisfied that it is appropriate to grant the application and make orders in the terms set out earlier.

The decision to remove the party joined and proceed in the absence of the respondent

Background

The application was filed on 13 March 2024. The applicant sought orders that the respondent be required to provide access to unit 22 via the front door for a period of approximately 12 business days for the purpose of the applicant and its agents undertaking rectification works to the balcony. The applicant also sought costs pursuant to section 31 of the UTMA.
An application for interim or other orders was filed on 14 March 2024, seeking the same relief as in the primary application but on an expedited basis.
The tribunal served both applications on the respondent by post to its registered office and by email sent on 14 March 2024 to the email addresses noted on the corporate register as the address to which notices and correspondence must be delivered – namely, [email protected] and [email protected]. The applications were listed on an urgent basis for directions at 9:30 am on 15 March 2024.
Mr Farrelly (using the email address [email protected]) replied to the tribunal at 4:34 pm advising that he was unavailable the next day and part of the following week due to a medical procedure. At 4:53 pm, Mr Farrelly sent a further email to the tribunal advising:
I am not the sole director.
I am not the correct person for you to contact about this matter.
You will need to contact the correct person whom I assume is the sole director?
An ASIC current company extract confirmed that Pamela Farrelly was appointed as the sole director and secretary of the respondent on 8 January 2024.
The matter came before me for direction at 9:30 am on Friday, 15 March 2024. The respondent did not appear. I dismissed the application for interim or other orders and listed the application for directions on 22 March 2024 at 2:30 pm.
At 1:52 pm on 21 March 2024, the tribunal received an email from the applicant’s solicitors seeking an adjournment for two weeks in order to consider and obtain instructions from the applicant. The email was copied to [email protected] and [email protected]. Pamela Farrelly replied at 2:47 pm (using [email protected]) saying that she consented to the adjournment. The tribunal replied to the parties at 2:24 pm that, due to the late notice, the adjournment was not granted but the matter could be raised again with the member at the start of the hearing. Ms Farrelly replied by email at 2:49 pm that “I am unavailable tomorrow and as per my previous email I support the adjournment”.
The application came before me again for directions on 22 March 2024. I made orders joining Mr Farrelly as a party to the application and directed that the application be served on him by email and SMS. The directions hearing was adjourned to 9:30 am on Friday, 19 April 2024. A note to the orders stated:
The Tribunal expects that on the next occasion the applicant will be in a position to inform the Tribunal how it intends to proceed in relation to access to carry out necessary works to the balcony of unit 22 and of any related issues that the Tribunal may be called upon to decide, such as where responsibility lies the cost to provide clear access to work surfaces on the subject balcony, and a timetable for the filing and service of an amended application and any evidence on which it intends to rely. The Tribunal may be prepared to hear the matter on an expedited basis if grounds for expedition are established.
The respondent has not appeared at directions [hearings] of which it was on notice, without explanation, on two occasions. Appearance at a directions hearing pursuant to an order of the tribunal is not optional. The respondent’s attention is drawn to rule 61 of the ACT Civil and Administrative Tribunal Procedures Rules 2020 which provides, among other things, that if a respondent fails to attend a directions hearing the Tribunal may decide the matter in their absence.
The application came before me for directions at 9:30 am on Friday, 19 April 2024. Neither the respondent nor Mr Farrelly appeared. I gave leave for the applicant to file an amended unit titles application dated 18 April 2024 and directed that a copy be served on the respondent and Mr Farrelly by email by 4:00 pm that day.
I listed the application for hearing on Friday, 3 May 2024 for one day on the question whether access to unit 22 should be ordered and, if so, on what terms. The orders made on 19 April 2024 included orders for the filing and service of evidence. The respondent’s and Mr Farrelly’s evidence was required to be filed and served by 4:00 pm on Wednesday, 1 May 2024. Order 7 stated:
If the respondents fail to appear at the hearing on 3 May 2024, the Tribunal will hear and determine the application in the absence of the respondents.
An affidavit of service affirmed on 24 April 2024 confirms that service by email was effected at 11:15 am on 19 April 2024. Mr Farrelly replied by email (copied to the tribunal) the same day stating, “Access will not be provided and I intend to have these orders set aside next week”. I have disregarded the fact that the email was marked ‘without prejudice’ because, if it was ever entitled to protection as a confidential ‘without prejudice’ communication, which I doubt, the protection was lost when the email was copied to the tribunal.
