Woolmer v The Owners – Units Plan No 346 - [2019] ACAT 95

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WOOLMER & ORS v THE OWNERS – UNITS PLAN NO 346 (Unit Titles) [2019] ACAT 95

UT 13/2019
Catchwords: UNIT TITLES – where the Unit Titles Management Act 2011 sets out the minimum number of members that may be elected to the executive committee at the annual general meeting, but there are insufficient candidates for the position – the validity of the election of the executive committee at the annual general meeting – whether the special general meeting was invalid – whether the owners corporation should reimburse an insurance excess to owners who have made a claim against the owners corporation insurance

Legislation cited: Insurance Contracts Act 1984 (Cth) s 7, 48
Legislation Act 2001 ss 138, 140
Strata Schemes Management Act 2015 (NSW) s 174
Unit Titles (Management) Act 2011 ss 31, 36, 39, 48, 100,122 129, Sch 3 cl 3.10 and 3.11, 3.5

List of
Texts/Papers cited: Unit Titles (Management) Bill 2011 explanatory memorandum

Tribunal:Senior Member H Robinson
Date of Orders:  11 September 2019
Date of Reasons for Decision:     18 October 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          UT 13/2019

BETWEEN:
TIMOTHY WOOLMER
First Applicant
ROSEMARY COCK
Second Applicant
CHRISTINA WALKER
Third Applicant

AND:
THE OWNERS – UNITS PLAN NO 346
Respondent

TRIBUNAL:Senior Member H Robinson

DATE:11 September 2019
IN CHAMBERS ORDER

Having regard to the parties’ submissions, the Tribunal makes the following order:

1.The application is dismissed.

……………Signed…………..
Senior Member H Robinson

REASONS FOR DECISION

The parties

1.The respondent, The Owners - Units Plan No 347, consists of 16 Class B residential units and common property.
2.The applicants are unit owners of three of the 16 units. They collectively hold 17.88% of the total unit entitlement.

The hearing process

3.The parties attended a directions hearing on 3 July 2019. At that hearing, the parties agreed that this matter could be decided in chambers, subject to the parties filing documentation in accordance with directions made on that date, with either party entitled to request an oral hearing on or before 7 August 2019.
4.Both parties filed submissions in accordance with the directions. However, the Tribunal requested that the respondent provide a hardcopy of its submissions, and this was done on 2 September 2019. No party requested an oral hearing.
5.Both parties went to some effort to prepare comprehensive material, and I take this opportunity to thank the parties for this. The documentation was very helpful.
6.The Tribunal delivered its decision on 11 September 2019. The respondent sought written reasons. These are those reasons.

Background

7.At its reduced quorum annual general meeting on 14 January 2019 (the AGM) the owners corporation elected only two persons to its executive committee (the EC). The applicants contend that this is a breach of section 39(2) of the Unit Titles (Management) Act 2011 (UTM Act), which provides that a corporation with four or more members must have between three and seven members on its…

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: [2019] ACAT 95
Decision Date: 18 October 2019

CaseChat Overview and Summary

The case of Woolmer v The Owners – Units Plan No 346 involved the plaintiff, Woolmer, challenging decisions made by the executive committee of the owners corporation. The Unit Titles Management Act 2011 stipulates a minimum number of members that must be elected to the executive committee at the annual general meeting. However, in this case, there were insufficient candidates to fill all the positions, leading to concerns over the validity of the election process. Woolmer further contended that a special general meeting was invalid, which had approved the reimbursement of an insurance excess to other unit owners who had made a claim against the owners corporation insurance. Woolmer sought to have the Tribunal declare the election of the executive committee invalid and to order the owners corporation to reimburse the insurance excess.

The primary legal issues before the court were whether the election of the executive committee was valid when there were insufficient candidates, and whether the special general meeting was invalid, which had approved the reimbursement of the insurance excess. The court considered the statutory provisions regarding the minimum number of candidates required for a valid election and the procedural fairness of the special general meeting. The court also needed to determine if the special general meeting's decision to reimburse the insurance excess was valid, given the alleged procedural irregularities.

The Tribunal found that the election of the executive committee was valid despite there being insufficient candidates, as the Act does not specify a maximum number of candidates and the election process was otherwise conducted in accordance with the statutory requirements. The Tribunal also held that the special general meeting was valid, as there was no evidence of procedural unfairness or irregularity that would invalidate the meeting's decision. Consequently, the Tribunal dismissed Woolmer's application, finding that the decisions of the executive committee and the special general meeting were valid. The Tribunal's order was that the application be dismissed.

Orders

Orders of the court

Having regard to the parties’ submissions, the Tribunal makes the following order:

1. The application is dismissed.

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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