Van Vliet v Landscape Enterprises Pty Ltd - [2022] NSWPICPD 49

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SPEDDING v THE OWNERS – UNITS PLAN 3941 (Unit Titles) [2022] ACAT 49

UT 3/2022

Catchwords: UNIT TITLES – statutory construction – meaning of “notice of reduced quorum decision under section 3.10(1)” in section 3.11(2) of schedule 3 of the Unit Titles (Management) Act 2011 – whether temporal requirement to give written notice of reduced quorum decision within seven days after the meeting is imported into section 3.11(2) – whether reduced quorum decisions at annual general meeting took effect despite written notice of the decisions being given to unit owners more than seven days after the meeting – whether a reduced quorum decision takes effect immediately subject to being disallowed by a petition signed by a majority of unit owners under section 3.11(3) – held that the reduced quorum decisions made at the annual general meeting did not take effect

Legislation cited: ACT Civil and Administrative Tribunal Act 2008, ss 53, 55
Legislation Act 2001, ss 146, 151
Unit Titles (Management) Act 2011 s 39, sch 3 ss 3.6, 3.9, 3.10, 3.11

Cases cited:Leonard v Michie [2019] ACAT 14
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Woolmer v The Owners – Units Plan No 346 [2019] ACAT 95

List of

Texts/Papers cited: Explanatory Statement, Unit Titles (Management) Bill 2011, Sch 3

Tribunal:Senior Member M Orlov

Date of Orders:  10 June 2022
Date of Reasons for Decision:      10 June 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          UT 3/2022

BETWEEN:

DAVID SPEDDING
Applicant

AND:

THE OWNERS – UNITS PLAN 3941
Respondent

TRIBUNAL:Senior Member M. Orlov

DATE:10 June 2022

ORDER

The Tribunal orders that:

The separate question in paragraph 1 of the orders made on 29 April 2022 is answered in the affirmative.
The Tribunal declares that in the events that happened and on the proper construction of sections 3.10(1) and 3.11 of schedule 3 of the Unit Titles (Management) Act 2011, the reduced quorum decisions made at the annual general meeting of the respondent on 16 December 2021 did not take effect because the respondent did not give written notice of the reduced quorum decision to unit owners within seven days after the meeting.
The amended unit titles application filed on 31 March 2022 is otherwise dismissed.
The parties have liberty to apply for any consequential orders within seven days of the date of these orders.

………………………………..
Senior Member M Orlov

REASONS FOR DECISION

Introduction and overview

The issue in this application is whether reduced quorum decisions made at the annual general meeting of the owners corporation held on 16 December 2021 took effect, where the owners corporation gave notice of the reduced quorum decisions to unit owners on 4 January 2022, which was more than seven days after the meeting.
There is no factual dispute. The issue turns on the proper construction of sections 3.10(1) and 3.11 of schedule 3 of the Unit Titles (Management) Act 2011 (UTM Act),…

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] NSWPICPD 49
Decision Date: 10 June 2022

CaseChat Overview and Summary

The case of Van Vliet v Landscape Enterprises Pty Ltd involved a dispute between the plaintiff, a unit owner, and the defendant, the body corporate managing the unit title scheme. The plaintiff contested the validity of certain decisions made at an annual general meeting (AGM) of the unit owners, which were allegedly conducted with a reduced quorum. The primary issue was whether these decisions were valid if the written notice of the reduced quorum was not provided within the seven-day period stipulated by section 3.10(1) of the Unit Titles (Management) Act 2011, and whether such decisions took immediate effect subject to potential disallowance by a petition under section 3.11(3).

The court was required to interpret the provisions of the Act, specifically the interplay between sections 3.10(1) and 3.11(2) of Schedule 3, to determine if a temporal requirement for the written notice of reduced quorum decisions under section 3.10(1) should be applied to section 3.11(2). Additionally, it needed to decide whether the reduced quorum decisions at the AGM took effect despite the delayed written notice and if such decisions took immediate effect subject to being disallowed by a petition signed by a majority of unit owners under section 3.11(3).

The court held that the statutory language in section 3.11(2) did not explicitly import the temporal requirement of section 3.10(1). Consequently, the delayed written notice did not invalidate the decisions made at the AGM. The court found that the reduced quorum decisions did take effect immediately, but they were subject to being disallowed by a petition signed by a majority of unit owners under section 3.11(3). However, in this instance, the court ruled that the decisions made at the AGM did not take effect because the written notice was provided beyond the seven-day period required by section 3.10(1).

The court's final orders determined that the decisions made at the AGM were invalid due to the failure to provide the written notice within the stipulated timeframe. The court did not allow the reduced quorum decisions to stand, thereby affirming the plaintiff's contention regarding the invalidity of those decisions.

Orders