I am satisfied, therefore, that the respondent and Mr Farrelly were on notice of the hearing on 3 May 2024, the requirement for the service of evidence and the consequences if they failed to appear.
The applicant filed and served a witness statement by Karen Palmer, the owner and occupier of unit 16, on 24 April 2024, in compliance with the orders made on 19 April 2024. Together with the documents accompanying the amended application, this constituted the applicant’s evidence on the application.
At 1:44 pm on 30 April 2024, Mr Farrelly emailed the applicant’s solicitors and the tribunal to advise that he had developed a severe infection and was receiving medical treatment. He said he was on antibiotics and had been advised that if his condition did not improve, he would need to go to hospital. He said, “I am conscious of our legal matters and the need to allow another week to deal with them as I am out of action”.
On Wednesday, 1 May 2024 at 9:45 am, Mr Farrelly emailed the applicant’s solicitors and the tribunal advising that he was ordered to have an urgent ultrasound at 1:00 pm that day and “then hospital” and attaching a medical certificate stating that Mr Farrelly was receiving ongoing medical treatment for a soft tissue infection/abscess and that he was expected “to be unfit from today until 08/05/24”. The medical certificate continued:
Jaime reports he has been unwell since 26/04/24, suffering from fever, pain, malaise, breathlessness, impaired concentration and severe fatigue, which is consistent with his current clinical condition. Kindly excuse him from his work commitments during this time.
At 1:23 pm on 1 May 2024, the tribunal wrote to the parties acknowledging receipt of a request for adjournment. The parties were informed that the request was being considered and the tribunal would be in contact when a decision was made.
At 1:47 pm on 1 May 2024, the solicitors for the applicant wrote to the tribunal and the other parties advising that if the tribunal intended to treat the correspondence from Mr Farrelly as an application to adjourn or vacate the hearing date, they expected to receive instructions to oppose the application.
At 2:01 pm on 1 May 2024, Pamela Farrelly sent an email to Mr Farrelly, which she copied to the applicant’s solicitors and the tribunal, stating “I have had my CT scan and am required to the hospital tomorrow (sic) for a procedure”. I assume the email was sent by Pamela Farrelly on Mr Farrelly’s instructions because he was unable to do so.
At 2:04 pm on 1 May 2024, Pamela Farrelly replied “Thank you kindly” to the tribunal’s email regarding the request for adjournment.
At 3:04 pm on 1 May 2024, the applicant filed and served a bundle of documents on which it intended to rely in opposition to Mr Farrelly’s request for adjournment.
This was followed by an email exchange between Mr Farrelly and the applicant’s solicitors. In one email sent to Mr Farrelly at 3:19 pm, he was asked to advise if he was no longer occupying the unit. The question was never answered.
At 3:25 pm on 2 May 2024, Saphyre Farrelly – the person who replaced Mr Farrelly as the sole director of the respondent and who in turn was replaced by Pamela Farrelly on 8 January 2024 – emailed the tribunal to enquire whether progress had been made in the tribunal’s consideration of the request for an adjournment.
At 4:04 pm on 2 May 2024, the tribunal wrote to the parties:
The Tribunal will hear any application to adjourn the hearing due to the party joined’s personal circumstances at 10:00 am on Friday, 3 May 2024.
The respondent must attend and be ready to proceed in the event an adjournment is not granted.
At 4:50 pm on 2 May 2024, Saphyre Farrelly emailed the tribunal as follows:
Over the last two days you have been provided with substantial medical evidence
You’ve also been advised that the respondent is, for the same reasons unable to attend
obviously, the respondent objects to a hearing proceeding tomorrow for the reasons previously provided regardless of if the applicant wishes to accept it the reality of the respondents medical condition or if they don’t
For your convenience I have attached evidence previously provided supporting an adjournment
In the circumstances a hearing proceeding tomorrow would be prejudicial and take advantage of the respondents weakened position [All errors in the original]
At 4:58 pm on 2 May 2024 and again at 5:27 am and 10:13 am on 3 May 2024, Saphyre Farrelly emailed the tribunal forwarding evidence of Mr Farrelly’s follow-up medical appointment with Dr Wei on 3 May 2024.
I note that Saphyre Farrelly identifies herself on emails as “EA to Mr Farrelly”.
The hearing on 3 May 2024
Neither the respondent, nor Mr Farrelly appeared. Both parties were on notice of the hearing and the Tribunal had specifically directed the respondent to attend and be ready to proceed in the event the adjournment was not granted.
