WRIGHT v THE OWNERS – UNITS PLAN NO 14 (Appeal) [2021] ACAT 77
AA 36/2020 (XD 1323/2019)
Catchwords: APPEAL – civil dispute – owners corporation seeking payment of arrears in levies and other charges – expenses incurred due to a wilful or negligent act or omission of a member of the corporation – double reasonableness test – where a party claims payment of unpaid levies and expenses in the original proceedings and expenses in the appeal proceedings – application of proportionality test to cumulative expenses that have been claimed in the proceedings – application of reasonableness test to moderate any excessive claims by an owners corporation – where the appeal tribunal finds certain costs claimed by the owners corporation was not reasonable expenditure – appeal dismissed
[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
AGLC
Wright v The Owners Units Plan No 14 (Appeal) [2021] ACAT 77
Case
[2021] ACAT 77
Decision Date
CaseChat Overview and Summary
The dispute in Wright v The Owners – Units Plan No 14 arose in the Civil and Administrative Tribunal of New South Wales. The Owners Corporation sought payment from the appellant, Wright, for unpaid levies, interest, and costs incurred due to the appellant’s failure to pay the levies and other charges. The tribunal had initially ordered Wright to pay the respondents the sum of $32,700.00, which included unpaid levies, interest, and costs incurred in two separate proceedings. Wright appealed this decision.
The primary legal issues before the tribunal were whether the costs claimed by the Owners Corporation were reasonable and proportionate, and if the Owners Corporation had correctly applied the double reasonableness test in assessing the costs. The tribunal was required to determine if the Owners Corporation’s claim for costs in the appeal was reasonable and proportionate, given the cumulative expenses claimed in both the original and appeal proceedings.
The tribunal found that the Owners Corporation’s claims were not entirely unreasonable, but certain costs claimed were not reasonable expenditure. The tribunal applied the proportionality test to the cumulative expenses claimed in both proceedings and the reasonableness test to moderate any excessive claims by the Owners Corporation. The tribunal concluded that the appeal was not successful and dismissed it. The tribunal ordered Wright to pay the respondents the sum of $32,700.00, comprising unpaid levies, interest, and costs for both proceedings.
Orders
Orders of the court
The Tribunal orders that:
1. The appeal is dismissed.
2. Within 30 days of today’s date, the appellant will pay the respondent the sum of $32,700.00 comprising:
(a) $4,886.64 unpaid levies and other charges; and
(b) $695.87 interest; and
(c) $19,417.49 for expenses pursuant to section 31 of the Unit Titles (Management) Act 2001 for proceedings XD 1323/2019; and
(d) $7,700 for expenses pursuant to section 31 of the Unit Titles (Management) Act 2001 for proceedings AA 36/2020.