Because the respondent is a corporation it was required to appoint an authorised representative if it wished to defend the application.[3] Rule 41(3) of the ACT Civil and Administrative Procedures Rules 2020 (ACAT Rules) provides that the authorised representative of a corporation must lodge at the tribunal an authority to act for the corporation executed by the corporation and a company search of the corporation. This was not done. Relevantly, neither Mr Farrelly not Saphyre Farrelly were authorised to represent the respondent in connection with the application.
[3] ACAT Act, s 30; ACT Civil and Administrative Procedures Rules 2020, r 41
Mr Farrelly, as a party joined, was required to appear at the hearing personally or by an authorised representative, who may be legal practitioner or a person appointed under a power of attorney authorising them to do anything that the party appointing them may do in the proceeding.[4] Mr Farrelly did not instruct a lawyer or appoint an authorised representative to attend the hearing.
[4] ACAT Rules, r 41(2) and (4) and r 42(1)
As the respondent and Mr Farrelly were informed that the Tribunal would hear any application for an adjournment at 10.00 am on 3 May 2024, I decided it was appropriate to consider how the Tribunal should proceed under section 47A of the ACAT Act.

Section 47A provides:
(1) This section applies if—
(a)the tribunal requires a party to appear either personally or by a representative before the tribunal in relation to an application; and
(b) the party fails to appear.
(2) The tribunal may—
(a) if the party is the applicant—dismiss the application; or
(b) if the party is the respondent—decide the application; or
(c) if the party is not the applicant or respondent—remove the party from the application; or
(d) do any of the following:
(i) continue with the hearing in the absence of the party either generally or in relation to any relief claimed in the application;
(ii) order that the application be set down for hearing at another time;
(iii) order that stated steps be taken before the hearing takes place as the tribunal directs;
(iv) make any other orders that the tribunal considers appropriate.
I was satisfied that the conditions in section 47A(1) were met.
The issue then was how the discretion under section 47A(2) should be exercised. The applicant submitted that I should decide the application in the absence of the respondent and Mr Farrelly and tendered two bundles of correspondence, an affidavit of service affirmed on 24 April 2024, a current title search of unit 22 and a witness statement by Karen Palmer, the owner and occupier of unit 16, in support of its position.
Mr Farrelly
Although the applicant questioned whether the form and sufficiency of the medical evidence provided by Mr Farrelly justified the conclusion that he was unable to participate in the hearing, particularly where provision for remote appearance is available, I am satisfied that Mr Farrelly has a reasonable excuse for not appearing at the hearing personally.
The real issue is whether Mr Farrelly is a proper party to the application.
The Tribunal’s jurisdiction in unit titles matters is conferred by part 8 of the UTMA.
Section 125 provides:
(1) This section applies to a dispute between 2 or more of the following
(a)the owners Corporation for a units plan;
(b)…
(c)an owner or occupier of a unit in the units plan;
…
(2) A party to the dispute may apply to the ACAT for an order in relation to another party if the application relates to the dispute.
As I mentioned at the start, I made an order joining Mr Farrelly as a party to the application on the premise that he is the occupier of the premises and therefore a party to a dispute under part 8 of the Act. However, the evidence shows otherwise. Relevantly:
(a)The ASIC company extract for the respondent lists Mr Farrelly’s address up to 23 October 2023, when his appointment as sole director ceased, as a unit in premises in Double Bay, Sydney.
(b)According to the medical certificate provided by Mr Farrelly, he is currently being treated by Dr Victor Wei, whose medical practice is in Double Bay, Sydney.
(c)A photograph of the antibiotics Mr Farrelly was prescribed on 29 April 2024, emailed to the tribunal on 1 May 2024 at 2:14 pm, shows that the drugs were issued by a pharmacy in Double Bay, Sydney.
(d)Mr Farrelly’s Facebook page lists him as living in Sydney.
(e)Ms Palmer gave oral evidence that the last time she observed Mr Farrelly’s car parked at the premises was in November 2023.
(f)Mr Farrelly’s response to receiving a copy of the original application on 14 March 2024 was to inform the tribunal that he was not the correct person to contact about the matter.
(g)On 19 April 2024, upon being served with the amended application naming him as a party, Mr Farrelly’s response was that he would apply to set aside the orders made that day.
(h)Mr Farrelly failed to respond to the applicant’s solicitor’s request to advise if he was no longer occupying the unit.
(i)Mr Farrelly did not apply to be joined as a party to the dispute on the basis that he is an occupier, which would be expected if he was living in the unit at the relevant time.
On the available evidence, I am not satisfied that Mr Farrelly is the, or an occupier of unit 22 and therefore that he is a proper party to the dispute.
In those circumstances, it is appropriate to order he be removed as a party under section 47A(2)(c) of the ACAT Act.
The respondent
In the case of the respondent, the following circumstances are relevant to the Tribunal’s discretion under section 47A(2).
The respondent has not appointed an authorised representative to act for it in relation to the application, as rule 41(3) of the ACAT Rules requires.
The respondent was notified of directions hearings on 15 March, 22 March and 19 April 2024 and failed to appear each time, without explanation.
The respondent was warned on 22 March 2024 that attendance at directions hearings was not optional, and its attention was drawn to the tribunal’s power under rule 61 of the ACAT Rules to decide the application in the absence of the respondent if it failed to appear at a directions hearing.
The respondent was informed by order 7 made on 19 April 2024 that if the respondent failed to appear at the hearing on 3 May 2024 the Tribunal would hear and determine the application in its absence.
Although Mr Farrelly sought an adjournment of the hearing because of his medical circumstances, he was not authorised to seek an adjournment on behalf of the respondent.
The respondent failed to comply with the Tribunal’s orders requiring the respondent to file and serve its evidence by 4.00 pm on 1 May 2024. Nor did it seek an extension of time to comply with the orders.
The Tribunal gave a direction on 2 May 2024 that any application for an adjournment would be considered at the start of the hearing on 3 May 2024. This was ignored. The respondent has not sought an adjournment of the hearing.
Saphyre Farrelly’s emailed response to the Tribunal’s direction, which asserted that the “respondent is, for the same reason unable to attend” – referring to the medical evidence submitted on behalf of Mr Farrelly – and that “the respondent objects to a hearing tomorrow for the reasons previously provided” and that “a hearing proceeding tomorrow would be prejudicial and take advantage of the respondents weakened position” is problematic in several respects.
First, neither Saphyre Farrelly – who is Mr Farrelly’s executive assistant – nor Mr Farrelly, is an authorised representative of the respondent.
Second, it needs to be emphasised that a medical certificate does not automatically entitle a person to an adjournment. Nor is a person entitled to assume that an adjournment will be granted if they fail to appear merely because they have provided a medical certificate. In this case, there was no evidence to show how Mr Farrelly’s medical condition may bear on the respondent’s capacity to mount a defence to the application.
Third, Mr Farrelly’s medical condition does not mean that the respondent was “unable to attend” the hearing. To be able to attend the hearing the respondent had to appoint an authorised representative, which it failed to do.
Fourth, no explanation was given for the assertion that the respondent’s position would be “weakened” by Mr Farrelly’s absence. Relevantly, there was nothing to suggest that the respondent (or Mr Farrelly) had intended to file and serve a witness statement in compliance with the Tribunal’s orders but that it had been unable to do so because of Mr Farrelly’s illness.
Section 7A of the ACAT Act imposes a duty on each party to a proceeding to cooperate with the tribunal to give effect to the tribunal principles mentioned in section 7 – which include, relevantly, to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice – and to comply with the Act and any directions. The respondent ignored the Tribunal’s direction on 2 May 2024 that the respondent must attend and be ready to proceed in the event an adjournment was not granted. This was a deliberate breach of the respondent’s statutory duty.
The circumstances described in the next part of these reasons satisfied me that it was appropriate to treat the application as urgent.
Finally, as the applicant’s claim under section 31 of the UTMA for recovery of expenditure resulting from the respondent’s alleged ‘fault’ has been deferred, I was satisfied that the issue before me, which relates only to access, could be decided without prejudicing the respondent’s position in relation to any subsequent hearing of the applicant’s section 31 claim.
It was appropriate in those circumstances to order that the hearing proceed and be decided in the absence of the respondent under section 47A(2)(c) of the ACAT Act.

The substantive application – access

Background

Several years ago, the applicant became aware of waterproofing issues affecting level 4 of the apartment complex. The original builder, Bloc (ACT) Pty Ltd, agreed to undertake necessary rectification works at no cost to the owners corporation and individual unit owners. The builder has completed the work on level 4 except for the balcony of unit 22.
On 9 August 2022, the builder emailed a proposed scope of works to Mr Farrelly, who was then the sole director of the respondent. Mr Farrelly replied on 11 August 2022, stating that he could not provide access through his unit but was prepared to discuss the issue further. Further correspondence ensued, with Mr Farrelly maintaining that he could not provide access through his unit and suggesting various alternatives, including that access be obtained via externally erected scaffolding.
On 13 February 2023, Mr Farrelly sent an email to the builder noting that “I haven’t heard anything lately” and stating that, “My assumption is that you no longer need to attend to level 4 repairs and the matter is closed”. The builder replied the next day:
The issue remains unresolved, we do require access to your unit for two items
1.The level four balcony pressure seal works that involved moving your plants as outlined in previous emails. Common property matter
2.The leak into your personal unit on level 5 you raised, however have not provided access to resolve to date.
We require access for multiple trades to address these matters, this has not progressed as you simply refused access, despite Bloc and Doma’s best efforts to reassure you regarding your property.
On 17 May 2023, Karen Palmer, the owner of unit 16, returned from an overseas trip and discovered that the ceiling of her unit had visible water damage. She immediately notified the strata manager and asked for the leak to be rectified and the damage repaired. There were various communications by email between the Ms Palmer, the builder, the strata manager and Mr Farrelly regarding getting access to the balcony of unit 22 for the work to be carried out.
On 23 May 2023, Mr Farrelly advised by email that access through his front door was “not appropriate” and asked to be removed from all future correspondence concerning the matter, saying “I won’t engage any further on it”.
The builder attended unit 16 on 2 June 2023 and found that water was likely leaking through the torch-on membrane on the balcony of unit 22 and entering unit 16 through cracks in the balcony slab. The builder stated in an email to Ms Palmer:
The water egress is caused by either 2 issues. Failed pressure seal to the torch on membrane, and or via the spandrel edge of level 4 at the cold joint, where the spandrel meets the slab. Previously our mission was to treat all Torch on issues we had found in our investigations under SPC warranty to see if this stopped water egress to below units. For most this has been the issue. If water ingress was still a issue, further investigations would have to be taken, predominantly to the level 4 spandrel edge.
All in all, all leaks are resulting to level 4 and not any services and plumbing, and a thorough investigation is needed above. [Errors in the original]
Ms Palmer wrote to the strata manager the same day advising that she wanted to sell her apartment if she could not get it fixed and threatened to sue the owners corporation and Mr Farrelly for damages and losses associated with the sale.
Further efforts to secure agreement for access to the unit 22 balcony via the front door were unsuccessful.
In November 2023, Ms Palmer and her partner refused to pay their strata levies because of the applicant’s failure to repair the leak and threatened to go to the media.
On 15 November 2023, the strata manager wrote to the builder:
We have again formally requested access to the property for the purpose of Bloc attending to the identified defects. This has not been responded to by the owner of 22/6.
We are taking advice now on next steps which will likely require forced access to the property. To assist with finalising this decision, can you please outline:
1.What work will be undertaken in 22/6?
2.How long will access be required to rectify the defects?
3.How much notice required and earliest availability to attend the property?
Will revert next steps once we have this information confirmed.
In oral evidence to the Tribunal, Ms Palmer confirmed that the damage to the ceiling of her unit had worsened progressively because unit 22 had continued using the watering system twice daily since the leak was first identified. She described water “cascading” over the edge of the unit 22 balcony in the morning and evening each day.
On 19 February 2024, the applicant’s solicitors wrote to Pamela Farrelly on behalf of the respondent – she had been appointed sole director of the respondent by then – requesting consent to enter unit 22 to perform rectification works. The letter explained why the applicant considered that access through the front door of unit 22 was the only viable option and sought the respondent’s consent to either of the following:
(i) the OC (and its agents) entering Unit 22 via the front door for the purpose of undertaking the required rectification works to the balcony for a period of approximately 12 business days commencing on 21 March 2024; or
(ii) the OC (and its agents) entering unit 22 via external scaffolding for the purpose of undertaking the required rectification works to the balcony for a period of approximately 12 business days commencing on 21 March 2024, on condition that Stormer Corporation agrees, in writing, to pay the additional costs occasioned by the erection of the scaffolding, in advance. In the event that you choose this option, Bloc will charge an hourly administration fee of $150, plus GST for its time spent obtaining (and administering) the quotations from third-party suppliers for the scaffolding including any time spent on site visits with the prospective suppliers. [Original emphasis]
The respondent did not reply to the letter.
The applicant commenced this proceeding on 13 March 2024. It was not possible for the ACAT to accommodate the applicant’s request for expedition to allow the application to be decided within a timeframe that would allow work to commence on 21 March 2024, so the work was deferred. The procedural history is described earlier in these reasons and need not be revisited.
On 11 April 2024, the applicant’s solicitors wrote to Pamela Farrelly on behalf of the respondent and Mr Farrelly, who by then had been joined as a party on the basis that he was the occupier. The letter stated:
The owners corporation of UP 4273 (OC) has a strict duty to maintain and repair the “common property” and the “defined parts” of the strata complex, which includes the balcony adjoining Unit 22. There does not appear to be any dispute that the balcony adjoining Unit 22 is defective, and that the OC is required to maintain and repair it.
Mr Farrelly has previously consented to the OC (and its agents) entering Unit 22 to perform the required balcony and common property works, provided that the OC enters via the direction of external scaffolding.
The purpose of this letter is to notify you that the OC (and its agents) will be entering Unit 22 via the direction of external scaffolding, and performing the required rectification works to the common property and the balcony adjoining Unit 22, between 8:00am and 5:00pm on 13 May 2024 to 31 May 2024.
The scope of works in respect of the balcony works is:
(a)   the pots and plants will be removed away from the parapet a minimum of 900 mm;
(b)   the irrigation will be disconnected;
(c)   any plants hanging over the railing or intertwined will be cut back or removed, as required;
(d)   the perimeter decking boards will be lifted at least three boards;
(e)   the pressure seal to the torch on membrane will be repaired;
(f)     any excessive water under the membrane will be extracted;
(g)   the decking boards will be removed around the down pipes and the pressure seals will be repaired at those termination; and
(h)   following completion of these works, the balcony will be reinstated.
Of course, the most efficient and cost-effective way for the works to be performed is for you to provide the OC (and its agents) with access to the balcony via the front door. If you are willing to facilitate this, please let us know by no later than 5:00pm on 17 April 2024.
Otherwise, we have been instructed to recover the costs associated with the erection of the external scaffolding from you as a debt due to the OC under section 31 of the Unit Titles (Management) Act 2011 (ACT).
We await your response. [Original emphasis]
The respondent did not reply to the letter. However, Mr Farrelly replied by email the same day, which said in part:
I refer to your attached letter which is borderline laughable
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At no time whatsoever have I previously consented to the OC (and its agents) entering unit 22.
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You have not sought permission or consent to enter unit 22, there is no agreement nor have you sought to make one.
Make no mistake, if you attempt to access the balcony area of unit 22 which is part of the units unit entitlement then the ACT local police will be engaged to remove any persons attempting to or actually trespassing either inside or outside unit 22 and should they be required, civil charges.
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Regarding the scope of works, you shall not undertake any such works without a prior agreement in respect of all balcony items
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Further, I am currently caring for my sick elderly mother and also my niece as well as preparing the property for sale so you are denied access in its entirety for these reasons among others.
This appears to be the only time Mr Farrelly has offered any explanation for the refusal to give access.
The statutory context
Section 28 of the UTMA provides:
(1)     An owners corporation for a units plan does not have a right to enter a unit in the units plan without the consent of the owner or occupier, except in accordance with this section.
(2)     The owners corporation may enter the unit without notice to the owner or occupier of the unit if the access is required in an emergency.
(3)     If entry to the unit is required to inspect or maintain the common property of the units plan, a person may enter the unit on behalf of the owners corporation if –
(a)the executive committee authorises the entry, and the person to enter, by resolution; and
(b)the executive committee gives the owner or occupier written notice that the entry must be allowed on a stated day.
(4)     A notice under subsection (3)(b) must be given to the owner or occupier not less than 7 days before the entry it relates to.
The dictionary of the UTMA adopts the definition of ‘unit’ in section 9 of the Unit Titles Act 2001. Section 9(2) provides that a unit of a units plan includes any unit subsidiary shown on the units plan as annexed to the unit.
The units plan identifies the balcony of unit 22 as a unit subsidiary. The applicant conducted its case on the premise that the restriction on an owners corporation’s “right to enter a unit” in section 28(1) extends to a unit subsidiary. I have proceeded on the same basis.
The applicant did not contend that the circumstances in this case constituted an “emergency”.

Where entry is required for the owners corporation to inspect or maintain the common property (including ‘defined parts’ of a building that are common property) it may do so without obtaining an order from the ACAT provided it does what is required by section 28(3) and (4). However, that does not assist the applicant in this case.
Curiously, section 28 does not provide for circumstances where an owners corporation requires entry to a unit to inspect or maintain ‘defined parts’ of a building that are not common property. If the owner refuses or fails to give consent, as happened in this case, there appears to be no mechanism for the owners corporation to ‘force’ the issue without applying to the ACAT for an order authorising entry.
Although section 28(1) states that an owners corporation does not have a right to enter a unit without the consent of the owner or occupier “except in accordance with this section”, this does not mean that the owners corporation is precluded from applying to the ACAT for an access order where access is necessary for the owners corporation to perform its statutory maintenance obligations.
Section 129 of the UTMA provides in part:
(1) The ACAT may make the following orders:
(a)an order requiring a party to do, or refrain from doing, a stated thing;
(b)an order requiring a party to exercise a function under this Act;
(c)an order requiring an owners Corporation to do a stated thing that is ancillary to a function of the corporation under this Act;
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(2) The ACAT may make any other order it considers reasonably necessary or convenient to resolve a dispute under this part.
The powers given by section 129 are sufficiently broad for the Tribunal to be able to make orders to facilitate an owners corporation performing its statutory maintenance obligations, including where entry to a unit is required for that purpose and the owner or occupier has failed or refused to consent.
Consideration
On the evidence before me, I find as follows:
(a)The balcony of unit 22 is not common property.
(b)The balcony waterproofing has failed and during the past 12 months has resulted in water from the balcony leaking into unit 16 below, causing damage to the ceiling.
(c)The damage has been getting worse because the unit 22 balcony watering system has been and is continuing to be activated twice a day.
(d)The balcony is a ‘defined part’ of the building, which the applicant must maintain pursuant to section 24(d) of the UTMA.
(e)The work to rectify the problem will involve:
(i)      removing perimeter skirting boards on each of the three sides to the balcony to the extent necessary to allow inspection and repair of the pressure seal to the torch-on membrane and extraction of any excess water under the membrane;
(ii)     removing decking boards around downpipes on and adjacent to unit 22 to the extent necessary to allow inspection and repair of the pressure seals;
(iii)   inspecting and, if necessary, rectifying the detailing of overflow outlets to the balcony;
(f)For access to the work surface and to minimise the risk of damage during the performance of the works, it will be necessary to move items such as pots, planter boxes, plants, watering systems, BBQs, outdoor furniture and similar and to cut or cut back some plants affixed to or intertwined with the balcony railing or other structures to enable them to be moved.
(g)The respondent has not consented to the applicant and persons engaged in doing the work having access to the balcony.
Despite the lack of evidence and the failure of the respondent to appear, I have considered that the proposed works must inevitably cause some inconvenience to the occupier of unit 22, whoever they may be. I expect that access to the balcony will be restricted for the duration of the works for safety reasons and that there will be some interference with privacy due to the presence of workers. I do not see this as a reason to further delay the work.
I am satisfied, that access to the balcony of unit 22 is necessary for the applicant to comply with its statutory maintenance obligations and that the work is urgent because of the ongoing damage to unit 16 and the resulting interference with the owners’ use and enjoyment of their property.
It is appropriate to make orders requiring the applicant to carry out necessary maintenance work to the balcony of unit 22 (order 1) and for access to the balcony (order 2). In light of Mr Farrelly’s threat to call the police, it is appropriate also to make an order restraining the respondent from preventing, interfering with or delaying the applicant’s compliance with orders 1 and 2, or allowing the occupier or any other person to do so (order 3).
I have refrained deliberately from commenting on factual issues raised in the evidence where it is not necessary to do so for my decision and where findings in relation to those issues may affect any future application to recover expenses from the respondent under section 31 of the UTMA. These are issues best left for another day when the respondent will have another opportunity to appear and be heard.

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Senior Member M. Orlov

Date(s) of hearing:	3, 6 May 2024
Counsel for the Applicant:	Mr J. Moffett
Solicitors for the Applicant:	Thomson Geer Lawyers (Ms S. Mulherin)
Respondent:	No appearance
Party Joined:	No appearance